Alberta Family Law:
FACT or FICTION?
This is a fun page where we get to “bust” (and sometimes confirm!) some of the myths about family law that we hear when we tell people at parties that we are family lawyers.
All family law scenarios are fact specific and unique. The answers given on this page are not intended to be specific legal advice for any particular client and instead provide brief general information on the topics covered.
We encourage anyone with a family law problem to speak to a family law lawyer about their particular situation and to get detailed and specific advice and assistance.
BUSTED: It may be surprising to learn but as lawyers, our first obligation is to the Court as officers of the Court. Some lawyers certainly practice law in a more aggressive fashion than we do at Smith & Little LLP but it is our firm belief that our approach is more effective. Unfortunately, it is the case that all court appearances and court applications are inherently risky and sometimes a Judge will not see your case in a way that favours your position. Once the judge has determined how they will decide a particular application, there is no benefit to being argumentative and showing disrespect to the Court.
BUSTED: Lawyers are subject to strict confidentiality rules. In addition to the lawyers, all staff working at the law office must maintain the confidentiality of all clients and potential clients. Lawyers will not disclose that you have had a consultation or even called in to the office seeking information and no one will find out unless you tell your friends and family that you have consulted with a lawyer.
BUSTED: Lawyers play an important role in protecting your interests and making sure that you understand the process of separation and divorce. If you feel that you do not have a good understanding of what is happening in your separation or divorce, it is very important that you consult with and retain a lawyer to assist you in representing your interests and also to explain the process to you.
BUSTED: If you father a child you will need to pay child support as child support is the right of the child, regardless of the child’s location or circumstances of conception.
BUSTED: Child support must be paid on the basis of your income regardless of the source of your income.
BUSTED: Inherited property is generally exempt from the matrimonial property regime and is not subject to division. However, it is important to remember that the increase in value on the asset over the course of the marriage is generally shareable. This means that if your Picasso increased in value over the course of the marriage you will likely have to pay out your husband a share of that increase in value. If you have a large inheritance or think you might be receiving a large inheritance during your marriage, it is important to consider a Pre-nuptial Agreement to avoid this usual presumption and you should speak to a family law lawyer.
BUSTED: Regardless of whether or not your assets are held in sole or joint names if you are married they are shareable.
BUSTED: A lawyer can act only on your instructions. A lawyer is there to provide you with guidance and advice and discuss all of your options with you. Ultimately you must make the decisions as to how to proceed.
BUSTED: At Smith & Little LLP we do not bill by the hour. This is largely driven by our belief that hourly rates are outdated and inefficient and an unfair way to provide legal services. Even when comparing lawyers that do bill by the hour, a straight line comparison of their hourly rates is not a good method to compare the overall cost of services. As a potential client, you have no way of knowing how efficient any lawyer might be and as a consequence will have a very difficult time converting their hourly rate to actual legal fees for specific tasks.
BUSTED: A retainer is an amount of money that a lawyer asks you to pay up front to be held in the lawyer’s trust account and credited against your future bills. Some lawyers try to request a retainer that is closely related to the work they expect to perform on your file in the upcoming 4-8 weeks. This is not a universal practice that is followed by all lawyers and the amount of money a lawyer asks for upfront is just as likely to have no relationship at all to what your legal bill may be. At Smith & Little LLP we work very hard to be upfront with all clients about the anticipated price range of our services once we gain an understanding of their matter.
BUSTED: Your lawyer will represent you most effectively if you have open and honest dialogue and communication. It is okay to tell your lawyer that you do not know the answer to a question or are unsure about something. In fact, if you do not understand the question your lawyer is asking you, that is a failing on the lawyer’s part as they have not explained the issue in the best way possible to you. If your lawyer’s office is calling you multiple times it is best for you to take that call so that any misunderstanding can be cleared up and your file can move forward. Most often, the lawyer cannot move forward on your matter as they are awaiting your instructions to take the next step.
BUSTED: The enforceability of any specific Agreement is a legal question based on a number of factors including the circumstances of the signing of the contract, as well as whether it was signed with full financial disclosure and legal advice. The specific provisions of your Agreement would have to be examined, but generally speaking, a properly negotiated and executed Prenuptial Agreement will be enforced by the courts in Alberta. If you find yourself in this situation, you should consult a family law lawyer.
BUSTED: It is usually the case that parents are entitled to make decisions about who their children will see and associate with. Generally speaking, if the parents of children do not want the grandparents to be involved, the Court will respect that decision. There can be some circumstances where grandparents can obtain a Contact Order through the Courts and these are complex case-by-case situations. You should consult with a family law lawyer if you think this applies to you.
BUSTED: If it is the case that you did not seek child support for no reason other than you simply did not want to take that step, then you may be limited to retroactive support for three years. If, however, you were unable to seek payment of child support owing to your own financial circumstances or because the would-be payor of support was engaged in what lawyers call, “blameworthy conduct”, then you may be able to seek support retroactively for more than three years. Some examples of blameworthy conduct include nondisclosure of significant increases to the payor’s income, or if the payor has engaged in intimidation toward you such that you felt your safety may be in jeopardy if you pursued child support. These are difficult questions to determine based on individual circumstances. Of course, it is our view that you should discuss these matters with your family law lawyer if you think that your children are entitled to receive retroactive child support. It is important to be aware that child support remains the right of the child and it is not for a parent to forego that right on behalf of their children.
