Family Law

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.

Travel Consent Letters

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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

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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.

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

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

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.