Child Custody & Visitation
WHAT IS CHILD CUSTODY AND HOW IS IT DIFFERENT FROM PARENTING?
Child Custody under the Divorce Act looks at the question of who makes or is involved in the major life decisions for the child. Generally speaking the Courts in Alberta start with the idea that joint custody is in the best interests of the child but this can be challenged based on the subjective facts in each case.
The issue of parenting looks at the amounts of time each party is spending with the child. A parent who has the day to day care of the child is called the “primary parent”. A division of parenting wherein each parent spends 40%-60% of the time with the child is called “shared parenting”.
When it comes to parenting issues the parties can decide what they feel is best for their child. If there are multiple children there are multiple personalities to consider but as with custody the important answer is to determine what is in the children’s best interest.
WHEN DOES A CHILD GET TO DETERMINE WHICH PARENT THEY WANT TO LIVE WITH?
While there is no specific age where a child is “old enough” to decide for themselves, the Court will listen to their voices if they feel the child is mature enough. Even if the child is listened to it is important to remember that while the child may have a voice they will not necessarily get to make a choice, as the Court will determine what is in the child’s best interests should the issue come before it.
DO I HAVE TO PAY CHILD SUPPORT IF I’M NOT GETTING TO SEE MY CHILD?
Yes! Child support and parenting issues are different. If you are not paying support you may be liable retroactively. If you are not being allowed parenting time with your child the Court may be able to help.
HOW IS CHILD SUPPORT DETERMINED?
Generally speaking child support is determined by the Federal Child Support Guidelines which considers, among other things, who has care of the child, the parties’ incomes, what sorts of costs are incurred for the care of the children.
CAN I GET DIVORCED?
If you have been a resident of Alberta for at least a year before you begin your divorce, you are able to start your Divorce paperwork. If you have not been resident in Alberta for at least a year, you may need to file where you lived previously.
If you have been resident for at least a year then the grounds for divorce are:
- Separation for one year;
- Physical or mental cruelty.
(for a claim based on Adultery or Cruelty, the person committing the adultery or cruelty cannot begin the divorce)
Claims for divorce based on Adultery or Cruelty require proof that the act(s) occurred. In Alberta, there is a form of affidavit where someone can admit adultery.
While you can file your claim at any time, you cannot request a divorce judgment until one year has passed (if the grounds for the claim is separation for one year).
HOW LONG DOES IT TAKE TO BE DIVORCED?
Each instance turns on its particular facts in determining how long the process takes. In some cases, divorce can be completed in a one year (possibly less if there is proof of adultery or cruelty), however in cases where the parties choose to dispute many issues the action may last for years. It is not uncommon for a divorce action to last for two to four years although this varies greatly depending on the needs and personalities of the parties.
HOW IS MATRIMONIAL PROPERTY DIVIDED?
Generally speaking, property acquired during the marriage is divided equally between spouses. While this is the presumption, property division can be agreed upon or changed based on the facts of the case. There are also rules surrounding exempt property and how property is to be divided in certain circumstances.
While there are many rules and suggestions surrounding the division of property, parties can agree to depart from the rules and divide property however they see fit. To agree to a matrimonial property division the parties must enter into an agreement (generally called a Minutes of Settlement or Separation Agreement) with independent legal advice.
CAN I CLAIM SPOUSAL/PARTNER SUPPORT?
Generally speaking, there are three types of support: Compensatory, non-compensatory and contractual. The determination of whether someone is entitled to support and if so, how much/for how long is very fact specific. Each case turns on its specific facts and while there are guidelines the parties can follow there are no legislated rules.
In order to get a reasonable determination of what you can expect in a spousal support action, it is best to ask a lawyer.
Collaborative Family Law
Questions coming soon.