Family Law includes Divorce and Custody, Matrimonial Property, Cohabitation (common law relationships), Unmarried Parents and Adult Interdependent Partners and Child Welfare.

1. Divorce and Custody

Family Law - DivorceDivorce is governed by the federal Divorce Act and is the same across Canada. A divorce can be obtained where there has been a breakdown in a marriage which can be shown one of three ways; adultery, physical or mental cruelty, or living separate and apart for at least one year. In Alberta where the parties reach an agreement or one party does not contest the divorce a divorce can be obtained by a procedure know as a “desk divorce”.

This procedure does not require a divorce trial, but instead the filing of evidence by affidavit. As well, the issues of child custody and access are dealt with in the divorce judgment. They can also be resolved on an interim basis prior to the divorce being granted. Custody usually remains with the person who has been the primary care giver to children while the couple still lived together. However, as the children should maintain meaningful contact with both parents, the other parent will usually have generous access. If the situation changes in any way after the divorce, custody and access can be reviewed by the court. The fundamental consideration is doing what is in the best interests of the child. For divorcing couples with children, child support is also part of the divorce proceeding. Major changes to the rules about child support came into effect in May, 1997. Everyone with an existing child support order should see a lawyer to see if it is wise to have that order reviewed by the court under the new rules.

2. Matrimonial Property

In Alberta property is covered by the Matrimonial Property Act. The basic principle of this act is that property acquired during the marriage is divided 50-50. “Property” includes assets and liabilities, but certain property is exempted such as property owned before the marriage, gifts and other types of property mentioned under the legislation.

3. Cohabitation

There is a whole area of law that deals with persons who live common law. Property is handled somewhat differently than under the Matrimonial Property Act. For property to be shared is must shown that the property was bought with funds from both parties or purchased for the common use of the family. Land Titles law is different too.

If a couple in a common law relationship have children, the situation is very similar to that of married parents. The mother and father are the guardians of the children and enjoy joint custody. On separation the couple (or the courts, if the couple does not agree) must deal with the issues of custody, access and child support.

4. Unmarried Parents and Adult Interdependent Partners

In Alberta family law issues between unmarried parents and adult interdependent partners are subject to the Family Law Act. This Act regulates paternity, guardianship, parenting time, parenting responsibilities, child support and partner support”

5. Child Welfare

Family Law - Child WelfareIssues of child welfare and child guardianship are handled in the Provincial Court – Family Division. These cases usually take place where there is an issue about whether children are being adequately cared for by their parents. The Court has the jurisdiction to grant Supervision Orders, Private Guardianship Orders, Temporary Guardianship Orders, and Permanent Guardianship Orders.

The specific circumstances of each case will determine what kind of order will be granted. In all three types of orders, the overriding consideration is what is in the best interests of the child involved.