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In Canada, the federal government makes the law about divorce. This means that divorce law is the same all across Canada.

The Divorce Act sets out the law for divorces in Canada. It also sets out rules for dealing with issues related to divorce (called “corollary relief”), such as:

• decision-making responsibility and parenting of children
• child support
• spousal support
• contact orders (orders granting time with a child to people other than the child’s parents)
• giving notice when moving

Each province also has laws about everything except divorce. For example, Alberta has the Family Law Act. Other provinces have similar legislation.

While the provinces do not make the laws about divorce, they do have Rules of Court setting out the process (including court forms and rules for serving documents) for getting a divorce.

Last updated: March 2021

The Divorce Act applies to people who are married and want to get divorced. It also applies to people who are already divorced but are still dealing with issues related to the divorce, such as support and parenting arrangements for children of the marriage. The Divorce Act does not apply to couples who never married.

Each province also makes family laws about everything except divorce. Provincial laws apply to both married and unmarried couples who are separating. Some things, such as child support and spousal support, are covered in both the Divorce Act and provincial family laws. Only provincial laws deal with dividing property after a separation, such as Alberta’s Family Property Act.

So which law do you use?

• If you have already filed for divorce, use the Divorce Act to deal with parenting, contact and support issues.
• If you have not yet filed for divorce, use the Divorce Act or provincial family laws to deal with issues such as parenting, contact and support. Once you are divorced, you must continue to deal with these issues using only the Divorce Act.
• If you were never married to your partner, use provincial family laws to deal with all family law issues. The Divorce Act does not apply to you.
• Use provincial laws to deal with property division, such as Alberta’s Family Property Act.

Last updated: March 2021

You can read the Divorce Act online. You can also ask for help finding it at a public library or courthouse library.

Last updated: March 2021

A divorce is a court order that ends a marriage. If you are legally married, you cannot marry someone else until you get a divorce, even if you are separated from your spouse.

The court issues a divorce judgment (also called a divorce order). You must then apply at the courthouse (or online sometimes) for a Certificate of Divorce. It is legally effective across Canada. Keep this document in a safe place. If you want to get married again, you will need to show your Certificate of Divorce when you apply for a new marriage license.

Last updated: March 2021

A spouse refers to either of the two people who are married to each other. Former spouses are people who used to be married to each other and are now divorced.

Last updated: March 2021

The Divorce Act talks about a “child of the marriage.” A “child of the marriage” means a child of two spouses or former spouses who:

• is under the age of majority and has not left their parent’s charge, or
• is the age of majority or over and cannot support themselves because of an illness, a disability or another cause (such as pursuing reasonable education).

A “child of the marriage” also includes a child that a spouse or former spouses stands in the place of a parent for. This can include a stepparent or a person who has acted as a parent in a child’s life.

Last updated: March 2021

The age of majority means the age that a child is considered a legal adult in the province where they usually live.

The age of majority is 18 in:

• Alberta
• Manitoba
• Ontario
• Prince Edward Island
• Quebec
• Saskatchewan

The age of majority is 19 in:

• British Columbia
• New Brunswick
• Newfoundland
• Northwest Territories
• Nova Scotia
• Nunavut
• Yukon

If the child lives outside of Canada, then the age of majority under the Divorce Act is eighteen years.

Last updated: March 2021

Decision-making responsibility means a parent’s responsibility for making significant decisions about a child’s well-being. This includes the child’s:

• health
• education
• culture, language, religion and spirituality, and
• significant extra-curricular activities.

One or both spouses can have decision-making responsibility. Sometimes the spouses will have decision-making responsibilities about the same things, and sometimes they will have decision-making responsibility about different things.

The spouses can agree on decision-making responsibilities and put what they agree on in a parenting plan or consent order. If the spouses cannot agree, the court will decide in a parenting order. All decisions must be made in the best interests of the child, not what the spouses want.

Last updated: March 2021

The Divorce Act talks about “corollary relief proceedings”. These are defined as proceedings started by either spouse for a child support order, a spousal support order or a custody order. There are special rules set out in the Act for these proceedings.

Last updated: March 2021

Parenting time is the time a child spends in the care of a parent. A parent makes day-to-day decisions about the child during their parenting time. This includes time a child is at school or other activities within the parent’s parenting time. Parenting time is set out in a parenting plan or parenting order.

Parenting time is different from decision-making responsibility. A parent may have both decision-making responsibility and parenting time. Or a parent may have parenting time but not decision-making responsibility. The parents can agree, or the court can decide. All decisions must be made in the best interests of the child, not what the parents want.

Last updated: March 2021

A parenting order is a court order setting out parenting time and decision-making responsibilities of the parents. A parenting order can include a parenting plan – an agreement among the parents setting out parenting time, decision-making responsibility and contact. A parenting plan is legally enforceable if it is part of a court order.

Last updated: March 2021

A parenting plan is a written agreement about parenting arrangements.

Parenting arrangements include:

• where the children will live
• how the parents will look after the children
• how the parents will make decisions about the children
• how the parents should communicate with each other

If the parents come up with a parenting plan and present it to the court, the court must accept it unless it thinks the plan is not in the best interests of the child. A parenting plan is legally enforceable if it is part of a court order.

Parents can agree to change a parenting plan. If they also have a court order, they should go back to court to get the order changed as well (maybe through a consent order).

Last updated: March 2021

Contact is time that someone who is not a parent, such as a grandparent, spends with a child. A person with contact usually does not make decisions about the child’s life. Contact may exist in the form of visits or any other forms of communication (such as phone calls, Facetime, video chats, texting, etc.).

Parents can agree to let someone have contact with the child. If the parents do not agree to allow someone to have contact with the child, that person can apply to the court for an order granting them contact.

Last updated: March 2021

The Divorce Act says the court must only look at what is in the best interests of the child when making a parenting order or a contact order. Decisions should not be based on what the parents want.

The judge must look at what is best for the child’s physical, emotional and psychological safety, security and well-being. The judge considers factors such as:

• the child’s needs, given their age and stage in life
• who has cared for the child as they have grown
• how strong the relationship is between the child and the spouse and any other person in the child’s life (such as siblings, aunts or uncles, grandparents)
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage
• the child’s views and preferences, where it is appropriate
• the plans proposed by the parents for caring for and raising the child
• if there has been any family violence, and the impact that the family violence has had on the child (If there is family violence, the court looks at more factors related specifically to family violence as well. See the next question for more information.)
• the abilities and willingness of each spouse to provide for the child’s needs and to communicate and cooperate with the other parent
• how willing each spouse is to develop and maintain the child’s relationship with the other spouse
• any civil or criminal proceedings that impact the safety or well-being of the child

The court does not consider a spouse’s past conduct unless that conduct is relevant to the person’s exercise of responsibilities.

Last updated: March 2021

The Divorce Act defines family violence as any conduct by a family member towards another family member that:

• is violent or threatening, OR
• constitutes a pattern of coercive and controlling behaviour, OR
• causes the other family member to fear for their own safety or that of another person.

Family violence includes:

• physical abuse (including forced confinement but excluding reasonable force to protect themselves or another person)
• sexual abuse
• threats to kill or cause bodily harm to any person
• failure to provide the necessaries of life
• psychological abuse
• financial abuse
• killing or harming an animal, or threats to do so
• damaging property, or threats to do so

When it comes to children, family violence is any conduct the child is exposed to, directly or indirectly. Therefore, the child does not have to be experiencing the violence. It is also family violence in relation to the child if they are indirectly exposed to it (such as seeing someone experience violence or see the aftermath of violence).

The conduct does not have to be a criminal offence to be family violence.

Last updated: March 2021

A family member includes:

• a member of the household of a child

For example, if the child lives with one parent, their siblings, the parent’s new partner or spouse and that person’s kids, then all these people are family members.

• a member of the household of a spouse or former spouse

For example, if the child lives with one parent most of the time but spends time with the other parent and that parent’s new partner and kids, then all these people are family members.

• dating partner of a spouse or former spouse who participates in the activities of the household

For example, if one parent’s new partner or spouse does not live with the parent and child but participates in family time together, that person is also a family member.

