Family Law

Because child support in Alberta is calculated based on the payor’s income, some payors take on a lower-paying job or choose to work less so their child support requirements will be lower. When this happens, the Court may decide to impute income to the payor—that is, to assign the payor a minimum income to fulfill their responsibilities to their children. 

For the past 21 years, before the Court would impute income to a payor, Alberta law required evidence to prove that a payor had intentionally made a career change to avoid child support obligations. Proving this could be extremely difficult. 

A recent Alberta Court of Appeal case has brought about welcome change to the law on this issue.  

The Peters v Atchooay 2022 Appeal Case

In the case of Peters v Atchooay 2022, Ms. Peters and Mr. Atchooay had two children during their common-law relationship between 2007 and 2013. After their separation in 2014, Ms. Peters had full custody of the children. Based on Mr. Atchooay’s stated income of $112,000, he was ordered to pay $1,865 in child support each month. 

Between December 2014 and December 2020, $124,534.17 in child support arrears accumulated. In January 2021, Mr. Atchooey applied to retroactively recalculate child support arrears based on more recent income tax returns demonstrating a significantly lower income. 

Mr. Atchooey stated the following reasons for his reduced income:

• Loss of his driver’s license due to an impaired driving charge
• Repossession of his vehicles
• A consumer proposal to address his debt load
• Challenges he faces as an Indigenous man
• Struggles with mental health

Based on the information Mr. Atchooey provided at that time, the judge decided in his favour and reduced his child support arrears to $43,111.37.

In October 2022, Ms. Peters successfully appealed this decision based on two main issues:

1. The approach to imputation of income in cases of intentional underemployment or unemployment
2. The “deliberate evasion test”

The Court agreed to change Alberta law on these issues, allowed Ms. Peters’ appeal, and disallowed the retroactive adjustment to Mr. Atchooay’s child support obligation for some of the years in question, and required a recalculation of his obligations for 2015-2020. 

Alberta’s New “Reasonableness Test” Approach to Imputing Income

The appeal of Ms. Peters has brought Alberta law in line with the child-centered approach of other Canadian provincial laws that promote fairness to the child. The Alberta Court now takes a different approach to decide on imputation of income. Before, it used the “deliberate evasion test”. Now, it uses the “reasonableness test”. 

The “reasonableness test” asks three questions:

1. Is the parent in question intentionally underemployed or unemployed?
2. Do the listed exceptions to imputation of income in section 19(1)(a) of the Federal Child Support Guidelines apply?
3. Should judicial discretion to impute income be exercised?

Alberta courts can now hold child support to pre-job-change levels and impute income where the career choice is:

1. Not the result of circumstances truly beyond the payor’s control (such as lay-offs, reduced hours, or termination without cause)—in other words, the career change is voluntary
2. Not required by the needs of the children or by the reasonable educational or health needs of the parent
3. Not reasonable, having regard to all the circumstances 

What is a reasonable career move under Alberta law?

Under Alberta’s new law, parents should be mindful of the following non-exhaustive list of governing principles before making a career change. 

• A healthy parent with the ability to work has a duty to work, regardless of work experience or job skills.
• The financial support of your children must come before personal goals and lifestyle choices. 
• A payor is not required to pursue maximum earning potential in all circumstances, but should aim for “reasonable” earning capacity based on factors like age, education, experience, skills, health, and availability of work.
• Agreements made between the parents before the separation about parenting, financial, or employment arrangements do not determine what is “reasonable” after the separation.
• “Reasonableness” involves various factors, including the degree to which child support is impacted and the effect of reduced child support on the child.
• A claim of “It’s in the child’s best interests” or “I’ll be a better parent if I work less” is not enough to justify a reduction of employment or income. 
• Underemployment or unemployment for the purpose of evading child support is never reasonable.

Alberta’s new law takes a practical approach that places responsibility on the payor to establish that their income is reasonable and prioritizes the well-being of the children. 

Child Support Lawyers in Alberta

It’s important to understand your rights and obligations as a parent after separation or divorce. The reasonableness of a change in employment is based on several factors and decided on a case-by-case basis. Contact a family lawyer at Getz Collins and Associates for more information. 

Although commonly referred to as “spousal support” this term is not used in Canada. Rather, Spousal support is the act of one spouse financially assisting another following divorce or separation. This is most common when one spouse has not been working for some time in order to support the household or where there is disparity in the incomes of the spouses. It is different from child support which is paid by one parent to another for their children.   It is important to note that although spousal support and child support are two separate orders, both can be payable at the same time.

