How Will Grandparents’ Time With The Grandchildren Be Affected By Your Divorce?

How Will Grandparents’ Time With The Grandchildren Be Affected By Your Divorce?

ow Will Grandparents’ Time With The Grandchildren Be Affected By Your Divorce?

Divorce will bring many changes into your life and the lives of your children. One of the things affected by a divorce or separation may be the time that your children used to spend with their grandparents or other members of their extended family. These changes can be caused by several factors, including:

  • changes to living arrangements, which may mean that your children are no longer living in close proximity to a grandparent or other close relative
  • parenting schedules, which may leave a parent with less time to spend with their children and scheduling in visits with grandparents may not be an immediate priority
  • damaged relationships between one or both parents and extended family members, which may leave a parent unwilling to arrange visits between the grandparents and the children.

If you are concerned about how the grandparents’ time with the grandchildren will be affected by your divorce, then our team of Edmonton family law lawyers can help.

What is a contact order?

Depending on the circumstances, once the parents and children get over the upheaval of the divorce, visits with grandparents might resume. However, in situations where the relationship between one or both divorced or separated parents and the grandparents has broken down, a contact order may be necessary.

A contact order is an order from the court that designates time in a child’s schedule to spend with a grandparent or other person with whom the child has a significant relationship.

A contact order is not the same as a parenting order because it is not relating to someone in a parental role. A grandparent or other person with a contact order does not automatically get to make day-to-day decisions relating to the child during contact.

Who can apply for a contact order?

A contact order is available under both the federal Divorce Act, which applies only to married couples who are divorcing, and Alberta’s Family Law Act.

An application for a contact order can be initiated by:

  • a parent or guardian of the child (on behalf of the grandparent or other non-parent), or
  • a grandparent or other non-parent with whom the child has a significant relationship.

In order for someone other than a parent or guardian of the child to make an application for a contact order, the person must ask permission from the court. This mechanism is in place to prevent unnecessary litigation.

A grandparent, however, does not require the permission of the court to ask for a contact order if the grandparent’s contact with the child has been disrupted by the separation of the child’s parents or the death of one of the child’s parents.

A court will only grant a contact order to a grandparent against the will of the parents in very specific situations. A grandparent must be able to show the court that the order is in the best interests of the child, which can be difficult to prove.

Both parents and grandparents are often concerned about how a divorce will affect the time they spend with their grandchildren. Allow our team of family law professionals to answer all your questions about how the grandparents’ time with the grandchildren will be affected by your divorce. Contact us today!

Changes to the Divorce Act Shed Light on the Importance of Respecting Cultural and Spiritual Heritages

Changes to the Divorce Act Shed Light on the Importance of Respecting Cultural and Spiritual Heritages

Changes to the Divorce Act Shed Light on the Importance of Respecting Cultural and Spiritual Heritage

Cultural and spiritual heritages have been considered throughout history to be the glue of our country. Culture and spirituality bind our communities and create shared spaces for individuals to feel a sense of belonging and togetherness. The direct impact cultural and spiritual heritages and communities have on a child’s ability to succeed have been widely researched. It has been proven that the more supported and included children feel, the more likely they are to be empowered to succeed. Therefore, it is important to consider your cultural and spiritual heritages' impact on your child when proceeding with your custody legal matters. Our Edmonton divorce lawyers are prepared to assist you with your divorce and joint custody; call us today, 587-410-2500 for a consultation.

Divorce Act Amendment

As of March 1, 2021, the Divorce Act has been amended to focus on the importance of a child’s cultural, linguistic, religious, and spiritual upbringing and heritage. This amendment includes a child’s Indigenous upbringing and heritage. If you are a family involved or included in cultural or spiritual communities and are considering getting a divorce you should reflect on how you will continue to honour your heritage.

