Dividing marital property can be confusing and convoluted depending on the number of assets at hand, especially if there is a company involved and share proceeds. The following is a recent 2018 case showing how the Court divided property in a complex matter. The case is prefaced by a convenient Table of Contents so that each issue can be reviewed separately by the reader:
Jenna is an Associate with Rowanoak Law Office.
WHAT DO YOU DO IF YOU HAVE A LEGAL PROBLEM, BUT ARE UNCERTAIN IF YOU CAN AFFORD A LAWYER??? WHAT DO YOU DO IF YOU HAVE A L EGAL PROBLEM, BUT ARE UNCERTAIN IF YOU CAN AFFORD A LAWYER???
1. Evaluate your end-goal:
2. Evaluate the numeric value or importance of addressing the issue. If it is something you can’t turn you back on, either:
3. Research and/or contact Alberta Legal Aid to determine if you qualify for a government subsidy. However, consider whether hiring your own private legal counsel is affordable:
4. You may hire a lawyer on a “limited retainer basis”:
5. You may also consider that you are not obligated to continue on with a lawyer after an initial consult:
6. Never forget that quality of life should always be factored into your assessment when deciding whether or not to hire a lawyer to represent you in court:
A lawyer should help make navigating the legal system easier, but it doesn’t necessarily make court less stressful or the outcome more certain. Often times, people underestimate how lengthy the court process is and struggle with the unknown of being at the mercy of the courthouse schedule. Lawyers do not select which Judge they will appear before and cannot determine conclusively when a matter can appear in court, as on certain days/weeks the roster will be full, although exceptions are made for emergencies. Further, once you nail a date down, each Judge has their own style and set of expectations which may result in your matter being delayed in order for more documents to be produced or other steps followed.
7. Consider Arbitration:
To fast-track your case, you can hire a privately paid judge or “Arbitrator”. However, be aware that an Arbitrator’s decision is also binding and more or less permanent, just like a Judge’s decision would be. The benefit of this is having finality to your case much more quickly than the public legal system can provide (the courthouses are backed up because they are short on Judges), which is generally much more cost efficient. Commonly, parties will equally share in the costs of Arbitration. However, the other side is not obligated to agree to this process, or pay for half of it. That said, if they will agree to the process, in some cases it is still worth it to pay the full costs up front and then ask for a cost award against the other side from the Arbitrator. A cost award won’t generally be granted however unless you are highly successful. If success is divided, costs are not generally awarded. This is also the way costs work in court.
8. Don’t expect your legal fees to be reimbursed:
Often people hear that a Judge can award “costs” thereby requiring the other side to pay for the legal fees you incurred. However, even if costs are granted in court, they are granted in accordance with a specified tariff system that does not cover the full cost of your legal fees. If you are successful in obtaining a cost award, the tariff system generally only provides for a marginal percentage of your fees to be covered so don’t bank on this for your future.
9. Be aware that you cannot get blood from a stone:
You can pursue someone for financial compensation for a loss, but if they are jobless, imprisoned, their company has collapsed or dissolved, all their savings have been spent, or they are claiming bankruptcy, you may not be able to recover the amount you are seeking - even if a Judge orders it.
That being said, when possible, a court may order periodic payments for a loss, or future payments allowing the payor to collect the money required to pay the funds owed (for example, a lump sum payment due within one year of the judgement). Remember, a Judge may grant an Order that does not include terms upon which payment will be made. It is so important to ask that terms specifying how payment will be made are included in the Order, otherwise you may end up back in court to enforce payment just when you thought everything was solved.
Judges rely heavily on lawyers or self-represented litigants to clarify exactly what relief they are asking for in a court order, even though they may use their discretion to deviate from what is requested. Keep in mind, they are busy making carefully calculated decisions on numerous cases and cannot be expected to craft solutions for issues that are not brought to their attention.
I’m going to court for the first time and wanted to know which is the best TV show I can watch to prepare for court?
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Separation matters relate to estate matters given that, typically, each party will prefer for their former spouse not to have any right to the other’s estate any longer. If that is your wish, it is wise to ensure a term regarding this is specifically set out in your Separation Agreement. Beneficiary designations should also be changed, along with your Will so that everything is congruent unless there is a specific reason for changing one and not the other, which should also be specifically set out so as not to confuse an objective party interpreting the document.
If you do not have a Will, it is also helpful to have one drafted at this point, to clarify what your intentions are moving forward, in the context of operating as a newly single person/parent, or especially if you have re-partnered.
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On January 1, 2020 new legislation will come into effect with changes for unmarried couples.
One change that will come of this are legislated rules for division of property regarding non-married couples, which prior to the change relied on the law of unjust enrichment and trust law to settle disputes.
There will still need to be a proven adult interdependent relationship under the Adult Interdependent Relationships Act.
The law also abolishes the Married Women’s Act as well as deals with child support matters for non-married couples with adult dependent children.
Chris is an Associate with Rowanoak Law Office LLP
The Central Alberta Community Legal Clinic (hereinafter “the Clinic”) is truly a blessing for the community and its members of Central Alberta. By offering the services it does, the Clinic helps to improve access to justice for all in Central Alberta.
the Clinic offers pro bono consultations to help individuals understand their rights, obligations, and pathways in order to resolve their legal issues.
The Clinic is able to address the following areas of the law:
Preparing for Clinic Appointments:
*All information is taken from - http://www.communitylegalclinic.net
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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.