FAQ - Frequently Asked Questions
FAQ – Separation
Q: My spouse and I are still living in the same home but consider ourselves separated. Is it possible to be living in the same house with someone but be separated?
Yes, you can be separated from someone and live in the same house. If you are making applications to the Court, you will need to provide evidence to the Court about your living situation and the judge will decide whether or not you and your spouse are truly separated. The judge will look at all of the circumstances to make this decision, for example, whether you eat meals together, whether you cook and clean for each other, whether you share a bedroom, whether you continue to attend family functions together etc.
Q: What is a separation agreement?
A separation agreement is a legal contract between two spouses (whether you are legally married or commom-law) setting out the terms of the parties separation including the division of marital assets and debts, guardianship of children, parenting time with children, child support, spousal support and any other matters that needs to be addressed between the parties.
Q: Is a separation agreement required?
In the Province of Alberta having a separation agreement is not mandatory but is recommended, particularly when property is being divided. Financial institutions require separation agreements for changes to accounts, mortgage applications, etc. as well as Canada Revenue Agency for tax matters.
Q: Do I need a lawyer for a separation agreement?
You do not need a lawyer to prepare your separation agreement. However, if your property has been divided by a separation agreement, each spouse must attend with a lawyer to obtain independent legal advice when signing the agreement and have the lawyer execute the Certificate of Independent Legal Advice attached to the agreement.
Q: Does my separation agreement need to be filed with the court?
Your agreement does not need to be filed in any court for it to be valid.
Q: My spouse and I prepared our own separation agreement. Is it legal and binding?
If your property has been divided by a separation agreement, Alberta’s Matrimonial Property Act requires that each spouse attend with a lawyer to obtain independent legal advice when signing the agreement and have the lawyer execute the Certificate of Independent Legal Advice attached to the agreement for the agreement to be legal and binding.
Q: What happens if my spouse breaches a term of our separation agreement?
If one of the parties breaches a term in the agreement, the other party has the option of applying to the Court to enforce the term or terms of the agreement.
Q: What is a ‘Parenting After Separation’ course?
Parents with children under the age of 16 years are required to attend the Parenting After Separation Course unless the parties live more than 150 kilometers from a city or town offering the Parenting After Separation Course. If the parties have agreed on all parenting matters and entered into a Separation Agreement, the Separation Agreement can be filed with the court so attendance at the Parenting After Separation Course is not required. Learn more here
FAQ – MediationQ: When should you consider mediation?
- If you are unable to resolve your differences and come to an agreement on your own.
- If you even think of going to court, try mediation first.
- If you cannot afford the extreme costs of litigation.
- If the conflict is between people with an ongoing relationship that is important to preserve and rebuild.
- If you like to speak for yourself, and to make your own decisions.
- If privacy and confidentiality are important to the parties.
- If any one of the above applies to you, you owe it to yourself to try mediation.
Q: What Are The Benefits of Mediation?
- The cost of mediation is usually considerably lower than going to court.
- You participate directly in the resolution of your dispute and have control over the outcome rather than a deal made on your behalf between lawyers or a decision imposed on you by a judge which you may not like.
- Mediation is usually much faster for resolving conflict than court and you can do it without a lawyer.
- Because mediation is not adversarial it means you will likely have a better future relationship with the other party.
- Mediation is private and confidential while court proceedings are public and a public record of the proceedings is kept.
- You can be more creative in crafting a resolution to your dispute. Agreements can be reached between the parties structured to their personal situation and needs outside of what would normally be suggested in a court of law.
- The mediation is conducted in a private, informal, safe and comfortable professional environment that is not intimidating like a court room. You can be yourself and retain your confidence while speaking about the issues that are important to you.
- You determine the length of time the process takes.
- The mediation does not end until the parties are ready to end it.
- You can terminate the process at any time.
- A mediator tries to ensure that the participants reach agreement freely, voluntarily, without undue influence, and on the basis of informed consent.
Q: What is the Mediation Process?
- The parties prepare for mediation in much the same way as they would prepare for negotiations. The parties bring position statements, valuation reports, financial documents or other assessments with them into the mediation to use as a reference and to confirm values.
- Rules of behaviour and etiquette are explained by the mediator at the commencement of the mediation to ensure that a respectful and constructive mediation occurs.
- A mediation session typically lasts two to four hours with breaks throughout the session.
- During the mediation each side has an opportunity to present their point of view and tell their side to the other party.
- The mediator does not take sides and has no decision-making authority.
- Each party is asked to really listen to the other party and understand what the other person is trying to say, even if they do not agree with what is being said.
- Once each party has been heard, they are asked to think of solutions and try to come up with a mutually agreeable resolution. The mediator can be helpful by providing suggestions to the parties of ways they may consider to solve their dispute.
- The mediation may be completed in just one meeting or it may require several meetings in order for the parties to resolve all of their issues. The time line entirely dependents upon how long it takes for the parties to reach agreement. If good progress is being made, the parties generally want to continue with additional meetings until they reach agreement with all issues.
