Family law legislation

Overview

There are both federal and provincial family laws in Alberta. Which law applies to you depends on the particular circumstances of your situation.

The federal Divorce Act applies to married couples who have separated and are seeking a divorce. The Divorce Act also deals with custody and parenting arrangements and child and spousal support in the context of a divorce. For additional information, see the Justice Canada website.

Alberta’s Family Law Act contains the core principles of provincial family law. It applies to non-divorce situations, involving issues such as:

• determining who are the parents of a child, including cases where the child was conceived through assisted reproduction
• determining who are the guardians of a child
• setting out the rights and obligations of parents and guardians
• making parenting orders in cases where guardians are living apart but cannot agree on their respective parenting responsibilities
• determining the amount of contact between children and other people who might be important to them, such as grandparents
• enabling enforcement of time with a child
• determining the amount of child support
• determining the amount of support for spouses or adult interdependent partners

Other Alberta legislation relevant to family law includes:

• Adult Interdependent Relationships Act­ – defines ‘adult interdependent partner’
• Child, Youth and Family Enhancement Act – covers child intervention matters including adoption
• Family Property Act – covers the division of property for adult interdependent partners
• Minors’ Property Act – covers children’s property matters
• Maintenance Enforcement Act – establishes and sets out the authority of the Maintenance Enforcement Program

Parentage

The parentage provisions of the Family Law Act determine the legal status of parent-child relationships for all purposes of the law in Alberta. The basic rule is that the parents of a child are the birth mother and the biological father, unless there has been an adoption or the child is conceived through assisted reproduction.

To learn more about determining parentage, see the Family Law Act Amendments – 2010 Overview.

Guardianship

In Alberta, the ability to make decisions with regard to a child is tied to guardianship and not parentage status. A person who is a guardian of a child under the Family Law Act, is a guardian of that child for all purposes of the law.

In most cases, the parents of a child will also be the child’s guardians.

The Family Law Act specifies the powers, responsibilities and entitlements of guardianship.

To learn more about guardianship, see the Family Law Act Amendments – 2010 Overview.

Parenting orders

When guardians live together, they each have the full array of guardianship powers, responsibilities and entitlements.

If guardians agree on how to exercise their powers of guardianship after separation, they may continue to do so without a parenting order. If a disagreement arises, either guardian may apply for a parenting order.

The content of a parenting order will vary greatly from case to case. For instance, it may:

• break down parenting time and/or list specific parenting responsibilities
• include a process for resolving future disputes over parenting arrangements – judges can craft the right solution for each family’s specific circumstances through a parenting order

Only parenting orders granted under the Family Law Act can be varied or changed under the Family Law Act.

For married spouses, agreements or orders made under the Divorce Act will often use the terms ‘custody’ and ‘access’ when talking about parenting arrangements. This is the current language found in the Divorce Act. If you wish to vary or change an existing Divorce Act custody and access order, you must do so under the Divorce Act.

Contact orders

Contact orders involve contact between the child and persons other than the child who might nevertheless be important to them, such as grandparents.

If a guardian has denied you contact with a child, you may make an application under the Family Law Act for contact with the child in-person or through other means, such as a telephone call or an email.

Best interests of the child

The Family Law Act requires all decisions involving the child be made in the child’s ‘best interests.’

It is always best if the guardians can make decisions about the care of the child themselves. In cases where the guardians cannot agree, they can ask a judge to decide for them.

The Family Law Act requires the judge to ensure to protect, as much as possible, the child’s physical, psychological and emotional safety. When making a decision, the judge must look at factors that may determine the ‘best interests of the child’ including:

• the history of care of the child
• the child’s views and preferences
• the benefit to the child by developing relationships with both parents or guardians
• the nature and strength of existing relationships
• any history of family violence
• any relevant civil or criminal proceedings

Child support

Parents have a legal obligation to financially support their child. Child support is the right of the child. If parents can’t agree to the amount of child support, they can ask a judge to decide.

The Alberta Child Support Guidelines made under the Family Law Act contain rules for calculating the amount of child support. The judge must use these guidelines to determine the amount of child support in non-divorce situations.

The Alberta Child Support Guidelines are:

• modelled after the Federal Child Support Guidelines under the Divorce Act
• designed to ensure the process of calculating support for Alberta children is the same across the province, regardless of the nature of their parents’ relationship

Although both the Alberta and federal child support guidelines are called ‘guidelines,’ they’re laws passed by government and must be followed by judges.

Be aware that depending on your family’s situation, your child support order may have been granted under:

• the Divorce Act or Family Law Act, or
• an older piece of provincial legislation, such as the Parentage and Maintenance Act or the Domestic Relations Act – those acts may no longer be in effect, but child support orders granted under them can still be enforced

If you wish to vary or change an existing child support order granted under provincial legislation (not the federal Divorce Act), you must do so under the Family Law Act.

Learn more about child support.

Adult interdependent partner and spousal support

The Family Law Act includes rules for determining adult interdependent partner and spousal support.

‘Adult interdependent partners’ are defined in Alberta’s Adult Interdependent Relationships Act as two people who live together in a relationship of interdependence:

• for a continuous period of at least 3 years
• of some permanence (and less than 3 years) of the couple has a child together, or
• who have entered into an adult interdependent partner agreement

For married spouses, the rules in the Family Law Act will apply if the couple separates but doesn’t divorce. For married spouses who divorce, the federal Divorce Act applies.

The Spousal Support Advisory Guidelines aren’t laws but are suggestions made by family law professors, lawyers and other experts. In many cases, judges will follow these guidelines, but they don’t have to.

Only adult interdependent partner or spousal support orders granted under the Family Law Act can be varied or changed under the Family Law Act.

For married spouses, if you wish to vary or change an existing Divorce Act spousal support order, you must do so under the Divorce Act.

Learn more about spousal and partner support.

Legal assistance

Family law is complex. You are encouraged to contact a lawyer for help with family law issues.

Resources

Amendments to the Alberta Child Support Guidelines – July 2009

Family Law Act Amendments – 2010 Overview