FAQ

Mediation is a process of dispute resolution in which parties to a conflict agree to work with an impartial and neutral third party (the mediator). The neutral party assists the clients in reaching a mutually agreeable resolution by coaching parties on the essential tools for a successful mediation, guiding them through the mediation process, providing general information, and facilitating a meaningful discussion and analysis of the issues.

1. Customized Solution – The ability to be creative and work together to come up with a mutually agreeable solution is one of the most significant advantages of mediation. Parties are able to think outside the box and not confined to solutions which would otherwise be imposed by a judge.
2. Control – In a mediation the decision making rests with the parties. The parties retain the final say over the terms of their agreement, so there is no agreement without each party saying “yes” to its terms.
3. Expedient – A solution achieved through mediation is efficient. Generally, a mediated settlement is reached within seven settlement meetings, or between three weeks and three months, as opposed to the months and even years that traditional litigation takes to complete. Achieving a solution in a timely manner reduces conflict, stress, anxiety and expenses.
4. Affordable
   • Mediation is far less time consuming than litigation. Traditional court channels typically take months and even years to navigate, whereas mediation is generally completed within seven sessions. When legal fees are based on the amount of time spent on a file, it is not terribly surprising that litigation becomes incredibly expensive.
   • Mediation allows parties the opportunity to employ one professional who is dedicated to helping the parties reach a harmonious resolution instead of each party paying for their own professionals.
   • Lawyers charge for the back and forth correspondence between them, for financial disclosure to be exchanged, numerous pleadings to be prepared and filed, and court appearances where they often spend time waiting in court before a matter is heard, in which case they are being paid to simply sit there Side stepping traditional litigation and instead using mediation contributes to reduced expenses because lawyers are largely removed from the equation.
   • Parties are much more likely to abide by the terms of a resolution they have helped to create than they are to a resolution imposed on them by a judge. The result is that expenses are reduced because lawyers do not typically need to be employed to enforce the terms of mediated solutions, despite mediated agreements being fully enforceable by the court.
5. Personal Attention – Mediation sessions allow parties to speak and be heard. Parties work with the mediator to generate and evaluate resolution options, seeking to achieve an outcome that meets both parties needs and goals.
6. Confidentiality – Mediation sessions are private, as are the communications, documentation and notes made in the course of mediation. Litigation involves public court appearances and documentation and evidence are a matter of public record, accessible by anyone.
7. Flexibility – Mediators can agree to go as quickly or as slowly as both parties wish, depending on your needs. Mediators will work around your work and personal schedules. Litigation and court appearances are not nearly as flexible.
8. Promotes Amicability – Mediation involves parties gaining an increased understanding of each other, learning and practicing skills to improve communication and diminish conflict. This promotes the preservation of the relationship, which can be invaluable to parties who will be co-parenting for years to come. In stark contrast, litigation is, by its very nature, adversarial. Parties often resort to giving evidence outlining the opposing parties negative characteristics and damaging history in order to win. The general by-product of traditional litigation is to create an environment which divides and polarizes parties and which fosters continued conflict.
9. Protects Children from Conflict – One of the greatest indicators of how well children will be able to cope with separation is the extent to which they are exposed to conflict between their parents. The increased animosity resulting from traditional litigation is difficult to hide from children and therefore increases the risk of long lasting harm to the children. In contrast, by promoting effective communication, cooperation and understanding through mediation, parties are better able to reduce the conflict between them and learn to effectively co-parent into the future for the benefit of their children.
10. Experience – With Alternative Divorce Solutions you can be confident that you are in good hands. The professional who you will be working with has a law degree, additional training in conflict resolution, mediation and/or arbitration and has many years of experience practicing law exclusively in the areas of family and divorce law. As a result, clients can feel confident in the information being provided, allowing them to make informed, well educated decisions and achieve the best solution for themselves and their family.
11. Consistency – In mediation, parties use the same professional through the entire process. As a result, following the initial sessions, the mediator is personally familiar with the parties, their family circumstances, the details of their property, personal dynamics, specific challenges, etc.. During traditional litigation, parties generally attend court multiple times and before a variety of Justices, each of whom have varying perspectives and approaches. Many interim applications involve Justices making decisions based on an incomplete knowledge and understanding of the family circumstances due to the limited time litigants are permitted to present their case. The result is that court decisions may lack consistency.
12. Compliance – Mediated solutions result in high compliance by the parties because the resolution was arrived at jointly and is mutually agreeable. Quite simply, parties are more likely to abide by a harmonious agreement than a decision that is imposed upon them in a litigation setting. Similarly, parties are less likely to seek to change a settlement they personally developed. Additionally, in the event disputes arise in the future, parties are more likely to resolve matters by agreement and can return to their mediator for future assistance if required.
13. Support – Parties are supported and encouraged to “think outside the box” to find a unique and customized solution which addresses their interests, meets their needs and accomplishes their goals. Through the support and assistance of the mediator, parties can gain valuable communication skills, an appreciation of where the other party is coming from and a better understanding of their personal and family dynamics. These skills and insights assist parties to maintain and improve their relationship into the future.
14. Mutual – A mediated resolution is not achieved until both parties are able to say “yes” to a resolution. Neither party, nor the mediator, can impose a decision on either party. The result is mutually agreeable solution which has the added benefit of preserving a working relationship between the parties.

