Non-married or common law couples face many of the same issues as married couples when their relationship comes to an end. Alberta divorce lawyer Kurt Schlachter explains the differences and similarities of the legal issues experienced by divorcing couples and separating couples who are not formally married. Common law couples possess many of the same, but not identical, legal rights as married couples regarding property division, child custody, and parenting time.
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Divorce Magazine Podcast: Alberta Divorce Lawyer Kurt Schlachter Podcast on Divorce, Separation & Child Custody
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speakers: Family Lawyer – Kurt Schlachter. Kurt Schlachter is a family lawyer and partner at Stringam Denecky LLP in Lethbridge, Alberta. He is a member of the Lethbridge Association of Collaborative Professionals and the University of Lethbridge Senate. Mr. Schlachter also serves on the Board of Directors of the Community Foundation of Lethbridge and Southwestern Alberta, and is the President and Chair of the Board of Directors of Economic Development Lethbridge. Learn more at www.stringam.ca
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What are the grounds for divorce in Alberta?
There are three grounds for divorce in Alberta; the first is being separate and apart for a year, meaning the parties have been separated for more than one year. You can be separated while living in the same household depending on the circumstances.
The second grounds are mental or physical cruelty that makes continued cohabitation impossible. The test is fairly obvious with respect to physical cruelty, but mental cruelty is more subjective and based on what constitutes cruelty on the part of the person claiming it.
The third grounds for divorce is adultery on the part of the other spouse. You can't claim for your own adultery, but if someone has had relations with anyone other than their spouse, that grounds can be claimed. Claiming either of the last two grounds, cruelty or adultery, doesn’t provide you with any additional advantages, because Alberta is a no-fault divorce jurisdiction. Those grounds simply entitle the parties to have a divorce granted quicker than waiting out the year separation period.
What is the difference between a litigated divorce and a collaborative divorce?
The process is different, but the outcome of both is a resolution of the issues arising from the marriage breakdown. The divorce itself dissolves the marriage.
Collaborative divorce is a process in which the two parties each have a lawyer and they all sign a contract stating their commitment to resolving the matter within that process, rather than going to court to litigate the issues. If either of the parties withdraws from the process, then it's over and both parties have to obtain new lawyers to litigate or take the matter to court. The purpose of the contract is to keep the parties focused on a resolution outside of court and to maintain an incentive for them to be committed to the process.
Litigated divorce is the traditional process of going through the courts to have the decisions made for you when you can't agree. The parties sometimes reach their own agreement, which then needs to be formalized through the court process.
Is there any difference between a legal marriage and a common law marriage?
The phrase common law marriage is a misnomer in that there isn’t really such a thing. Common law is terminology that has evolved over the years for a relationship that hasn’t been formalized by the traditional marriage ceremony and vows. In Alberta, we don’t have a legal equivalent to common law; it's just used as a term to describe a non-marriage relationship. There is legislation called the Adult Interdependent Partnership Act that entitles eligible parties to various forms of relief regarding different legal issues, including property and parenting issues. Legal marriage requires a divorce under the Divorce Act and is a separate proceeding. Although many of the issues are the same between families whether the parties are married or not, there are still some distinctions in Alberta.
If a common law relationship breaks down, are the parties entitled to the same benefits as though they were married?
For the most part, except regarding the property issues. The Divorce Act deals with issues of custody, parenting, custody access, child support, and spousal support. In Alberta, there's also the Family Law Act, which is primarily for non-married spouses and deals with those same issues. When it comes to property, however, there is a Matrimonial Property Act in Alberta, which only applies to married couples. Non-married or common law couples require a different approach to property issues. We must argue equitable legal principles without relying on a piece of legislation to guide us through the issues.
What is a separation agreement and how is it different from a divorce agreement?
