Learn the language of lawyers who practice law in Alberta’s court system

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Photo of the wording that comes up when somebody wants to get a divorce, an area of family law regularly handled by the lawyers and attorney in the Edmonton law offices of The Family Law firm, serving clients throughout Alberta and the rest of Canada.The following definitions are provided for information purposes only and should not be construed as legal advice.  The order is determined by the alphabet, not the relative importance of the legal term. There are complexities with almost all of the terms and only a lawyer can explain all the issues and possibilities. Request a free introductory consultation with a lawyer at The Family Law Firm to learn more about your legal matter.   

Access

Access to a child is often referred to as Parenting Time.  It applies to people who were married and are now Divorced or in the process of getting a Divorce.  Access to children is defined by the past and present relationship between the parent and the children and the ability to access the children.

Parenting Time can be limited by geographical location, work, desire and spousal restrictions.   See below for two examples of how the Courts view Access.

Example #1 - One parent lives in Vancouver, the other parent and children live in Fort St. John.  Given the widely separate locations, the Court will not order access or parenting time that would be possible if the parents live close to each other.  

Example #2 - One parent works 16 hour days, 25 days out of the month.  Since this parent would be unavailable for Parenting during most of the month, it is very unlikely that the Courts would order shared time with children.  It is possible that a Spouse of the working parent could request Access time, but this request is usually opposed on the grounds that access should only be granted to parents.   

Annulment

Annulment in Alberta occurs when a Court Orders that a marriage was never valid from the beginning and, as such, the parties were never spouses.  Annulment is fairly rare in Alberta and is only granted in very limited circumstances. 

Child Support

Most often the non-custodial parent pays child support to the custodial parent.  The amount is determined by the federal child support guideline, which in most cases is strictly followed.  The Family Law Act of Alberta has similar tables to determine the amount that the parent must pay.  The amounts under each Act (the Divorce Act and the Family Law Act) are the same.

There are always exceptions and important considerations (call us to discuss). 

Child support payments are based on Income level and Custody (Parenting time).  Shared or Split Custody Parents may not pay child support if their income levels are similar.

Although Child Support amounts are set out in the federal guideline, a skilled Family Law lawyer can find ways to lower or raise the amount payable, depending on your goals.

Child support - extraordinary expenses (Section 7)

In deciding Child Support, the Court can order payment of Extraordinary Expenses or Special Expenses.  The amount paid by each parent is governed by the proportionate income of the parties.  For example, if both parents earn the same amount they will share the expenses on a 50/50 basis.  However, if one parent earns $ 80,000.00 per year and the other parent earns $20,000.00 per year, they will pay expenses on an 80/20 basis.   Whether an expense qualifies as an Extraordinary Expense depends on the income of each party, the expense itself and the needs of the child.  Examples of Extraordinary Expenses include medicine, dental care, daycare, school expenses, hockey enrollment and equipment, music lessons and equipment, etc,

Contact

Contact is the time a Court awards to a person who is not a Guardian of the child.  If this "non-custodial parent" has ever lived with the child or has regularly cared for the child, he or she is often considered or ordered by the courts to be a Guardian.  If that parent has never lived with the child and doesn't or hasn't regularly cared for the child, he or she is unlikely to be named a Guardian and his or her time with the child is defined as Contact.  

Cohabitation agreements

A Cohabitation Agreement is a written contract between two individuals who intend to cohabit or are cohabiting, but are not married.  This Agreement addresses the parties' rights and obligations during and after their cohabitation and may include issues regarding spousal support and division of property. A Cohabitation Agreement may deal with only one right or obligation concerning the relationship, such as an asset.

Court Orders

A Court Order is the mechanism used by the courts to demand an action or non-action by a person involved in a Family Law or Divorce matter.

Interim Court Orders

An Interim Court Order is an Order that stays in place until a Final Court Order is issued or the parties involved agree to comply with the order.

Custody

Given the strong link between most parents and children, it should come as no surprise that child custody is one of the most hotly contested areas of Divorce law.  It is also one of the most complicated areas of Family Law.  Custody legally refers to who has decision making and who cares for the children after a break up.  Custody is not necessarily about who physically cares for the children and may instead refer to Parenting time, Parenting Schedule or just Parenting.

Divorce

Divorce in Alberta is governed by the Divorce Act of Canada.   Divorce is accomplished by a legal process, which ends with the marriage of two people being dissolved.  The process can involve a number of court appearances or none at all, depending on the number of issues in the Divorce, the parties, the lawyers and the Justices involved.  Divorce from a layman's perspective is the process used to end a marriage.  Divorce from a Family Lawyer's perspective is the legal process used to resolve issues governed by Family Law.   Courts will not grant a Divorce if even a few issues are not "dealt with".

