A Northwest Calgary Law Firm
The legal landscape, especially when it comes to family law matters, can be extremely complex. Here at Dukeshire Law Office, we strive to be a resource for our clients in Calgary and the surrounding areas. On this page, you’ll find frequently asked questions about common legal situations. For specific inquiries, click on the links on this page to be taken directly to the answer. For more information, contact Dukeshire Law Office.
Q: How is a divorce action started?
A: With a Statement of Claim For Divorce being filed by the Plaintiff at the Court of Queen's Bench of Alberta which contains details about the parties and their marriage, as well as the grounds for divorce and the relief being requested. The Statement of Claim For Divorce is then personally served on the other spouse, who has 20 days after being served, if served within Alberta, to file a Statement of Defence or a Demand of Notice, failing which he is noted in default. This means that the Plaintiff who started the divorce action may proceed to file her Affidavit of Applicant to get the relief that she has asked for in her Statement of Claim without any further notice to the Defendant.
Q: If I use the grounds for divorce of one year separation, do I have to wait until the anniversary of the one year's separation before I am entitled to file a Statement of Claim For Divorce?
A: No, you may file a Statement of Claim For Divorce as soon as you are separated from your spouse. However, you will not be able to file your Affidavit of Applicant requesting the Divorce Judgment until after the one year anniversary of your separation date.
Q: Do I have to have a written Separation Agreement to be considered by the law to be legally separated from my spouse?
A: No, you are legally separated from whenever you do not live together anymore whether or not there is a written Separation Agreement. You may even be considered separated for divorce purposes if you are still residing in the same residence as your spouse, and sleeping in a separate room from your spouse in the matrimonial home, and all marital relations have ceased. However, the Canada Revenue Agency may have issues considering you as separated if you still live in the same residence for income tax and other government purposes, whether or not you have a written Separation Agreement.
Q: What are the grounds for divorce?
A: One year separation, physical or mental cruelty or adultery. If you have recently been treated by your spouse with physical or mental cruelty, or your spouse has committed adultery, there is no one year waiting period for you to file your Affidavit of Applicant in support of the Divorce Judgment as there is for a divorce on the grounds of one year separation.
Q: What evidence do I need of my spouse's adultery as grounds for divorce?
A: You or someone else would have had to actually witnessed the act of adultery, or the spouse who committed the adultery would have to sign an Affidavit stating that they had committed adultery. However, the spouse would have to voluntarily offer to execute the Affidavit of Adultery, since the Canada Evidence Act protects a person from having to answer questions or testify about their own adultery.
Q: What is shared custody and how does it affect the calculation of child support under the Federal Child Support Guidelines?
A: Shared custody occurs when the child lives in separate residences with each parent at least forty per cent of the time. With shared custody the amount of child support payable is the difference in the Table Amount of child support that the Wife would pay to the Husband for her Guideline Income, less the Table Amount of child support that the Husband would pay to the Wife for his Guideline Income. However, the Court has the discretion to order a different amount depending on the circumstances.
Q: How does shared custody affect the ability to claim the Amount For Eligible Dependant on the parents' Income Tax Returns?
A: If both parents are legally obligated to pay child support for their two children to each other, then each parent could claim one of the children for the Amount of Eligible Dependant. If only one parent is legally obligated to pay child support to the other parent, then only the parent receiving the child support may claim the Amount For Eligible Dependent. But in either case, both parents have to agree, or else CRA states that neither one may make the claim.
Q: How does shared custody affect which parent has the Canada Child Benefit paid to them?
A: If there is shared custody where both parents are primarily responsible for the child's care and upbringing when the child lives with them, then each eligible parent will get 50% of the payment of the Canada Child Benefit that he or she would have received if the child lived with him or her all of the time. The Canada Revenue Agency will not allow the parents to agree on any other percentage division of the Canada Child Benefit between them.