14 Reasons to Hire an Attorney for Wrongful Dismissal

14 Reasons to Hire an Attorney for Wrongful Dismissal

If you've recently experienced the wrongful dismissal from a job, it might be time to hire an attorney. Click here for 14 reasons to consider a legal expert.

Losing your job is a devastating experience all on its own, being fired makes it worse. But being dismissed from your job for reasons that were not your fault is also frustration.

Wrongful dismissal happens to people all the time, and many are not aware or feel like they can challenge the dismissal. Being fired or laid off from your job without the proper notice or compensation is against the law, and you can fight it.

If you were recently let go from your employment and feel it was wrongful dismissal, then you have some options.

Here, we will look at 14 reasons you should get an attorney.

What is Wrongful Dismissal?

Being fired or laid off from your job with an explanation, like there is no work or you were caught doing or saying something that goes against company policy, you likely don't have a case.

If you are fired or laid off with proper notice, then that is not wrongful dismissal. Likewise, if you are given no notice but receive some sort of compensation package, then that is also legal.

When you are fired, dismissed or laid off without cause, notice or severance pay, then you have experienced wrongful dismissal. You may feel like that's the end of it, but it isn't.

What to Look for in a Wrongful Dismissal Lawyer

Finding a lawyer to take on your case might not seem hard, but you need a lawyer who is versed in the area if wrongful dismissal. Losing your job is a very confusing and stressful time, and you want the best person to help you through it.

There are just so many areas you may be unaware of that your lawyer will understand. If there was a contract or a breach of contract, if there is a union involved and was there a violation, was there a clause or law broken.

You need a lawyer who knows the differences that occur, the ins and outs and the legal applications specifically for wrongful dismissal cases. Workplace lawyers understand what is actually happening and where to go next.

Lawyers specialized in workplace law have the experience and knowledge you need. There could be issues at play that you have not even considered, and they will be able to find those.

Reasons to Hire an Attorney

We will break it down and look at reasons why you need to hire a lawyer for yourself or family member if you think you are owed for wrongful dismissal. What you think it okay may actually be illegal.

1. Consultation

You want to set up an appointment, even just a casual meet and greet to explain your situation and see if you have anything to move forward. This is the best time to lay it all out to your lawyer and be very honest.

Even if you did something wrong but feel your firing was still not justified or done correctly, you want to know where you stand and what actions, if any, are available to you.

Keep in mind that employment law lawyers are inundated with telephone calls and emails about wrongful dismissal; and, a good lawyer is a busy lawyer so they will often charge for their consultations - if they are not working for you, they could be working on another matter and they have certain targets or obligations to their firm that they must meet on a monthly basis.

2. Expert Advice

A lawyer specializing in wrongful dismissal will have inside knowledge and experience in handling these situations. You may think your case is unique, but chances are, they have seen it.

Talking to a lawyer is just a wise move, and one who specializes in workplace dismissals will have insight and experience in how to proceed, if necessary. They handle cases like your all the time; they will know what to do and help you through this trying time.

As employment lawyers we have seen and heard it all, from online gambling to affairs in the office. We do not judge, we are simply hear to advance the best case going forward for our clients.

3. Professional

Even if your dismissal is due to something embarrassing to you and you are worried it will get out, your lawyer will handle your case with discretion and a professional manner.

You want your case in good hands. You have enough stress over losing your job and worry about how to proceed. Let your lawyer worry about how to get the right compensation and keep it all discrete.

4. Trustworthy

You can trust your lawyer to work with your best interests at the forefront. Handing over any documents or evidence will be kept safe and only used to further your case.

You may be worrying about how this past action will reflect on your chances of finding a new job in the same field. Your lawyer will be able to advise you in this area and keep your past information private.

5 Financial Compensation

You wrongful dismissal lawyer has the knowledge and ability to figure out how much compensation you are due. Depending on the case, you may be entitled to more compensation than you think.

The potential loss of wages and bonuses, retirement packages, promotions, expense accounts and payment to the lawyer and your pain and suffering may all be considered in your case.

6. File Papers

Any documents and papers that need to be filed or filled out can all be taken care of by your lawyer. They know which ones, why and when. You do not want to lose out because of some silly mistake.

There may be some small details and loopholes you do not know about, and you want to get the best for your self and your family. Let your lawyer handle all of the paperwork and forms, as that is what they specialize in.

7. Your Employee Has One

If wrongful dismissals seem to be prevalent within your company, you can bet that they have a lawyer on hand. You do not want to chance your wrongful dismissal fight to your own ability, even if you know about workplace law.

Get prepared and get a lawyer. Your employer will have one ready to fight you, be ready to take them on. It's just smart practice, hire a lawyer for a legal brawl.

Wrongful Dismissal Causes

Let's look at some of the reasons you may want to seek out legal advice, that pertains to the job and the wrongful dismissal.

8. You Feel it was Personal

This comes under the category of discrimination. No one can fire you simply because they do not like you. No one would have a job if that were the case.

Discrimination can cover a wide area:

  • disability
  • sex
  • age
  • race
  • religious practices

This includes sexual orientation, your marital status, and any other reason that is of a personal matter that does not affect how you do your job. Losing your job or being passed over for promotion or advancement die to any of these is illegal.

You may have a hard time trying to prove this, and getting legal help is a smart idea. If you feel that these were reasons you lost your job, you need to talk to a lawyer. Whether it was verbal, written or implied, they will have the expertise to recognize the problem.

9. Harassment

Harassment can be linked to discrimination and unfortunately, is all too common in many workplaces. Harassment is often unreported, and employees may simply quit rather than endure the abuse.

