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