Alberta is the only province in Canada which has spousal support guidelines, but spousal support can be determined upon application by the Court, which takes into account such factors such as spousal income and spousal resources.

Spousal Support isn’t based on splitting up matrimonial property, but rather the need of one spouse to continue to live at a reasonable standard of living.  Spousal Support can be ordered as part of a divorce or as a separate order. Upon application, the Court will determine spousal support based on the income, resources and contribution of each spouse.

Both the Divorce Act (Canada) and the Family Law Act discuss the purposes of a spousal support order. The objectives are to recognize any economic advantages or disadvantages to the spouses coming out of the marriage or occurring because the marriage has ended, to divide up any financial costs arising from the care of the children over and above the child support, to lessen any financial hardship of the spouses which may have taken place because of the end of the marriage, and, as much as possible to encourage the spouses to become able to support themselves within a reasonable period of time.

Both statutes stipulate that any spousal support order is not intended to punish a spouse for bad behaviour or to reward a spouse for good behaviour.

Spousal support may be paid in one lump sum, but it is typically paid on a monthly basis.  Support is ordered by a family court judge or agreed upon by the parties, taking into account many different factors.  It may also be ordered for a fixed period of time, or it may continue indefinitely until circumstances of the parties have changed.

In most cases, when spousal support is paid on a periodic basis (i.e. monthly or annually rather than in a lump sum), the person receiving the spousal support will claim it as income on their income tax return. The person paying the spousal support will claim the amount paid as a deduction. If you want to know whether spousal support is taxable in your case, you should talk to an accountant.

A change in either spouse’s financial situation would likely warrant an amended or varied order. Either party can apply to change a spousal support order if there is a change in the condition, means or other circumstances of either of the parties. However, if the spousal support order has a clause that says that support is to end at a specific date, and the party receiving the support wishes to extend it, the Divorce Act says that the party applying must also prove that the variation order is needed to relieve economic hardship, the economic hardship arose from the change in circumstances, the economic hardship and/or the change in circumstances are related in some way to the marriage, and if the parties had known that the change in circumstances would occur at the time they entered into the previous spousal support order, that order would have been different from what it was.

The issue of spousal support varies and is specific to each circumstance. To discuss the potential for support or if you have questions or concerns, contact our family lawyers today.

Figuring out what’s best for your child after a separation or divorce can be complex and confusing. This post will give you clarity on what Alberta law says about child custody and parenting, and give you some tips on creating a parenting plan that’s in your child’s best interests.

Parenting Laws in Alberta

The Divorce Act and the Family Law Act are the laws that govern child custody and parenting in Alberta, but there are some differences between them and they apply to different situations.

The Divorce Act is Canadian federal law that applies only to divorced couples or married couples who have separated and are pursuing a divorce. It addresses custody, parenting arrangements, and spousal support.

The Family Law Act is Alberta provincial law, and it applies to both married and unmarried people. It addresses child support, contact, access, guardianship, and parenting. If you have not filed for divorce in Canada, this Act is the one to refer to regarding parenting and contact issues.

Definitions of Legal Terms About Parenting

What’s the difference between a parent and guardian? What’s the difference between custody and access? What does contact mean in family law? There’s a lot of terminology surrounding custody and parenting in Alberta. Here are some simple definitions to help clarify the meaning of it all.

These terms describe the various relationships that parents, and sometimes other people, have with their child. In Alberta, anyone under the age of 18 years is a child.

Guardianship

In the Family Law Act, guardianship essentially refers to the authority to make decisions for or on behalf of the child. It refers to the guardian’s rights, responsibilities, and powers regarding the child.

Both parents are guardians of the child if:

• They were married to each other when the child was born
• They were married to each other, but divorced less than 300 days before the child’s birth
• They lived together for at least one year and the child was born while they were living together
• They lived together for less than one year, but were in an adult interdependent relationship, and the child was born during that relationship
• They married or became adult interdependent partners after the child’s birth and within one year of finding out about the pregnancy or birth of the child
• They signed an agreement that they’d both be guardians

If the parents are not married or living together, a parent is the guardian of the child if that parent shows an intention to assume the responsibility of guardianship within one year of finding out about the pregnancy or the child’s birth.

A guardian is responsible for the child’s physical, psychological, and emotional needs and development, including ensuring the child has food, clothing, shelter, and medical care. A guardian is entitled to receive and respond to any legal notice, health information, or educational information regarding the child, and has the power to provide legal consent on matters pertaining to the child that require it.

