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Frequently Asked Questions

Family Law

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Family law, what is it?

What is Family Law?
It is the law about relationships, rights and duties within families. In Canada, the two main sources of family law are federal and provincial law. For example, the Divorce Act is federal law; the Family Law Act, provincial law. Family law includes the law applying to children and to the legal relationships and responsibilities that adults have toward children. Family law also includes adoptions and the law around the care and protection of children. This includes the emergency protection of children.

Does Family Law cover only children and marriage?
No.  Family Law also covers intimate adult relationships where there is no marriage. The old-fashioned word for an unmarried relationship is “common law relationship.” Today, under Alberta Law, the legal term is actually “adult interdependent relationship.” The main law is the Adult Interdependent Relationships Act.

What laws and other documents cover family law?
Federal law and provincial law can apply to family law in Alberta. These include the Divorce Act (federal) and the Matrimonial Property, the Family Law and the Dower Acts (Alberta).

Where can I find the actual written laws around family law?
The internet is a good source: e.g., www.canlii.org. You can also visit public libraries, college and university libraries, and court house libraries. You can buy Alberta laws, such as the Family Law Act, from the Queen’s Printer for Alberta. It publishes Alberta’s laws, plus many other law-related materials, and also provides on-line versions of such products at www.qp.gov.ab.ca/catalogue. To call the Queen’s Printer directly in Edmonton, dial 780-427-4952; otherwise, call Service Alberta at 310-0000, toll-free, and ask for the Queen’s Printer. Your local bookstore or library may carry Queen’s Printer products. Check your local telephone book.

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Am I in a marriage?

I live common-law – that’s a marriage, right?
No.  A marriage is not a common-law relationship. There is no such thing as a common law marriage. People are used to saying “common-law marriage” or “common-law relationship,” but those are not legal concepts. Modern Alberta law has the legal concept of adult interdependent relationship (AIR). An AIR covers a lot of what people generally understand by a common-law relationship but is not the same thing. Modern Alberta law is full of references to AIR and adult interdependent partners. The definition of an AIR is found in the Adult Interdependent Relationships Act.

Am I in an adult interdependent relationship (AIR)?
By definition, in the Adult Interdependent Relationships Act, an AIR is not a marriage. So, if you are married, you cannot be in an AIR. If you are not married, then you may be in an AIR. An AIR arises in one of three ways:

  1. The two unmarried people have lived together for a continuous period of at least three years; share each other’s lives; are emotionally committed to each other; and function as an economic and domestic unit; or
  2. The two unmarried people have lived in a relationship of some permanence; have a child of the relationship by birth or adoption; share each other’s lives; are emotionally committed to each other; and function as an economic and domestic unit; or
  3. The two unmarried people have entered into an adult interdependent partner agreement with each other.

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What about ending the adult relationship?

I live common-law and want to separate – do I have the same rights as a married person who wants to divorce?
No.  Married people have more rights. They have the right to use the Divorce Act and its procedures to apply for a divorce, for spousal support, and for child support. Also, Alberta law gives them more rights around dividing property. With some limits, the Matrimonial Property Act (MPA) spits property 50/50. Unmarried couples need to use the common law of property to divide property, which typically takes more work and is less clear-cut to use than the MPA. Also, in certain circumstances, a married person can have a right to a homestead under Alberta’s Dower Act. That Act gives no such rights to an unmarried person who has separated.

I am legally married - do I always need to go through the Divorce Act?
It depends:

  1. If the couple is not married, then they cannot use the Divorce Act and must use the Family Law Act. A common-law relationship or an Adult Interdependent Relationship is not a marriage and, therefore, anyone in such a relationship is not married.
  2. If the couple is married and a Statement of Claim for Divorce has been filed, then they must go through the Divorce Act for any custody, access or support matters.
  3. If the couple are married and no Statement of Claim for Divorce has yet been filed, then they can go through the Family Law Act to deal with matters of support, parenting and contact. Once a Statement of Claim for Divorce has been filed, however, the Family Law Act is irrelevant for new applications in court, and the Divorce Act would apply to all new applications.

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    What about property?

    When property is divided, is it only the assets, and not the debts, that are split?
    No.  Debts are also divided between the two people. Alberta’s Matrimonial Property Act (MPA) MPA presumes that the property of married couples is split 50-50; this 50-50 split applies to debts as well.

    When I left the house, I gave up any rights to the house, including the right to stay there and the right to have any share in the value or equity of the house?
    It is a myth that the parent who leaves the house automatically loses all property rights in the house. What rights the partner has depends on the specific law that applies in the situation and on the specific facts of the situation. Alberta’s Matrimonial Property Act (MPA) MPA presumes that the property of married couples is to be split 50-50. Depending on the facts, this 50-50 may cover the value of the house. If the couple are unmarried, then the MPA does not apply. Still, the common law of property may mean that the partner who leaves has property rights. The partner who leaves may be able to apply to court for an order that provides for possession of the house. Such an application can be made under the Family Law Act (FLA). An unmarried partner can use FLA to get possession of the house. A married partner can use FLA but only as long as no divorce or MPA action has started. Once the action has started, the FLA cannot be used. Only married people can apply to court under the MPA and the Divorce Act. The Divorce Act can give the applicant an order for exclusive possession for the house.

    Do I have any rights to the other person’s pension?
    In Alberta, pensions are considered property and can be divisible at the end of a marriage or an adult interdependent relationship. The types of pensions include CPP and employer pensions. In addition, members of the Armed Forces have their own kind of pension.

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    What about children and their legal guardians?

