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Frequently Asked Questions
GENERAL QUESTIONS
Q: What can I expect to pay a lawyer to deal with my matter?
A: Like so many things in law, the short answer is “It Depends”. In general a matter could cost as little as a few hundred dollars or could cost tens of thousands of dollars.
It depends on the complexity of your matter, the urgency of your matter, your expectations, the opposing party’s expectations, the level of experience of the lawyer, the steps that have to be taken, the steps that have been taken… as you can see it is difficult to give a good approximation. We will do our best at your first appointment to give a general guide of what you can expect to pay once we review your matter. Contact us to set up an appointment.
Q: I have to go to court. What can I expect?
It really depends on the type of court, but in general you will appear before a Justice, Judge or Justice of the Peace depending on what level of court. There will be a Clerk in the courtroom who takes notes, calls the matters, ensures the microphones are on and picking up the sounds and in general ensures the courtroom is ready to hear the matters. If it is a first appearance, there will probably be a list of people in that courtroom. Contact your lawyer if you have any questions about the particulars. Here are some things to know before going to court.
Q: What is duty counsel?
Duty Counsel help people who are unrepresented at their court appearance and can offer limited basic services. Depending on the situation, duty counsel may speak to the court on your behalf. There is no financial eligibility requirement for assistance through Duty Counsel. It is free to all Albertans.
If you are unrepresented for your first court appearance, go directly to the courthouse where the matter is being heard and ask to speak to duty counsel.
Reliance upon duty counsel is not recommended. An issue may arise if the duty counsel Lawyer is conflicted out and cannot speak to you or your matter. Or duty counsel may not even be scheduled or available on the day you are to attend court.
Q: What can I expect to pay a lawyer to deal with my matter?
A: Like so many things in law, the short answer is “It Depends”. In general a matter could cost as little as a few hundred dollars or could cost tens of thousands of dollars.
It depends on the complexity of your matter, the urgency of your matter, your expectations, the opposing party’s expectations, the level of experience of the lawyer, the steps that have to be taken, the steps that have been taken… as you can see it is difficult to give a good approximation. We will do our best at your first appointment to give a general guide of what you can expect to pay once we review your matter. Contact us to set up an appointment.
Q: I have to go to court. What can I expect?
It really depends on the type of court, but in general you will appear before a Justice, Judge or Justice of the Peace depending on what level of court. There will be a Clerk in the courtroom who takes notes, calls the matters, ensures the microphones are on and picking up the sounds and in general ensures the courtroom is ready to hear the matters. If it is a first appearance, there will probably be a list of people in that courtroom. Contact your lawyer if you have any questions about the particulars. Here are some things to know before going to court.
Q: What is duty counsel?
Duty Counsel help people who are unrepresented at their court appearance and can offer limited basic services. Depending on the situation, duty counsel may speak to the court on your behalf. There is no financial eligibility requirement for assistance through Duty Counsel. It is free to all Albertans.
If you are unrepresented for your first court appearance, go directly to the courthouse where the matter is being heard and ask to speak to duty counsel.
Reliance upon duty counsel is not recommended. An issue may arise if the duty counsel Lawyer is conflicted out and cannot speak to you or your matter. Or duty counsel may not even be scheduled or available on the day you are to attend court.
FAMILY LAW QUESTIONS
Q. Why do I have to provide my financial information when going through a divorce/separation?
A: Financial information must be given to the other party during a divorce to figure out things like:
1) Child support;
2) Spousal support; and
3) Matrimonial Property.
Both parties have to know what the other has to make sure they are entering into an agreement that is fair and reasonable to both parties. A lawyer or the Court can’t sign off on an agreement unless they know that both parties have seen each other’s financial information.
Q. Why do I have to provide my financial information when going through a divorce/separation?
A: Financial information must be given to the other party during a divorce to figure out things like:
1) Child support;
2) Spousal support; and
3) Matrimonial Property.
Both parties have to know what the other has to make sure they are entering into an agreement that is fair and reasonable to both parties. A lawyer or the Court can’t sign off on an agreement unless they know that both parties have seen each other’s financial information.
Q: When should I figure out the children's Christmas or other holiday schedule with my ex?
A: January (only half joking). Do not wait until December or even November to discuss with your ex-partner what the plans are for Christmas/Holidays. If it isn’t already mapped out in an Order or in an Agreement, try to have the conversation over the summer. If you can’t agree then you'll have plenty of time to either refer to mediation, negotiations, arbitration or even a court application to iron out who gets the children over Christmas/Holidays.
