A family lawyer explains the basics of family law
Trying to understand Family Law can be overwhelming & confusing, especially while navigating all the pain & frustration of a divorce or separation.
My guest today, Katie Ayer, Family Lawyer with Resolve Legal Group, is here to give us an overview of the basics.
Legal links Katie mentioned on the show :
Lawyer Referral: https://www.lawsociety.ab.ca/public/lawyer-referral/lawyer-referral-request/
Calgary Legal Guidance: https://clg.ab.ca/index.php/summary-advice/
Divorce Forms and Instructions: https://www.albertacourts.ca/kb/areas-of-law/family/divorce-forms
For more information, you can find Katie online @ resolvelegalgroup.com
Read her article in Divorce Magazine Canada @ divorcemagazinecanada.com/magazines
Phone: 403-229-2365
Facebook: Resolve Legal Group
Instagram: resolvelg
LinkedIn: Resolve Legal Group
Watch the video of this interview on our YouTube Channel.
Katie Ayer 0:00
Hi, I'm Katie Ayer and you are listening to the Divorce Magazine Canada podcast.
Deena Kordt 0:07
Hey, are you or someone you care about considering dealing with, or been through a divorce or separation? Well, you're in the right place. You don't have to do this alone. There are people who care and want to help.
Hi, I'm Deena Kordt, and author, blogger, publisher, and empowerment coach. Thanks for joining me on the Divorce Magazine Canada podcast. You are going to hear from our team of experts and professionals how to navigate this difficult transition in your life easier, more efficiently, and with better outcomes. Did you know we host online divorce resource groups that are free to attend, and everyone is welcome? Check out the links in our show notes. And be sure and join us.
We love bringing experts to you. Please refer to our terms of service available on our website, divorcemagazinecanada.com. And stay tuned at the end for the legal language. Ready? Here we go.
Family law, what is it? Have you ever wondered, my guest today Katie Ayer from Resolve Legal Group is going to address the family law basics in a Family Law 101 episode, she also wrote an article for the Divorce Magazine Canada and you can find that magazine displayed in many places across much of Alberta, you will see it displayed where free publications are because it is free. So grab a copy and meet all of the experts that have contributed very informative articles there. And it's, for example, in transit stations, grocery stores, banks, coffee shops, libraries, many many places, so be sure and check it out. Or you can also see downloadable PDF copies of it on our website, divorcemagazinecanada.com. Now let's meet Katie and find out more about the basics of family law.
Good morning, Katie. I am really thrilled to have you here with us today. And an opportunity to tell us more about what family law is. So please tell us a bit about yourself. And the why behind what you do. Sure, so
Katie Ayer 2:24
I am a family lawyer with Resolve Legal Group. I have been practicing family law in my own practice since August 2020 When I was called to the bar, but I have been with resolve legal group since April of 2018. So I started working here in my second year of law school, as a summer student and I have continued on because I just love what this firm stands for. It's a very holistic approach to family law matters. As you may know, and as some listeners may know, family law is more than just a legal issue. And, you know, oftentimes the courts are not the best place. Well, not even oftentimes all the times, the courts are not the best place for families to end up. So by being able to offer my clients something more holistic something looking at the whole picture of their family and how their family is growing and changing really makes my work more fulfilling than if it was just, you know, we're going to court. And that's that. So I mean, of course in in this area of law, sometimes going to court is inevitable, you can't prevent that you can't change it. But at least we have supports in place for our clients that helped make it more manageable for them. That's
Deena Kordt 3:46
amazing. And you've put together a presentation and we're looking at a slide right now that you're going to show us a PowerPoint, and give us an overview of family law 101. Because so many people it's it's just a scary thing. There's these evil lawyers out there that are just, you know, we want to we want to bust those myths, and not only introduce people to lawyers, like yourself who do care. You want to try and keep this out of the courts if possible. But just to help them understand what what family law what what does that even mean?
Katie Ayer 4:24
Right So through my presentation today, I'll give kind of a breakdown of what the different terminology the courts and your lawyers are likely using. Why there's different courts for different things, why something might apply to you and other things might not why you might hear a friend who's gone through this process, say one thing, but the same thing doesn't apply to your case. So it's just my presentation today will be a very brief and high level overview. But at least it will hopefully give listeners and viewers a starting point a jumping off point, if they're looking into this themselves as to what will apply to them, and where to find out more about their rights.