Like discrimination, harassment is directed towards an employee over personal matters that they have no control over. This includes anything that makes you feel awkward or uncomfortable.

  • offensive jokes
  • racial or sexual slurs
  • insults and put-downs
  • threats or intimidation
  • inappropriate pictures or text
  • physical assaults

Any time you are uncomfortable due to inappropriate comments or gestures, this is considered harassment. Being fired for complaining, standing up or as a continuation of these harassments is wrongful dismissal.

10. Illness or Pregnancy

Missing work due to illness or getting pregnant are not reasons to lose your job. Being fired or replaced or demoted while on maternity leave is also not allowed.

If you develop an illness and it affects you are work, you still cannot be fired. Workplace human-rights protect you, and your employer is required to accommodate medical conditions to allow you continue working.

This rule goes for pregnancy, as well. You are entitled to the full benefits, paid leave, and the option to return to your job at the end of your maternity leave.

They may try to claim it was something else unrelated to your pregnancy, but you should really fight it. They may have just been feeling put out that you had to take time off.

11. Close to Retirement, Promotion, or due Benefits

This can happen all too frequently, and it is a low and dirty trick. It can be heartbreaking, after all the time and effort you have done and contributed to the organization and then be robbed of your due.

Without cause or compensation, this is wrongful dismissal. You may be able to get your due and compensation outside of the original deal. If you were cut off short, this could affect your pension.

There is also a case for ageism, and the difficulty you may have trying to find another job if that is your situation. Lost income can be from potential wages, and your future pension, bonuses and any invests or company stocks.

12. Replaced by their Friend or Family member

This can be very frustrating. Losing your job due to someone's nephew or sister needed a job is wrong. It's particularly annoying if they hire someone to replace you for half the wages they were paying you.

Your wrongful dismissal lawyer can get you the results you need. Being let go or passed over for a job due to nepotism is still discrimination, and shouldn't be allowed.

This can cause hard feelings among employees, cause potential disharmony and even damages if the family member is not as qualified for the position. Overall morale can drop and therefore, so can productivity.

13. Recently complained

If you filed a complaint against your employer, your manager, a co-worker for something to do with illegal or shoddy practices, you could not be fired for that. If the complaint is serious, or of a personal or sexual nature, you need to seek legal advice.

Assuming your complaint was a legitimate complaint, it is against the law for your employer to take action against you simply because they are not happy. If you are potentially exposing problem, violation or even crime, they may think getting rid of you will solve their issue.

They may be trying to cover up something that is potentially illegal or harmful, and it is your right and your duty to recognize the issue and report it. Being fired for being vigilant is wrong and needs to be addressed.

14. False Accusation

Being let go for something that didn't happen or happened differently than was suggested, that is wrongful dismissal. If it feels like a false charge just for an excuse for firing you, then you must seek legal advice, rather than trying to fight on your own.

A lawyer will clear your name of the false accusations or charges and help you get compensation for the lost job, wages and other stress and hardship. There may even be charges laid against your employer or manager.

The burden of proof will be on the employer or manager, and that will be difficult for them to come up with, as it is false. Any proof they manufacture will be considered illegal.

Our Jobs, Our Life

Sometimes just trying to find a suitable job that we don't despise and allows us a livable wage is just too hard. When we finally find that job, just to lose it through no fault of our own is devastating.

We all deserve to go to work and provide for our family. Too often, we live from paycheck to paycheck, and to have that taken away from us can be catastrophic for us and our families.

Laws for workplace health and safety are put in place for a reason, and a violation of those against us needs to be addressed. All too often, people are removed from their employment for no good reason and don't take action.

This leaves the employer with the notion it is okay, and they will continue to repeat themselves. It is not okay, and you have rights and are due compensation. If you find yourself in the unfortunate position of wrongful dismissal, contact a lawyer and fight for your job.

What is a Power of Attorney?

What is a Power of Attorney?

A Power of Attorney is an essential safety net for aging individuals and their families. Read on to learn what it is and how it works.

Only about two out of every five people from the ages of twenty-two to thirty-seven have a power of attorney (POA).

This number increases with age: approximately 83% of people over 72 have a power of attorney in place.

But do most of you even know what a power of attorney is?

Many people think that because they have a Last Will and Testament, they have a Power of Attorney.

They do not. A Power of Attorney is one of three documents that are prepared during the Estate Planning process, the three being a Power or Attorney, A Personal Directive; and a a Last Will & Testament. Each document is independent of the other, each are very powerful; and may have different agents listed in each.

What is a Power of Attorney; and, What Are The Types of Power Of Attorney?

A power of attorney allows you to appoint a person of your liking to do a specific job. This person becomes your agent or "attorney in fact." It is their job to act in your place for fiscal purposes or other reasons if there is ever a time--God forbid-- when you cannot make business or financial decisions on your own behalf.

Examples of when this could be needed: if you get Alzheimer's, Dementia, if you go into a coma, if something terrible happens during your every day and limits your ability to think things all the way through (i.e., construction or car accident).

While all POAs are not created equal, here are the two most typical broken down into types:

Enduring (General) Power of Attorney:

An enduring power of attorney is a person to act on your behalf. As it says in the name, the broad power attorney gives a person a broad amount of power, and these powers can include: settling claims, making financial and material gifts from your money, employing professional help, operating within your business interests, helping with your properties, and handling financial and business transactions; and, dealing with the Canadian Revenue Agency.

These are generally used when someone is physically or mentally unable to handle their own state of affairs. Or it could be something as small as this person is out of the country, and needs someone on the ground helping them handle their personal affairs at home.

Usually, if you have the financial means for an estate plan, you already have one of these lined up.

