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“Common law” couples reference those people who are cohabiting with another person but are neither married [link to divorce/separation] nor adult interdependent partners [link].

You may have a claim to either money or property from your common law partner if you can establish a claim for unjust enrichment.

To establish unjust enrichment you need to show that you gave something to your partner (to your detriment) which your partner retained (to your partner’s benefit). There must be no legal reason for providing the benefit. For example, it was not a gift, it was not given pursuant to a contract, etc.

A common example of unjust enrichment is when one partner makes monetary contributions to property (such as a contribution to the down payment of a shared residence) which is solely owned by the other partner. If the partner with ownership of the property is able to retain the benefit of the monetary contributions and there is a corresponding detriment to the contributing spouse, then unjust enrichment may be established.

There are a number of different legal remedies available if unjust enrichment is established.

Common law relationships are a complicated area of family law. Symmetry Family Law can assist you in making sense of your particular situation.

If you are entering into a common law relationship, consider contacting Symmetry Law regarding the preparation of a Cohabitation Agreement.

As of January 1, 2020, the Alberta government passed new legislation called the Family Property Act (Alberta). This legislation now applies the property sharing regime that was previously available only to married couples to people who qualify as “adult interdependent partners.”

An “adult interdependent partner” is a defined term under the Adult Interdependent Relationships Act (Alberta). You are an adult interdependent partner if:

You have lived together with another person in a relationship of interdependence:
For a continuous period of at least 3 years; or
For some permanence and you have a child together by birth or adoption; or
You have entered into an agreement with another person to become adult interdependent partners.

A “relationship of interdependence” is defined as a relationship where two people outside of a marriage:

Share one another’s lives;
Are emotionally committed to one another; and
Function as a domestic and economic unit.

All of the circumstances of the relationship must be considered to determine if a couple outside of marriage functions as a domestic and economic unit. It is important to note that not every couple will arrive at this state of interdependence on day one of their cohabitation. In addition, cohabitation is not strictly required to be considered a relationship of interdependence.

The determination of whether you are an adult interdependent partner is often complicated. Symmetry Family Law can provide you with legal advice in this regard. If you are an adult interdependent partner and your relationship has ended, then you will need to consider the legal issues of:

Division of your family property in a manner similar to married couples [link]; and
Partner Support between you and your partner. [link]

If you and your partner do not qualify as adult interdependent partners, then the laws relating to unjust enrichment, which are applicable to common law couples [link], may apply to you.

If you and your partner are entering into a cohabitating relationship or a relationship of interdependence, consider contacting Symmetry Family Law regarding a Cohabitation Agreement.

Parenting plans are typically one of the most important elements of planning in a separation or divorce when children are involved. A parenting plan should be comprehensive and carefully considered so as to minimize conflict for the benefit of your children.

Parenting plans need to address two main topics:

1. the sharing of parenting time; and
2. the determination of how parenting decisions will be made.

Parenting is governed by the Divorce Act (Canada) for divorcing parents and the Family Law Act (Alberta) for separating or unmarried parents. Under both pieces of legislation, decisions around parenting are based on the best interests of the child.

In creating a comprehensive parenting plan, there are many elements that you will need to consider. For example:

• How will important decisions for the children be made?
• How will time be scheduled/shared with the children?
• How will holidays be shared?
• How will you select and schedule extracurricular activities, school events and medical/dental appointments?
• How will consent/notice of travel with the children be decided?
• What will occur when one of you needs alternate care of the children during your parenting time?

At Symmetry Family Law, we can assist you in creating a comprehensive parenting plan. We can do this through any of the process options outlined on our website. We can also assist in drafting a legally binding Parenting Agreement and/or Court Order.

Child Support is a monthly payment from one parent to the other to assist in the financial obligations of raising a child.

Child support is governed by the Divorce Act (Canada) in relation to married parents and the Family Law Act (Alberta) in relation to unmarried parents. The same principles apply to child support between both married and unmarried parents, with a few exceptions. The amounts payable for child support are governed by Child Support Guidelines (the “Guidelines”).

There are two basic components of child support:

(1) A “base” support payment made by one parent to the other. This payment is determined with reference to tables set out by the Guidelines. The amount payable depends on the payor’s province of residence, the number of children for whom support is to be paid, the nature of the parenting arrangement, and the payor’s income.

When children reside primarily with one parent, the payor of child support is the parent with whom the children do not primarily reside.

When children reside with both parents (in what is termed a “shared parenting” arrangement) then both parents are considered payors of child support with the result that the higher income earning parent usually pays a monthly amount to the lower earning spouse.

Many factors must be taken into consideration when calculating income for the purposes of child support. Often, we start by looking to Line 150 of the payor’s tax return. However, this is only the start of the analysis, particularly with payors who are self-employed or own a corporation.

(2) A payment of “Section 7 expenses” which are extraordinary expenses for the children and may include:

• child care expenses;
• healthcare premiums attributable to the child;
• health care costs that exceed insurance reimbursement;
• secondary education costs;
• post-secondary education costs; and
• “extraordinary” extracurricular activity expenses.

Generally, parents are to share these expenses in proportion to their respective incomes as the expenses arise.

There is often a continued obligation to support a child over the age of majority if the adult child is still dependent on the parents (for example, if the child is pursuing post-secondary education).

There is also a continued obligation to exchange annual income information with the other parent and make any necessary adjustments to child support.

At Symmetry Family Law we are able to provide you with legal advice specific to your situation in relation to child support. We can help you to resolve child support issues through the various process options discussed on our website.

Spousal support (or partner support as it is called in relation to unmarried partners) is a payment from one spouse to the other for the purpose of providing necessary financial support.