A: January (only half joking). Do not wait until December or even November to discuss with your ex-partner what the plans are for Christmas/Holidays. If it isn’t already mapped out in an Order or in an Agreement, try to have the conversation over the summer. If you can’t agree then you'll have plenty of time to either refer to mediation, negotiations, arbitration or even a court application to iron out who gets the children over Christmas/Holidays.
Q: My spouse was not faithful; thus we are divorcing, will I have to pay spousal support?
A: The answer may surprise some, but a partner’s infidelity is not a relevant issue when determining spousal support. The Divorce Act provides at Section 15.2 (5) while granting an order for spousal support “The court shall not take into consideration any misconduct of a spouse in relation to the marriage.” Therefore, if a partner has been unfaithful during the course of the relationship, it would not disentitle them from receiving support.
Q: Am I a Guardian?
A: If you are a biological parent of the child, you are a guardian of the child if;
If you are not a guardian and would like to become one, or if you are unsure contact us for some advice.
Q: I have lost my job, can I change my Child Support Order?
A: Yes, you can make an application in court. The court may consider varying a previous Child Support Order where the payor can establish a "material change in circumstances" since the previous order was made. A loss of a job MAY be a material change in circumstance and depends on the facts. Contact us if you would like more information on changing a child support order.
Q: Is there any resources which may help with parenting, communication, and or children coping with separation or divorce?
A: Separation and divorce often brings increased fear, anxiety, and stress regarding the parenting of a child. Many parents are often unprepared and unsure as to how to proceed with parenting effectively. Fortunately, the Government of Alberta offers several courses, both online and in-person, to help parents in such a situation.
The Parenting After Separation course (PAS), is offered by the Alberta Government free of charge and is designed for parents and guardians who are separating or divorcing. The course can be accessed online or in person at either Calgary or Edmonton. The course is intended to provide preliminary insight into the legal process of separating or divorcing. Where the course truly succeeds is in the education it provides regarding the way your child is likely to behave and the emotions they may express and how you can make positive choices in terms of parenting the child. The course highlights the importance of maintaining a primary focus on your child’s needs, especially when going through such a stressful situation. The course explores topics such as relationship building blocks, coping techniques for children, the legal system, and parenting plans.
The online course can be found here.
Focus on Communication in Separation (FOCIS) is a course intended for parents who are parenting apart. It is a voluntary six-hour in-person communication course. The focus of the course is on establishing positive and effective communication techniques while parenting apart. Improving communication will often reduce tension and anxiety between the parties which is beneficial to everyone involved. Some of the topics covered are the importance of listening, the impact of parental conflict on children, mindsets and perceptions, and understanding conflict. The in-person course is offered in Calgary, Edmonton, Fort McMurray, Grande Prairie, Lethbridge, Medicine Hat, and Red Deer. Information on the course can be found here. To register call 403-343-6400.
Q: What’s the best way to communicate with my ex about the children?
A: It depends on your situation and the level of conflict. If you are both able to talk respectively about the children, any type of communication would be fine. If the matter is more high conflict, and you may need evidence of what has been said, or if you need to refer to what has been discussed using a written form of communication is best. These can include email, text or even a notebook that gets passed back and forth between the parents.
Another option if there is high conflict and the parties should communicate as little as possible, are programs that not only log messages (including when they were sent and first read), but that also allow for a calendar for both parties to put important dates, and allows for a simple method to accept section 7 extra expenses and work with swapping of parenting time. Ask us for more information.
Q: If my ex and I share custody of the child do I still have to pay child support?
A: As with most legal issues, the answer is it depends on the circumstances. If each parent has the care of the child for at least 40% of the time, each parent’s salary will play a role in determining the amount owing under Section 9 of the Alberta Child Support Guidelines. If a determination is made that you shall pay $1500.00 per month in support and your ex shall pay $1000.00 that means you are obligated to pay $500.00 in support. Any questions as to how these figures are determined, please contact the law firm of Rowanoak Law.
Q: As a grandparent am I a legal guardian of my grandchild?
A: If you are not a biological parent of the child, legally you can only be a guardian through a court order or by being named a guardian in a Will. If you are not a guardian and would like to become one, or if you are unsure, please contact the law firm of Rowanoak Law.
Q: Who should I contact if I believe a child is a victim of abuse?
