Category Archives: Family Law

Divorce can be a challenging time for couples and their families, and one of the most complicated aspects of this process is the division of property. In Alberta, property division is governed by the Matrimonial Property Act, which provides guidelines for how assets and debts should be distributed among spouses. In this article, we will discuss what you need to know about property division in family law in Alberta.

The basics of property division in Alberta The Matrimonial Property Act applies to married couples who are separating or divorcing, and it outlines how property is to be divided in the event of a breakdown of the marriage. The Act states that all property acquired during the marriage is considered matrimonial property and is subject to division between the spouses. However, certain assets are exempt from division, including property owned before the marriage, inheritances, and gifts.

In Alberta, property is divided based on the principle of equalization, which means that each spouse is entitled to an equal share of the marital property. This is determined by calculating the net family property, which is the value of the assets and debts that each spouse acquired during the marriage. The spouse with the higher net family property must pay the other spouse an equalization payment to ensure that each spouse receives an equal share of the marital property.

What Factors Are Considered in Property Division?
When determining how property should be divided, the court will consider several factors, including each spouse’s financial contribution to the marriage, the length of the marriage, the needs of each spouse and any children, and any agreements made between the spouses. In some cases, a court may also take into account any misconduct by either spouse that affected the value of the property or the other spouse’s ability to acquire property.

How to Protect Your Assets During Property Division
If you are going through a divorce or separation, it is important to take steps to protect your assets. First, it is important to document all of your assets, including bank accounts, investments, and property deeds. You should also avoid making any major financial decisions until after the divorce is finalized, as this could impact the division of property.

What is Considered Property?
Property can include any assets or debts that a person or entity owns. In the context of family law, property can include real estate, personal property (such as vehicles, furniture, and jewelry), investments, bank accounts, pensions, and debts (such as credit card balances, loans, and mortgages). It is important to note that property that was acquired before a marriage, or received as a gift or inheritance, may be exempt from division depending on the laws of the specific jurisdiction.

What Is A Matrimonial Home Under The MPA?
Under the Matrimonial Property Act (MPA) in Alberta, a matrimonial home is defined as any property that is ordinarily occupied by both spouses at the time of separation. This can include a house, condominium, apartment, or any other type of dwelling.

The matrimonial home is treated differently than other types of property under the MPA, and it is subject to special rules in terms of division and possession. Specifically, each spouse has an equal right to remain in the matrimonial home after separation, regardless of who owns the property.

This means that a court may order that one spouse be allowed to remain in the home, or that the home be sold and the proceeds divided between the spouses. The rules surrounding matrimonial homes can be complex, so it is important to seek the advice of a qualified family law lawyer if you have questions about your rights and obligations in relation to your matrimonial home.

What if We Can’t Agree on Property Division?
If you and your spouse cannot agree on property division, you may need to seek the assistance of a family law lawyer or a mediator to help you negotiate a settlement. Mediation is a process where a neutral third party helps the parties to reach an agreement. In some cases, the court may also be asked to make a decision on property division. If the court is required to intervene, it will make a decision based on the laws of the jurisdiction, and take into account various factors, such as the length of the marriage, each spouse’s contributions to the marriage, and the needs of any children involved.

It is also important to seek the advice of a qualified family law lawyer who can guide you through the property division process and ensure that your rights are protected. A lawyer can provide valuable advice on how to negotiate with your spouse, represent you in court, and ensure that you receive a fair settlement.

Conclusion
Navigating property division in family law can be a complex and emotionally challenging process, but it is important to ensure that your rights are protected and that you receive a fair settlement. If you are going through a divorce or separation, it is important to seek the advice of a qualified family law lawyer who can provide valuable guidance and support. The lawyers at Kurie Moore Law Group have extensive experience in all aspects of family law, including property division, and are committed to helping their clients achieve the best possible outcome.

COVID-19 is an unprecedented situation for everyone and has left many parents wondering how COVID-19 will impact their parenting orders or agreements that were in place before the outbreak of COVID-19, and whether or not one parent’s time with the child or children should be restricted. Fortunately, the Court of Queen’s Bench of Alberta (the superior court of the province) has released a decision and given some firm guidelines about how parenting should proceed during COVID-19.

In SAS v LMS (2020 ABQB 287), the father applied to the Court for a substantial change in parenting due to the COVID-19 pandemic. The Court summarized the principles used in making decision exactly as follows:

1. Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children;
2. Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent;
3. Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety;
4. Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants temporary change in the order;
5. The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct;
6. If an application cannot be made because of the urgency of the situation an application by the defaulting party must be made as soon as possible after learning of the emergency;
   Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful;
7. Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and
8. Non-compliant parents can expect no second chances.

An important take-away from this decision is contained in #3 where the Court stated that orders are meant to be followed and that parenting time should not be withheld (unless there are exceptional circumstances). The Court is also very clear that if an application to change parenting is to be heard, then it must have some verifiable evidence on which the Court can rely in making a decision.

The Court in SAS v LMS also stated that “[the Court does] not think the default position should be that the household with the lowest risk level should be the home where the children reside at during the pandemic, with the other parent having virtual access only.”

SAS v LMS was decided on April 24, 2020 and (as of the date of this blog post) remains the leading case in Alberta on how parenting should proceed during COVID-19.

NOTE: This blog post is for general information purposes only and does not constitute legal advice. Should you require legal advice regarding the content of this blog post and how it applies to your situation, please contact the office to schedule an appointment to consult with a family lawyer and they would be happy to assist you.

The COVID-19 pandemic has presented significant challenges for families wishing to resolve their disputes through court ordered processes. Despite these challenges, court operations have resumed, and both the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta are hearing new family matters.

The newly implemented Family Docket in Queens’ Bench strives to provide a more flexible approach to family matters and a presiding Justice will hear the matter and provide an opinion on the best way to proceed by way of “endorsement.” The Provincial Court of Alberta is dealing with family applications the same as before the COVID-19 pandemic.

How do I schedule a Family Docket Date in Queens’ Bench?

To secure a hearing date in Family Docket in Queen’s Bench, a claimant must select an available date (they go quick!) and file a Notice to Attend. Once the Notice to Attend is filed, it must be served on the opposing party no later than five (5) days before the scheduled hearing date.

Most hearings will be held via Webex or by telephone. Details will be included on the Notice to Attend form provided by the Court once the matter is scheduled.

What outcome can I expect from Family Docket?

Possible outcomes from a Family Docket hearing include, but are not limited to:

• Consent order;
• Referral to alternate dispute resolution, i.e. mediation, arbitration, collaborative processes;
• Regular chambers date; and/or
• A special chambers date.

How we can help

Our family lawyers have become familiar with the new Family Docket process and can help you secure a hearing date, file the proper materials, and serve the materials on the opposing party. For more information on the new Family Docket, please visit this link.

NOTE: This blog post is for general information purposes only and does not constitute legal advice. Should you require legal advice regarding the content of this blog post and how it applies to your situation, please contact the office to schedule an appointment to consult with a family lawyer and they would be happy to assist you.