Guardianship is largely about decision-making. A guardian can make day-to-day decisions about the child, including the child’s:

• Living arrangements, such as where and with whom the child lives and associates
• Education
• Extracurricular activities
• Cultural, linguistic, religious, and spiritual upbringing
• Work

Custody

Custody relates to both the legal relationship and the physical or practical relationship between a guardian and the child. The legal aspect is the rights and responsibilities of guardianship. The physical or practical aspect is the right and responsibility to provide for and manage the physical needs and daily care of the child.

Legal custody and practical custody don’t need to be given to the same person. A parent or guardian can have legal custody—the right to be involved in decisions about the child—without having physical custody.

There are four main types of custody arrangements in Alberta.

1. Sole Custody

Sole custody, also called “full custody”, is the least common child custody arrangement in Alberta. It’s when one parent is solely responsible for the care of and decision-making for the child.

2. Shared Custody

Shared custody, also called “joint physical custody”, is when both parents share custody of the child. In this arrangement, each parent must spend at least 40% of their time with the child.

3. Joint Custody

Joint custody, also called “joint legal custody”, gives both parents the right to make decisions for the child. This type of custody arrangement works best with parents who can cooperate.

4. Split Custody

Split custody happens when one parent has custody of one or more children and the other parent has custody of one or more children.

Access

In the Divorce Act, access refers to time a guardian spends with the child. Even if one parent has sole custody of the child, the other parent has some form of access unless the child’s safety is at risk.

An access parent does not have guardianship rights and may only make day-to-day decisions for the child (like what to eat or what activities to do) when the child is in their care. An access parent may only be involved in bigger decisions like education or medical care if they are in a joint custody arrangement.

There are various types of access:

• Reasonable—Access is flexible, and parents can decide on a schedule together
• Conditional—There are restrictions on the parent’s access, such as prohibiting drug or alcohol use during an access visit
• Supervised—Used in extreme cases when access visits must be supervised by someone else
• Specified—A structured access agreement or order with scheduled days and times

Contact

Contact refers to time spent with a child by someone who is not a guardian. That time can be in person, or by phone, mail, or email. A person with contact does not have authority to make decisions for the child.

Parenting

In the Family Law Act, parenting refers to guardians who don’t live together but share guardianship of the child and can cooperate. Some guardians choose to create a parenting agreement or parenting plan, which is a contract that defines access, decision-making processes, and where the child will live.

When the guardians can’t agree, they can go to court where the judge will make a decision called a Parenting Order.

How Does A Judge In Alberta Decide On Parenting?

It’s ideal for parents or guardians to make parenting decisions themselves, but sometimes they can’t agree. When the decision is brought to court, the judge must protect the child’s physical, psychological, and emotional safety, and decide what’s in the best interests of the child.

A judge looks at many factors to determine what’s best for the child, including:

• The age and developmental stage of the child
• Who the primary caregiver has been until now
• The child’s cultural, religious, and linguistic heritage
• The child’s preferences
• The plans each parent or guardian has for the future care of the child
• Any history of family violence, criminal charges, or convictions
• The child’s relationships with each parent, guardian, and others in the child’s household and life, and the benefit to the child of maintaining those relationships
• The parenting ability of each guardian
• The parent’s or guardian’s schedules
• How cooperative each parent or guardian is in communicating with the other
• What each parent or guardian wants to happen

Create a Parenting Plan

Canadian and Alberta courts prefer parents to work together to agree on custody arrangements and parenting plans. If it’s too difficult for the parents to manage on their own, they should involve a lawyer or family mediation services before opting to go to court.

This is because the courts recognize that parents know their child best. A court attempts to make a decision that’s in the child’s best interests, but the court only knows the information that’s presented, which might not give an accurate picture of the true nature of the relationships involved. Also, taking a child custody decision to court can take a huge financial and emotional toll on the family.

Ideally, parents can agree to a parenting plan that covers details about:

• Living arrangements
• Decision-making
• Access schedules
• Contact time
• Communication between the child and parent when they’re not together
• A plan for holidays, vacations, weekends, etc.
• A summary of each parent’s responsibilities to the child
• A plan for resolving disagreements

The family lawyers at Getz Collins and Associates specialize in family law and assisting parents with creating a parenting plan. Contact us today for help with any guardianship, custody, access, contact, and parenting plan issue. We can advise you of your rights and the best course of action to protect your child’s best interests.

