What does Joint Custody mean in Alberta?

Joint custody disagreements are very common during divorce proceedings and can be emotionally charged discussions. We recommend hiring a divorce lawyer if you and your spouse are having disagreements regarding your child custody arrangements. This article is not intended to act as legal advice but briefly goes over what joint custody means in Alberta.

In Alberta, a child is any person under the age of 18 and their custody or access are governed by

The federal Divorce Act when the parents are legally married and have started divorce proceedings under the Act; and
Alberta’s Family Law Act is available to both married and unmarried couples with children.

Sorting out the legalese

The legal jargon varies between Canada’s federal laws and Alberta’s provincial laws. The terms “access” and “parenting” refer to rights for parents to have time with the child in federal and provincial laws respectively.
Whereas custody relates to the ability of a parent to make daily and major decisions in relation to their child including their living arrangements and parenting schedules. The overarching principle in both laws are that all decisions involving the child are made in the child’s “best interests” factoring in their physical, psychological and emotional safety.

Joint custody: The most common arrangement

Joint custody is the most common arrangement in Alberta and ensures both parents have a clear voice in critical decisions regarding their child. The success of joint custody arrangements is highly dependent on the co-operation of both parents.

In most cases, joint custody is agreed upon by parents where the child’s best interests are always placed as the priority. In the absence of a parenting agreement or order, “joint custody” is the de facto arrangement where both parents make decisions about the child together and are entitled to spend time with them.

The parent with whom the child(ren) spend most of their time has “primary care and control” and from a practical perspective makes day to day decisions involving them. The other parent has “access” which means they spend time with the children and is responsible for day to day decisions when they are with them. For instance, the child could live with one parent 90% of the time and both parents still have joint custody, based on a joint decision to enable the child going to one school.

There are some rare situations where sole custody may be preferred. Even in such cases, the parent without custody may still have access to the child.

Determination by the Courts

If two parents can mutually agree on guardianship arrangements after separation, it is always helpful to document this understanding in a legally-binding parenting agreement. This written contract will address a variety of decisions including where the children will live and how each parent will care for and make decisions for the child, in their best interests. It takes into account practical considerations. It’s recommended each parent seek independent legal advice before signing a parenting agreement and the agreement can be made enforceable by filing a Consent Order with the Court.

In cases where parents cannot reach a mutual agreement or scenarios involving family violence and abuse, a judge can issue a Parenting Order. The Courts can determine custody according to a few key factors including but not limited to:

Primarily, the best interests of the children;
Each parent’s physical, mental and emotional health;
Child’s wishes, particularly after the age of 12;
If one guardian is intimidating the other or preventing them access to the child;
Potential for abuse or harm; and
More

The judge will apply the law depending on the circumstances of both parents and their ability to take decisions in the best interests of their child. Typically, even if one parent is granted “primary care”, the other parent can see the child and enquire about their care and well-being, depending on the circumstances.

Speak with an Edmonton family lawyer today regarding your parenting arrangement needs

At Verhaeghe Law Office, our Alberta family lawyers are experienced in assisting families navigate the legal complexities surrounding joint custody disputes. To better understand how we can assist with your parenting arrangements – contact our law firm today by calling 587-410-2500 and speak directly with a member of our legal team.

Note: This blog offers general information for your convenience and does not constitute legal advice. Family law can be complex and you’re encouraged to seek legal advice to better understand your rights and responsibilities as well as the rights of your children.

Child Custody: What the Courts Consider When Applying for a Mobility Application

While divorce proceedings and child custody disputes can be emotionally taxing – this process can bring about significant changes to each spouse’s lifestyle post-divorce. In fact, more often than not, we’ve seen many instances where one spouse may choose to relocate to another city, province or country following a divorce due to their change in economic or financial status and take the children with them.

In a situation like this where one parent wishes to pursue a significant relocation with a child – a mobility application is required. The Alberta Courts will always put a child’s best interests first and as a result – the parent seeking to relocate with the child will be required to offer reasons as to why relocating with the child is in their best interests. For more specific examples of what items are taken into consideration by judges during a mobility application, read the decision made by the Supreme Court of Canada in Goertz v. Goertz.

