Why Family Law Myths Are Harmful
Misconceptions about family law can cause real harm. People make important decisions based on what they believe the law says, not what it actually says. They may accept unfair settlements, refuse reasonable offers, or take aggressive positions that backfire in court.
Many of these myths originated decades ago when family law was very different. Others come from American television shows, which depict a legal system quite different from Canada's. Some are simply urban legends that get repeated until they seem like established facts.
Understanding the reality of Alberta family law helps you make informed decisions, set realistic expectations, and work more effectively with your lawyer. Let's examine the most common myths and explain what the law actually says.
MYTH Mothers Always Get Custody
The Reality
This is perhaps the most persistent family law myth, and it is demonstrably false. Alberta courts apply the "best interests of the child" standard to all custody decisions, and the 2021 Divorce Act amendments explicitly prohibit consideration of a parent's gender.
The law now uses the terms "decision-making responsibility" (formerly custody) and "parenting time" (formerly access) precisely to move away from gendered assumptions about parenting roles.
What Courts Actually Consider
Under Section 16 of the Divorce Act and Alberta's Family Law Act, courts consider factors including:
- The child's physical, emotional, and psychological needs
- Each parent's ability to meet those needs
- The child's existing relationships with each parent
- Each parent's willingness to support the child's relationship with the other parent
- The child's views and preferences (when appropriate)
- Any history of family violence
- The child's cultural, linguistic, and spiritual heritage
- Practical considerations like work schedules and proximity of homes
The Modern Reality
Shared parenting arrangements have become increasingly common in Alberta. Many fathers receive equal or even primary parenting time, particularly when they have been actively involved in their children's lives during the marriage. The key factors are involvement, availability, and the quality of the parent-child relationship, not the parent's gender.
For more information about custody arrangements, see our detailed guide on child custody in Alberta.
MYTH Courts Automatically Order 50/50 Custody
The Reality
While the 2021 Divorce Act amendments emphasize "maximum parenting time" consistent with the child's best interests, this is not the same as a presumption of 50/50 parenting time. Courts continue to make individualized decisions based on each family's unique circumstances.
What "Maximum Parenting Time" Actually Means
The Divorce Act requires courts to give effect to the principle that children should have as much time with each parent as is consistent with their best interests. This does not mean:
- Every case results in equal time
- 50/50 is the starting point or default
- Courts must order 50/50 unless there's a good reason not to
- One parent must "prove" why they should get more time
Factors That Affect Parenting Time
Practical considerations often make equal time impractical or not in the child's best interests:
- Work schedules: A parent working night shifts or frequent travel may not be able to care for children equally
- Children's ages: Young children, particularly nursing infants, may need more time with their primary caregiver
- Distance between homes: If parents live far apart, frequent exchanges may not be practical
- Children's activities: School, sports, and social lives may favour one location
- Historical involvement: The pattern of care during the marriage is often relevant
- Children's preferences: Older children's views are considered
Learn more about creating workable arrangements in our guide to effective parenting plans.
MYTH Adultery Affects Property Division
The Reality
Canada has no-fault divorce. This means that marital misconduct, including adultery, is generally irrelevant to property division, custody, or spousal support. The law focuses on fair outcomes for both parties, not on punishment for behaviour.
Why Canadian Law Is No-Fault
The no-fault principle reflects several important values:
- Privacy: Courts should not inquire into the intimate details of marriages
- Efficiency: Fault-based proceedings are costly, lengthy, and emotionally damaging
- Fairness: Property was acquired through joint effort regardless of how the marriage ended
- Reality: Marriages end for complex reasons that are difficult to assign to one party
What About Spending on an Affair?
One narrow exception exists: if a spouse spent significant matrimonial funds on an affair (expensive gifts, travel, supporting another household), this may be treated as dissipation of family property. Courts can account for this in property division, not as punishment for adultery but to ensure fair division of what should have been family assets.
Adultery and Children
Adultery generally does not affect custody or parenting time decisions unless the affair directly harmed the children. For example, exposing children to inappropriate situations, neglecting children during the affair, or having an affair with someone who poses a risk to children might be considered. But the affair itself is not a factor in determining parenting arrangements.
For more on property division, see our guide to property division rules in Alberta.
MYTH Everything Is Automatically Split 50/50
The Reality
While equal division is the starting point under Alberta's Matrimonial Property Act, courts can order unequal division when equal division would be unfair. Additionally, not all property is subject to division in the same way.
