FAQs

What are the main differences between a prenuptial agreement and a cohabitation agreement?

Prenuptial agreements are prepared in contemplation of marriage whereas cohabitation agreements are for couples that are living together but may not be planning to get married. The new Family Property Act puts Adult Interdependent Partners (commonly referred to as common law couples) under the same regime as married couples for dividing family property. Previously, Alberta was one of the only provinces that did not have legislation to deal with the rights and obligations of common law couples with respect to division of property.

Why do you recommend partners get a cohabitation agreement before marriage?

A domestic agreement, such as a cohabitation or prenuptial agreement, gives partners some peace of mind around deciding in advance what will happen with respect to property division and partner/spousal support in the event the relationship ends. These agreements are used to define rights and obligations in advance to ensure that the default legislative regime does not apply. If either or both parties have assets that they want to address in some fashion other than what the law may prescribe, they should consider one of these agreements. These agreements are often a good idea if a person is entering a second marriage, living together and wanting to keep their finances separate or if they expect to inherit significant property in future or have a family business or agricultural property to protect.

Why is full financial disclosure essential during a divorce?

Before determining how to resolve financial issues such as property division and support, it is very important for clients to have full financial disclosure so they can make a well informed decision and so their lawyer is in a position to properly advise them. A lack of financial disclosure is one of the main ways in which people can try to attack a separation agreement and claim it is unenforceable. One way to help ensure a separation or domestic agreement can stand up to a challenge is to insist on full financial disclosure before it is negotiated and signed.

How does the process of divorce differ with and without children?

The main issues to be resolved in a divorce with children are property division, spousal support, child support and parenting issues. In a divorce without children the issues are limited to property division and spousal support. With children, it is important to keep in mind that the parties have to have an ongoing relationship, often for many years. The strength and health of the ongoing co-parenting relationship is key to positive outcomes for the parties’ children

Do you have to legally separate before you can go through a divorce?

There are three grounds on which to get a divorce: 1) physical or mental cruelty 2) adultery or 3) living separate and apart for at least a year. Most people simply wait out the year before applying for a divorce as the other two grounds need to be proven. However, people can live separate and apart while still living in the same house if they stop living together as a married couple and no longer hold themselves out to the world as a financial and domestic unit.

What is the difference between child custody, guardianship and child access?

“Custody” is language used under the federal Divorce Act that is being revised in March of 2021 so that the less value laden term “access” is used instead. The term “access” has already been used extensively under the provincial Family Law Act. Both terms refer to the time children spend with each parent. “Guardianship” refers to a bundle of rights that parents (and any other guardians) have to make important decisions for children relating to things such as health, education and religion.

How does moving out of the country affect a child custody arrangement?

This depends on whether the individual intends to move with or without the children. If a parent is moving without their children they should communicate this to the other parent and attempt to negotiate a new parenting arrangement that will facilitate an ongoing relationship with the children. This may include more extended holiday time per the moving parent or frequent FaceTime or telephone access.

If one parent desires to move with the children they require the other parent or guardian’s consent or a court order. If the matter proceeds to court, it is called a ‘Mobility Hearing’ and the court will determine whether or not such a move is in the child’s best interests. There are many factors that go into that analysis and often expert advice, such as a psychological assessment of the family, is needed. Some of the upcoming revisions to the Divorce Act relate to relocation. Under those new sections, the moving parent is required to give 60 days formal notice to the other parent (and anyone else who has a court order for contact with a child) of the intended move. The other party can then object or agree. If they object, the matter will go to a trial of the issue.

Is there a legal requirement to have a lawyer during a divorce?

It is ordinarily a good idea to consult with a lawyer about a major life event, including a divorce. A lawyer has the knowledge and experience to assist you with protecting your rights, the rights of your children and inform you of your obligations. Independent legal advice is important to ensure the enforceability of any separation agreement entered into.