Every child in Canada has the legal right to child support from both parents because it’s in the child’s best interest. In this post, we’ll look at the basic child support guidelines in Alberta, including:

• What is child support?
• What does child support cover?
• Who is responsible for child support payments?
• How is child support calculated in Alberta?
• How do we get a child support agreement?

What Is Child Support?

Child support is the legal right of every child in Canada because it’s in the child’s best interest. Caring for a child’s needs requires money, so child support is financial support from the parents. It is the duty of both parents, even if the parents separate or divorce, and even if a parent has never lived with the child.

Child support is not spousal support. It is for the child’s benefit, not the parent’s benefit. Regardless of the parents’ relationship or the parenting arrangement, a child always has the right to receive child support.

What Does Child Support Cover?

Child support covers the basic living expenses of the child, as well as necessary special expenses that are reasonable and in the child’s best interest. Expenses covered by child support include:

• Food, clothing, and housing
• Transportation
• Health care, including dental
• Child care
• Education, including post-secondary
• Extracurricular activities

Child support always covers basic living expenses, such as food, clothing, and housing. Special expenses included in child support are determined by their necessity for the child’s best interests and their reasonableness, considering the family’s financial situation.

Who Is Responsible For Child Support Payments?

Both parents have a duty to provide child support. However, in most cases, if a child lives with one parent, the other parent pays child support because the custodial parent already provides child support by caring for the child’s day-to-day needs and expenses.

The responsibility for child support payments varies depending on the parenting arrangement. Split custody and shared custody arrangements, for example, may require a more creative division of child support.

How Is Child Support Calculated In Alberta?

For any Canadian parent who is divorcing or changing a child support order, child support is calculated using the Federal Child Support Guidelines. For all other Alberta parents, child support is calculated using the Alberta Child Support Guidelines.

The Alberta Child Support Guidelines are the same as the Federal Child Support Guidelines, but with four exceptions:

1. Child support continues beyond age 18 until age 22, as long as the child is attending a post-secondary institution full time or has a disability or illness.
2. A step parent may be responsible for child support if they have treated the child as their own.
3. Anyone who has the child in their care may apply for child support.
4. Special expenses can be estimated.

The base child support amount is established in the Federal Child Support Guidelines and depends on three key factors:

1. The pre-tax annual income of the paying parent
2. The number of children involved
3. The province in which the paying parent lives

To calculate the basic child support amount, refer to the Child Support Table Look-Up. This calculation is determined by the average amount that parents at each income level spend on their children when the parents are still together.

Special expenses are calculated separately.

Child support amounts can differ from the Guidelines in some situations, such as undue hardship or income exceeding $150,000 per year. In exceptional circumstances like these, consult with a lawyer to help determine appropriate child support amounts.

How Is Income Calculated To Determine Child Support?

The paying parent’s gross annual income (minus any paid union dues) is a factor in calculating child support. To find this amount, refer to line 150 of their income tax return, or a Notice of Assessment from the Canada Revenue Agency (CRA), or the total sum of the pre-tax amount of their pay stubs for a full year of work.

Sometimes a paying parent’s income makes it difficult to calculate a consistent child support amount. For example, if their income varies widely or if they’re self-employed, under-employed, or intentionally unemployed. In complicated income situations, consult with a lawyer to help determine child support amounts.

How Is Child Support Calculated When The Child Lives Primarily With One Parent?

When the child lives primarily with one parent, that parent is the recipient of the child support. The base child support amount is calculated using the federal Child Support Table Look-Up. Special expenses are calculated separately.

How Is Child Support Calculated When Custody Is Shared?

When custody is shared, use the Child Support Table Look-Up to calculate the amount for each parent. The higher-income parent pays the difference between the two amounts. Special expenses are calculated separately.

How Is Child Support Calculated When Custody Is Split?

When custody is split, use the Child Support Table Look-Up to calculate the amount for each parent. The parent with the highest amount must pay the difference between the two amounts. Special expenses are calculated separately.

How Do We Get A Child Support Agreement?

You don’t have to go to court to get a child support agreement. Alberta courts prefer parents to work out an agreement on their own because parents know the needs of their child best, and going to court costs time and money. It can also be stressful.

A child support agreement doesn’t have to be in writing, but it is recommended. A written agreement can avoid future disputes, even if it’s informal. This agreement can be changed, as needed, if it’s in the best interests of the child or if the parents’ circumstances change.

You can make an agreement on your own, or get a lawyer’s help. If you can’t agree, a lawyer might facilitate a resolution, or you could try a mediator or Dispute Resolution Officer in Calgary.