The Divorce Act was amended to focus on how cultural and/or religious traditions or communities can pose as a support system for children. The change in the Act allows for shared custody parenting arrangements to be altered to accommodate and reflect cultural aspects of communities and the family's involvement in those communities. For instance, a key factor for the court to determine a family's child custody arrangements may be the ability of a parent to educate their child on their cultural, linguistic, and religious heritage. Another important factor is the parent's ability to foster and encourage a child to develop their own cultural identity and self-esteem. In the case of a family filing for divorce under these pretenses, a court would decide how to weigh each factor, dependent upon the effects of the factor on the child’s well-being.

Indigenous Upbringing and Heritage

The amendment, specifically, mentions Indigenous upbringing and heritage. Indigenous culture and heritage are honoured widely across Canada. It is pertinent for Indigenous children to have the opportunity to learn from their elders and be immersed in their cultural and spiritual heritage. The importance of involvement in the extended family is another consideration when the court is deciding upon parenting arrangements.

Your Spouse Does Not Hold the Same Values and Beliefs, How to Create a Parenting Agreement to Suit this Predicament?

In some cases, one spouse does not hold the same values and beliefs; therefore, it is important to consider the effects that this could have on your child’s cultural or spiritual journeys. It may be a consideration for you and your spouse to plan and schedule the major holidays or observation periods that your religion or culture requires in your family plan. In Alberta, this plan is called a Parenting Agreement, which outlines cultural and spiritual holidays and observation periods, living arrangements, parenting schedules, vacation and travel, health care, and education plans for the child that both spouses will adhere to. This arrangement can also include but is not limited to family pet arrangements, electronic device usage, dietary restrictions, extended family visits, and when to introduce a child to a new partner or potential step sibling. A key component to note in the parenting plan is the level of communication expected between the parties. Specifically, how frequently will you remain in contact, what methods of communication will you use, when is appropriate to contact one another, what information will be communicated between spouses, how to talk to your child and what information will be communicated. The final consideration for communication is what to do in emergency situations. Our Edmonton divorce lawyers can assist you with drafting your Joint Parenting Agreement.

If creating the Parenting Agreement with your spouse is not an option for your family, you have the opportunity to petition the court to create a Parenting Agreement for your situation. The court will develop a parenting plan that suits the best interests of the child.

Contact One of our Edmonton Divorce Lawyers for Legal Assistance Today

Our Edmonton divorce lawyers offer legal services that can prepare you for your divorce and answer your questions regarding parenting arrangements. We are available when you need us to ensure that your family is the top priority. Whether you have begun the divorce proceedings or are deciding on the best approach - Verhaeghe Law Office may be able to help you. If you require services related to divorce law, please contact one of our Edmonton divorce lawyers today by filling out a consultation form or calling us at: (587) 410-2500.

*Disclaimer: Please note that this page is not intended to constitute legal advice. The page provides a general overview of the legal service area. As each legal issue is independent and unique it is important to access qualified legal advice. We recommend that you contact a Verhaeghe divorce or family lawyer for any legal inquiries pertaining to divorce and family laws.

Recently Divorced and Considering Relocating With Your Children? How Mobility Rights In Alberta Will Affect Your Plans

Recently Divorced and Considering Relocating With Your Children? How Mobility Rights In Alberta Will Affect Your Plans

Recently Divorced and Considering Relocating With Your Children? How Mobility Rights In Alberta Will Affect Your Plans

Divorce is a major life change and it can bring with it other major changes, including the need or desire to move to another town, province or country. Relocating with your children can have a big impact on the children’s relationships and their general well-being and you should consider your options carefully before planning a move.

Recent changes to Canada’s Divorce Act include a framework to deal with mobility applications in a way that aims to protect the relationships that children have with all of the important people in their lives.

If you are recently divorced and considering relocating with your children, contact our divorce lawyers to find out how mobility rights in Alberta will affect your plans.

What does it mean to relocate?

There is a difference between changing residence (moving to a different home) and relocating. Relocating is defined in the Divorce Act as a move that would be expected to have a significant impact on the child’s relationship with someone who has:

  • parenting time
  • decision-making responsibility, or
  • an order for contact with the child.

Do you have to give notice to the other parent before you move?