Mediation is a process that promotes effective communication, creative solutions and the resolution of conflict in a mutually agreeable manner. The way that issues get resolved can have a tremendous effect on a familys adjustment to separation.

All disputes can be resolved through mediation. Whether it is decision making, parenting time, the division of assets and debts or how income should be shared or any other number of issues mediation can lead to the best possible outcome.

Mediation is geared toward couples that are committed to working toward a solution to their dispute. Parties do not have to feel friendly to one another. In fact, it is very common for there to be feelings of anger, mistrust and trepidation about the other party.

Mediation requires both parties to be involved in the process. A mediated resolution can only be achieved through the participation of both parties to a dispute so both people need to be willing to work with the mediator to achieve a solution.

In order for mediation to be effective both parties need to be able to express themselves. As a result, mediation is not always the best options for situations where there is a history of domestic violence, mental illness or severe drug or alcohol abuse. However, it is sometimes possible to have a successful mediation even with those challenges because parties can meet with the meditator separately or they can have their lawyers attend mediation with them.

Since mediation is a cooperative process where everybody is attacking the problem and not each other, it builds communication skills that can be used in future planning and parenting. Mediation also promotes understanding which can lead to the foundation of a more cooperative relationship after divorce.

The Parties: As a party to the mediation your role is to be:

• Open and honest
• To abide by the ground rules established by the mediator so that you communicate effectively
• Listen to understand the other partys point of view (which does not involve agreeing with that perspective
• Speak up and be an active participant
• Focus on your interests, needs, wants, concerns and fears instead of any one position on an issue.

The Lawyers (if any): Parties may choose to attend mediation with or without legal counsel. A lawyers role in mediation is unique. A lawyer attends mediation in order to :

• Provide support to his/her client
• Answer any questions that the client may have throughout the process
• Provide their opinion on legal matters that arise during the process and provide the client with legal advice as may be required.

Unlike a litigation process, however, a lawyer does not attend mediation to advocate for their client.

The Mediator The mediators role is to:

• Educate the parties about the mediation process
• Create an atmosphere conducive to open, honest communication
• Maintain the integrity of the process by carefully monitoring the pace and content of discussions
• Provide legal information, as required
• Assist the parties in identifying common concerns, understand each parties interest and needs
• Aid in the generation of options
• Assist with the evaluation of chosen options and with the negotiation of a final solution
• Deal with power imbalances should they arise
• Draft a mediation report upon a resolution being reached

The mediator will not provide either party with legal advice but can provide some legal information. Each party is encouraged to consult legal counsel and receive legal advice at any point prior to or during mediation. In fact, in order to make a mediated agreement binding, a legal contract will need to be drafted and each party will need to sign off on that contract with independent legal counsel. An arbitrator also will not provide legal advice to either party but can provide some legal information. Each party is encouraged to retain legal counsel and obtain legal advice prior to arbitration.