The Enduring Power of Attorney will remain in charge as your agent until you wake up from your incapacitation or until death. You should appoint both a Primary Agent and an Alternate Agent in case the primary agent dies, becomes incapacitated and is unable to act; or, simply refuses to act.

Limited:

This most likely goes without saying--considering that it has already been mentioned that a power of attorney can decide what to do with your life and your finances--but a power of attorney is a very open document. It allows you to give someone as much or as little power as needed.

Limited POAs are often used for singular transactions. For example, you are selling your lake house, but you will be out of town, so you give your friend limited power to do it for one day.

People also use Limited POAs to trust people with their businesses as well. This can be highly beneficial because it can allow someone who knows your business to sign contracts for you, meet with investors, and do other important things among your trade.

However, this is most definitely the type of power of attorney that legal advice would be highly recommended. Out of all things people need advice for, Contract law can often be one of the most beneficial due to how attached people seem to be with both their money and businesses.

Having a limited POA can come with many benefits. But make sure to choose someone in your personal or professional life that you can trust.

An Enduring Power of Attorney also comes into effect when a triggering event occurs. Most triggering events are simply a medical doctor licensed to practice in the donor's jurisdiction, signing a Medical Direction stating that the Donor in incapacitated. The Power of Attorney along with the Declaration is then forwarded to the recipients requiring the documents. It is better to have the documents notarized as true copies, which most lawyers offices can do as Notary Publics and have the true copies delivered to the recipients, rather than sending out the originals.

Immediate Power of Attorney:

An immediate power of attorney comes into effect as soon as it is signed and remains in effect notwithstanding medical incapacity. It is similar to an Enduring Power of Attorney and can be modified or retracted prior to mental incapacity. If you are going to use this type of POA, it is critical that everything is crystal clear in the document you are planning on using for the specifications; this is much more so important if you own any of your own property or businesses.

Yeah, But Do I Really Need a Power of Attorney? I am only 18 years old and have no real net worth.

Imagine if someone very close to you has a stroke. 1 in 4 Canadian have a stroke under the age of 65; we have seen many people in their 20's, 30's and 40's have strokes. It could be anyone: your daughter, your son, your husband, your sister, maybe, even your best friend.

They do not have a power of attorney, and guess what? Disability Insurers start asking for a copy of the power of attorney, the banks want copies, lenders want copies, the Canada Revenue Agency wants copies.

A spouse does not have an automatic right to sign papers for their spouse. Neither does a parent have a right to sign for their adult children, nor do adult children have a right to sign for their parents.

Without a Power of Attorney and Personal Directive, someone needs to be appointed by the Surrogate Court of Alberta under the Adult Guardianship and Trusteeship Act. This process can cost up to $10,000.00 and take several months before and order is granted. It is a horrible and expensive process. With a Power of Attorney and Personal Directive all you need to do is gather your documents, get the doctor's declarations signed, have them notarized and have them sent out.

Getting a Power of Attorney: Step-by-Step

1. Do Your Research

Well, it already looks like you are taking that step into account. But seriously, talk to experts, go online, make yourself a pros and cons list, and make sure to come with a list of questions before talking to the person you choose and any legal advisors.

2. Choose your POA

Choosing someone can be tricky for some of us and easier for others. Maybe it is your spouse. Well, that was easy, but this decision should come with some serious contemplation.

Is this person trustworthy? Do they live relatively close to you or can they be physically close to you in a short amount of time if needed? Are they themselves in good health?

3. Make Sure to Have All Your T's and I's Crossed and Dotted

Notaries, witnesses, a safe place to keep these documents: you are going to need it all. So make sure that you are paying attention to these little details as you go.

Remember to ask the person you are choosing if they are willing to act on your behalf. Also, consider asking for an alternate (or backup) agent in the power of attorney. You can also elect to name people jointly; however, if they cannot agree, one can deadlock the other and they will need to hire lawyers to bring an application before a judge to determine how to break the deadlock.

Your lawyer should also keep a copy of the original power of attorney; and, they should make a note in your file where it will be stored. Many people choose fire resistant personal safes or lock boxes. It should be noted that in the devastating Fort McMurray and Slave Lake Wildfires, that none of these boxes survived a complete burn down of the property. Safety Deposit Boxes are the best places to store your estate planning documents for two reasons: 1. They are the most fire and flood resistant; and, 2. They are often the first place people go to look for important documents.

Protect Yourself: Protect Your Family

Life is complicated. Do not make your final life's decisions a guessing game for you or your loved ones.

It is easier for our estate lawyers to deal with a situation where there is no Last Will and Testament than it is for us to deal with a Dependent Adult that does not have a Power of Attorney. The confusion, the agony and distress the loved ones go through is heartbreaking. The relief on their faces when we pull out a signed Power of Attorney is amazing.

We cannot stress enough at how important they are.

No matter what your age is, go out today, and start working on your power of attorney.

Questions or comments? We have completed 1000's of Estate Planning Appointments for people just like you......Please feel free to contact us!

Everything You Need to Know About Temporary Custody Agreements in Canada

Everything You Need to Know About Temporary Custody Agreements in Canada

If you're in need of more information about temporary custody agreements during your divorce, we have answers. Click here our informative guide.

In the last two decades, five million Canadians have become separated or divorced.

A divorce or separation is a difficult adjustment for adults. But if there are children involved, it can feel downright impossible.

It's not easy to figure out who gets custody of the kids. Both parents love their children equally.

If you and your spouse are thinking of "uncoupling" from one another, it's time to arm yourself with some information. The more you know, the transition becomes less scary and much easier.

