If you have decided to separate or divorce, I’m sure that it was a very difficult and stressful decision to make. This is, no doubt, one of the most important decisions anyone can make especially when there are children involved. Parents need to ensure that their children are affected by their decision as little as possible. Separating and dividing matrimonial property so that each party receives a fair division as amicably as possible is paramount to the effects of divorce on a family.
At HART LAW OFFICE, our goal is to help you through the process of divorce explaining all of your rights and entitlements and those of your children regarding support obligations and property division. Our aim is to alleviate some of the stress and assist you with this major life changing transition.
Under the Divorce Act (Canada), a divorce can proceed either on a “fault” basis or a “no fault” basis. Usually, most couples use the no fault one year separation as the grounds for divorce. Using the fault grounds of physical/mental cruelty or adultery are rarely used because arguing over the issue of who is at fault is irrelevant to the court when it comes to granting child support and spousal support. It is also irrelevant to the division of property. So directing your lawyer to argue over who is at fault and who caused the divorce is a waste of time and resources.
But that doesn’t mean that we, at HART LAW OFFICE, aren’t interested or concerned about why you have decided to separate or divorce. A part of our job is to ensure that couples going through this process receive not only proper legal advice as to what they are entitled to but also that they receive appropriate counselling for themselves or their children to help them through the process.
Sometimes I have people ask me about a “legal separation”. This term really has no legal meaning. There is no formal or judicial recognition of the separation required by law. What is important, however, is the actual date of separation as this signals when the one year separation has elapsed and when the parties are then entitled to apply for a Divorce judgment. The date of separation is not the date used to determine the value of the property or the date on which property is divided. In Alberta, unlike other provinces, the division of matrimonial property provides that the issue is not resolved until the parties enter into a formal written agreement with independent legal advice or until a trial is heard. This means that until that happens, the assets and debts at the time of separation are not final. The amount of assets and debts can increase or decrease until settlement or trial.
Under the Divorce Act (Canada), either you or your spouse must have been “ordinarily resident” in the Province of Alberta for at least one year prior to commencing a divorce action.
Many couples will work towards a settlement of the issues on their own or with the help of a lawyer or mediator. If an agreement is reached, the parties enter into Minutes of Settlement or a Separation Agreement which is signed with independent legal advice in order to be binding in court. If the parties cannot reach an agreement, then one of them must start the court process by filing a Statement of Claim for Divorce and Division of Matrimonial Property. The courts will then intervene and grant Orders, sometimes on an interim basis, pending until a final agreement is reached or the matter goes to trial.
Most of the time issues are resolved between the parties without the need of going to trial. When that happens, the lawyers are able to finalize the Divorce Judgment easily and no one is required to attend court. New rules now allow for couples to jointly ask for the divorce so that no one is having to be the “Plaintiff” or the “Defendant”.
Before a Divorce Judgment is granted, the court will want to ensure that “reasonable arrangements” for the children are in place. That means that a proper amount of child support, in accordance with the Federal Child Support Guidelines is in place and that the issue of custody and parenting time have been resolved. Only when that has been satisfied to the court’s standard, will the Divorce Judgment be granted.