Divorce Law 101

• Access: This refers to the visitation a child. Generally, a spouse exercising access rights is also entitled to information about the childs health, welfare and education, unless a Court orders otherwise.
• Adjournment: When a matter that is scheduled for a specific court date is moved to a later date.
• Adoption: The legal process in which the natural parents legal rights and obligations toward a child are terminated and given to the adoptive parents.
• Adultery: Sexual intercourse by a legally married person with someone of the opposite sex who is not his or her spouse. Adultery is one of the ways marital breakdown can be established. According to current legislation a same-sex relationship does not currently constitute legal adultery, but the law may be changing in that area. For example, a Justice in B.C. has interpreted the * of adultery to include same sex intercourse.
• Adversarial System: Refers to definition a spuspute being resolved through Canadas court system. The opposing parties present their respective sides of an issue by presenting evidence and a Justice acts as an impartial arbiter that weighs the evidence and decides how the law applies in each specific case.
• Affidavit: A sworn statement, typed, signed by and witnessed by someone, usually a lawyer. It is filed in support of or in an opposition to court application.
• Alternative Dispute Resolution: Refers to different ways in which disagreements can be resolved between opposing parties other than through litigation or the adversarial system. Alternative dispute resolution includes Judicial Dispute Resolution, mediation, collaborative law, arbitration and negotiation.
• Appeal: In certain limited circumstances a party to an action can ask a higher level of Court to review the Justices decision and determine if a reviewable error was made. The Court reviewing the decision can uphold it, change it or send the matter back to the original Court for reconsideration.
• Applicant: The party in a lawsuit who initiates a court appearance and asks for an issue or issues to be determine by a Justice.
• Application: A written request for a Justice to hear and determine an issue or issues in dispute. An application is commenced by filing a Notice of Motion and Affidavit and serving them on the opposing party.
• Arbitrator: A person who is chosen by the parties to make a binding decision out of court about an issue or issues in dispute.
• Arbitration: A binding process in which disputing parties present their case to an independent, qualified individual (the arbitrator) who renders a decision on the matters in issue based on the evidence and testimony presented. The parties agree in advance to be bound by the arbitrators decision.
• Best Interest Test: The determining factor in custody, access and mobility matters; what will best serve the childs interests.
• Child: The Divorce Act, defines a “child of the marriage” as a child of both spouses, a child of one of the spouses towards whom the other spouse acts as a parent, or a child towards whom both spouses act as a parent. Biological children, adopted children and children looked after by a spouse may all be considered children of the marriage. Additionally, a child is someone who is under 18 years of age or who is over 18 but remains dependent on his or her parents because of illness, disability or other reasons, such as their involvement in full-time post-secondary studies.
• Child Support: Monetary payments made to help cover a childs expenses. Child support is paid pursuant to the Federal Child Support Guidelines.
• Cohabitation Agreement: A written contract signed by a couple who lives together or plans to live together. Generally, it provides for ownership and division of property in the event of a relationship breakdown, but. In order to be legally binding both parties must receive independent legal advice and sign the document with legal counsel
• Collaborative Family Law: A dispute resolution process whereby the parties and their lawyers agree in advance to work together to negotiate a mutually acceptable settlement without Court intervention.
• Common-Law Spouse: Refers to parties that live together in a marriage-like relationship without getting legally married. In doing so, the parties achieve the status of legally married spouses for some purposes, such as support.
• Confidentiality: Refers to the legal protection that is give to people in certain relationships which allows them to not have to disclose any information given to them by another individual in that relationship. Most professional associations have ethical guidelines regarding the confidentiality of communications between members and their clients, however, they do not necessarily provide protection from disclosure in court. Some professionals such as clergy and doctors may be called upon to testify in court. Communications between a lawyer and a client have special protection that almost always forbids a lawyer from disclosing communications with a client, including protecting the lawyer from having to testify in court about information provided by a client.
• Consent Order: An order of the Court to which both parties agree.
• Contempt of Court: A willful disobedience of a court order punishable by fine or imprisonment or both.
• Contested Divorce: This occurs when one spouse does not agree to something sought in the Statement of Claim for Divorce.
• Corollary Relief: This refers to the Court making an order pertaining to matters other than the divorce itself such as financial support, custody and access, and there is a dispute about an issue or issues.
• Costs: Money payable for legal services. When matters are contested in court, a Justice has the discretion to order the losing party to pay a portion of the successful partys legal fees.
• Counterclaim: When a defendant sues a plaintiff for specified relief after court action has been initiated between the parties.
• Cross-Examination: The under oath examination of a witness performed by the opposing party that occurs in relation to an Affidavit or occurs during a trial, hearing or disposition.
• Cruelty: The intentional and malicious infliction of physical and/or mental suffering. Mental or physical cruelty can establish grounds for the breakdown of a marriage.
• Custody: Refers to the decision making power or control over a child. This includes the ability to make major decisions such as those relating to education, religion and health care.
• Defendant: The individual that is sued in a lawsuit.
• Demand of Notice: A document that may be filed by a defendant. When the defendant does not contest anything sought by the plaintiff in the Statement of Claim but wishes to receive notice of any further action to the Plaintiff takes in respect of the court proceedings.
• Dependant: A person who relies on someone else for financial support. In the context of family law, this may include a spouse or a child.
• Desk Divorce: An uncontested divorce where documents are submitted to the Justice but no court appearance is required by either party or their legal counsel.
• Disbursements: Out-of-pocket expenses including the cost of filing a statement of claim, process server, using a courier charges, long distance telephone, fax and photocopy costs.\
• Disclosure: The production of certain documents to the opposing party. In a typical divorce action parties, at a minimum, exchange certain basic information, such as the financial documents referenced in a Notice to Disclose.
• Discovery: A step in legal proceedings where lawyers get to ask the opposing client, under oath, questions about anything that touches on a matter(s) in issue in the litigation. The process is conducted in the presence of a court reporter and a transcript of all questions and answers gets prepared. It is used to obtain facts and information about the case of the opposing party in order to assist the lawyer in preparing for trial. These are also known as  examination for discovery.
• Dispute Resolution Officer (DRO): This term refers to the program where parties attend one hour of mediation arranged through the Court of Queens Bench. The program must be attended prior to a justice hearing a child support application, unless an exemption is obtained.
• Dissolution of Marriage: This term refers to the breakdown of a marriage. Grounds for dissolving a marriage are established if the spouses have been living separate and apart for at least one year immediately preceding the determination of the divorce, or a spouse has committed adultery or mental or physical cruelty.
• Divorce: The termination of the legal relationship of marriage.
• Divorce and Property Contract: A written settlement agreement that states how the parties have resolved their differences. It can deal with any matter(s) in dispute between the parties including the division of property, custody, access, support and any other matter. To be legally binding it must be executed with a witness and both parties must receive independent legal advice about its contents.
• Divorce Certificate: The actual piece of paper that officially describes the termination of the marriage. It is needed as proof of a divorce in order to successfully apply for a marriage license.
• Domestic Special: A family law court application where an interim order is requested.
• Domestic Violence: The intent of one spouse to intimidate, either by threat or use of physical force, the others person or property. The purpose of the assault is to control behavior through the inducement of fear.
• Dower Rights: A life interest in your spouses homestead that can be claimed on the death of the spouse.
• Extraordinary Expenses: Certain special expenses a child may have that must be paid over and above the base amount of child support. Special or extraordinary expenses are evaluated by taking into account the necessity of the expense in relation to the childs best interests and the reasonableness of the expense in relation to the means of the parents and those of the child and to the familys spending pattern prior to the separation. Extraordinary expenses are as follows:
  • child care expenses;medical and dental insurance premiums attributable to the child;
  • health-related expenses that exceed insurance reimbursement by at least $100 annually;
  • extraordinary expenses for primary or secondary school education or programs;
  • extraordinary expenses for post-secondary education; and
  • extraordinary expenses for extracurricular activities.
• Federal Child Support Guidelines: Federal government established guidelines that determine how child support is calculated.
• Fees and Disbursements: The financial costs associated with a file. These are relayed to a client in a detailed monthly statement. The fee is for the lawyers time, which is calculated by multiplying the lawyers hourly rate by the number of hours worked on the case. Disbursements are the out-of-pocket expenses, incurred on the file.
