Separation & Divorce

 

Separation can be scary and stressful. Parents are concerned about the impact on their children and all couples are challenged with sorting out finances and dividing assets fairly.

At Bruyer & Mackay, we support clients with referrals to skilled counsellors, support groups or divorce coaches, who are far more effective at supporting people through transitions than acrimonious legal processes are.

The Divorce Act provides for both fault-based and no-fault divorces, but most couples choose the no-fault “one-year separation” route to establish a permanent marriage breakdown. Using adultery or mental/physical cruelty as grounds for divorce is rarely done because fault or misconduct doesn’t help decide fair support or property issues and can result in fruitless and expensive fault finding.

The date of separation is relevant to determine when the couple has been separated for a year but does not determine when property and debts are crystallized. Alberta’s laws on division of family property provide that all matters are “live” until the couple enters into a formal written agreement with independent legal advice, or until a trial. This means that assets and debts at the date of separation can change up or down until settlement or trial.

Under Alberta’s Divorce Act, both parties must have been “ordinarily resident” in the Province of Alberta for at least one year prior to commencing a divorce action. Check with your lawyer if you have doubts about whether or not this requirement is met. (Same sex couples married in Alberta but who reside in a jurisdiction that refuses to recognize same sex marriage can apply for a divorce in Alberta even when the one-year residency requirement is not met.)

Bruyer & Mackay supports couples in arriving at a settlement on all issues in one of four ways:

  • Collaborative family law process

  • Mediation

  • Arbitration

  • Litigation

Ninety-five per cent of spouses are able to come to a resolution of all matters without having to go to trial. Their lawyers then file documents for an uncontested divorce with the court. No party attends court and if they wish, parties can jointly ask the court for a divorce without either party being identified as the plaintiff or defendant.

A judge is required to ensure that reasonable arrangements have been made for the support of any children before granting a divorce. If a judge is not satisfied, the divorce cannot proceed until such arrangements are in place. This ensures that bargains between adults do not prejudice the rights of the child to a fair level of child support. 

If you wish to proceed with a divorce, your lawyer will ask you for a number of documents to get started:

  • A certified copy of the marriage certificate issued by the province in which you were married (not a photocopy, and not the marriage license). If you were married outside of Canada, the lawyer will be seeking further details from you, and while you may have a copy of a marriage certificate to provide, more information may be required.

  • A photograph of your spouse (in Alberta, if your spouse is to be served with divorce documents, a photo is required to ensure they are the person who is properly served.) You cannot serve your spouse yourself – the lawyer will make appropriate arrangements for personal service.

  • An original yellow certificate of attendance for the Parenting After Separation Course (PAS) If you have children under 16. (If you haven’t yet attended, registration information is provided below.) While attendance is mandatory for most parents seeking separation or divorce, there are exceptions to this rule. Speak with your lawyer or a legal assistant for more information.

  • A completed Bruyer & Mackay client information sheet and proof of your identity (i.e. a copy of your driver’s license).

We recommend all parents take the free Parenting After Separation course offered by the courts. There is no cost and you do not have to attend as a couple. The course is mandatory before filing any court documents relating to divorce or separation. Learn more at www.albertacourts.ca or book attendance by calling (780) 413-9805.