Categories of Property
- Matrimonial property: Assets acquired during marriage are presumptively divided equally
- Exempt property: Gifts, inheritances, and pre-marriage assets may be exempt from division (though increases in value may be shared)
- Matrimonial home: Special rules apply regardless of when it was acquired
- Debts: Matrimonial debts are also divided, which can affect the overall picture
When Courts Order Unequal Division
Courts may depart from equal division based on factors including:
- Length of the marriage (short marriages may warrant different treatment)
- Whether property was brought into the marriage
- How property was acquired (gifts, inheritance, employment)
- Contribution of each spouse to the marriage
- Any agreement between the spouses
- Dissipation or waste of matrimonial property
For detailed information, see our property division guide and financial disclosure requirements.
MYTH Child Support Automatically Ends at 18
The Reality
While 18 is the age of majority in Alberta, child support obligations can continue well beyond this age. Under both the Divorce Act and Alberta's Family Law Act, support continues for children who are "unable to withdraw from parental charge" due to illness, disability, or pursuit of reasonable education.
When Support Continues Past 18
- Post-secondary education: A child attending university or college full-time typically remains eligible for support
- Disability or illness: Support can continue indefinitely for children with disabilities that prevent independence
- Training programs: Apprenticeships and vocational training may qualify
- Gap years: Reasonable delays between high school and post-secondary may be covered
How Adult Child Support Works
Support for adult children in school is calculated differently than for minor children. Courts typically consider:
- The child's actual expenses (tuition, books, living costs)
- The child's own income and savings
- Both parents' incomes and ability to contribute
- Whether the child is making reasonable academic progress
- Whether the child maintains a relationship with both parents
For more information, see our guides on child support guidelines and adult child support.
MYTH You Must Wait One Year Before Doing Anything
The Reality
While the Divorce Act requires one year of separation before a divorce can be granted, you do not have to wait one year to address custody, support, property division, or to start legal proceedings. You can resolve most issues long before the one-year mark.
What You Can Do Immediately
- File for divorce: You can file immediately; the divorce just won't be granted until one year has passed
- Negotiate separation agreements: All terms can be finalized during the separation period
- Obtain interim custody orders: Courts can make temporary parenting arrangements
- Get interim support orders: Both child and spousal support can be ordered
- Divide property: Property division can proceed during separation
- Obtain protection orders: If there's family violence, protection is available immediately
The Separation Period
The one-year separation period begins when one spouse communicates an intention to live separate and apart. You can be separated while living in the same home if you are clearly living separate lives. Brief reconciliation attempts (under 90 days) do not restart the clock.
For a complete overview of the divorce process, see our Alberta divorce guide and filing steps.
MYTH Courts Will Punish My Spouse for Bad Behaviour
The Reality
This myth is particularly harmful because it leads people to waste time, money, and emotional energy gathering evidence of their spouse's bad behaviour that the court will largely ignore. Canadian family law is not about punishment; it is about fair outcomes.
What Courts Focus On Instead
Alberta family courts are concerned with:
- Children's best interests: Parenting arrangements that serve children's needs
- Fair property division: Equitable distribution of matrimonial assets
- Appropriate support: Meeting financial needs according to legal guidelines
- Efficient resolution: Encouraging parties to settle without lengthy litigation
Important Exceptions
Some types of behaviour do matter in family court:
- Family violence: The 2021 Divorce Act requires courts to consider any history of family violence in custody decisions
- Parental alienation: Behaviour that harms children's relationship with the other parent can affect custody
- Financial misconduct: Hiding assets, dissipating property, or failing to disclose can result in adverse findings
- Unreasonable litigation conduct: Parties who waste court time may face cost awards
For more on litigation conduct, see our guides on high-conflict situations and navigating family court.
More Common Misconceptions
Myth: I Can Deny Access If My Ex Doesn't Pay Support
Reality: Parenting time and child support are separate legal obligations. You cannot withhold access because your ex has not paid support, and your ex cannot withhold support because you have limited their access. Both are enforceable separately, and self-help remedies will harm your position in court.
Myth: Common-Law Partners Have the Same Rights as Married Couples
Reality: In Alberta, common-law partners (Adult Interdependent Partners) have different property rights than married couples. While support and custody rules are similar, the Matrimonial Property Act does not apply to common-law relationships. Property division depends on other legal principles like unjust enrichment.
Myth: The House Always Goes to the Parent with the Children
Reality: While courts may consider children's stability when making property orders, there is no rule that the primary parent keeps the home. The matrimonial home is subject to division like other property. Courts may order sale and division of proceeds, buyout by one spouse, or delayed sale until children finish school, depending on the circumstances.
