The Language of Family Law – 4 most commonly confused words: Custody, Access, Guardianship, and Parenting

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One of the most confusing things about family law is the terminology. The legal meanings of words like custody and guardianship are misunderstood. This is due to two factors. First, the words have very specific meanings that are easily confused. Secondly, there are multiple pieces of legislation that govern family issues in Alberta, each with their own set of definitions.

The four most commonly confused words are custody, access, guardianship, and parenting.

In Alberta, if you are seeking a divorce and the issue of child custody arises, the Divorce Act will apply. If you are not married, or are not seeking a divorce but still have custody issues to sort out, the Family Law Act of Alberta will apply. The Divorce Act uses the terms “custody” and “access”. The Family Law act uses the terms “guardianship” and “parenting”.

The terms custody and guardianship are often confused with where a child will reside. Residency is only one aspect under the umbrella of these terms. Custody and guardianship relate to the major decision-making required in raising a child, including residency, religion, education and health care.

Access and Parenting Time refers to the time each parent spends with the child. This may refer to in-person contact, but also to other forms such as electronic contact (Skype, email), or phone contact. This contact may be specified in a court order, or left up to the parties to arrange between themselves.

There are a variety of ways in how parents organize contact with their children in a separation, or how decision making is shared between separated parties. If you require assistance with this issue, please feel free to contact our office to speak to one of our experienced Calgary Lawyers.

“But the child isn’t mine!! – In Loco Parentis in Alberta

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Family units no longer always comply with the traditional definition. They may not be simply made up of a mother, father, and their biological children. Family units might include step children, step parents, and a parent’s new partner who isn’t quite sure if they are a part of the family unit they are. Things can get even messier when these new relationships end. While a person’s obligation to their biological child seems obvious, a step-parent’s obligation to a child that is not their biological child is a more complicated issue.

Such an issue might be raised in the following situation: Samantha and Max are a couple in a loving relationship. Samantha had a young child from a previous relationship, which Max accepted. The two married and raised Samantha’s child together. After 5 years they realized the relationship wasn’t working and decided to separate. Samantha asked Max to pay child support, but Max refused, arguing that since the child was not biologically his, he did not have any legal obligation to do so.

In this situation, Max might be considered to be standing “in loco parentis”. This term, meaning “in place of a parent”, may be used if a person has acted like a parent towards a child, as if that child was their biological parent. Essentially, in the eyes of the law, the person will be seen as being the child’s parent, a standing that may apply to both parental rights, such as custody and access, as well as child support obligations.

While in some situations it may seem clear that a person is acting like a parent towards a child, making a loco parentis claim is not always easy to establish.

 

Article written by: Brittany Doucet, Adept Family Lawyers

Grandparent’s Rights – “Do I have the right to see my grandchild?”

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Jim and Judy are a happily married, elderly couple, with several children and grandchildren. Their family is close and they have spent many days taking care of their grandson while their son, Alex, and his wife, Amanda are at work. Unfortunately their son and daughter in-law experience trouble in their marriage and separate. Alex rarely sees his son, and Amanda refuses to allow Jim and Judy to see their grandchild at all. They are heartbroken, but what can they do?

Unfortunately, the fear experienced by many grandparents in this situation is not without reason as the law in Alberta does not provide grandparents with a RIGHT to see their grandchildren. The child’s parent or guardian has significant decision making power over whether a grandparent will have time with the child. This is not necessarily the end of the story however.

When the guardians of the child are the child’s parents, the Family Law Act of Alberta allows a grandparent to apply to the court for contact time with their grandchild if one of the following applies:

  1. The parents have separated, and that separation is why there has not been any or sufficient contact with the child; or
  2. One of the parents has passed away, and that death is why there has not been any or sufficient contact with the child.

In this case, a judge will consider many factors and will ultimately come to a decision if contact between the child and the grandparent is in the best interests of the child.

If the lack of contact between the grandparent and child is not caused by separation or death, or the guardians of the child are not that child’s parents, a grandparent does not have an automatic right to apply to the court. First they must receive leave of the court to apply for contact with the child.