Before you move with your children, you will probably need to advise the other parent of your plans. In most cases, the other parent will have (at least) guardianship rights or decision-making responsibility with respect to the children. This means that you need to make major decisions affecting the children together. If they do not agree with your intended move, then you may need to get a court order.

If you have a written agreement that deals with parenting, or a court order under the Family Law Act (which would be the case if you were never legally married), then your agreement or court order should specify the notice that you are required to give the other parent before you relocate.

If you have an order under the Divorce Act, then there are formal notice and objection requirements that you must follow. Specifically, you must give 60 days’ notice of an intended relocation. If the other parent objects, they must provide formal notice of their objection to the move within 30 days, at which point a judge will make the decision about whether or not the relocation can proceed as planned.

If you move without notifying the other parent (even if you don’t have a parenting agreement or an order in place) you might be accused of abducting the children and a judge might decide that your actions were not in the best interests of the children, which might affect your parenting rights and responsibilities in the future.

How will the court decide if you can move with the children?

The court makes all decisions relating to relocating with children by determining whether the relocation is in the best interests of the children. To determine what is best for the children, the court will look at:

  • the reasons for the relocation
  • how the move will impact the child and the amount of time they spend with each parent and other important individuals, such as grandparents
  • how reasonable the proposed relocation is, taking into account factors such as the cost of travel
  • the wishes of the children (depending on their ages)
  • many other factors.

Pursuant to the new changes to the Divorce Act, a court hearing a mobility application under that Act is not allowed to consider whether you will still move if the court determines that the children are not allowed to go.

The laws in Alberta relating to mobility applications are complex and getting it wrong can have serious repercussions on your life. If you are recently divorced and considering relocating with your children, contact us to learn how mobility rights in Alberta will affect your plans.

Common Law Divorce in Alberta: What To Expect

Common Law Divorce In Alberta: What To Expect

Common Law Divorce In Alberta

In Alberta, we typically don’t use the word divorce in conjunction with a separating common law couple. A divorce is the court order that a married couple receives to legally dissolve their relationship. If you were never legally married, then you do not need to get divorced.

However, if you are in a common law relationship, or an adult interdependent partnership, and you wish to separate from your partner, then you should be aware of your rights and responsibilities. Our Edmonton area family and divorce lawyers can answer all your questions about what to expect from a “common law divorce” in Alberta.

What is an adult interdependent partnership?

In Alberta, the Adult Interdependent Relationships Act creates a relationship called the “adult interdependent partnership”, which replaces the common law marriage or common law relationship. An adult interdependent partnership does not have to have a conjugal, or sexual, element. It can take place between related individuals, such as siblings or a parent and adult child, or between friends.

An adult interdependent partnership is limited to two people and you cannot be in more than one at a time. You can enter into an adult interdependent partnership by:

  • written agreement (this is the only way for individuals related by blood or adoption to enter into an adult interdependent partnership)
  • live together in a “relationship of interdependence” for at least three years, or
  • live together in a relationship of interdependence of “some permanence” and have a child together (by birth or adoption).

Whether or not a relationship qualifies as a relationship of interdependence will depend on all the circumstances. A romantic or sexual relationship is not necessary, but it may be one factor that indicates a relationship of interdependence in some circumstances.

How to dissolve an adult interdependent partnership

Either partner can choose to end an adult interdependent partnership. If you have a written Adult Interdependent Partner Agreement, the agreement ends when the relationship ends.

An adult interdependent relationship can be dissolved by:

  • written agreement between the partners (this applies whether or not you entered into the partnership by written agreement)
  • living separate and apart from your partner for one year with the intention of ending the relationship
  • you get married (to each other or to another person)
  • you enter an Adult Interdependent Partner Agreement with another person (note that this is only effective if you are not a party to an existing Adult Interdependent Partner Agreement), or
  • a court makes a declaration of irreconcilability.