Spousal support is governed by the Divorce Act (Canada) in relation to married spouses and the Family Law Act (Alberta) in relation to unmarried spouses. The relevant principles relating to spousal/partner support for married and unmarried spouses are largely the same; however, unmarried spouses are only entitled to seek spousal/partner support if they are “adult interdependent partners” as defined by the Adult Interdependent Relationships Act (Alberta). Please see the Adult Interdependent Relationships [link] section of our website for further information regarding adult interdependent partners and adult interdependent relationships.

Three primary issues are considered in relation to spousal support:

(1) Entitlement:

The question of whether a spouse is entitled to support is complex. Generally, entitlement to support may arise on two main grounds: (a) Compensatory support; and (b) Non-compensatory or needs-based support. A compensatory support entitlement may exist when an economic advantage/disadvantage arises as a result of the marriage or its breakdown paying particular attention to the roles of the spouses during the relationship, the length of the relationship and whether there are children. A non-compensatory support entitlement arises due to the economic need of one spouse and the corresponding financial means of the other spouse. The goal of spousal support is to encourage the recipient spouse to become self-sufficient within a reasonable period of time (or self-sufficient to the greatest extent possible).

(2) Amount:

The amount of spousal support is also complex. Reference is made to the entitlement factors as well as to the Spousal Support Advisory Guidelines, which are guidelines that provide a reference point for what may be an appropriate range of support for a particular couple.

(3) Duration:

Spousal support is typically paid on a periodic (monthly) basis. Payment of spousal support on a lump sum basis is also possible. If spousal support is paid monthly, the duration of support payments need also be determined. In determining duration, reference is made to the Spousal Support Advisory Guidelines. Duration may be indefinite, subject to review/variation upon a particular event or passage of time, or fixed term.

Spousal/partner support is a particularly complex area of family law. Symmetry Family Law is able to provide you with guidance and legal advice specific to your particular situation. We are able to assist you in resolving the matter of spousal support through one of the process options outlined on our website.

In Alberta, the division of property after separation of a married couple is governed by the Matrimonial Property Act (Alberta) (“MPA”) if you separated before January 1, 2020 and by the Family Property Act (Alberta) (“FPA”) if you separated on or after January 1, 2020.

Most property is considered “matrimonial property” under the MPA or “family property” under the FPA. “Property” includes both assets and debts, whether owned jointly or separately, and includes things such as:

• Home
• Vehicles
• Investments
• Pensions
• CPP
• Bank accounts
• Business interests
• Mortgages
• Lines of credit
• Credit card debts
• Other loans

There is a presumption that matriominal/family property is to be divided equally between the spouses. In Alberta, property is typically valued at the date of trial (meaning the current time if there is no trial) rather than valued at the date of separation. There are exceptions to this general rule.
There is some property which is not shared between spouses. This is called “exempt” property and includes:

• Property acquired by a spouse by gift from a third party;
• Property acquired by a spouse by inheritance;
• in relation to the MPA, property that a spouse had before the date of the marriage
• in relation to the FPA, property that a spouse had on the earlier of the date of the marriage or the date commencement of a relationship of interdependence, whichever is earlier (click here for information on a “relationship of interdependence”);
• an award or settlement for damages in favour of a spouse; or
• the proceeds of an insurance policy paid to one spouse.

For an exemption to be successfully claimed at the end of the relationship, the exempt asset must still exist. If the asset was consumed or if the path of the exempt asset into current property cannot be traced, the exemption may be lost. Similarly, if exempt property was placed into joint names, a portion of the exempt asset may be lost. If an exempt asset increases in value over the course of the marriage, that growth is divided as is “just and equitable” under the MPA. Gifts between spouses are also divisible as is “just and equitable.”

At Symmetry Family Law we can assist you in determining an appropriate division of your matrimonial property/family property using any of the process options outlined on our website. We can provide legal advice specific to your situation and draft a legally enforceable Agreement which finalizes the division of property between you and your spouse.

At Symmetry Family Law, we are able to assist you in the preparation and execution of any of the following Agreements:

• Divorce and Separation Agreements
• Cohabitation Agreements
• Prenuptial Agreements
• Postnuptial Agreements
• General Information about all Agreements

Divorce and Separation Agreements:

A Divorce or Separation Agreement is an agreement that is prepared following the breakdown of a marriage or other relationship. It confirms the terms agreed between you and your spouse in relation to topics of relevance to your family, such as:

• division of family property/matrimonial property;
• parenting;
• child support; and
• spousal support.

A Divorce or Separation Agreement may address some or all of these issues. It can be drafted to be either interim (temporary) or final in nature.

Cohabitation Agreements:

Cohabitation Agreements are agreements made between unmarried people either in anticipation of their cohabitation or during the course of their cohabitation. A Cohabitation Agreement allows you to define by contract your legal rights and entitlements to the property of the other upon a potential breakdown of the relationship.

Please refer to the Common Law Partners and Adult Interdependent Partners section of our website for more information regarding the relevant laws relating to these relationships.

Prenuptial Agreements:

Prenuptial Agreements are agreements made between people in anticipation of their marriage. A Prenuptial Agreement allows you to define by contract your legal rights and entitlements to the property of the other upon a breakdown of the marriage.

Postnuptial Agreements:

Postnuptial Agreements are agreements made between people during the course of their marriage. A Postnuptial Agreement allows you to define by contract your legal rights and entitlements to the property of the other upon a breakdown of the marriage.

General Information about all Agreements:

In Alberta, there are laws which require each of you and your spouse to receive Independent Legal Advice from your own lawyer about the nature and effect of the above Agreements.
The receipt of Independent Legal Advice is an important step in ensuring that the above Agreements are binding and enforceable.