Divorce FAQs: “The Only Stupid Question is the One Not Asked”

It may come as a surprise to learn that a couple may be considered separated although living under the same roof. It is usually determined by one or both of the parties’ opinion on when they ceased “living as spouses” in the traditional sense. Lack of intimacy, absence of communication and physical separation within the matrimonial home would all be factors to consider, but each situation is unique.

The particular relevance and impact of the “date of separation” depends on the issues in play.

Although adultery might trigger that emotional decision to initiate a divorce, generally speaking, there is no tangible financial benefit derived from claiming this kind of spousal misconduct. It will not change a spouse’s financial support obligation or how property is divided.

Adultery is considered “grounds for divorce”, but can be problematic for that purpose. In the interest of cost and expedience, most divorcing couples will ultimately rely on the “no-fault” ground of having lived separate and apart for one year.

Like many other private services, the need for a legal professional is partially a function of the complexity of the matters. “Do-It-Yourself” lawyering (self-representation) is a reasonable possibility for simple matters, but a treacherous and risky endeavor for complicated matters.

Uncontested divorces, for example, where both parties seek nothing more than the end of the marriage, would seem to be well within the capability of a non-lawyer. However, even for a process like that, a brief consultation with a lawyer would be highly advisable to learn the full consequences of losing “married” status.

Self-representation on complicated matters would not only be difficult to manage, but could result in total loss of your entitlement if deadlines or limitation dates are missed or the law inadequately researched.

Most family lawyers work on what’s called a “retainer basis”. The client pays the lawyer a sum of money up front. For the lawyer’s time worked on the file, the client is invoiced at an hourly rate and funds are withdrawn from the retainer accordingly. Each firm/lawyer has its own standard retainer request, often subject to the complexity of the matter, and each lawyer has their own billable rate. Ideally, the lawyer’s work is captured within the initial retainer, but if not, there would be an expectation to replenish the retainer as needed.

Throughout, there may also be fees paid to third parties to move a matter forward, including court filing fees and a process server.

Flat rates and “limited-scope” retainers may be appropriate in certain circumstances.

This sort of terminology is often confusing to many people and inappropriately used interchangeably. The legislation has recently been overhauled in the interests of accuracy, simplicity and uniformity.

Think of parenting rights as two distinct streams: parenting time and decision-making. Parenting time deals with where the child physically spends their time. Decision-making involves the assigning of responsibility to make significant decisions for the child, including medical, educational and religious upbringing.

The traditional models for parenting time include the “primary caregiver” model where the child spends a predominant amount of time with one parent and the “shared parenting” model where the child’s time with each parent is equal or close to it.

The traditional models for decision-making are joint decision-making and sole decision-making. With the joint decision-making model, both parents have equal participation in these decisions. Sole-decision making means one parent has that responsibility.   

There are no presumptions on parenting matters. It is not assumed that any particular parenting model will fit for a family. Each child is unique and every parent is unique. The prevailing considerations are the “best interests of the child”.

The analysis of the best interests of the child will consider factors such as:

• The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• The nature and strength of the child’s relationship with each spouse, siblings, grandparents and other important persons;
• Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• The history of care of the child;
• The child’s views and preferences;
• The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• Any plans for the child’s care;
• The ability and willingness of each person in respect of whom the parenting time/decision-making order would apply to care for and meet the needs of the child;
• The ability and willingness of each person in respect of whom the parenting time/decision-making order would apply to communicate and cooperate;
• Any family violence; and
• Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

This is obviously not an exhaustive list of factors. This shows not only the potential depth and scope of the analysis of the best interests of a child, but also the uniqueness of each case.

Generally speaking, Alberta Courts prefer resolving the “corollary” issues associated with a divorce before finalizing the divorce itself. In particular, Courts won’t grant a divorce until it has been shown that adequate child support arrangements are in place.

You can seek permission from the court to allow for a divorce absent determination of those corollary issues.

You will need to show the border authorities that your spouse has given you permission to travel with the children outside of the Canada.

A travel authorization is a typical request from one parent to another, and is usually resolvable between the parties. Standard travel authorizations are available from the Federal Government online.

If your spouse withholds their permission, you will need to apply for a Court order dispensing with their consent.

Amongst the legal and judicial communities, “mobility” disputes are considered one of the most contentious. The issue is very difficult to negotiate amicably and challenging to deliberate.

Without the consent of your spouse to relocate with your children, you will need a Court Order permitting it. Once again, the Court will consider make a decision with due consideration to “the best interests of the children”.

Financial support upon separation comes in the form of child support and/or spousal support.

Support is an income-driven analysis. Child support and spousal support have their own means of analysis of when, how much and how long. There are both subjective and objective factors considered in determination.

With regard to appropriate amounts, although there are many valuable online tools to assist, these issues are best served by at least an initial consultation with a lawyer.

Mediation is a form of Alternative Dispute Resolution by which parties can avoid Court and resolve matters collaboratively, creatively and amicably.

 Mediation can help you resolve parenting, child and spousal support, and division of property. 

Public mediation services are available through the Alberta Courts, and the cost of the mediator is free. Private mediation services are available in all major centres in Alberta, each with their own scope of expertise and fee structure.  

At its best, mediation is fluid, adaptable and nuanced. Ideally, it is also more efficient and cost-effective than court.

 That being said, if the parties’ issues are complicated, a number of mediation sessions may be needed in order to come to a resolution.

There are binding and non-binding models of mediation. The pros and cons of each should be considered before deciding on a model.