Services

What we do

RCM provides a variety of family law services related to many family legal issues, including:

  • Divorce and separation;
  • Division of matrimonial or common-law property;
  • Guardianship, parenting, custody, and Access;
  • Pre-Nuptial, marriage, co-habitation, and settlement agreements;
  • Child Support; and
  • Spousal Support

These matters may be solved through various methods including:

  • Negotiation
  • Mediation
  • Arbitration
  • Litigation; and
  • Collaborative Family Law

Click to expand each section to learn more about our Services:

Divorce is the final, legal ending of a marriage. Deciding to end a marriage is difficult. You have to deal with huge emotional issues and make many tough decisions. You also need to know your legal rights and responsibilities.

Divorce in Canada is governed federally by the Divorce Act. To get a divorce in Canada, you will have to show that your marriage is over. The law says marriage breakdown has occurred if:

  • you and your spouse have lived “separate and apart” for one year;
  • your spouse has committed adultery; or
  • your spouse has been physically or mentally cruel to you.

Most divorces in Canada are based on one year separation. Living “separate and apart” does not necessarily mean living in separate homes – you can be separated but still share the same home for various reasons such as parenting children or saving money.

To commence a divorce action, one of the parties (of which one must be resident of Alberta) files a Statement of Claim for Divorce. They may also decide to file for a division of matrimonial property within the same Statement of Claim. The Statement of Claim for Divorce will also propose parenting of any children of the marriage and support for the child or the applying spouse. The filed Claim is then served on the other spouse.

The responding Spouse may choose to file a Statement of Defence (meaning they disagree with the proposed Claim), Demand of Notice (they agree with the proposed terms of the divorce) or file a Counterclaim, which proposes a separate proposal with respect to property, support or parenting. This counterclaim for Divorce would then be served on the other spouse.

Once the parties have been ordered by a court or have agreed via a matrimonial property or settlement agreement with respect to the division of property, parenting of children, and the payment of support for any child of the marriage or their spouse, they may apply for the divorce to be final. A Divorce Judgment shall be forwarded to the court and 30 days after the divorce Judgment has been signed, the parties may file for a Certificate of Divorce. Neither spouse can remarry until the Certificate of Divorce is obtained.

Deciding to end a marriage is difficult. You have to deal with huge emotional issues and make many tough decisions. You also need to know your legal rights and responsibilities. RCM LLP can assist you if you wish to file for divorce or have been served with a Statement of Claim for Divorce.

The Alberta Matrimonial Property Act, or the ‘MPA’, deals with the disposition of a married couple’s property. There is an assumption in Alberta that the matrimonial property will be divided fairly when the spouses enter into a property agreement or receive a property judgment. There are, of course, several rules and exceptions to follow in the division of matrimonial property where a lawyer will be crucial.

The MPA applies only in Alberta and to legally married spouses—not to common-law spouses. A claim to divide matrimonial property under the MPA can be made by on its own or with another claim, such as a claim for divorce.

Generally speaking, “matrimonial property” is all property acquired by spouses during the marriage. This property is generally divided equally between spouses, unless it would be unfair to do so. Certain kinds of property, however, are exempt from division under the MPA.
Property which is usually divided under the MPA includes:

  • the matrimonial home;
  • household goods (this includes almost all personal property used by family members);
  • RRSPs and employment pensions;
  • business interests;
  • investments, stocks, bonds;
  • vehicles; and
  • other property that has been purchased during the marriage, brought into the matrimonial relationship, or used for the mutual benefit of the spouses.

Property which is usually excluded from division under the MPA includes:

  • property acquired by one spouse before the marriage;
  • property one spouse received as a gift;
  • property one spouse received by inheritance;
  • an award or settlement for damages in favour of one spouse (such as money paid for pain and suffering in an automobile accident, for example) unless the award was meant to compensate both spouses.

Parents have an obligation to support their children when they separate from the other parent. Children are entitled to support if they are under the age of majority and still dependent on a parent. The guiding principle of Canada’s child support law is that children should continue to benefit from the financial means of both parents just as they would if the parents were still together.

Children attending post-secondary education are also usually entitled to support, as are children over the age of majority if he or she is unable to become independent because of an illness, disability or “other cause”.

The amount of support for the children of married or divorced children is determined by the Federal Child Support Guidelines (the “FCSG”), while the support for the children of parents that have never been married is calculated pursuant to the Alberta Child Support Guidelines.

The Alberta and Canada Child Support Guidelines set out detailed rules and tables to show how much child support parents should pay when they separate, which is essentially a function of the number of children and each parent’s income.