Here's what you need to know about temporary custody of your kids.

Establishing the Purpose

There are several reasons why someone should pursue establishing temporary custody. Always the reason is to protect the best interests of the child.

Sometimes they are established to prevent one parent from moving too far away until the court proceedings have finished.

Establishing temporary custody is a smart idea if one parent is threatening to take the child or children away.

But it's also a good idea when you're already a single parent. If you have a job or personal circumstances like a drug addiction, there are times when you can't be physically or emotionally there for your child.

In that case, it makes sense to establish backup custody until you are able to care for your kids.

Establishing Temporary Custody

It's foolish to assume that temporary custody is automatic. In order to receive it, you must file a request.

If you're filing for divorce, it can be made in the Statement of Claim for Divorce or shortly after your initial paperwork is filed.

Next, a judge holds a hearing. Prepare in advance because the courts will also address any child support issues or visitation schedules.

The court will ask for documentation proving your child is covered by health insurance. The judge will also want to know if there's been any history of domestic violence.

Choosing Which Law To File Paperwork Under

Determining temporary custody depends upon laws and your particular circumstances. If you are married, the court will follow the laws based on the Divorce Act.

However, if you live in Alberta, the Family Law Act may also apply. This law applies to both married and unmarried couples. If you're married and living in Alberta, you can use either law.

If you are unmarried, only the Family Law Act will apply. If you choose to file under the Divorce Act, you'll have to file the application in the Court of Queen's Bench. If you choose the Family Law Act you can either file in the Court of Queen's Bench or in the Provincial Court.

The Benefits of Provincial Court Versus the Queen's Bench

The Provincial court has over 72 locations while the Queen's Bench has less than 13. If transportation is an issue, it's something to consider.

You'll have better luck finding a lawyer if you file in the Queen's Bench. However, you can argue your case without a lawyer in the Provincial Court.

Evidence must be presented in written form in the Queen's Bench. But at the Provincial Court, the judge can directly ask you about any evidence you have.

How the Judge Determines Custody

A judge will take into consideration the laws where you reside. However, your child's best interests are always at the center of any temporary custody decision.

Many judges will want to learn about each parent's relationship with the child or children. The Court also wants to know about each parent's current physical and emotional health.

The judge will also want to hear about any physical or emotional needs the child has. Lastly, the Court will want to hear about each parent's ability to meet the children's needs.

What Custody May Look Like

A judge might award one parent sole temporary custody. This means that parent is solely responsible for making any and all decisions on behalf of the child.

The other parent may or may not have access to your child.

It's also possible that joint temporary custody is rewarded. In that case, each parent makes decisions for the child when they are with the child.

All major decisions are done jointly by both parents.

With joint custody, the child can live with both parents. If the child lives with one parent for more than 60% of the year, that parent has primary residency.

It's Possible to Lose Custody

In most cases, temporary custody stays in place until the divorce order is finalized. However, a judge can alter custody if he or she finds it's no longer in the child's best interests.

This only happens if a major change has happened. In most cases, it's shown that the child's needs aren't being met or one parent is preventing the other parent from visiting with the child.

However, even if you do lose temporary custody, it's possible to regain custody in the future. If it happens to you, take advantage of any visitations offered with your child.

Keep records of all your visits and of any extra money you've spent on your child. Paying for things like clothing or extracurricular activities shows the court you're still putting your child's needs first.

In the end, the court decides permanent custody decisions based on what best supports a child's safety, welfare, health, and stability.

Parental Responsibilities When You Have Custody

If you are awarded temporary custody, there's a lot of responsibilities you need to consider.

Making daily decisions for your child and supervising their activities are just the beginning. You're also responsible for deciding where they will live.

And who they can have relationships with. You'll need to decide where and how they are educated.

Their cultural, spiritual, and religious upbringing is your responsibility. Any medical treatments or legal proceedings your child is involved with are also yours to handle.

If you feel this is too much responsibility, temporary custody may not be a good choice or you may need more support to handle everything.

Create a Parenting Plan

Even if you are requesting temporary custody, that doesn't mean things need to be acrimonious between you and the other parent. Instead, try to find ways to work together for the benefit of your child.

Creating a parenting plan checklist will help ensure both parents are on the same page when it comes to the care of their child. It will also help prevent a lot of miscommunication and fighting.

This checklist can include plans for how the two of you will reach decisions together in an amicable way. It should also state how much time and when each parent will spend with their child.

Topics to Discuss

List names of people your child is allowed to spend time with like friends and other family members. Make sure both parents are on board with how much time is spent with friends and family.

Extracurricular activities are time-consuming and expensive. Before any parent enrolls their child in a new class, speak to one another. Plan which activities your child engages in and how much money it costs.

Also, since those same activities usually involve parents coming to witness the event, talk about how the two of you will support your child's events so that at least one of you is always in attendance.

And of course, holidays and school breaks are important. Figure out ahead of time who gets to spend time with the kids.

This will save you from a lot of added stress by doing it at the beginning rather than waiting around until Christmas to discuss it.

Lastly, talk about communication. Decide how people can communicate with your child, including the other parent.

Make sure you're both okay and aware of your child texting, Skyping, and Friending the other parent. You should also talk about when it's okay to communicate and when it's not.

Ways to Develop the Checklist

In a perfect world, when two adults separate or get divorced, everyone would walk away happy and friendly. Unfortunately, divorce tends to bring out the worst in people.

Which means it's not always an ideal situation to sit down with your child's other parent to discuss how to raise your child. But that does not mean there are not options.

Developing the checklist will make life easier for everyone to find your best method and make sure it gets done before you go to court.