A child support agreement should include:

• Names and birthdates of the children involved
• The primary residence of the children
• Child support payment amounts, including the start date
• Payment method (e.g. cash, cheque, or e-transfer to the recipient)
• Additional arrangements for special expenses
• Signatures of both parents and witnesses

If you create a child support agreement yourselves, have it reviewed by a lawyer.

Child Support Lawyers in Calgary & Strathmore

Every family’s situation is unique, and various factors affect child support amounts. That’s why consulting a family law attorney can be helpful. The family law lawyers at Getz Collins and Associates are here to help. Contact us for child support inquiries, help in creating a child support agreement, or mediation in any area of family law.

Moving with a child after divorce (also called child mobility or relocation) is a complex issue. What if the other parent doesn’t want you to move? What are your responsibilities in the process? This post addresses common questions about child mobility and Alberta law.

Child Mobility & the Divorce Act

There is no provincial legislation in Alberta that governs moving with your child after a divorce, so Alberta courts refer to the Canadian Divorce Act which includes laws about child relocation.

The Divorce Act defines “relocation” as a move that’s likely to have a significant impact on the child’s relationship with someone who has (or is applying for) parenting time, decision-making responsibility, or contact.

What Are The Requirements For A Parent Moving With Their Child?

A parent who wants to relocate with their child must provide 60 days’ written notice to the non-moving parent or anyone with decision-making responsibility for the child. This notice must include the new address, the date of the proposed move, and proposed new parenting and contact arrangements.

The non-moving parent can either accept the relocation or challenge it in court within those 60 days. If the matter goes to court, the case is decided based on the best interests of the child.

A move that’s in the best interests of the parent is not automatically in the best interests of the child.

The parent who wants to relocate with the child should expect to offer convincing reasons why the move is in the child’s best interests.

It’s never a good idea to move without the permission of the court, even if the court has granted you full custody. If the other parent tells the court about your relocation with the child, it could reflect negatively on you. It’s best to have a lawyer review any custody orders or family law decisions for your family to ensure that a move is not a breach of any laws.

How Are The Best Interests Of The Child Determined In Alberta?

Alberta courts use the following factors to determine the best interests of the child:

• Reasons for relocating
• Impact moving will have on the child
• Amount of time the child spends with each parent (or person with parenting time or a pending application for a parenting order)
• The level of involvement each parent has in the child’s life
• The intention of the moving parent to comply with the notice requirements of the Divorce Act
• Any legal order, arbitral award, or agreement that specifies the geographic area in which the child is to live
• The reasonableness of the moving parent’s proposal, as it relates to parenting time, decision-making, and contact, among other things
• Compliance of all parties with their obligations under family law

How Do I Make The Case To Move With My Child?

The Divorce Act specifies that the burden of proof that a move is in the child’s best interests is on the relocating parent. Provide the court with as much information as possible to prove that relocation is in your child’s best interests. Examples of helpful information include:

• Income
• Employment opportunities at the new location
• Schooling and/or childcare at the new location
• Amenities at the new location
• Support system, such as extended family
• The child’s wishes
• Psychological assessment

Child Mobility & The Other Parent

The best course of action if you want to move with your child after a divorce is to talk to the other parent first. Let them know about the move and give them an opportunity to think about it and respond.

It’s normal for the other parent to be concerned about not being able to see or contact the child. Initially, they may feel like you’re taking their child away from them. Involving them in this process can minimize their fears.

Negotiating a new child custody arrangement is important. It’s best if you can agree on a plan together, including the travel costs involved in the child visiting the non-moving parent.

A legally binding agreement can set everyone’s mind at ease about the move. Even if you and the other parent can agree on parenting and custody arrangements, having the plan in writing solidifies the plan and can make the other parent more comfortable.

The moving parent should consider extending some goodwill to the non-moving parent. When the court grants child mobility, the non-moving parent is often given certain concessions or accommodations to maximize access, such as extended holiday visitation. Also, if travel costs for visitation will be significant, the courts may reduce child support payments to compensate.

Hire a Family Lawyer Before Moving With Your Child

Moving with your child after a divorce is a complex issue. Even if you have permission from the court and you agree with the other parent, it’s best to hire a family law attorney before you move. The best interests of your child, including your own relationship with your child, are too valuable to risk any missteps.

Every situation is unique, so the Alberta courts examine each case individually. Have a family law attorney review your case and help you understand your rights and what they mean specifically for your situation.

Before you move, have a lawyer amend your child custody agreement or get a new order put in place that reflects your new situation after relocation. This will protect you and your child and avoid any future legal battles.