Last updated: March 2021

The Divorce Act says that you can ask for a divorce if there has been a “breakdown of marriage.”

A breakdown in marriage can occur in one of three ways:

1. You and your spouse have been separated for at least one year with no chance of getting back together. If you get back together for 90 days or less and then separate again, this short reconciliation does not interrupt or stop the one-year period. If you get back together for more than 90 days and then separate again, you will have to wait another year before filing for divorce.
2. Your spouse committed adultery (has sexual relations with someone else while you are still married).
3. Your partner treated you cruelly.

These are called the “grounds for divorce”.

Last updated: March 2021

Living separate and apart means you no longer live like a couple. You can live in the same house and still be living separate and apart.

Some factors that indicate spouses are living separate and apart are:

• you hardly communicate with your spouse
• you have separate bedrooms
• you do not have sex together anymore
• you do not help each other with household tasks
• you do not do activities together

Usually, you must live separate and apart for one year before a judge will grant a divorce order.

Last updated: March 2021

Adultery is when a married person has sex with someone who is not their spouse.

The person who committed adultery can swear an affidavit admitting this. An affidavit is a written statement of facts that is sworn or affirmed before a Commissioner for Oaths (or Notary Public) and filed with the court as evidence in court.

If the person who committed adultery will not admit to it, you must prove adultery with other evidence.

Last updated: March 2021

There is no such thing as a “legal separation” in Canada. There is no document you file to be “legally separated”. You are either married or divorced. However, the Divorce Act does talk about living ‘separate and apart’ for one year before the court will grant a divorce.

You and your spouse may sign a Separation Agreement. This agreement can deal with parenting arrangements, decision-making responsibility for children, child and spousal support, and dividing family property. The court can include the terms of the separation agreement into a final divorce order.

For tax purposes, you are usually considered separated when you start living separate and apart from your spouse for at least 90 days (assuming you do not get back together).

Last updated: March 2021

Usually, the court will not grant a divorce order until a couple has been separated for one year (unless you are applying for divorce under one of the other grounds listed above).

However, if you have children and need child or spousal support, you usually cannot wait one year to deal with these issues.

Couples have two options:

1. Start divorce proceedings right away under the Divorce Act. The court will not grant a divorce until the year is up, but it will grant interim (temporary) orders to deal with parenting and support issues. When the year is up, the court grants a divorce order, which includes ‘final’ decisions on parenting and support issues.
2. Deal with parenting and support issues under provincial family laws. When the year is up and these issues have been resolved, the couple can start divorce proceedings under the Divorce Act. The court will look at the other orders and incorporate them into a final divorce order.

Final orders are never really final! Orders that deal with parenting and support will likely need to be updated as circumstances change, such as children growing up.

Last updated: March 2021

You should start divorce proceedings in the province where you have lived for at least one year immediately before starting the proceedings.

If you live in one province and your spouse lives in another province, you might each file proceedings in different provinces. If this happens, the following rules apply:

• If the divorce filed first is not discontinued (cancelled), then the second application is discontinued (cancelled).
• If the divorce filed first is discontinued, then the second continues on.
• If divorces are filed on the same day and neither is discontinued after 40 days, then either spouse can apply to the Federal Court for directions on which file should continue.

The Central Registry of Divorce Proceedings is a nation-wide registry for divorces filed after July 2, 1968. The Registry lets the court know if another divorce application has been filed for the same spouses.

Last updated: March 2021

While the Divorce Act applies all across Canada, each province sets its own process for getting a divorce. Each province’s Rules of Court sets out the process for that province.

The court documents and names of the parties might be slightly different in each province. For example, in Alberta, you must file a Statement of Claim for Divorce form to start divorce proceedings. You are the plaintiff, and your spouse is the defendant. In Ontario, the person starting the proceedings is the applicant and the other person is the respondent.

Once you have filed the necessary documents with the court, you must give a copy of them to your spouse. This is called ‘service’. Each province has its own rules about how and when you must serve the other person. For more information, check the Rules of Court of the province where you are filing.

You do not need a lawyer to get a divorce. However, a lawyer can be helpful if you and your spouse are likely to disagree on things, such as how the children will split time with the parents, child or spousal support, or dividing up property. If you decide not to retain a lawyer, there are many resources that can help you. Courts and other organizations across the country provide resources for people going through a divorce.

Justice Canada’s website links to government family law supports in each province and territory.

LawCentral Alberta lists resources in Alberta.

Last updated: March 2021

The Divorce Act talks about “corollary relief proceedings.” These include proceedings started by either spouse for a parenting order, child support order or spousal support order. There are special rules set out in the Act for these proceedings.

The court will not grant a divorce order until you and your spouse have made plans for parenting and financial support.

Last updated: March 2021

There are several ways to find a lawyer:

1. Talk to family and friends to see if they know a divorce lawyer.
2. Call a lawyer referral service. Every province except for New Brunswick and Saskatchewan has this service.
3. If you cannot afford a lawyer, legal clinics across the country provide free legal services. Usually, they have income limits you must meet. Google “legal clinic” and your area for one close to you. If you are in Alberta, visit LawCentral Alberta for help finding a lawyer or legal clinics.
4. If you can afford to pay a lawyer for some work, you can ask around for a lawyer to provide limited services or legal coaching. Some provinces have programs that list lawyers willing to provide these services, such as Alberta Legal Coaches & Limited Services or Ontario’s Family Law Limited Scope Services Project.

Check with the law society, legal aid or community legal clinics in your province for more information.

Last updated: March 2021

There is no simple answer to this question!

If you handle your divorce yourself, you may be able to keep costs down. You must pay a filing fee at the courthouse to begin your divorce proceedings. This can range from about $250 to $350 depending on the province. You will have to arrange to have your Statement of Claim for Divorce served on your spouse. There will be a fee if you hire someone to do it rather than doing it yourself. (Some provinces require you to have someone else serve your spouse with legal documents starting a divorce.)

If you retain a lawyer, the lawyer may charge you a flat fee or may charge you an hourly rate. Make sure you understand how your lawyer will be charging you.

Costs can go up if the divorce stretches out over time because you and your spouse cannot agree on things, or if you must go to court several times. Even if you do not have a lawyer, you may incur costs if you must take time off work or travel to another city.

Last updated: March 2021

You usually do not have to go to court if your divorce is uncontested. You can ask the court for a “desk divorce”. A desk divorce means the court processes your divorce by paperwork alone – you do not have to appear in court.

You can only apply for a desk divorce if you and your spouse agree on everything, including getting a divorce, child and spousal support, parenting arrangements, and dividing your property and debt. Depending on the process in the province you are in, one person files documents to start the process and the other does not object. Sometimes you can file a joint application for divorce. Once you have filed all your documents with the court, a judge will look over everything. If nothing is missing and the documents have been correctly filled out, a judge can grant you a divorce without you having to go to court. If the judge has any questions or concerns, they will not grant a divorce order until you have resolved the problems.

If you and your spouse do not agree on everything, such as child support or spousal support, then the process can be much longer and complicated. If you and your spouse cannot come to agreement(s), you will have to ask the court to make orders. Eventually, you may have to go to a trial. At a trial, each spouse goes to court and gives evidence to the judge. The judge makes a final order.

Last updated: March 2021

Generally, a divorce is final 31 days after the day the court granted the divorce order. The reason for this delay is to give either spouse time to appeal the divorce order if they wish. The judge can shorten this time if the judge thinks there is a good reason to do so and the divorcing spouses agree not to file an appeal.

You must then apply at the courthouse for a Certificate of Divorce. It is legally effective across Canada. Keep this document in a safe place. If you want to get married again, you will need to show your Certificate of Divorce when you apply for a new marriage license.

Last updated: March 2021

When parents separate or divorce, it is best for everyone if they can agree on a parenting arrangement. Where will the children live? How much time will they spend with each parent (called parenting time)? How will the parents communicate with each other? Who will make major decisions about the children?

