DIVORCE & FAMILY LAW


The family law practice of RANBIR S. THIND LAW OFFICE is dedicated to using skills, experience and resources to fight for legal rights of clients when they require legal services. We can provide you with effective legal representation and advice so that you can find solutions to your problems as quickly as possible.

When disputes arise over custody of children, division of assets and spousal/child support entitlements, the law is complex and the process can be lengthy. It is always advisable to seek advice of a professional in these complex matters. We provide competent legal services in following areas of family law:

Divorce contested & uncontested
Annulment of Marriage
Division of Matrimonial/Family Property
Parenting of Children
Child Support
Paternity
Spousal Support
Common Law Matters
Guardianship
Separation & Prenuptial Agreements
Restraining Orders
​Emergency Protection Order Reviews

GENERAL INFORMATION ABOUT THE DIVORCE AND FAMILY PROPERTY LAW

The Divorce process is complex especially when the issues of support and parenting are involved. A divorce is the legal process which terminates a marriage. To apply for a divorce in Alberta, one spouse must have been resident of Alberta for a year.
  
In Canada divorce is governed by the provisions of the Divorce Act (the “Act”). The Act defines the rights and obligations of spouses in relation to custody and access to children, child support and spousal support. The division of matrimonial property is governed by the Matrimonial Law Act in Alberta.
 
In Alberta the Court of King’s Bench may make decisions on issues outlined in the Divorce Act and finalize a divorce on the ground that there has been a breakdown of the marriage which may be established only if at-least one of the following is established:
  • The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  • The spouse against whom the divorce proceeding is brought has, since celebration of the marriage has committed adultery, or
  • The spouse against whom the divorce proceeding is brought has, since celebration of the marriage treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
 
The spouse applying for a divorce begins by filing a Statement of Claim for Divorce in the Court of King’s Bench of Alberta. The filed Statement of Claim must be then be served upon the other spouse. If the party filing for divorce wishes to make any claims regarding child support, spousal support, child parenting, they should be listed in the Statement of Claim for Divorce. A party who is served with a Statement of Claim for Divorce may respond by filing a Statement of Defence and / or Counterclaim seeking child support, spousal support, child parenting etc.. There are time limits for filing these documents. The parties are not divorced until a Divorce Judgment has been granted by a Justice of the Court of King’s Bench and Appeal period has expired/waived. The Divorce Act states that the Court must ensure that appropriate arrangements are made for the payment of child support before a Divorce Judgment may be granted. A Divorce Judgment does not finalize the division of family property.

A divorce can be contested or uncontested. An uncontested Divorce is one where the parties have reached an agreement on the issues or where no issues between the parties exist and the Claim goes undefended. It is possible to finalize a Divorce without addressing all of the issues by severing the Divorce from the issues of parenting, child support and spousal support.

In Alberta the division of family property is governed by the Family Property Act (formerly "Matrimonial Property Act"). The Act outlines the rules lawyers and the Courts must follow in determining whether something is a family property, how much of it should be divided and in what way. Depending on the circumstances, certain assets or the value thereof may need to be divided equally between the spouses no matter who made the financial contribution to their acquisition or preservation. Certain assets or the value thereof may be shared unequally. Other assets or the value thereof may be excluded from the division of family property such as follows:
  • Property acquired by a spouse through gift from a third party,
  • Property acquired by a spouse by inheritance,
  • Property acquired by a spouse before the marriage,
  • an award or settlement for damages in tort (e.g.: motor vehicle injury)  in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses, or
  • Proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses. 

GENERAL INFORMATION ABOUT THE PARENTING

In any parenting matter, the courts focus on the most important thing, which is the best interest of the children. One or both of the spouses may ask the courts to make an order concerning the parenting of the children.

In the more amicable separations, both parents may agree on joint parenting; however, it is still important for the couple to employ the services of a lawyer to draft a legally binding separation agreement (Minutes of Settlement) detailing the terms of separation and child parenting. In some situations, parents may battle for sole parenting due to some of the following reasons:
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  • When one parent is leaving the city or country permanently
  • Where one parent is unable to parent or parent properly
  • Where one parent has always neglected the child

GENERAL INFORMATION ABOUT THE CHILD SUPPORT

The payor is the parent who is required to pay child support for the children in the other parent’s care. The recipient is the parent who will receive child support. Under the Guidelines there are tables for each province and territory that are used to calculate the base or “table” amount of child support that the payor is required to pay, based on province of residence, number of children and guideline income of the payor. The support amounts are intended to cover not only the direct costs for the children, but also the indirect costs, such as housing and transportation. Paying child support takes priority over paying any other expenses. There may be special expenses that are shared between the parents and added to the table amount of support.