Contact the family law attorneys at Getz Collins and Associates for help or advice about moving with your child after a divorce in Alberta.

The law in Alberta requires each party in a separation agreement to obtain independent legal advice. What is independent legal advice, and why is it important?

You and your spouse must have separate lawyers for independent legal advice. The same lawyer cannot represent both of you.

The benefits of a separation agreement include:

• Avoiding disputes and misunderstanding, resulting in a more amicable process
• Certainty for both parties about financial arrangements
• Protecting the interests of your children
• Saving money by avoiding litigation and qualifying for tax advantages

A separation agreement is not required in order to separate from or live apart from your spouse. However, Alberta courts will not grant a divorce until you and your spouse have decided on separation terms.

Entering into a separation agreement allows you to maintain control over decision-making about your separation instead of handing over authority to the court.

What Are My Rights Upon Separation?

You and your spouse have the right to decide on the conditions of your separation, including the division of property and parenting arrangements. If you can agree, everything can happen without the involvement of the courts. It is advisable to hire a lawyer to draw up a separation agreement to make your conditions legally binding and avoid conflict in the future.

If you and your spouse cannot agree, you can enlist the help of a lawyer, mediator, arbitrator, or judge. Arbitration and litigation relinquishes your right to decide the conditions of your separation, and places the decision-making in the hands of the arbitrator or the judge. Courtroom battles are stressful and typically not beneficial for either party nor their children.

Upon separation, you and your spouse have the right to live together in the home if you can’t afford separate homes. However, you must live completely separate lives, as roommates—no eating together or sleeping together. And there must be an intention for one of you to move out when it’s feasible.

The Family Law Act governs spousal support, child support, and parenting orders. Alberta courts decide on parenting arrangements based on the best interests of the children.

The Family Property Act classifies and divides family (or matrimonial) property and debts after separation and divorce. Alberta law requires you and your spouse to divide any debt that was incurred during your marriage.

If you leave the home, you have a right to take anything that belongs to you alone, including your clothing, personal items, gifts that were given to you alone, and anything that was exclusively yours before your marriage. You’re allowed to take a vehicle that’s registered in your name, and you may take a reasonable amount of money from any joint account to support yourself (and your children, if needed).

You may also take whatever is necessary for the care of the children (if you take them), including dishes, furniture, and clothing.

Why Do I Need A Lawyer For My Separation Agreement?

Alberta law protects individuals from agreeing to anything out of ignorance, misunderstanding, or coercion. This is accomplished by requiring you to get independent legal advice before signing a separation agreement. Your own lawyer has your best interests in mind, so they will explain your rights and obligations and ensure you understand before you sign the contract.

Without independent legal advice for both parties, a separation agreement is not legally binding. This makes it ineffective in court.

Your lawyer is obligated to:

• Inform you about the likely spousal support, child support, and division of property that would be decided if brought to court
• Describe your settlement options, including what’s reasonable and what the pros and cons of each option may be
• Tell you if you’re agreeing to receive less or more than what’s required by law and how that may impact you

It’s also important that you have all the information you need to make an informed decision. This includes the information your spouse discloses about finances. Your lawyer can review the information you have and advise you if it appears there is valuable information missing. They can also tell you if you’re disclosing more information than is necessary.

Lawyers for Independent Legal Advice in Family Law in Alberta

Choose an experienced family law lawyer for independent legal advice during the separation process. The lawyers at Getz Collins and Associates will do our best to help you find practical and lasting solutions for your family. We provide honest and straightforward advice so you can make decisions with your eyes wide open. Contact us today.

The division of property when a marriage breakdown occurs can be a stressful part of the separation process. Some of your belongings are tied to fond memories or hold sentimental value, but the financial aspect is important too. Who gets what? And what happens to property that one of you owned before your marriage?

How Does The Division Of Assets After Divorce Work In Alberta?

In Alberta, the division of property is determined by the Family Property Act. Formerly known as the Matrimonial Property Act, this law classifies and divides family property and debts after a marriage breakdown.

If you and your former spouse cannot agree on the division of assets, you have up to 2 years from the date of your separation to file a legal claim. When you do this, you and your former spouse or partner are required to submit statements of all the assets you own (in whole and in part). The Court then determines the value of your property and decides on a fair division of the property.

A fair division of property typically means that each spouse receives an equal share. However, there are exceptions when the Court deems unequal division as fair because of exceptional circumstances.

Which Property Is Exempt From Division?