BUSTED: You must pay child support on your total income regardless of what you may report to the CRA. The Court will even Order child support based on the profits earned on illegal activities, such as drug dealing.
TRUE: Many lawyers charge fees for items other than the provision of legal services such as photocopies and using the fax machine. Some law firms charge for postage when sending mail. At Smith & Little LLP we do not bill for these charges. This billing model is one of our core values.
BUSTED: Achieving a successful outcome for the client is rarely related to how rude one is. Being successful involves knowing the law and knowing how to apply the law to the client’s particular situation. In addition, it never hurts to be polite and well-respected within the Courthouse. It is most often the case that the best outcomes come through negotiation, and effective negotiation starts with having opposing lawyers and clients willing and happy to sit down and discuss matters with you in a small room.
BUSTED: Child support is generally adjusted annually based on the payor’s most recent income information. Most Child Support Orders contain a clause that allows either party to apply for the Alberta Child Support Recalculation Program, which is a government program that will automatically review the parties’ financial information and calculates the new child support amount owing. More information about the program can be found at this link.
BUSTED: If you father a child, you will have to pay child support regardless of your intentions.
BUSTED: Spousal support may be payable in any marriage, no matter how long or short. The length of the marriage is only one of the factors that will be considered when determining entitlement to spousal support and amount payable.
BUSTED: Custody is the legal concept that refers to who is in charge of making major decisions for children including where they go to school and what type of religious upbringing they will have. Regardless of whether or not a parent is in charge of making those decisions, the issue of “visitation” or “parenting time” is governed by the best interests of the children. It may be the case that for convenience or other reasons one parent has agreed that the other may make major decisions, but that certainly does not mean that parent automatically foregoes the opportunity to spend quality time with their children.
BUSTED: Children generally have two guardians, being their biological parents. In the usual course, children would live with their other guardian in the case where the primary residential parent has passed away.
BUSTED: Obtaining a Divorce Judgment is a complex and specialized legal process. In the usual course, a Divorce Judgment takes 2-4 months, even where all issues have been previously negotiated and settled.
TRUE: Once you have adopted a child you have assumed the legal responsibility of that child.
BUSTED: In our experience the Courts view any sort of substance that impairs a parent’s judgment in the same way. As it would be problematic for you to be parenting if you are intoxicated from alcohol, the same issue arises if you are unable to make good parenting decisions owing to intoxication from marijuana.
BUSTED: While sometimes documents that are signed informally without the benefit of disclosure and independent legal advice lead to some recognition that you and your spouse did intend to reach some sort of agreement, if you did not have the benefit of exchanging complete financial disclosure and speaking with a lawyer about what that agreement means for you, it is unlikely to be binding on you. This means that there may still be claims to the assets you hold in your name, for example, a pension.
BUSTED: Child support is payable based on the income of the payor. However, it is important to keep in mind that as your child grows, his father may move on to a successful career and his child support payment may be adjusted as his income grows.
There is a minimum monthly amount of child support that must be paid by all payors of child support.
BUSTED: Child support is calculated based on the payor’s income and the applicable table. If you earn less than the minimum threshold income, there may be no child support payable.
BUSTED: Your Child Support Order will set out how special or extraordinary expenses are to be shared. The general rule is that they are shared proportional to the parents’ incomes. You must also consider whether or not the special medical procedure is truly necessary for the child and reasonable within the family budget. Generally speaking, a medical procedure will be determined to be a necessary expense for a child and will have to be paid for by the parents.
TRUE: Monthly interim periodic spousal support is taxable in the hands of the recipient and a tax deduction in the hands of the payor. It is important to consider the tax implications of any spousal support arrangement with your family law lawyer and income tax professional.
BUSTED: Personal property like trailers are assets that immediately depreciate in value as soon as you have purchased them, particularly if you have purchased them as new. You are each responsible for that depreciation and it is the current fair market value of the asset that will be divided. For example, if your trailer is now worth $40,000.00 at the time of negotiations, you would usually be entitled to $20,000.00 if your husband retains the trailer.
BUSTED: No. Your child support is based on the Federal Child Support Guidelines tables which are created by the government and calculated based on the average expense of raising a child in your province. It is assumed that the recipient of child support uses those funds to provide for the child.
BUSTED: Child support in shared parenting scenarios is a complex assessment based on a number of factors, including recognition of the increased costs of shared parenting arrangements. Some parents in these parenting arrangements may have a reduction in child support, but it is not guaranteed and there is no set formula. Even though many families use a “set-off” approach to child support in these parenting scenarios, this is not the correct formula under the Federal Child Support Guidelines.