An agreement reached through mediation is not final and binding until the parties execute a legal contract with independent legal counsel. However, in the event the parties reach an agreement in the mediation phase of a mediation/arbitration the mediator/arbitrator can issue a consent arbitration award, which is legally binding. An arbitration award rendered in an arbitration process is legally binding on both parties pursuant to the Arbitration Act.

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 through mediation.  In the event they are unable to reach a mutually acceptable resolution in mediation, an arbitration hearing is conducted and the parties are bound by the decision of the neutral third party

The length of mediation / arbitration varies depending on the number and complexity of the issues in dispute as well as the level of animosity between the parties. A mediation typically lasts between one and seven joint sessions. The length of an arbitration also varies based on the same factors but typically an arbitration lasts between one and ten days. An arbitration award (the binding decision rendered by the arbitrator) is rendered within approximately one month of the conclusion of the arbitration hearing. As such, a mediation / arbitration can be concluded anywhere from one week to a few months, a tiny fraction of the duration of a litigated dispute, which generally takes well over a year.

Mediation / Arbitration offers a solution which is really the best of both worlds. While the goal is to reach a harmonious agreement in mediation, should that not be possible, an immediate end to the dispute will be provided through arbitration. As such, mediation / arbitration combines the advantages of both mediation and arbitration. Parties start in mediation, where they have the advantage of reaching a creative, customized solution where they remain in control of the result. However, in the event they are unable to achieve a mutually agreeable resolution on some or all of the issues, they have the advantage of being assured of a timely and cost effective resolution determined by professionals who have the extensive legal training and experience in family and divorce law to resolve their matter appropriately.  Additionally, the entire mediation / arbitration process is confidential, flexible and offers consistency and personal attention.

Mediation / Arbitration is likely the most cost effective option available because the arbitration phase essentially acts as insurance for a timely resolution without the risk of the excessive costs, prolonged conflict and emotional turmoil associated with litigation.

Yes. During the mediation phase of a mediation / arbitration divorce lawyers can offer support and legal information to clients and can assist with generating and evaluating proposals. During the arbitration phase, divorce lawyers can question witnesses and advocate their clients case to the arbitrator, just as they would in a court trial in the litigation process.

Yes. Everything that happens in mediation / arbitration is completely private and confidential. All discussions, evidence and notes generated or referenced in the mediation / arbitration process remain entirely confidential and are never disclosed to any third party by the mediator / arbitrator. In contrast, all evidence, affidavits, and documents referenced in court are a matter of public record, accessible by the general public.  The arbitration award is usually turned into a Court Order, which is a public record document but the only time the details of an arbitration becomes public is in the event the arbitration award is appealed.

A mediation / arbitration involves two separate and distinct phases. The first is the mediation phase, which typically involves the following steps:

1. Parties jointly attend an information session in which the mediation agreement is reviewed and signed and the parties inform the mediator about what issues need to be discussed. Basic financial information (legally known as disclosure) that may be required for a successful mediation is identified, plans and procedure for obtaining that information are established, and parties are provided with valuable relevant legal information, which may be important for them to consider when reaching an agreement.
2. Parties each separately attend an hour-long mediation coaching session to acquire the essential skills for a successful mediation.
3. The parties jointly attend one or more settlement meetings in order to:
   • Discuss the matters in issue;
   • Explore each parties interests, needs and goals;
   • Make proposals for a harmonious solution;
   • Evaluate resolution options; and
   • Finalize a comprehensive settlement that is acceptable to both parties.

In the event the mediation does not result in a mutually agreeable resolution then the arbitrator will determine any and all outstanding issues through arbitration. The arbitration process involves the following steps:

1. Initial Arbitration Meeting – There will be an initial arbitration session in order to:
   1. Identify the issues to be resolved;
   2. Determine whether or not there are any emergent matters that require a decision prior to the arbitration hearing;
   3. Determine what steps, if any, are required prior to the arbitration hearing;
   4. Decide how formal the arbitration hearing will be;
   5. Identify the witnesses to provide evidence;
   6. Specify the length of time required to conduct the hearing; and
   7. Set timelines and schedule the next steps and/or schedule the arbitration hearing.
2. Interim Applications – Any emergent matters are resolved by way of provisional arbitration hearings and temporary arbitration awards are rendered to resolve these issues.
3. Arbitration Hearing – The arbitration hearing allows parties to present evidence and argument. Many arbitrations only involve the parties themselves presenting evidence but some include third party witnesses, such as experts like business valuators or child psychologists.
4. Arbitration Award – An arbitration award is the binding decision, which is issued by the arbitrator. The award is rendered within one month of the conclusion of the arbitration hearing.