There isn’t a great deal of difference, aside from the timing. Agreements that resolve issues prior to a divorce filing are separation agreements. The parties work out their issues through collaborative law, family law mediation, or negotiation and formalize it through a contract that they rely on later to finalize their divorce. A divorce agreement is the same type of agreement, but it's done once the divorce proceedings have commenced. The same legal issues will arise from a marriage breakdown regardless of the approach, so it all comes down to timing.
Could a separation agreement be amended to include things the couple discovers during the time it takes to get divorced?
It could if changes occurred during the process. However, if they're able to get to a separation agreement earlier on, then no one is concerned about getting divorced quickly and they can resolve all the issues in the separation agreement. The divorce judgment – which is granted by the court – would reflect their agreement regarding issues the court is concerned about, such as parenting and support. If the property issues are resolved by contract, the court no longer has jurisdiction over them.
Can a couple divide their property in a separation agreement?
One of the goals of a separation agreement is to outline property division such that the divorce can be fairly straightforward.
If one spouse violates the terms of a separation agreement, can he or she be held in contempt of court?
Not based on the agreement itself. Most agreements have very clear provisions for enforcement if someone does breach. You're only able to obtain contempt as a remedy from the court when someone has breached an order of the court or the divorce judgment.
When should prenuptial and postnuptial agreements be considered?
A prenuptial is primarily appropriate where you have parties entering a marriage - or a non-marriage relationship if their intention is to be committed but not legally married - and either of them is bringing assets into the relationship. Such an agreement would be helpful to govern their intentions in terms of the financial, property, and support issues. However, if the parties have no assets, then a prenuptial agreement doesn’t make sense because they're going to acquire all their property together in the relationship. Another scenario for prenuptial agreements is blended families and couples who are getting married later in life and want to preserve their assets for their respective children.
Postnuptial agreements are reserved for unique circumstances where people contemplate something specific needing to be addressed and want to plan for those issues by way of a specific agreement.
Are prenuptial agreements ironclad?
They are ironclad if they're done correctly. There are arguments that can be made with respect to any agreement and its validity, including whether the person had the capacity to enter into it and whether they were threatened, coerced, or forced into entering into it. Unless you have those issues, it's a valid agreement.
In order for it to be a valid matrimonial property agreement under the legislation – this applies to prenuptial agreements, postnuptial agreements, separation agreements, and divorce agreements – there is a process required where the parties each have to review the agreement and sign it with an independent lawyer. Otherwise, it's not binding within the meaning of the legislation, which stops the court from having the jurisdiction to intervene.
What effect does a prenuptial agreement have on divorce?
If it's done properly and there are no issues of validity, a prenuptial agreement should streamline the divorce process. It gives the parties a clear direction of what will happen in that scenario and how they will deal with the issues, from support to property. It outlines how the divisions will occur and takes steps to formalize the arrangement and move to have the divorce granted and finalized.
What factors will a judge consider when determining which spouse should keep the marital home?
There are two different time scenarios to consider. In the short-term when parties first separate, deciding who will stay in the home is often a contentious issue. There can be arguments over exclusive possession of the matrimonial home. If called upon to do so, the court can make an order determining who will live in the home until they figure out a long-term property solution. The court would look at whether there is a primary caregiver for the children, which can range from a stay-at-home mom or dad to a parent who's just more involved than the other. The court's primary concern in family issues is the best interests of the children, so they want to ensure there's as little disruption to the children as possible while they sort through the short-term and long-term issues. The court would also consider the financial implications, such as who's able to afford and maintain the property.
For a long-term solution, the court must consider the bigger picture. What are the parenting arrangements? Where are the children going to live primarily and with which parent? Who is receiving support and how much? What is the financial ability of each of the parties? The only options for the marital house in the long-term are that one of the spouses buys the other out and receives ownership or it gets sold and they divide the equity.
Are there any tax or financial consequences as a result of deciding to keep the marital home when dividing property during divorce?
No. Principle residents are exempt from capital gains. The marital home can be transferred without consequence, just like it can be sold without consequence. Any increase that would be normally subject to a capital gain is exempt.