Child Support in Split Parenting

Split parenting or split custody is where one or more children live with each parent. An example of split parenting would be if there are two children and one child lives with the mother and the other child lives with the father. In split parenting, you must first determine what each parent would pay the other parent for the number of children in the other's care using the basic method described above. The difference between these amounts, or the "set-off" amount, is what the parent who is required to pay the higher amount would have to pay the other parent.

Child Support in Shared Parenting

Shared parenting or shared custody is where each parent has care of the child for at least 40% of the time over the course of the year. “Shared parenting” should not be confused with the term "joint custody" which may refer to different parenting arrangements. When calculating the child support when there is shared parenting, each shared child is counted as a child in each parent’s household. You would first determine what each parent would pay the other parent for the number of children in the other’s care. The difference between these amounts, or the set-off amount, is the starting point for child support. The parent who is required to pay the higher amount would pay the other parent the setoff amount.

When Does Child Support End?

The Federal Child Support Guidelines apply to children as defined by the Divorce Act, or as defined by the statute under which the support order is made. The Divorce Act defines a “child of the marriage” as a child of the parents who is: ° under the age of majority and who has not withdrawn from their charge, or ° a person at or over the age of majority and under their charge, but unable, by reason of illness, disability, or other cause to withdraw from their charge or to obtain the necessaries of life. The age of majority in Alberta is 18. If the child lives outside Alberta, you must use the age of majority for the province where the child is living. If the support is not being paid under the Divorce Act, different rules apply for when the support should end. Depending on the circumstances, a child at or over age 18 may or may not be eligible for child support.

Undue Hardship

There are times when either the payor or the recipient can ask the judge to adjust the amount of child support. The payor may say to the judge: “I agree that this is the amount that I am required to pay under the Guidelines, but I can't pay this amount because my financial circumstances have caused me undue hardship.” Or the recipient may say to the judge: “I agree that this is the amount that the Guidelines say I should receive for the support of my children, but this is not enough and I need more than this to support my children because I am suffering an undue hardship.” One of the objectives of the Guidelines is to make sure that child support awards are consistent throughout the country. However, there may be cases where the Guidelines do not provide the fairest way of calculating child support. The undue hardship section of the Guidelines allows the judge to award an amount either above or below the usual Guideline amount.

Special Expenses

In addition to the table amount, there are some expenses, often called “special”, “add-on” or “section 7” expenses, which are not included in the table amount. Either parent may have special expenses. These expenses are generally shared between the parents proportionately to their income. For instance, if both parents make the same amount of money, the cost of the special expense is split evenly between the parents. If you and the other parent cannot agree on what should be included as a special expense and/or how those expenses should be shared between you, you can ask a judge to decide. If you are asking the judge to determine what the special expenses are in your case, the judge will look at several factors, including: ° Is the expense necessary and in the child’s best interest? ° Is the expense reasonable? ° Can the parents afford this expense? ° Did the family have these types of expenses before they separated? The wording of section 7 is open to interpretation and the judges have a fair amount of discretion as to whether or not to add on an expense.

Some expenses, such as day care or before and after school care, medical and dental premiums or health related expenses are pretty straight forward. However, expenses either for primary or secondary school and for extracurricular activities must be “extraordinary”. To decide if an expense is extraordinary, the judge will apply two tests: ° The first test looks at whether the person who pays the expense can afford it, given their income and the amount of the child support (if any) that they receive. If it will be difficult to afford the expense, then the expense is extraordinary. ° If the first test is not met, then the judge would go to the second test. This test looks at factors such as whether or not the child has a special need or talent, the number of programs the child is in and the overall cost of the programs. After looking at these factors, the judge may decide the expense is extraordinary. Some expenses, such as daycare, medical expenses and postsecondary tuition expenses are tax deductible to the parent with custody. That parent may also be eligible for subsidies, and medical or dental expenses may be partially covered by an insurance plan. In these cases, it is the net cost of the expense, after tax deductions and subsidies, that is considered the special expense.

Due to the complexity of the Canadian divorce law, family property law and child parenting and child/partner support laws, each party should seek the services of a competent and experienced lawyer. If you or any of your loved one is/are in a divorce, property, parenting or support dispute, please contact our experienced team by clicking one of the option noted below.