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What is the difference between the Provincial Court (Family Divison) and the Court of Queen’s Bench?
The Provincial Court is a lower court and is generally less formal than the Court of Queen’s Bench. The Court of Queen’s Bench has greater power to deal with a wider range of issues, but the rules of court are more formal and strict. A Queen’s Bench order takes precedence over a Provincial Court order. You can refer to a Judge of the Provincial Court as “Your Honour” but you must refer to a Justice of the Court of Queen’s Bench as “My Lord” or “My Lady”.
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Which court should I use - the Provincial Court (Family Division) or the Court of Queen’s Bench?
If you want to want to make an application for parenting, contact, child support or spousal support and you have not already started an action in the Court of Queen’s Bench, then you may make your application in Provincial Court. However, there are certain things the Provincial Court cannot deal with. If you want an order for the following things then you have to make your application in the Court of Queen’s Bench:
- Exclusive Possession of a home
- Exclusive Use of household goods
- Declaration of Parentage
- Declaration of Irreconcilability
- Surrogacy
- Cancellation of Registration at Land Titles
- Conditions on support orders such as trusts, charges against property, injunctions etc.
If you have already filed for divorce or you have already got an order from the Court of Queen’s Bench, then you must make your application in the Court of Queen’s Bench. Because the Court of Queen’s Bench is a federal court, it can deal with any family law matter.
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I have an order from Provincial Court (Family Division) and now I want to change it. What do I do?
If you want to change your Provincial Court order because you missed the hearing, then you can apply, within 30 days of the order, for a rehearing. If you want to change your Provincial Court order just because you are not happy with it, then the proper procedure is to appeal to the Court of Queen’s Bench. You have 30 days from the date the order was signed, entered and served to do this. You should seek the advice of a lawyer before you take any steps towards filing an appeal. If you want to change your Provincial Court order because something new has come up or because your situation has changed, then you can do a variation application at the Provincial Court. All of the forms you will need are available in the Family Law Kits on the Family Law Information Centre website, www.albertacourts.ab.ca/familylaw .
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My court order is out of Edmonton but I live in Calgary. Do I have to go to Edmonton to make my court application?
Most of the time, yes. If there is already an open court file for your matter, you should file your application where the court file is. It may be possible to transfer the court file, either permanently or temporarily, so that you can make your application in Calgary but it will depend on why you want to move the file and what you will be applying for. For example, if you want to change custody or parenting and the child still lives in Edmonton, the Court will probably not allow you to transfer the file. If you want to move a Provincial Court file, speak to the clerk’s office at your nearest courthouse location. If you want to move a Court of Queen’s Bench file, then you can use the Court Procedure Booklet #29 on the Family Law Information Centre website.
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How do I terminate my parental rights?
You should speak to a lawyer about your parental rights and obligations. It is important to note, however, that it is not possible to “give up” your parental rights so you can stop paying child support.
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How do I get paternity testing done? How much will it cost and who will pay?
Check your local Yellow Pages under “Laboratories” or search for a “DNA paternity testing service” on the internet. The prices may vary from company to company. When picking a company, make sure to ask whether their reports have been accepted by the Alberta courts. Some DNA testing is meant for personal use only. The cost of the report will have to be paid up front but the Court can ultimately decide who will be responsible for the cost of the testing.
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At what age can a child decide with which parent they want to live?
There is no magic age when a child is considered “old enough” to decide for themselves which parent they want to live with. The courts will decide custody and access, or parenting, issues on the basis of the best interests of each and every individual child. The court may listen to the wishes of a 12-year old child in one case and then not in another case. This has to do with the fact that each child is different and matures differently. There are never any cookie-cutter solutions when it comes to deciding what is in the best interests of children.
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Can I change a child support order from another province/country?
Alberta has agreements with all of the provinces and some countries that will allow our courts to change child support orders here as long as both parties reside here in the province. However, if you have a child support order from another province/country and the other parent also lives in that other province/country, then as long as Alberta has an agreement with that province/country, you can file an application here to change your child support order. A decision will be made by the other province’s/country’s court without you having to travel there.
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How much child support will I have to pay?
How much child support you will have to pay will depend on your gross annual income. There are Federal Child Support Guidelines in place that regulate child support for divorcing parents and there are Alberta Child Support Guidelines for unmarried couples or married parents that have not applied for a divorce. Both sets of guidelines say that the parent that does not have the children in their primary care, the “payor” parent, is required to pay two forms of child support in accordance with their income. The two forms of child support are:
- base child support – this is intended to cover the basic necessities such as food clothing and shelter. It is based on a table that lists the amount of support for your income and number of children.
- special and extraordinary expenses – these are reasonable and necessary extra expenses to cover such things as child care, medical/dental insurance premiums, health expenses, extraordinary school expenses and extraordinary extra-curricular activities, and post-secondary school expenses. These are to be shared between the parents in proportion to their incomes.
Both the Federal Child Support Guidelines and the Alberta Child Support Guidelines use the same tables. A copy of these tables can be obtained from the Family Law Information Centre, or viewed online at http://www.canada.justice.gc.ca/eng/index.html.