Factors to consider during your common law divorce in Alberta

What to expect when you separate from your adult interdependent partner:

  • if you have children with your partner, you will need to decide issues relating to the guardianship and parenting of the children as well as child support
  • you or your partner may claim spousal support from the other, depending on the circumstances of your relationship and your separation
  • as of January 1, 2020, property division laws that apply to married couples apply to those in an adult interdependent partnership as well
  • it is a good idea to redo your will, enduring power of attorney and any personal directives as soon as possible after you separate.

While you do not need a divorce, there are still many legal issues to consider when separating from your common law partner. Our legal professionals are here to help address your concerns. Contact us today!

What Are The Differences Between Common Law And Marriage In Alberta?

What Are The Differences Between Common Law And Marriage In Alberta?

What you should know about changes to the Divorce Act
The laws relating to families and relationships can vary from province to province, leading to confusion regarding the rights of common law couples and how they differ from those of married couples.

If you have questions about what are the differences between common law and marriage in Alberta, our family law lawyers can help.

What Is An Adult Interdependent Partnership And How Do You Enter One?

In Alberta, the various laws relating to relationships use the term “Adult Interdependent Partnership” rather than “common law relationship.” There are various ways to enter into an Adult Interdependent Partnership with another person.

Two adults can enter into a written Adult Interdependent Partnership Agreement. If the adults are related by blood, this is the only method that they can use to enter such a relationship.

Otherwise, two adults become Adult Interdependent Partners when they have:

  • lived together continuously for at least three years in a relationship of interdependence, or
  • lived together in a relationship of some permanence and have a child together.

In the absence of a written agreement, the Adult Interdependent Partners may not be aware that they are in such a relationship. It happens automatically.

How Are Common Law Relationships And Marriage Treated In Alberta?

In Alberta, married spouses and common law spouses are treated the same under many laws including those relating to:

  • child support and spousal support (including the ability to apply to the court for support from the estate of a deceased spouse)
  • child custody and parenting schedules
  • the treatment of the family home
  • the division of property after a separation
  • the division of property when one spouse dies without a will
  • the benefits available to the spouse of a severely handicapped person under the Assured Income for the Severely Handicapped program
  • the ability to insure the life of a spouse and to receive certain insurance benefits
  • the right to receive benefits if a spouse dies in a workplace accident or is the victim of crime.

How is property divided for common law spouses after a separation?

In most provinces, property division after separation is one area where common law spouses and married spouses are treated differently. However, since January 1, 2020, changes to the law in Alberta ensure that individuals in an Adult Interdependent Partnership benefit from the same protection as married spouses when it comes to dividing assets after the breakdown of a relationship.

How Are Common Law Spouses And Married Spouses Treated Differently?

So what are the differences between common law and marriage in Alberta? After separation, married spouses must apply for a divorce in order to be eligible to marry again. In contrast, a common law relationship is dissolved automatically.

Alberta’s Dower Act applies only to married spouses. This law ensures that where one married spouse owns the matrimonial home, they cannot mortgage or sell the home without the agreement of the non-owning spouse.

Contact Our Edmonton Divorce Lawyers For Legal Help Today

Our team of Edmonton family and divorce lawyers is available to answer any questions you have about marriage, Adult Interdependent Partnerships and your rights in relation to either. Contact us today for immediate legal assistance.

*Disclaimer: Please note this content is intended to act as an overview on a legal topic and does not constitute legal advice. Please contact an Edmonton divorce lawyer for more specific legal advice as it pertains to your unique circumstances.

What is a Personal Directive?

What Is a Personal Directive?

What you should know about changes to the Divorce Act
In Alberta, every person 18 years of age or older can write a personal directive, which provides instructions relating to personal (non-financial) decision-making that come into play in the event that the writer becomes unable to make their own decisions. A personal directive can be used to designate one or more agents to make decisions on the writer’s behalf. The writer can also choose to include in their personal directive specific instructions about their care or the care of any minor children.

While it is not mandatory to have a lawyer prepare your personal directive, you may want to consult with a lawyer to ensure that your instructions are properly understood. Our Edmonton wills and estates lawyers can answer any questions you may have regarding what is a personal directive.

Why Do You Need A Personal Directive?