In either of these cases, speaking to the family members involved is usually the best course of action. If that fails, there may be a variety of legal avenues available to explore. If you require assistance with this issue, please feel free to contact our office and arrange to speak with one of our experienced Calgary lawyers.

 

Article written by: Brittany Doucet, Adept Family Lawyers

Termination of tenancy for domestic violence

RESIDENTIAL TENANCIES (SAFER SPACES FOR VICTIMS OF DOMESTIC VIOLENCE) AMENDMENT ACT, 2015. Part 4.1

A tenant may terminate a tenancy by giving notice if, because of domestic violence, the tenant believes that his or her own safety, that of a dependent child of the tenant or of a protected adult who lives with the tenant is at risk if the tenancy continues.

To terminate a tenancy, the tenant shall serve the landlord with a notice at least 28 days before the day that the tenancy is to terminate, and a certificate in the prescribed form signed by the designated authority confirming that there are grounds for terminating the tenancy.

A notice to terminate under this section must be in writing, be signed by the tenant, set out the termination date, and be given no later than 90 days after the date on which the certificate is issued.

If notice to terminate a tenancy is given under this section, the tenant shall be responsible for payment of rent only for the period of notice provided and any rent payable during the relevant rent payment period or periods shall be prorated if necessary. The tenant shall not be subject to any penalty under the residential tenancy agreement that would be due only because of early termination of the agreement. And on the request of the tenant, the landlord shall apply a security deposit paid in respect of the residential premises in payment of the rent during the notice period provided.

Proposed revisions to the Citizenship Act

First Reading in House of Commons February 5, 2016

C-6, Citizenship Act

This enactment amends the Citizenship Act to, among other things,

  1. remove the grounds for the revocation of Canadian citizenship that relate to national security
  2. remove the requirement that an applicant intend, if granted citizenship, to continue to reside in Canada
  3. reduce the number of days during which a person must have been physically present in Canada before applying for citizenship and provide that, in the calculation of the length of physical presence, the number of days during which the person was physically present in Canada before becoming a permanent resident may be taken into account
  4. limit the requirement to demonstrate knowledge of Canada and of one of its official languages to applicants between the ages of 18and 54
  5. authorize the Minister to seize any document that he or she has reasonable grounds to believe was fraudulently or improperly obtained or used or could be fraudulently or improperly used

It also makes consequential amendments to the Immigration and Refugee Protection Act.

How to come to Canada…

Immigration to Canada starts with an application for a Canada Immigration Visa. There are several categories of Canadian Immigration under which you can apply to immigrate to Canada.

We offer a full range of Canada immigration services for clients in Canada and abroad. We advise on all applications including the Provincial Nominee Program, Express Entry, work permit, family sponsors, study visa and visitor visa.

On our initial consultation, we will evaluate your personal circumstances and determine your eligibility for any of the programs.

There is the non-Express Entry Provincial Nominee Program (PNP) stream and the newly launched Express Entry stream (as of January 1, 2015).

Most provinces and territories in Canada can nominate immigrants, through the PNP. These immigrants must:

  1. Have the skills, education and work experience to contribute to the economy of that province or territory, and
  2. Must want to live in that Province and Territory.

Express Entry is used to manage applications for Permanent Residence (PR) under these 3 federal economic immigration programs:

  1. the Federal Skilled Worker Program (FSWP),
  2. the Federal Skilled Trades Program (FSTP), and
  3. the Canadian Experience Class (CEC).

The information provided by Citizenship and Immigration Canada (CIC) shows that their goal is to process most complete applications received under Express Entry in six months or less. However, since Express Entry is a new system, average processing times are not yet available for applications submitted through this medium.

There are two main steps to the Express Entry:

Step 1) Potential candidates complete an Express Entry profile, to meet the criteria for one of programs 1 to 3 above, based on the following criteria: skills, work experience, language ability, education, and other details that will help your assessment.

Step 2) The highest-ranking candidates in the pool will be issued an Invitation to Apply (ITA) for permanent residence.

Candidates will be awarded points for:

  • a job offer, and/or
  • a nomination from a province or territory, and/or
  • skills and experience factors.

