These days, cohabiting is common, as is the breakdown of marriage, and some people are left wondering if they need to get a court order recognizing them as a parent. Often, it is not necessary because the rules of parentage, as set out by the Alberta Family Law Act, set out the factors to be considered that will automatically result in the designation of someone as a parent. As such, it is often more helpful to review these factors and ensure that if you are filing a court application, you include relevant information to have a Judge conclude that you are a parent based on the details provided, such as by setting out that you were married to the birth mother at the time of the child’s birth (See Rule 8(1)(a) below).
Pursuant to the Alberta Family Law Act and the Rules of parentage 7(1):
7(1) For all purposes of the law of Alberta, a person is the child of his or her parents.
(2) The following persons are the parents of a child:
(a) unless clause (b) or (c) applies, his or her birth mother and biological father;
(b) if the child was born as a result of assisted reproduction, a person identified under section 8.1 to be a parent of the child;
(c) a person specified as a parent of the child in an adoption order made or recognized under the Child, Youth and Family Enhancement Act.
(3) The relationship of parent and child, and the kindred relationships flowing from that relationship, shall be determined in accordance with this Part.
(4) A person who donates human reproductive material or an embryo for use in assisted reproduction without the intention of using the material or embryo for his or her own reproductive use is not, by reason only of the donation, a parent of a child born as a result.
(5) A person who was married to or in a conjugal relationship of interdependence of some permanence with a surrogate at the time of the child’s conception is not a parent of the child born as a result of the assisted reproduction.
(6) All distinctions between the status of a child born inside marriage and a child born outside marriage are abolished. 2003 cF-4.5 s7;2010 c16 s1
Presumption of parentage — biological father
8(1) For the purposes of section 7(2)(a), unless the contrary is proven on a balance of probabilities, a male person is presumed to be the biological father of a child and is recognized in law to be a parent of a child in any of the following circumstances:
(a) he was married to the birth mother at the time of the child’s birth;
(b) he was married to the birth mother by a marriage that within 300 days before the birth of the child ended by (i) death, (ii) decree of nullity, or (iii) judgment of divorce;
(c) he married the birth mother after the child’s birth and has acknowledged that he is the father;
(d) he cohabited with the birth mother for at least 12 consecutive months during which time the child was born and he has acknowledged that he is the father;
(e) he cohabited with the birth mother for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child;
(f) he is registered as the parent of the child at the joint request of himself and the birth mother under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta;
(g) he has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose.
(2) Where circumstances exist that give rise to a presumption under subsection (1) that more than one male person might be the father of a child, no presumption as to parentage may be made.
(3) Subsection (1) does not apply in the case of a child born as a result of assisted reproduction. 2003 cF-4.5 s8;2010 c16 s1(8);2010 c16 s1(8)
If, after reviewing these factors, you are still uncertain whether you will be deemed to be a parent - you are welcome to consult one of our family experts for more information.
Jenna Walsh is an Associate Lawyer at Rowanoak Law who practices Family Law.
In Alberta, the Divorce Act of Canada is a Canadian statute which governs divorce, custody, child access, child support and spousal support across all Canada, while the Matrimonial Property Act is an Alberta statute that governs division of land, bank accounts, investments, pensions, RIFs, RRSPs, RESPs and other assets, generally for Alberta residents, either upon the granting of a divorce judgment or at a separate time which may be coupled with divorce proceedings.
Often separation of the parties as man and wife occurs a significant time before either an agreement is signed between the parties dividing matrimonial assets, or a Trial is held to order division of property. Although the law has usually held that division of property should be decided at Trial, in recent times there has been a debate in legal circles as to whether some property acquired by either the husband or the wife after separation of the parties, but before a Divorce Judgment is granted, should be included in the division of property.
In the case of Rands v Rands  A.J. No. 1197 the court divided pension interests at the date of separation, not at the date of Trial. The rationale of the court was that pension assets differed in situations of long separations prior to Trial because ongoing contributions by one spouse during employment may continue during the separation while the other spouse makes no contributions. This means that any increase in value of the pension after separation is attributable only to the continuing contributions of the employed spouse.
The same judge in Zama v. Vanderzwaag [2016) A.J. No. 1367 divided RRSPs, a TFSA, and shares at the date of separation, ruling that the increased value of those assets after separation should attribute only to the husband.