Deena Kordt 5:11
That's incredible. I just so appreciate Katie, that you're giving us this information and sharing your time this way to just to help people so they don't have that fear. And they don't feel all alone in this. And when they do hear some of this terminology, it doesn't add to the chaos in their brain. I just think this is going to be so beneficial. So let's get started. I'm excited to see what you've got to share with us. Alright, so And before we start, I do want to remind people that you can see these slideshows as well, on our YouTube channel. This is also linked to our website. So that's a couple places that you'll be able to find the video of this podcast so that you can follow along with the slides. So yes, go ahead, Katie.
Katie Ayer 5:56
All right. So we'll start with what is marriage?
Deena Kordt 6:01
That's a good place to start. Right. So
Katie Ayer 6:04
marriage is defined as a union between two persons, it gives certain privileges entail certain obligations. A lot of that has actually grown and developed and changed through the years. So, you know, previously, 30 years ago, there were laws in place that, you know, a wife had to submit to a husband or wife had to submit to sexual relations if her husband wanted that, and that's no longer in place. Thank goodness. Okay. Yeah, I stopped the
Deena Kordt 6:40
bus right there. I need to ask some questions about this. This sounds like it's straight out of the Bible. Yes. And I did not realize that was a law. Was it just an implied law? Or was this actually in writing somewhere?
Katie Ayer 6:57
So there was actually a tort. So a tort in laws is some kind of harm that you cause to another, there's a tort that you could sue for called lack of consortium if, if a spouse was not? Yes, no
Speaker 2 7:10
freakin way. Like, people who are what, like, when you watch this, you are not going to probably you'll just see the slides, you're not gonna see the faces going Holy crap. No way. And yeah, so this is this is very interesting. Katie, you have us already you how to get married.
Katie Ayer 7:31
Right? There we go on that. And that's all you need to know No. So the main thing that people need to know about marriage nowadays, and the obligations that come along with it is that you cannot remarry, if you are already married. So the biggest piece of the divorce puzzle is, you know, if you want to remarry, you need that official certificate from the court saying that you are no longer married. So that's the biggest piece of that puzzle. Okay, got it. All right. So there are different pieces of legislation that apply whether you are married or unmarried. And legislation is the laws that are set in place by the government, that you can find statutes and legislation all online. And so if you're going through this process, you might hear things like the Family Law Act, the Divorce Act, the adult interdependent relationships, act, family Property Act, those are those are the main acts that we're going to be dealing with when you're going through a divorce.
So of course, if you're married, you're going to fall under the Divorce Act, because that's what has to happen to, you know, dissolve your marriage. If you're not married, then those rules don't necessarily apply because you're not legally married. So we have a very similar act called the Family Law Act, and that's what's going to apply if you're not married. So a lot of the things in those two acts are similar. The biggest difference is the terminology that we use. So you'll see on my slide here, corollary relief, equivalent terminology, and what that means is, corollary relief are the things that the court wants to see that you have dealt with, to separate or to divorce. And so those are things like parenting, or child support or spousal or partner support, and any property division that might apply between the parties.
So, if you're married and you're under the Divorce Act, parenting is dealt with by the terminology, parenting time and decision making responsibility. So we don't use custody and access anymore. And the main reason for that is because the courts and lawyers and everyone going through the system was finding that even just the use of that term was causing more conflict, because no one wants to be an access parent, no one wants to feel like they are less than because they're not taking care of the children primarily. And so now it's just parenting time, you know, what is your parenting time? What's your schedule, that kind of thing? And not, you know, do you have access to your kids every other weekend, that kind of thing. And then child support and spousal support under the Divorce Act. Under the Family Law Act, you deal with guardianship of parenting time and contact. And there's a slide later on, where I can get into kind of the differences of what those all mean. But that's essentially the umbrella of parenting under the Family Law Act, and then we have child support.
And under the Family Law Act, we deal with partner support instead of spousal support. So then, you'll also see here, there's what, why and where. So what you need to file, why you're filing that and where you're gonna go to have your matter heard. So under the Family Law Act, we start with a claim, that's just a formal court document that you'll file. And under the Divorce Act, there's a family application. The why is what you're explaining to the court, why you need them to decide things for you why there is an issue, and why it should be decided a certain way. And so under the Family Law Act, if you're unmarried, you're going to file what's called a statement. And if you're married, you're going to file what's called an affidavit. An affidavit and a statement are both just sworn documents that settle your evidence in your matter. And then your Where is Provincial Court, or the court of Kings bench if you're not married, and the court of Kings bench only if you are married. And the main reason for that difference is because the Divorce Act is federal it goes all the way across Canada. And so it's only the higher courts that will deal with divorce, not the lower Provincial Court.