Parties can tailor the arbitration process to their own needs, to some extent, by mutual agreement. An informal hearing would typically involve the parties presenting their evidence and providing submissions about each matter in issue. A formal hearing process includes opening statements and closing arguments from both parties. A formal hearing could also include a court reporter who creates a written transcript of the sworn evidence provided by the parties and other witnesses instead of the arbitrator keeping the record of proceedings. Within this spectrum, parties can choose the specific level of formality for the process, however, barring agreement the process will be formal.

Arbitration is a method of private and confidential dispute resolution in which parties agree to be bound by the decision of an independent third party (the arbitrator).  The arbitrator renders a decision on the matters submitted to the arbitrator based on the evidence and argument presented.  The arbitration process can be tailored to meet the needs of both parties, with the timing, format and method of presentation of evidence and argument chosen by the parties.  In the absence of agreement, however, the default is a more formal process controlled by the arbitrator and governed by principles of natural justice, which permit each party to present their evidence and argument to the arbitrator.  The arbitration hearing takes place in a private boardroom.  Parties can either represent themselves or be represented by legal counsel.  Arbitration is akin to a court trial and an arbitrated decision takes the place of a trial judgment.

1. Efficient – There are numerous steps that must be taken prior to scheduling a court trial and, therefore, Court of Queens Bench trials are typically scheduled well over a year following legal counsel being retained. Arbitration is a more streamlined process that can be scheduled quickly, thereby allowing parties to resolve their dispute in a timely manner.
2. Affordable – Since arbitration provides a more streamlined process than a court trial and is more conducive to parties acting on their own behalf without lawyers, arbitration tends to be far less expensive than court trials.
3. Experience – At Alternative Divorce Solutions the arbitrator who decides your matter is an experienced legal professional with additional specialized training in arbitration. Having practiced law exclusively in family and divorce law for many years, our professionals have an in depth knowledge and understanding of the intricacies and nuances of the legal principles that face separating and divorcing parties. Thoroughly considered, well analyzed, and comprehensive arbitration decisions will allow parties to conclude their dispute and move on with their lives with confidence that their matter was given proper legal consideration. In contrast, arbitrators who are not lawyers and have not practiced law in the area have a more superficial comprehension of the issues, which can result in inaccurate applications of the law and incorrect arbitration awards. Further, Justices have a wide range of backgrounds and parties may or may not appear before a Justice who has any experience practicing family and divorce law prior to joining the judiciary.
4. Consistency – In arbitration, parties use the same professional through the entire process. As a result, the arbitrator becomes familiar with the parties, their family circumstances, the details of their property, personal dynamics, specific challenges, etc.. During traditional litigation, parties generally attend court multiple times and before a variety of Justices, each of who have varying perspectives and approaches. Many interim applications involve Justices making decisions based on an incomplete knowledge and understanding of the family circumstances due to the limited time litigants are permitted to present their case. The result is that court decisions may lack consistency. While arbitration may also involve interim applications, parties always attend with the same professional arbitrator to afford the parties the consistency of a decision-maker with an intimate understanding of their case and particular circumstances.
5. Simple – The arbitration procedure is less complicated than litigation, which can be extremely challenging for self-represented litigants to navigate. Individuals can easily attend arbitration on their own, but are also free to have legal counsel represent them should they prefer.
6. Confidential – Arbitration sessions are private, as are the communications, documentation and notes made in the course of arbitration. Litigation involves public court appearances and documentation and evidence all of which is a matter of public record, accessible by anyone.
7. Flexible – Arbitrators will work with the parties to accommodate work and vacation schedules. Although timelines and decisions can be imposed, they are not as rigid as those imposed by the Alberta Rules of Court. Litigation, court appearances and the Rules of Court are not flexible.
8. Better Protects Children from Conflict – Traditional litigation is extremely time consuming and trials typically occur well over a year following legal counsel being retained. The prolonged conflict and animosity between parents negatively impacts their children. By providing an efficient resolution to a dispute, children are better protected than they are in a lengthy, ongoing litigated battle.

