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.
I was served a Court Order saying that my children’s mother has sole custody so that means I can never see my children again.
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.
I can choose and name anyone I want in my will to raise my kids if I die. In particular, there is no way that they should live with their father.
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.
My divorce is not yet finalized, but I have promised my new fiancée that we can be married in two weeks as that is a special date in the calendar for her. If I call you on Monday, you can get me divorced in time for my next wedding, right?
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.
My adopted child is treated the same as my biological child on divorce, right?
TRUE: Once you have adopted a child you have assumed the legal responsibility of that child.
Marijuana is legalized so I can smoke it all the time during my parenting time.
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.
I signed an Agreement I printed off the internet so my spouse is no longer able to claim my pension, right?
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.
Am I automatically divorced when my husband goes to jail?
BUSTED: No, you are not. If you wish to have a divorce, you must have a Divorce Judgment granted which is a very specialized process. If you think you want to take that step, consult a family law lawyer.
The father of my child is a university student, but his parents are multi-millionaires. I am going to get a big child support payout based on his parents’ fortune.
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.
My spousal support obligation could be reduced if I have a very high child support payment.
TRUE: Child support always takes precedence over spousal support and where there is insufficient income to pay both, child support will have to be satisfied first.
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.
My child needs an extraordinary medical procedure that costs $20,000.00. I cannot really afford it, but I will have to pay 50% or $10,000.00 towards this operation.
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.
I receive monthly spousal support from my ex-spouse. I have to pay income tax on my spousal support received.
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.
My husband and I purchased a $50,000.00 trailer prior to separation so now I should receive $25,000.00 because he is keeping the trailer, right?
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.
I pay $1,500.00 per month in child support. I am entitled to see receipts for the diapers and formula that are purchased with my child support, right?
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.
If I have “50/50 parenting” I do not have to pay child support.
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.
I am separating, and we are dividing our property so the date of division of property is the date of our separation.
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.
I have several children with several women. Therefore, I should have a group discount on my child support.
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.
My friend told me I cannot get a Child Support Order for my daughter who is 24 and just got married.
TRUE: Once a child is no longer entitled to receive child support under the Divorce Act (Canada) or the Family Law Act, then parents and children are no longer able to seek contribution from a parent. This applies both to ongoing and retroactive child support, even if there was a period of time for which the child would have been entitled to receive that support.
My six-year-old daughter loves horses so much she is going to be a champion equestrienne one day, so I can insist that equestrian expenses are a special expense and my daughter’s father will have to pay for it.
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.
It is a good idea to call my lawyer because my Skype parenting time was late on a special day.
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.
I signed a Prenuptial Agreement before my marriage, but now that I have been married for 14 years it does not count anymore.
BUSTED: Unless there is a specific provision in your Prenuptial Agreement for an expiry date, you will most likely be bound by its terms.
I am sick of paying all this child and spousal support. I will just go bankrupt like my neighbor Joe and get out of my debt.
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.
It is my fault that I do not understand my lawyer’s advice. I must not have paid enough attention in our meeting or I must be stupid.
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.
If I am separating I can mortgage up to 95% of the value of the matrimonial home in order to keep it on separation.
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.
I do not have to pay child support because my ex’s parents are very wealthy and provide everything that my child needs.
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.
I have a claim for undue hardship, meaning I do not have to pay child support because of my high expenses. My biggest expense is my $800.00 per month truck payment.
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.
My T4 says my salary is $100,000.00 per year but I only receive $60,000.00 per year because CRA garnishees my wages for past tax debt. I only pay child support on an income of $60,000.00.
BUSTED: Your child support will be based on line 150 income which in this example is $100,000.00 per year.
My spouse and I signed a Pre-nuptial Agreement that we got from the internet where we agreed that I will never have to pay child support. Now that we have children and I am contemplating leaving the marriage, I know that I will not have to pay child support.
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.
My wife’s lawyer drafted our Separation Agreement so my independent legal advice should only cost $500.00.
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.
My lawyer cannot effectively represent me and argue my position if they are very friendly with my ex-spouse’s lawyer. I even saw the two lawyers going for coffee together after our case!
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.
I was a stay-at-home mother for 40 years and did not work outside of the home, but I will receive half of my husband’s CPP credits.
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.
My husband cheated on me, so I get all of the money.
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.
My boyfriend and I have lived together for six months so that means I get half the equity in his house.
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.
If my wife transitions from a woman into a man, does that mean I am automatically divorced?
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.
About Smith & Little LLP
Christine N. (Little) Shepherd
Whether you are a client seeking assistance with a separation, a business owner having a contractual dispute or someone experiencing difficulty in administering an estate, I want to work with you to solve your matter in a way that is cost-efficient and effective.