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FAMILY LAW ACT

Alberta's new Family Law Act came into effect on October 1, 2005.  It replaces the Domestic Relations Act, the Maintenance Act, the Maintenance Order Act, the family law provisions of the Provincial Court Act, and the private guardianship provisions of general application in the Child Welfare Act.  This results in the core of family law now being found in one statute.

Under the new Family Law Act, both the Provincial Court and the Court of Queen's Bench now share the ability to hear most family law matters.  It must be noted however, that the Family Law Act does not replace the Divorce Act, or the Matrimonial Property Act, and accordingly, most individuals who are married will continue to have their matters dealt with under those Acts.

The Family Law Act is centered on the best interests of the child, and encourages parents to work together to minimize the effect of conflict on children, as well as reduce the emotional and financial costs of family break down.  It places a duty on lawyers to discuss with their clients alternative methods of resolving family matters, including the collaborative law process (which has been written about in this column in the past).  Court procedures have been streamlined, and both the Provincial Court and the Court of Queen's Bench now have the same forms and similar application procedures, which is meant to simplify the process.

The Family Law Act does not use the terms custody and access, but rather, refers to Guardianship and Parenting Orders.  In most cases, both parents are guardians.  The powers, responsibilities, and entitlements of guardianship are set out under the Act, and include making decisions that promote the best interests of the child.  Guardians have a duty to cooperate with each other, and each has the right to be informed and consulted on matters related to the child.  Parenting Orders are used to define each guardian's responsibilities when they cannot agree between themselves.  A Parenting Order will allocate the powers and responsibilities of each guardian, as well as define each parties 'parenting time', being the time during which a guardian has the power to make day to day decisions affecting the child.  Parenting Orders are meant to be a tool that can be used to establish an appropriate post-separation parenting regime, and can include any term or condition that a court deems to be in the best interests of the child.

There are no key changes to the way child support is calculated under the new Family Law Act.  The only difference seems to be that the Family Law Act indicates that child support may apply to children who are attending and contributing to full time post-secondary education up until they are 22 years old, whereas there is no specific age cap in the Federal Child Support Guidelines.  A party can also apply for spousal or adult interdependent partner support under the Family Law Act, but the Act specifically indicates that child support takes precedent.

The introduction of the new Family Law Act is a substantial change to the practice of family law, but hopefully one that is beneficial to all those involved.

By Danielle Elder
November 2, 2005