Legal life

legallife

WITH SHANE F. GROARKE

Family LAW

Changes to the Divorce Act you should know

Important and considerable changes to our federal and provincial family law legislation in Alberta have recently occurred.

The Divorce Act changed on March 1, 2021. As a result of these changes, legal parenting concepts of “custody” and “access” have been repealed and replaced with alternative concepts of “decision-making responsibility,” “parenting time” and “contact.” An agreement or court order about custody and access made before March 1, 2021, is still valid; however, the new Divorce Act applies if you have to go to court to change your agreement or order after February 2021.

As a further result of these changes, “any person” who has decision-making responsibility, parenting or contact with the child(ren) of the marriage, who intends to relocate or change their residence, is now legally required to give written notice to any other person who has decision-making responsibility, parenting or contact with said child(ren). This new requirement extends not only to divorced parents but also to any third parties, such as grandparents or any other person standing in the place of a parent. This written notification should be given in the form prescribed by the regulations to the new Divorce Act.

Further still, the “best interests of the child” test, which is the legal test for determining parenting disputes in Family Court, has been expanded to include several enumerated factors such as the child’s views and preferences (depending on age and maturity) and any instances of family violence. This latter criteria of “family violence” has now been defined for the first time in the new Divorce Act, and includes any physical, sexual, psychological and financial abuse, as well as harassment and any harm, or threats of harm, to person(s), property or pet. It is important to consider these changes prior to commencing, or responding to, a Divorce Application.

In addition to the Divorce Act, the Matrimonial Property Act changed and was renamed the Family Property Act on January 1, 2020. These changes have extended to common law spouses the same statutory entitlements and obligations regarding family property division as married spouses in the event of separation. Common law spouses in Alberta are legally defined as two people who live together in a relationship of interdependence: for at least three years; of some permanence (and less than three years) if the couple has a child; or, who have entered into an adult interdependent partner agreement.

Be aware of these changes if you are considering moving in with your partner or have already been living together for some time and are not married. A common law couple residing together for three years, even without any child(ren), are now subject to the same property division and support claims at law as married couples who have lived together for 30+ years. A formal Cohabitation Agreement is the best option to proactively protect parties from any future and often unforeseen disagreement(s) arising over these issues.

These changes have wide-ranging and potentially drastic legal implications for married and unmarried couples considering or experiencing a separation. It is highly encouraged that you consult with an experienced family law practitioner on how to best navigate these changes, and to explore informed options for resolution. life

Shane F. Groarke is a Barrister & Solicitor, Notary Public with GP Law in Airdrie

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