A personal directive only comes into effect if you lose the ability to make personal decisions. This may occur if you are injured or become ill.

If you do not have a personal directive and you lose the capacity to make decisions for yourself, a healthcare provider might choose a relative to make decisions related to your health or treatment on your behalf. If your loss of capacity is permanent or long-term, a family member may have to go to court to be designated as your guardian so they can make decisions relating to your care and living-situation.

A personal directive provides your family and friends with the certainty that they are acting according to your wishes, should they ever need to make decisions on your behalf. It can also save them time and money by preventing the need to go to court for a guardianship order.

What To Include In Your Personal Directive

Generally, you should designate at least one agent in your personal directive. However, designating an agent is not mandatory. If you choose not to designate a specific agent, you may want to include detailed instructions regarding how decisions should be made on your behalf.

If there is no one willing to be your agent, you can designate the Public Guardian, but you must have their permission in advance.

In addition to designating an agent, you may wish to include instructions regarding:

  • how your agent should make decisions for you
  • your health care, including specifying any treatments that you specifically would or would not want to receive
  • your living arrangements
  • the care and guardianship of any minor children.

How To Prepare A Personal Directive

You may choose to use a form provided by the government to help you prepare your personal directive, but it is not necessary. A personal directive must be in writing and must contain your signature and the signature of a witness. Be careful! There are certain people who are not eligible to witness your personal directive.

Once it has been signed, you should provide a copy of your personal directive to your agent, to your physician and to any other person who may be relevant. In Alberta, you can choose to register your personal directive, which will allow healthcare professionals to locate your agent quickly in an emergency situation.

Contact our Edmonton Wills and Estates Lawyer For Legal Help Now

Still have questions regarding what is a personal directive? One of our wills and estates lawyers can help. Contact us today to arrange a consultation. A member of our legal team will be pleased to speak with you.

*Disclaimer: Please note the content in this article is a general overview on a legal topic and does not constitute legal advice. Please seek legal help from an Edmonton wills and estates lawyer for more specific legal advice as it pertains to your situation.

What is an uncontested divorce and what are its advantages?

What is an uncontested divorce and what are its advantages?

Uncontested Divorces
In Alberta, an uncontested divorce, also known as a desk divorce, occurs when both parties agree on all the issues arising from their divorce, including the grounds for divorce. If, at any point during the process, a dispute arises, the divorce becomes a contested one.

If you have questions about what is an uncontested divorce and what are its advantages, our Edmonton divorce lawyers are available to help. It is a good idea to contact a lawyer before proceeding with an uncontested divorce to ensure that you don’t run into problems.

Are You Eligible To Apply For An Uncontested Divorce?

You can apply for an uncontested divorce in Alberta if you meet the following requirements:

  • you are legally married to your spouse
  • either you or your spouse has lived in the province for at least one year leading up to filing your application
  • if you have children, you and your spouse must both complete a mandatory seminar called Parenting After Separation
  • you and your spouse agree with respect to all the issues arising from your separation, including custody and living arrangements for any children, child and spousal support, property division issues and the ground for divorce.

There are three grounds for divorce in Alberta:

  • separation (living apart from your spouse for at least one year)
  • adultery (generally to prove this ground, your spouse must be willing to sign an affidavit admitting that they committed adultery)
  • cruelty (includes mental and physical abuse).

Most uncontested divorces are granted based on the ground of separation for one year. You must meet one of the three grounds in order to be granted a divorce.

The Advantages Of An Uncontested Divorce

In most cases, when compared to a contested divorce, an uncontested divorce:

  • is faster
  • is easier
  • does not require the parties to appear in court
  • causes less stress on the parties and their children
  • is less expensive.

How Do You Apply For An Uncontested Divorce?

The Court of Queen’s Bench of Alberta has all of the forms necessary for an uncontested divorce. The first step is filling out a Statement of Claim, attaching the necessary documents (you will need a copy of your marriage certificate) and filing the form and attachments with the court. You must pay a fee to file your Statement of Claim.