Arbitration services are offered at a set hourly rate and, therefore, the cost of an arbitrated solution varies depending upon how long an arbitration hearing lasts. Typically, the length of arbitration is between one day and one week. Since it does not take nearly as long to get to arbitration than it takes to get to trial, arbitration tends to be significantly less expensive than litigation. Additionally, parties have the opportunity to control the level of formality of an arbitration hearing, which affords them more control over the cost of arbitration. In litigation, parties have no control over the process or level of formality.

Yes. An arbitration award rendered in an arbitration process is legally binding on both parties pursuant to the Arbitration Act. An arbitration award can be converted into an Order of the Court of Queens Bench and enforced in the same manner as a Judgment rendered at trial.

Yes. Arbitration sessions are private, as are the communications, documentation and notes made in the course of arbitration.  Litigation involves public court appearances and documentation and evidence all of which is a matter of public record, accessible by anyone.

The parties in a dispute can customize an arbitration process, although it generally involves the following steps:

1. Initial Arbitration Meeting – There will be an initial arbitration session in order to:
   1. Identify the issues to be resolved;
   2. Determine whether or not there are any emergent matters that require a decision prior to the arbitration hearing;
   3. Determine what steps, if any, are required prior to the arbitration hearing;
   4. Decide how formal the arbitration hearing will be;
   5. Identify the witnesses to provide evidence;
   6. Specify the length of time required to conduct the hearing; and
   7. Set timelines and schedule the next steps and/or schedule the arbitration hearing.
2. Interim Applications – any emergent matters are resolved by way of provisional arbitration hearings and temporary arbitration awards are rendered to resolve these issues.
3. Arbitration Hearing – the arbitration hearing allows parties to present evidence and argument. Many arbitrations only involve the parties themselves presenting evidence but some include third party witnesses, such as experts like business valuators or child psychologists.
4. Arbitration Award – an arbitration award is the binding decision, which is issued by the arbitrator. The award is rendered within one month of the conclusion of the arbitration hearing.

Parties can tailor the arbitration process to their own needs, to some extent, by mutual agreement. An informal hearing would typically involve the parties presenting their evidence and providing submissions about each matter in issue. A formal hearing process includes opening statements and closing arguments from both parties. A formal hearing could also include a court reporter that creates a written transcript of the sworn evidence provided by the parties and other witnesses instead of the arbitrator keeping the record of proceedings. Within this spectrum, parties can choose the specific level of formality for the process; however, barring agreement the process will be formal.

Often, only the individuals involved in a dispute attend arbitration.  However, they are free to bring their legal counsel to arbitration sessions with them.  Also, sometimes parties decide to consult a tax expert, financial advisor, business valuator, mental health professional or other expert and the expert may attend a mediation session to provide information and assistance to move the parties toward their agreement.

In order to file for divorce, you must complete a Statement of Claim for Divorce and file this document at the courthouse. If you are the person filing the divorce, you will be the Plaintiff and your spouse the Defendant.

Once the Statement of Claim for Divorce is filed, you have to serve the document on the other party. A Statement of Claim for Divorce must be served within one year of being filed.

If you are served with a Statement of Claim for Divorce, you have a short time to defend yourself against the claim by filing a Counterclaim and/or Statement of Defence.

• 20 days if you are served in Alberta;
• 1 month if you are served in Canada, but outside of Alberta; and
• 2 months if you are served outside of Canada.

At Jones Divorce and Family Law, we highly recommend consulting with a lawyer to obtain independent legal representation to ensure your rights are protected.