The property you and your former spouse must include in your list of assets will cover family property and exempt property.

Family property is:

• Owned by one or both spouses or partners
• Acquired by one or both spouses or partners during or after the marriage relationship
• Used to benefit one or both spouses or partners or their children

Examples of family property include the family home, vehicles, investments, business assets, or household goods.

The following types of assets may be exempt, but will require proof of exemption in Court:

• Property purchased by one spouse or partner before the marriage
• Inheritance
• Insurance proceeds
• Gifts received from a third party
• Awards or legal settlements designated for one spouse or partner

If you had a legally binding prenuptial agreement in place, it will supersede the Family Property Act for the division of property.

How Is The Value Of Exempt Property Determined?

The value of exempt property is determined by the market value at the time the property was acquired or when the marriage began. If the value of the property increased during the marriage, the increase in value may be divided between the spouses or partners in a way the Court considers just and fair.

The Court makes this assessment based on several factors, such as:

• Each spouse’s contribution to the marriage (or each partner’s contribution to the relationship)
• The financial situation of each spouse or partner
• Any agreements the spouses or partners made
• The duration of the marriage or relationship
• Existing Court Orders
• Tax liabilities incurred when transferring or selling the family home

The increase in value of exempt property is often divided equally between the spouses or partners if it’s considered a product of the marriage or relationship.

What If My Spouse Is A Joint Owner Of Exempt Property?

If you want to keep the full value of exempt property, the property must be only in the original owner’s name or traceable to an account in the owner’s name. You will lose part of the exemption value in the following situations:

• If your spouse or partner is a joint owner of the exempt property
• If the property is combined with other property so that it loses its traceability
• If you spend the funds
• If the property was a gift from a third party to both spouses or partners

How Can I Protect My Assets From Division In Case Of Divorce?

The only way to ensure your assets are protected from division in case of divorce is to put a legally-binding prenuptial agreement, cohabitation agreement, or postnuptial agreement in place. Without this, the division of property is decided by the Court.

The family law lawyers at Getz Collins and Associates can draft and execute agreements and advise you on the best way to protect your property. Contact us today for legal advice about property exemptions and protecting your assets.

If your marriage breaks down, you and your spouse will have to decide to sell or keep your home. If you choose to keep it, it becomes a question of who gets to stay in the house during the divorce.

The Family Property Act is the law in Alberta that classifies and divides family property and debts. In this post, we’ll look at what the law says about your rights and the family home during a divorce in Alberta.

Do I Have A Right To Stay In The House If We’re Getting Divorced?

Yes, you have a right to stay in the family home if you’re getting divorced even if the home isn’t in your name, unless a Court has decided otherwise. Your spouse cannot evict you.

A one-year period of separation is required to obtain a divorce in Alberta. Emotionally, staying in the house with your spouse during separation can be challenging. It may be easier if you can use a separate bedroom and set up separate bank accounts. Have a family law lawyer draft a formal separation agreement to simplify decisions about financial issues and children.

What Are My Rights If I Leave The Family Home?

Even if you choose to leave the family home during the divorce process, you do not lose your rights to the property, your children, or your assets, unless a Court decides otherwise (e.g. if you’re proven a danger to your children). When you leave, you have a right to take the following with you:

• Anything that belongs solely to you (such as clothing, personal items, or gifts)
• Anything that was exclusively yours prior to your marriage
• Any vehicle that’s registered in your name
• A reasonable amount of money from any joint bank account to support yourself

If you take your children with you, you may also take whatever is necessary to care for them, including furniture, household items (such as dishes), and a reasonable amount of money.

How Can I Take Possession Of The House During Divorce?

If you wish to take possession of the house, even if it’s not in your name, you can apply for an exclusive home possession order. The Court will consider several factors to decide, including:

• The best interests of any children living in the home
• The financial situation of each spouse
• Any evidence of domestic abuse

In addition to issuing an exclusive home possession order, the Court may issue an eviction order or restraining order to a spouse.

What Happens If I Decide To Stay In The House?

If you stay in the family home, you will need to buy out your former spouse. Typically, this will require you to qualify for your own mortgage. Once you’ve secured financing for the home, your former spouse’s name must be removed from the home’s title and released from the mortgage. This process will require fees.

Should I Stay In The House During My Divorce In Alberta?