Deena Kordt 12:12
Interesting. Oh, thanks for clarification,
Speaker 1 12:16
of course. So here's something that we hear a lot about separation and people asking how do I get a legal separation. And that's something again, that terminology wise there, there is no such thing as a legal separation, per se. So we can do up a Separation Agreement that sets out your rights and obligations after you separate. But there is no document that says if you're not married, or even if you are married, here's the date that you officially separated. So that's, you know, a legal separation. If you want to deal with your rights and obligations legally after you separate, you can do that either through court orders, divorce judgments, or a Separation Agreement. I do also have a comment on here that you can draft a Separation Agreement with your spouse or hire a lawyer to draft one. Of course, generally, with a lawyer, you're going to get something that has more detail that has more of the little pieces of the puzzle that you might not think of.
Katie Ayer 13:25
And then in Alberta, there's also if your separation agreement deals with property, there needs to be an exchange of full financial disclosure. So you need to be able to disclose all of your assets and liabilities to make sure that both parties know what the what the other has, and they know what rights they're giving up and what rights they're gaining. So without that information, someone can't advise you and say, Yes, this is fair or no, that's not fair. Because, you know, as a lawyer, we wouldn't know what fair is if we don't know what you have. Right?
So the second piece is that you need to sign in separate rooms from your spouse. And the third piece is that you need independent legal advice. So a lawyer to go through that agreement with you and tell you whether or not it's fair. No. This is also something that people might hear different things about whether or not they're necessary, whether or not they need to follow these steps. And with those three steps, your separation agreement is going to be as legally binding as you could possibly make any document. Without those steps, then it it it's not that it's not legally binding, but it becomes more questionable. So if someone has an issue with that agreement down the road, the courts going to look at okay, were these steps met. Were these obligations fulfilled? And if not then did these two people have You know, an equal bargaining power? Did they both come to the same table with equal rights and knowledge to enter into this agreement, and then you know, the court is going to get into a more in depth look at whether or not they should hold up the separation agreement or not. At the end of the day, the court has often said, you know, parties should be free to make whatever agreement they choose whatever bargain they choose. And so courts are often hesitant to reopen Separation Agreements, unless there has been that unfair bargaining power. Or, you know, if, if there's any threats, you know, if someone's saying, Well, you have to sign this because you're not gonna get anything else from me, or something along those lines, that's something that the court would reopen likely in the future.
Deena Kordt 15:46
But this is interesting, Katie, because it's, you're saying this is used for dissolve, not dissolving, but for separating, whether they're married or not married, correct?
Katie Ayer 15:57
That's right. Okay. And I will later on discuss further, when that's necessary, because when you're together with someone for, say, six months, you know, chances are, you don't need all of this. But there is, again, that legislation that we talked about. So recently, the family Property Act changed, so that it now includes unmarried partners and sets out how their property should be divided. But it only applies if you qualify as what's called an adult interdependent partner. So then we have another piece of that legislation in play. And we have to determine whether you qualify as an adult interdependent partner. And that's I mean, the general rule of thumb is if you've been living together in a relationship, where you're relying on each other financially, emotionally, that kind of thing for three or more years, or potentially less if you have a child together. Or if you sign an agreement, saying we acknowledge we're adult independent partners. So that's something that you're going to want to take into consideration if you're doing a Separation Agreement if you're not married.
Deena Kordt 17:08
Okay, good to know.
Katie Ayer 17:14
Yeah, so I guess I went through a lot of this slide already. But a Separation Agreement is at the end of the day, just a contract between two parties. And it will use to deal with each of those topics that the court wants to make sure you deal with when you're separating, and when you are finalizing your divorce. So those are parenting, child support spousal support and property. When you're getting divorced, it is the legal action to terminate your marriage relationship. So you do require a court order for this one, because you need that piece of paper, saying that you're no longer married, if you ever want to get remarried. So at the end of the day, like we discussed in that very first slide, you can't get remarried until you have that certificate. Right. So that's the main difference. A lot of people who are married will get a Separation Agreement drawn up before they go into the divorce process. Because then it essentially just stops all of that potential for fighting. And it makes the process easier a lot of the time, right. But you can always ask a lawyer if whether or not you need that separation agreement, or you know if it's going to be better for you to go a different route.