- An interim agreement will be prepared by the mediator at the end of each mediation session summarizing what was accomplished during the mediation session. The interim agreement will be reviewed at the beginning of the next session for any changes, errors or omissions. It also reminds the parties of the progress that has been made so the mediation can move to the next step.
- There may be homework to be done by the parties. The parties may be asked to gather financial information and other documents between mediation sessions. It may also be necessary for the parties to consult with an accountant, actuary or lawyer for advice.
- Following the completion of the mediation, a separation agreement and/or divorce documents will be drawn up based on the agreement reached during the mediation to complete the divorce process.
- A mediator has no enforcement powers and does not participate in overseeing the performance of any agreement.
FAQ – Custody
Q: What is the difference between custody and parenting?
In the past, we have used the terms “custody” and “access” to set out how separated parents will make decisions about their children and share time with their children. These terms are still in The Divorce Act, so are seen in documents relating to a couple’s divorce. However, in Alberta, The Family Law Act uses the term “parenting” to set out how decisions are made and time is shared. When two guardians do not live together, they will enter into a Parenting Agreement or Order
In a divorce case, if the children live primarily with one parent, the agreement or order will usually spell out the time that the children will be with the other parent and call that time “access”.
In other cases, if two guardians are dividing up the time with the child, that will be spelled out in the parenting agreement or order. The agreement or order will often say that one guardian will have parenting time on specific days and the other guardian will have parenting time the rest of the time.
If a person who is not a guardian applies to the court for an order allowing them to spend time with the child, that is called “contact”. A Contact Order gives the person only the right to spend time with the child, not to make any decisions about the child
Q: What does guardianship mean?
Guardianship means all of the powers and responsibilities relating to the raising of a child. If the guardians can’t agree on how these powers and responsibilities will be shared between them, or how the time with the children will be shared, they can apply to the court for a Parenting Order or a Custody and Access Order
Q: What is the difference between sole custody, joint custody, shared custody and split custody?
A parent with sole custody makes all of the major decisions about the child, and the child will live primarily with that parent. They may consult with the other parent, but they make the final decision. The other parent usually has access, and can make day to day decisions during the access time.
When two parents have joint custody, they make all major decisions about the children together. Joint custody does not mean that the child spends equal time with each parent, although that sometimes happens. Other times, the child will live primarily with one parent and the other parent will have access.
Shared custody is when the child lives, more or less, half time with each parent. The Federal Child Support Guidelines defines shared custody as the child living more than 40% of the time with each parent. In almost all cases, parents with shared custody will also have joint custody.
Split custody is when there are two or more children, and some of the children live primarily with one parent and the rest live primarily with the other parent. In most cases, parents with split custody will also have joint custody.
FAQ – Spousal Support
Q: How is spousal support paid?
There are two ways for spousal support to be paid, compensatory and non-compensatory. Compensatory spousal support is based on the needs of the recipient and ability of the payer to pay spousal support. Non-compensatory spousal support is paid to bring a spouse to a similar lifestyle after marriage to what they had during marriage.
Q: How is the amount of spousal support determined?
There are Spousal Support Advisory Guidelines (“SSAG”)which sets out a low, mid and high range for spousal support, based on the parties incomes taking into consideration whether child support is also being paid.
Q: How long can I receive spousal support?
The range for spousal support differs between provinces. In Alberta, the rule of thumb is 1/2 year of spousal support for every year of marriage.
Q: Are there different ways for spousal support to be paid?
Yes, there are two ways for spousal support to be paid. Periodic payments i.e. monthly payments or lump sum payments. Periodic spousal support is taxable to the recipient and a deduction for the payer while lump sum payments have no tax consequences.
FAQ – Financial Aspects of Separation and Divorce
Q: Does a CFDS need to be involved in the beginning or can they become involved later in the process?
If you are considering separation or in the legal separation process an CFDS can be engaged at any time.
In the beginning, we can help collect all the financial data required; in the middle, we are just in time to analyze the facts and prepare projections; and, close to the end, to evaluate the proposed division of assets
FAQ – Child Support
Q: What are Federal Child Support Guidelines?
The Federal Child Support Guidelines are tables of the base amount of child support to be paid based on an individual’s gross annual income, legislated by the Federal Government of Canada. The calculation and amount of child support to be paid can vary, depending on your parenting arrangement.
For information on child support see http://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/toc-tdm.html. For the Child Support Table Look-up see http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp.
Q: Do I have to pay child support or accept child support?
Yes. Child support is for your child. It is your child’s right to receive child support. By law both parents are required to financially support their children.
Q: Is the amount of child support the same when parents have a shared custody arrangement as when one parent has primary care?
No. When parents have a shared custody/parenting arrangement, the amount of child support to be paid is the difference between the amount of child support amount set out in the Federal Child Support Guidelines for each parent’s income.
Q: How are fees for extra-curricular activities, school fees, childcare expenses and other expenses to be paid?