Some of the things Alberta courts will investigate include, but are not limited to:

What the child wishes to do
Schooling
Where the child will live (residence)
Whether childcare requirements will be sufficient
Support system that will be available including extended family
Employment opportunities and/or new income
In some cases psychological assessments
And more

If a mobility application is requested and granted – the stay-behind parent will still be granted access to the child(ren) providing he/she is entitled to child custody as well.

Mobility applications and pre-existing child custody court orders

In some cases there may be a pre-existing custody court order that enforces the parent who has primary custody and intends to relocate with their child to notify the other parent within a specified time frame of the upcoming move. The Divorce Act requires that the notifying parent outline the proposed change of residence, the time when the change will be made as well as the new place of residence of the child.

Be mindful though these court orders can be contested by an opposing parent and if you’re in a similar situation we encourage you to seek legal counsel from an experienced Alberta divorce lawyer regarding this. For example, if you are against your children relocating with your former spouse there are legal options that you may be entitled to. You may be eligible to file an application to oppose the proposed move and commence court proceedings asking for a judge’s order to prevent your former spouse from moving with the children.

If no such court order exists, then we recommend speaking with your spouse to come to an amicable arrangement and if that doesn’t work out – then definitely seek legal counsel so that both sides can come to an arrangement that works for both parties.

What happens if one parent moves the children without consulting the other parent?

In a situation like this – it is possible to start a court application to have the children returned to their original place of residence and to have child custody arrangements changed over to the other parent. A family lawyer can assist with this process and will make sure that the presiding judge will be equipped with all facts and that the children’s best interests will remain a priority throughout the proceedings. In most Canadian legal jurisdictions – child custody is seen more as a child’s right to access the parent as much as a parent’s right to access the child. Having a family lawyer involved can make sure you are informed of all your legal rights as a parent and help you navigate the complexities of Alberta’s family law guidelines.

Speak with an Edmonton family lawyer today regarding your mobility application

At Verhaeghe Law Office – our Alberta family lawyers are experienced in assisting families sort out their divorce and separation needs. To better understand how we can assist with your child mobility application needs – contact our law firm today by calling 587-410-2500 and speak directly with a member of our legal team.

What is a valuation date?

During a marital breakdown there are a number of issues that need to be addressed before both spouses can move on to the next chapter of their lives. Depending on the length of your relationship there may be a number of assets that require equitable division. In most cases, matrimonial property can include all property accumulated during a marriage including both assets and debt. A variety of assets are captured including bank accounts, savings, RRSPs, the matrimonial home and other assets purchased during the course of the marriage.

In Alberta, Canada’s federal Divorce Act handles the legal landscape for both child and spousal support as it relates to divorce whereas Alberta’s Matrimonial Property Act outlines the division of matrimonial property. On January 1, 2020 amendments will come into effect changing the name of this Act to the Family Property Act and extending property division rules and criteria to adult interdependent partners. As a starting point, if the couple has a pre-existing agreement in place (e.g. pre-nuptial or co-habitation agreement) the division outlined in this agreement applies.

In the absence of such an agreement, the married couple has the option of coming up with their own property settlement contractual agreement outside of courts, however this legislation provides a fallback solution for the Courts to decide. Regardless of the pathway used the couple requires independent counsel and full, accurate financial disclosure to ensure the agreement’s enforceability.

Family law can be complicated and its always advisable to contact a local Edmonton divorce lawyer to understand your legal rights. Divorces and separations can be lengthy processes, especially if handled in court as opposed to mediation or collaborative law settings. As a result, a “snapshot” date has to be selected in order to assess a monetary value of all matrimonial property, also known as the valuation date.

Ideally, the separating couple secures as much supporting documentation as possible regarding income, property and debt values at the time of separation to facilitate monitoring changes that occur during the course of separation. Ultimately the valuation date is decided by the court after hearing both sides out. Although some assets are fairly straight-forward to value (e.g. bank balances) other assets can be challenging such as real estate or family-owned businesses. Certain assets may not qualify as matrimonial property.

Both parties have an obligation to be honest with one another by fully sharing financial information regarding all property each party owns. Even if the property is owned with someone else or located outside Alberta, there exists a duty to inform your spouse of it. This includes sharing any information on a property you may have gotten rid of in the past year. Typically this process is accomplished by a Notice to Disclose Court Document and results in a complete listing of all assets along with current values and dates and value when they were originally purchased at. These assets may fall into a variety of categories as per the Matrimonial Property Act. The debts acquired during this period are listed as well.