A: Under the Child Youth and Family Enhancement Act, any person who has “reasonable and probable grounds” to believe that a child is being harmed or in danger of being harmed by their parent or guardian has an obligation to report it. If you believe that a child has been abandoned, is being neglected, physically injured, emotionally injured or sexually abused, you are obligated to call. There are two easy ways to report a concern: Call the Child Abuse Hotline, open 24 hours a day, at 1-800-387-5437(KIDS). Call the After-hours office at 1-800-638-0715 (Press 1 for Red Deer).
A: The answer may surprise some, but a partner’s infidelity is not a relevant issue when determining spousal support. The Divorce Act provides at Section 15.2 (5) while granting an order for spousal support “The court shall not take into consideration any misconduct of a spouse in relation to the marriage.” Therefore, if a partner has been unfaithful during the course of the relationship, it would not disentitle them from receiving support.
Q: Am I a Guardian?
A: If you are a biological parent of the child, you are a guardian of the child if;
- A court of competent jurisdiction has ever made an order stating you are a guardian;
- You and the other parent were married when the child was born;
- You married the other parent after the child was born;
- You were married to the other parent before the child was born, but divorced less than 300 days before the child was married;
- You and the other parent lived together for at least 12 consecutive months during which time the child was born;
- You and the other parent were living together in a common-law relationship at the time the child was born; and,
- You and the other parent lived together in a common-law relationship after the child was born;
- You have lived with the child for the first 12 months of their life;
- The child has lived about the same amount of time with you as with the other parent since birth; and,
- There is an agreement in writing with the other parent that established and identifies you as guardian.
If you are not a guardian and would like to become one, or if you are unsure contact us for some advice.
Q: I have lost my job, can I change my Child Support Order?
A: Yes, you can make an application in court. The court may consider varying a previous Child Support Order where the payor can establish a "material change in circumstances" since the previous order was made. A loss of a job MAY be a material change in circumstance and depends on the facts. Contact us if you would like more information on changing a child support order.
Q: Is there any resources which may help with parenting, communication, and or children coping with separation or divorce?
A: Separation and divorce often brings increased fear, anxiety, and stress regarding the parenting of a child. Many parents are often unprepared and unsure as to how to proceed with parenting effectively. Fortunately, the Government of Alberta offers several courses, both online and in-person, to help parents in such a situation.
The Parenting After Separation course (PAS), is offered by the Alberta Government free of charge and is designed for parents and guardians who are separating or divorcing. The course can be accessed online or in person at either Calgary or Edmonton. The course is intended to provide preliminary insight into the legal process of separating or divorcing. Where the course truly succeeds is in the education it provides regarding the way your child is likely to behave and the emotions they may express and how you can make positive choices in terms of parenting the child. The course highlights the importance of maintaining a primary focus on your child’s needs, especially when going through such a stressful situation. The course explores topics such as relationship building blocks, coping techniques for children, the legal system, and parenting plans.
The online course can be found here.
Focus on Communication in Separation (FOCIS) is a course intended for parents who are parenting apart. It is a voluntary six-hour in-person communication course. The focus of the course is on establishing positive and effective communication techniques while parenting apart. Improving communication will often reduce tension and anxiety between the parties which is beneficial to everyone involved. Some of the topics covered are the importance of listening, the impact of parental conflict on children, mindsets and perceptions, and understanding conflict. The in-person course is offered in Calgary, Edmonton, Fort McMurray, Grande Prairie, Lethbridge, Medicine Hat, and Red Deer. Information on the course can be found here. To register call 403-343-6400.
Q: What’s the best way to communicate with my ex about the children?
A: It depends on your situation and the level of conflict. If you are both able to talk respectively about the children, any type of communication would be fine. If the matter is more high conflict, and you may need evidence of what has been said, or if you need to refer to what has been discussed using a written form of communication is best. These can include email, text or even a notebook that gets passed back and forth between the parents.
Another option if there is high conflict and the parties should communicate as little as possible, are programs that not only log messages (including when they were sent and first read), but that also allow for a calendar for both parties to put important dates, and allows for a simple method to accept section 7 extra expenses and work with swapping of parenting time. Ask us for more information.
Q: If my ex and I share custody of the child do I still have to pay child support?
A: As with most legal issues, the answer is it depends on the circumstances. If each parent has the care of the child for at least 40% of the time, each parent’s salary will play a role in determining the amount owing under Section 9 of the Alberta Child Support Guidelines. If a determination is made that you shall pay $1500.00 per month in support and your ex shall pay $1000.00 that means you are obligated to pay $500.00 in support. Any questions as to how these figures are determined, please contact the law firm of Rowanoak Law.
Q: As a grandparent am I a legal guardian of my grandchild?
