Family Law

Yes. You can get a divorce in less than one year on two grounds: (1) if you can prove that your spouse has committed adultery or (2) that your spouse has treated you with such physical or mental cruelty that living together has become intolerable. If you wait for more than a year, you do not have to prove anything, and the divorce can proceed. The vast majority of people do the latter because divorces often take a year or more to complete anyway and because waiting is less costly than going to court to prove adultery, or physical or mental cruelty.

No. Parenting time and child support are considered two separate issues, so you must let the other parent see the child regardless. If it becomes clear that the other parent is not paying child support, and you have a child support order from the court, the best option is to ensure you are registered with the Maintenance Enforcement Program (MEP) (https://www.alberta.ca/maintenance-enforcement-program.aspx). MEP has the authority to collect child support on your behalf. If it is not being paid, MEP may take collection action by filing a writ against personal property, garnishing wages, garnishing funds owed to the other parent by the federal government (e.g., a tax refund), garnishing bank accounts, and suspending their driver’s license. If you do not have a court order, you should hire a lawyer to file an application for child support (info@insightlaw.ca), or seek the assistance of Resolution and Court Administration Services (https://www.alberta.ca/rcas.aspx). The key is to act quickly.

Although the law has progressed a lot in the last 20 years, and LGBTQ+ couples have most of the same rights as heterosexual couples, there are key differences. The Divorce Act (federal legislation) and Alberta’s Family Law Act (provincial legislation) were created with heterosexual couples in mind. LGBTQ+ couples were, for a very long time, barred from sanctifying their relationships, so they created other kinds of relationships that suited them better, and many became skeptical of the whole concept of a legal marriage, with its roots in heterosexual, patriarchal systems. Even so, the law did not offer LGBTQ+ couples some key benefits that heterosexual couples had automatically, and the demand amongst LGBTQ+ communities to have access to legal marriages grew.

When marriage rights for LGBTQ+ couples were first being contemplated, Alberta remained hostile to the concept of LGBTQ+ marriages for a long time. The federal Civil Marriage Act, which granted these rights, received royal assent in 2005. Alberta’s own Marriage Act had been amended in 2003 to define marriage as between a man and a woman only, and it invoked the Charter’s Notwithstanding Clause to prevent legal challenges to the law for the next five years. Although the province did not have the jurisdiction to define marriage, and the legislation would not have withstood a constitutional challenge, and LGBTQ+ couples in Alberta were in fact getting married after 2005, the definition remained in our legislation until 2014.

LGBTQ+ couples have suffered and continue to suffer prejudices that deeply affect their relationships and interactions with others. They have often dealt with wage and employment discrimination, housing discrimination, and multiple other forms of discrimination that introduce unique stressors into their relationships. As well, LBGTQ+ couples may have fewer supports from their families of origin than heterosexual couples. Many come from families that rejected their relationships and who they are. Many have created chosen families whose definition still defies heteronormative legislation. Some LGBTQ+ have internalized shame about their gender identity and sexual orientation. As a consequence, their relationships have unique challenges, and these sometimes result in the breakdown of LGBTQ+ relationships.

Additionally, LGBTQ+ couples often do not have the same stereotypical gender roles as heterosexual couples. There may be no clear caregivers of children, for instance. Legally, both parents in a same-sex relationship can be listed on a birth certificate in Alberta, but what happens if a biological parent who is not part of the relationship shows up and tries to assert their rights? Alberta’s Family Law Act states that a child’s parents are the birth mother and biological father unless the child is adopted or the result of artificial insemination. There is no room in that definition for the non-biological parent in a same-sex relationship who has not adopted the child.

Once an LGBTQ+ couple separates, they may also be subject to discrimination in the courts whose biases may drive them to create orders based on heterosexual norms, for example, giving more parenting time to heterosexual, two-parent families than LGBTQ+ individuals or families, or feeling like a birth mother is more of a mother than a non-biological mother. The courts are also not yet responsive to name changes and pronoun usage for transgender and gender variant individuals. Inappropriate references to “he” when it should be “she” and to someone’s old name can be deeply unsettling to members of this community. It is a form of erasure in an environment they may already feel does not recognize their rights.

LGBTQ+ couples have a significant number of challenges during their relationships and after they end. It is important to ensure LGBTQ+ couples are respected throughout the process of separation and divorce, and within the court system itself. They must know that when they see a lawyer, they are walking into a safe space that respects them as individuals. And they must know that their lawyer will stand up for them when they can’t do it themselves. It is equally important to ensure they have appropriate supports around them to assist with the process of separation and divorce.

It is a commonly held myth that children can decide which parent they want to live with at around the age of 12 or 13. This is actually untrue. Children technically do not have the right to decide this question until they reach the age of majority, which in Alberta is 18. However, the closer children get to 18, the more courts want to hear about their concerns and preferences. Courts will strongly consider the wishes of a 16-year-old, for example. But a court’s overriding consideration when deliberating about where a child should live is a principle, entrenched in law, called the “best interests of the child”. This principle is more fully outlined in Alberta’s Family Law Act, section 18, which describes the criteria that courts consider when determining the best interests of a child.

Of concern, though, is this persistent belief that young children should have the ability to choose which parent. Putting this decision in their hands can create emotional scars and heightened stress. Young teenagers have not matured enough to withstand the strain of such a decision, and they have not developed the mental capacity yet to make a reasonable choice. Nor should they be coached or encouraged to choose one parent over the other. While children’s needs and concerns should be heard and understood, as we say in legal and psychology circles, children have a voice but not a choice. It can be traumatizing to put the burden of such a significant choice on a child.

Yes. Family law encompasses both married and common-law couples. It also deals with prenuptial agreements, cohabitation agreements, and adoptions. Many family lawyers also practice family-related areas of law, such as wills and estates, and real estate.