Corcoran Law & Mediation Centre are Experienced Divorce Lawyers in Calgary

Divorce

Divorce is a dissolution of a marriage obtained through the court via a Divorce Judgment.

The process may be overwhelming, but we can explain the law to you in a way in which you understand.

Corcoran Law can help ease your transition during this difficult time by guiding you step-by-step from our initial consultation, to obtaining your Divorce Judgment and Certificate of Divorce. Under the Divorce Act, we have a duty to discuss the possibility of reconciliation – any chance of the continuation of the marriage. Where reconciliation is possible, we encourage you to explore the resources available; however, in circumstances of family violence it is important to prioritize the safety of yourself and any children over all else. We underscore, reconciliation in cases of family violence is not advisable.

If you have been served with a divorce, or are seeking a divorce in Alberta, there is a requirement that either spouse be a resident of Alberta for one (1) year. If you have met this rule, courts can grant a Divorce Judgment on the ground that there has been a breakdown of marriage, which is established only if:

You and your partner have lived separate and apart for 1 year*;
Your partner has committed adultery – intercourse outside of the marriage; or
Your partner has treated you with physical or mentally cruelty, making it intolerable for you to continue living together.

You may file for divorce any time after the date of separation, however, the court will not grant you a Divorce Judgment until you have been separated from your partner for at least one (1) year. So, for example if you separated from your spouse this morning, you can apply for divorce today, but you cannot apply to finalize the divorce until one (1) year from today.

If you have family property acquired during the course of the marriage that you seek to divide between yourself and your spouse, you may file a combined Claim for Divorce and Division of Family Property.

If you have been served in Alberta with a Statement of Claim for Divorce†, you must take one (1) of the following steps within twenty (20) days:

File a Statement of Defence;
File a Statement of Defence and Counterclaim; or
File a Demand for Notice.

Keep in mind that mediation may be a more feasible and/or amicable alternative available to you and your spouse to effect the dissolution of the marriage, in which case, please advise us of this intention immediately upon making contact with our office.

Consider also a Divorce and/or Property Agreement.

Complete our Questionnaire and contact us to book a divorce consultation.

* Under the law, it is possible for parties to live “separate and apart” in the same house. Ask us how.
† If you have been served with a claim outside of Alberta, the time limit within which to take one (1) of the above actions differs.

Annulment

Annulment is a declaration by a court that a marriage is null and void.

If one of the following rare circumstances are applicable to you, you may ask the court for an order declaring that your marriage was invalid, and therefore did not exist:

a spouse was already married to another person when the marriage was entered into;
a spouse entered into the marriage under duress, fear or fraud;
a spouse did not consent to the marriage, for instance, due to mental incapacitation or impairment by drugs and/or alcohol to such a degree so as to not be able to understand the nature of marriage;
a spouse thought they were marrying one person, but it was actually another person;
a spouse is unable to consummate the marriage; or
you or your spouse were under the age of 18 at the time of the marriage, either of you did not have parental consent, and you did not consummate the marriage.

If one of the rare circumstances above apply you, complete our Questionnaire and book a consultation.

Children: Decision-Making Responsibility & Parenting Time

As you may have already experienced, the terms parenting time, custody, and access are often used interchangeably, and it can be difficult to understand their meanings. After you and your spouse separate, you will need to consider what parenting and decision-making arrangement is best for your children. And you might ask yourself, what is contact?

The terms come from the law and primarily relate to the time and decision-making rights with respect to children post separation, with spouses and non-spouses. With the changes to the Divorce Act effective March 1, 2021, we no longer use the terms custody and access, and rather refer to decision-making and parenting time. We utilize definitions from the Divorce Act as follows:

Parenting Time

Parenting time means the time that a child of the marriage spends in the care of a person referred to in a Parenting Order, whether or not the child is physically with that person during that entire time.

Parenting order is a direction made by a court which provides for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by either or both spouses; or a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Parenting plan means a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree. Parenting plans are included with parenting or contact orders, unless, it is not in the best interests of the child to do so.