DIY

If you and your soon-to-be-ex are still amicable, it's completely fine to complete your checklist together. There's no need for others to get involved unless you need them to.

DIY will save you time and money. You also have complete control over the agreement.

Mediation

A mediator is helpful when handling temporary custody issues. The mediator won't take sides and stays neutral the entire time.

Their goal is to help both of you come to an agreement you both of you can accept and is in the best interest of the child.

If one parent earns less than $40,000 per year, it's possible they might qualify for mediation services through Resolution and Court Administration services.

Collaborative Law

The way the collaborative law works, both of you have retained lawyers. However, the goal is to create parenting solutions together rather than going to court.

Both of you would sign a document stating you are willing to work together to avoid court. If this method doesn't work and you do end up in court, you'll need to retain new lawyers.

These meetings allow for both parents or guardians and their lawyers present and able to speak freely about the best interests of the children.

Four Way Settlement Conferences

Many law firms have developed a strategy called a four way settlement conference. It is like collaborative family law meetings; however, the parties effectively agree to agree on certain things; and agree to disagree on others. The "other" items are then litigated. This save the parties time, effort and money from having to retain new counsel as their existing lawyers can continue to represent them.

Arbitration

Arbitration happens when you appoint someone other than a judge to make the ruling decision for you.

Court

Going to court is often the last resort. This is where a judge hears the case and makes a ruling.

Most people choose to avoid court because it's expensive and time-consuming.

You also lose a lot of control when you get a judge and the courts involved. The outcome may end up being something neither party is happy with.

Unfortunately, court rulings are binding and are harder to change afterward.

Lastly, going to court takes a toll on everyone. Relationships suffer and so do the children.

When Going to Court is the Best Decision

There are situations where the only practical choice is to head to court to ask for temporary custody.

Most often this happens when you are concerned about the safety of your child. If you have a situation where you wouldn't trust leaving your child alone with the other guardian, the courts need to know.

Other times, one party is having extreme difficulties facing the reality of the breakup. Sometimes, the court application is the only way to get the other party to start a much-needed conversation about what happens next.

If you personally feel unsafe or intimidated by your child's other guardian or anyone in their family, your best course of action is to head to court.

Sometimes, a parent will prevent their child from spending time with their other guardian. If your ex isn't letting you spend time with your child, going to court can help.

The courts can make orders forcing them to allow you time with your child.

Lastly, if you suspect the other guardian is planning on taking your child away, do not wait. Get a lawyer and apply for temporary custody.

The Responsibility of the Judge

The judge does not care about who is right and who is wrong. Nor can they always punish someone for bad behavior. If your goal is to have the judge pat you on your back for doing all the "right" things, get ready for disappointment. Judge's feel their is "his side", "her side" and the "truth is somewhere in the middle".

The judge wants to make the best decision so that the child is taken care of and it's fair for all parties involved. The courts will take all the information into consideration. They may even ask your child what their preferences are.

If You Dislike the Ruling

If you don't like the judge's ruling regarding temporary custody, there are steps you can take. Talk to a lawyer first to see what your options are.

There are only certain reasons why an appeal can happen.

Get Help

Divorce, separation, and custody issues are all extremely complex and stressful issues. Don't try to go through it alone.

You deserve all the help and support you can get.

Contact an attorney who can talk you through the steps to get temporary custody granted to you.

What’s the Difference Between Uncontested and Contested Divorce in Canada?

What's the Difference Between Uncontested and Contested Divorce in Canada?

Uncontested and Contested Divorce: Know the Differences

Do you know the difference between uncontested and contested divorce in Canada? Before you proceed, make sure you know all of the facts with this helpful guide.

Turns out forever isn't as long as you thought. And it isn't ending as nicely as you hoped, now that contested divorce is on the horizon.

You're not alone - four in ten first-time marriages in Canada end in divorce.

But not all divorces are alike. Keep reading for a break down the types of divorce, how the legal procedure differs between the two, and how you should prepare.

The Three Types of Divorce

In Canada, there are three main types of divorce: an uncontested divorce, a joint divorce; and, a contested divorce.

The difference between the three is simple, but the procedural differences that result from them make for a wildly different divorce experience.

Let's break it down.

What is an Uncontested or Joint Divorce?

A joint divorce is what everyone hopes for. There is no defendant. Both parties jointly file the statement of claim for divorce.

All decisions have been made and agreed on. There is no need for a defendant because there is nothing to defend. There is no requirement of service of documents; there is no 30-day appeal period after the divorce judgment is granted.

An uncontested divorce is one where one party decided to initiate the divorce by filing a Statement of Claim for Divorce or Statement of Claim For Divorce and Division of Matrimonial Property. The Statement of Claim is then personally served on the estranged spouse.

The estranged spouse can either:

  • File a Statement of Defence disputing any of the facts or the relief claimed
  • File a counter-claim, ie. a counter-suit claiming different facts/relief than what the Plaintiff is asking for
  • File a Demand of Notice stipulating they are not contesting the divorce and will not be filing further documents but wish to be served with all documents filed in the court proceedings
  • Simply do nothing and wait to be noted in default

If the estranged spouse elects to only file a Demand of Notice or elects to "do nothing" the divorce is deemed uncontested.

Unfortunately, most couples are not that lucky to be able to go through a joint or uncontested divorce and must go through a contested divorce.

What is a Contested Divorce?

A contested divorce, as the name implies, is the exact opposite of an uncontested divorce.

In this kind of divorce, spouses disagree about some or all of the issues raised. This often relates to the children, spousal support, and division of financial assets.

Unsurprisingly, this makes everything more complicated.