Exclusive possession

Exclusive possession allows for one spouse to use and maintain possession of specified marital property during a divorce. If, at the time of separation, the parties cannot agree on who will maintain ownership of certain assets, either party can make an application to the Court for an exclusive possession order.  If granted, the application gives the applicant exclusive possession of the specified asset for a period of time. An Exclusive possession order does not give permanent ownership. Spouses must come to an agreement or have the Court decide on a fair and just final division of assets. 

Ex-parte orders

Ex parte orders refer to judicial proceedings in which one party is awarded relief in the absence of the other party who is neither represented nor given notice.  In almost every instance of Family Violence, the initial Order is done on an Ex-Parte basis.

Guardianship

Guardianship is determined by the Court, based on factors surrounding the birth and raising of the children following the birth of the children.  A Guardian has the ability to make decisions and often determines whether Parenting time or Contact will occur between the person who is a non-guardian and the child.  Guardians also determine who will (and who will not) receive legal notice of any proceedings regarding the children. 

Guardianship after death

The Guardianship of your children after death is determined by the Courts.  However, the Courts will take into account the past status quo, any testamentary documents and present guardians of the children.  In some instances, it is important to deal with this important matter if death is a possibility in the near future.

Joint Custody

Joint Custody means both Parents have equal or at least some decision making.  This is often the case where both parents are fairly involved in the raising of the children.  The Parents in this type of Custody will make key decisions together about education, medical and religion.   Less emphasis on joint decision making applies to issues such as travel and extracurricular activities.  Under Joint Custody, one parent can have primary care of the children while the other has Access or Parenting Time every second weekend, three out of four weekends per month or some similar setup.

Judgment

A Judgment of the Court is a decision issued after a trial of the matter, agreement between the parties or after a Desk Divorce.  A Trial involves the giving of oral evidence, which is rare in Queens Bench but more common in Provincial Court.

Queen's Bench has exclusive jurisdiction to deal with Divorce.  Queen's Bench and the Provincial Court have, with some very specific exceptions, the same jurisdiction to deal with Family Law matters.

Interjurisdictional Support Orders (ISOS)

One of the most complicated areas of Family Law is the law, process and procedure surrounding Interjurisdictional Support Orders.  The process allows individuals to make an application in their own jurisdiction (ie. your local Court House) regardless of where the children live.  Individuals who are or are about to be involved in this process should consult a family law lawyer immediately.   The Family Law Firm has had numerous success stories with clients involved in this complicated area

Maintenance

Maintenance is another name for support, hence the terms Spousal Maintenance and Child Maintenance.

Maintenance Arrears

If a payor does not pay Maintenance every month as Ordered, "arrears" accumulate.  These are payable until/unless a Court Orders that they are not payable.  Application can be made to have Arrears reduced or rescinded.

Often individuals seeking relief from child support or spousal support arrears can ask for a "stay of enforcement" to relieve the pressure to pay off overwhelming arrears.  Often a stay of enforcement is necessary to keep a driver's license.

Contact The Family Law if you need help to address arrears of support and the enforcement actions of Maintenance Enforcement.   We can also help if you need help to oppose an application by your ex spouse to reduce or rescind arrears.  

Maintenance Enforcement Program

In Alberta, the Family Maintenance Enforcement Program MEP is the agency in charge of enforcing Child Support and Spousal Support Payments.  Methods of enforcement include taking a driver's license, garnishee of wages and bank accounts, seizure of vehicles, and, on rare occasions, a foreclosure on property.

There are similar enforcement agencies across Canada and the United States.  Whether a Support Order will be enforced in another geographical area outside of Alberta depends on the existence of a Reciprocal Enforcement Agreement between Alberta and that State or Country. 

Marriage after divorce

Alberta law requires the presentation of a Certificate of Divorce in order to be eligible to re-marry.  In order to obtain your Certificate of Divorce, you must provide your court file number to the Clerk's office in the city where you obtained your divorce.

Mediation

Mediation is an option available for individuals involved in a legal dispute.    A mediator, who is typically a lawyer, social worker, or a psychologist, assists parties with equal bargaining power to reach an agreeable resolution. There are two forms of mediation: open and closed.

Open mediation is a process that is neither without prejudice nor confidential. The mediation is open in that it aims to keep parties bargaining fairly and in good faith. In these instances, mediators may be authorized to provide reports once the mediation is finished.