Further information on how to create a parenting plan that works for your family can be found in the Parenting after Separation (PAS) e-Course offered by Alberta Resolution Services for parents and guardians who are separating or divorcing. In the PAS e-course you will learn:

Parenting Plans are arrived at through a negotiation process involving both parents.
It is easier for children when their parents agree.
Parenting Plans will need to be updated over time.
Guidelines for working collaboratively to develop a Parenting Plan.

The course can be accessed here by creating a login with your email address.

We have further information on the PAS e-Course on our website here.

Contact

Contact means the time that is set out in a court order, on application by a person other than a spouse, such as a grandparent or ex-stepparent, which provides for time between that person and a child of the marriage.

An application for contact time requires leave of the court, which means permission of the court to file your application for contact.

Decision-Making

Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of:

a. health;
b. education;
c. culture, language, religion and spirituality; and
d. significant extra-curricular activities.

The parents may agree to have shared decision-making on major decisions affecting any child, or to have one parent be sole the sole-decision maker.

If the parents cannot agree as to the parenting time and/or decision making that is in the children’s best interests, then either party may apply to court for a parenting order.

If you seek an order specifying parenting time and/or decision-making of your child(ren), you may file an application in the either the Court of King’s Bench of Alberta or the Provincial Court of Alberta, under the Divorce Act or under the Family Law Act. We review the terminology and factors under the Divorce Act below. For the factors under the Family Law Act please see here.

What’s in a parenting order?

In a parenting order the court can:

allocate parenting time by way of a schedule;
allocate decision-making responsibility;
confirm entitlement to information

Unless the court orders otherwise, a person to whom parenting time is allocated has exclusive authority to make, during that time, day-today decisions affecting the child.

The terms set out in the parenting order can be flexible or specific, and may contain restrictions, depending on the best interests of any child and any concerns with the parent exercising parenting time. See below examples of terms:

The father shall exercise generous and liberal parenting time with the children, as mutually agreed between the parties in writing. (flexible)
The mother shall have parenting time with the children on alternating weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. (specific)
The father shall not consume any drugs or alcohol during his parenting time with the children or twenty-four (24) hours prior to his parenting time commencing. (restriction)

Parenting time schedules can be created any way that it is in the best interests of the children. Examples of parenting schedules, include, but are not limited to:

The parties shall share parenting time with the children equally, on a week-on/ week-off basis, with exchanges on Tuesdays afterschool;
The mother shall have primary parenting time with the child, and the father shall have parenting time with the child at the mother’s discretion;
The father shall have primary parenting time with the child, and the mother shall have supervised parenting time with the child.

The new Divorce Act specifies entitlement to information for spouses, unless the court orders otherwise, the Act states that any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

Best Interests of the Child

Under section 16 of the Divorce Act, the court shall take into consideration only the best interests of any child of the marriage in making a parenting order or a contact order, and that the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. The section 16 factors, with respect to parenting time are as follows:

a. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

b. the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

c. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

d. the history of care of the child;

e. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

f. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g. any plans for the child’s care;

h. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

i. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

j. any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

k. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

If you and your spouse disagree as to the parenting and decision-making arrangements for the children post-separation, you or your spouse may apply to the court for a parenting order which sets out the schedule and decision-making for the children. The court’s primary consideration in granting a parenting order is what is in the best interests of the children, as defined above in section 16 of the Divorce Act and in section 18 of the Family Law Act here.

If you and your spouse agree on the custody and access arrangement, contact our office to draft an agreement with Independent Legal Advice, to ensure your agreement is legally binding and enforceable.

Connect with our experienced lawyers to discuss what parenting time and decision-making arrangements may be in the best interests of your children.

Thinking about moving?

Relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
a person who has contact with the child under a contact order.

If you are changing your place of residence, you must provide written notice of address and contact information, and the date on which the change is expected to occur. The change of residence notice is set out in the Divorce Act because it is important that everyone who has parenting time, decision-making responsibility or contact with the child have up-to-date information about changes in residence.