• Final Order: An order that is intended to last indefinitely. Unlike an interim order it requires a change of circumstances to be varied.
• Four Way Settlements Meeting: A meeting between both parties and their respective legal counsel for the purpose of facilitating settlement or narrowing issues.
• Garnishee: A legal procedure that allows for the seizure of money owing to a person who has not paid a court-ordered debt. It occurs when a court orders the debtors bank, employer, or anyone else who owes money to the debtor to pay the money into court to help pay off the debt.
• Grounds for Divorce: The only ground for divorce in Canada is the breakdown of a marriage, which can by established if the spouses have been living separate and apart for at least one year immediately preceding the determination of the divorce, a spouse has committed adultery or has treated the spouse with mental or physical cruelty.
• Guardianship: A legal arrangement under which one person (a guardian) has the legal right and duty to care for another persons and his or her property. Guardianship is established because of the wards inability to legally act on a persons behalf because he or she is a minor or is mentally or physically incapacitated. Guardianship status is automatically bestowed on the mother of a child. Guardianship status is automatically bestowed on the father of a child only in the event that the parents are legally married or they lived together for one consecutive year immediately preceding the birth of their child.
• Guideline Income: Refers to a partys total or gross annual income. Guideline income is used to determine the amount of child support payable pursuant to the Federal Child Support Guidelines. The Court has the ability to look at a pattern of income and to impute income.
• In loco parentis: To stand in the place of a parent it exists when a person assumes the care and control of another.
• Interest-Based Negotiation: The act of settling the terms of an agreement based on the values and goals of each party instead of their positions.
• Interim Orders: A temporary order that is meant to last until the issue is heard again. There may be a considerable period of time between the initial filing of a divorce application and the divorce judgment. However, the Court can make a temporary order for the interim period.
• Joint Custody: When parents share responsibility for making decisions that affect their children. Joint custody requires a commitment on the part of both parents to co-operate for the benefit of the children. It does not eliminate the obligations of both parents to provide financial support for the children. This does not refer to the parent the children actually lives with on a day-to-day basis, which is called residential care and control
• Judgment: The final decision by the Court on any issues put to it during a trial.
• Judicial Dispute Resolution (JDR): A method of resolving a dispute that involves a meeting between the opposing parties, their respective counsel and a justice that facilitates a discussion of the issues and attempts to resolve the dispute.
• Judicial Separation: A separation of man and wife by the decree of a Court.
• Jurisdiction: The authority of a court to hear and determine a judicial proceeding and the power of a court to render a particular judgment.
• Litigation: Resolving a dispute by using courts and the adversarial process.
• Maintenance: Financial support for a child or a former spouse or partner.’
• Maintenance Enforcement Program (MEP): The government agency that can facilitate the collection of support or maintenance. In order for support payments to go through MEP an order of a court regarding support or maintenance must be registered with them.
• Marriage: A ceremony that facilitates the voluntary union of two persons to the exclusion of all others. It creates the legal status of spouse and the legal obligations that arise from that status.
• Marriage Breakdown: This is the sole ground for legally ending a marriage under the terms of the Divorce Act. Marriage breakdown can be established in three ways:
  • through evidence that one spouse committed adultery;
  • through evidence that one spouse committed physical or mental cruelty; or
  • that the spouses intentionally lived separate and apart for at least one year.
• Marriage Contract: A written agreement between spouses that outlines the parties responsibilities and obligations. Generally a marriage contract deals with the ownership and division of property in the event of a marriage breakdown. In order to be legally binding it must be executed with legal counsel and each party must receive independent legal advice.
• Matrimonial Home: The residence in which the legally married couple resided.
• Mediation: A process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial and neutral third party. The neutral party assists the clients in reaching a mutually agreeable resolution by facilitating the mediation process, promoting respect of the process and ensuring there is effective communication. In the event mediation does not result in an agreement, either party is free to pursue other action, including litigation or another form of alternative dispute resolution.
• Mediation/Arbitration: A hybrid process beginning with mediation which may evolve into arbitration if the parties are unable to reach an agreement through mediation. The parties agree to be bound by the decision of the arbitrator who originally acted as the mediator.
• Mediator: The individual who facilitates a discussion between disputing parties to resolve an issue or issues.
• Mental Cruelty: A course of conduct on the part of one spouse or partner toward the other that endangers the mental and physical health of the other thereby rendering the continuance of the relationship intolerable.
• Minutes of Settlement: A method of settling a case by writing out the agreed-upon terms in the form of a binding contract. Minutes of Settlement can resolve any issue(s) in dispute. In order to be legally binding it must be executed with legal counsel and each party must receive independent legal advice about its contents.
• Mobility: Typically refers to the legal ability of a parent to move with a child to another city, province, or country.
• Motion: A court application that involves one party asking a court for a particular order pending trial. It is also known as a “Notice of Motion”.
• Negotiation: A process in which two or more parties directly, or through counsel, discuss their position, needs and interests in order to resolve a conflict.
• Note in Default: When a defendant fails to file a statement of defense or demand of notice in response to a statement of claim, the plaintiff is able to proceed with his/her lawsuit without further involvement of the defendant. Prior to the plaintiff proceeding in the absence of the defendant, the plaintiff must provide the defendant with a minimum of 15 days to file a reply and must note the defendant in default.
• Notice of Motion: A legal document that sets a court date for specific issue(s) to be heard.
• Notice to Disclose: A legal document that sets out certain financial information that must be exchanged between the parties
• Order: A courts decision on a matter that it was asked to resolve.
• Originating Notice of Motion: A legal document that initiates a lawsuit and sets a court date for the specific issue(s) to be heard.
• Parenting Plan: A written document that establishes how the parents wish to raise their children after separation or divorce. The parenting plan may contain details about schedules, decision-making and any other matter(s) important to the parents.
• Parens Patriae: Refers to: 1) the role of the state to act as guardian to persons under legal disability, such as juveniles; 2) the State acting to protect the interests of a child; or 3) the courts inherent jurisdiction to make decisions regarding children.
• Parties: The individuals involved in a legal dispute.
• Pension: A fixed sum paid regularly to a person or surviving dependant following his or her retirement. There are both public (Canada Pension Plan) and private (from ones own employer) pensions. A pension is property that must be divided upon a marriage breakdown.
• Plaintiff: The individual who initiates a lawsuit against the opposing party by filing a statement of claim.
• Pleadings: The documents that are court-file a in a law suite. They must be prepared in accordance with the Provinces Rules of Court. A statement of claim, statement of defense, demand of notice and counterclaim are all types of pleadings.
• Pre-Nuptial Agreement: A written contract signed by a couple who are intending to marry. It typically provides for ownership and division of property on marriage breakdown. In order to be legally binding it must be executed with legal counsel and each party must receive independent legal advice about its terms.
• Procedure: Technical rules that must be followed to get a case through the civil justice system. They are contained in each Provinces Rules of Court.
• Questioning: A major step in the legal proceedings where lawyers get to ask the opposing client, under oath, questions about anything that touches on a matter that is in issue in the litigation. The process is conducted in the presence of a court reporter and a transcript of all questions and answers is subsequently prepared. Questioning is used to obtain facts and information about the case of the opposing party, ties the opposing party down to a story and single set of facts, and assists the lawyer in preparing for trial.
• Reconciliation: When a separated couple gets back together.
• Residential Care and Control: Refers to the residence where a child lives on a day-to-day basis.
• Respondent: A party in a litigation proceeding who does not initiate the application.
• Restraining Order: An Order that prohibits contact between two individuals and, in some cases, their children.
• Retainer: The contract by which you hire a lawyer to take your case. It can also refer to a retainer fee, which is the sum of money you give to the lawyer up front that is ultimately applied to legal fees and disbursements.
• Section 7 Expenses: Certain special expenses for a child that have to be paid over and above the base amount of child support. Extraordinary expenses are as follows:
  • child care expenses;
  • medical and dental insurance premiums attributable to the child;
  • health-related expenses that exceed insurance reimbursement by at least $100 annually;
  • extraordinary expenses for primary or secondary school education or programs;
  • extraordinary expenses for post-secondary education; and
  • extraordinary expenses for extracurricular activities.