Now, when you're applying for a divorce, there are three grounds. Generally, we will see people going on the ground of separation. And that just means you've been living separate and apart for a year or more. It's it's easy to plead that ground, I mean because you don't have to do anything else. You just you've been living separate and apart. That's That's it. With the other two, adultery and cruelty, it's a little more difficult to prove. And so we don't see those as often. So with adultery, and cruelty, you either need the person who has carried out those actions to swear an affidavit. So again, we're hearing that term again, that evidence that you have to prove to the court saying that, yes, I committed adultery with this person. And then the court would grant your divorce faster. Or if there's mental or physical cruelty, they're going to have to swear an affidavit saying yes, I did these things to my spouse. And so as you can Imagine, there's not a lot of people willing to do that. Which is why we often see the grounds of one year separation being the most common. Because the alternative if that spouse isn't willing to swear an affidavit giving evidence saying, Yes, I committed adultery, or Yes, I was cruel to my spouse, then it has to go to trial to prove it. And as you can imagine, and as most people know, trials aren't cheap. It's very expensive. It's a very long process. It's mentally draining, it's emotionally draining, it's financially draining. And so, most of the time, it's not worth it for people, you know, but that's a decision that everyone needs to make for themselves.
Deena Kordt 20:41
Now, Katie, I know we're looking at this from a high level, but I want to dig into those last two just a little bit to clarify them a little more. With the adultery. It is specific to sexual relations now with the internet age and all that we have with, you know, the whole texting and all that kind of stuff. What are they actually just talking physical? Or is this got? Is there some gray areas that you're seeing? As well, you know, different types of infidelity?
Katie Ayer 21:12
The big one quite honest, I, I haven't seen. No, that's a lie. I have seen one divorce go through on the grounds of adultery where someone was willing to swear an affidavit, and it was where there were sexual relations. So personally, I have not seen or experienced anything where the divorce is going through. On the basis of adultery, in another context, I see your point I, but I don't want to make up an answer. I don't want to give any information that I don't know to be true. So I really don't know how to answer that question. I have not seen it personally, I have not seen any cases coming out about it. So I can't say for sure.
Deena Kordt 21:59
And then on the cruelty side of it. There's an A and a B part to this on the slide. So you must show the court there's more likely than not that there was a cruelty and be intolerable T to get a divorce.
Katie Ayer 22:16
So that the the mental or physical cruelty was so intolerable, that you could no longer live together. Okay.
Deena Kordt 22:22
Okay, that's for clarifying that. So that would have, and I am happy to see too, that the definition of domestic violence is not just physical, it is mental, physical, its mental, financial, social, sexual, all those other ways of this cruelty. And that that is grounds for divorce. Now, if we don't, we don't want to get right down in the weeds to define exactly what you're talking about. But if the grounds for the divorce are number two, or number three, which is adultery or cruelty, cannot change the outcome for the spouse that did not act in that way.
Katie Ayer 23:04
Unfortunately, not usually. So in Alberta, divorce is no fault. So
Deena Kordt 23:13
it's regardless,
Katie Ayer 23:15
yeah, whomever is Yeah, whomever is is acting this certain way, they're not going to be penalized for acting this way, in the divorce. Now, of course, if there's mental or physical cruelty, there could be a penalty in another forum. So you know, there could be criminal sanctions, there could be protection orders, those things could apply. But when it comes to the divorce itself, when it comes to splitting your property, when it comes to payment of support, those things don't take into consideration any past action. Even when it comes to parenting, you know, the courts try not to look at past actions. But the exception to that being, you know, if that behavior is directly related to a party's ability to parent, of course, the court is going to look at that, of course, they're going to look at what is in that child's best interests. And if a parent isn't fit, to see a child, you know, on their own if they need supervision if they need something else in place to make it safe for the child, and that's what the courts going to do. So parenting, in my opinion would really be the only circumstance where this would really come into play.
Deena Kordt 24:33
Thanks for clarifying that. That's interesting.