If the parents cannot work together, there are other processes the parents can try to come to an agreement:

1. Collaborative processes are a type of negotiation where each person has their own lawyer but everyone works together to come up with solutions. Everyone signs an agreement saying they will all work together and no one will go to court. Most of the communication occurs in four-way meetings, with both sides and their lawyers present. Everyone is encouraged to be honest and openly share information.
2. Mediation is a process where a mediator helps you all work together to come up with a plan that works for everyone. A mediator should be a neutral person and should not take sides. A mediator will not force an agreement on you but can help you come up with an agreement that you both accept. The agreement must be in the best interests of your children.
3. Arbitration is a process where you appoint an arbitrator to make decisions instead of a judge. You can choose someone who is very experienced in family law issues. The arbitrator will make a decision that is in the best interests of your children.
4. Mediation-Arbitration is a combination of mediation and arbitration. A mediator has the power to make a binding decision (as an arbitrator) if the parties cannot reach an agreement.

Your agreement should be in writing. You can present your agreement to the court as a consent order. This makes the agreement enforceable by the court if someone does not follow the order.

Court is a last resort. If you cannot agree after trying other processes, the court will decide. The court will always make decisions in the best interests of the child.

Last Reviewed: March 2021

There are two laws about parenting in Alberta: the Divorce Act and the Family Law Act.

The Divorce Act is a federal law that applies the same across Canada. It only applies to married or divorced couples. The Divorce Act sets out the law for divorces in Canada. It also sets out rules for dealing with issues related to divorce (called “corollary relief”), such as:

• decision-making responsibility and parenting of children
• child support
• spousal support
• contact orders (orders granting time with a child to people other than the child’s parents)
• giving notice when moving

Alberta’s Family Law Act is a provincial law that applies in Alberta only. It is for married or unmarried couples. It deals with:

• parenting time
• guardianship
• child support
• spousal and partner support
• contact with a child by someone other than a parent

Married couples can use the Family Law Act when they separate to deal with parenting time, making decisions for children, child support and spousal support. As soon as they apply for a divorce (under the Divorce Act), they must use the Divorce Act to continue to deal with these issues. The Divorce Act and the Family Law Act say similar things about these issues.

Last Reviewed: March 2021

Parenting arrangements after separation or divorce can be whatever the parents or courts believe is in the best interests of the child. Sometimes it will be in the best interests of the child to spend equal time with each parent. Other times it will be in the child’s best interests to spend more time with one parent than the other. Parenting arrangements can be set out in a parenting plan or parenting order.

The parenting arrangements are important for calculating child support.

Last Reviewed: March 2021

Neither the Family Law Act nor the Divorce Act say that the child should spend equal time with both spouses. These Acts do say that all decisions about parenting must be made in the best interests of the child. Sometimes it will be in the best interests of the child to spend equal time with each parent. Other times it will be in the child’s best interests to spend more time with one parent than the other.

Last Reviewed: March 2021

Parenting time is the time a child spends in the care of a parent. A parent makes day-to-day decisions about the child during their parenting time. This includes time a child is at school or other activities within the parent’s parenting time. Parenting time is set out in a parenting plan or parenting order.

Parenting time is different from the ability to make major decisions about a child.

Under the Family Law Act, the ability to make major decisions is called the responsibilities of guardianship. Only guardians can make major decisions about a child.

Under the Divorce Act, a parent with decision-making responsibility makes major decisions about a child.

The parents can agree on who can make major decisions or the court can decide. Decisions about the ability to make decisions must be made in the best interests of the child, not what the parents want.

Last Reviewed: March 2021

Kind of. The term custody referred to two things:

1. A parent’s ability to make decisions about a child. A parent could have sole custody (ability to make all decisions about the child without the other parent) or joint custody (making decisions with the other parent).
2. The time a child spent with each parent. A parent could have residential or primary custody (the child lives with that parent most of the time) or shared custody (the child lives with both parents equal amounts of time).

The old term custody was confusing because it lumped time and decision-making responsibilities together. It is also an emotionally charged term that talks about a parent’s rights with respect to the child rather than the child’s relationship with the parents. Getting custody was seen as winning, while only having access to a child was seen as losing.

We do not use the word custody anymore. Now, parenting time only refers to the time a child spends with a parent. It is separate from a parent’s ability to make major decisions for the child. The term parenting time focusses on relationships with children – a parent’s time with the children. Parents can have equal parenting time or unequal parenting time. The ability to make decisions for a child is called something else – see below for more information.

Last Reviewed: March 2021

A parenting plan is an agreement about where children will live, how parents will look after the children, and how parents will make decisions about the children. A plan should focus on what is best for the children rather than just what you and the other parent want to happen. A good plan is easy to follow and lets everyone know what is expected of them.

How detailed the parenting plan is depends on the relationship between the parents. Some parents have a good relationship with good communication and so the parenting plan is not very detailed. Other parents do not have a good relationship, so the parenting plan needs to be very detailed. Parents can come up with a parenting plan between themselves or with the help of a professional, such as a lawyer, mediator, or arbitrator.

A parenting plan can be incorporated into a parenting order that the courts can enforce. The court must accept a parenting plan unless it believes it is not in the child’s best interests.

Last Reviewed: March 2021

A parenting order is a court order. A parenting order sets out a schedule for parenting time, who makes major decisions for the child, and how the parents should communicate with each other.

Last Reviewed: March 2021

Sometimes people think their child can decide where they want to live when they are 12 years old. This is sometimes called the “Myth of 12”. This is NOT true.

Children do not have legal authority to decide where they want to live until they reach the age of majority where they live. And all decisions about children must be made in their best interests, not what the child or parents want.

As children get older and mature, they can make better decisions for themselves. As this happens, parents start giving their children more and more independence and decision-making powers. In the same way, children’s views in court have more weight as they age.

For example, a 9-year-old may want to live with one parent because that parent lets them eat junk food and stay up late. The child is making a decision based on their young age and immaturity. Their decision might not be in their best interests. On the other hand, a 16-year-old might have strong views that reflect their maturity. The court may be more interested in what this child wants.

We say that children have a voice, not a choice. The child’s views are only part of the assessment of what is in their best interests. Whether the parents are working together, or are asking an arbitrator or judge to decide, the child’s views can be considered but are not determinative.

Something else to consider: Sometimes empowering your child to make this decision can also empower your child to make other major decisions. This erodes the important roles of parent and child. And this can backfire on you: if your child can choose to live with you, they can also choose to not live with you when you do something they do not like.

Last Reviewed: March 2021

A guardian or person with decision-making responsibility can make major decisions for a child. Major decisions include those about a child’s health, education, culture, language, religion, spirituality and significant extra-curricular activities.

Last Reviewed: March 2021

A guardian handles the care, maintenance and well-being of a child. A child’s parents are usually the child’s guardians, but the court can change who the child’s guardians are.

In Alberta, every child (under 18 years old) has at least one guardian if they are not married and not in an adult interdependent relationship. Most times, a child’s guardians are the child’s parents, but not always. Some children have many guardians at the same time.

The Family Law Act lists the responsibilities of guardianship. They include:

• making daily decisions about the child
• supervising daily activities of the child
• deciding where the child will live
• deciding who the child can have relationships with
• making decisions about the child’s education
• making decisions about the child’s extra-curricular activities
• deciding the child’s cultural and language upbringing
• deciding the child’s religious and spiritual upbringing
• deciding if the child should work and other employment matters
• consenting to the child’s medical treatments
• granting consent when required
• receiving and responding to any notices that a guardian is entitled to receive
• dealing with any legal proceedings relating to the child
• appointing someone to act on the guardian’s behalf in an emergency situation or when the guardian is temporarily absent
• receiving health, education and other information that affects the child
• exercising other powers necessary to carry out the responsibilities of guardianship

Last Reviewed: March 2021

The Divorce Act defines decision-making responsibility as responsibility for making significant decisions about a child’s well-being, including the child’s health, education, culture, language, religion and spirituality, and significant extra-curricular activities.

Only a parent with parenting time can also have decision-making responsibility. However, a parent with parenting time may not have decision-making responsibility. For example, one parent may have parenting time every other weekend but no decision-making responsibility. That parent would not be able to make big decisions about the child, such as where they go to school or whether they play sports.