A: If you are not a biological parent of the child, legally you can only be a guardian through a court order or by being named a guardian in a Will. If you are not a guardian and would like to become one, or if you are unsure, please contact the law firm of Rowanoak Law.
Q: Who should I contact if I believe a child is a victim of abuse?
A: Under the Child Youth and Family Enhancement Act, any person who has “reasonable and probable grounds” to believe that a child is being harmed or in danger of being harmed by their parent or guardian has an obligation to report it. If you believe that a child has been abandoned, is being neglected, physically injured, emotionally injured or sexually abused, you are obligated to call. There are two easy ways to report a concern: Call the Child Abuse Hotline, open 24 hours a day, at 1-800-387-5437(KIDS). Call the After-hours office at 1-800-638-0715 (Press 1 for Red Deer).
CORPORATE LAW QUESTIONS
Q: Why should I use a lawyer to incorporate?
A: Aside from making sure your corporation meets all the requirements under the Business Corporations Act, a lawyer can make sure your corporation is incorporated in a way that not only meets your current needs but any future needs of your corporation. The lawyer can also make sure that the yearly annual returns are filed and any other maintenance of the corporation is done. Incorporating with a lawyer at first can save you time and money later.
Q: What’s a corporate annual return? Is that what I file with the CRA?
A: A corporate annual return is different than the income tax return that your corporation files with the Canada Revenue Agency. A corporate annual return tells Corporate Registries that you are still a corporation and you must pay a fee to remain ‘in good standing’ with Corporate Registries. If you don’t file for a couple years, Corporate Registries can dissolve your corporation because you didn’t file your corporate annual returns.
Q: Why should I use a lawyer to incorporate?
A: Aside from making sure your corporation meets all the requirements under the Business Corporations Act, a lawyer can make sure your corporation is incorporated in a way that not only meets your current needs but any future needs of your corporation. The lawyer can also make sure that the yearly annual returns are filed and any other maintenance of the corporation is done. Incorporating with a lawyer at first can save you time and money later.
Q: What’s a corporate annual return? Is that what I file with the CRA?
A: A corporate annual return is different than the income tax return that your corporation files with the Canada Revenue Agency. A corporate annual return tells Corporate Registries that you are still a corporation and you must pay a fee to remain ‘in good standing’ with Corporate Registries. If you don’t file for a couple years, Corporate Registries can dissolve your corporation because you didn’t file your corporate annual returns.
CRIMINAL LAW QUESTIONS
Q. What should I do if am asked to provide a breath sample after being suspected of impaired driving?
A1: Blow (short answer); and
A2: Refusing to provide a sample that is lawfully demanded, or improperly providing a sample may result in you being charged, however you may wish to ask to speak to a lawyer before providing a sample. It should be noted that a person does not usually have a right to contact a lawyer before providing a sample if the sample asked for is a roadside screening test, however, if a person fails that and is arrested and taken to a police station to provide a more accurate sample, the person usually does have a right to contact a lawyer before providing a sample at the station or on a breathalyzer mobile station as opposed to an Approved Screening Device given roadside, (longer answer).
Q. What should I do if am asked to provide a breath sample after being suspected of impaired driving?
A1: Blow (short answer); and
A2: Refusing to provide a sample that is lawfully demanded, or improperly providing a sample may result in you being charged, however you may wish to ask to speak to a lawyer before providing a sample. It should be noted that a person does not usually have a right to contact a lawyer before providing a sample if the sample asked for is a roadside screening test, however, if a person fails that and is arrested and taken to a police station to provide a more accurate sample, the person usually does have a right to contact a lawyer before providing a sample at the station or on a breathalyzer mobile station as opposed to an Approved Screening Device given roadside, (longer answer).
WILLS, PERSONAL DIRECTIVE, ENDURING POWER OF ATTORNEY AND ESTATES QUESTIONS
Q. I heard that if I don’t have a Will, the government gets it all anyway; is that true?
A: That is not technically correct. A person who dies without a Will it is called “intestate”. Under the Alberta Wills and Succession Act, there is an extensive list of who gets what with intestacy – the list is from spouses to children to other family members and so on. Without a will can have some unintended effects of who gets the estate. After the extensive list is exhausted, the property would be dealt with under the Unclaimed Personal Property and Vested Property Act and could belong to the government. To learn more about the benefit of having a Will read blog or contact one of our lawyers for more information.
Q: What is a holographic Will? Is it valid in Alberta?