The Statement of Claim must be served on your spouse by a person who is at least 18 years old. You cannot be the person who gives your spouse the document, so you have to find someone else to do it. If you don’t know where your spouse is, or they live outside of Canada, there are specific steps that must be taken to proceed with your divorce. Contact a lawyer for assistance.

If your spouse does not file a Statement of Defence within the time limit, then you proceed with an uncontested divorce by filling out and filing the remaining forms requesting a divorce. If you are claiming a divorce based on one year of separation, you must wait for the year to be up before you file the rest of your forms.

Contact Verhaeghe Law Office’s Edmonton Divorce Lawyers For Legal Help

Even though the uncontested divorce is designed to be easy and straightforward, it is common for people to be unsure of the process. Don’t hesitate to contact our Edmonton divorce lawyers for help determining what is an uncontested divorce and what are its advantages. You can book a consultation by calling us or filling out a contact us form. Our legal team is on standby and pleased to help you.

*Disclaimer: Please note the content in this article is intended to act as a general overview on a legal topic. We encourage you to seek legal counsel from a divorce lawyer for more specific advice as it pertains to your unique circumstances.

Examples of executor-beneficiary conflict of interest and what happens when this arises?

Examples of executor-beneficiary conflict of interest and what happens when this arises?

Executor/Beneficiary Conflict of Interest

An executor-beneficiary conflict of interest arises when the executor (or personal representative) cannot execute their duties under a will because the act required of them may cause them personal financial harm or conflict with their personal interests in some other way.

It is important to note that the executor of a will is often also a beneficiary of the will and this fact alone does not cause a conflict of interest.

As an executor, it is important to be aware that simply being in a position where your interests appear to conflict with those of the beneficiaries may be enough for a court to remove you as an executor. It is not necessary that you act against the interests of the beneficiaries. Our Edmonton wills and estates lawyers are available to help you identify and avoid any conflicts of interest.

The executor’s duties upon the death of the testator include:

  • taking possession of and protecting the assets pending distribution or sale
  • selling or investing assets appropriately
  • paying the debts and expenses of the estate, including income taxes, and
  • distributing the assets to the beneficiaries according to the will.

Below are some examples of executor-beneficiary conflict of interest and what happens when this arises:

1. The Executor Provides Goods Or Services To The Estate Or To One Of Its Assets

The executor is responsible for maintaining assets pending their sale or distribution to the beneficiaries. This includes everything from ensuring the grass is cut at the testator’s home to ensuring that financial assets are invested wisely.

If the executor, or a business owned by the executor, is doing business with the estate, the beneficiaries would be justified in wondering whether the estate is getting the best price for the services being rendered. The beneficiaries might also wonder if the executor is stalling the process of selling an asset so that they might continue their economic relationship with the estate.

2. The Executor Wants To Purchase An Asset From The Estate

The executor is responsible for ensuring that the estate gets the best price for any assets that are for sale. If the executor is also the purchaser of an asset, the beneficiaries would be right to think that the executor might have used their powers as the executor to get themselves a good deal as the purchaser.

3. The Estate Owes Money To The Executor

The executor is responsible for balancing the rights of the beneficiaries with their duty to pay the creditors of the estate. A creditor is often interested in being repaid as quickly as possible. However, disposing of assets quickly can mean accepting a reduced purchase price or paying additional fees or penalties, which means that there may be less to distribute to the beneficiaries after the creditors are paid.

If the executor is a creditor of the estate, the beneficiaries may wonder whether the executor is more concerned about ensuring that his debt is repaid or with maximizing the value of the estate for the beneficiaries.

What happens when there is an executor-beneficiary conflict of interest?

If there is a conflict of interest between the executor and the beneficiaries of a will, the beneficiaries can ask the court to remove the executor and assign someone else to the job. The court may decide to remove the executor or they may decide to monitor the situation more closely to ensure that the executor is acting in the best interests of the beneficiaries despite the appearance of a conflict.

Contact Our Edmonton Wills and Estates Lawyer Today for Legal Help

Whether you are an executor or a beneficiary under a will, our wills and estates lawyers can advise you with respect to any executor-beneficiary conflicts of interest that may arise. Contact us to book a legal consultation a member of our wills and estates legal team.