Day-to-day decisions refer to any daily decisions made for a child, such as food, bedtime, daily activities, etc. The Divorce Act does not define the term. However, the Act does say that a parent who has parenting time can make day-to-day decisions for the child during that parent’s parenting time, unless the court orders otherwise.

Last Reviewed: March 2021

Yes. Parents can come up with a parenting plan between themselves.

A parent should not sign any agreements if you are feeling pressured or forced. You should be sure that you understand what you are agreeing to, and that what you are agreeing to is legal. You can ask a lawyer to review the agreement before you sign it. Once you feel ready to sign the agreement, then both you and the other parent should sign it. You do not need anyone to witness your signature if all you are agreeing to is a parenting plan, but you can arrange for an adult witness if you want.

You can formalize your agreement as a consent order with the courts. If the agreement is made into a court order, then it can be enforced through the courts. You can only apply for a consent order if you and the other parent agree on all the terms that you are including in the order. To get a consent order, you will need to start an action with the courts and may need to pay a filing fee.

Last Reviewed: March 2021

Yes.

If all the guardians agree to change a parenting order, then the guardians can present the new arrangement to the court as a consent order.

If the guardians do not agree on changing the parenting order, then one guardian can apply to the court to change the parenting order. This is called an application to vary the parenting order. To get the order changed, you will have to prove to the judge that:

• circumstances have changed since the original parenting order was made, and
• the changes requested are in the best interests of the children.

The court can decide to change or not to change the parenting order.

Last Reviewed: March 2021

If you had custody of a child under a custody order that was made before March 1, 2021, you now have parenting time and decision-making responsibility (unless the court says otherwise).

If you were previously married to the other parent and had access to a child under a custody order that was made before March 1, 2021, you now have parenting time (unless the court says otherwise).

If you were not a parent but had access to a child under a custody order that was made before March 1, 2021, you now have contact with the child under a contact order (unless the court says otherwise).

Last Reviewed: March 2021

Spousal support is payments made by one spouse or former spouse to another spouse or former spouse. Spousal support is only for married or divorced people.

Both Alberta’s Family Law Act and Canada’s Divorce Act talk about spousal support, depending on which law you are using.

Last Reviewed: March 2021

Partner support is payments made by one partner or former partner to another partner or former partner. Partner support is only for people who are or were in an adult interdependent relationship in Alberta.

Alberta’s Family Law Act talks about partner support for adult interdependent partners.

Read our FAQs for more information on adult interdependent partners.

Last Reviewed: March 2021

The purposes of spousal or partner support are to:

• recognize financial advantages and disadvantages that a spouse or partner faces because of the relationship or separation
• make sure that neither spouse nor partner suffers economic hardships because of the separation
• share financial costs of children between the spouses or partners
• promote each spouse or partner becoming self-sufficient within a reasonable period of time

Last Reviewed: March 2021

A spouse or former spouse can ask for spousal support. It is paid after a separation or divorce if a spouse can prove they should receive it. It is usually paid by the spouse who makes more money to the spouse who makes less money to assist the lower income spouse with supporting themselves.

Last Reviewed: March 2021

An adult interdependent partner or a former adult interdependent partner can ask for partner support. It is paid after a separation if an adult interdependent partner proves they should receive it. It is usually paid by the partner who makes more money to the partner who makes less money to assist the lower income partner with supporting themselves.

Last Reviewed: March 2021

Spousal support entitlements and calculations are the same under both Acts. What is different is who can use each Act.

Canada’s Divorce Act applies to all married and divorced people across Canada. Some married couples start out using the Family Law Act when they separate to deal with spousal support and other issues. When they apply for divorce, they must switch to using the Divorce Act. This change is for court processes and does not change spousal support entitlements, payments, etc.

Alberta’s Family Law Act applies to any family situation in Alberta – married or unmarried.

Last Reviewed: March 2021

Check with Alberta’s Maintenance Enforcement Program (MEP) to see if you qualify for the program. MEP can enforce an order if the payor is not making payments in full or on time or if the payor has not made payment arrangements with MEP.

Last Reviewed: March 2021

Maybe. See the Canada Revenue Agency’s website for more information.

Last Reviewed: March 2021

There is no hard and fast rule to calculate spousal or partner support, like there is for child support.

You and your spouse or partner can agree on how much support will be paid. This should be set out in a written agreement, such as a pre-nuptial agreement, a cohabitation agreement or a separation agreement. If you and your spouse or partner cannot agree, then a judge decides if one spouse or partner should pay support to the other.

Spousal or partner support may be a lump sum payment or periodic payments or monthly payments. It all depends on your situation.

The Spousal Support Advisory Guidelines are a reference point for calculating spousal support, but they are not law. In many provinces, including Alberta, the courts have said the Guidelines are a starting point. And if you are asking for an amount different than the guidelines, you will have to explain why.

There are no similar guidelines for adult interdependent partners.

Last Reviewed: March 2021

A judge will think about the following before making an order about spousal or partner support:

• How long have the partners lived together? The longer the relationship, the more likely it is that the court will order partner support.
• What roles did each partner perform when they lived together? Did one partner work while the other partner stayed at home? Did both partners work and share household chores?
• Is there any agreement or order between the partners? Do they have a pre-nuptial, co-habitation or separation agreement?
• How much does each partner earn? Do they have other financial resources? The bigger the gap in the income between the partners, the more likely it is that a judge will order partner support be paid.
• What are the financial needs of each partner? Keeping in mind that the partners should have similar standards of living at the end of a relationship, how much money does each partner need to meet their needs?
• What are the conditions of each partner? This includes considering the health, age and special needs of each partner and whether they have any children, etc.

If you are asking for partner support under the Family Law Act, a judge will think about the factors listed above plus the following:

• Do either of the partners have legal obligations to support another person?
• If the payor lives with someone else, how much does that other person contribute to household expenses? If the other person contributes a lot to household expenses, then this increases the ability of the payor to pay because there is more money available.
• If the recipient lives with someone else, how much does that person contribute to household expenses? If the other person contributes a lot to household expenses, then this decreases the financial need of the recipient.

Last Reviewed: March 2021

Child support takes priority over spousal or partner support. If you cannot afford both, the court will order you to pay child support first.

Last Reviewed: March 2021

You cannot ask the court to change a spousal or partner support order if the order says support is “non-variable” (cannot be changed).

You can ask the court to change a spousal or partner support order if:

• new and important evidence comes up that was not available when the original order was made, or
• there has been a major change in the lives of either partner since the original order was made.

Some examples of major life changes are:

• one partner’s income is much higher or lower now than it was before
• one partner remarries or enters into a new adult interdependent relationship
• a partner develops a health concern or disability and either needs more financial support or needs to pay less support than was originally ordered

If a spouse or partner proves there is new evidence or there has been a major life change, then the judge will go through the same steps as if it were an original spousal or partner support order application.

If there is a written agreement about partner support, you can both can agree to change it. The court can change a written agreement in rare circumstances. If you are wanting to change a written agreement about partner support and your spouse or partner does not agree, you should contact a lawyer. An agreement cannot change an existing partner support order.

Last Reviewed: March 2021

Mobility rights are the rights of individuals to move from place to place without government intervention. In Canada, section 6 of our Charter of Rights and Freedoms says every citizen of Canada has the right to enter, stay in and leave Canada. Canadian citizens and permanent residents can also move and work freely between provinces.

When it comes to children, parents make the decision about where their children will live. If the parents are separated, parents must work together unless the court says one parent alone can make that decision. Courts cannot order a parent not to move. But the court can order that a child not move with that parent.

Last Reviewed: March 2021

A mobility application is a court hearing about whether a child can or cannot move with a parent.

Last Reviewed: March 2021

There are two laws in Alberta that deal with parenting: the Divorce Act and the Family Law Act.

The Divorce Act is a federal law that applies across Canada. As of March 1, 2021, the Divorce Act includes rules for parents and people who have contact with a child to give notice of their move. If you have a court order under the Divorce Act, these rules apply to you, even if your court order is from before March 1, 2021. See our Moving and the Divorce Act FAQs for more information.