However, a subsequent case Smith v. Smith  A.J. No.1410, while referring to the Rands decision, declined to divide as of separation because there was not a significant difference in the value of pensions between the date of separation and the date of Trial.
At this time the law remains that in general assets will be divided at the time of Trial. This means that spouses who acquire assets after separation, but before Trial, may be accountable for division of those assets. This is additional to assets acquired during their marriage and while they lived together."
Jim is a Partner with Rowanoak Law Office LLP.
If you are travelling internationally with a child without both parents, and you don’t have a Court Order providing that you are allowed to travel without the consent of the other parent, it is always advised that you travel with a Travel Consent Letter.
This letter is a document that can be provided to customs officials to advise them that you have consent to travel with the child or children. The Canadian Government has a great form on their website and it can be found here:
Please note that we always suggest getting the travel consent form notarized by a Notary Public to ensure that you will be able to travel. If you need a Notary Public please contact us and we would be pleased to help.
Generally, most parties get travel consent orders signed without issue, however, if your spouse does not consent to the travel letter, a court application will be necessary to ensure you are able to travel. Best practice is to ask for the consent letter early to ensure there is time to bring an application if required.
Allison Ross is an Associate Lawyer and Notary Public with Rowanoak Law Office LLP
In most cases, parties’ request costs be ordered by a Judge against the other party if the other party is uncooperative or unsuccessful. The following is a recent Alberta Court of Queen’s Bench case from 2018 where the factors to be considered by the Court in relation to costs are examined: https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb247/2018abqb247.html?autocompleteStr=2018ABQB%20247&autocompletePos=1
Jenna is an Associate with Rowanoak Law Office LLP.
Many people have (or should have) a Will dealing with their property and affairs after they pass away, but people may not give enough consideration to how their affairs would be managed if they were unable to manage their affairs while they are alive.
Unforeseen accidents and medical conditions can leave a person incapable of managing their own affairs. Alzheimer’s, comas, and other unfortunate events can befall anyone.
If you become unable to manage your own affairs, you will need someone to do it for you.
To ensure you can control who you want to manage your affairs and what they can do, it is best to have the proper documents put in place before the unfortunate happens.
These documents are typically known as an Enduring Power of Attorney and a Personal Directive.
An Enduring Power of Attorney allows you to appoint someone as your “Attorney” to handle your financial affairs should you become incapacitated.
While an Enduring Power of Attorney deals with making decisions for you of a financial nature, a Personal Directive allows you to appoint an “Agent” to make personal decisions for you of a non-financial nature such as where you live or healthcare.
You can determine who you wish to make a determination that you are incapable or unable to make decisions, however, typically this is psychologist or medical professional, or two.
While no one likes to think something unfortunate can happen to them, having these documents in place can make matters simpler if something does happen, and allow you to choose who you wish to manage your affairs as opposed to someone applying to the Courts, which may result in someone you do not wish ending up managing your affairs, in addition to the process becoming more complex.
Chris is an Associate with Rowanoak Law Office.
A very recent decision by the Supreme Court of Canada is important for those who run hotels, motels, or perhaps even paid storage facilities and insurance companies for those businesses.
A Quebec hotel operator owned a "park and fly" hotel where invited guests could stay over in its rooms, then leave their vehicles in its parking lot while travelling and use its shuttle service to get to the airport. In winter months those guests who left their vehicles in the hotel's parking lot were required to hand over keys to those vehicles at the front desk to enable vehicles to be moved for snow removal purposes.
During the winters of 2005 and 2006 two guests had their cars stolen from that parking lot, and their owners were compensated by their respective auto insurers. However, after paying the car owners the insurers sued the hotel owners as well as the hotel owner's insurance company to recover their payouts on the basis that the required key arrangement made the hotel owners liable for the theft of each car.
At Trial, the judge held that the hotel operator's liability insurance policy, which excluded coverage for property damage (loss of use or physical injury) to "personal property in the care, custody or control of the insured" did not apply in the case of these 2 cars, despite the fact that the keys to guests' cars were required to be left at the hotel's front desk.
Although different levels of Court in Quebec did overturn or vary the Trial Judge's decision, final appeal to the Supreme Court decided that the Trial Judge did not make any critical error reviewable on appeal, that the exclusion clause for the hotel did not apply because the vehicles had not been placed in the "custody and control" of the hotel to the degree necessary to make it liable for damages resulting from the thefts.