Section 7 expenses are evaluated by taking into account the necessity of the expense in relation to the childs best interests and the reasonableness of the expense in relation to the means of the parents and those of the child and to the familys spending pattern prior to the separation.

• Separate/Separation: To cease living together as a couple. To be separated there must be an intention not to live together again.
• Separate and Apart: When a former couple resides independently of one another. Under certain circumstances it is possible for individuals to live separate and apart in the same residence. The ground for many divorces is that there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding.
• Separation Agreement: A contract signed by the parties to settle their differences. It can deal with property, custody, access, support and any other matter. To be legally binding it must be executed with a witness and both parties must receive independent legal advice about its contents.
• Shared Parenting: When both parents spend a roughly equal amount of time with the children.
• Sine Die: This refers to a court application that is put over without assigning a specific day for a further hearing.
• Solicitor/Client Costs: The actual expenses incurred between a lawyer and his/her client.
• Solicitor/Client Privilege: People in certain relationships are protected by law from having to give any evidence to third parties. Communications between a lawyer and a client have special protection that almost always forbids a lawyer from disclosing communications with a client. It also protects a lawyer from having to testify in court about information exchanged between them.
• Spousal Support: A financial payment from one spouse to the other. It is payable by way of lump sum or periodically.
• Summary Trial: A short court application where there is a final determination of the issues between parties to an action and where all or most of the evidence can be presented to the justice through affidavits.
• Statement of Claim: The legal document that commences legal proceedings against another party. It sets out the relief sought by the party initiating the lawsuit and it gets filed in court and served on the defendant. The individual who files a statement of claim is known as the plaintiff.
  Statement of Claim for Divorce and Division of Matrimonial Property: The formal document by which one person asks a court to dissolve his or her marriage and divide all the property owned by both.
• Statement of Defense: The legal document that gets filed in court whenever the individual being sued disputes all or part of the relief sought in a statement of claim. The individual that files a statement of defense is referred to as the defendant
• Stay of Enforcement: Suspending a portion of the legal proceeding that relates to the carrying out of a command.
• Table Support: The base amount of child support payable pursuant to the Federal Child Support Guidelines.
• Trial: A judicial determination of the issues between the parties to an action. At a minimum, a trial involves opening statements, viva voce evidence and closing arguments.
• Uncontested Divorce: When both spouses agree on the grounds for divorce, childcare and financial arrangements. To obtain an uncontested divorce it is possible to ask a justice to grant a divorce without either party or their respective legal counsel appearing in court. This is also known as a “desk divorce”.
• Variation: If the circumstances that justified making an order in the first place has materially altered an application may be made to a change the order.
• Venue: The particular geographical area in which a court may hear and determine a case. Venue deals with the location of a lawsuit; which court or courts have jurisdiction to hear the specific matter in issue.
• Viva Voce Evidence: This refers to a witness testifying (giving live, oral evidence) as opposed to evidence set out in affidavits or dispositions.