Notice of Relocation

If you wish to relocate the residence of any child of the marriage, under the Divorce Act you shall provide written notice, at least 60 days before the expected date of the proposed relocation, in the form prescribed by the regulations and shall set out:

the date on which the change is expected to occur; and
the address of the new place of residence and contact information of the person or child, as the case may be.

The Court may, on application, provide that the notice requirements do not apply or may modify them, where there is a risk of family violence.

The Notice of Relocation Form can be found here.

A person who has given notice under section 16.9 of the Divorce Act and who intends to relocate a child may do so as of the date referred to in the notice if:

the relocation is authorized by a court; or
the person who has received a notice does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in prescribed form or court application, and there is no order prohibiting the relocation.

Objection to Relocation

If you wish to object to the relocation, you must serve a form that sets out:

a statement that you object to the proposed relocation;
the reasons for the objection;
your views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
any other information prescribed by the regulations.

The Objection to Relocation Form can be found here.

To review the notice and objection requirements for relocation, including the factors considered and not considered in relocation, see the Divorce Act and the Department of Justice: The Divorce Act Changes Explained here.

If you wish to relocate the primary residence of the children, and the other parent does not consent, then the matter will likely proceed by way of a special hearing, and likely with oral evidence.

Relocation Factors

The courts will consider a number of factors in deciding whether a move is in the children’s best interests at that time including, but not limited to, the reasons for the relocation; the impact of the relocation on the child; the amount of time spent with the child by each person who has parenting time; and the proposed plan for the children after relocation (eg. residence, school, support system). Unfortunately, despite a move being in your best interests, the courts may not find it to be in the child’s best interests.

Please note in deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. To see the additional factors considered by the court in relocation see section 16.92 of the Divorce Act.

Corcoran Law has been successful in contested mobility applications. Contact our office if you seek or oppose a mobility application, so that we may review your individual circumstances and implement an appropriate plan for your family.

Child Support

Child support is a right of the child. The obligation to pay child support is rooted in the child’s right to be adequately cared for and financially supported by their parents.

Child support is an ongoing periodic payment made by one parent (payor) to the other parent (recipient) for the financial benefit of each child, commencing after the parents’ separation.

This legal obligation is so significant, that unless child support arrangements are made for the children, the court will not grant a divorce until such reasonable arrangements have been made for the children.

Types of Child Support:

In Canada, child support is determined in accordance with the Federal Child Support Guidelines, which set out two (2) types of child support:

Section 3 “table” base child support – intended to be a contribution towards child’s monthly living expenses; and
Section 7 “special and extraordinary” expenses – include, but are not limited to, medical/dental expenses, extra curricular activities, childcare expenses and post-secondary educational expenses.

The amount of section 3 child support payable is generally dependent on 4 factors:

(1) The province or territory in which the payor resides – unless payor resides outside Canada, then the province or territory in which the recipient resides is used to calculate support;

(2) The parenting arrangement between the parties

If the children reside primarily with one (1) parent:
the non-custodial parent pays the other parent the table amount of monthly child support based on their gross annual income.
If the children reside with each parent at least 40% of time:
child support is calculated by essentially assuming both parents are payors. Subtract the lower income parent’s table amount from the higher income parent’s table amount, and the remainder is considered to be the set-off amount that the higher income parent must pay to the other.
If one (1) or more children primarily reside with each parent:
this is essentially a split parenting arrangement. After determining each parent’s table amount by entering in the number of children in their individual care, subtract the two values and the remainder is considered to be the set-off amount that is payable.

(3) Number of children – with increased expenses associated with more children, the child support amount payable is calculated by taking into consideration the number of children of the marriage.

Under the federal Divorce Act, a child is considered a “child of the marriage” if:

they are under the age of majority* and still dependent; or
they have attained the age of majority, however remain dependent due to illness, disability or other cause†

(4) Gross income of the payor – in calculating a payor’s guideline income, the general starting point is the party’s income as reflected at line 150 of their Income Tax Return. Should the line 150 value be an unsatisfactory representation of the payor’s actual income, for instance, due to a manipulation or concealment of self-employment income, the courts may decide to impute or assign a certain income to a parent. The courts may adjust child support payable above or below the table amount upon consideration of the parties’ specific circumstances.

