Altalaw offers a significant and experienced family law team, specializing in divorce, common law separation, matrimonial property division, custody, child and spousal support, and adoption.
The Divorce Act specifies the grounds for divorce and defines the basis for custody, access and support orders. The Alberta Court of Queen’s Bench can deal with a divorce if either spouse has been resident in Alberta for at least one year prior to commencing proceedings. The court can grant a divorce is there’s been a “marriage breakdown”, established if:
- The spouses have lived separate and apart for one year prior to divorce being granted and live separate and apart at commencement of proceedings; or
- The spouse against whom the proceeding is brought has (since the celebration of the marriage), committed adultery or treated the other spouse with physical or mental cruelty.
Dealt with under the Matrimonial Property Act, divorcing spouses’ matrimonial property is divisible on marriage breakdown. This includes non-exempt property accumulated during the marriage, and some property that the court deems a spouse “brought into” the marriage. A spouse has two years from the granting of divorce to make an application for division. If a spouse is suspected of selling or giving away property, this action must begin within one year of the property being sold or given away.
Division of matrimonial property is a complex area of law, which requires that a spouse obtain independent legal advice from a lawyer.
Custody & Access
The court may, on application by either spouse (or other person with leave of the court), make an order for custody or access of the children of the marriage. The court considers the best interests of the child in this decision, and does not consider past conduct of the parent unless such conduct is relevant to parenting ability. The court also gives effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child.
Any order granted by the court may be varied, rescinded or suspended if the court is satisfied that there has been a change in the condition, means, needs or other circumstances of a spouse or child of the marriage.
That court recognizes that each spouse has a financial responsibility to their children. The Child Support Guidelines govern the amount of child support payable, and this is based solely on the gross income of the payor and the number of children of the marriage.
Child support is recognized as a right belonging to the child, and therefore the Guideline amount is only deviated from where the court deems adjustment is reasonable and necessary in light of the needs of the child or the means of the parents.