• There are a number of ways we can assist you in resolving your dispute, including:
  1. Negotiation: Essentially this is the process of exchanging settlement offer(s). The negotiation process can be Informal discussions directly between the parties or more formal letters between divorce lawyers. In the event a negotiation is successful, parties still need to enter into a legal contract before the deal will be final and binding. In the event negotiation does not result in an agreement, either party may pursue other options, including litigation or another form of alternative dispute resolution.
  2. Mediation: Mediation is a way to resolve a dispute that involves the assistance of a specially trained neutral third party. The independent party assists the parties through an interest-based process, manages effective communication and helps the parties reach a mutually agreeable resolution. In the event mediation is successful parties enter into a legal contract outlining the terms of their settlement. If mediation does not result in an agreement, either party is free to pursue other action, including litigation or another form of alternative dispute resolution. Mediation can either be lawyer assisted or attended only by the parties to the dispute.
     • What Are The Advantages Of Mediation? There are many advantages to pursuing a resolution through mediation, some of which are as follows:
       • Efficiency – Mediation can be commenced within a relatively short period of time after the development of a dispute. Resolution can be achieved in between one and five meetings or sessions, depending on the number and complexity of the issues.
       • Cost – Mediation can be very cost effective, in comparison to lengthy litigation or arbitration proceedings.
       • Privacy –  The mediation process is confidential and held in private thereby avoiding exposure of the conflict, and any related information through the formalized filings that are required in the public court system.
       • Informality – The setting for mediation is relaxed and informal in comparison to litigation proceedings. The relaxed and informal setting is meant to foster open communication and allow parties to focus on non-confrontational problem solving.
       • Control of the Result –  In mediation there is no final resolution until both parties agree to an outcome. As such, each party has control over the outcome and no third party justice or arbitrator can impose a resolution on you in the mediation process.
       • Creativity of the Result – In litigation or arbitration, the Justice or Arbitrator is required to apply the law and will impose a resolution to a dispute in accordance with the law. Parties in a mediation have the opportunity to create a resolution that does not fit within the confines of the law, thereby opening up potential solutions that would not be possible in a litigation model.
       • Compliance with Requirement to Attend an ADR – all litigants are required by the Alberta Rules of Court to attempt settlement through some form of formal alternate dispute resolution prior to scheduling a trial. A Mediation session satisfies this requirement.

       What Are the Disadvantages of Mediation? Although mediation has its advantages, there are also limitations associated with mediation, including the following:

       • Voluntary – Mediation is a process that requires both parties be committed to using mediation to resolve the dispute that exists. If one party refuses to take part, it is not possible to continue with mediation.
       • Enforcement – Unlike Court Orders and Arbitration Awards, mediated settlements are not automatically enforceable or legally binding. Upon reaching a solution the parties must convert their terms of settlement into a mechanism which can be enforced, such as a Contract or Court Order.
       • Control of the Result – while this is an advantage of mediation, as discussed above, it can also be a disadvantage. Parties can proceed through the mediation process and never achieve a mutually agreeable resolution. That means that the parties must then commence resolution through other means, such as litigation or arbitration, and the cost and time devoted to the mediation sessions would be wasted.
  3. Mediation/Arbitration: Mediation/Arbitration is a process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial, neutral third party. The parties first attempt to resolve their dispute in an amicable manner. In the event they are unable to reach mutually agreeable resolution with the assistance of the neutral third party then there is a hearing conducted and a binding decision is rendered
  4. Arbitration: Arbitration is a binding process in which disputing parties present their case to an independent individual (the “Arbitrator”) who renders a decision on the matters in issue based on the evidence presented. Any dispute, including parenting, can be resolved through arbitration
  5. Settlement Meeting / Four Way Settlement Meeting: This is a meeting that is attended by both parties and their legal counsel, the purpose of which is to discuss issues and reach a mutually agreeable resolution on any given matter or, ideally, on all matters that are outstanding
  6. Collaborative Law: Collaborative law is a process of dispute resolution in which parties to a conflict each retain a trained collaborative law lawyer and sign an agreement committing them to work openly, honestly and cooperatively and to not use the traditional litigation process involving the courts or threaten to do so. Collaborative matters progress through informal conferences during which information is shared freely and issues are mediated or negotiated constructively.
  7. Parenting Coordination: Parenting coordination is a way to resolve child related disputes. A Parenting Coordinator is a mental health professional or a lawyer with specialized training in mediation, parenting coordination, and child development. The parent coordinator facilitates communication and cooperation between parents for the purpose of effectively co-parenting their children. Parenting coordination is intended to provide a fast and cost effective resolution for ongoing parenting disputes where the fundamental agreement as to how major decisions should be reached and whether there is to be roughly equal parenting time with the children has been determined.
  8. Judicial Dispute Resolution (JDR): The purpose of a JDR is to reach a settlement on all issues, or to resolve as many issues as possible, with the assistance of a Justice of the Court of Queens Bench. JDRs are conducted informally in a conference room setting and are fairly similar to mediation. JDRs can be non-binding (similar to mediation) or binding (similar to arbitration).
  9. Litigation: Litigation involves parties taking their dispute to court and have a justice or judge impose a binding decision upon them. Litigation is an adversarial process that is time consuming and expensive. Any matter can be resolved through litigation. Although many interim applications and decisions may occur prior to trial, a resolution through litigation ultimately culminates in the trial of an action, which typically involves the parties to the dispute testifying in open court. Interim decisions can be made in morning chambers or in more lengthy afternoon hearings called Domestic Specials. In the event parties refuse to engage in any form of dispute resolution other than litigation then litigation becomes the only option, as other dispute resolution options are only available in the event both parties agree.

The Divorce Act is a Canada wide statute that deals with custody, access, child support and spousal support. The only ground for divorce in Canada is the breakdown of the marriage. You can establish that ground in three ways:

1. A one year separation. You can resolve all outstanding issues between you in advance of your one year separation but the Court will not process your divorce until you have been separated for a year.
2. Adultery. This can be established through one party swearing a Statement of Adultery, or admitting to the adultery under oath. Failing an admission in this regard, adultery can only be proven at trial, based on a balance of probabilities.
3. Mental or physical cruelty. As with Adultery, this can be established through one party swearing a Statement of Cruelty, or admitting to the cruelty under oath. Failing an admission in this regard, cruelty can only be proven at trial, based on a balance of probabilities.

Canada is a system of no-fault divorce. As such, how you prove the breakdown of the marriage has absolutely no bearing on your rights or obligations under the Divorce Act or the Matrimonial Property Act.

There is a residency requirement in the Divorce Act such that you or your spouse must have been ordinarily resident in Alberta for at least one year immediately preceding the filing of the Statement of Claim for Divorce. To commence a divorce action we must file a Statement of Claim for Divorce. You can also make a claim for a distribution of matrimonial property in the same Statement of Claim.

Divorce, Custody, Parenting, Child Support and Spousal Support

Jurisdiction

The Divorce Act is a Canada wide statute that deals with custody, access, child support and spousal support. The only ground for divorce in Canada is the breakdown of the marriage. You can establish that ground in three ways:

1. A one year separation. You can resolve all outstanding issues between you in advance of your one year separation but the Court will not process your divorce until you have been separated for a year.
2. Adultery. This can be established through one party swearing a Statement of Adultery, or admitting to the adultery under oath. Failing an admission in this regard, adultery can only be proven at trial, based on a balance of probabilities.
3. Mental or physical cruelty. As with Adultery, this can be established through one party swearing a Statement of Cruelty, or admitting to the cruelty under oath. Failing an admission in this regard, cruelty can only be proven at trial, based on a balance of probabilities.
   Canada is a system of no-fault divorce. As such, how you prove the breakdown of the marriage has absolutely no bearing on your rights or obligations under the Divorce Act or the Matrimonial Property Act.