For secondary properties, such as cottages and vacation homes, there may be a way to have one party keep each of the properties to claim as their principle residence moving forward. It depends on the timing. If there has been an increase in value, there is likely a capital gains implication. Depending on the property, there may be exemptions the owner can claim, but advice from a tax expert should be sought.
Are there different types of child custody available and how would that be decided on?
Parents who are able to communicate and make decisions together will decide on a custody scenario that works best for them and the children. If not, the court will make the decision based on what each parent presents as their view on the best interest of the children. It varies from family to family. Custody doesn’t mean where the child lives so much as which parent has the decision-making powers for the child.
There are four main types of child custody. Sole custody means one parent is the primary caregiver and makes all of the decisions for the children without input from the other parent. This is reserved for unusual circumstances where communication is really strained or there are issues with the other parent being unavailable.
Joint custody means the parties make decisions jointly in consultation with one another. They make major decisions together related to the child’s upbringing, such as schooling, healthcare, and religion.
Shared custody goes hand in hand with joint custody. Parents share equal amounts of time with the children and make major decisions together, because they're both very involved in the lives of their children. Shared custody has become common in the last couple of decades; however, there is pushback from the courts about only using shared custody when the parents are very much on the same page.
Split custody is when there is one child residing primarily with one parent and another child with the other parent. They arrange access time with the parent who doesn’t have primary care based on what is best for the children. Depending on their ages, the children’s input may be included in the discussion.
If one parent has full custody, can he or she move the children to a different province without the non-custodial parent's permission?
As the sole custodial parent, they have the authority to make the decisions regarding where the child is going live, even if it includes relocation. However, you have to consider the whole parenting scenario and what arrangements are in place for the other parent's time or access. In this scenario, the custodial parent should apply to the court for a variation for permission to move with the child, which will likely be granted because they have the authority to make the decision. We then need to deal with how relocation affects the other parent's time with the children. If they move to a different province, then having access every other weekend is not feasible and longer periods of time during holidays would have to be considered.
If the court grants permission for one spouse to take the children to another province, can the non-custodial parent appeal the judge's decision?
There is always an opportunity to appeal. Depending on how the circumstances unfold and if it’s a matter of urgency, the court may be called on to make a short notice urgent interim decision on the issue. Then it's directed to be determined later on by a full trial to decide what is in the best interest of the children.
The appeal, and whether it would be advisable, would depend on the time of decision. If it were during the interim, I would go ahead with the trial to have the determination made, because appealing an interim decision is complex.
If the decision has been made on a final basis by way of a trial, then it's reviewable by the Alberta Court of Appeal. The proceedings must be filed before that court and everything from the trial is reviewed to determine whether there were any errors that would justify the decision being overturned at that level. Or the court may determine that the decision should be sent down to the lower court for reconsideration based on the concerns identified. Alternatively, the court can say they don’t see any errors and dismiss the appeal. A lot of deference is given to the lower court in their decision, especially in a trial where they've had the opportunity to weigh all the evidence, hear from witnesses, and assess credibility.
What would happen if the parents have joint legal and physical custody and the primary wage earner is asked to relocate for work?
It depends on where the children are residing primarily. If the primary income earner is the access parent who the children don’t reside with primarily, then that parent doesn’t need permission and is free to move and pursue the opportunity. Then it would come back to the question of how the move impacts the access structure. If it's the other scenario where the primary parent is also the main supporter, then they're likely going to be granted permission to go.
The courts in Alberta look at the primary parent as having the same rights as the access parent to choose and pursue opportunities within the country. However, we still have to consider how it impacts parenting, so it's open to either parent to apply to have the issue reviewed to determine with which parent the child is better off living. It comes down to the individual circumstances, the details of the relocation, and how the proposed plan fits in with the best interest of the children.
Certified Divorce Financial Analyst
Business Valuators / CPAs