Alberta’s Family Law Act applies only in Alberta. It does not say anything specifically about moving. But, it does say that decisions about parenting (including where a child lives) must be in the best interests of the child. Judges also use caselaw (judge-made law) to make decisions. Previous court cases have set out things a court should look at when deciding whether a move is in the child’s best interests.

Last Reviewed: March 2021

There are a few steps you should take if you have parenting time with a child and you want to move.

1. Review your parenting agreement or court orders. Usually, these documents say you must give notice to other parents, guardians or persons with contact if you want to move. You might be abducting the children if you move them without providing these other people with notice. The other parent or guardian could apply for an order for the return of the children. There could be long-term consequences on the parenting arrangements.
2. Review your legal obligations to notify others of the move. The Divorce Act sets out notice requirements for everyone involved. The Divorce Act also sets out an objection process. If your order is made under the Divorce Act, you must obey these notice requirements, unless your order says otherwise. For more information, see our FAQs on Moving and the Divorce Act.
3. Talk with the other parent(s) or guardian(s) and anyone who has contact with the children. You might be able to work out a new parenting schedule with the other parent or guardian and avoid going to court. You could also use a mediator or collaborative process to come to a new agreement. For example, you might agree that the children will be with the other parent or guardian on all school holidays. You could also suggest ways to ensure the parent or guardian stays in contact with the children using technology. For example, you could buy a cell phone for the child so that the other parent or guardian can send text messages and call the child at any time.
4. Talk to a lawyer for advice on whether you can move with the child.

Last Reviewed: March 2021

No. Most parents are joint guardians of their children. This means that unless a court has ordered otherwise, you must make major decisions about your children together.

If you have a parenting agreement or court order, those documents will usually say what kind of notice you must give before you can move with the children. If your court order is under the Divorce Act, you will have to give formal notice according to the rules in the Divorce Act. For more information, see our FAQs on Moving and the Divorce Act.

Even if you do not have a formal agreement or court order, moving with the children usually has a big impact on the children’s relationship with the other parents or guardians.

If there are concerns of family violence, talk to a lawyer or Family Court Counsellor before giving notice and moving.

Last Reviewed: March 2021

No. If the other parent does not agree with you moving with the child, then you need the court’s permission to move the child. The court will decide in the child’s best interests. The court can order that the child move or not move. The court cannot order a parent to move or not.

If you are married or divorced and have a court order under the Divorce Act, you must give notice of your move, whether you are moving within the same city or further away. For more information, see our FAQs on Moving and the Divorce Act.

Last Reviewed: March 2021

You may be accused of abducting the children if you choose to move with them without giving notice to the other parents or guardians. The other parents or guardians could apply to court for an order that you return the children. This would be costly and negatively impact the children.

A judge might also interpret your move without permission as you not acting in the best interests of the children. This could have long-lasting impacts on your parenting arrangements and responsibilities. The move might backfire and be held against you.

If there are concerns of family violence, talk to a lawyer or Family Court Counsellor before giving notice and moving.

Last Reviewed: March 2021

It depends.

If there is a court order or agreement saying your ex can move with the children without your permission, then they do not need to consult you.

If there is no court order or agreement saying this, then your ex should get your permission before moving. If you cannot come to an agreement together, you may need the court (or arbitrator) to decide.

Last Reviewed: March 2021

If you and the other parents or guardians cannot reach an agreement, you can try to resolve the dispute through mediation or collaborative processes. If you still cannot reach an agreement, then you will need to apply to court to get a judge’s permission to move. The other parents or guardians can apply to the court for an order that stops you from moving with the children or that changes the primary home of the children. You will be able to tell the judge why they should allow you to move the children. The judge will decide in the children’s best interests.

Last Reviewed: March 2021

Judges only think about what is in the best interests of the children when making decisions. In deciding about whether moving is in the children’s best interests, the court thinks about:

• parenting arrangements and the relationship between the children and each parent or guardian
• how each parent or guardian supports communication between the children and the other parents or guardians
• efforts you will take to make sure the children stay in contact with their other parents and guardians
• views of the children (depending on their age and maturity)
• reasons why you are moving
• impact on the children if they were to move to the home of the parent who is not moving. For example, if the children live most of the time with you (the parent who is moving), what is the impact on the children if the other parent becomes the primary caregiver?
• impact on the children’s lives, such as moving away from family members or adjusting to a new community, schools and activities
• any orders or agreements that say in what area the child should live

The court will NOT look at whether the person who intends to relocate would still move if the child was not allowed to move.

Last Reviewed: March 2021

Sometimes people think their child can decide where they want to live when they are 12 years old. This is sometimes called the “Myth of 12”. This is NOT true.

Children do not have legal authority to decide where they want to live until they reach the age of majority where they live. And all decisions about children must be made in their best interests, not what the child or parents want.

As children get older and mature, they can make better decisions for themselves. As this happens, parents start giving their children more and more independence and decision-making powers. In the same way, children’s views in court have more weight as they age.

For example, a 9-year-old may want to live with one parent because that parent lets them eat junk food and stay up late. The child is making a decision based on their young age and immaturity. Their decision might not be in their best interests. On the other hand, a 16-year-old might have strong views that reflect their maturity. The court may be more interested in what this child wants.

We say that children have a voice, not a choice. The child’s views are only part of the assessment of what is in their best interests. Whether the parents are working together or are asking an arbitrator or judge to decide, the child’s views can be considered but are not determinative.

Something else to consider: Sometimes empowering your child to make this decision can also empower your child to make other major decisions. This erodes the important roles of parent and child. And this can backfire on you: if your child can choose to live with you, they can also choose to not live with you when you do something they do not like.

Last Reviewed: March 2021

The court can divide any costs incurred by the person who is not relocating in exercising their parenting time between the two parents. This can include travel costs.

Last Reviewed: March 2021

If you have a parenting order, read the order to see if there are any limits on where and when you can take your child on vacation. If there are restrictions, you will need to work with the other parent to come to an agreement or get the court’s permission to travel. If you do not have an agreement or court approval, you may not be able to travel as planned.

A parent or guardian traveling with children outside of Canada without the other parents or guardians should take a consent letter. A consent letter is a document signed by the child’s parents and guardians saying the travelling parent has permission to travel with the child. The Government of Canada recommends that you have the letter witnessed by a Notary Public so that border officials will be less likely to question whether the letter is real or not.

If a guardian refuses to sign a consent letter, you can ask a judge for an order allowing you to travel with the child. The judge will ask for a copy of your travel itinerary and will decide if travel is in the best interests of the child.

If you are the parent staying home and you think the other guardian will not return the children to you, get legal help immediately. In an emergency, you can apply to the court to have the children’s passports taken away from the other guardian. You can appear in court without notice to the other side. If you are worried about an international abduction, you should contact a lawyer immediately.

Last Reviewed: March 2021

A creditor is someone you owe money to, such as a person, bank, credit card company or other lender. You are the debtor – the person who owes money to the creditor.

Last Reviewed: October 2020

Yes. But this is usually a last resort. The creditor will try other tactics first, such as calling you and sending you letters. If these methods are unsuccessful and they believe you are able to pay, they will consider taking you to court.

Last Reviewed: October 2020

If you are served with (given) court documents, do not ignore them! Get legal advice immediately. You should respond to the court documents. If you do not respond, the court can make a decision without hearing your side of the story.

The court will determine if you owe the money or not. Usually, whether you owe the money is not in dispute. Usually the creditor can easily prove the debt, such as with an agreement. The judge will issue a judgment, which says you owe the money to the creditor. The creditor can then take steps to enforce the judgment, such as seize your property, or garnish your bank account or wages.

Last Reviewed: October 2020

Maybe. To seize (take) your property, a creditor must have a court order allowing it to do so OR your written permission to place a lien on the property.

A creditor usually only gets a court order if they believe your property has enough re-sale value to cover the amount you owe. Otherwise, it is not worth the creditor’s time and money (legal fees) to do this.

Sometimes when you borrow money, one of the conditions of the loan is you allow the lender to place a lien on your property. This agreement must be in writing. You should know if you signed such a document. For example, if you bought an item on a ‘buy now, pay later’ plan, the contract might have a clause giving the creditor permission to lien the goods if you do not pay. Check your loan documents.

