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10 Things to Help Prepare you for a Questioning

8/19/2019

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  1. Prepare yourself.  Everything with respect to the matter and the claim is relevant including specific elements of the issue.  Your lawyer will have a meeting with you to prepare you for the questioning including bringing up some areas of questions that may be asked in the questioning. 
  2. Look over your document and pleadings that you have provided or documents that have been prepared.
  3. Keep calm.  Take a few breaths if you feel you are getting angry or upset.
  4. If you normally drink coffee in the morning, have a coffee.  Make sure to have a glass of water in front of you (your lawyer will supply same).  Make sure you are at ease with your surroundings and that you have anything you may need to keep you focused on the questioning.
  5. If you need a break, ask for one.  Whether you are upset or just have to go to the bathroom, you will not be focused on what is being asked.
  6. If you need clarification of a question, ask.  Don’t be afraid to ask a number of times if you don’t know what they are getting at.  It’s our job as lawyers to make sure our questions are clear enough.  Your lawyer may jump in to either help with the question or further ask for clarification.
  7. Take your time with the questions.  If you need a minute to put together your thoughts, don’t be afraid.  Your lawyer will make sure all the questions are relevant.
  8. Don’t respond with any more than necessary for a question.  If you can adequately sum up the answer with one word (such as Yes or No…) do it.  However, if you need to explain your answer keep things short and sweet. 
  9. If you are asked to undertake to provide a document or any other “undertaking”, do not answer right away.  Let your lawyer field the question.  The lawyer will make sure you can provide the undertaking and whether it is relevant.
  10. Tell the truth.

Allison Ross

Allison is a Associate at Rowanoak Law LLP.​

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5 things to help make Probating your Estate easier on your Executor and on your Family

5/3/2019

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As the old adage goes, the only constants in this life are death and taxes, but normally people don’t want to think about death and what will happen when they pass away.  They would rather, rightfully so, focus on the time spent living instead of what happens when they die.  However, a few moments spent on the following may make probating your Estate easier for your Executor, your family and all interested persons involved.
  1. Have a Will drafted: The first and foremost piece of advice is to have a Will drafted.  If a Will is drafted it will outline your Executors, your Beneficiaries and your Guardians for any children under 18 in a cohesive document.  Not only does it make it easier to begin probate documents, you may be able to use the Will alone with banks or government agencies, depending on their policies and procedures, thus expediting the process of finalizing the Estate.
  2. Discuss important points of your Will with your lawyer:
    1. Executors – One thing to consider is the practicality of making someone or a group of people your Executor.  Some considerations I would suggest to discuss are age of the Executor, location of the Executor and whether it is wise to have more than one Executor.If the executor is older, they may be unable to act due to having predeceased you or losing capacity, or not being physically able to get around to do the work required.  If your executor is outside the province, it may be more difficult for them to manage the estate from afar.  Finally, if you have more than one Executor, organizing the executors may be a task in itself and may slow down the estate.
    2. Beneficiaries – Have a frank discussion with your lawyer about beneficiaries., who is in your family, if they are under 18 or a dependent adult and any reasoning for giving the gifts in the Will.  The lawyer will also make their own notes to go on the file just in case there is confusion with a beneficiary later
    3. Guardians of any children under 18 – Discuss who will look after your children if you pass away prior to them attaining 18 years old.
  3. Tell your Executors and Guardians of their role in the Will: Advise any Executors, Guardians or other Trustees that they have a place in your Will. This is not the time to surprise someone with the honour of being your Executor. If these people know their duties prior to your death they will be able to start the process of arranging things immediately following your death. For example, the executor can begin funeral preparations and the guardians can arrange for your children to stay with them. It is also important to provide your wishes to your Executor about anything not covered in the Will, for example, funeral services, online social media accounts etc.
  4. Tell your Executor, Guardians and Family members where your Will is located: You don’t have to provide copies to your family or your Executor, but you should advise anyone with a role in your Will (including alternate Executors, Trustees and Guardians) as to the location of your most up-to-date version of your will. This will avoid having to search multiple locations. Our office offers storage of original Wills in a fire-proof safe for our Wills clients to make locating the Will of a loved one easier.
  5. Keep an up-to-date listing of your Assets, Liabilities, Insurance and online passwords and keep with your Will or in a safe location: Some executors will know about your financial affairs and some will not .If you have an ongoing detailed list, it will assist the Executor in ensuring everything has been dealt with in your estate. More and more people also have an online presence that needs to be managed if something were to happen, and providing up-do-date online passwords of social media and other online accounts may assist the Executor in dealing with same.
In conclusion, ensuring that you are in communication with your lawyers, executors, guardians and family will assist the probate application and finalizing your estate.
 

Allison Ross

Allison is an Associate with Rowanoak.

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Division of Matrimonial Property

4/11/2019

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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:
 https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb536/2018abqb536.html?resultIndex=1

.

Jenna C. Layton

Jenna is an Associate with Rowanoak Law Office.

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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???

3/12/2019

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1. Evaluate your end-goal:
 
  • Are you seeking a damage award for a loss caused to you?
  • Does your matter involve child custody?
  • Are you in need of a Separation Agreement to finalize your separation on a legal basis by finalizing your separation date and any property division matters etc.?
 