There are many factors to consider when deciding to stay or leave the family home during a divorce. For example, consider the following:

• Additional expenses—Living separately will cost more than sharing the costs of living together. If you’re the primary breadwinner, you may have to pay for the family home and a second residence for yourself.
• Future financial obligations—The money you spend during the separation period could impact the spousal support you’ll be required to pay and the division of property later.
• Your children—Child custody and parenting arrangements can be impacted if you leave the family home. If the children stay in the home when you leave, it can imply that your former spouse is better able to care for the children, even if you simply wanted them to stay for their own stability and to minimize the impact of the divorce.

Legal Advice About Staying in the House During Divorce

The decision to stay in the family home or leave during a divorce is complex. Consult with the expert family law lawyers at Getz Collins and Associates to be sure you understand your rights and the potential ramifications of each option.

When you enter a marriage, it’s about more than a legal arrangement. It’s a life of togetherness. What’s theirs becomes yours; what’s yours becomes theirs—or so it seems. But when the marriage falls apart, or when a spouse dies, it’s suddenly not that simple anymore. What are you entitled to if your spouse is the only one on the title to the property?

In this post, we’ll explore what the law in Alberta says about the division of property after divorce or in the event of a spouse’s death, including what you’re entitled to, even if you’re not on the property title.

What Does Alberta Law Say About The Division Of Property After Divorce?

In Alberta, the Family Property Act governs the division of property after divorce. The Act defines “property” as all property that’s:

1. owned by one or both spouses,
2. was acquired during or after the marriage, and
3. was used for one or both spouses (or their children).

This includes the “family home”.

Family property is divided equally and fairly in Alberta courts, except when unequal division is more fair because of special circumstances.

Alberta courts consider the following factors when deciding on the division of family property:

• The length of the marriage
• The contribution of each spouse to the marriage, including parenting and homemaking duties
• The financial situation of both spouses
• Tax liabilities of transferring or selling property
• Any other agreements between spouses
• Any Court Orders against each spouse

Because your family home is included in the family property according to Alberta law, even if you’re not on the title to the property, the courts could decide that you have a right to the property.

The Dower Act

In 1917, Alberta legislated the Dower Act to ensure a widow has a place to live after her husband dies. Although the Act has changed significantly over the years, it’s still in effect today to protect the rights of a spouse who is not on the title to the property—their home and its contents.

The Dower Act affects wills, estates, the division of family property, and all real estate transactions in Alberta. It applies to both husbands and wives before and after the death of a spouse, and includes only a single residence with only one person on the title. If the marriage ends by divorce or annulment, dower rights no longer apply.

What Am I Entitled To Under The Dower Act?

Under the Dower Act, if your spouse was the registered owner of the home, you are referred to as the “dower spouse”, and your rights to the home you lived in with your spouse during your marriage are divided into two key elements.

1. Consent to Disposition

Your spouse cannot refinance, sell, or lease your home for more than three years without your consent. If they do, you have a right to sue them. However, there is also protection for the owner spouse. The dower spouse may not withhold consent unreasonably.

2. Life Estate

Even though you’re not on the title to the home, you have a life estate interest in the home if your spouse dies, no matter what is in their will. This allows you to live in or use the home for your lifetime, even though you don’t own the property. You may not sell it or keep the sale proceeds, and you may not give the home to someone else after your death.

Put simply, you have the freedom to live in the home as long as you want to, but you do not have the freedom to sell it or give it to someone of your choice.

Does My Spouse Need My Consent To Sell The Property?

Yes. Your spouse must have your consent to sell the home, unless the property is exempt from the Dower Act.

Whenever someone gets a mortgage, sells land, or makes any other real estate transaction, the property owner is required to present documentation that shows the dower spouse’s consent to the transaction. If the property is exempt from dower rights, the property owner must submit an affidavit to prove that.

You can, however, voluntarily give up—or release—your dower rights. This simply gives up your right to a life estate and gives your consent to your spouse to refinance, sell, or dispose of the home. Releasing your dower rights does not give up your rights to equity in the home.

Releasing your dower rights requires official documentation signed with a lawyer.

If you refuse to give your consent to sell the property, your spouse may apply for a Court Order to waive the need for your consent. If the court judges your refusal to consent unreasonable, your spouse may be allowed to sell the property without your consent.

If your spouse illegally sells the property without your consent, they may be liable to pay you half of the sale proceeds or half of the value of the property. Your spouse may also face criminal sanctions.

Legal Help for Your Property Entitlement

Do you have concerns about your rights to property owned by your spouse? Does your spouse want to sell your family home without your consent? Do you have questions about dower rights? The real estate lawyers and family law lawyers at Getz Collins and Associates can help. Contact us for legal advice about your entitlement to property.