In many provinces, basic household goods are exempt from seizure – they cannot be taken.

Last Reviewed: October 2020

No. You can only go to jail if you are convicted of a criminal offence. Creditors file lawsuits in civil court. A judge can issue a judgment against you. To collect on the judgment, the creditor can garnish your bank accounts or wages, seize your property or put a lien on your house.

Last Reviewed: October 2020

Collection agencies act on behalf of creditors – people trying to collect money from you, such as a bank, credit card company or other lender. Collection agencies must follow rules set by provincial governments. The province they operate in must license them.

Creditors can hire collection agencies to try to collect the debt. If the collection agency cannot collect, they will notify the creditor of their attempts. The creditor then decides what to do. Sometimes collection agencies buy the debt from the creditor. The collection agency will try to collect and then can take you to court if they cannot.

For more information on Collection Agencies in Alberta, see CPLEA’s Collection Agencies tip sheet.

Last Reviewed: October 2020

The rules are slightly different in each province. However, generally collection agencies cannot:

• Make calls so often and in a manner that is considered harassment
• Make calls during certain times of the day. These times are different across the country. In Alberta, collection agencies cannot call or visit you between 10pm and 7am.

If you think a collection agency is harassing you, contact the consumer protection office in your province.

For more information on Collection Agencies in Alberta, see CPLEA’s Collection Agencies tip sheet.

Last Reviewed: October 2020

A Licensed Insolvency Trustee (LIT) is a person licensed by the Canadian Superintendent of Bankruptcy. A LIT can:

• give a debtor information and advice about the bankruptcy process and alternatives to bankruptcy
• administer consumer proposals and bankruptcies
• manage assets held in trust
• make sure that both the debtor’s rights and the creditor’s rights are respected

A LIT is ethically and legally obligated to provide you with objective, unbiased advice on your options. They will not ‘sell’ you into bankruptcy. If another option makes sense, the trustee should advise you of this. You must use a LIT to file a consumer proposal or bankruptcy.

A LIT is not the same as a financial advisor. A financial advisor (who is not also a LIT) is not licensed and is not qualified to advise you on your options.

To find a Licensed Insolvency Trustee, visit the Government of Canada’s website.

Last Reviewed: October 2020

You have options. Bankruptcy is only a last resort. Some options include:

• Negotiating a payment plan with your creditors or collection agency on your own (sometimes called an informal proposal)
• Credit counselling
• Debt consolidation loan
• Debt Management Plan
• Consolidation order (also known as an Orderly Payment of Debts)
• Consumer proposal

See the next section for more information on these options.

If these options do not work, then you may have to declare bankruptcy. See below for more information on declaring bankruptcy.

If you are curious about your options, you can contact a Licensed Insolvency Trustee or a qualified credit counsellor.

Last Reviewed: October 2020

Maybe. You can try to make an agreement with the creditor. For example, if you owe $2000, you could offer to pay $250 from each pay cheque until the debt is paid off. The creditor does not have to negotiate with you but many creditors will to avoid the costs of taking legal action.

This may work if you have one or a few debts. If you have many creditors, trying to negotiate with each creditor may be difficult.

Last Reviewed: October 2020

If you have debts to many different creditors, you have two options other than bankruptcy or a consumer proposal:

• consolidation loan
• consolidation order

See below for more information on each.

Last Reviewed: October 2020

A credit counselling agency can ask your creditors to agree to consolidate your unsecured debts into one affordable payment. You will have to pay back 100% of your debts. The credit counselling agency will collect the payment from you and pay your creditors. You will have to pay the agency an administrative fee.

Last Reviewed: October 2020

A consolidation loan is a loan from a financial institution (such as a bank) that pays all or most of your debts. Then you repay the consolidated amount to your bank. The benefit? One payment with usually a lower interest rate (compared to different interest rates on many debts). For example, if you have unpaid balances on five credit cards, you may be able to get a consolidated loan to pay them all off and then you would have a single payment to the bank each month.

This solution often works when your debts are not too large and your future income is secure. The interest rate on the consolidation loan is often lower than what you are paying your creditors (especially if your debts are credit card debts). You can usually save money in interest charges. However, if the bank charges a high interest rate, this solution may not be ideal.

If the bank wants security for the loan (property as collateral for the debt), make sure you can make the payments. Otherwise, if you miss the payments, the bank can seize the security (such as your house or car).

Last Reviewed: October 2020

A consolidation order is a court order consolidating personal unsecured debts. This order is available through the Orderly Payment of Debts program, created under Canada’s Bankruptcy & Insolvency Act. This program is only available in Alberta, Saskatchewan, Prince Edward Island and Nova Scotia.

The provincial court issues a consolidation order – consolidating your unsecured debt into one monthly payment. The payment is calculated based on what you can afford and approved by your creditors. You will have to pay back 100% of your debts plus fixed 5% interest. You pay the court and the court makes payments to your creditors.

A consolidation order is not available for business debts.

Last Reviewed: October 2020

A consumer proposal is a settlement with your creditors. It is a formal procedure governed by Canada’s Bankruptcy and Insolvency Act. It is only available to individuals (not businesses) owing less than $250,000 (excluding debts secured by your principal residence). (If you owe more than $250,000, you must file a Division I proposal.) If you own more than one home, only the mortgages on your principal residence may be excluded.

Usually you will pay back between 10% and 90% of your debts, based on what you can afford to pay. A Licensed Insolvency Trustee (LIT) administers the consumer proposal – putting together a proposal and negotiating with creditors. You make payments to the trustee and the trustee pays money to your creditors.

The advantages of a consumer proposal are:

• you keep all of your assets
• lawsuits against you by unsecured creditors will be stopped
• you do not have to declare bankruptcy
• it is simpler than a Division I proposal

There are fixed fees (about $1800 that mostly goes to the LIT) and the LIT receives 20% of the funds available for distribution.

For more information on consumer proposals, see the Government of Canada’s website.

Last Reviewed: October 2020

A Division I proposal is a settlement with creditors. It is available for individuals and businesses. There is no limit on how much money you owe.

Usually the borrower (individual or business) will pay back between 10% and 90% of your debts, based on what they can afford to pay. A Licensed Insolvency Trustee (LIT) administers the Division I proposal – putting together a proposal and negotiating with creditors.

If you do not follow through with the proposal, the LIT or creditor can apply to court to cancel the proposal and place you in bankruptcy.

For more information on Division I proposals, see the Government of Canada’s website.

Last Reviewed: October 2020

No. You cannot use a consolidation order or consumer proposal for business debts.

You can still try one or more of the following:

• negotiating a repayment plan with creditors or a collection agency
• applying for a consolidation loan at a financial institution (such as a bank)
• submitting a Division I proposal

If you are negotiating a repayment plan or applying for a consolidation loan, make sure you understand what you are signing. For example, a creditor or bank may ask you to sign a personal guarantee as a guarantor. A guarantor (in this case, you) is liable for the debts of the borrower (in this case, the business). If the borrower defaults, the guarantor must pay the amount owing. You should get legal advice before signing a guarantee.

Last Reviewed: October 2020

Remember, by the time you reach this point, your credit rating may already be severely compromised. Restoring your credit rating takes time, it is not automatic.

The Credit Bureau is notified when you enter into an arrangement described above. You will be assigned a lower credit rating score. The arrangement remains on your credit score for several years after you have completely repaid your debts.

All of these options have a long-term effect on your credit rating. One option does not necessarily have a better or worse effect on your credit rating. It depends on your circumstances.

For example:

• You get a consolidation order with a five-year repayment plan. When you are done repaying, your lowered credit score remains for another two years. Total effect: 7 years.
• You address your debt through a consumer proposal with a five-year repayment plan. When you are done repaying, your lowered credit score remains for another three years. Total effect: 8 years.
• You declare bankruptcy and you are discharged after 9 months. After your discharge, your lowered credit score remains for another six years. Total effect: about 7 years.
• You declare bankruptcy a second time. After your discharge, your lowered credit score can remain for up to 14 years.

You may or may not be able to get credit during one of the processes. No one is ever required to give you credit. Your ability to get and use credit after your debts are repaid depends if you are able to convince lenders that you can repay the new debt. Make sure your credit record is updated and that you keep all documents for reference by future lenders.