Typically, the total income (line 150), of a parent’s Notice of Assessment or Income Tax Return will determine that parent’s income for the purposes of calculating the base child support that is payable. Determining income can become somewhat complex when a party is not employed or is self-employed, and expert assistance may be necessary.

Parents must also contribute to a child’s “special or extraordinary expenses”. These include child-care expenses, medical and dental premiums, health-related expenses, extraordinary expenses for educational purposes, post-secondary education expenses and extraordinary expenses for extracurricular activities. Each parent is usually required to pay these expenses commensurate with their income.

In Alberta, parties can register child support orders or agreements with the Maintenance Enforcement Program. This provincial government agency will attempt to enforce all agreed to or court ordered child support where it is administratively possible and practicable. Parties must exchange their income tax returns annually to ensure they are paying the correct amount of child support.

Calculating child support amounts and entering into agreements with the other parent can be complicated, and it would be best if you contact our office to ensure that you are paying or receiving the correct amount.

When a married or common-law couple separates or divorces, the party with the higher income may be required to make support payments to the other party to mitigate the financial impact of the separation. This payment is called “spousal support”.

Before you enter into an agreement to pay or receive spousal support, it is strongly recommended that you seek legal advice, because spousal support is a very complex issue and can be affected by many different factors. Just because a spouse is in a financially weaker position does not mean he or she is automatically entitled to support. The reasons the marriage or relationship ended do not affect a spouse’s legal obligation to support the other spouse following a divorce.

If you cannot agree on spousal support, you can ask a judge to make an order determining what spousal support must be paid. When making spousal support decisions involving divorced or divorcing couples, courts must base their decisions on rules set out in the federal Divorce Act. Alberta’s provincial laws apply to common-law couples and to married couples until they apply for a divorce, which are similar to the federal rules.

The Divorce Act sets out certain factors and objectives that a judge must consider when deciding whether a spouse is entitled to support when they divorce. These include:

  • the financial means, needs and circumstances of both spouses;
  • the length of the marriage;
  • the roles of each spouse during their marriage;
  • the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions; the ongoing care of the children;
  • the encouragement of self-sufficiency within a reasonable period of time;
  • any order, agreement or arrangement already made about spousal support; and
  • whether either spouse is paying child support.

Determining a parenting or access arrangement after parents separate is often very stressful. Parties must decide where the children will live, who will make major decisions in the children’s life, and what time each parent will spend with the children.

Married or divorced parents who cannot agree on these issues may apply for a custody and access order under the Canada Divorce Act. Parents who have never been married to each other may apply for a guardianship and parenting order under the Alberta Family Law Act.

Generally speaking, one or both parents may have custody or guardianship of their children. Custody or guardianship refers to the responsibility of making decisions with respect to the raising and care of a child, including the child’s place of residence, discipline, education, and consent to medical treatment. Where one party has sole custody or guardianship, that parent makes all decisions with respect to the child, while these decisions are shared where the parents have joint custody or guardianship. If there is joint custody, many different living arrangements are possible.

If parents cannot agree on custody and access (or guardianship and parenting) a judge may make an order after considering the following principles:

  • the best interests of the children come first;
  • children should have as much contact as possible with each parent, so long as this is in the children’s best interests; and
  • the past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.

It is always better if the two parties can agree on how to settle the issues, whether through the use of a mediator or settlement meeting with their lawyers. Ideally, you should have lawyers draft your separation agreement. If both spouses work with one lawyer to draft the separation agreement, once it is finalized, one of you should take the separation agreement to a separate lawyer for independent legal advice.

To be valid, the agreement must:

  • be in writing;
  • have been entered into freely and without coercion;
  • clearly show that each party received independent legal advice about the effects of signing the agreement; and
  • not be unconscionable.

If the separation agreement includes matrimonial property, it must also meet the formalities of the Matrimonial Property Act.
A separation agreement is a very important document, and will enable each party to move on with their lives if drafted property. There is legislation and case law which is specific to the disclosure requirements a party must provide and receive for an Agreement to be valid. There are also specific clauses and requirements for the terms in an Agreement to ensure that you are protected from future claims with respect to property and spousal support.

We encourage you to contact us prior to drafting or signing a Separation Agreement.

The legal term for common-law couples, or couples in unmarried relationships involving economic and emotional interdependency is “adult interdependent partners”. This relationship is defined in the Alberta Adult Interdependent Relationships Act, and covers a range of personal relationships that fall outside of marriage, including committed platonic relationships where two people agree to share emotional and economic responsibilities. There are two key elements that define an adult interdependent relationship.

First, an adult interdependent partner is a person who is involved with another person in an unmarried relationship of interdependence where they:

  • share one another’s lives
  • are emotionally committed to one another, and
  • function as an economic and domestic unit.

