Family Law

Email: A. Wahl

Adoptions, Change of Name, Support for and Access to Children born inside or outside of Marriage, Common-law relationships, Pre and Post Marriage Contracts, Social Service Intervention and Divorce are all matters covered by the heading of Family Law.

The law in these areas is constantly changing. In particular the law with respect to common-law relationships and divorce is rapidly changing.

Common-law Relationships

Common-law relationships, which to date are still defined as a man and woman living together as husband and wife, are being treated by the courts more and more like legal marriages.

A common-law husband or wife may now, in some circumstances, apply for spousal support. Additionally, common-law partners may acquire rights to assets owned by the other. This can apply to assets owned prior to the commencement of the relationship (relating to the increase in value of the assets during the relationship), as well as assets acquired while living together.

If one common-law spouse has a child from a prior relationship, the other common-law spouse may find him or herself obligated to pay child support after the end of the relationship.

Steps can be taken prior to starting a common-law relationship, which can deal with these matters. (For example, prospective common-law partners can agree that they will not have claims against the other’s property, or will not seek support for a child from a prior relationship.) You may wish to consult with a lawyer prior to co-habitating to seek advice with respect to your legal rights or obligations.

Divorce

Divorce deals with the ending of a lawful marriage and support payments for a spouse. It also includes dealing with all matters relating to “children of the marriage”, including custody, access and support. “Children of the marriage” can include children from prior relationships. The other main issue usually dealt with at the time of Divorce is the division of matrimonial assets (see below).

Child Support

Child support is governed by the new Federal Child Support Guidelines. It is no longer taxable in the recipient’s hands, nor deductible by the payor. (If you have a Court Order for support payments dated before the rules changed, the old rules will apply until you get the Court Order changed or have a written agreement in the proper form.)

Child support payable under the Guidelines is based on the payor’s gross income. In addition to the base amount, a parent may claim additional child support if s/he has extra expenses for a child which fall under one or more of five specified categories (such as extraordinary educational or health needs).

Division of Property

Matrimonial property is divided under the Matrimonial Property Act of Alberta. The starting point is an equal division of assets and liabilities acquired during the marriage, regardless of whose name the asset or liability is in. Therefore the private pension of one spouse is a shareable matrimonial asset. There are certain exceptions to this general rule, which may or may not be applicable in any given case.

Again, steps can be taken prior to marriage to protect assets including the family farm or other family owned businesses. Consultation with a lawyer prior to marriage may be of benefit in certain circumstances.

Advice

If you are involved in any of these proceedings it is imperative to know and understand your legal rights and obligations. If we can be of any assistance in any of these areas please contact us and we would be glad to provide our legal advice and knowledge.