Closed mediation involves a more confidential approach. All discussions between the parties are classified, save for a few exceptions, such as concerns of child welfare. Additionally, these meditations occur without prejudice- anything discussed cannot be used as evidence against a party in their legal case if they do not settle. 

Parenting

Parenting or Parenting time is the time parents can spend with children.  It is set by the Court or by Agreement between the parents.  Having Parenting time is not the same as having decision making authority. 

Personal property

Personal property is defined as anything that can be owned other than land.  There are two categories of personal property: tangible and intangible. The former is personal property that has a physical entity, such as jewelry, electronics, etc., the latter often includes intellectual property, which includes stocks, trust fund accounts, etc.

Prenuptial agreements

A Pre-Nuptial Agreement (pre nup) allows a couple to pre-determine the sharing of assets on separation.   A pre-nup is essentially a form of insurance.  It insures, to a certain degree, that there will be no surprises when separation occurs with the splitting of assets.  It provides a fair degree of certainty about what will happen with a party's assets in the future.

Real estate

Real estate is any piece of land and the structures on that land.  It also includes, to a certain degree, the air above it and, to a lesser degree, the ground below it.  . The Matrimonial Property Act of Alberta and the Real Estate Act govern Real Estate in Alberta.

Restraining Order

Restraining orders are issued by the Courts to prevent one person from contacting another person.  The nature of the order varies, but the goal is always the same:  facilitate the protection of an individual who has been the victim of violence or is concerned for their personal safety.

Restraining Orders are generally sought when the violence is not current.  Recent or current violence often results in the issuing of an Emergency Protection Order.  

Same Sex couples

Alberta law now treats Same Sex couples in the same manner as opposite sex couples.  The Family Law Firm has a history of representing individuals of any sexual orientation, race or background.

Separation Agreements

A separation agreement is a legally binding contract agreement between two spouses at the time of separation. This agreement outlines each party's rights in terms of child and/or spousal support, child custody and access, property, and finance.

Separation Agreements are extremely useful if both parties can agree on the issues in their Divorce or Separation.  A Separation Agreement must be signed by lawyers who have given the individuals involved legal advice.   If this step is not taken, the court may consider the Separation Agreement non-binding. 

Anyone who drafts a Separation Agreement should have it redrafted by an experienced Family Law lawyer to ensure it protects your interests and includes all of the "legal ease" expected by the Courts.

Shared Custody

The term "Shared Custody" is a little misleading as it does not necessarily mean that decision making is shared at all times.  Most often the parents will share the responsibility of raising children on a one-week on, one-week off schedule or some variation of that pattern.   Courts favour this arrangement when it is possible and appropriate for both parents.

Sole Custody

Sole Custody refers to a situation where one parent has sole decision making.  It normally happens when one parent ceases to "care about" caring for the children.  This does not necessarily mean that a parent has no feelings for a child and it may instead mean that something is interfering with the parent's ability to parent a child.   See Custody to learn more.

Split Custody

Split Custody means one Parent raises one or more of the children and the other Parent raises one or more of the children.  Decision making may or may not be shared.  This arrangement will often occur when one of the children wishes to live with one parent. It also occurs quite often when step parents are involved.  Each parent may or may not have access to the child in the care of the other parent. 

Spousal Support

Spousal Support, unlike Child Support, is not defined by tables.  There are Spousal Support guidelines, but at best they may only influence the Court's decision making.   It is entirely possible to argue that these guidelines do or don't apply to a particular case. It is also possible to argue the lower or upper range of both payments, and the length of time for Spousal Support payments.

Status Quo

Court rulings tend to support the maintenance of the status quo, or what is currently happening in your relationship.  For example, if you have always cared for the children and your spouse has only been cursorily involved in their upbringing, any Court Orders will likely call for maintenance of the present situation.  If, however, both parties work, both raise the children and both put in equal time caring, any Court Order will reflect this Shared Parenting arrangement.

The best way to avoid a Status Quo situation that is adverse to your interest is to consult a lawyer immediately and get advice on how to change the status quo. 

Stay of Enforcement

If your income has gone down or you are unable to pay child support amounts, you can apply to the Court for relief from the Enforcement.  The period of relief is usually 90 days, but the Court may provide additional relief to allow you to "get back on his/her feet". 

You have questions about Alberta law. We have answers.

Q: Should gender be considered when you hire a lawyer?
No. There is no evidence that the gender of a lawyer impacts Court decisions.

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