In cases where self-employment income needs to be accounted for in calculating child support and in cases where there are allegations of under-employment, applications for imputation of income may need to be filed. Contact our office to obtain proper legal advice on the child support payable in your matter.

Support for Special Expenses

In addition to a contribution towards a child’s monthly living expenses under section 3, parents are also under an obligation to contribute towards a child’s special and extraordinary expenses under section 7, which include, but are not limited to, the following:

childcare
medical or dental
education
extracurricular activities

Parents may choose how they wish to share these expenses. Generally, parents either share these expenses proportionate to their respective incomes, or equally.

Calculating child support can become complicated in some circumstances, however, our office is here to help you understand the particulars of your situation as they effect child support.

Contact our office to take steps to obtain an Agreement or an order for child support.

* The age of majority may be 18 or 19 based on the province or territory in which you reside.

† In Alberta, “other cause” includes a child completing full-time post-secondary education while residing full-time at home as they are still considered to be dependent, and as such may be entitled to support until they attain the age of 22.

Spousal Support

Spousal support is an ongoing periodic or lump-sum payment made by one partner (payor) to the other partner (recipient) for their financial benefit, following the breakdown of the marriage.

Objectives of Spousal Support

The reality is that most people that experience separation and divorce, unfortunately suffer financial hardship. Spousal support was established essentially to attempt to remedy the financial hardship, and more specifically to:

recognize any economic advantages and disadvantages to the spouses arising from the marriage or its breakdown;
divide up any financial costs arising from the care of the children, over and above child support;
lessen any financial hardships suffered by a spouse as a result of the breakdown of the marriage;
encourage the economic self-sufficiency of a spouse within a reasonable time period.

Now that you have an understanding of the objectives of spousal support, you may be seeking resources on how to obtain spousal support, or you may be looking for information on how to contest spousal support; either way, you will need to understand whether entitlement to spousal support can be established pursuant to the Divorce Act.

Entitlement to Partner Support

If you or your spouse are seeking spousal support, the factors the law and courts consider, include, but not limited to, the following:

how long the spouses lived together;
the functions performed by each spouse during the time they lived together;
any order, agreement or arrangement relating to support of either spouse;
whether either of the spouses have a legal obligation to support another spouse or child; and
if the paying or recipient spouse lives with someone else, how much that person contributes to their household expenses, increasing the ability to pay or decreasing financial need, respectively.

There may be entitlement to support if there is a long-term marriage, or if there is a large income disparity between the spouses, or if the functions performed by each partner during your marriage were such that one spouse was the primary care-giver or home-maker, and the other spouse was the primary income earner, making the former financially dependent on the latter.

Example: One spouse stays at home to care for the children while the other spouse works to financially provide for the family. At the time of separation, while both spouses may often suffer financial hardship of varying degrees, the consequence of this child-rearing arrangement during the course of the marriage is such that, one spouse experiences economic disadvantage created from the missed opportunities for economic, educational or career/professional advancements, while the other spouse experiences the economic advantages created by those opportunities; opportunities which they had as a consequence of the disadvantages experienced by the spouse that performed the function of the children’s primary caregiver.

Example: One spouse may put their education on hold, so that their spouse may pursue a career opportunity; or another spouse may quit their job, to move abroad with their spouse. Economic disadvantage can also be created in family circumstances without children, when one spouse makes sacrifices to their economic, educational and career/professional advancement, for the benefit of the other spouse.

How much & for how long?

While child support can be relatively easy to calculate with the Table Look-Up, spousal support can be more challenging as each couple’s circumstances are unique; accordingly, the courts look to the Spousal Support Advisory Guidelines as well as previous court decisions with similar sets of facts in their determination of quantum and duration of support.

Spousal Support Advisory Guidelines

Either party may be obligated to pay spousal support to the other upon appreciation of the above factors and objectives. The Spousal Support Advisory Guidelines were drafted in Ontario to assist with providing guidance on the calculation of spousal support. Although not binding, Alberta courts may use these Guidelines to help determine the support payable.