Katie Ayer 24:39
So, for the Divorce Act, as I said before, it's federal so it's the same all across Canada when you're divorcing. The main difference you're going to see are the forms that you need to fill out from province to province and the procedures that you need to follow. Before you go to court to get your divorce, you need to be able to show up for proof of your marriage. So that's your marriage certificate. If you're married in another country, then you when you're submitting your divorce forms, you essentially give all of the details of that marriage, where it was who was present. Essentially, you need to be able to prove that there was a celebration of marriage if you don't have that marriage certificate to show and then residency. So if you're applying for divorce in any province in Canada, you need to be resident. While in Alberta, it needs to be for one year, fulfill that your quote unquote habitually resident, that's the requirement in the divorce act. If you move out of a province, then returned, you would have lost that habitual residence, and you would need to wait a year to file. But once your Statement of Claim for divorce, that's your document that starts the divorce process in Alberta has been filed, then you're free to move wherever you so choose. And don't take that as as advice saying, you know, if you have kids, you can pack them up, move them wherever you want, do whatever you want, of course, if you have kids, that's gonna change the game a little bit. But, you know, if if you're just, you know, newly single and you want to move and start your life fresh somewhere else, you you're not going to be prevented from doing that.
Deena Kordt 26:23
And just to clarify, moving out of province, and you do even for a short period now that wouldn't necessarily just be for work situation where you're temporarily, you know, in a hotel or renting a space, it would be an actual mailing address, or how would that be defined? That's
Speaker 1 26:44
correct, yes. So if you say work a rotation or work out of town or something like that, so long as your permanent address remains in Alberta, then that wouldn't change. Now, if you have children, through your marriage, there's also a requirement to complete a parenting after separation seminar before you can bring any applications for parenting before the court or before you can complete your divorce. And that's an online seminar that is completely free through the Alberta courts. And it just essentially teaches parents about the effect of divorce on your children and how to best communicate with your co parent for your children's benefit.
Katie Ayer 27:36
Now, when you're getting a divorce, there's a few options. You can do it yourself, you can hire a lawyer or you can hire a paralegal, I often tell people, the best kept secret secret is on the courts website, you go to the court of Kings bench, because that's the court that has jurisdiction over divorce. There's publications and forms on the right toolbar, and then there's divorce forms and instructions. And for every different divorce scenario, they actually have a step by step guide on how to do it yourself. So that's something that I often even tell my clients, once we settled issues, you know, check out these forms, see if it's some if see if it's something you want to do yourself. If you want to just have me look over stuff, that kind of thing. There's, there's lots of options out there at different price points. So you know, sometimes people will say, Do I need a lawyer to get divorced you don't. If that's that's up to you.
Deena Kordt 28:37
That's good for people to understand. Because whether they work in conjunction with a lawyer it or not, these resources can be very helpful to help them understand what it is they're doing and why and help with the cost of it. And you know, keep those manageable as well, but also feel like their legal bases have been
Katie Ayer 28:59
covered. Right, exactly.
Deena Kordt 29:02
Thanks for sharing that tip. Yeah, no problem.
Katie Ayer 29:06
If you do go on that website, you're gonna see that there's two main types of divorce. There's uncontested and contested. So uncontested means we're not fighting over anything anymore. We've agreed to everything. And we just want to get divorced. Contested is going to mean you know, we still have some of those issues to figure out that parenting child support spousal support property. Some of them are still outstanding. And so we're not quite at the endpoint yet. So if you do go and look at those forms, that's the difference if you're looking at contested and uncontested.
So the court may stop your divorce. That is, again very rare, and that is because it's on those basis of those grounds that we talked about before. So there's the one year separation there's adultery and there's mental and physical cruelty. So first is if there's collusion. So if you don't want to wait one year separation, and you say, Okay, we're going to tell the court that you committed adultery so that we can get divorced right away, and the court finds out, they're gonna say, No, you don't get to essentially cheat the system. If there's condemnation, so you know, if there was adultery, and you later forgave it, and continued to live together, so you couldn't file a divorce and say, Well, my spouse slept with someone else 10 years ago, so I want my divorce tomorrow instead of in one year, that's, that's not gonna fly either. And then we can live. And so if you allow your spouse to commit adultery or cruelty, you cannot use those grounds for divorce. And that's, I mean, there's lots of different things that people can consent to. And so that is something that could happen nowadays, or any days, I should say. So these these grounds for the court stopping the divorce again, is it's rare for us to see these in play. Because it's rare for us to see the grounds of divorce being anything other than the one year separation.