Second, adult interdependent partners must be:

  • living in an interdependent relationship for a minimum of three years;
  • living in an interdependent relationship of some permanence where there is a child by birth or adoption; or
  • living in or intend to live in an interdependent relationship and have entered into a written adult interdependent partner agreement.

Adult interdependent partners can apply to the Court for exclusive possession of household goods and the primary home. Household goods are defined as any personal property that is owned and enjoyed by one or more of the parties or any children living in the primary home. The home is defined as a house or part of a house, business, mobile home, residential unit or a suite that is or has been occupied by the parties.

The general rule is that when common-law couples separate, each party keeps the property bought during the relationship that they paid for or that is registered in their name. Unlike separating married couples, whose property is distributed according to the Matrimonial Property Act, there is no presumption of equal division of property between adult interdependent partners.

People who disagree can often get together to discuss the problem and reach a mutual agreement. When people sort out a problem themselves, they can work out a solution that best meets their own needs and interests.

Solving disputes through negotiation is a part of everyday life. Effective negotiation skills and methods can be learned; however, you may also prefer to hire a lawyer who has the expertise to help you to negotiate or who can negotiate on your behalf.

All lawyers at RCM have taken advanced training to develop their negotiation skills.

Where negotiation has not been successful, many parties find it worthwhile to retain a mediator to assist them in their negotiations. The mediator can often help to ease tension and encourage discussion between the parties. The mediator aims to help the parties themselves find a “win-win” solution, where everyone is satisfied with the result. The mediator cannot force either party to settle the dispute or to accept a particular solution.

A common reason for choosing mediation is that the mediator helps the parties reach an outcome that satisfies them rather than one aimed at proving right and wrong. Through mediation, parties may be able to work together to reach a solution which can be more creative than that which a court might impose.

Participation in mediation is almost always voluntary, although the Alberta Court of Queen’s Bench currently requires that support disputes be referred to a one-hour mediation before an the Court will consider an application.

The cost of mediation is usually shared between the parties. In most cases it is not necessary for lawyers to be present during the mediation process.
All but one of our lawyers are trained mediators, and all of our lawyers are experienced at representing clients at mediations.

When parties fail to reach an agreement through negotiation or mediation, they can agree to refer their dispute to arbitration. In arbitration, an arbitrator will be retained to hear evidence on issues the parties have agreed to arbitrate, and the arbitrator will then make a binding decision.

The particular arbitrator is usually chosen with the consent of both parties. If they cannot agree they can have an acceptable person or organization choose the arbitrator for them. In some cases, each party can choose an arbitrator, and the two arbitrators will then choose a third to make a panel of three.

Arbitration tends to be less formal and quicker than going to court. The parties can agree in advance on the ground rules for the arbitration (as opposed to court procedures which are fixed). One or both parties may have a representative speak for them at the arbitration hearing or they may speak for themselves.

The arbitrator will explain how his or her decision was reached, and may also make a decision to award costs to one party. Depending on how complex the issues to be arbitrated are, arbitration usually costs less than going to trial.

Sometimes parties simply cannot agree on an issue, or to arbitrate, and in this situation litigation may be required.

For most family matters, you can file an application in either the Provincial Court or the Court of Queen’s Bench. Generally, Provincial Court proceedings are less formal, but parties also tend to have less control over the process.

There are also certain family law matters where only the Court of Queen’s Bench can make an order. These matters are:

  • divorce;
  • exclusive possession of the family home or household goods;
  • declarations of parentage;
  • declarations of irreconcilability;
  • matrimonial or common-law property; and
  • financial support orders that deal with property or trusts.

Deciding which court to proceed in can be very important strategically. Therefore, you should talk to one of our lawyers about the advantages and disadvantages of filing in each forum.

The Collaborative Family Law Process aims to promote cooperation, not confrontation. It is mediation and problem solving with two lawyers, and often other professionals, who work with the parties come to a comprehensive agreement on all issues. Collaborative lawyers help you and your spouse to find and focus on your common interests, understand each other’s concerns, exchange information, explore a wide range of possible options, and reach solutions acceptable to both of you.

Prior to beginning the collaborative process, both parties and collaborative lawyers must sign a contract agreeing that they will not to go to court during the collaborative process. If the collaborative law process breaks down, both parties must to hire new lawyers and completely restart the divorce and separation process.

Although all of our lawyers use the skills of negotiation and settlement taught in collaborative training, a lawyer must be the member of the Alberta Collaborative Law Association to practice collaborative law in Alberta. Alison J. Chickloski is a member of the Collaborative Law Association of Alberta.

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