There is a residency requirement in the Divorce Act such that you or your spouse must have been ordinarily resident in Alberta for at least one year immediately preceding the filing of the Statement of Claim for Divorce. To commence a divorce action we must file a Statement of Claim for Divorce. You can also make a claim for a distribution of matrimonial property in the same Statement of Claim.

Custody

The Divorce Act contains provisions with respect to custody and access to dependent children. Legally, custody means decision-making power. It does not indicate what amount of time a child or children are with either parent. Major decisions include things such as religion, non-emergency health care matters, what educational system a child should be enrolled in, what school a child should attend and what extra-curricular activities a child should be involved in.

There are two types of legal custody, sole custody and joint custody. The test a court will apply in determining who should have custody and what the access should be in the best interests of the child.

In a sole custody situation one parent has the right to make decisions with respect to the children. If the other parent disputes a decision that is made, the only recourse that parent would have is to ask the Court to alter the decision. The Court would then make a determination based on what is in the best interests of the Children. In a joint custody arrangement, the parents will consult with one another and make joint decisions regarding the health, education and general welfare of the children. There is a strong presumption in favour of joint custody.

Parenting

Parenting involves what amount of time a child spends with each parent and when a child spends time with each parent. All matters of parenting are determined based on what is considered to be in the best interests of the child/children. However, provided that both parents are in agreement regarding the parenting plan for their child/children, a Court will not question it and will defer to the parents view on this matter.

Parenting schedules can be anything that both parties agree is in the best interests of the child/children. Typically, however, parenting plans fall into one of two general categories: a residential care and control/access regime or a shared parenting regime. Residential care and control/access is when the children are primarily with one parent and the other parent exercises access to them, either on a reasonable basis or at specified times. Shared parenting is when each parent spends roughly equal time with the children.

Child Support

The Divorce Act provides for the payment of child support. In May of 1997 the Federal Government adopted Child Support Guidelines. Any order or agreement for child support made after May 1, 1997 is subject to those guidelines. Child support is not tax deductible by the payor nor is it taxable in the hands of the recipient.

There are two components to the child support calculations, which together are referred to as the “guideline amount” which is the amount of child support to be paid. They are as follows:

1. Table Amount: This amount is determined is determined by establishing the payors income and the number of children. You then refer to the table for the province in which the payor lives;
2. Extraordinary Expenses: Section 7 of the Child Support Guidelines provides that in addition to the table amount, the court may apportion between the spouses, according to their incomes, certain expenses. Section 7 expenses are shared between the parents proportionately based on their incomes. Section 7 expenses are:
   • Child care expenses incurred for retraining or employment;
   • Health insurance premiums attributable to the child/children;
   • Health care costs that are not covered by insurance that exceed $100 per illness per year;
   • Extraordinary extracurricular activity expenses (does the child have an extraordinary ability, is the expense extraordinary for this family, etc.;
   • Extraordinary educational expenses (private school tuition, tutoring, etc.);
   • Post-secondary educational costs, having regard to the parents means and needs and the childs ability to contribute.

Exceptions

There are certain circumstances where the court can deviate from the Guideline amount:

• where a child is over the age of majority, if the court does not think the Guideline amount is appropriate, then the court can look at the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child, and award an amount it thinks appropriate;
• where there is a shared custody situation (i.e. a parent has access to the child 40%of the time or more). In a shared parenting regime, child support is within the discretion of the Court and could be anything from the full table amount payable as though there were no shared parenting to something called the set-off method. The set-off method involves a determination of how much support would be payable by dad if the child/children were with mom full-time and how much support would be payable by mom if the child/children were with dad full-time with the higher income earner then paying the lower income earner the difference between the two amounts.
• where there is split custody (i.e. each parent has one child) then the amount of support will be the net difference between the amount that each spouse would have to pay if a child support order was sought against each of the spouses;
• where the Guideline amount would cause undue hardship and the household claiming the undue hardship would have a lower standard of living than the other household if the amount were paid;
• where the spouse is not the natural parent and has stood in the place of a parent;
• where other arrangements have been made for support and even though the amount is different than the Guideline amount the court considers it reasonable.

Income

When determining what the payors income is the court can look at all sources of income and impute income in certain circumstances. If the payor has a corporation or is self-employed the court has powers to look beyond the income actually reported on the tax return.

Spousal Support

Section 15.2(4) of the Divorce Act sets out the factors to be taken into consideration in making an award of spousal support. The Court will consider the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.

Section 15.2(6) sets out the objectives of a spousal support order. If a Court is awarding spousal support they will ensure the support recognizes any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, apportions between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage, relieve any economic hardship of the spouses arising from the breakdown of the marriage, and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The Divorce Act allows for spousal support to be varied, if there is a substantial change in circumstances. There are many circumstances which are considered sufficient enough to vary spousal support. One of which would be if he had a drastic change in income as a result of illness or retirement etcetera. Some people like to put in a clause that they will not vary the spousal support for a period of time and then it can be reviewed. If you have a review, you don’t have to show a substantial change in circumstances.

There are two hurdles to jump in order to obtain spousal support. The first is entitlement and the second is quantum and duration. Entitlement is based either on need or on compensation, or both. Need refers to the ability to maintain a standard of living similar to that which was enjoyed during the marriage. Compensation refers to one party suffering a financial detriment as a result of the marriage or its breakdown. This would occur in a situation such as where one party was a stay at home mother and homemaker, only worked part-time or the family moved in order to further one partys career to the detriment of the others.

If you are entitled to spousal support, quantum and duration deals with how much support gets paid for how long. This is a very difficult matter for me to advise on, as it is completely within the discretion of the Court. The factors to be taken into account include the length of the marriage, the age of the parties, the health of the parties, the roles the parties took during the marriage, the incomes of the parties, what moves occurred during the marriage, etc.

Spousal support can be paid by lump sum or periodically or a combination of both. Lump sum support is tax free whereas periodic support is tax deductable to the payor and taxable in the hands of the recipient.

Spousal Support Advisory Guidelines

In February of 2005 Draft Spousal Support Guidelines were published. They are advisory only and, as such, are not always followed, or even taken into consideration, by a court or arbitrator. They do not deal with entitlement but they do propose a formula to deal with the matters of quantum and duration and they give a range for both for both, which is based on income, children and the duration of the relationship. With respect to quantum the formula looks at the pre-tax income of both parties, and gives the receiving spouse a percentage of the difference in the pre-tax income of the parties. The percentage is determined by multiplying the years of marriage by either 1.5% or 2% to get a high and low range.

