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Section 7.3 Divorce Act, Canada, states: "To the extent that is is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process."
Katherine A. Kubica* can assist you to mediate a resolution of your matters, however, if you wish to try to resolve your matters such as parenting, child support and/or spousal support, property division or other matters amicably, without a lawyer, there are services available which can help to avoid the adversarial court process. Google Family Justice Services, browse Family Justice Services, then click on Alberta, and a list of options will appear. Click on whichever one appeals to you for further information. Or click below:
Parent Education and Information
Information & Resource Centres
Support Establishment Services
Support Recalculation Services
Legislative Changes - The Division of Assets, Debts and other Family Property
February 20, 2020
Although new legislation has been enacted which governs the division of assets and debts upon marriage breakdown, the Matrimonial Property Act is still in effect for married partners if they separated before January 1, 2020. This is set out in the transitional provisions in section 39 of the new Family Property Act, which came into effect on January 1, 2020, which replaced the Matrimonial Property Act and now governs the division of property upon marriage breakdown.
If you separated after January 1, 2020, the governing legislation for married couples is the same as all other adult interdependent partners--The Family Property Act.
Family Property includes assets like houses and/or other buildings and land, investments, tools, vehicles, businesses, share or stock holdings, bank accounts, bonds, pensions--eg., registered pensions and employment pensions. It also includes debts -- his debts, her debts, joint debts all acquired during the relationship. Unless otherwise agreed upon by the parties in writing (section 7(2.1), all property is valued as at the date of trial not the date of separation.
Trial is expensive and time consuming, so it is best to work out an amicable division of matrimonial property early after separation, provided both parties are forthcoming with disclosing all information and documents. It is that easy. Make it happen rather than engaging in protracted litigation.
Family Property Act - Is all property subject to equal division? No it is not.
February 15, 2020
The following assets are exempt from the division of family property
Inheritances
Gifts from third parties
Awards or settlements for damages (for example, an award for damages received as a form of compensation resulting from a successful lawsuit for wrongful dismissal)
Insurance proceeds from a motor vehicle accident settlement or award
Property owned by either party before the relationship of interdependence began, subject to some tracing which can occur if the asset was brought into the marital regime
In order for a property to be classified as exempt, it must be traceable to existing assets and the burden of proving the exemption falls to the spouse or partner claiming the exemption -- so be sure to retain all documents including bills of sale and purchase receipts and bank records in order to provide evidence to prove that the exempt property still exists or can be traced to other existing assets.
If for example, a spouse inherits a house -- this is the exempt property because it was inherited solely by them -- and then sells the house during the marriage, they must show that the proceeds, or part of the proceeds, were used to buy some other asset whether it is a car, a boat or another house in order for the inherited property value to be exempt. If, however, they go on a holiday with their spouse and spend some portion or all of the proceeds from the sale of the exempt asset or house, they lose the exemption because they brought the money into the matrimonial regime (and they spent it so it is really difficult to trace). Similarly, if they pay off a joint credit card, or even a card in their own name or their spouse's name, those funds used to pay off the credit card are lost because again, they were brought into the matrimonial regime. So it is always best to use exempt funds arising from the sale of an exempt asset cautiously and the best way to preserve them would be to invest them solely in your own name and do not add to them new funds, nor withdraw from them throughout the marriage. This may help you retain all of your exempt value from your inheritance.
If however, you use the exempt funds as a lump sum payment on a mortgage in jointly owned property, you will lose one-half of your exemption, or if you use the exempt funds as a down payment on the next house which will be held jointly by you and your spouse, again, you will lose one-half of your exemption because you brought the exempt funds into the marital regime or adult interdependent regime.
It is always best to seek sound legal advice whenever these issues arise in your life so contact Katherine A. Kubica* to know your best course of action.
Similarly if a person inherits a house or other asset and then marries, they may, for financing reasons, feel the need to put their new spouse on the title of their inherited house. The effect is that upon separation, they will lose one-half of their exemption (the exempt value of their inherited house which is valued at the time they began cohabiting) and if they actually pre-decease their spouse, the joint tenancy of the title of the formerly exempt property ensures the house goes entirely to their spouse who is the surviving joint tenant. If they had children from a former marriage, they will receive no share of the formerly exempt house. So be sure to seek legal advice before transferring inherited property into joint names with your spouse, or anyone.
What date do we use to value the exempt property? The market value of exempt property from when the relationship began or when the asset was acquired (whichever is later) is exempt from division. If the value of the exempt property has increased during the relationship, then the increase in value may be divided in a manner that the court considers “just and equitable”, which caselaw indicates is usually 50/50, with some exceptions.
The Family Property Act provides for a equal starting point for the division of family (or non-exempt) property but as outlined earlier, there are instances where an unequal distribution is warranted if one of the spouses disposes of assets recklessly or dissipates assets without the other spouse's knowledge or consent.
Katherine Kubica can provide you with legal advice regarding these issues. You can then make an informed decision about whether to proceed further in litigation to achieve an unequal division in your favor. The litigation costs of paying a lawyer to fight may not be worth the fight however, and if that is the case, Katherine will tell you that. It may be that a mid-range settlement may be better for everyone in the short run.
How to Dress for Your Court Appearance
Katherine Kubica Professional Corporation currently makes most Court applications on line through the Edmonton Law Court's WEBEX videoconferencing platform. Clients therefore attend "Court" in the offices of Katherine A. Kubica Professional Corporation. Clients are asked to dress appropriately in office attire.
Our attire reflects the respect we hold for the esteemed Justices of our Judiciary who work tirelessly in presiding over our cases, as well as the reverence we have for our judicial system generally.