Myth: My Spouse and I Can Agree to No Child Support
Reality: Child support is the child's right, not the parents'. While parents can agree on amounts, courts will not approve agreements that provide less than the Federal Child Support Guidelines without good reason. Any agreement that waives child support or sets it artificially low is vulnerable to challenge and may not be enforced.
Myth: Judges Always Side with Whoever Has the Lawyer
Reality: Judges are trained to be impartial and often make accommodations for self-represented litigants. However, having a lawyer does provide significant advantages in understanding procedure, presenting evidence, and making legal arguments. The playing field is not perfectly level, but judges do not simply rule for the represented party.
Myth: If My Spouse Moves Out, They've Abandoned Their Property Rights
Reality: Leaving the family home does not affect property rights or equalization entitlements. A spouse who moves out retains their interest in the matrimonial home and all other matrimonial property. The only potential impact is that staying in the home may give the remaining spouse some advantage in seeking exclusive possession.
The 2021 Divorce Act Changes: What's Actually Different
The 2021 amendments to the Divorce Act were the most significant changes to Canadian family law in decades. Understanding what actually changed helps separate new legal realities from ongoing myths.
Key Changes That Affect Alberta Families
- New terminology: "Custody" became "decision-making responsibility" and "access" became "parenting time"
- Family violence: Courts must now explicitly consider any family violence when determining best interests of children
- Maximum parenting time: The Act promotes as much time with each parent as is consistent with the child's best interests
- Relocation provisions: New rules govern when a parent can relocate with children
- Family dispute resolution: Greater emphasis on mediation and other alternatives to litigation
What Did NOT Change
- The best interests of the child remains the paramount consideration
- No presumption of 50/50 parenting time was created
- Property division remains under provincial law (Matrimonial Property Act)
- Child support is still calculated using the Federal Child Support Guidelines
- Spousal support continues to follow the Spousal Support Advisory Guidelines
Frequently Asked Questions
Do mothers always get custody in Alberta?
No, this is a common myth. Alberta courts apply the best interests of the child standard, not a preference for either parent based on gender. The 2021 Divorce Act amendments explicitly prohibit discrimination based on gender. Many fathers receive equal or primary parenting time, and shared custody arrangements have become increasingly common.
Is 50/50 custody automatically ordered in Alberta?
No, there is no presumption of 50/50 custody in Alberta family law. While the 2021 Divorce Act changes promote maximum parenting time consistent with the child's best interests, courts still make individualized decisions based on each family's circumstances. Factors like work schedules, children's ages, distance between homes, and each parent's involvement all affect parenting time arrangements.
Does adultery affect property division in Alberta divorce?
No, Canada has no-fault divorce, meaning marital misconduct like adultery does not affect property division. The Alberta Matrimonial Property Act focuses on fair division of assets, not punishment for behaviour. Adultery also generally does not affect custody or spousal support, though in rare cases where an affair directly harmed the children, it might be considered.
Does child support end at age 18 in Alberta?
Not necessarily. While 18 is the age of majority in Alberta, child support continues for children who are unable to withdraw from parental charge due to illness, disability, or pursuit of reasonable education. A child attending university or college full-time typically continues to receive support. Support can also continue indefinitely for children with disabilities.
Do I have to wait one year to get divorced in Alberta?
You need one year of separation before a divorce can be granted under the Divorce Act, but you do not have to wait one year to start the process. You can file for divorce, negotiate all terms including custody, support, and property division, and have everything ready so the divorce can be finalized shortly after the one-year separation date.
Will courts punish a spouse who behaved badly during the marriage?
Generally no. Canadian family law is based on no-fault principles. Courts focus on fair outcomes for both parties and children, not on punishing bad behaviour. However, family violence is now explicitly considered in custody decisions under the 2021 Divorce Act amendments. Economic misconduct like hiding assets can also affect property division.
Related Resources
For accurate information on Alberta family law, explore these detailed guides:
- Child Custody Explained - Comprehensive guide to custody in Alberta
- Alberta Divorce Guide - Complete overview of the divorce process
- Property Division Rules - How assets are divided in Alberta
- Child Support Guidelines - Understanding support calculations
- Spousal Support Explained - When and how spousal support is ordered
- Common-Law Rights - Rights for unmarried partners
- Family Violence Protection - Protection orders and safety planning
- Social Media & Divorce - How online activity affects your case