As such, both parties will have to file court documents outlining their stances on the issues at hand. You should also get lawyers involved (at least, if you want things to go in your favor). This is where the process starts to drag out.

Procedural Differences

As you can imagine, the legal process behind the two types of divorce is different. This is related to whether or not the couple in question can agree on anything and how much they can agree on.

This will also change how long it takes to get your divorce finalized.

This isn't your typical couples argument. When a couple can't agree on divorce matters, you have to get everyone's lawyers involved to sort it out.

A few things are similar--specifically, all Canadian divorces are governed by the Federal Divorce Act. However, procedural rules can vary depending on what territory or province you live in, so it's good to get all the details you can from your lawyer.

Uncontested Divorce

The less that is contested in a divorce, the happier everyone will be, including your bank account (hello, steep legal fees!)

In an uncontested divorce, couples can reach an agreement on the financial terms and division of assets before the case goes to court. This is called a Matrimonial Property and Settlement Agreement.

Judges and lawyers prefer to settle out of court wherever possible, and so should you if you can help it. A settlement by definition means that neither spouse can contest it later because both parties have agreed to it.

If you can agree on everything and already know how divisions will happen, then you might be one of the couples that decide to do your own divorce. Keep in mind, however, that you have to be in total agreement, otherwise things can get out of hand quickly.

Contested Divorce

When things get out of hand, or when couples cannot agree, you're staring down the barrel of a contested divorce.

If you were thinking of representing yourself, a word to the wise: it's a bad idea in a contested divorce. Even if you are a lawyer yourself.

There are a few reasons for this. First of all, divorces in which spouses cannot agree are legally complex (translation: messy). This is far too much for the legally untrained to handle on their own.

Second: emotions run too high in this kind of divorce to make it a good idea to represent yourself, even if you are a lawyer. People are angry, feelings will get hurt, and details will get neglected.

What Happens if Uncontested Becomes Contested?

Then, there is the fun situation where an uncontested becomes a contested divorce.

There are plenty of divorces that start out contested and end up uncontested and settled out of court. This is to everyone's benefit--it is faster, less complicated, and less of a financial burden for all involved.

An uncontested divorce that becomes a contested divorce, however, is another beast entirely. Once this happens, you're going to have to call a lawyer if you have not already, so that they can help you take the appropriate legal action.

The Legal Process of Divorce

With this in mind, let's talk about the legal process behind a contested divorce. This will help you know what to expect and how to proceed with your lawyer once your divorce is set in motion.

Understanding Grounds for Divorce

Before you do anything, you need to understand what constitutes the legal grounds for divorce.

The potential grounds for divorce are the same regardless of whether you're getting an uncontested or contested divorce. Either way, you should know what they are so your lawyer knows how to proceed.

In Canada, there are three reasons which are recognized as legally valid for pursuing a divorce: adultery, abuse or cruelty, and separation.

Note that the grounds for divorce are not always the deciding factor in other matters like custody and child support, though they may be taken into consideration depending on the circumstances. If your spouse was abusive, for example, then this may be counted in your favor in a custody decision.

Adultery

Adultery in Canada is defined as one or both partners having sex with someone else during their marriage.

The offended spouse can instead choose to forgive. If they go that route adultery is no longer legally valid as grounds for a contested divorce.

You should also keep in mind that only the spouse who was cheated on can use adultery as grounds for divorce.

We mentioned earlier that the grounds for divorce aren't always the deciding factor in other areas of the divorce. This is also true of adultery--it won't affect a custody decision, for example, unless that conduct is relevant to that spouse's ability to parent.

Abuse

The second ground for divorce is abuse, which can include physical and mental cruelty.

Physical cruelty includes:

  • Physically harming your spouse or children, such as hitting
  • Sexually abusing your spouse or children

Mental cruelty includes:

  • Harassing or insulting your spouse or children
  • Humiliating your spouse or children
  • Threatening your spouse, your spouse's family, or your children
  • Emotional manipulation

Note that these are not one-and-done factors. For abuse or cruelty to be considered grounds for divorce, the abuse must make it intolerable for the victim to continue living with their abuser.

A number of factors are taken into consideration to decide what constitutes intolerable. These include the actions of the abuser, how often they occurred, whether they were intentional, and the impact on the victim.

Keep in mind that the same basic rules apply to abuse: only the victim of abuse can cite abuse as grounds for divorce, and courts will often refuse joint requests for divorce based on cruelty.

Separation

In Canada, a separation is when a couple has decided to live apart from each other because a relationship has broken down.

It's easiest to prove a separation if you're living apart, though it can be proven if you are still living in the same house. Examples include:

  • Living in separate rooms
  • No sexual relationship
  • Little or no spoken communication
  • Little or no time spent together, including grocery shopping or chores
  • Entirely separate social lives

A judge will ultimately decide what constitutes a separation. While there is no time limit on a separation, you must be separated for a minimum of one full year to use separation as valid legal grounds for divorce.

However, you are permitted to live (cohabitate) as man and wife or as spouses if in a same-sex marriage, for a period not exceeding 90 days without restarting the one year of separation.

Meeting with an Attorney

Once you know that you will have a contested divorce and what the grounds are, it is vital to get in touch with a divorce lawyer (sometimes called a family lawyer) as soon as you can.

Once you've interviewed a divorce lawyer and decided on the lawyer that you will use, they will sit you down and interview you thoroughly. Be prepared to answer all of their questions with as much detail and honesty as possible.

This is also when they will gather all documents and information relevant to your divorce, including provincial marriage certificate, marital assets, children, and anything else you believe to be pertinent.