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I am not getting to see my children. Do I still have to pay child support?
Yes. Your obligation to pay child support exists because you are a parent and remains even though you may not have time with your children. If you want to spend time (more time) with your children, that is a separate issue and you will have to bring a separate application for parenting, access, or contact.
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What do I do when my income changes and I can no longer make the child support payments I was ordered to?
If you and your ex-spouse/ex-partner are able to work together, then the easiest thing to do would be to contact your ex, notify them of your change in income and work out a new child support amount based on the tables in the Alberta or the Federal Child Support Guidelines. You may choose to make this official by entering into a Maintenance Enforcement Support Agreement or a consent order. If you are not able to work co-operatively with the other party in changing child support, then you should bring a variation application. You can do this application yourself, without hiring a lawyer, at no charge. Be sure to contact the Family Law Information Centre to make sure you get the right forms for your particular situation.
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The Maintenance Enforcement Program is taking action against me. What can I do to stop it?
The Maintenance Enforcement Program (MEP) is set up to collect the support amounts that have been ordered by the court. MEP does not have the power to change the amount that must be paid in any circumstance. In order to get MEP to stop, you must make an application to vary the court order that is currently in place. You may also be able to get a temporary stay of enforcement which will give you some time to get caught up on any arrears of support that you may owe.
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I want to change my court order but I have no idea where my ex-spouse/ex-partner lives. Can I just do it anyway?
No. When you change a court order, you change the rights and obligations of the other party. You have to give that other party notice of what you are asking the court to do so that they have the opportunity to make arguments against your application. If you are not able to locate the other party, you may be able to get a court order for “substitutional service”. The court will only allow this if you can show that you have made every effort to locate your ex by calling friends, family, former employers or by searching the internet or directory at the library.
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I want to move out of the province with my children. Do I need the other parent’s permission?
As long as there is no court order or agreement in place saying that you must stay in the province with the children or give the other party notice if you are going to move, then there is nothing really preventing you from moving to a new province with your children. At any time, either parent can bring an application for custody, access, parenting or contact of the children. The court in the province where the children are ordinarily resident is the province that will have the authority to make an order. It is important to remember also that a court order from one province dealing with the children can be filed and enforced in another province within Canada.
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I want to go on a holiday with my children to the United States. Do I need to have the other parent’s permission?
Most of the time, you need the other parent’s consent to cross the border with the children. The only times you do not need to get the other parent’s consent to leave the country with the children is if you are the only parent listed on the child’s birth certificate or passport or if you have an order for sole custody. In all other cases, you should have an order permitting you to travel outside of the country with the children or a statutory declaration signed by the other parent allowing you to travel outside of the country with the children.
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I just separated from my spouse. What do I need to do to make it legal?
There is no such thing a “legal separation” in Canada. Sometimes when people say they are “legally separated” what they really mean is that they have entered into a legally binding agreement, sometimes called either a “Separation Agreement”, “Divorce Agreement”, “Custody, Access and Property Agreement”, or “Minutes of Settlement”. These types of agreements are usually prepared by lawyers, signed in front of witnesses, and legal advice is given to both parties signing the agreement. These types of agreements will, in most cases, be upheld by the courts.
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How do I get my ex-spouse/ex-partner registered with MEP?
You cannot just register with the Maintenance Enforcement Program (MEP). You must either have a signed Maintenance Enforcement Support Agreement or a court order for support. If you and your ex-spouse/ex-partner are able to agree on an amount of support, then you can easily do up a Maintenance Enforcement Support Agreement. If you cannot agree on support, then you must bring a court application for support, serve your ex with the documents, and go to court to get an order. You may be able to bring your court application in either Provincial Court (Family Division) or the Court of Queen’s Bench, under the Family Law Act or the Divorce Act, depending on your situation. For more information about the right application forms to use, contact Family Justice Services, Family Law Information Centre. Once you have a copy of either the signed agreement or the court order, then you can contact MEP and register with their service. MEP in Edmonton can be contacted at 310-0000, then (780) 422-5554, or online at www.gov.ab.ca/just/mep .
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How do I get a Divorce?
You must firstly obtain the 'Alberta Divorce Kit' from either Queens Printer (Edmonton - Main Floor, Park Plaza, 10611-98 Avenue, Edmonton. Phone (780) 427-4952 (elsewhere in Alberta, phone 310-0000) at a cost of approx. $35.00. The kit is also available at most stationery/book stores throughout Alberta. The Court will charge a fee of $210.00 for the filing of the Divorce papers.
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Where can I get a copy of my Divorce Certificate?
You will need to provide your Court file number to the Clerks office in the City where you obtained your divorce. If you do not have the number, you will be required to pay a $10.00 search fee (to obtain the number) prior to obtaining the Certificate. If you were Divorced prior to 1985 you will be required to pay $10 to obtain the Court file number and an additional $10 (plus copy charges at $1.00 per page- usually 2 pages) for a Court certified copy of your Decree Absolute.
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