It’s important to remember that the Express Entry works based on the Comprehensive Ranking System (CRS) and not an immigration program. As such, in practice, it’s all about maximising your points to improve your chances of being issued an ITA.

Upon evaluation, if we think you have a good chance at success we will take you as a client and work with you from start to end.

A Matter of Justice: A sad indictment of heartless Home Affairs…

When a judge, writing in July 2015, says the treatment of an individual in a case he’s been hearing is one of the worst since the advent of democracy, you pay attention. Who is this person who has been treated so badly? What happened, and who was responsible for abuse that shocked even a hardened judge? Emeka Christian Okonkwo is a Nigerian trader. It’s an undisputed fact that he’s in South Africa quite lawfully. He had a little shop in East London where he sold cellphones and gold chains for which he was properly licensed. But on 3 August 2012 his world turned upside down: He was summarily picked up and detained by officials of the Department of Home Affairs, long a byword for high-handed abuse of individuals and of an equally high-handed disregard for the law.

They pretended that they had a warrant for his arrest – a blatant lie as it turned out. Then they locked him up in Fort Glamorgan prison, turned their backs and walked away. For 75 days he languished there, completely cut off from family and friends. No one except the officials who incarcerated him knew where he was. He wasn’t charged or taken to court. He wasn’t told why he was being locked up or what he was supposed to have done wrong. In fact, as Judge Phakamisa Tshiki said later, those who locked him up never had any intention to take him to court, and it was the clearest case he had seen of malicious arrest and detention. Okonkwo might still be there if it hadn’t been for an alert prison warden – someone who should be nominated for a human rights award – who took an interest in this man, imprisoned for no apparent reason. Thanks to that intervention Okonkwo was ultimately simply let go, without ever having appeared in court or being informed of what sin he was supposed to have committed. But the abuse of Okonkwo continued even after his release. Not surprisingly he sued the Department of Home Affairs, but did the department admit its officers were culpable and offer to make amends? No way. They fought the case as though some high principle were at stake, forcing Okonkwo to go through every legal hoop until the matter was about to be heard as a full trial. Only then, with court dates settled and the matter about to proceed, did they cave in and admit that his arrest and detention were unlawful and that they were liable to pay damages of whatever amount a court found appropriate, as well as his legal costs. When the question of the actual damages was argued, the two parties couldn’t agree on the appropriate compensation he should be awarded and the issue had to be decided via a full-blown trial. Okonkwo was the only witness. The department, despite fiercely defending the matter, led no evidence whatsoever. Okonkwo told a sorry tale of how his life as fallen apart as a result of his unlawful detention. His wife and child are both lost to him. She left him and his child has gone, too, because he couldn’t take care of them while he was locked up. The arrest in his shop was made more humiliating as it was witnessed by his family, neighbours and others. His experience in the cells was not only humiliating, it was terrifying as well, with other prisoners attempting to rape him.

For 75 days he had no bed, he couldn’t eat the food provided, there was competition for the toilets. The whole place stank. Perhaps the most outrageous part of the whole story, however, is the two-part argument put up on behalf of the department to explain why Okonkwo should be paid far less in damages than he claimed: The court was ‘dealing with public funds’, said counsel for the department; moreover the court had to weigh up what was appropriate to award as damages considering Okonkwo’s ‘standing in society’. The implication of the second part of the argument was that he was a nobody, a mere Nigerian trader, and he should therefore be satisfied with less compensation than would be awarded to an important person. Such an argument speaks volumes about the department’s understanding of the Bill of Rights and the guarantee of equality in our Constitution. As for the first part of the argument, that public funds that would be used to pay damages to Okonkwo – there is a solution to the problem, namely that the responsible officials pay the damages out of their own pocket. In the end Judge Tshiki, who heard the case in the High Court, East London, called the way the department handled the litigation ‘reprehensible in the extreme’, awarded Okonkwo damages of R750 000 plus legal costs. There’s deep irony to the timing of judgment in this case. It was delivered 800 years, to the very month, after the signing of the Magna Carta, that charter which has so fundamentally shaped our views of human rights over the centuries, and which is one of the influences that led ultimately to such other documents as South Africa’s Constitution. Here, for example, is Chapter 39 of the Magna Carta: No man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land. For 800 years that has been a touchstone by which a government could be judged. In the case of Okonkwo, however, you see a man taken and imprisoned, dispossessed of his family not to mention his financial losses, completely without sanction by the law of the land.

