Moving is an inevitable reality that most everyone will have to contend with at some point. There are a lot of things you need to consider when you move, but a move is further complicated when are moving with children – especially if you are separated or divorced.
If you want to move with your children and this will impact the other parent’s rights with respect to the child(ren), there is a strong likelihood that the other parent will have something to say about it. Conversely, if your former partner intends to move away with your mutual child(ren), you will likely want to have a say in what happens.
While this type of issue may be resolved between the parents, seeing as moving does not leave much middle ground (you either move, or you do not), arriving at an agreement may be difficult. In the event that an agreement is not possible, the recourse for a moving parent is a “mobility” application in Court. Importantly, no move should be undertaken without consent of the non-moving parent or a Court Order permitting it.
As with most issues in parenting, the best interests of the child(ren) are of paramount importance, and any move should contemplate how the best interests of the children will be impacted. That being said, it is hardly a straight forward analysis to determine whether a move should be permitted. Indeed it can be difficult to determine what is ultimately in the best interests of the child(ren).
The leading Supreme Court case on the subject of mobility, Gordon v Goertz, lays out various factors that should be considered in any mobility application. Some of the relevant directions the Supreme Court gave in this case were that:
Dealing with relocation with the children and specifically mobility applications are very fact specific endeavors. If you have any questions with respect to potential moves with children, please contact one of our family law lawyers.
Write something about yourself. No need to be fancy, just an overview.
A recent Alberta Provincial Court decision by Judge Skinner provided some guidelines for when a trespasser stays on private property, or becomes a trespasser by refusing to leave.
In this Red Deer case a charge of assault was dismissed where a male entered onto a business premises with another woman, stayed to talk to the business owner by permission, then was asked to leave by the abrupt words and actions of the owner. While the situation settled down and further discussion took place without hostility, including talks with that same male, there was a brief and minor physical interaction between the owner and him where physical contact was instigated by the owner, but some response was made by that male.
Judge Skinner found the male not guilty of the alleged assault and spoke to the issue of someone being on private property after being asked to leave. He stated that the person who is a trespasser, or whose permission to remain on property has been revoked and thereby becomes a trespasser, must have sufficient warning to vacate that property, and also sufficient time to leave that same property.
In finding that those criteria had not been met in this case, he dismissed the charge.
This finding, and the reasoning of the Judge, is notable in cases where farmers or acreage owners find unwanted trespassers on their land and want them to leave. Adequate notice must first be given, then adequate time for the trespasser to leave as requested. If the trespasser does not so act, they may be subject to criminal charges. Somewhat the same criteria should apply in cases where an assault is alleged, but inadequate opportunity is given for that person to correct the alleged infraction.
This case is notable in view of the spate of rural crimes, and the desire for property owners to protect themselves and their property. Judge Skinner's Decision provides some guidance as to how steps should be taken to get trespassers off that property.
Jim MacSween is a Partner with Rowanoak Law Office LLP.
The idea of court is stressful, especially when all you’ve seen are legal movies and T.V. shows, but sometimes court is hard to avoid. Here are somethings to remember:
Allison Ross is an Associate with Rowanoak Law Office LLP who also acts as Duty counsel
Who do you know who says they should have a Will but don’t know where to start? People share “horror” stories people they know who had to deal with a family member or a friend who died without a Will and the problems that arose.
The best starting point is to get advice from a lawyer who works with you to ensure the necessities for a valid and enforceable Will are met. The information below is not intended to replace the advice you get from a lawyer and provides areas you need to be aware of when seeking advice.
The following are some major categories to be considered in making your Will:
Specific Requirements in making the Will document itself. The Alberta Wills and Succession Act provides specifics on witnesses, signing and format of the document. For example, there must two witnesses in the same room who sign at the same time and there are restrictions on who can be a witness. Alterations or marks on a Will can invalidate it. There are exceptions to the specific requirements, one being a holographic Will.
Executor (or executrix in the feminine form) is the person who administers your estate to ensure your wishes set out in your will are carried out. The Executor has the responsibility to:
This is only a short list of duties and responsibilities. You will want to select an Executor who will be able to manage these tasks. It is also advisable to pick an alternate in case your Executor is unable to act.
Gifts, bequests, beneficiaries etc. In a nutshell, who, what and when.
Other considerations to name a few:
Write something about yourself. No need to be fancy, just an overview.
Settlement negotiations entail correspondence between the parties, or their counsel, that begins with discussing each issue and leads to various proposals or offers, and counter-offers, from each party with a view towards resolving matters by way of a settlement agreement.
