Corcoran Law & Mediation Centre are Experienced Lawyers in Calgary for Unmarried Partners
Declaration of Irreconcilability
Unmarried partners are two (2) individuals, who chose to enter into a committed relationship, with or without children, and/or acquired property during the course of the relationship.
To confirm your separation via a court order, you may apply for a Declaration of Irreconcilability, which essentially confirms that you and your partner have no prospect of reconciling. You also have the option of confirming your separation by agreement.
There is an ongoing trend of people entering committed relationships and choosing not to get married. Accordingly, effective January 1, 2020, the law in Alberta was amended and the Family Property Act was enacted to provide unmarried partners equal rules and rights when dividing their property after their relationship has broken down; these provisions are applicable to partners in adult interdependent relationships who separated on or after the effective date.
Adult Interdependent Relationships
Under the Adult Interdependent Relationships Act, you are considered to be in an adult interdependent relationship if you and your partner have lived together in a relationship of interdependence:
- continuously for at least three (3) years;
- semi-permanently for less than three (3) years, but you have had a biological child together; or
- having entered into an Adult Interdependent Partner Agreement;
A relationship of interdependence does not need to be romantic, but must be a relationship wherein you and your partner share your lives, have emotional commitment to one another and function as an economic and domestic unit; the court will consider a number of factors under the legislation in their determination of whether or not you and your partner function as an economic and domestic unit.
Family members are only considered to be in an adult interdependent relationship if they enter into an Adult Interdependent Partner Agreement.
Children: Guardianship & Parenting Time
Guardianship
If you and your unmarried partner have children, the applicable law in Alberta is the Family Law Act, which sets out the powers, responsibilities and entitlements of guardianship of the children.
As a guardian of a child, you are entitled to be involved in major decision-making about the child, and you are responsible for caring for the child’s physical, psychological and emotional development.
If you are an unmarried partner, you are considered a guardian of a child if:
- you lived together for at least 12 months and the child was born while you were living together;
- you lived together for less than 12 months, but were in an adult interdependent relationship, and the child was born during that relationship;
- you became adult interdependent partners after the child was born, but within one (1) year of finding out about the pregnancy or the birth of the child; or
- you signed an agreement that you would both be guardians of the child.
If you and the other parent are not living together, however, one parent shows an intention to assume the responsibilities of a guardian within one (1) year of finding out about the pregnancy or birth of the child, then that parent is considered to be a guardian of the child. One way this intention can be demonstrated is by voluntarily paying or offering support for the child, financial or in kind.
Under the law, a child can have more than two (2) guardians as a guardian does not need to be a parent of the child.
Complete our Questionnaire and contact our office to see if you are entitled to guardianship.
Parenting Time
Parenting time means time during which a guardian has the power to make day-to-day decisions affecting a child, including having the day-to-day care and control of the child and supervising the child’s daily activities, whether the child is in the guardian’s presence or out of the guardian’s presence with the guardian’s expressed or implied consent.
If you have agreed with your partner on how to share the parenting time and responsibilities for a child, our office can draft an Agreement accordingly; or you can retain our office to mediate or litigate any outstanding parenting issues between you and your partner.
If you cannot agree on how to share the parenting time and responsibilities for a child, you can apply to the court to decide. The primary factor the court will consider in making the decision, is what is in the best interests of the child as set out in section 18 of the Family Law Act, not your or your partner’s preferences.
Best Interests of the Child
Under section 18 of the Family Law Act in determining what is in the best interests of a child, the court shall ( a ) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and ( b ) consider all the child’s needs and circumstances, including:
( i ) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development
( ii ) the history of care for the child,
( iii ) the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
( iv ) the child’s views and preferences, to the extent that it is appropriate to ascertain them,
( v ) any plans proposed for the child’s care and upbringing,
( vi ) any family violence, including its impact on
( a ) the safety of the child and other family and household members,
( b ) the child’s general well-being,
( c ) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and
( d ) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child,
( vii ) the nature, strength and stability of the relationship
( a ) between the child and each person residing in the child’s household and any other significant person in the child’s life, and
( b ) between the child and each person in respect of whom an order under this Part would apply,
( viii ) the ability and willingness of each person in respect of whom an order under this Part would apply
( a ) to care for and meet the needs of the child, and
( b ) to communicate and co-operate on issues affecting the child,
( ix ) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,
( x ) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and
( xi ) any civil or criminal proceedings that are relevant to the safety or well-being of the child.