*Disclaimer: Please note the content prescribed in this article is only intended to act as a general overview on a legal topic. Please note this does not constitute as legal advice. Please consult with an attorney for more specific legal advice as it pertains to your situation.

What you should know about changes to the Divorce Act

What you should know about changes to the Divorce Act

What you should know about changes to the Divorce Act

The Divorce Act has recently undergone major changes, which came into effect March 1, 2021. The Divorce Act applies to individuals across Canada who are married and who decide to divorce. In addition to governing the process related to obtaining a divorce, the Act also covers:

  • child support
  • spousal support and
  • child custody or parenting issues.

The changes to the Act mainly focus on the section relating to child "custody," a term that is no longer in use due to the recent changes.

Our team of divorce lawyers can help you determine if and how these extensive changes to the law will affect your divorce.

Changes to Terminology

One of the major changes to the law is the use of different terminology relating to the care of children. The term "decision-making responsibility" replaces the term "custody." Rather than an order for sole or joint custody of a child, you may receive an order for sole, joint or divided decision-making responsibility related to a child.

The term "access" is replaced by the term "parenting time." Parenting time is the time when a child is in the care of a parent. The parent does not need to be physically present the entire time. For example, time that your children spend at school or day care can still fall within your parenting time.

If these terms are already familiar to you, that may be because several provinces have already incorporated similar terms into the provincial legislation governing parenting orders. Alberta, for example, already uses the term "parenting order" rather than "access order."

The term "contact" is introduced and is used in reference to people other than parents who seek an order for time with a child. It is essentially parenting time for non-parents.

The term "habitual residence" is introduced. The habitual residence of the child is used to determine the appropriate jurisdiction for an application in relation to the child.

Presumptions relating to orders for parenting time and decision-making responsibility

A previous presumption in favour of granting custody to the parent who was most likely to promote a relationship between the child and the other parent (known as the friendly-parent rule) has been removed. There is no longer any presumption in favour of any particular order with respect to decision-making responsibility.

Similarly, a previous presumption that parenting time should be maximized with each parent has been removed. There is no longer a presumption that parenting time should be divided between the parents as close to equally as possible.

The best interests of the child in question will be used to determine all orders related to decision-making responsibility and parenting time.

New provisions dealing with family violence

Extensive changes have been made to the Divorce Act to ensure that family violence concerns are taken into account as necessary. The legislation now contains a detailed definition of family violence and requires a court to consider any family violence and its impact on the child during a determination of the best interests of the child.

Other additions to the legislation relating to family violence deal with:

  • supervised parenting time or supervised transfers
  • orders prohibiting the removal of a child from a specified geographical area without the written consent of the other parent or a court order
  • exceptions to notice provisions (regarding change of residence or relocation) for cases involving a risk of family violence
  • coordination between criminal, child protection and family cases.

Changes relating to relocation applications

Those who are hoping to move to another town, province or country with their child will have to navigate a new approach to relocation applications. Significant changes have been made to both the procedures that must be followed by an applicant and to the methods that judges will use to make their decision.

There are now stringent notice requirements that apply to parents with an existing order for custody, access, parenting time or decision-making responsibility that was made under the Divorce Act. The parent who wishes to relocate must provide notice at least 60 days before the planned relocation and the other parent, if they object to the relocation, must respond within 30 days.

The list of criteria that a judge may consider when determining the best interests of the child in relation to a relocation application has been extended. There are seven new criteria, including the reason for the proposed move.

The recent changes have introduced different burdens of proof that may apply in different circumstances. In circumstances where:

  • the applicants have an existing parenting order under the Divorce Act; and
  • the current parenting arrangement reflects that parenting order;

then the following burdens of proof will be placed on the parents during the relocation application. If the parents have substantially equal parenting time, then the parent who wishes to relocate must prove that it is in the best interests of the child to do so. If the parent who wishes to relocate has the vast majority of parenting time, then the parent who is opposing the application must prove that the relocation is not in the best interest of the child.

