Eligibility for Pension Credit Splitting on Relationship Breakdown Extended to Common-Law Spouses

A Court of Queen’s Bench of Alberta decision issued April 13, 2018 gives common-law pension partners the same rights to split pension benefits as apply to legally married pension partners on marriage breakdown. It should be noted that the common-law pension partner must meet the criteria for being a pension partner as defined in section 1(3)(b) of the Employment Pension Plans Act (EPPA).

A “read in” effectively amends the legislation. What this means is that eligible common-law pension partners, on the breakdown of their relationship, may split pension benefits based on the same rules that apply to married pension partners. No more that 50% of the benefit accrued during the relationship may be paid to the pension partner, and the benefit is locked-in. As well, the period of an eligible common-law relationship immediately before the date of marriage is now included in the determination of the joint accrual period. This ruling only applies to Alberta members of pension plans registered under the EPPA or the equivalent legislation of another jurisdiction.

In order to comply with this new situation, agreements between common-law pension partners will need to meet the formal requirements of the Matrimonial Property Act.

The EPPA, the Employment Pension Plans Regulation and this court decision should be used to determine the specific legislative requirements that apply to the splitting of pension credits upon the breakdown of common-law relationships.

If you require assistance with a common law separation or cohabitation, please feel free to contact our office to speak with one of our experienced Family Law Lawyers.

Impaired Driving in Alberta: Know the Law

drunk-driving

An impaired driving charge can fall under a number of Criminal Code offences, depending on the circumstances. The way that these charges can be dealt with will also differ according to which offence you are charged with. Additionally, the offences and penalties also differ depending on which province you are from. This is because provinces are able to enact their own legislation allowing them to impose penalties for blood alcohol concentrations (“BAC”s) lower than the criminal limit of .08 under the Criminal Code. In this article, I limit my discussion to DUI charges in Alberta. If you are charged with a DUI in another Canadian jurisdiction, please consult a legal professional in your province.

The offences in the Criminal Code relating to driving under the influence fall under sections 253 to 255.

Under section 253(1), you can be charged with “Operation while impaired”. This has two branches. Under the section 253(1)(b) branch, you can only be charged with the offence if your BAC has been tested and determined to be 80 milligrams in 100 millilitres of blood (i.e. driving over .08). This is first tested using a roadside breathalyzer instrument. If you blow over .08, a police officer may charge you with this section 253(1)(b) offence. A second breath sample is done at the police station.

You can also be charged with operating a motor vehicle while impaired by alcohol or drugs. You may be charged with this offence if you register over .08 or even if you don’t, but the police officer has reasonable suspicion that you are impaired by alcohol or drugs. This may also be a combination of alcohol and drugs. This falls under the offence outlined in section 253(1)(a).

If you refuse to comply with either of the breathalyzer demands, on top of being charged with impaired driving, you can also be charged with a failure or refusal to comply under section 254(5).

Under each of these different offences, you can be charged under more serious provisions if your operation resulted in bodily harm or death to another person (sections 255(2)-255(3.2)).

Under Alberta’s Traffic Safety Act, where a person has been charged with a DUI offence under the Criminal Code, he or she will face an automatic driving disqualification (suspension) which takes effect immediately and remains in effect until the criminal charge is dealt with (section 88.1).

Additionally, where a driver is found guilty of an offence under section 253 or 254, the person is disqualified from operating a motor vehicle without an alcohol-sensing device for one year for a first conviction; 3 years for a second conviction within 10 years; and 5 years for subsequent convictions within 10 years. For more serious convictions under section 255, the suspension can be for up to 5 years.

If a convicted person wants to drive before their disqualification period has expired, he or she will be required to apply to the Registrar to set aside the operation of the disqualification. The Registrar may do so on certain terms and conditions and only if the driver installs an alcohol-sensing device in their motor vehicle. Alberta’s “Ignition Interlock Program” enables some applicants to drive again after 3 months of disqualification if a device is installed in their vehicle.