Legal fees are based on the amount of time that is spent on your file. A divorce can cost anywhere from approximately $1,500 to over $150,000 or more. At Jones Divorce & Family Law LLP, we are committed to helping you manage your legal fees with:

• Regular interval billing with additional accounts rendered in the event of more significant steps being taken on your file.
• Divorce lawyers with a range of experience and hourly rates so that you can elect to retain a lawyer that best suits your needs and budget. If you elect to retain a junior lawyer, you still have the backing of senior counsel who can be consulted as required.
• A legal team approach that allows you to work with a senior and junior lawyer team. For example: the senior divorce lawyer manages the strategic, complex and challenging portions of the file and the junior lawyer runs the daily routine matters.

Yes. Court is not required if both parties can reach mutual agreements on their matters. At Jones Divorce & Family Law, we encourage amicable resolutions through alternative dispute resolutions.

In  Alberta, the Divorce Act specifies three legally accepted grounds for divorce:

• Separation – You and your spouse must live apart for at least 1 year prior to filing the Divorce Judgment.
• Adultery – This must be proven in court with evidence or an affidavit signed by the person who committed adultery.
• Cruelty – When either spouse commits physical or mental cruelty to the other spouse. Again, this must be proven in court with evidence or an affidavit.

It is important to know that you or your spouse must have been an ordinary resident in Alberta for at least one year prior to filing a Statement of Claim for Divorce.

Common law is a well-known term used to describe two people who live together in a marriage-like relationship. In Alberta, the term common law is not legally recognized and instead, the term Adult Interdependent Relationship is used in legal proceedings.

In order to determine if parties are in an Adult Interdependent Relationship, there are two criteria which must be met:

1. Parties must be living together in a relationship of interdependence for at least 3 years; or
2. The parties have entered into an Adult Interdependent Relationship Agreement.

It is important to note that if the parties share a child, either by birth or adoption, the three-year threshold becomes a grey area and only a period of some permanence must be established.

There are a number of ways we can assist you in resolving your dispute, some of the more common dispute resolution methods are:

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.
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 a 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 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. 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 main things to consider during a separation in Calgary are any property and assets that need to be divided and decisions surrounding children, including guardianship, parenting, child support, and spousal support.

A Separation Agreement is a legally binding document and it is not necessary to register a Separation Agreement through the court.

It is important to note that both parties signing a Separation Agreement need to receive Independent Legal Advice on the Separation Agreement in order for it to be legally enforceable in Alberta.

Typically, child and spousal support matters need to be filed with the Court so that the Maintenance Enforcement Program can assist in collecting child support. This can be done by filing a Divorce Judgment or a Consent Order.

The Court will always consider what’s in the best interest of the child when determining parenting arrangements. The best interest of the child includes factors such as:

• The financial and emotional stability of each parent;
• The relationship between the child and each parent;
• The ability of each parent to take care of the child’s daily needs;
• Any negative influences from each parent; and
• The child’s preferences, if they are mature enough to express their opinions.

The Court prioritizes the child’s security, well-being and physical, emotional and psychological safety when making decisions.

The terms “custody” and “access” are no longer used in the Divorce Act. Instead:

• Decision-making responsibility has replaced “custody”. This gives the spouse with the decision-making responsibility the right to get information about their children’s health, education, and well-being as well as other important factors such as language and religion. Decision-making responsibilities can be given to one spouse or shared between both parents.
• Parenting time has replaced “access” and provides the parent with parenting time the right to make day-to-day decisions about their child. During this time, they also have the right to get information about their children’s health, education, and well-being.
• Contact refers to time with a child involving someone who isn’t a spouse, such as a grandparent. A contact is not granted the right to make day-to-day decisions about the child or obtain information about the children’s health, education, and well-being.

This depends on a number of factors, including the relationship the child has with each parent, the emotional and financial stability of each parent, and the child’s preference, if they are old enough to express it. The best type of parenting arrangement is different for all families and is always determined using the best interests of the child.

The Court will always consider the best interests of the child when considering parenting arrangements.

Yes, if a child is old enough to express their wishes, the Court will take their opinion into account when deciding a parenting arrangement. However, the best interest of the child will always be the determining factor in a parenting plan.

With respect to guardianship, the guiding principle is the “best interests of the child”. Courts resolve issues of decision-making and parenting schedules using the same legal principles that apply to married couples.