Federal Child Support Guidelines requires that those fees are paid in proportion to the parents’ incomes. For more information on Special and Extra-ordinary expenses visit http://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/step7-etap7.html
FAQ – Divorce
Q: What is an “Uncontested Divorce”?
An uncontested divorce is when both spouses agree on all of the issues in the divorce i.e. parenting matters, division of matrimonial property assets, child support, spousal support. If one of the spouses disagrees and are you not able to come to an agreement on any matter the divorce becomes contested.
Q: What are grounds for divorce?
Section 8(1) of the Divorce Act (Canada) states that upon application by a spouse or both spouses a court of competent jurisdiction may grant a divorce on the ground there has been a breakdown of the marriage:
A breakdown of the marriage can be established in one of three ways:
- You and your spouse have lived separate and apart for at least one year with the idea the marriage is over;
- Your spouse has committed adultery and you have not forgiven your spouse;
- Your spouse has treated you with physical or mental cruelty, making it intolerable to continue to live together.
Over 80 percent of divorces in Canada are on the grounds of one-year separations.
Q: Are there other Requirements to obtain a divorce in Alberta?
You must have lived in Alberta for at least one year before commencing an action for divorce.
If you and your spouse have children the judge must be satisfied that you have made reasonable arrangements for their care and financial support. If the judge is not satisfied that reasonable arrangements have been made the judge may not grant your divorce.
Q: Can spouses be separated but still live within the same home?
Sometimes spouses cannot afford to live on their own or choose to live in the same house for the sake of the children. If the spouses maintain separate bedrooms and no longer live together as husband and wife, they can be considered separated.
Q: How do we divide our property?
If you have property together, your property must have been divided either by agreement or by applying to the courts for a division of property.
Q: What financial information should be exchanged when separating and/or going through a divorce?
The Alberta Court of Queen’s Bench Notice to Disclose/Application sets out the documentation that must be provided and exchanged between the parties to constitute full financial disclosure. Lawyers require that parties do provide and exchange all documentation and information. You may not want to be as in-depth with the exchange of financial disclosure, however, parties should obtain enough financial disclosure to ensure they are informed prior to making decisions and entering into agreements regarding division of assets and debts, child support and spousal support.
Q: Do arrangements have to be made for minor children to get a divorce?
If you and your spouse have children the judge must be satisfied that you have made reasonable arrangements to take care of and support the children financially after the divorce takes place. If the judge is not satisfied that reasonable arrangements have been made the judge may not grant your divorce.
Q: Can I apply for spousal support?
If you were married or lived in an adult interdependent relationship with another person, you each have an obligation to support each other. However, no one is automatically entitled to spousal support, so you should talk to a lawyer to see if you would be entitled, and if so, how much your spouse/partner may be ordered to pay. For more information on spousal support click here.
Q: How does my spouse receive the divorce documents?
You must know the location of your spouse in order for a third party to personally serve the Statement of Claim for Divorce on your spouse.
Q: What do I do if I don`t know where my spouse lives?
If you do not know the location of your spouse, an Order for Substitutional Service must be granted by a court in order to serve the document via an alternate method i.e. email, facebook, newspaper publication or left with another adult person.
Q: What do I do if there has been past domestic violence and I am afraid of serving my spouse?
If there has been past violence from your spouse, you may be able to convince the Court that service should be dispensed with. You will need to appear before a judge to provide details supported by documentary evidence to apply for an Order Dispensing with Service.
Q: Is there anything else I need to apply for a divorce?
You must either have your original Certificate of Marriage (issued by Vital Statistics if you were married in Canada) or the original certificate of marriage from the ceremony (if you were married outside of Canada). You will also need a picture of your spouse.
Parents with children under the age of 16 years are required to attend the Parenting After Separation Course unless the parties live more than 150 kilometers from a city or town offering the Parenting After Separation Course.
Note: You can obtain a Certificate of Marriage from Vital Statistics through a registry or we can obtain a Certificate of Marriage from the registry for you at no charge other than the registry and government fees.
Q: Are there exemptions from taking the Parenting after Separation Course?
If the parties have agreed on all parenting matters and entered into a Separation Agreement, the Separation Agreement can be filed with the court so attendance at the Parenting After Separation Course is not required.
Q: How long does the divorce process take?
The length of time for an uncontested divorce varies depending on the time of year and volume in the courthouse. Generally, it will take anywhere from 3 – 6 months for your divorce to be finalized. At WIN/WIN Divorce Resolution we process your divorce documents as soon as we get the information. We understand how much it means for you to be able to get on with your life.
Mediation providing options and assisting you with resolving matters to reach an agreement when dividing property, dealing with parenting matters, child support and spousal support Learn more here.
Chartered Financial Divorce Specialist (CFDS) helps you avoid making costly financial mistakes. Make educated decisions that affect your future and your children's future. Learn more here
Separation Agreements & Uncontested Divorce We work closely with you to prepare your comprehensive separation agreement and/or uncontested divorce documents Learn more here