In terms of duration (how long support will be payable) the formula multiplies the year of marriage by .5% or 1% to create a range. If the age of the recipient and the years of marriage added together equal 65 or more there is no limit on duration.

In Alberta, property is primarily governed under the Family Property Act, RSA 2000, c F-4.7, which came into effect on January 1, 2020 and replaced Alberta’s former property legislation, being the Matrimonial Property Act. This Act applies equally to married couples and adult interdependent partners, which is a significant change from the Matrimonial Property Act as that Act applied only to married partners. If you separated prior to January 1, 2020, it is possible that the Matrimonial Property Act is the legislation that applies to you and therefore it is important to speak with a lawyer to obtain advice and understanding as to which Act governs property in the specific instance of your separation. A full copy of both the Family Property Act and the Matrimonial Property Act legislation can be found at www.canlii.org.

The Family Property Act is Provincial legislation that applies to both married parties and adult interdependent partners, and the division of property in Alberta can be dealt with differently than in other provinces and jurisdictions. Accordingly, you should take care when receiving advice from friends and relatives, especially from other Provinces, in this regard.

The distribution of property is primarily dealt with in Section 7 and Section 8 of the Family Property Act. Generally, the Court takes into consideration three types of property: Family property, exempt property, and growth on exempt property. However, the general approach to Family property is that it is split equally between the parties, subject to a consideration of exempt property and subject to a claim for an unequal division of family property, which one of our family lawyers would be happy to discuss with you.

There are exceptions to the general approach that everything is to be divided equally. Those exceptions are called exemptions under the Family Property Act and they are as follows:

• property acquired by a spouse or adult interdependent partner by gift from a third party;
• property acquired by a spouse or adult interdependent partner by inheritance;
• property acquired by a spouse or adult interdependent partner before the marriage;
• an award or settlement for damages in tort in favour of a spouse or adult interdependent partner, unless the award of settlement is compensation for a loss to both spouses; or
• 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 or adult interdependent partners.

The general approach is that the spouse or adult interdependent partner in whose name they are registered retains assets that are exempt. Prior to the division of family property we remove them from the pool of assets, and then divide the remaining matrimonial property.

The increase in value of exempt property that occurs during the marriage or common law relationship is another type of property under the Family Property Act. This type of property is divisible as is just and equitable, which means there is a great deal of discretion as to the exact division. Generally, the more the spouse or adult interdependent partner was involved with the exempt property the more the spouse will share in its increase in value.

The law of exemptions is complex and the ability to trace exempt property to currently existing assets and whether exemptions touch joint names are important considerations that effect a party’s ability to successfully avoid the equal division of this type of property.

Following is a timeline of steps in a Divorce / Matrimonial Property Action, broken down by length of time after commencement. You can download a PDF of this timeline here.

1 Month

• Initial consultation and instructions
• Conduct research / fact investigation
• Preliminary assessment of case
  • Risk
  • Cost
  • Result
• Instructions for preparation of pleadings

2 Months

• Preparation of pleadings
  • Draft Initial Statement of Claim for Divorce
  • Prepare and exchange Notice to Disclose (Settlement?)
  • File with clerk of the court and serve the other party
  • Draft and answer, Statement of Defence and counterclaim
  • File with clerk of the court and serve opposing counsel
  • Receive answer, Statement of Defence to counterclaim

4 Months

• Respond to Notice to Disclose received from opposing counsel
• Explore settlement
  • Issue settlement offer
  • Settlement meeting
  • Mediation

8 Months

• Questioning
• UT response
• Questions on UT
• Prepare and exchange notices to produce
• Review documents and prepare affidavit of documents
• Exchange affidavit of documents and inspect opposing party’s documents

10 Months

• Review/assess case, further research, fact investigation as required (Settlement?)

13 Months

• Further Examination for Discovery, if required.

15 Months

• Receive and review transcripts
• In depth file review, case assessments, determination to proceed to trial
• Comply with rule 218.1 (expert report) (Settlement?)

16 to 17 Months

• Set down for trial, file Certificate of Readiness & Pleadings

18 to 24 Months

• Prepare for trial, evidence to be presented, witnesses, final research and fact investigation
• Brief client and witnesses
• Trial (up to 3 days)

16 to 36 Months

• Trial (longer than 3 days)
• Judgement
• Prepare and file formal judgment

25 to 37 Months

• Serve judgment on opposing lawyer

Download a summary guide here.

If you have not been able to negotiate a settlement with your spouse or if negotiation is not possible, we may recommend starting a lawsuit.

The timing of a lawsuit is difficult to predict. It depends on many things, including actions your spouse takes, court schedules, and decisions you make. A lawsuit can take up to two years or longer to settle or go to Trial.

However, most lawsuits go through the same basic steps, although not always in the same order. Some lawsuits skip some steps and some steps are repeated many times over.

The steps listed here are the main steps that occur in a lawsuit. They will give you a general idea of what to expect.

GATHERING THE FACTS 

With your help, we gather all the available facts concerning the claim, including interviewing and taking statements from witnesses. We sometimes hire experts to help us so this step can be expensive as you have to pay fees for those experts.

Starting the Lawsuit: We begin the lawsuit by preparing the necessary court documents and filing them in court. This means the court date stamps all copies of the documents, keeping one copy for their official record (which information is available to the public). We then deliver filed copies to your spouse personally or his or her lawyer if she or he has one. These steps also involve expenses such as court filing fees and serving fees.

Interim Applications: After we start a lawsuit, but before trial, we or your spouses lawyers sometimes need to ask the court to decide certain things such as support or possession of the matrimonial home. Going to court to ask for such an order is described as bringing an interim application. For example, we might ask the Court to order interim child and spousal support to be paid until all the issues can be finally resolved.

Referral to Mediation: At any point in this process we may suggest you and your spouse attempt mediation to resolve some or all of the outstanding issues. Mediation is a way for you and your spouse to discuss the issues together with the assistance of a neutral mediator in a face to face meeting moderated by the mediator. The mediator then helps you clarify the issues and negotiate so as to reach a mutually acceptable agreement

Custody/Access Assessments: When separating parents have tried and failed to reach an agreement on the care of their children, they may choose to proceed to court. In some cases, the Justice/Judge may order a psychological assessment of the parents and the children. An assessment is a process where a psychologist spends time with you, your spouse and your children in order to write a report which will help the Justice/Judge make a decision that is in the best interests of the children. The assessment helps determine the best possible plan for the care of the children. The assessor will usually also meet with you and your spouse and spend some time with each of you with the children present. The assessor will often want to interview family, teachers, daycare workers, etc. The assessor writes a report and submits it to the court. The assessor will give copies of the report to each of your lawyers. At this point, you may choose to resolve the matter by agreement using the report as a guideline. If the case goes to Trial, either party may submit the report to the court as evidence. While this report is an important part of all of the evidence that the court will consider in a trial, it is not decisive. The final decision rests with the Justice/Judge who will hear from each of you and each of your witnesses.