The Alberta Rules of Court also outline additional ways to secure financial disclosure through questioning under oath or through written questioning or in person. Not all property will necessarily be divided equally as certain categories are distributed based on what is fair in the circumstances.

In order to ensure compliance with the law and understand what you’re legally entitled to, it is advisable to retain the assistance of your family lawyer to help in populating your list. Once this information is submitted, the court will hear legal arguments and identify assets that qualify as matrimonial property and deliver the verdict on both asset value and division.

The judge will decide what is fair based on a variety of factors outlined in the legislation including:

Any pre-existing agreements between the spouses;
Income and earning capacity of each spouse;
Roles and contributions of each spouse during marriage;
Length of marriage; and
Prior court orders

The full suite of considerations is outlined in section 8 of the Matrimonial Property Act.

Speak with an experienced family lawyer today to better understand your legal rights as it relates to property division.

At Verhaeghe Law Office, our Edmonton divorce lawyers have experience in effectively dealing with matrimonial property issues and finding a timely resolution that is fair and equitable for both sides. Please contact us for a consultation today or by calling 587-410-2500 and speak directly with our legal team.

Note: This blog offers general information for your convenience and does not constitute legal advice. You’re encouraged to seek legal advice to better understand how family law may be applied in your specific situation.

Joint Divorce: An Amicable Solution

Divorce in Alberta, CA, can take three forms. It can be contested, uncontested, or joint divorce. The three types of divorce are different, but all effectively end a marriage. Most couples are unaware of the option of joint divorce, the least acrimonious of the three. At Verhaeghe Law Office, we encourage you to be aware of all of your options for ending your time with your spouse. For legal guidance throughout the divorce process, call one of our expert lawyers at
587-410-2500.

Grounds for Divorce

Under the federal Divorce Act, a divorce will only be granted on the grounds that there has been a breakdown of the marriage, meaning the spouses have lived separate and apart for at least one year before beginning divorce proceedings, one spouse has committed adultery, or one spouse has treated the other with physical or mental cruelty.

Three Types of Divorce

Contested Divorce

In a contested divorce, the spouses disagree on some or all aspects of the divorce. The dispute may include the actual divorce, division of assets, custody, or support. In a contested divorce, both parties must retain lawyers and file the appropriate documentation to the court. This type of divorce generally takes longer than the others due to court proceedings. Both parties are encouraged to settle prior to trial, but if a settlement is not reached, a judge will make decisions on the issues in dispute and grant the divorce. The divorce is final 31 days after it is granted.

Uncontested Divorce

An uncontested divorce is one in which the spouses agree on the issues associated with the divorce. There is no formal filing for an uncontested divorce, rather one party files for divorce and the other does not Answer within the allotted 30 days after being served. Failure to file an Answer makes the divorce uncontested. The applicant then files an Affidavit of Service, swearing that the other party was served with the appropriate divorce application forms, an Affidavit for Divorce, and any other materials associated with the proceedings. A judge will grant the divorce, which will be final in 31 days.

Joint Divorce

A joint divorce is the most amicable form of divorce. To use a joint divorce process, at least one of the parties must have been a resident of the Province of Alberta for one year prior to filing the Joint Statement of Claim for Divorce, and the basis for the divorce is only the breakdown of the marriage by living separately for one year. Cruelty or infidelity cannot be used as grounds for a joint divorce even if both parties agree on all matters regarding the separation. In joint divorce, neither spouse is suing the other for divorce. Both parties apply for a divorce together and sign the Notice of Family Claim. The spouses cooperate and work together during the process of the division of assets, custody, access, and other matters. This is the case in which the divorce process is the fastest and both parties are equally empowered in decisions.

Filing for Divorce

Divorce is an emotional process for all parties. Even in joint divorce circumstances, it is important to have legal representation to ensure the division of marital assets, child custody arrangements, access to the children, support, and all other items are fair and equitable. The lawyers at Verhaeghe Law Office are experienced and knowledgeable in all areas of family law, including divorce. Call 587-410-2500 to set up a consultation today.