Child support is money paid to help cover the expenses of raising a child. There are two types of child support:

1. Base support, or Section 3 child support, which is a set amount of money paid on a regular basis to cover the everyday expenses of a child; and
2. Extraordinary expenses or Section 7 child support, which is payable over and above the monthly base child support to cover the extra costs of the child for things such as
   1. Childcare expenses;
   2. Medical and dental insurance premiums;
   3. Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
   4. extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
   5. expenses for post-secondary education; and
   6. extraordinary expenses for extracurricular activities.

Child support is governed by the Federal Child Support Guidelines. Despite the name, the Federal Child Support Guidelines are mandatory as child support is the right of the child.

In order to determine the amount of child support payable, the parties must exchange their financial disclosure, and then calculate the support using their most current annual income.

There are certain circumstances where the Court may deviate from the Federal Child Support Guidelines. 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 parenting 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;
• 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 from the Guideline amount the Court considers it reasonable.

In Alberta, the Maintenance Enforcement Program (“MEP”) oversees the collection and enforcement of court-ordered child support. In order to open a file with MEP, you will need a Court Order outlining the specific child support obligations.

You can learn more about MEP here: https://www.alberta.ca/maintenance-enforcement-in-alberta.aspx

If you’re the recipient, you’ll need to bring:

• A copy of your court order
• Notice of Assessment for the past three tax years
• Pay stubs or other proof of income for this tax year
• A list of your special expenses, including receipts if possible

If you’re the payor, you’ll need to bring:

• Copy of your court order
• Complete tax returns from the past three years
• Notice of Assessment for the past three tax years, plus any other years that support wasn’t paid
• Pay stubs or other proof of income for this tax year

To cancel or reduce arrears, you’ll also need:

• Income information from the date that you first fell behind on your payments
• Copy of your Debtor’s Statement of Account (from Maintenance Enforcement Program)
• List of your assets (with values)
• List of your debts (with values)

If you can’t afford your child support payments, you’ll need to prove to the Courts that your income has changed and provide proof that you have a lower standard of living than when the child support payments were initially agreed upon.

In Canada, alimony is referred to as spousal support.

Yes, you can still be bound to pay spousal support even if your ex-spouse remarries. Re-marriage does not automatically terminate spousal support orders in Alberta.

Couples applying for divorce, who have previously divorced, or are ending an Adult Interdependent Relationship may be eligible for spousal support.

In Alberta, the Courts look to the Spousal Support Advisory Guidelines for formulas on deciding the value and duration of spousal support. They will look at the party’s incomes and lifestyles to determine the value of spousal support to be paid.

You may be eligible for spousal support if you meet one or more of the purposes set out in the Divorce Act. The purpose of spousal support is:

• To compensate a spouse who sacrifices his or her ability to earn income during the marriage;
• To compensate a spouse for the ongoing care of children, over and above any child support obligation; or,
• To help a spouse in financial need arising from the breakdown of the marriage.

In Alberta, spousal support is determined on a compensatory and non-compensatory basis, meaning that either party may be required to pay support to the other. The Courts look to the Spousal Support Advisory Guidelines for formulas when deciding the value and duration of spousal support. They will consider factors such as length of marriage, the roles of the parties within the marriage, the ability for both parties to earn income and the education of the parties.

Yes, you can make a claim under the Family Law Act which considers Adult Interdependent Relationships when determining spousal support.

The Matrimonial Property Act states that the Court must divide all property acquired during the marriage equally, but certain exemptions may be claimed.

When an Adult Interdependent Relationship, otherwise known as a common-law relationship, ends and there is a division of property, the property of the common-law partners is treated the same as property owned by married couples. This means a 50/50 division of property acquired during the relationship (with certain exceptions).

It is important to know that a claim for remedies must be commenced within two years of the date of separation or the claim will be statute barred as a result of the Limitations Act.

Pursuant to the Matrimonial Property Act and the Family Law Act, all debts must be divided fairly between the spouses if the couple has been married for a year or more.

Yes. Like other assets, your spouse is entitled to the increase in value of your pension between the date of marriage and the date of separation. Your spouse is not entitled to the part of your pension that accumulated before your marriage and after the date of separation.

After divorce, a joint property has to be divided equally between the spouses.