Deena Kordt 31:18
Yeah, and it's it is kind of unsettling to especially number three, the connivance allowing a spouse to commit adultery or cruelty, especially the cruelty part, because women, I'm just generalizing spouses I shouldn't say happens to both men and women. They, they do stay in environments that are unsafe, and involve abuse. And in some, some cases, especially when it's psychological, or you know, financial type of abuse, they don't really consider that being, you know, cruelty or abuse, they aren't even aware of it. And so, you know, how do you prove while they stayed? So is that connivance is that? Is that allowing that? And I mean, technically, yes, it is. But I can see where that's very difficult to deal with. And so why you're not seeing that? Probably?
Katie Ayer 32:10
Yeah. And why, as I was saying before, people often just go with the one year separation, because, you know, it becomes a big ball of yarn to unravel when you start to go down these roads, and it is, you know, it's not great. Sorry, go ahead, no, go ahead. And just say that these options aren't more readily available to people who need them that that it is such a mountain to climb, to be able to prove something like this,
Deena Kordt 32:45
I think what is very important to make clear, is that there's not going to be a penalty. Because of, you know, proving this, there's maybe satisfaction, you know, just in general, that you were able to prove that or that you got them to sign this affidavit. But there's really not going to be a benefit to, you know, what you take away that there won't be a penalty, that, that you will live with. And I think that's something that I've struggled with, personally. And that's why I just bring that out, because I didn't realize it was you know, I had been in a an abusive situation for over 30 years and, and finally left and this happened about six years ago, when the divorce was finalized. And, you know, looking back now, all that I've learned about abuse since that I was feeling regretting, you know, that I hadn't maybe pursued that road, that path and going, Wait a minute, like, that's why this didn't work. That's why it had to end and thinking that maybe there would have been better outcomes for me. So for people to know, it's, it's probably not going to be worth your fight. You you might get some satisfaction out of it personally, but not necessarily monetarily or in any other ways. So it's it is, you know, it's good to, to understand that the percentage of those are so rare, like, it's just so rare. It's so low. Yes, type of cases that you see.
Katie Ayer 34:19
Yeah, and it's the reliving it to for some people. It's, you know, they don't want to relive what they've left. Exactly. Yeah.
Deena Kordt 34:28
Would you say that that is unique to Canada? I like are there panela? Like, you know, I have listeners outside of Canada. So do you happen to know how that would be saved in other countries?
Katie Ayer 34:43
I'm I'm not 100% Sure. I do know that we have only recently started to see some cases and they've been out of Ontario, where a spouse has sued for emotional distress, essentially. arising from abuse to remarriage. And we're not seeing it. Coming up often I think there's one or two cases off the top of my head where it's come through in Ontario. But I am not under percent sure about laws and other countries and where they stand and, you know, perhaps listeners from other countries may be able to comment on that and kind of enlightened whether or not they know of any laws and, you know, things that we could be trying to introduce in Canada to make this better for people who have gone through these experiences.
Deena Kordt 35:38
You were you're speaking exactly what was in my head? Katie. Yeah, no, maybe there would be listeners that can comment on that and let us know. Yeah.
Speaker 1 35:49
So this slide just talks about the process it this would be specifically for a contested divorce uncontested, you can do that together. So if you're not, if you're not fighting with each other, then you can go in and file that paperwork together. So step one is to file your Statement of Claim at the court of Queen's bench, you then need to hire a process server to serve your spouse with the Statement of Claim. And then as I keep repeating over and over court wants to see that you have dealt with parenting child support spousal support and property before they'll granted divorce. And there's lots of different ways that I've outlined here that you can do those things, you can talk to each other, you can negotiate things you can mediate with a third party mediator, you can go to arbitration, which is a process where you've essentially hired someone to be a private judge to make a decision for you. There's four way settlement meetings where you would both bring your counsel and sit in the same room together and try to sort things out. Trial, of course, being one of the most expensive ways to have a decision made. But as a decision is made, at the end of the day, when you go to trial, by a judge, and any other method by which you can agree.