Those convicted of their first impaired offence under sections 253 and 254 will receive a minimum fine of $1,000. An individual with a second impaired driving offence could face a jail term of 30 days or more. And for each subsequent offence, an individual can face a jail term 120 days or more. The jail term can be for up to 18 months if punishable on summary conviction, or up to 5 years if prosecuted by indictment. Convictions under section 255 are more serious and can result in imprisonment up to 10 years or for life.

You can be charged with operation while impaired even if you are not actually driving. For example, you may be convicted if you were found sitting in the driver’s seat, with or without the keys in the ignition. However, the case law surrounding impaired driving is dense and complex. Please contact our criminal lawyers to assess your case and provide you the best defence possible.

By: Sarah Ure

Assault? Assault causing bodily harm? Assault with a weapon? Aggravated assault? – Differences?

Assault

All assaults are general intent offences. General intent means only that the accused meant to do an act prohibited by law, NOT that the accused necessarily intended the act’s result. Accidentally hitting someone is not an assault (unless the accused was trying to hit someone else). If the victim consented to the assault, it is also not an assault. However, there are certain things that a person cannot consent to, including assault with a weapon, assault causing bodily harm, or aggravated assault.

An “assault” includes an actual assault, as well as the threat of an assault leading a person to reasonably believe that they will be assaulted. A “simple” assault (the least serious) is punishable on summary conviction or can constitute an indictable offence and face imprisonment up to five years.

Assault with a weapon is an assault with the use of a weapon, which can be anything that is used to deliver the harm, such as a stick, knife or gun, or an imitation thereof. Assault with a weapon can be punishable on summary conviction and be liable to imprisonment up to 18 months, or constitute an indictable offence and be subject to imprisonment for up to ten years.

An assault causing bodily harm is one that is dependant on the outcome of the assault. That is, if the assault results in hurt or injury that is not “transient or trifling”, it constitutes “bodily harm”. Similarly, assault causing bodily harm can be punishable on summary conviction and be liable to imprisonment up to 18 months, or constitute an indictable offence and be subject to imprisonment up to ten years.

An aggravated assault is more serious still than assault causing bodily harm. An assault is “aggravated” if it “wounds, maims, disfigures or endangers the life of the complainant”. Aggravated assault is an indictable offence and, if convicted, a person is liable to imprisonment up to 14 years.

It is always advisable to seek legal advice as soon as you are charged with a crime. It is also your Constitutional right to be advised of your right to speak with a lawyer upon your arrest. If you have been charged with a criminal, or quasi-criminal offence, our lawyers are available to assist you at any stage of the process you are in.

By Sarah Ure.

New Drone Regulations

drone

I’m taking a detour away from my normal areas of family and landlord/tenant law with this post. I am a hobby photographer and have been fascinated by the aerial photography now possible with the advancement of recreational drone technology. Drones, equipped with cameras, are now available at a price affordable by a significant percentage of the Canadian population.

Unfortunately, until now, law surrounding the use of recreational drones was limited and there was a great deal of confusion about where and how high a drone could be flown. There have also been issues over the last couple of years with drones being flown in inappropriate places and causing trouble with aircrafts, traffic, and pedestrians. Transport Canada has recently released a new regulation outlining the rules about flying recreational drones.

Outlined below are the basic safety rules outlined in the new regulation. The penalty for failing to follow these rules may be a fine up to $3,000. Keep in mind that this is a summary only, and that if you are planning to use a recreational drone, you should review the Interim Order Respecting the Use of Model Aircraft carefully. To not require permission from Transport Canada to fly, your recreational drone must weigh more than 250 g and up to 35 kg.

Do not fly your drone:

  1. Higher than 90 m above ground;
  2. Closer than 9 km from buildings, vehicles, vessels, animals, people/crowds;
  3. Within a controlled or restricted airspace;
  4. Within 9 km of a forest fire;
  5. Where it could interfere with police or first responders;
  6. At night or in clouds;
  7. If you cannot keep your drone in sight at all times;
  8. If you are not within 500 m of your drone; and
  9. If your name, address, and phone number are not clearly marked on the drone.

