Five Myths about Divorce or Separation

Myth #1: When parents separate, children can decide who they live with.

Until a child turns 18, the Court has full authority to order what it decides is in the child’s best interests and make a Parenting Order, which must be followed and respected.

The Supreme Court of Canada has ruled that the Court must only consider the best interests of the child when making a parenting decision.  The Divorce Act and the Family Law Act reinforce that it is the determination of the best interests of the child that will rule the day.

Both Acts list several factors that are to be assessed in determining the best interests of the child. For instance, sections 18(1) and (2) of the Family Law Act list more than 15 factors to be considered. The child’s views or preferences is only one of those factors and it does not trump the others. A child’s views or preferences are only considered if the Court can properly ascertain them. This means that, among other things, the child must be sufficiently mature (not just by age but psychological maturity, as well) and the child’s views must be independently and freely expressed (that is, not coerced or bribed in any manner). Even then, this only lets the Court take the child’s views into account as one factor among all the other factors.  The child’s wishes are not the final answer to the parenting question. All factors must be looked at.

In summary, children do not have the choice. But, in some limited circumstances, they may be granted a voice.

Myth #2: Unmarried or ‘common-law’ couples do not divide property when they separate.

This is false. Unmarried or ‘common-law’ couples who separate may also need to divide some of their property. Note that in Alberta, we use the legal term ‘adult interdependent partners’ to refer to a common-law couple.

The Family Property Act

Alberta’s new Family Property Act came into effect on January 1, 2020. This means that adult interdependent partners will now share property in a similar way to married couples. Adult interdependent partners are people who have lived together in a relationship of interdependence:

• For a continuous period of 3 years or more;
• For a period of some permanence (could be less than 3 years), if there is a child of the relationship; or
• Under an interdependent partner agreement.

Adult interdependent partners who separate after January 1, 2020 will have their property subject to division in the same way as divorcing couples. The Act does not apply to those who separated before January 1, 2020, or to property that is covered under a valid cohabitation agreement.

Unjust Enrichment

Unjust enrichment can occur in a variety of family contexts and may even apply to those who are not legally considered adult interdependent partners. An unjust enrichment might have occurred if one partner contributes to the acquisition, preservation, maintenance, or improvement of property without being compensated by the other.

In the family context, unjust enrichment most commonly arises when a couple lives together and shares in the expenses, maintenance, and improvement of a home that is in only one of their names. In such a case, the contributing partner who is not on title may be entitled to a share of the increased property value. This can be the case for non-monetary contributions as well (like spending time working on a big renovation).

Joint Family Venture

Some common-law relationships can be classified as a “joint family venture”. In these cases, the Court will consider the proportionate contribution of each partner to the accumulation of wealth during the relationship period. The Court may then make an order to divide the accumulated wealth in a way that reflects the contributions of each partner.

Myth #3: Spouses stop sharing property after separation.

Under Alberta’s Family Property Act, the key date for dividing property is the date of trial or the date of settlement. It is not the date of separation. Therefore, even after a couple has separated, newly acquired property by one spouse may be subject to division. This is especially true if the property is acquired using assets traceable to the marriage or interdependent relationship.

Myth #4: Pensions are not included in property division.

Pensions are assets like any other and are considered property to be divided.

Any pension accumulated between the date of marriage and the date of trial is subject to division. This is true for any RRSP, Defined Contribution Plan, Defined Benefit Plan, Local Authorities Pension Plan, employee share plan, or other similar financial instruments. Starting January 1, 2020, this will also apply to adult interdependent partners.

Myth #5: My ex has to give back their engagement ring.

This one depends on the circumstances and the particular facts at hand. What is most important is the intention of the donor (the person who gives the gift). For example, if the gift of the ring was conditional on marriage, then your ex might need to give it back if you do not end up getting married. This is especially the case if the recipient of the ring is the one who breaks off the engagement. However, not every engagement gift will fall into this category of conditional gifts.

If there is no clear intention to get engaged at the time the ring is given, then a court might consider it an unconditional gift. An unconditional gift would not be returnable to the donor. Often, these types of cases turn on identifying the circumstances under which the ring was purchased and given. Each case is unique, and the Court will assess this issue on the facts at hand.

Want more information on divorce and separation?

Going through a divorce or a separation can be difficult enough without also falling prey to the many myths that are out there. If you need legal advice on your divorce, separation, cohabitation, or on another family law issue, our knowledgeable professionals are ready to assist. To learn more, please contact a member of our Family Law team.