The issue of the effect on your credit rating is complex. Consider contacting a Licensed Insolvency Trustee for more information and advice.

Last Reviewed: October 2020

Bankruptcy is one option to help people cope with financial crises. It is a formal legal proceeding governed by Canada’s Bankruptcy and Insolvency Act. Bankruptcy allows a debtor (person who cannot repay their debts) to start afresh by freeing them of most of their debt. More specifically, the debtor signs over all of their assets (except those the law says are exempt and that the debtor can keep) to a Licensed Insolvency Trustee. The debtor is the bankrupt. The trustee then uses or sells the assets to pay the bankrupt’s creditors.

You must be insolvent to file for bankruptcy. To be insolvent, you must:

• owe at least $1000, and
• not be able to meet your debts as they become due

Filing for bankruptcy stops all actions by unsecured creditors, such as wage garnishments and lawsuits.

Last Reviewed: October 2020

Yes, but it is not common.

There are generally two ways a person can go into bankruptcy:

1. The person makes an “assignment” into bankruptcy. This is also called voluntarily “going into”, “declaring” or “filing for” bankruptcy.
2. Creditors can ask the court to make an order that a person is bankrupt. This is not common.

Bankruptcy is automatic if the creditors or the court reject a Division I proposal.

Last Reviewed: October 2020

You must contact a Licensed Insolvency Trustee. To find a Licensed Insolvency Trustee, visit the Government of Canada’s website.

Last Reviewed: October 2020

It depends on the length and complexity of your case. The simplest cases start at $2000 plus GST and counselling costs.

You do not necessarily pay this fee upfront. Often, your trustee is paid out of money received from selling your assets. If you have no assets available to sell, the trustee can ask you for a retainer or ask that you pay fees and expenses over time. Most firms offer payment plans that allow you to pay costs over time.

The Government of Canada sets filing fees and trustee fees.

Last Reviewed: October 2020

You will go through several steps during bankruptcy. Below are the twelve most common steps. The process and order of steps looks different for everyone. No two bankruptcies are the same.

Step 1: Contact and meet with a Licensed Insolvency Trustee. To find a Licensed Insolvency Trustee in your area, visit the Government of Canada’s website.

Step 2: Work with the trustee to complete the required forms. The trustee files the bankruptcy with the Office of the Superintendent of Bankruptcy (OSB). You are then formally declared bankrupt. From this point on, the trustee deals directly with your creditors.

Step 3: Sign over all of your assets to your trustee (except for the exemptions). “Assets” includes all the assets you have at the time you file for bankruptcy, including your credit cards, as well as any that you get during the time of your bankruptcy. You cannot sell or give away any assets assigned to the trustee.

Step 4: Give the trustee your T-4 slips and any other information they need to complete outstanding tax returns to the date of bankruptcy. The day you file for bankruptcy is treated like the end of your tax year. In the year you file for bankruptcy you must file two different tax returns (one pre-bankruptcy and one post-bankruptcy). Income tax debt is included in your bankruptcy, although you may have to pay it separately. Any refund you are entitled to is an asset that will come to your trustee for your creditors.

Step 5: Trustee notifies your creditors. There may be a meeting of your creditors. This depends on the size of your estate and whether the creditors or OSB request one. Meetings are usually not held for personal bankruptcies. The purpose of the meeting is to:

• Give creditors information about the bankruptcy
• Confirm the trustee’s appointment
• Appoint up to five inspectors to supervise the administration of your bankruptcy
• Allow creditors to give directions to the trustee

Step 6: Trustee sells your assets, and you make payments to your trustee. Your trustee distributes these payments to your creditors. The trustee calculates your payments based on your income, family income, income standards issued by the OSB, and your personal and family situation.

Step 7: Attend an examination under oath by an OSB officer. The purpose of the examination is to question you about your conduct, the causes of the bankruptcy, and the disposition of your property.

Step 8: Pay and report to your trustee monthly. Each month, you must report your household income and living expenses and any change in your family situation. You must also provide copies of your pay stubs. Your trustee decides if your net income was higher than the limit allowed by law for you to live (“surplus income”). If you have any surplus income, you must make a payment each month to the trustee. The more you earn, the more you must give the trustee for the benefit of your creditors. You must also keep your trustee informed as to where you are living, respond to the trustee’s requests and help the trustee as required. If you miss a payment to your trustee, your discharge date will be postponed.

Step 9: Attend two credit counselling sessions. The purpose of these sessions is to help you learn about and understand the causes of your bankruptcy, as well as help you manage your finances in the future. To be eligible for an “automatic 21 month discharge”, you must take these two credit counselling sessions. Counselling can be one-on-one (you and your trustee). It can also be in a group with other bankrupts and your trustee. If you have little or no income, are a first time bankrupt and co-operate with your trustee, you could be discharged in nine months.

Step 10: Trustee reports to the OSB on your actions during the bankruptcy. This report outlines your current financial situation and recommends whether you should be discharged from your debts. If either you or a creditor does not agree with the trustee’s recommendations, you or the creditor may ask the trustee for mediation. If you do not reach an agreement on the conditions for your discharge through mediation, the trustee must apply to the court for a hearing.

Step 11: Attend a discharge hearing (if required). Usually a first-time bankrupt with little or no income is automatically granted a discharge nine months after filing for bankruptcy. If you are granted an automatic discharge, there is no court hearing – your trustee sends you a copy of the discharge. If you have been bankrupt before, or do not qualify for an automatic discharge, the trustee contacts the court for a date to hear the application for discharge. The court chooses one of the following:

• Absolute discharge. You do not have to repay what remains of the unsecured debts you had at the date your bankruptcy was filed (except for excluded debts).
• Conditional discharge. You must fulfill certain conditions beforehand, such as paying a certain amount of money, possibly over time.
• Suspended discharge. This is an absolute discharge that does not take effect until a future date.
• Discharge refused.

If a discharge is adjourned “sine die”, you are essentially stuck in bankruptcy and all duties remain in force. Once the trustee closes the file (or gets discharged from your case), you will have no protection from your creditors. Generally this happens when the bankrupt consistently does not complete their duties.

Step 12: Bankruptcy is discharged. Once you are discharged, you no longer have to repay what is left of the unsecured debts you had at the date of bankruptcy, except for excluded debts.

Last Reviewed: October 2020

A discharge marks the end of your bankruptcy period. You can be automatically discharged if you meet certain conditions. If someone challenges your discharge, the court makes a decision.

Last Reviewed: October 2020

There are several advantages to filing for bankruptcy:

• A creditor cannot send a collection agency after you, start a legal action or garnish wages. You are protected.
• Your unsecured debts are eliminated.
• It can be relatively quick.
• It can be less expensive than other options.
• If you have little or no income, are a first time bankrupt and cooperate with your trustee, you can be discharged in as little as nine months.

Last Reviewed: October 2020

There are many reasons why you may want to avoid declaring bankruptcy:

• You may lose certain assets (such as valuable cars and homes). You keep your assets with a consumer proposal or Division I proposal.
• You must keep detailed records of your income and expenses while you remain bankrupt.
• Increased income means increased payments to your trustee. Each month you must report your income to your trustee. With a proposal, your payments stay the same regardless of your income.
• A bankruptcy is not necessarily over in 21 months.
  • If you have significant surplus (extra) income or you are a repeat bankrupt, your bankruptcy may not end in 21 months. Each year the government says how much you can earn while bankrupt (depending on the size of your family and other factors). If you have significant surplus income, your bankruptcy will likely be extended.
  • If you owe more than $200,000 of personal income tax debt that represents 75% or more of your total unsecured debt, your bankruptcy will not end in 21 months.
  • If you have been bankruptcy before, your bankruptcy will not end in 21 months.
  • If a creditor believes you could have solved your debt issues with a consumer proposal instead, they may oppose your discharge.
• There may be a stigma (real or perceived) about bankruptcy.
• Bankruptcy cannot deal with some debts. For example: certain student loans, maintenance payments and debts obtained through false pretenses.

Last Reviewed: October 2020

Usually not many people.