3091-5177 Quebec Inc. v Lombard General Insurance Co of Canada, 2018 SCC 43 (37421)(27422)
Jim is a Partner with Rowanoak Law Office LLP.
It’s getting close to that time of year again, the holidays and winter break. Many people don’t think about the Holiday season in October, but it’s on most family law lawyers minds as it can be one of our busiest times of year. The Holidays happen each year but each year there are last minute applications to get some time with the children over Christmas.
Here are a few tips regarding the Holiday season and your family law matter:
Write something about yourself. No need to be fancy, just an overview.
Without Prejudice” settlement communications can be relied to enforce settlement as set out in leading Alberta Court of Appeal case, Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10:
Exceptions to Settlement Privilege
 As with most forms of privilege, there are exceptions to the rule. Some are universally accepted, while others are more controversial. Among the generally recognized exceptions are the following:
(a) to prevent double recovery: Dos Santos (Committee of) v Sun Life Assurance Co of Canada, 2005 BCCA 4 (CanLII), 207 BCAC 54;
(b) where the communications are unlawful, containing for example, threats or fraud;
(c) to prove that a settlement (an accord and satisfaction) was reached, or to determine the exact terms of the settlement: Comrie v Comrie,2001 SKCA 33 (CanLII), 203 Sask R 164;
(d) it is possible that the settlement posture of the parties can be relevant to costs. That is clearly the case with offers made under the Rules of Court, but also with respect to informal offers: Mahe v Boulianne, 2010 ABCA 74 (CanLII) at paras 8 ‑ 10, 21 Alta LR (5th) 277; Calderbank v Calderbank,  3 All ER 333 (CA).
Jenna is an Associate with Rowanoak Law Office LLP.
"In the recent Supreme Court of Canada case Sobeys West Inc. v. Alberta College of Pharmacists the propriety of Sobeys, awarding Air Miles rewards on purchases of pharmaceutical products was challenged by the Alberta College of Pharmacists, a professional governing body which regulates conduct of pharmacists and pharmacies.
The Alberta Court of Queen's Bench had allowed an application by Sobeys, which also owns and operates Safeway, to apply the reward program to the purchase of pharmacy products.
The College successfully appealed to the Alberta Court of Appeal to on the basis that amendments to the Code of Ethics and Standards of Practice for Pharmacists that prohibited inducements which were conditional on a patient obtaining a drug or professional service from a pharmacy.
That Court of Appeal decision overturned the lower Court of Queen's Bench decision upon judicial review which held that the College's amendments were ultra vires the College and therefore it could not deny rewards to a purchaser of pharmaceutical products under Sobeys' loyalty program.
The Court of Appeal determined that the judge hearing the review had erred in using the wrong standard in finding the amendments to be ultra vires and therefore used the standard of "reasonableness" to substitute its own findings and prohibit Sobeys applying Air Miles to purchases of pharmaceutical drugs and services.
Sobeys application to appeal to the Supreme Court of Canada was dismissed."
(Thanks to the Supreme Advocacy and Eugene Meehan, Q.C.)
Jim is a Partner with Rowanoak Law Office LLP
Tis better to have loved and lost than never to have loved at all. – Alfred, Lord Tennyson
While Tennyson may not have pictured his words being applicable to the problems and costs that can arise in divorce proceedings, these problems and costs may cause some to think that it would have been better to never have loved at all.
Fortunately, a prenuptial agreement may be able to help with some of the costs and problems that can otherwise arise after marriage.
A prenuptial agreement is essentially a contract between two people who plan to marry. This agreement will generally contain terms that will help determine property and debt during marriage or in the case of separation or divorce. There can also be other terms depending on each particular circumstances.
If there is no enforceable agreement and the parties cannot amicably resolve matters, the Court will be required to resolve matters for the parties. This can become more expensive than an initial outlay for an agreement, or even the cost of changing the agreement as matters change over time.
There are also postnuptial agreements for people who have already been married as well as cohabitation agreements for non-married couples.
There are certain requirements required for prenuptial agreements, as well as other agreements, including matters such as each party have independent legal advice, and it is best to talk to a family law lawyer about specific requirements, your circumstances, and whether it is best for you to have a prenuptial or other agreement.
By doing so, and if problems arise, you may be in a position of having loved and lost, but those losses including future losses that can arise from a contested matter, may be able to be mitigated.
Chris is an Associate with Rowanoak Law Office LLP.