It’s a damning indictment of the Department of Home Affairs, its officials and the broader government that continues to allow this department to behave as though the Constitution did not exist. Actually, since our money will pay for this atrocity, it’s also an indictment of the public.

Unless we speak up, urging that officials who flagrantly defy the law pay for their misdeeds out of their own pockets, and that legal action is taken against them where appropriate, we are unavoidably complicit in their crimes. That, at any rate, is my view. and in this, the first of what will be a fortnightly column, I put it forward for debate. My intention in A Matter of Justice is to highlight judgments and other legal issues through which we can see more clearly where we’ve come from and where we’re going. My hope is that these columns, with the discussion that hopefully follows, will help contribute to a better understanding and appreciation of our Constitution as well as the democratic society, founded on the rule of law, that we want to create.

Okonkwo v Minister of Home Affairs & another

Article written by Carmel Rickard

Which should you opt for? Legal Separation or Divorce?

These days, more couples are deciding to remain separated, rather than divorce. Why? Some, financial reasons, others, fear of the unknown and to some, the children. Before you walk out and leave things lying fallow, you should talk with a lawyer about “Legal Separation”.

If you are going to live apart from your spouse beyond a reasonable “trial period”, you should obtain a legal separation agreement – this is a legally binding agreement between you and your spouse to resolve issues such as, spousal support, custody, access, child support, and asset/debt division. If, in the future, you decide to formally divorce, the separation agreement will be included in the divorce judgement.

A legal separation agreement can help you mitigate many financial risk. Although separating certainly can have benefits, living apart from your spouse without a formal written separation agreement can put you at risk. You still remain liable for your spouse’s debts and legal issues even after separation. If your spouse fails to pay certain matrimonial debt; creditcard, car loan, line of credit, because you are still married, the creditor can seek remedies against you for the debts. After sometime, communication and cooperation with your spouse may no longer exist and you may not receive your share of the assets acquired which may be depleted or lost because you were unaware of how your spouse was managing the funds. Hence, you should take advantage of the current situation, when you can still communicate, protect yourself.

Some people remain separated for months or even years, so it’s essential that you protect yourself upfront and have all the necessary issues settled, agreed to in writing and with independent legal advice all the way.

Finally, a separation agreement can be obtained as early as within a week. You can go to sleep, being rest assured that you are protected, you can plan your future with certainty, play the lottery, and actually single.

Money-saving tips, before you leave:

 

  • Gather your paperwork: Refer to the Quick Links Page on our website for a list of financial document. To keep things discreet, you may make copies of these papers;

 

  • List all your monthly expenses, debts, and income. Create a budget of your expenses when you leave. Refer to the Quick Links Page on our website for our Monthly Budget of Expenses form;

 

  • Write down the background, history, your story, and main events throughout your relationship, with dates. This will help you tell us your story smoothly and getting great value for your initial consult;

 

  • Create a budget for the services you may need. Consider whether you need some start-up money;

 

  • Speak to a lawyer when you are calm, organized, and know what legal questions you need answered. Use our Family Law Questionnaire as a guide;

 

  • Ask us about costs, and about how much of the negotiations and paperwork you can do yourself. If you and your ex can talk to each other about next steps, without getting angry, you may be able to save your lawyer’s time and your money; and

 

  • Don’t EVER walk out without a PLAN.

 

Should you get a Divorce or an Annulment?

An annulment is a declaration by the court that two spouses were never legally married and allows some spouses to end a marriage without divorce.

A marriage may be annulled when one spouse was already married to someone else, one spouse was under the age of majority and married without parental permission, the marriage was entered into under duress, fear, or fraud, one spouse lacked the mental capacity to understand the basic meaning of marriage, one or both spouses was intoxicated during the marriage ceremony and was not able to give consent and/or the spouses were too closely related to each other by blood or adoption.

Legal advice will be necessary to determine whether your marriage meets these or other grounds for annulment.