There are free child and spousal support calculators available online which utilize the Advisory Guidelines. Once you input the necessary information into the calculator, you will obtain a spousal support range, but we note that it may not be a correct representation of your family’s circumstances and accordingly, encourage you to contact our office to obtain proper legal advice on the quantum and duration of spousal support for your matter.

Spousal support can be one of the most contentious issues we deal with as family law lawyers, but it does not have to be. Corcoran Law can help you navigate the intricacies involved in resolving support disputes as we have been successful acting as counsel for individuals seeking support as well as those contesting it.

If your spouse is seeking spousal support from you, do not get overwhelmed. Gather the information required to assess your spouse’s claim for support by completing our Questionnaire.

Complete our Questionnaire to book a free 30-minute consultation so that we can review spousal support in a way that you clearly understand.

If you and your spouse agree on payment of support, or if you both agree on a mutual waiver of spousal support, you may retain our office to draft an Agreement accordingly.

Contact our office to discuss your entitlements and/or obligations as a recipient or payor of support.

Family Property

In Alberta, on January 1, 2020, the Matrimonial Property Act was renamed the Family Property Act.

Family property is the debts and/or assets you and/or your spouse acquired during the course of your marriage.

If you seek to divide the family property between you and your spouse, the applicable legislation is the Family Property Act so long as you separated from your spouse on or after January 1, 2020. If you separated from your spouse on or prior to December 31, 2019, the applicable law is the Matrimonial Property Act.

The Family Property Act applies to both married couples as well as unmarried partners in adult interdependent relationships. Please refer to our “Unmarried Partners” page for information on property division for unmarried partners.

As debts and assets accumulated by both parties throughout the course of the marriage are considered to be family property, if you and your spouse disagree as to how your property is to be divided, then because property division must be final, a final process is required – for instance, trial.

The family property is valued at the date of trial. As the costs of trial can be very expensive, we often advise resolution of property issues by way of private mediation, negotiation/settlement, private arbitration or Binding JDR.

How is property divided?

Generally, property is divisible equally between spouses unless equal division would be unfair in the particular circumstances. If equal division would be unfair, the court will consider the various factors set out under section 8 of the Family Property Act, such as:

the contribution made by each spouse to the marriage, to any relationship of interdependence* with the other spouse immediately before the marriage and to the welfare of the family, including any contribution made as a homemaker or parent;
the contribution, financial or otherwise, made directly or indirectly by or on behalf of a spouse or adult interdependent partner to the acquisition, conservation or improvement of the property;
any agreements between the spouses;
the income, earning capacity, liabilities, obligations, property and other financial resources:
- that each spouse had at the time of marriage, or if the spouses were in a relationship of interdependence with each other immediately before the marriage, that each spouse had on the date the relationship of interdependence began, and
- that each spouse has at the time of the trial;
the combined duration of the relationship of interdependence and marriage;
the date the property was acquired; and
whether a spouse has dissipated property to the other spouse’s detriment.

*A relationship of interdependence exists at the point where you and your partner share your lives, have emotional commitment to one another and function as an economic and domestic unit.

Exempt Property

Certain kinds of property are excluded from the division and belong to one spouse only, specifically:

property acquired by a spouse by gift from a third party;
property acquired by a spouse by inheritance;
property acquired by a spouse before the marriage or, if applicable, before the relationship of interdependence began;
an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses; and
the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses,

The new legislation has changed the rules for married couples largely in one regard – exempt property. Now, the above exemptions generally apply from the date on which you started living together in a relationship of interdependence, not the date on which you were married.

Out-of-Court Alternatives

Court litigation can be very expensive and time consuming. Find below perhaps more feasible avenues that are available to you for dispute resolution which have proven to be more efficient, effective and allow you to have more control over the process and outcome:

We understand that this may be a lot of information to digest, but we are here to help.

Submit our Questionnaire, write down your questions, and contact our office to set up an appointment so that we may help you understand your options.