Miranda Lyttle, 38, is two years into a divorce battle, fighting over child custody, property division and working under the guidance of Alberta’s Matrimonial Property Act (MPA) despite the unexpected news she isn’t protected by the Act.
Lyttle’s Story
The crackling sound of foil unwrapping and the cork plucked from a wine bottle were the only sounds filling the room when I sat down at the kitchen table with a view of Canada Olympic Park at her N.W. home in Calgary Lyttle shares with her three children. She brought her glass of wine and a tall glass of water for me. As she sat in front of me, a smile emerges from her serious expression. The weight of my questions rested heavy on my shoulders as silence lingered in the air. Breaking the silence, Lyttle speaks, “I don’t know if I will ever return to who I was before the relationship. It was pretty great at the beginning, but years later the reality set in and I would then wake up to my nightmare.”
Her relationship with her soon-to-be ex husband started off with a Las Vegas “quickie” wedding on March 17, 2007, followed by a romantic destination wedding in Mexico with family and friends on Nov. 17, 2007. Together they had a child, joining her two other children from a previous marriage. Their modern family seemed complete, but unfortunately, circumstances changed; fights would ensue and their marriage was short lived.
“We have spent a lot of that money on legal fees and it has been a very long road. A part of your dignity is taken away one layer at a time through this kind of process,” said Lyttle.
“I don’t know if I will ever return to who I was before the relationship. It was pretty great at the beginning, but years later the reality set in and I would then wake up to my nightmare.” -Miranda Lyttle
Sept. 11, 2014 was a difficult day. For the American-born mother of three, not only was this a day of remembering, rather, it was now the day of an officially failed seven-year marriage. When she filed for divorce in September she shockingly found out her first marriage from years prior was not categorized as final, therefore revealing her current marriage was unrecognized in the Alberta courts. Little did she know, MPA would not protect her assets because she was technically in a common-law partnership for all those years.
“There is a lot I would change if I could go back, but I have learned so much through the process. Things happen for a reason, you have to believe that because it is a form of survival,” said Lyttle.
Linking to MPA
Erin Townley, family lawyer at McGurk and Fraese Family Law has found that the Act is not designed to facilitate the bloodshed of dividing all of the small items in a house and it can become frustrating not only for the lawyer but also for the client. Photo courtesy of Cassie Riabko from Oct.6, 2016.
Family Law experts say there are three weaknesses in Alberta family law;
1. Common-law partnerships not being protected
2. The valuation date marital assets are evaluated create confusion
3. The lack of substantial updates to the Act is among the weaknesses where experts have voiced their concern.
However, changes might be afoot and, experts say, none too soon. Alberta Law Reform Institute (ALRI) is recommending changes in 2017 that would take into account those concerns. The institution has acknowledged common-law partnerships and valuation dates are in need up an update. ALRI calls the current law ‘inefficient and unpredictable’ in terms of how it deals with common law division of property.
The final report of the Matrimonial Property Act: Valuation Date was published in Oct. 2015, which included recommendations for the Alberta Government to which they can choose to adopt and implement those changes into a revised Act. It states couples can choose a date of valuation, those being either the date of separation or the date of trial. However, if both parties cannot agree, it defaults to the date of trial. ALRI’s recommendations are to change the default to the date of separation with the intent that it will ensure a more reasonable approach.
Legal experts are advocating for change, however, anyone going through a divorce should be aware of the law that now exists.
“When people decide to get married they do not know everything about the MPA, so that is why it can seem unfair and I think people don’t fully understand what they are entering into with marriage,” said Erin Townley, a lawyer with McGurk Fraese Family Lawyers in Calgary.
The MPA was implemented in 1978 in the Albertan Family Law to ensure fairness of the division of property between married couples during the breakdown of a marriage, yet it currently does not include common-law partnerships.
“Even with married couples dividing assets, divorces get ‘messy’ because expectations are set high and emotions take over. When couples fight over cutlery, pots, pans, dish cloths or chopsticks, it makes for a more challenging case for each lawyer.” -Erin Townley
This Act is specific to only Alberta law, however, nine other provinces have their own versions of the Act. Some differ from Alberta law because their acts apply to both married and common-law couples versus solely isolating matrimonial couples.
“When an unmarried couple separates, either partner may apply to a court to divide property based on each partner’s contributions, which can be financial or non-financial. This approach can be unpredictable and inefficient,” said Legal Counsel, Laura Buckingham with ALRI in an email.
There have been minor revisions with the MPA since the first Act, with the latest in 2010. ALRI is currently studying how the law in common-law partnerships could be updated by requesting feedback from as many Albertans as possible. In 2014, they issued a ‘Report for Discussion’ form and are now working to publish another revised report in early 2017. However, the most recent changes to the MPA from 2005 to 2010 from the Alberta Government have been primarily wording revisions as “originating notice” to “separate application” despite ALRI’s previous recommendations.
In Canada, 46 per cent of marriages end in divorce, according to the last documented information provided by Statistics Canada and 37 per cent of marriages from 2008 are expected to end in a divorce by the 25th wedding anniversary. The statistics are high and in 2013, approximately 70,000 divorces occurred in Canada annually, according to Ontario based family law office, Feldstein Family Law Group. There are no firm statistics from Alberta, as data collection and processing has been reduced. Despite the rising concerns about an outdated Act that serves thousands of people each year, the design of the MPA is to focus on equalizing the parties involved and providing a sense of fulfillment and unity.
What do the experts have to say?
Holly Lonseth (left) and Emily Varga (right) family lawyers with Jones Divorce Law LLP in Calgary see the most successful people walking away from a divorce as the ones where both parties have had an open mind, were advised by the council and made well thought out decisions to come to a negotiation. Photo courtesy of Cassie Riabko from Oct. 6, 2016.
