family law act

FAMILY LAW ACTS.A. 2003, c. F-4.5 (as amended)

Alberta’s Family Law Act

Has been in force since 2005

Covers family members with a “real and substantial connection” to the province

Covers the law on Guardianship, Parenting, and Financial Support, among other things

Is based on fill-in-the-blank forms

Court Applications

http://www.albertacourts.ab.ca/go/CourtServices/FamilyJusticeServices/FamilyLawAct/Forms/tabid/128/Default.aspx

General Principles in Family Law The only question that a Court has to answer

is: ”What is in the best interests of this child?”

It is a child’s right to have a relationship with their family members.

It is a child’s right to have the financial support of their parents.

There is no “magic age” at which a child can have input into the Court’s decisions.

In Shelter … With Children Clients are in a

crisis situation

Difficult to focus on something as abstract as legal proceedings

Not every problem has a legal remedy

Best Interests of the Child

“In all proceedings under this Part, the court shall take into consideration only the best interests of the child.” – s. 18(1)

What does “best interests” look like to you?

The Court sees things differently

Both parents are presumed to act in the best interests of the child unless proven otherwise.

“family violence” in this legislation includes behaviour by a family or household member causing or attempting to cause physical harm to the child … causing the child … to reasonably fear for his or her safety – s. 18(3)

It does not include the use of force as a means of correction … if the force does not exceed what is reasonable under the circumstances - s. 18(3)(a)

Family violence is established on the balance of probabilities

s. 18(2) says the court shall:

Ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and

Consider all the child’s needs and circumstances, including: Physical, psychological and emotional needs History of care for the child Cultural, linguistic, religious and spiritual upbringing Child’s views and preferences to the extent that it is

appropriate to ascertain them Any plans proposed for the child’s care and upbringing

Any family violence, including its impact on The safety of the child and other family and

household members The child’s general well-being The ability of the person who engaged in the

family violence to care for and meet the needs of the child, and

The appropriateness of making an order that would require the guardians to cooperate on issues affecting the child

The nature, strength and stability of the relationship Between the child and each person

residing in the child’s household and any other significant person in the child’s life, and

Between the child and each person in respect of whom an order under this Part would apply

The ability and willingness of each person in respect of whom an order under this Part would apply To care for and meet the needs of the child,

and To communicate and cooperate on issues

affecting the child Taking into consideration the views of the

child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships …

The ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and

Any civil or criminal proceedings that are relevant to the safety or well-being of the child.

Who is a guardian?

The mother and father are both guardians If they were married at the time of the

birth Married, but divorced or annulled less

than 300 days before the birth Married after the birth of the child Lived together for 12 consecutive

months during which time the child was born

Became “Adult Interdependent Partners” after the birth of the child

So …

Except where otherwise limited by a Parenting Order, each guardian is entitled to be informed and consulted and to make all significant decisions affecting the child, and

To have sufficient contact with the child to carry out those powers and responsibilities.

Should you ask for “no access – ever” because one parent was violent toward the other?

Parenting Orders

Parenting After Separation http://www.albertacourts.ab.ca/go/CourtServices/FamilyJusticeServices/Cou

rsesSeminarsforParentsandFamilies/ParentingafterSeparation/tabid/137/Default.aspx

Course is mandatory before being heard in Queen’s Bench

Parents are likely to be ordered to take it by Provincial Family Court

Special sessions for high-conflict families (domestic violence)

The parties will not be scheduled for the same session

Family Mediation Services http://www.albertacourts.ab.ca/ProvincialCourt/FamilyJusticeServices/Medi

ationServices/tabid/124/Default.aspx

Free if one person earns less than $45,000.00 per year

Try “caucusing” where the parties do not have to be in the same room

Some form of “ADR” (alternative dispute resolution) is mandatory before you can get a trial date in either court “JDR” available in some jurisdictions

Court Application Process In the Provincial Court of Alberta, Family

Division, this is called a Claim In the Court of Queen’s Bench, this is called

an Application Fill in the Claim form and supporting

Statements Pick a court date that is at least a week away File it with the Clerk of the Court (no filing

fee) Serve the Claim, supporting Statements, and

Notice of Mandatory Seminar (if in QB)

What does “service” mean? “Service” means that the “other side” has been

given notice of the court application, including all paperwork that describes what your claim is about, why you are asking for a specific type of order, and when to come to court to speak to the Judge.

As a Claim is a “commencing document”, you must serve the other side personally (i.e. have someone hand the papers directly to the other person)

The person who gives the paper to your Respondent must swear and file an Affidavit of Service and may be called as a witness in court at a later date.

Attendance at Court

Attend Case Flow Conference or mediation

The matter will be listed by the Respondent’s name on the Provincial Court docket, or in both names (Applicant v. Respondent) in QB

Go to court to speak to the Judge or Justice In some court houses, Duty Counsel is available

An Interim Order may be granted to cover the period between “now” and the trial, or the next step, as the case may be

Support Orders

Alberta Child Support Guidelines Child Support is pretty simple:

You make this much money + you have this many children to support = this is how much you pay

There are two parts to child support: S.3 = base support = food, clothing shelter S.7 = extraordinary expenses = child care,

medical, extracurricular activities, etc.

http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp

Additional Documents Required When you are seeking child support, you need to have evidence

of the income of both parents.

Most people do not think to grab their income tax returns when they are fleeing to shelter.

Therefore, you need to make a Request for Financial Disclosure

The other side is entitled to 30 days to respond

The court date will have to be at least 30 days away before you can get a final order, but you might be able to get an interim order if you have some evidence of the other persons earnings or ability to earn income.

http://alis.alberta.ca/wageinfo/Content/RequestAction.asp?format=html&aspAction=GetWageHomePage&Page=Home

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