The goal is for each party to propose an outcome or solution that both parties could reasonably live with and then put pen to paper to consolidate their agreement. The agreement would then usually take the form of the often referred to Separation Agreement, or a Consent Order to be filed in court if a court file is already open for the matter. A key note is that settlement often represents a compromise, so each party usually has to demonstrate a degree of flexibility in order to arrive at a resolution that both parties can walk away with.
The idea here is that it is better to have control over the outcome instead of handing your personal family matter to a Judge to decide, and moreover, the huge cost savings from avoiding formal litigation typically makes up for any financial compromise that may have resulted in (for example – if we were dealing with a property matter or arrears) a lesser payout than you were originally expecting.
Negotiations can also be conducted through the collaborative family law process. If you would like more information on this process, please visit: https://collaborativepractice.ca/
Jenna Walsh is an Associate Lawyer at Rowanoak Law Office LLP.
If you are looking for some information relating to the justice system, you may be able to find some information on the Alberta Courts website at https://albertacourts.ca/ which provides some useful information relating to all three levels of Court and is a good way to learn more.
In particular, the website is a good place to find the forms you may need, court locations and contact information, important procedural information and the latest announcements. It is a good first step in getting information with respect to your matter.
Chris is an Associate Lawyer with Rowanoak Law Office LLP.
As many Albertan’s are aware, the legalization of cannabis is due to come into effect summer of 2018. The legislative change has raised numerous questions for Albertan’s pertaining to criminality, possession, usage, and the ability to personally cultivate cannabis plants. The blog will provide a broad overview of what changes Albertan’s can come to expect when cannabis becomes legal.
Current Legal Status
As of April 26, 2018, the current laws and criminal sanctions pertaining to cannabis usage and sale are still in force and effect throughout Canada. Thus, cannabis remains a schedule II drug as detailed in the Controlled Drug and Substances Act. Amnesty will not be provided to those who are currently charged under the Canadian Criminal Code or the Controlled Drug and Substances Act. Currently, individuals possessing and selling cannabis for non-medical reasons shall be acting in an illegal manner. The same logic applies to production and distribution unless expressly authorized, production and distribution shall remain illegal until the proposed legislative changes have achieved royal assent.
Proposed Cannabis Legalization
Upon the Cannabis Act receiving royal assent and coming into force, cannabis possession, purchase, sale, and cultivation will become legal within certain permitted parameters.
Any adult 18 years or older shall legally be able to possess up to 30 grams of legally purchased dried cannabis or the equivalent in non-dried form. The same adult shall if inclined purchase cannabis or cannabis products from a provincially licensed retailer. Cultivation of cannabis plants will become legal, as a residence will be allowed to grow up to four cannabis plants. A reminder that cultivation is per residence, not per individual residing in the residence.
Public consumption of cannabis will be allowable with certain restrictions. Individuals are allowed to consume cannabis in their residence along with certain public spaces, where smoking tobacco is allowed. Where you cannot legally smoke cannabis will include any hospital, school, or childcare property. Prescribed distances will be implemented where cannabis consumption will not be allowable such as around playgrounds, sports field, skateboard park, zoo, or outdoor theatre. Unlike tobacco, a full-ban will be implemented on smoking cannabis in any vehicle. Furthermore, municipalities may implement restrictions that are deemed appropriate. The purported purpose of the legislative restrictions is to limit second-hand exposure and the protection of children.
Any individual found to be driving under the influence of cannabis will be charged with a criminal offence and faces possible license suspension, fines, or even a period of incarceration. Being under the influence of cannabis will negatively affect motor-skills, placing all motorists at risk. Plan ahead and either designate an individual to remain sober, take a taxi, or public transportation.
Soon, Albertan’s will be legally allowed to purchase, possess, consume, and cultivate cannabis. If individuals, ensure they adhere to all restrictions and legislative guidelines no issues will arise. Failing to adhere to such rules, will still expose individuals to criminal sanctions. Ignorance of the law is not a valid defence. If an individual is unsure as to the legality of their action, it is incumbent upon them to undertake the necessary steps to discover the pertinent information.
Craig Donkin is a Student-at-Law with Rowanoak Law Office LLP.
In family law, a lot rides on disclosure of financial information. To properly determine child support, spousal support, and division of matrimonial property it is imperative that accurate information about income, assets, and liabilities of both parties are shared. Without this information being shared, it is very difficult to make any headway in resolving matters.
When complete and accurate disclosure is not provided, the matter can get bogged down. Costs go up unnecessarily, emotions are enflamed, and resolution becomes nearly impossible.
DUTY TO DISCLOSE
As if there was not already reason enough to disclose, there is a statutory obligation to provide disclosure.
For instance, sections 21-25 of the Federal Child Support Guidelines provide statutory authority with respect to the obligation to provide disclosure to determine child support.