With my mind focused on MPA and the weaknesses addressed, I wanted to find out more from experts who work directly with clients experiencing the ramifications as a result of these weaknesses. I head to downtown Calgary for my interview at McGurk Fraese Family Lawyers. Making my way to the 14th floor, I was welcomed with a smile from the receptionist. Moments later Townley greeted me and guided me to her very organized, city-view office.
After noting from pre-interviews that a family lawyer’s job entails a lot more than just going to court and splitting property from previous interviews, I wanted to gain the perspective from Townley on different experiences she has encountered as a practicing expert.
“It is managing people’s feelings than actually having to deal with the actual language of the act. Dealing with clients that feel it’s not fair, in most cases, they are walking out of a divorce better than when they came into it,” said Townley.
Even with married couples dividing assets, divorces get ‘messy’ because expectations are set high and emotions take over. When couples fight over cutlery, pots, pans, dish cloths or chopsticks, it makes for a more challenging case for each lawyer. When getting married, the verbal agreement is a solidified contract. Townley continued, “I do always find the most interesting cases are common-law property because it is all over the map and the MPA doesn’t apply unlike B.C. and Ontario where they have an equivalent act that includes the recognition of common-law couples.”
Learning so much about the one-on-one experience, including the challenges for clients and family lawyers, I wanted to explore the misconceptions of divorce.
Breaking common misconceptions
The sound of grinding coffee beans created their own rhythm with light jazz music playing as I sat at a small, circular table with two family lawyers at a local coffee shop. Their smiles took away the intimidation that I felt as I set my recorder on the table and pressed record.
I wanted to know why I had heard, time and time again, that the ‘system’ fails one spouse more than the other. As a child of divorce myself, I have heard it in my own home.
Emily Varga, from Jones Divorce Law LLP in Calgary, was the first to speak.
“The system fails everyone because it’s like people want their lives to be the same but they don’t acknowledge that there is a divorce. They are separating everything with emotions involved, not realizing that they are not going to get everything they want.”
There are many components to a divorce case that can impact one side or the other. Sitting beside Varga is another Calgary family lawyer, Holly Lonseth, who adds, “I have seen before that the other lawyer isn’t telling the client the law. So the client thinks he or she is going to win their way, but it is contrary to the law. So it is impossible to negotiate because it is so unreasonable.”
Lawyers face an immense amount of pressure because they need to work alongside the Act, do their best to make their client happy and ensure fairness on all sides while also staying in the role as advocate.
Working alongside the Act can create challenges as the weaknesses emerge in some cases.
The valuation date of property, a common weakness is currently written in the Act as the date of trial whereas many experts believe that it should be revised to the date of separation.
“The system fails everyone because it’s like people want their lives to be the same but they don’t acknowledge that there is a divorce.” – Emily Varga
Lonseth has worked with a client where the other partner had unilaterally purchased a condo with a line of credit from the matrimonial property mortgage without her client’s consent. However, Lonseth was able to find case law to present to the court that the new living space had no benefit of value to her client which in turned helped with their side of the case. The case law that she presented was the Peregrym v. Peregrym and it stated: “The Court discussed a case called S.(E.) v. S. (J.S.) 2007 ABQB 321, which found, after considering the factors in section 8, that an unequal distribution was just and equitable because the husband’s debts incurred after separation were without the consent of the wife, did not benefit the wife, and it did not support any matrimonial assets.” This case law served as precedent for her case, resulting in her favour.
Family lawyers have an incredibly important role as they serve as advocates and are the experts in the situation. They also play the role of counselors, listening to their client go through a form of grief while ensuring expectations are managed properly and efficiently. “We are all trying to find a middle ground, while doing our best to make everyone happy,” said Varga.
Family lawyers have been portrayed inaccurately as many people watch the court shows [on television] and the entire view is extremely romanticized which in turn provides the viewer with a false understanding of what family law really is.
The MPA overall is a great tool to use when dividing property between a married couple during a divorce, however, those in common-law partnerships aren’t as easily guided. In 2011, Statistics Canada published information on common-law partnerships and found that common-law family partnerships exceeded the number of lone-parent families from 1.56 million families compared to 1.52 million families.
What is the future?
Common trend experts have found people who are proceeding with marriage are primarily writing pre-nuptials, even as young couples that have little assets and little money. Pre-nuptials tailor what a marriage contract will look like in the case of a split.
The statistical numbers in Canada show that marriage percentages are on the decline. The lack of knowledge on matrimony and family law, combined with the idea of marriage portrayed in film gives a false representation of expectations. “People need to get out of the Disney view of marriage and understand the reality of it,” said Townley. It comes down to understanding that the legal ramifications are a serious business around marriage and couples need to be aware that they are willfully and consciously deciding to enter into a union.
The future of the MPA is well on its way with revisions from ALRI to benefit a wider scope of society. This will include common-law partnerships and a more practical date for the division of property that will give the Government of Alberta an opportunity to adopt.
“People need to get out of the Disney view of marriage and understand the reality of it.” – Erin Townley
As for Lyttle, she has recently changed lawyers and hopes for more support and advocacy. Her priorities are focused on her three children, finding strength within herself and starting her process of healing.
“I can’t help but reflect as I look forward to the future. It is empowering to call the entire experience a journey as it has been quite the battle but I am still here, still able to wake up each day and be a mother to my children,”concludes Lyttle.
criabko@cjournal.ca The editor responsible for this story is Aysha Zafar and can be contacted at azafar@cjournal.ca