Questioning: After gathering the facts, either we or your spouses lawyer arrange Questioning. At Questioning we question your spouse under oath about the issues. We also ask your spouse to show us what relevant documents he or she has, and to tell us about all relevant documents he or she has ever owned or had access to. In return, your spouses lawyer also questions you about these issues. We give your spouses lawyer copies of the documents we have that relate to the lawsuit, and you describe all relevant documents you once had or had access to.

Review of the Law: Once we have all the facts and an understanding of the circumstances, we review the law. We then give you our legal opinion as to the likely outcome of a trial should you proceed. We also provide you with our recommendations as to how you should proceed – to a trial or make a renewed effort to settle the issues.

Negotiation and Settlement: When it is appropriate and after discussions with you, we may talk with your spouses lawyer to see if they will settle the issues. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If the claim is settled, it does not go to trial. Settlement discussions can be held at any stage of the process.

Preparation for Trial: We prepare the case for Trial, including getting all the necessary documents together, arranging for witnesses to attend and preparing any legal opinions.

Pre-Trials: Before a case goes to trial the court will require at least one pre-trial hearing before a Justice/Judge to determine if any of the issues can be settled and whether the case is fully ready for trial. You will not be required to attend with your lawyer at this hearing. The pre-trial conference generally takes about thirty minutes.

Trial: We act for you at the trial and present your case to the Justice/Judge. Your spouses lawyer also has the opportunity to present his or her case. Witnesses, including expert witnesses, may be called to support both parties positions. Once the Justice/Judge has heard all of the evidence he or she will come to a decision. This could take days or weeks after the trial. Once we have the Justice/Judges decision we prepare the Court Order (Judgment) for the Justice/Judge to sign, or approve how the lawyers writes up the Judgment, to make sure that it is correct.

Completing the Claim: We do all the work necessary to complete the claim. This includes delivery any money to you from a settlement or judgment, after we have deducted our fees and expenses. However, it does not include starting new steps as enforcing or appealing a court judgment. To enforce a judgment means to start proceedings to force your spouse to actually pay what he or she has been ordered to pay. To appeal a judgment means to start work to get a higher Court to change the original Courts judgment.

Download a summary guide of Steps in a Lawsuit here.

1. Retain Legal Counsel
   • Evaluate options for resolving your dispute
   • Learn about your rights and obligations
   • Gather basic financial disclosure
2. Disclosure Exchange: Basic financial information pursuant to a Notice to Disclose
3. Interim Applications
   • To deal with emergent matters such as parenting, support, exclusive use and possession of the matrimonial home, patrician and sale, etc.
   • Parties must attend a Dispute Resolution Officer (“DRO”) Appointment, a one hour meeting intended to settle a child support issue(s) prior to attending court on a child support application
   • Parents must attend one of the Parenting After Separation (“PAS”) courses prior to attending court in respect of a parenting matter
   • Morning chambers for very simple matters or to deal with emergencies
   • Afternoon hearings called Domestic Specials for more involved matters
   • May involve Questioning on Affidavit(s)
4. Questioning for Trial
5. Undertaking Responses
6. Questioning on Undertaking Responses
7. Trial
   • Opening statements
   • Witness testimony: for each witness: examination-in-chief, cross-examination, redirect, closing arguments, recess while the Justice deliberates (this can be weeks or months long), and lastly a judgment is rendered
8. Costs Application

Disclosure is the basic financial information and documentation that is typically exchanged at the beginning of any family law file. Generally the information that is exchanged is what is required pursuant to a legal document called a Notice to Disclose. That document requires the production and exchange of the following information:

1. A copy of every personal income tax return you have filed for each of the 3 most recent taxation years.
2. A copy of every notice of assessment and reassessment issued to you for each of the 3 most recent taxation years, or a copy of the Canada revenue Agency printout of your last 3 years income tax returns.
3. If you are an employee, a copy of each of your 3 most recent statements of earnings indicating your total earnings paid in the year to date, including overtime, or where such a statement is not provided by your employer, a letter from your employer setting out that information, including your rate of annual salary or remuneration.
4. If you receive income from employment insurance, social assistance, a pension, workers compensation, disability payments, dividends or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.
5. If you are a student, a statement indicating the total amount of student funding you have received during the current academic year, including loans, grants, bursaries, scholarships and living allowances.
6. If you are self-employed:
   • Particulars or copies of every cheque issued to you during the last 6 weeks from any business or corporation in which you have an interest, or to which you have rendered a service;
   • The financial statements of your business or professional practice for the 3 most recent taxation years; and
   • A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to yourself, or to persons or corporations with whom you do not deal at arms length, for the 3 most recent taxation years.
7. If you are a partner in a partnership, confirmation of your income and draw from, and capital in, the partnership for its 3 most recent taxation years.
8. If you have a 1% or more interest in a privately held corporation:
   • The financial statements of the corporation and its subsidiaries for its 3 most recent taxation years; and
   • A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to yourself, or to persons or corporations with whom the corporation, and every related corporation, does not deal at arms length for the corporations 3 most recent taxation years.
9. A detailed list of any special or extraordinary expenses claimed (where child support is an issue) as well as copies of receipts or other documentation providing the amount of those expenses, namely:
   • Child care costs;
   • Health care and extended medical and dental insurance premiums attributable to the child;
   • Uninsured health care and dental expenses;
   • Extraordinary educational expenses;
   • Post secondary educational expenses; and
   • Extraordinary extracurricular expenses.There is no set definition for what constitutes extraordinary but essentially it will be a cost that is either very expensive, such as hockey, equestrian riding, ski racing, competitive dance, private school fees, etc., or is extraordinary for a particular family as a result of the parents incomes. Where regular dance classes may not constitute an extraordinary expense in the event-based child support is quite high it may be an extraordinary expense for a family of more moderate incomes where base child support is not particularly high.When there is a situation of shared parenting the court has discretion as to how to deal with base child support and has the ability to award what the justice believes is fair and reasonable on a case-by-case basis. Most typically this is anything from the set off method of child support to something more than the set off method, depending on how extra expenses are shared. In this regard, extra expenses are not limited to Section 7 expenses but include all extra costs for a child, such as sporting equipment, winter gear, regular school fees, etc. Essentially, these are things that are used at both homes. The idea is that the set off method may not be appropriate in a circumstance where one party is bearing the burden of all of those extra costs. The set off method of child support is where we determine what each parent would owe the other if the other had primary care of the child and the higher income earner the difference between the two base child support figures.
10. If you are a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trusts 3 most recent financial statements.
11. Copies of all bank account statements and cancelled cheques solely or jointly in your name for the past 6 months.
12. Copies of credit card statements for all credit cards solely or jointly in your name for the past 6 months.
13. Your monthly budget of expenses (where spousal or adult interdependent partner support is an issue).
14. A drafted itemized list of your income, assets and liabilities
15. Copies of the most recent statement for all RRSPs, pensions, term deposit certificates, guaranteed investment certificates, stock accounts and other investments in your name or in which you have an interest.
16. A list of any exemptions claimed (where the action involves the division of matrimonial property). We can advise that the following property may be exempt under the Matrimonial Property Act: 1)
    • Property owned at the date of marriage;
    • Property acquired by way of gift from a third party;
    • Property acquired through inheritance;
    • Property acquired from insurance proceeds, not in respect of property insurance though;
    • Property acquired from court proceeds, i.e. suing someone civilly and obtaining a judgment.