These rules only relate to the flying of drones. Other laws and rules may address the use of the drone, such as the limitations on flying over and photographing/videoing private property.

** Members of the Model Aeronautics Association of Canada (MAAC) who operate at MAAC sanctioned fields or events are not subject to these rules.

Please see the Transport Canada website at the link below for more information.

https://www.tc.gc.ca/eng/civilaviation/opssvs/flying-drone-safely-legally.html

By Brittany Doucet

 

Landlord / Tenant Issues: Growing Marijuana at Home

20170320_163003 (003)

In August 2016, the Access to Cannabis for Medical Purposes Regulations (ACMPR) came into effect. Canadians with medical need and the authorization of their health care practitioner may now register with Health Canada through the new regulations to produce a limited amount of cannabis in their own homes. The number of plants permitted depends on whether plants are being grown indoors or outdoors, and on the individual’s medical need.

These regulations are the response to a Federal Court decision from February 2016 which found the regime outlined under the Marihuana for Medical Purposes Regulations to be overbroad and disproportionate in limiting Canadian individual’s right to access a doctor prescribed treatment, and thus violated the Charter of Rights and Freedoms. While the decision does not specifically grant Canadian citizens the right to grow marijuana in their homes, permission was granted in the ACMPR, which was the response to the court’s decision.

The ability to legally grow marijuana in a personal residence raises a variety of issues, legal and otherwise, however in this post I will only be discussing the landlord / tenant relationship. Additionally, this post only deals with legal growers authorized under the ACMPR, not those growing illegally. The ACMPR seems poised to raise a few areas of conflict between landlords and tenants. Unfortunately, the regulations do not answer every question, and they have not been in place long enough for all questions to be answered through the courts.  Two relevant issues are addressed below.

First, the ACMPR does not always require a tenant to get his or her landlord’s consent to begin growing, or even inform them. The ACMPR only requires the property’s owner to provide consent if the property is not the primary residence of the grower. As the Federal court’s decision framed access to a prescribed treatment as a Charter issue, it is currently unclear whether the lease agreement forbidding the tenant to grow marijuana on a rental property would be enforceable.

Second, there is a question of who is supposed to bear potential costs of legal growing. Many insurance companies will not insure a property being used to grow marijuana. While this may change if marijuana use and cultivation becomes legal on a broader spectrum, a landlord today may face having to pay significantly more, or losing their insurance altogether. This raises the question of whether the extra cost of appropriate insurance may be transferred to the tenant.  Again, this is currently unclear as one of the Federal court’s primary concern was the prohibitive cost of access to prescribed marijuana.

These are just two issues that have emerged in the early days of this issue. No doubt other complications will emerge in the relationship between landlords and tenants in this situation. Unfortunately, there may not be any clarification until a case works its way through the court system and a judge provides guidance, or amendments are made to the legislation.

Please feel free to contact us for assistance if you are a landlord or tenant impacted by the new ACMPR and require assistance.

By Brittany Doucet

 

Where there’s a WILL there’s a way

will

As cheesy as the title of this post is, it is a good way to describe the importance of a Will. When a loved one passes away, their Will explains the way that they wished their property and estate to be distributed. In Ontario, November is “Make a Will Month”.  While we don’t have the same event in Alberta, the importance of having a Will is not something that should be overlooked.  A significant number of Canadians do not have a Will.

Let’s start with the basics. A Will is legal document, or combination of documents, that establishes how an individual’s property Will be divided when that individual dies. To be effective, it must be in writing and follow the requirements set out in Alberta’s Wills and Succession Act.

The reality is that a Will does more than just tell the individual’s remaining loved ones who gets the money in the bank account. If you have minor children, an important purpose of a Will is directing who should be the one to take care of them, and manage their estates until they come of age. Importantly, a Will also gives the personal representative the legal authority to make decisions for the estate, sell land, and do all the other things required to dispose of an estate.