This will entail a lot of work on your part beforehand, so come prepared. Read everything and make copies of all paperwork your lawyer files for you.

You should also come prepared with questions. Here are seven questions to get you started.

Statement of Claim for Divorce/Division of Marital Property

Once you have met with your lawyer and filed a divorce petition based on the information you provided, your lawyer will serve the Statement of Claim your spouse. This can be done either in person through a friend but is more commonly done through a process server.

Usually, this is a reasonably quick process. If, however, your spouse cannot be found for some reason, a notice for substitutional service may be published in the local papers or social media and you will have to wait a pre-determined amount of time before being able to obtain a default judgment.

Typically, your spouse has 30 days to respond to the Statement of Claim.

Discovery Process

If you do receive a Statement of Defence and possible counter-claim to the Statement of Claim the designated time frame, the next step in a contested divorce is what's called the discovery (disclosure) process.

This is a lot like the extensive interview your lawyer did with you before you began this process. Essentially, the two spouses will obtain detailed information from each other about issues related to their divorce, including assets and custody.

This is done through affidavits, written interrogatories, and document requests.

Like the Statement of Claim, there is a time limit on how long you have to respond to discovery requests.

It is common for spouses to miss deadlines in an attempt to drag the divorce process or hide assets, so you and your lawyer need to be on top of your spouse to keep the timeline on schedule and seek appropriate court orders to compel the disclosure of information or to impute income where appropriate.

Settlement Negotiations

Once the discovery process is complete, you enter settlement negotiations. Uncontested divorces end here, and most judges and lawyers will try to encourage a contested divorce to resolve here as well.

If you and your spouse cannot agree, a judge may order a third-party mediator to try and help you work out your unresolved conflicts or you may agree to a binding judicial dispute resolution (Binding JDR) process.

If you still cannot reach an agreement, the discovery process resumes and you are scheduled for a court date.

Divorce Trial

This is where things get messy (if they have not already).

During your divorce trial, both sides will be allowed to call witnesses, cross-examine witnesses brought by the other side, and make closing arguments.

It's important to talk thoroughly with your lawyer about your plan beforehand, and let them take the lead once the trial commences. Remember: emotions are running high. You need a professional.

How long it takes for a judge to reach a decision is dependent on how complex your case is.

After the Trial

Once the judge has reached their decision, one of a few things can happen.

In the best case scenario, that's the end of your contested divorce and you can carry on with your life; once the appeal period has expired your or your lawyer can order a Certificate of Divorce which you will need if you ever want to re-marry.

Otherwise, both parties have the right to file an appeal for relief from the judgment, which the other party has to respond to within 30 days. If the appeal is approved, you or your spouse will have the chance to argue why the ruling was unfair.

This can restart the process for another few months.

Once everything is finalized, here are eight steps you should take next.

Preparing for a Divorce

Nobody wants to think about having a divorce, and you certainly shouldn't have to deal with it alone.

We cover various areas of family law, including divorce issues, child custody, child support, common law relationships, and other forms of domestic partnership.

If you need a lawyer, get in touch today via our contact page.

Preserving Your Last Wishes: A Legal Guide To Crafting The Last Will

Preserving Your Last Wishes: A Legal Guide To Crafting The Last Will

Do you need to prepare your final will and testament? here is a legal guide to crafting the last will in a way that respects and preserves your wishes properly.

No one likes to talk about death. But if you aren't prepared with the last will before you go, you're leaving behind a huge legal mess for your family to clean up after you.

If you're not sure where to begin, you've come to the right place.

What is the Last Will?

Let's start with the basics: what is the last will?

Essentially, your last will is an important legal document that acts as the building block of your estate plan. This can be in the form of a will-based estate plan which may incorporate certain trusts and should be supplemented by a Power of Attorney and Personal Directive ("Living Will")

In creating a proper estate plan, your will is the central document and the last word. It will provide 6 key points of information:

  • Who will serve as your executor
  • The powers of your executor
  • Who will inherit your property
  • How your property will pass to your beneficiaries
  • Who are the Guardians of your minor children
  • It will set up trusts for your minor children

In contrast, a Power of Attorney creates trust-based estate plan uses a revocable living trust.

This governs what will happen to your estate and asset in the event that you are no longer able to make decisions about your estate on your own, as with dementia or a stroke; which come into existence on mental incapacity and end on death or recovery.

If budget becomes an issue it may sometimes be more important to grant power of attorney or include a personal directive.

Estate planning lawyers have a joke: "Where there is a will there is a relative". It is important to have a fully informed discussion with an experienced estate planning lawyer to ensure your last wishes are carried out and you have an emergency plan in place in case you cannot make decisions for yourself.

Along with a good estate plan, it is also important to have proper life and disability insurance in place; and, a good lawyer should ask you about this aspect of your estate planning in your appointment as well.

Variations in the Forms of a Will

For the last will to be considered legally valid, there are certain formalities that must be observed with regards to how it is made. However, there are a few exceptions, which are listed below.

Oral Wills

Oral, spoken or "nuncupative" wills are relatively rare, as they are not recognized everywhere (and even then highly specific circumstances with rare validation).

Oral wills are only created and validated when you are in imminent danger of death and they must be created in the presence of two witnesses.

Video Wills

Video wills are a form of oral will and are not considered legally binding in areas that require a written will. A video will is permissible (in accepted jurisdictions) so long as the requirements for an oral will were met.

The key benefit of a video will over a plain oral will is to prove sound mind and freedom from duress at the time of the will's creation.

Holographic Wills

Finally, we come to holographic wills. These are a form of will which is written entirely by hand.

Witnesses are not required, but two disinterested parties have to verify that the handwriting throughout the will is yours. Otherwise, the typical requirements for a valid written will apply.