Section 21 indicates that the following disclosure is required to determine child support:
(a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years;
(b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years;
(c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration;
(d) where the spouse is self-employed, for the three most recent taxation years
(i) the financial statements of the spouse’s business or professional practice, other than a partnership, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length;
(e) where the spouse is a partner in a partnership, confirmation of the spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;
(f) where the spouse controls a corporation, for its three most recent taxation years
(i) the financial statements of the corporation and its subsidiaries, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;
(g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and
(h) in addition to any income information that must be included under paragraphs (c) to (g), where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.
Similar disclosure requirements are also echoed in the Alberta Family Law Act, and section 31 of the Alberta Matrimonial Property Act requires each party to a matrimonial dispute to provide the other party with a sworn statement showing their income, assets and liabilities.
NOTICE TO DISCLOSE/APPLICATION
In an ideal world everyone would voluntarily exchange financial disclosure. However, this not always the case. When disclosure is not voluntarily provided, there is recourse in filing a Notice to Disclose/Application with the Court. This is an application wherein the responding party is required to provide specified financial disclosure within 1 month. The required disclosure is a comprehensive list of statements showing components of income, assets and liabilities.
IF ADDITIONAL INFORMATION IS REQUIRED
Additional disclosure information, beyond what is covered by the Notice to Disclose, may be sought by application to the Court or via Questioning. Questioning is a formal process investigation wherein a party may be questioned under oath. During this process, the party being questioned may be asked to provide undertakings. This means that they may be asked to provide additional or clarifying documentation.
The guiding principal in what may be disclosed is whether the material is relevant and material. The Court will assess any request for disclosure on this basis.
Michael Dugas is an associate with Rowanoak Law Office who practices Family Law.
The Supreme Court of Canada was recently asked to deal with a criminal law situation involving smartphone security.
An Ontario man who was charged with second-degree murder had his smartphone seized by police. When they attempted
to execute a search warrant to retrieve data on the phone, it was found to be locked using a digital swipe pattern.
When the police applied without notice to the accused for a search warrant, that application was accompanied by another
application to compel the accused to produce the swipe pattern.
The judge hearing the initial applications granted the search warrant but denied granting the assistance order. He left opportunity for the Crown to re-apply for the assistance order, but upon notice being given to the accused.
The Crown re-applied upon notice to the accused.
The motion judge dismissed the application for an assistance order, and the Supreme Court of Canada dismissed that Crown appeal for want of jurisdiction.
Since law dealing with smartphones and other electronic devices are still new and developing, this is a case of interest to those who work frequently with electronics.
Jim is a Partner at Rowanoak Law Office.
Most people assume that you have two options when going through a legal process. The first is that you hire a lawyer for everything to do with the matter. That means having to provide a substantial retainer to a lawyer and continually topping up your retainer as your file progresses. The second option is to not get a lawyer, do it all alone, or with some community supports like Family Justice Services or free legal clinics.
There is another option. The Limited Retainer.
What is a Limited Retainer?
A limited retainer is hiring a lawyer for only one portion of the work on a legal file. The lawyer still charges their regular rate, however, the retainer is lower than the traditional model. The lawyer and you will sign a Limited Retainer Agreement which clearly outlines the scope of the retainer (ie. what they will do for you). The scope can be anything that you need help with in your legal file. It can be as small as filing a document in court for you to having a lawyer attend in court on your behalf for a contested application.
The possibilities are endless. Some examples can include:
The main advantage is cost. You are directly controlling how much you spend with a lawyer. They charge their same rates, but are only doing what was explicitly agreed upon. The lawyer doesn’t have to bring the entire file from beginning to end with each step in between.
Another advantage is time savings. Sometimes hiring a lawyer to do a step in the process, like drafting or filing simple documents or serving documents, may actually drastically cut the time you spend on these procedures and your time on this matter overall. Lawyers do this work every day and therefore know how to do procedural steps and can get them done quickly. In addition, retaining a lawyer on a limited scope to review the file and advise of a strategy may also help you focus your time on what needs to be done and the legal tests to be met.
Finally, limited retainers allow you to be able to appear in court, in questionings, and in other meetings more effectively and efficiently. The limited retainer lawyer can help you with documents, help you prepare for court and even appear in court for you. They can take the guess-work out of the court process or other process that are more complex for a self-represented party to navigate.
How do you hire a lawyer on a limited retainer?
Most of our lawyers will take matters on a limited retainer basis. You will discuss the matter in an initial consultation either on the phone or in person with the lawyer so that they can personalize the limited scope retainer for you.
After the scope is finalized, you will be asked to pay the retainer agreed upon and sign the Limited Retainer Agreement.
Contact us if you are interested in a Limited Retainer.
Allison Ross is an Associate with Rowanoak Law Office LLP and an advocate for limited retainers.