Alberta Family Law: FACT or FICTION?

This is a fun page where we get to “bust” (and sometimes confirm!) some of the myths about family law that we hear when we tell people at parties that we are family lawyers.

All family law scenarios are fact specific and unique.  The answers given on this page are not intended to be specific legal advice for any particular client and instead provide brief general information on the topics covered.  We encourage anyone with a family law problem to speak to a family law lawyer about their particular situation and to get detailed and specific advice and assistance.

Kelly Elizabeth Smith & Christine N. Shepherd

Overheard in the Hot Tub...

Christine and Kelly's take

Marijuana is legalized so I can smoke it all the time during my parenting time.

BUSTED: In our experience the Courts view any sort of substance that impairs a parent’s judgment in the same way.  As it would be problematic for you to be parenting if you are intoxicated from alcohol, the same issue arises if you are unable to make good parenting decisions owing to intoxication from marijuana.

I signed an Agreement I printed off the internet so my spouse is no longer able to claim my pension, right?

BUSTED: While sometimes documents that are signed informally without the benefit of disclosure and independent legal advice leads to some recognition that you and your spouse did intend to reach some sort of agreement, if you did not have the benefit of exchanging complete financial disclosure and speaking with a lawyer about what that agreement means for you, it is unlikely to be binding on you.  This means that there may still be claims to the assets you hold in your name, for example, a pension.

Am I automatically divorced when my husband goes to jail?

BUSTED: No, you are not.  If you wish to have a divorce, you must have a Divorce Judgment granted which is a very specialized process.  If you think you want to take that step, consult a family law lawyer.

The father of my child is a university student, but his parents are multi-millionaires. I am going to get a big child support payout based on his parents' fortune.

BUSTED: Child support is payable based on the income of the payor. However, it is important to keep in mind that as your child grows, his father may move on to a successful career and his child support payment may be adjusted as his income grows.

My spousal support obligation could be reduced if I have a very high child support payment.

TRUE: Child support always takes precedence over spousal support and where there is insufficient income to pay both, child support will have to be satisfied first. 

There is a minimum monthly amount of child support that must be paid by all payors of child support.

BUSTED: Child support is calculated based on the payor’s income and the applicable table.  If you earn less than the minimum threshold income, there may be no child support payable.

My child needs an extraordinary medical procedure that costs $20,000.00. I cannot really afford it, but I will have to pay 50% or $10,000.00 towards this operation.

BUSTED: Your Child Support Order will set out how special or extraordinary expenses are to be shared.  The general rule is that they are shared proportional to the parent’s incomes.  You must also consider whether or not the special medical procedure is truly necessary for the child and reasonable within the family budget.  Generally speaking, a medical procedure will be determined to be a necessary expense for a child will have to be paid for by the parents.

I receive monthly spousal support from my ex-spouse. I have to pay income tax on my spousal support received.

TRUE: Monthly interim periodic spousal support is taxable in the hands of the recipient and a tax deduction in the hands of the payor.  It is important to consider the tax implications of any spousal support arrangement with your family law lawyer and income tax professional.

My husband and I purchased a $50,000.00 trailer prior to separation so now I should receive $25,000.00 because he is keeping the trailer, right?

BUSTED: Personal property like trailers are assets that immediately depreciate in value as soon as you have purchased them, particularly if you have purchased them as new.  You are each responsible for that depreciation and it is the current fair market value of the asset that will be divided.  For example, if your trailer is now worth $40,000.00 at the time of negotiations, you would usually be entitled to $20,000.00 if your husband retains the trailer.

I pay $1,500.00 per month in child support. I am entitled to see receipts for the diapers and formula that are purchased with my child support, right?

BUSTED: No.  Your child support is based on the Federal Child Support Guidelines tables which are created by the government and calculated based on the average expense of raising a child in your province.  It is assumed that the recipient of child support uses those funds to provide for the child.

More to Come...