Katie Ayer 37:06
I mean, sometimes, we always hear the funny story of you know, parties couldn't agree how to split smaller household items, who gets to keep the coffeemaker while we're going to flip a coin, if that's what it comes down to. And that's what you can live with. And, you know, do it because I have never seen and hope to never see someone in court making a formal court application over coffee maker, that formal application is going to cost you probably about you know, 300 coffeemakers worth. Once your documents are filed, and the courts approved them, then you'll get a divorce judgment back and your divorce becomes valid 31 days after that judgment is granted. The reason for that is because there is an appeal period for almost anything that's done through the courts, and that includes a divorce. So one party could come back and try to appeal and say, No, this isn't the way it should be. And again, that's something that we see very rarely. So this is a little more about how the courts make determinations about parenting time and decision making responsibility. But this really boils down to what is going to be in a child's best interest. There's factors here, like the parents level of responsibilities, any problematic behaviors, environments, plans for future ability of parents to cooperate with each other. And the court might consider, I don't want to put too much weight on this because we really only see this when children are much older, but might consider that the children's voices. And if a child is younger, so like a five year old, saying I want to live with dad isn't going to be given as much weight as a 16 year old saying, I'm not going to my dad's house, right? That that 16 year old has had more life experience has more cognitive ability to recognize the consequences of their decisions. And so for that reason, the court will give a little more weight to that child's voice. But one way or another, even that five year old, should have a voice in the process, even if that voice isn't going to determine the final outcome in the proceedings.
Deena Kordt 39:34
That's good to know. You sometimes hear about that magic. Age of 14.
Katie Ayer 39:40
Yeah, and there really is no magic age. I've seen courts say I don't care how old your kid is. If your kid is 16. This is what the court is saying and even 16 year olds need to recognize that the courts have authority over them. And courts have authority over all of us and that we all have to follow laws and orders and that kind of thing. But then there's other times where the court says, yeah, the 16 year old knows exactly what they're doing and knows exactly what the consequences of their actions are. And, you know, if I try to make an order, saying a 16 year old has to spend five days with mom, that 16 year old is probably gonna run away. Right? So there's lots of different things that the court will consider. And there's all different factors, there's never a cut and dry solution for any family. Because there is no mold, you know, every family coming into the court, if they need to go into the court is different. And they're going to need a different solution.
Deena Kordt 40:42
And it changes over time. Yes, it does.
Katie Ayer 40:45
And that's also why courts often aren't the best place for families to end up. Because more often than not, you get a very limited time to speak to your matter in court, you have a very limited time to introduce who you are, and who your family is to the judge. And then you're relying on that person who's only met you for moments and read a couple affidavits worth of evidence to make a decision that's going to affect your family. And so if you have the ability to work things out for yourself, I always tell clients, you know, it might not be exactly what you want, but it's probably not exactly what the other parent wants. And if you guys can live with it, keep the control within your family. Yeah.
Deena Kordt 41:30
Good advice.
Speaker 1 41:34
For unmarried couples. So this is the slide that I referenced early on, there's different terminology for that to time together with children. So guardianship is something that's proven. Essentially, it's assumed that a mother who births the child is a guardian of the child. Of course, there's different rules and regulations in place for surrogacy, adoption, that kind of thing. So that is all covered by the legislation as well. But to be ordered parenting time, you must first prove that you're a guardian. And that essentially, the very quick way to describe it is you have you shown an intention and ability to step up and take response ability for this child, from their parenting time, it can be ordered by the court. And if you're not a guardian, then contact time might apply. And so it essentially means the same thing. But it's a different terminology to recognize that you're not a guardian. And so that can also apply contact time can also apply to extended family grandparents. So when you hear about issues of grandparents access, that's that's an application for contact time. But I won't go too far into that. That's a different, different story. property division, yes, property division.
Katie Ayer 42:58
So when you've got everything else dealt with. So for both married and unmarried couples, we have the same legislation now. And that's the family Property Act, there is a presumption a starting presumption that all property is divided equally, anything that was brought into the marriage could be exempt. Any gifts or inheritance could be exempt. Any, if you were in a car accident, and you got payout for that that could be exempt. And when I say exempt, that means it wouldn't be included in that property division. But there are other issues that go along with that exemption, you need to be able to trace it, you need to be able to prove it. So you can't just say, you know, I had $500,000 before this marriage, and now I don't well, then where did it go? Right? There's there's other things that we need to figure out before we can just say, I had this so.
Now property is something that can only be dealt with in the court of Kings bench. So the lower court cannot deal with property at all. So if if property is part of your application, and you're not married, then you may just want to go through the court of Kings bench at the first instance anyway, even if you're dealing with parenting and support, because eventually you're going to need to get there anyway if you can't reach an agreement. So that is my overview. Of course, as I'm sure you've experienced going through it, there's lots of questions that come up. Just hearing kind of a brief overview of what it looks like. And, you know, I mentioned a few things that I kind of skimmed over and it didn't really go into detail on because I would need like five hours of your time to be able to explain
Deena Kordt 44:54
anything and do have any more. is are there any more slides? No, I don't believe so. Okay, let's, let's talk that there and now we can see you are awesome. Okay. Now, as we have in our disclaimers, this is information for information purposes. And obviously, this advice is not legal advice. It's an it's informative, and it's to support and educate. And you want to go to a source with your own specific case and your own specific situation. Katie, can you talk a bit more about that?