This will leave many circumstances in which neither parent has the burden of proof, which means that each parent will be required to show the court why their proposed living arrangements are in the child's best interests.

The court is no longer permitted to consider whether, if the court does not grant the order, the parent will relocate without the child or choose not to relocate.

Other additions and changes

Many other changes have been incorporated in the legislation to increase the efficiency of the law and make the law easier and more affordable for individuals to access. These changes include:

  • encouraging the use of out-of-court dispute resolution processes including mediation services and collaborative law
  • authorizing the government to designate a provincial child support service to calculate child support
  • simplifying procedures for obtaining, varying or enforcing a support order when the parents live in different provinces or countries (interjurisdictional support orders)
  • improving the mechanism used to recalculate child support
  • improving access to the law in both official languages
  • incorporating two Hague Family Law Conventions (relevant to resolving family law issues when one parent lives in another country)
  • improving access to income information for use in support applications.

Many of the recent changes to the Divorce Act are only relevant in very specific circumstances. If you have concerns about how any of the changes to the Divorce Act will affect your divorce or any future applications affecting your children, contact one of our divorce and family law lawyers today.

What Happens If My Parent – Who Is Unmarried And In A Long-Term Relationship – Dies Without A Will?

What Happens If My Parent – Who Is Unmarried And In A Long-Term Relationship – Dies Without A Will?

What Happens If My Parent – Who Is Unmarried And In A Long-Term Relationship – Dies Without A Will?

A will is a document that allows the writer to dictate how they want their property to be distributed after they die. If a person dies without writing a will, then they are said to die intestate and their assets will be distributed according to Alberta's Wills and Succession Act.

The Wills and Succession Act does not consider the specific circumstances of the intestate or their family. As a result, any distribution of assets under the Act may be unfair. Our Alberta wills and estates lawyer can help you understand what happens if your parent - who is unmarried and in a long-term relationship - dies without a will.

Practical Considerations Of Dying Intestate

If, at the time a person dies intestate, they have both a common-law partner and adult children from a previous relationship, chaos can ensue. Without a personal representative named in a will, it will be unclear to the surviving family members who is supposed to make decisions regarding the funeral and how those expenses should be paid for.

It will also be necessary to ask the court to name a personal representative, which means added expenses for the family at a time that is already stressful.

Distribution Of Property Under The Act

Your parent may legally have an "adult interdependent partner", as they are called in the Act, if:

  • they have lived with another person in a common-law type relationship for at least three years, or
  • they have lived with another person in a common-law type relationship and have a child together, or
  • they have entered into an agreement that defines their relationship as that of adult interdependent partners.

If your parent dies intestate, with both an adult interdependent partner and children from a previous relationship, then your parent's estate will likely be divided between your parent's partner and your parent's children. Under the Act, the adult interdependent partner receives the first 50% of the value of the estate or a minimum amount set by the regulations, whichever is greater. The children split the remainder of the estate equally. If any of the parent's children have already died leaving grandchildren, the grandchildren receive their parent's portion of the estate.

Other considerations

If a parent dies intestate and the results of distribution under the Act leave a dependent family member (either an adult interdependent partner or a child under the age of 18) without adequate support, the court may order a change to the distribution of property to account for that person's need for support.

If your parent is the owner of the house that they live in with their partner when they die, the partner is entitled to stay in the family home for 90 days after the death.

The Benefits Of Having A Will

Intestate distribution of property under the Wills and Succession Act does not allow for any customization to particular circumstances and the results will often leave the family members of the deceased unsatisfied and in financial need.

If your parent - who is unmarried and in a long-term relationship - dies without a will, things could get complicated. Our Alberta wills lawyers can help prevent any unnecessary difficulties. Talk to us today. One of our Edmonton wills and estates lawyer will be pleased to assist you.

Disclaimer: Please note this article is only intended to act as a general overview on a legal topic and does not represent legal advice. For specific legal advice please consult with our wills and estates lawyers.