You may apply for a parenting order which sets out the parenting time and responsibilities for children. The terms of this parenting order can be flexible (e.g. parenting time as mutually agreed between the parties) or specific (e.g. precise days and times); and may contain restrictions (e.g. parent shall not consume alcohol/drugs during parenting time), depending on the specific circumstances of your case.
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.
Complete our Questionnaire and let us help you determine which type of parenting order or plan may work best in your family situation.
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.
Types of Child Support:
In Canada, child support is determined in accordance with the Federal Child Support Guidelines, which sets 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 Department of Justice has provided a Child Support Table Look-up, wherein you can input the criteria below and obtain the base or “table” section 3 child support amount payable in your matter.
The amount of section 3 child support payable is generally dependent on 4 factors:
(1) Province or territory in which the payor resides – unless a payor resides outside Canada, then the province or territory in which the recipient resides is used to calculate support.
(2) 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 considering the number of children of the relationship.
(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, and applications for imputation of income need to be filed, contact our office to obtain proper legal advice on the child support payable in your matter.
Section 7 Support for Special and Extraordinary 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.
Adult Interdependent Partner Support
Adult Interdependent Partner Support (“partner support”) is an ongoing periodic payment made by one partner (payor) to the other partner (recipient) for their financial benefit, following the end of their relationship.
Objectives of Partner Support
Partner support was implemented to:
- recognize any economic advantages and disadvantages to the partners arising from the relationship or its breakdown
- divide up any financial costs arising from the care of the children, over and above child support
- relieve any financial hardship suffered by a partner as a result of the breakdown of the relationship
- promote the economic self-sufficiency of a partner within a reasonable time period
Now that you have an understanding of the objectives of partner support, you may be seeking resources on how to obtain partner support, or you may be looking for information on how to contest partner support; either way, you will need to understand whether entitlement to partner support can be established pursuant to the Family Law Act.
Entitlement to Partner Support
In making an order for partner support, the court considers the conditions, means, needs and other circumstances of each partner including:
- the length of time the partners lived together;
- the functions performed by each partner during the period they lived together; and
- any order or arrangement relating to the support of the partners.
There may be entitlement to support if there is a long-term relationship, or if there is a large income disparity between the partners; or if the functions performed by each partner during your relationship were such that one partner was the primary care-giver or home-maker, and the other partner was the primary income earner, making the former financially dependent on the latter.
Example: One partner stays at home to care for the children while the other partner works to financially provide for the family. At the time of separation, while both partners may often suffer financial hardship of varying degrees, the consequence of this child-rearing arrangement during the course of the relationship is such that, one partner experiences economic disadvantage created from the missed opportunities for economic, educational or career/professional advancements, while the other partner experiences the economic advantages created by those opportunities; opportunities which they had as a consequence of the disadvantages experienced by the partner that performed the function of the children’s primary caregiver.
Example: One partner may put their education on hold, so that their partner may pursue a career opportunity; or another partner may quit their job, to move abroad with their partner. Economic disadvantage can also be created in family circumstances without children, when one partner makes sacrifices to their economic, educational and career/professional advancement, for the benefit of the other partner.
How much & for how long?
While child support can be relatively easy to calculate with the Table Look-Up, partner 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 partner 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 that 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 partner support for your matter.
Partner 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 partner is seeking partner support from you, do not get overwhelmed. Gather the information required to assess your partner’s claim for support by completing our Questionnaire. Book a free 30- minute consultation so that we can review partner support in a way that you clearly understand.
If you and your partner agree on payment of support; or if you both agree on a mutual waiver of partner 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
Under the law, unmarried partners now have the same property division rules as married partners, such that your debts and assets are generally shared equally unless exceptional circumstances are present which make equal division unfair. Should you and your partner disagree on property division, the matter will need to proceed by way of private binding arbitration, Binding Judicial Dispute Resolution or Trial because division of family property requires a final process.
If the Family Property Act is applicable to your circumstances and you legally become “former adult interdependent partners” (which can be accomplished in several ways, one of which is that you and your partner have lived separate and apart for one (1) year), then there are a few additional rules specifically for adult interdependent partners with respect to time limits and exemptions for property division. Contact our office for further information.
Remember, if you seek to divide your property otherwise than as set out in the legislation, you are entitled to instead enter into a Property Agreement with Independent Legal Advice between yourselves.
Complete our Questionnaire and book an appointment to understand your options as unmarried partners.