Speaker 1 45:35
Yeah. So even with the overview that I gave, it can change from family to family. Like I was saying, with parenting, there is no cookie cutter solution, there is no one size fits all. Often, there are circumstances that will make things different. For every single person going through divorce, no one's going to experience this exactly the same way as another. And the same thing goes for your experience with the court process with lawyers, with finalizing everything in with how it's going to be finalized. So yes, this this was for information purposes only. And is not to be considered legal advice from myself. I do always recommend, even if you don't want to proceed with lawyers helping you through your divorce, contact one and just have an hour or so of advice.
Katie Ayer 46:31
And just get some idea of how your specific scenario fits within this overview. If you know money is an issue, then there are resources out there for people who are have more limited funds, but want to want to seek further advice. So I'll do a little plug for two, two that I'm actually directly involved in myself. So first is the lawyer referral service that's done through our Law Society of Alberta. So on their website, you can go to lawyer referral, and type in kind of what area of law you have, you're having an issue with, so you would just say family law, they'll give you the names of three lawyers that practice in that area, you can call those lawyers and set up an appointment for a free 30 minute session. So 30 minutes of advice, at low cost. And then similarly, there's Calgary legal guidance. Now, with Calgary legal guidance, I do believe there are some income qualification requirements that you do need to go through. But they will set you up for a 45 minute appointment or free legal advice with the lawyer if you meet their income qualification requirements. Of course, there's also legal aid, but they're quite limited in in what they offer based on their income requirements. So you know, at the very least, see, see if you can get something somewhere to know you're on the right path to know you're not giving up rights that you don't have to give up. And even if you choose to give up those rights, at least you know what they are, you know, what you're giving away and what you're choosing to take a leave one way or another.
Deena Kordt 48:21
And you also mentioned the link for those other resources for like, the do DIY is to do it yourself for forms and instructions. Yeah, so that website,
Speaker 1 48:32
that's just AlbertaCourts.ca. And then the Court of King's Bench is the court that you select for those,
Deena Kordt 48:39
okay, so those will all be shared in the show notes, just so people can, it'll be linked directly if you click right on those. Thank you so much, Katie, for your time and for sharing your expertise in this to just give us a an overview of what family law consists of. And some of the terminology and the processes and you know, the different types of, of, you know, whether it was parenting or different types of divorce or, you know, those all those factors that people could? Well, they will very likely face, and also to clarify a bit more on the common law or adult interdependent relationships to so yeah, I think that's very, very helpful.
Katie Ayer 49:27
Well, I'm glad, I hope that there are some good takeaways for listeners. And I'd
Deena Kordt 49:33
love to have you back again, we're going to be having some bite size episodes coming up where we just really drill down and talk a short period about a certain thing. And it might just be an action they could do. Maybe there is some documentation that they should consider having prepared. You know, those types of little, little bits because there's a lot of chaos going on in people's heads when they're dealing with this and sometimes it's easy To digest in, in smaller pieces, and I love that you created a visual as well. So just as a reminder that can all be seen. It'll be linked to our website and it's also on the YouTube channel so you can actually look and see the list and the information that Katie has put together for you there. And of course, we will have your contact information as well Katie so people can reach out to you if they have any questions about what you presented today. Thank you so much for being here.
Katie Ayer 50:28
Thanks for having me.
Deena Kordt 50:29
Hopefully, you heard something today that helps you wherever you might be in life. Do you have questions or a suggestion for a topic you want to know more about? Let me know. Check the show notes for all the contact information. Follow this podcast and find us on social. Know anyone who might find this information helpful. Be a friend and share it. And hey, thank you for hanging out with me today. Keep smiling up beautiful smile. The world needs your sunshine.
It means a lot that you spend this time with us and meet our experts and professionals who can help you through divorce or separation. Please refer to our terms of service available on our website, divorcemagazinecanada.com. The link is in the show notes. Our disclaimer, divorce resource groups, blog and all content, including our podcast is intended to educate and provide quality credible resource information. The contents should not be used as factual until consultation with the appropriate professionals for any guidance. Divorce Magazine Canada does not constitute endorsements for nor liability for any claims made in the presenting of this information.