If you don’t have a Will your property Will be distributed according to the rules set out in the Intestate Succession Act.  If you leave behind children, the family would have to come to an agreement on who would care for the children, or if no agreement was reached, the court would decide. This means that, while your property and children would eventually be taken care of, the process can be long, costly, and complicated. In the end, things might not end up how you would have wanted.

Having an up-to-date Will makes things much easier for your surviving family and friends.  If you require assistance with making a Will, our friendly and experienced lawyers would be happy to help you in drafting a Will, and answering any questions you may have.  You may also want to consider having a Personal Directive and Enduring Power of Attorney at the same time.

By Brittany Doucet.

Travel Consent Letters

children-travelling-kids

As the winter holidays approach, you may be planning to take the kids and escape the snow to warmer weather. If you are planning to travel with kids under 18, you should consider obtaining a notarized travel letter to avoid any unnecessary trouble at the border.

A notarized travel consent letter may be required for any child crossing the Canadian border when they are not traveling with all their guardians. There is no legal requirement in Canada for child to carry a letter, however it may be requested by immigration authorities when entering or leaving foreign countries and a failure to produce the letter may stop a trip in its tracks. While a separated couple may be used to traveling individually with a child, the need for a travel letter is not exclusive to separated parties. They may be required when one parent travels with the children, the children travel with another family member, or the children are travelling without any of their guardians (e.g. School trips).

There is no standard form for a travel consent letter but, at minimum, it should contain the following:

  • The full names and birthdays of the children travelling;
  • The names, addresses, and contact information for the guardians not travelling with the children;
  • The name and relationship to the children of the adult travelling with the child (if appropriate);
  • The place the children are travelling too, and potentially where and who they will be staying with;
  • The date that the children are travelling, and their expected return date;

The letter than needs to be signed by all the guardians not travelling with the children. This signature also needs to be witnessed by someone who is over the age of 18. While it is not mandatory to have the letter certified by a Notary Public, doing so will make border authorities less likely to challenge the authenticity of the letter.

If you require assistance with drafting or signing a travel consent letter, our friendly lawyers are available to help you.

By Brittany Doucet.

Police Enforcement Clauses

police

One of the biggest casualties in divorce or separation is trust between the parties. The trust may have been eroded years before through dealing with a bad relationship, or an incident during the separation process may have triggered a complete loss of trust overnight. Unfortunately, separating when there are children involved often means leaving the people you worry about most in the care of that person you no longer have faith in. Concerns about whether the other party will follow a court ordered parenting schedule often leads individuals to question whether the police can be involved to enforce their ordered parenting.

In these situations, a parent may request that a judge include a “Police Enforcement Clause” in their parenting order. This clause instructs a peace office to assist in enforcing the terms of the Order if the other parts fails to comply. If, after verifying that the other party has a copy of the Order and they have been given an opportunity to comply with the Order, the other party still refuses to comply, Peace Office has the authority to arrest the defiant parent.

While the risk of arrest is often effective in making sure that a parenting order is complied with, these clauses are not appropriate in every situation. If there has been a history of significant conflict, with a parent repeatedly refusing to follow a parenting order or returning the children to the other parent when required to, or a valid concern that one parent will pick up and move away with the child without warning, a Police Enforcement Clause may be ordered by the Court. When there is no such history, the Court will often refuse to order a Police Enforcement Clause.

Ultimately, given the potential consequences of invoking this clause, involving a peace officer in a parenting dispute is a serious step that should be considered carefully. If you are facing a situation where you believe that a police enforcement clause may be necessary, our experienced family law lawyers are available to help you.

By: Brittany Doucet.

Living with your Landlord

rental-agreement

There are a variety of rental situations a person might find themselves in. Unfortunately, there is a common misunderstanding that the Residential Tenancy Act (Act) applies in all situations. This is incorrect. The Act specifies a number of rental situations that the Act does not apply to. Renting rooms in the residence of the landlord, when the landlord lives there and shares the living space, is one of these situations. A common example of this situation is a university or college student renting a single room in a house and the owner of the house lives there.