A: A holographic Will is one that is written wholly in the testator’s own handwriting and signed by the testator. As long as it meets the requirements in the Alberta Wills and Succession Act, it is valid in Alberta. Any deviation from the Act could result in the Will being invalidated. To ensure your wishes in your Will are followed read Wills 101 or contact one of our lawyers for more information.
Q: I need to make a Will. I contacted a lawyer and the price I was quoted was much higher than buying a Will Kit. What is the difference?
A: You get what you pay for. A Will kit provides blank forms to fill out but it does not provide advice that a lawyer provides to make sure your Will is valid and enforceable. There are specific requirements to executing a Will that, if completed incorrectly, it could make your Will invalid. Lawyers also provide advice on ensuring your estate ends up with the right beneficiary at the right time. To learn more about the benefit of using a lawyer read Wills 101 or contact one of our lawyers for more information.
Q: What is an Enduring Power of Attorney?
A: An Enduring Power of Attorney is a document that you sign to appoint an “Attorney” or an alternate Attorney. Your Attorney then has the legal authority to take care of your financial affairs in the event you lack capacity to make decisions. It is governed by the Powers of Attorney Act.
An Enduring Power of Attorney differs from other general or special Powers of Attorney that you may have signed with a bank, for example. It is “Enduring” in that it remains in force and effect after you have lost capacity. For more information you can contact a lawyer.
Q: What is a Personal Directive?
A: Sometimes referred to as a Living Will or an Advance Directive. In Alberta, this document is called a Personal Directive and is governed by the Personal Directives Act.
Q. I heard that if I don’t have a Will, the government gets it all anyway; is that true?
A: That is not technically correct. A person who dies without a Will it is called “intestate”. Under the Alberta Wills and Succession Act, there is an extensive list of who gets what with intestacy – the list is from spouses to children to other family members and so on. Without a will can have some unintended effects of who gets the estate. After the extensive list is exhausted, the property would be dealt with under the Unclaimed Personal Property and Vested Property Act and could belong to the government. To learn more about the benefit of having a Will read blog or contact one of our lawyers for more information.
Q: What is a holographic Will? Is it valid in Alberta?
A: A holographic Will is one that is written wholly in the testator’s own handwriting and signed by the testator. As long as it meets the requirements in the Alberta Wills and Succession Act, it is valid in Alberta. Any deviation from the Act could result in the Will being invalidated. To ensure your wishes in your Will are followed read Wills 101 or contact one of our lawyers for more information.
Q: I need to make a Will. I contacted a lawyer and the price I was quoted was much higher than buying a Will Kit. What is the difference?
A: You get what you pay for. A Will kit provides blank forms to fill out but it does not provide advice that a lawyer provides to make sure your Will is valid and enforceable. There are specific requirements to executing a Will that, if completed incorrectly, it could make your Will invalid. Lawyers also provide advice on ensuring your estate ends up with the right beneficiary at the right time. To learn more about the benefit of using a lawyer read Wills 101 or contact one of our lawyers for more information.
Q: What is an Enduring Power of Attorney?
A: An Enduring Power of Attorney is a document that you sign to appoint an “Attorney” or an alternate Attorney. Your Attorney then has the legal authority to take care of your financial affairs in the event you lack capacity to make decisions. It is governed by the Powers of Attorney Act.
An Enduring Power of Attorney differs from other general or special Powers of Attorney that you may have signed with a bank, for example. It is “Enduring” in that it remains in force and effect after you have lost capacity. For more information you can contact a lawyer.
Q: What is a Personal Directive?
A: Sometimes referred to as a Living Will or an Advance Directive. In Alberta, this document is called a Personal Directive and is governed by the Personal Directives Act.
CIVIL LITIGATION QUESTIONS
Q: I was awarded a judgment for payment of money, how long do I have to collect?
Per section 11 of the Limitations Act - If, within 10 years after the claim arose, a claimant does not seek a remedial order in respect of a claim based on a judgment or order for the payment of money, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.
A Judgment expires ten years after it is granted. An application may be made to renew a Judgment prior to the expiration of the ten years. You will need to provide notice of the application to the Judgment Debtor.
Q: I was awarded a judgment for payment of money, how long do I have to collect?
Per section 11 of the Limitations Act - If, within 10 years after the claim arose, a claimant does not seek a remedial order in respect of a claim based on a judgment or order for the payment of money, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.
A Judgment expires ten years after it is granted. An application may be made to renew a Judgment prior to the expiration of the ten years. You will need to provide notice of the application to the Judgment Debtor.
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