Does Family Violence Affect Support or Property Division in Alberta?

Many survivors ask whether abuse changes what happens with child support, spousal support or the division of property. The honest answer is that it depends on your facts, and the rules for each issue are different.

This article explains what Alberta law clearly says about family violence in parenting and protection orders, where money-related options exist, and which questions to raise with a lawyer.

This article covers the law of Alberta.

Where family violence clearly matters: parenting

Under the Family Law Act, the court must ensure the greatest possible protection of the child's physical, psychological and emotional safety, and must consider any family violence, including its impact on the child's safety and well-being and the abuser's ability to parent. Family violence must be established on a balance of probabilities.

For married spouses seeking or granted a divorce, the Divorce Act gives primary consideration to the child's safety, security and well-being and requires the court to consider family violence and its impact. The court looks at the nature, seriousness and frequency of the violence, any pattern of coercive and controlling behaviour, whether the child was exposed to it, and any harm or risk of harm to the child.

The principle that a child should have as much time with each spouse as is consistent with the child's best interests gives way where family violence makes more time inconsistent with those best interests.

Terms the court can attach

The court may attach terms, conditions and restrictions to a parenting order, and contact may be by visits or communication and made subject to conditions. The Family Law Act also looks at whether it is appropriate to require guardians to co-operate. What conditions fit your case depends on the evidence.

Separately, a King's Bench protection order can include no-contact terms and counselling for the respondent, or for a child without the respondent's consent. A no-contact term prohibits communication and contact by any means, including through a third party, unless the order says otherwise.

Child support, spousal support and property

Whether abuse changes the amount of child support, whether spousal support is owed, or how property is divided depends on your facts and on the rules that apply to your relationship. Each of these issues is decided under its own rules, so it helps to look at them one at a time. A lawyer can explain how those rules apply to you and what evidence matters.

One point is clear: a protection order does not change ownership or title to property. An order can give you exclusive occupation of the residence for a specified period, whether or not the home is jointly owned or leased, but that is a temporary protection measure.

How protection orders work

An emergency protection order may be granted without notice to the other person if family violence has occurred, you have reason to believe it will continue or resume, and the order is needed for immediate protection because of the seriousness or urgency of the circumstances. The order must set a Court of King's Bench review date not later than 9 working days after it is granted.

A King's Bench protection order may be granted if the justice finds you have been the subject of family violence. It does not require the immediate-danger urgency of an emergency order, and it is normally sought on notice to the other person.

A protection order may not last longer than one year unless it is extended, and the Court of King's Bench may extend it on application for periods of up to one year each. Court clerks must keep your location confidential unless you consent.

It is an offence to contravene a protection order provision if the person has actual notice of it. For a first offence the penalty is a fine of up to $5,000, up to 90 days' imprisonment, or both. A peace officer may arrest without warrant anyone the officer reasonably believes has committed that offence.

Compensation and money-related options

A King's Bench protection order can include reimbursement of monetary losses from the violence, including medical, moving, accommodation and legal costs. It can also give you temporary possession of specified personal property such as a vehicle, keys and identification, and restrain the other person from taking or damaging property. Alberta.ca notes the judge can order repayment of expenses caused by the violence.

The criminal-style penalties for breaching a protection order do not apply to a reimbursement provision under s. 4(2)(d) of a King's Bench protection order. Ask a lawyer how a reimbursement order would be collected.

Separating couples, married or not, can also seek an exclusive home possession order that is not based on violence; it turns on who would be most inconvenienced or the children's best interests, and a $200 fee applies if no property division action has started.

Practical next steps

• Keep records of expenses caused by the violence, such as medical, moving, accommodation and legal costs
• Keep copies of protection orders and any review dates
• Gather financial documents, including income records, statements and property papers
• Write down incidents with dates, as they may matter for parenting
• Ask a lawyer how support and property rules apply to your relationship

If you need immediate protection, an emergency protection order may be available, and a King's Bench protection order can follow.

Frequently asked questions