As of January 2020, under Alberta’s new Family Property Act, unmarried couples who have separated on or before January 1, 2020, are treated the same as married couples when it comes to property division. This means unmarried couples are entitled to a 50/50 division of property acquired during the relationship, with certain exceptions.

A Separation Agreement is a legally binding and enforceable document that sets out your rights and obligations as a result of a separation and divorce, including parenting, supports, and property rights.

A Separation Agreement is a contract between you and your spouse regarding how issues will be settled related to your separation. While you don’t need a separation agreement to separate or divorce, having a legal agreement allows the process to move faster compared to settling issues in Court.

Some of the most important things to consider in a separation agreement include financial support, child custody and decision-making, division of property, division of debts, and dispute resolution options should issues arise in the future.

A Prenuptial Agreement (aka a Prenup) is a legal contract between a couple made in contemplation of their marriage. It sets out how property and assets are to be owned during a marriage, how property and assets are to be divided in the event of a separation, and how property and assets are to be distributed in the event of one party’s death (in conjunction with a Will).

The creation of a Prenuptial Agreement does not need to be an oppositional process but has the risk of becoming adversarial when lawyers lack the appropriate temperament and experience.

A Prenuptial Agreement can be drafted by a couple in preparation for marriage. A Prenuptial Agreement is recommended for everyone who intends to get married, but especially if one or both spouses carry a large amount of assets or debt into the relationship or if a spouse has ownership or stake in a business. Of course, no one is thinking about divorce when they’re planning a wedding, but consider speaking to one of our lawyers if a Prenuptial Agreement is right for you.

A good Prenuptial Agreement will deal with assets held in joint and separate names, will set out what types of assets are to be kept separate, what types of assets are to be divided (and how they are to be divided), and will deal with the increases in the value of separate assets, the division of liabilities, and can even address the issue of spousal support. A Prenuptial Agreement is invaluable in the event of separation, as it can save parties a great deal of stress, time and money by avoiding a legal dispute.

Yes. Prenuptial agreements are legally enforceable in Alberta, given that it meets certain requirements prescribed by the statute and the Courts.

A Cohabitation Agreement is a legal contract between a couple that is living together but not getting married. Like a Prenuptial Agreement, it governs how property is to be owned, how property is to be divided in the event of a separation and how property is to be distributed in the event of one party’s death (in conjunction with a Will).

The creation of a Cohabitation Agreement does not need to be an oppositional process but has the risk of becoming adversarial when lawyers lack the appropriate temperament and experience.

A Postnuptial Agreement is a legal contract between a couple executed after they are married. Like a Prenuptial Agreement, it sets out how property is to be owned during a marriage, how property is to be divided in the event of a separation and how property is to be distributed in the event of one party’s death (in conjunction with a Will). Postnuptial Agreements are common when there is a family trust created after marriage when one spouse is likely to receive an inheritance.

The creation of a Postnuptial Agreement does not need to be an oppositional process but has the risk of becoming adversarial when lawyers lack the appropriate temperament and experience.

There are two ways you can adopt in Alberta: public adoption which refers to the use of a public agency and private adoption, which refers to any type of adoption that is not through the public adoption system. Adoption in Canada is subject to provincial laws, and if you live in and want to adopt in Alberta, the Government of Alberta has extensive information, you can find out more here.

The cost of international adoptions varies greatly, depending on the country you’re adopting from. You can expect the cost to range from $15,000 – $40,000.

Technically, you can change your Will as often as you’d like. We recommend reviewing your Will at least every 5 years or when there are any major financial and personal changes in your life.

Yes, this is called a Joint Will.

A Will is the most efficient way to dictate how you would like your estate (property and possessions) to be distributed after your death. A Will ensures that your wishes are carried out and can help in lessening tensions and issues within your family following your death.

Having a Will:

• Ensures your possessions will be distributed according to your wishes;
• Ensures that your children will be cared for by people you trust should you and your spouse pass away;
• Lessens the tension between family members regarding the distribution of your estate;
• Minimizes the stressful aftermath of your death on family and friends; and
• Gives you peace of mind that you have a trusted executor to oversee that your wishes are honoured.