If you have significant assets (exceeding $10,000), your trustee places a notice in the “legal” section of the newspaper notifying creditors of the date of the meeting of creditors (if there is one). If you do not have many assets (under $10,000), creditors are notified by mail only.

The paperwork filed with the court for bankruptcy are public documents. Anyone can search court records for these documents. Filing documents in court notifies the Credit Bureau. The bankruptcy is recorded and remains on your credit record for six years.

Unless you are a prominent person and the media picks up the filing, chances are that only your creditors and the Credit Bureau will know about your bankruptcy.

Last Reviewed: October 2020

No. Your bank is breaking the law if they cancel or refuse to open a bank account for you because you have been, or are, in bankruptcy.

If you believe that a financial institution has breached (broken) this law, contact the Financial Consumer Agency of Canada. You can also make a complaint with the Ombudsman for Banking Services and Investments (OBSI) – an independent organization that investigates consumer complaints against financial services providers, including banks.

Last Reviewed: October 2020

It depends on what kind of property you own.

The following property is not assigned to your trustee:

• property that is exempt from transfer by federal and provincial laws
• property that is security for loans (unencumbered property), such as a house secured by a mortgage

Make sure that you disclose all of your property and its value to your trustee. Once you have filed for bankruptcy, you cannot dispose of (sell or give away) any assets assigned to the trustee

Last Reviewed: October 2020

The laws are slightly different in each province but basic concepts are the same.

If your house has little or no equity (you still owe a lot of money on it), you can usually arrange to keep paying your mortgage and keep your house after filing for bankruptcy. The trustee does not get involved with this.

If your house has substantial equity, your trustee will either:

• seize your house and sell it OR
• make arrangements for you to re-purchase the equity from the trustee

You can calculate your home’s equity as follows: Value of house less mortgage and property taxes owing.

The rules about houses and bankruptcy are complicated. Contact a Licensed Insolvency Trustee for more information and advice.

Last Reviewed: October 2020

You can keep property that is encumbered (security for a loan) if the lender lets you keep it. For example, your house.

You can also keep assets that are exempt by provincial, territorial or federal laws. But you can only keep the equity in the asset, and even that can have limits. Equity is the difference between the value of the asset and any charges or encumbrances against the asset (amounts owing).

Example: You have a car worth $10,000. There is a secured debt against it of $6,000 (if you financed the vehicle, this could be the amount remaining). The equity in the car is $4,000. In Alberta, the exemption for a car is $5,000. You are entitled to the equity of $4,000. Unsecured creditors cannot take the car.

The laws of exemption are different in each province or territory. Common examples include:

• food required by the bankrupt and their dependants during the next 12 months
• necessary clothing of the bankrupt and their dependants (but usually only up to a certain value)
• household furniture and appliances (but only up to a certain value)
• one motor vehicle (but only up to a certain value)
• medical and dental aids required by the bankrupt and their dependants
• some portion of land where the bankrupt is a bona fide farmer and whose principal source of livelihood is farming, as long as the bankrupt’s principal residence is located on that land and the land in question is part of the bankrupt’s farm
• equity in the bankrupt’s principal residence (but only up to a certain value). If the debtor is a co-owner of the residence, the amount of the exemption is reduced to an amount that is proportionate to the debtor’s ownership interest.
• personal property (such as tools, equipment, books) required by the bankrupt to earn income from their occupation (but only up to a certain value)
• where the bankrupt’s primary income is from farming operations, personal property required by the bankrupt for the proper and efficient conduct of the farming operations for the next 12 months

For more information on exemptions in your province or territory, contact a Licensed Insolvency Trustee.

Last Reviewed: October 2020

All the assets you own at the date of bankruptcy (other than your allowed personal exemptions) go to the trustee for the benefit of your creditors. In addition, any assets that you acquire (purchase or are given) during bankruptcy period go to the trustee for the benefit of your creditors.

This includes:

• inheritances to which you might become entitled by the death of someone during your bankruptcy
• any tax refunds outstanding as the date of the bankruptcy
• any pre-bankruptcy tax rebates
• any award for wrongful dismissal
• lottery winnings
• any significant property that you purchase with any surplus income.

Last Reviewed: October 2020

Your spouse or partner will not be directly affected by your bankruptcy if they are not responsible for any of your debt. In other words, they are not affected as long as they did not sign an agreement or contract for any of your debt – as a guarantor or co-signer. (If your spouse or partner has a supplemental credit card, they will likely be responsible for that debt.) If your spouse or partner is responsible for some or all of your debt, or they have their own unmanageable debt, then they may have to file for bankruptcy too.

Last Reviewed: October 2020

Child support, spousal support and partner support payments are not affected by bankruptcy. You must keep making these payments.

Last Reviewed: October 2020

Under the Bankruptcy and Insolvency Act, some debts are not discharged by bankruptcy. These debts include:

• support payments (child, spousal or partner)
• student loans (if you stopped being a student less than seven years ago)
• court-ordered fines or penalties
• debts arising from fraud

Bankruptcy usually does not affect secured debts, such as a mortgage or vehicle financing. A secured loan means the lender requires the borrower to use its property as collateral for the debt. If the borrower defaults on the loan, the lender can seize the property. It can use the property to repay the loan. If you can afford monthly payments while bankrupt, you may be able to make an agreement with the secured creditor. However, declaring bankruptcy is usually an act of default under a mortgage and can trigger the foreclosure process (though the lender can choose not to if you are making payments). Talk to a Licensed Insolvency Trustee for more information and advice.

Last Reviewed: October 2020

The length of your bankruptcy depends on many things. The shortest time is nine months.

You can be automatically discharged after nine months if:

• This is your first bankruptcy, and you cooperate with the trustee.
• Your surplus income is less than $200 per month.
• Your creditors, the Superintendent of Bankruptcy or your trustee do not oppose your discharge. (They may oppose your discharge if you do not fulfil your duties or if you were not honest during the process.)
• You received credit counselling.

Surplus income is income above the limits set by the Office of the Superintendent of Bankruptcy. If your surplus income is more than $200 per month, you must pay your trustee 50% of the surplus amount.

The following can extend the length of your bankruptcy:

• Surplus income payments
• One or more previous bankruptcies
• If you owe more than $200,000 of personal income tax debt representing 75% or more of your total unsecured debt
• Failure to complete one or more duties
• Opposition to your discharge by your creditors, your trustee or the Superintendent of Bankruptcy

Your bankruptcy can last for up to 36 months if it is your second bankruptcy and you have surplus income greater than $200 per month.

Last Reviewed: October 2020

Once you declare bankruptcy, you remain bankrupt until discharged. Depending on the circumstances of your bankruptcy, you can be automatically discharged or you may have to apply for a discharge.

While bankrupt, you must tell creditors you are bankrupt if you apply for more than $1000 in credit. If you are not cooperating with the trustee, they may remove themselves from your file. If a Licensed Insolvency Trustee is not working with you, then you lose certain protections. Creditors can start lawsuits against you or garnish your accounts. As well, the effect on your credit score lasts for years after you discharge. If you do not get discharged as soon as possible, the effect lasts longer.

Last Reviewed: October 2020

Remember, by the time you reach this point, your credit rating may already be severely compromised. Restoring your credit rating takes time, it is not automatic.

The Credit Bureau is notified when you file for bankruptcy. You will be assigned the lowest credit rating score. Bankruptcy has a long-term effect on your credit rating. The bankruptcy remains on your credit score for six years after your discharge. If you file for bankruptcy a second time, it can remain on your credit score for up to 14 years after discharge.

You may or may not be able to get credit during bankruptcy. No one is ever required to give you credit. Your ability to get and use credit after your debts are repaid depends if you are able to convince lenders that you can repay the new debt. While bankrupt, you must tell creditors you are bankrupt if you apply for more than $1000 in credit. Make sure your credit record is updated and that you keep all documents for reference by future lenders.

Last Reviewed: October 2020

First, try to work things out with your trustee. If you cannot resolve the problems, contact the Office of the Superintendent of Bankruptcy (OSB) in your area. The OSB can review and investigate your complaint and try to resolve the issue.

Last Reviewed: October 2020