    Can non-parents apply to be a child’s legal guardian?
    Yes. Alberta’s Family Law Act enables a non-parent to apply to court for a court order that makes the non-parent a child’s legal guardian. The court does not give a guardianship order automatically. The court will only give that order if the non-parent is an adult and has had the care and control of the child for more than six months, unless that requirement is waived. Even if the non-parent passes that 6 month test, the court has the power to not grant a guardianship order. The judge must consider other things, especially the child’s best interests. If it is not in the child’s best interests to have the non-parent as a guardian, the judge will not grant the guardianship order.

    Do children get to pick their guardians?
    Not usually.  A court order will say who their guardian is. However, in two situations children can apply to court to have particular adults made their legal guardians. The child either (1) has no guardian at all or (2) has no guardian who can or wants “to exercise the powers, responsibilities and entitlements of guardianship in respect of the child.” In short, if there is no one actually functioning as a child’s guardian, then the child can apply to make someone a guardian. The situation changes somewhat once the child reaches age twelve. Then, in most cases, the child has to consent to having a particular adult be guardian before that adult can be made guardian.

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    What is a legal guardian?

    Am I a child’s guardian?
    Alberta’s Family Law Act defines who is a guardian in many ways. Each person in a couple is a guardian if:

    1. They are married when the child is born;
    2. They marry after the child is born;
    3. Their marriage legally ends no more than 300 days BEFORE the child’s birth;
    4. If they were in an adult interdependent relationship (AIR) when the child was born or entered into an AIR after the child was born (Alberta’s Adult Interdependent Relationships Act sets out what must occur for an unmarried couple to be in an AIR.);
    5. The couple lived together for a 12-month stretch, during which time the child was born; or
    6. If the couple agree in writing that they both are the child’s guardians.

    Also, if the child lives with one of its parents for a year, that parent is a guardian. It does not matter if the child lives with someone else afterward – that parent remains a guardian. In addition, a person may become a guardian if they are appointed as such, by will or deed, by a parent of a child who is a guardian.

    What legal rights does a child’s guardian have?
    Under Alberta’s Family Law Act, a guardian has these major legal rights:

    1. to care for the child or have contact with the child; and
    2. to get information and be consulted so that you can carry out your POWERS and RESPONSIBILITIES regarding the child.

    What can a child’s guardian do?
    Under Alberta’s Family Law Act, a guardian can have some or all of the following POWERS:

    1. To make day-to-day decisions affecting the child;
    2. To decide where and with whom the child is to live;
    3. To make decisions about where the child goes to school and about the child’s culture and religion; and
    4. To consent to the child’s health treatments.

    What are the responsibilities of a child’s guardian?
    Under Alberta’s Family Law Act, a guardian has these responsibilities:

    1. To support the child using your own money;
    2. To make sure the child has all the necessary things of life including medical care, food, clothing, and housing;
    3. To help the child grow - physically, psychologically, and emotionally; and
    4. To guide the child towards becoming an independent adult.

      5. How do I become a guardian?
      Apply to the provincial court of Alberta. The appropriate law is Alberta’s Family Law Act. The application forms may be found at courthouses and online at www.albertacourts.ca. At that page, click the link for Family Justice Services.

      Do I need help applying to the provincial court of Alberta to be made a child’s legal guardian?
      It depends – for example, the facts may not be simple and someone may want to oppose a guardianship application. In those situations, people applying to be made legal guardians may need help. Several sources can provide them help – for example:

      1. Alberta Law Line provides detailed legal information to callers and can provide free legal advice by telephone to callers who qualify for advice. To see the qualifications for free legal advice, visit www.lawline.legalaid.ab.ca. To reach the Law Line, call 780-644-7777 in Edmonton and 1-866-845-3425, toll-free, elsewhere in Alberta.
      2. Lawyers have experience making guardianship applications in court. Phone books provide the names and numbers of law offices and lawyers. Alberta’s Lawyer Referral Service gives out names and numbers for free – call 403-228-1722 in Calgary and 1 800 661-1095 elsewhere in Alberta.
      3. Alberta’s Family Justice Services (FJS) may provide relevant help to people making guardianship applications. Alberta Justice and the Alberta courts partner to provide FJS. To reach FJS, go to www.albertacourts.ca or call Service Alberta at 310-0000, toll-free, and ask for Family Justice Services. FJS also has units that can help with guardianship applications, such as the Family Law Information Centre and Family Court Counsellor Services.
      4. Alberta’s Family Law Information Centre (FLIC) provides information and education about family law, including making an application in Provincial Court. To reach FLIC, go to www.albertacourts.ca or call Service Alberta at 310-0000, toll-free, and ask for the Family Law Information Centre. Alternately, you can call FLIC at 780- 415-0404 in Edmonton, 403-297-6600 in Calgary and 403-297-6600 elsewhere in Alberta.
      5. Alberta’s Family Court Counsellor Services (FCC) can help people apply to court for guardianship orders. FCC does not help people who have lawyers. To contact FCC, go to www.albertacourts.ca and click the link for Family Justice Services. Alternately, call 780- 427-8343 in Edmonton, 403-297-6981 in Calgary and 403-340-7187 elsewhere in Alberta. To reach any number, toll-free, dial Service Alberta at 310-0000 and, then, the area code and number.

        6. What if I am a child’s guardian and someone else is a guardian, and we cannot get along enough to cooperate about the child?
        Mediators can help guardians cooperate about the child. Mediation Services provides information and assistance to parents with parenting disputes. To contact Mediation Services, visit www.albertacourts.ca and click the link for Family Justice Services or call 403-297-6981 in Calgary, 780-427-8329 in Edmonton or 403-340-7187 elsewhere in Alberta. To reach any number, toll-free, dial Service Alberta at 310-0000 and, then, the area code and number.

        Can I just stop working with the other guardian?
        No. Guardians are supposed to work together regarding the child. This is a legal requirement. Only a court order that says they do not have to work together frees guardians from this requirement.

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