BUSTED: The date of division of matrimonial property in Alberta is the date of trial unless parties agree to a different date. This is particularly important where there has been a long separation over a number of years and various items of property have significantly increased or decreased in value. For that reason, it would be prudent to consult a family law lawyer upon separation without delay.
BUSTED: Child support is based on children living in a single home. If there are multiple children living in one home, then there is less child support payable than if those children reside in different households.
BUSTED: This may be a perfectly reasonable request provided the family has the means to pay for these expenses and the parents have agreed that this is something they want to provide for their daughter. However, if the amount of the expense is outside a reasonable budget, and as there would likely be difficulty in showing that this six-year-old is extremely talented in his particular area, I do not expect a Court would insist that the payor parent contribute to that expense.
BUSTED: We certainly understand that such issues of timeliness, particularly on a special day, can be frustrating and upsetting for your own schedule. However, unfortunately if this is something that only happens once or twice, there is not much one can do about it. For example, on Christmas day the Courts are shut and most lawyers are not working so there is very little one can do to assist in those circumstances. If this is a persistent problem please speak to your family law lawyer.
BUSTED: Unless there is a specific provision in your Prenuptial Agreement for an expiry date, you will most likely be bound by its terms.
BUSTED: You will continue to be responsible for your child support and spousal support payments even during a bankruptcy and after your discharge from bankruptcy.
BUSTED: It is an important part of your lawyer’s job to make sure that they are explaining things to you in a way that you understand and making sure that you have fully understood any advice and your options when you face decisions. Make sure to tell your lawyer if you do not understand what is happening on your matter at any time.
TRUE: These types of special financing plans for separating parties have been put in place by some lenders in order to permit the separating spouse to retain the home and purchase the equity of the other spouse’s interest. It is important that your lawyer negotiates specific wording with respect to this purchase of interest in your Separation Agreement in order to qualify for the program. This is a very good reason to have a lawyer involved in your negotiation and completion of any Separation Agreement.
BUSTED: Children are entitled to be supported by both of their parents commensurate with their means. You must pay child support for your child, regardless of the child’s other financial circumstances.
BUSTED: While there is a concept known as undue hardship in the Federal Child Support Guidelines which may permit some payors to reduce their child support obligations, it is an extremely hard test to meet. Debt incurred for non-essentials like a luxury truck will not qualify one for undue hardship.
BUSTED: Your child support will be based on line 150 income which in this example is $100,000.00 per year.
BUSTED: It is not possible to contract out of child support payments. Child support is the right of the child and cannot be signed away by either parent. This term of a contract will not be enforced by the Courts.
BUSTED: If you are retaining a lawyer to provide independent legal advice you want to ensure the best advice possible. This means that your lawyer should be reviewing your financial information together with the contract to make sure your interests are protected and that you fully understand all of the consequences of signing the Agreement. This is a significant amount of work if it is done properly and as such lawyers should be compensated appropriately.
BUSTED: Alberta is a very small legal community and we find it is most effective for our client to be on casual and friendly terms with other lawyers. This allows for a productive negotiation and discussions on most files where negotiation is possible. As professionals, we are able to separate our personal relationships with other lawyers from arguing as strongly as possible for our client’s position if matters cannot be negotiated and must advance to a contested Courtroom setting. Even when matters are contested, having a good working relationship with the opposing lawyer can help resolve your matter more quickly as the lawyers can more quickly agree on finalizing the terms of your Court Order in writing after the Judge has made a decision.
TRUE: On separation you are entitled to half of the value of all of the assets and liabilities accrued during your marriage. The Canada Pension Plan credits can be divided in kind or traded off for a different asset.
BUSTED: The emotional anguish that can come from being cheated on is big and often there is no way to compensate for that. It is understandable that some feel they should be compensated from the joint matrimonial assets for having to go through this hurt and anguish because of the behavior of their spouse. However, it is the law in Alberta that generally speaking matrimonial property is divided on an equal basis and the conduct of either party is not relevant for the purposes of determining division of matrimonial property, and whether or not a spouse is entitled to receive spousal support and how much support is payable.
BUSTED: This is one of the most complicated areas of family law to consider. There are all kinds of considerations to be made, including whether or not any sort of monetary contribution was made by you to purchase the home. Further considerations include whether or not you may be considered a family unit and whether or not children were born of the relationship. If you think that this applies to you please consult a family law lawyer.
BUSTED: No. Divorce is a legal process that is not triggered by any sort of transgender transition steps. If you would like to consider divorce as an option, please consult a family law lawyer.
Our Team
About Smith & Little LLP
Christine and Kelly are proud to work together in a true partnership and offer the benefit of two minds to all of our clients. We are strongly of the view that two minds are better than one and if a partnership is able to capitalize on the strengths of each individual partner there will be huge advantages flowing to the client. Having spent our first years as lawyers figuring out what pieces of the job we each enjoy the best, we determined that there were certain tasks we enjoyed more than others. Luckily for us our strengths are complementary and while we are able to trade off and step in for each other when required, we like to each perform the tasks we enjoy the most as often as possible.