Because the Act does not apply to these situations, when there is a disagreement between the parties they cannot simply rely on the Act to tell them how things should be resolved. Unfortunately, many people enter into an informal roommate arrangement without determining much beyond the amount of rent and find themselves in trouble when the relationship breaks down.  It is always a good idea to create a written agreement covering the terms of the relationship, especially when the Act does not apply. A written agreement will help the parties clarify exactly what they are agreeing to, give them certainty in what is expected of them, and will help both the parties and a judge determine exactly what was included in the agreement.

At a minimum, a written roommate agreement should contain all the basic information found in a lease agreement, including the following:

  • The length of the agreement, if there is a specific end-date in mind;
  • Amount of rent, and when and how it is to be paid
  • Who will be responsible for utility, cable, water, and other fees;
  • What space the roommate agreement includes (bedroom, bathroom, living space, parking space, use of backyard…)
  • Whether pets are allowed
  • How the roommate agreement may be terminated and whether notice is required;
  • If a roommate wishes to move out, whether they will be responsible to find a new roommate, and whether they will continue to be responsible for rent payments; and
  • How a disagreement will be resolved (discussion between the parties, mediation, court)

A roommate agreement can be made as specific as the relationship and the accommodations require. Even if not included in the written agreement, you may wish to discuss things like whether food will be shared, and who will be responsible for cleaning shared living spaces, and how shared living expenses like toilet paper and cleaning supplies will be shared.

If you require assistance with drafting a roommate agreement, our friendly, experienced lawyers are available to assist you. Please feel free to contact our office to schedule a consultation.

Written by: Brittany Doucet.

Parenting through the Holidays

Adept Family Lawyers

The winter holidays, be them Christmas, Hanukkah, Kwanzaa, or school break, are generally a time filled with traditions, family get togethers, good food, and gifts. As crazy and hectic as they can be, there is the potential for even more conflict and unexpected drama when they occur in the middle of a separation and the parents haven’t thought ahead about how parenting time is going to be shared.

Coming up with a parenting plan for the holidays can help resolve conflict between parents before it starts to ruin the spirit of the holidays. It gives the parents and the children a sense of certainty of where the children are supposed to be, at what time, and how they are supposed to get there.  It is important to come up with a plan, or have the matter settled through mediation or by a judge well in advance of the holidays to avoid unnecessary stress.

Holiday parenting can be as creative or as simple as needed to try and accommodate all the family members and traditions that might be involved. That being said, there are a couple common examples that may be useful if you are completely lost as to where to start.

  1. The winter holidays can be split in half each year with the parents possibly alternating which half of the holiday they spend with the children each year; and
  2. The parents can alternate which parent spends the entire winter holiday with the children each year so that one parent gets all the even years, and the other gets all the odd years.

If you are planning to make a parenting plan, along with what time each parent will spend with the children you may want to consider the following:

  • Phone and other contact information of each party, especially if there are plans to travel;
  • Transportation arrangements, especially who will be picking or dropping off the children;
  • If any phone, facetime or Skype contact is expected during the other parent’s access;
  • If necessary, whether another individual has permission to pick up or transport the children;
  • If one parent is planning to travel with the children, a notarized consent letter may be necessary to avoid problems with travel authorities;
  • Consider putting the parenting plan into an Agreement and/or Court Order to avoid misunderstandings.

It can be difficult to divide up holiday time when there are traditions that have been followed for years, or the extended family is expected to be present. It is important to keep in mind that the focus should be on the best interests of the children and that it may be worthwhile to change a holiday tradition, or make new traditions, to limit the conflict that the children are exposed to.

If you need help developing a parenting plan for the holidays or have questions, our experienced Family Lawyers are available to assist you.

By: Brittany Doucet