In order to claim an exemption, the exemption must be traceable to property that currently exists today. In other words, if you received an inheritance of $10,000 and spent that money paying off credit card debt or on living expenses and a trip, it is gone and there is no property currently existing in which to claim an exemption. However, in the event you owned RRSPs at the date of marriage and you still hold those RRSPs today, you can claim an exemption. As part of a disclosure response I need to identify what property you are claiming an exemption in and the basis of your exemption claim. Please let me know if you have any exemption claims, what property they relate to, the amount of the exemption claimed and which of the five categories above forms the basis of your claim.

You can save legal fees by having the aforementioned information clearly organized according to the corresponding numbering outlined here. 

Your spouse will also produce the same basic financial information and you will receive a copy of that disclosure from your divorce lawyer. You should review the disclosure and advise your lawyer of any questions or concerns you have about it. Your divorce lawyer will also review the package but you will have a better idea than your lawyer about what constitutes usual spending, etc. and your input is valuable.

Alberta Justice Services offers a course called Parenting After Separation. The course is mandatory and must be taken within 3 months of filing a court claim that involves children. The PAS course is a six hour seminar if you attend in person or approximately three hours if you choose to take it online. Once you have completed the course, you will be provided with a Certificate of Completion that must be filed in court. If you wish to attend the PAS seminar in person, you will need to contact Andrea LaRochelle at 403-818-9942 . If you wish to complete the PAS course online, please visit www.pas.albertacourts.ab.ca. You will need to register to access the course, thereafter you will automatically be logged in after creating your account to begin the PAS online course.

Parenting plans meaningful and comprehensive procedures for the parenting of children. They take into account the age and developmental needs of the children as well as the circumstances of both parents. Many families benefit from having a detailed parenting arrangement that specifies parenting matters such as the following:

• how parents will make decisions regarding the children;
• the days and times each parent is responsible for the children on a day to day and week to week basis to provide stability and consistency for the children;
• how children will share important holidays and special events with both parents;
• how arrangements are made to allow children the opportunity to spend quality extended vacation time with each parent;
• how educational, health and other information about the children will be shared between parents;
• how both parents can support and participate in the childrens extra curricular activities and special events;
• when each parent should be given the opportunity to care for the children during the others regular time with them in the event the other parent is unable to personally care for the children (often referred to as the “right of first refusal);
• what standard schedule, expectations or rules should be in place for the children in both parents homes;
• what information should be shared between the parents and how that information should be shared;
• how and when new partners should be introduced to the children; and
• how parents can share their religious values with the children.

Changes to the parenting plan and the parenting schedule can always be made with the agreement of both parents but parenting plans establish the fall back rules that will be adhered to by both parents. Detailed parenting plans can be invaluable in creating stability and consistency for children in both parties homes and for preventing conflict between the parties.

We have extensive training and experience in developing parenting plans and can help you create something that works for you and your family. We can offer a variety of options for you to consider when developing your parenting plan that will allow you and your ex to avoid disputes and your children to thrive.

Questioning is a process in which the opposing lawyer can ask you questions under oath with a court reporter present. There are two types of Questioning:  Questioning on an Affidavit and Trial Preparation Questioning. Your lawyer will explain the purpose of the different types of Questioning. Regardless of the type of Questioning, it will occur in a boardroom setting with you, your lawyer, the opposing lawyer and, typically, your estranged partner.

Before Questioning begins, the Court Reporter will ask you to take an oath on the bible to tell the truth throughout your Questioning. If you object to taking an oath on the Bible you may be affirmed instead. The Questioning will then start with the opposing lawyer asking you one question at a time and you answering each questions, unless your lawyer objects to a question. The court reporter will type out the questions and answers ultimately a transcript will be created.

You should receive tips on how to prepare for Questioning and a list of recommendations / rules for how to conduct yourself in Questioning from your divorce lawyer. It can also be very beneficial to meet with your lawyer in advance of Questioning to review what questions will likely be asked and to practice a few lines of questioning and their answers so that you can have confidence in your ability to respond effectively, have a solid understanding of what to expect, get specific tips and feedback and gain confidence about the process and your abilities.

Support is based on Guideline Income. If you are an employee whose only income is the income they generate from working, your guideline income is easy to determine. It will be line 150 of your income tax return. If you (or your spouse) are self-employed your guideline income is not as easy to calculate because our income needs to be converted into what you would earn if you were an employee. People that are self-employed are able to take advantage of certain write-offs that are perfectly legitimate from a CRA perspective but that are not legitimate deductions for the purpose of determining support.

Guideline income is the income available on which to pay support and where there is a personal benefit associated with a business expense that expense could be added back to calculate guideline income. For example, if a contractor has one cell phone and one vehicle that are used for both personal and business use, the portion of those expenses that are related to personal use will be taken into account in the determination of that contractors income. Guideline income determination is not only necessary for the self-employed but also for people that have non-taxable income, living allowances, income from capital gains, etc.. Whenever you or your spouse is not simply generating income as a salaried employee, a guideline income analysis is a necessary consideration in the determination of support.

The lawyers at Jones Divorce Law LLP study case law, take continuing education courses and work with financial experts regarding the determination of guideline income. We can help you ensure that the support you are paying or receiving is appropriate and in keeping with the law even when you or your spouse is self-employed.

When one partys income is lower than it should be it is possible to have income imputed to them. A court can attribute a certain level of income to a party even in the event they are not actually earning that level of income and support can be based on that imputed income. For example, if a parent is only earning $50,000 but should be earning $90,000 a justice or arbitrator can order that parent to pay support as though they were earning $90,000. That is called imputing income. Imputing income is an interesting but specialized area of the law.

It is difficult to have income imputed because the legal test is that a party must be intentionally unemployed or underemployed for the purpose of evading child support. That is a difficult test to meet but not impossible. Let us help you make the argument if the circumstances permit or defend against a claim that is being made against you. We study the trends in the law and know the factors to consider and arguments to make.