2. Evaluate the numeric value or importance of addressing the issue. If it is something you can’t turn you back on, either:
 
  • Call a legal office to request an “initial consultation” to explore your options with a qualified lawyer by obtaining their opinion on the matter.
  • If you have a court date, “Duty Counsel” will be present and you can ask to speak with them prior to appearing in Chambers or docket court and to assist you in speaking in court. Duty counsel may help you determine if it is advisable to obtain a lawyer to represent you privately (at your expense) or through Legal Aid (subsidized by the government) and your next steps.  They may also be able to clarify what will happen or what did happen during the court appearance on that day and may provide some summary advise on your matter.
 
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:
 
  • Depending on the complexity of your matter, you may hire a junior lawyer at a much lower rate (around $175) than a senior lawyer (around $400).
  •  Typically, junior lawyer’s have access to the knowledge of senior lawyers and they also have an ethical obligation not to take a case that is beyond their scope of qualification. When you call a law firm for an initial consult, you are free to check each lawyer’s rate and/or ask for a junior.
 
4. You may hire a lawyer on a “limited retainer basis”:
 
  • To assist you in pursuing your own matter in court as a self-represented litigant, by helping you prepare documents, or only attending certain court appearances. Not all lawyers offer this, but many do.
 
5. You may also consider that you are not obligated to continue on with a lawyer after an initial consult:
 
  • You may hire a lawyer to review facts and documents relevant to your case and compare them to the law governing your particular set of circumstances, in order to obtain a preliminary assessment of the likelihood of the success of your case and cost-benefit analysis of what it may cost you to pursue it versus what you may gain.
  • You may hire a lawyer to negotiate with the other side on your behalf to see if a resolution can be reached without court intervention. If that lawyer is unsuccessful, you may choose not to continue pursuing the matter, or to take it on yourself if you are unable to afford formal litigation.
 
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.


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How to Prepare for Court

1/24/2019

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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?

  1. Judge Judy
  2. Judge Joe Brown
  3. Suits
     
    When I was in law school my late father told me that I should watch the Young & the Restless because “I’d learn a lot about the law and court”.  I gently suggested that I would prefer to stay in law school.
     
    So the answer is d) none. 
     
    Many more people are choosing to represent themselves in court (referred to as self represented litigants or SRL’s). There are various reasons why people choose to be a SRL but the best answer is to be prepared.  This is using a little humor to impress upon people who are attending court to take their attendance seriously.
     
    The following are some suggestions if you choose to represent yourself.

Do’s

  • Consult a professional:
    • Lawyer referral services can get you a half hour free legal advice.  This is good if you have it at one quick question and or just want to clarify but after your 1/2 hour is over and it’s over
    • Look for a lawyer who offers limited retainer services.Limited retainer services can range from helping you feel of documents helping you prepare for court or just giving you some general advice or help you through any of the car processes
    • When at the courthouse, look for Duty Counsel, if available.
    • Check out the Alberta courts website for programs and services available in your area.  Some areas have free legal clinics
  • Attend as an observer and watch how court.  Many court hearings are open to the public to observe but make sure that you’re aware whether public is allowed in the hearing.  Observe proper behavior in the court room.
  • AT ALL TIMES be respectful and attentive to the presiding judge and other court officials
     
    Don’ts

  • Don’t watch your favorite TV show and model yourself after your favourite character

  • Don’t get your advice from your friends or neighbours. Everyone has their own story to tell and everybody’s situation and experiences are very different – and not always reliable.

  • Don’t rely on what you read or printed off from the internet.  Use the Internet wisely; use it to find some of the resources mentioned above and try not to Google what do I do in court

Kelly R. Stewart

Kelly is a Partner with Rowanoak Law Office LLP

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Separation and Estate Matters

1/22/2019

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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.

Jenna C. Layton

Write something about yourself. No need to be fancy, just an overview.

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New Rules Coming for Unmarried Couples

1/22/2019

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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 Dick

Chris is an Associate with Rowanoak Law Office LLP

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What is the Central Alberta Community Legal Clinic?

1/2/2019

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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:
  • Family issues such as separation/divorce, common-law relationships, custody and access, and child support
  • Criminal issues such as domestic and common assault, theft, impaired driving, drugs charges
    (Please note: You must provide your Disclosure to our office before an appointment will be booked)
  • Civil issues such as debt, small claims, landlord/tenant, traffic/bylaw
  • Guardianship/Trusteeship
  • Immigration Law (Limited)
  • Wills, Power of Attorney and Personal Directives (Strict financial guidelines apply)
Clinics are held on Tuesday and Wednesday evenings and the last Monday evening of each month from 5:00 pm to 7:00 pm. Some limited daytime appointments are also available. Service is available in Red Deer, Lacombe, Ponoka, Rimbey, Stettler, Olds and Rocky Mountain House.
Preparing for Clinic Appointments:
  • Appointments are 30 minutes long, please arrive at least 15 minutes early for your appointment
  • Organize and bring any important papers, including court documents, to your appointment
  • Clients are asked to make child care arrangements
  • Children are not allowed into the legal consultations, and there is no child minding on site
  • Put your cell phone on silent mode
  • Clients will need to bring their own interpreter if required
Contact information
Phone: 403-314-9129
Toll-Free: 1-877-314-9129
Fax: 403-314-9194

info@communitylegalclinic.net

*All information is taken from - http://www.communitylegalclinic.net

Craig K. Donkin

Write something about yourself. No need to be fancy, just an overview.

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Parentage

12/6/2018

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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

Jenna Walsh is an Associate Lawyer at Rowanoak Law who practices Family Law.

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Matrimonial Property: Date for Valuation

12/6/2018

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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 [2011] 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 [2015] 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 MacSween

Jim is a Partner with Rowanoak Law Office LLP.

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