It is important to note that many holographic wills are deemed invalid by the Surrogate Court of Alberta; even, more important, is that many holographs are not thorough enough to cover the "what if" situations that a proper estate plan will cover.

Legal Requirements of the Last Will

With that in mind, what are the legal requirements of the last will?

Your estate lawyer can break down the requirements more specifically (and help make sure that you meet them) but here's what you should be looking out for.

Testamentary Intent

You may hear of a will referred to as the last will and testament. This is why you are often referred to as the testator, so the word "testamentary" refers to you.

Testamentary intent means that you intend in no uncertain terms for this document to be your legally binding will. Your will should include specific language like "this is my last will and testament."

It seems basic, but if this language isn't included, your beneficiaries could contest the will as invalid.

Testamentary Capacity

Essentially, testamentary capacity means that you were of sound mind when you made the decision to create the last will as it currently reads.

To be precise, testamentary capacity means that at the time of creating the will, you fully understood that you were creating a will, that you understood the nature of the property you own and how the will relates to it, and you fully understood the language being used and who would inherit your property.

It also means that you fully understand who your beneficiaries are (or should be) in relation to the size of your estate.

If you believe that someone might have reason to doubt your soundness of mind at the time of writing the will, you should get a doctor's letter included which states that you were lucid and of sound mind at the time of signing the will.

Legal Age

In most places, you have to be at least 18 years old to create a legally binding last will and testament.

However, there are some notable exceptions, particularly with underage military members, emancipated minors, or if a minor has inherited a large sum of money. If you are a minor, talk to your lawyer about your circumstances.

Legal Witness

In most areas, you need at least two adult witnesses to sign the will, though some areas require more.

By signing, your witnesses are affirming three things:

  • They know the document is a will
  • That you were of sound mind when you signed the will
  • That all three people were in the room together when the will was signed

This is particularly important if your will is contested, as the witnesses will be called upon to testify.

We mentioned the term "disinterested witnesses" earlier. Some areas require disinterested witnesses--in other words, people who do not stand to benefit from the last will in any way.

Even if your area doesn't require them, disinterested witnesses are a good idea because if your will is contested, the witnesses cannot be accused of coercing you for their own gain.

Valid Signature

Finally, you must sign your will.

It seems obvious, but since the will takes effect after you're dead and no longer around to speak for its contents, the signature is your way of attesting that this is your will and you fully agree with the contents.

The signature must be completed entirely of your own free will--otherwise, if it comes out later that you were coerced, signed under duress, or signed under fraud, the entire will could be invalidated.

If you're unable to sign, a representative may be allowed to sign for you with your permission and in your presence.

Essential Parts of the Last Will

We mentioned earlier that the last will needs to follow certain formalities in order to be considered binding. Your estate lawyer can walk you through more specific details, but here are seven key points.

Introductory Language

In other words, the paragraph immediately after the title.

This will establish you as the testator, that you intend for this to be your last will, and that you are creating the will in sound mind and of your own volition.

One important part is the final sentence of the introduction, which explains that any wills which may exist created prior to this one are no longer valid after executing this will (which happens when you sign in the presence of a witness).

Declarations

This is a short section, meant to state your marital status at the time of signing the last will as well as the names of any living biological or adopted children you may have.

Payment of Debts and Expenses

From here, we move on to an important part of any will: settling any remaining debts and expenses.

Typically, this is done by having debts paid out of the residuary estate, which is the assets that remain in your estate after paying your final debts. By law, your legally enforceable debts must be repaid upon your death.

General Instructions

This clause in the last will includes any specific instructions relating to the beneficiary. Typically, it states that the beneficiary must survive you by at least 30 days in order to legally receive a gift under the will.

It may also include specific instructions if the beneficiary dies not long after you, as in a car accident where both of you suffered severe injuries.

Tangible and Intangible Property

To put it simply, tangible property is any form of property you own besides real estate. It includes things like cars but also includes furniture, jewelry, etc.

Intangible property is a non-physical asset like a bank account, retirement account, insurance, stocks, investment accounts, etc.

This section outlines what will happen to that property, including what will happen if your first-choice beneficiary cannot claim the gift. If no beneficiaries can claim it, your assets will return to the residuary estate and pass to whatever beneficiaries are due to receive such property.

It's worth noting that you can specify two or more such beneficiaries under the will. For example, it's common for a spouse to be the first choice and for the children to receive the property as secondary beneficiaries if the spouse doesn't survive you.

Estate

Note that tangible property did not include real estate. That's because real estate is covered under the estate section. You have a few options here.

You can choose to give your entire estate as a gift to one beneficiary or give it to co-beneficiaries. Otherwise, you can specify a beneficiary and secondary beneficiary to receive the residuary estate.

If no beneficiaries survive you, then your estate will pass to your heirs based on the inheritance laws of the area you live in. Generally, they aim to give your estate to your spouse or closest living relative.

Digital Assets

These days, with the existence of social media and a proliferation of digital information, it has now become necessary to include instructions in your will.

In the digital assets section, you can bequeath your digital assets to a beneficiary or beneficiaries, including social media accounts, digitally stored photos, online accounts, and other digital information.

Executors and Executor Powers

This section appoints the executor or executors responsible for handling your last will and distributing your property after your death.

It's generally a good idea to appoint a first- and second-choice executor in case your first choice is unable or unwilling to serve. In the absence of an executor, a court will appoint one.

This section grants the executors their power to fulfill the wishes outlined in your will, including any expedited procedures or unsupervised processes to administer the estate as quickly as they can.

Guardians

This section is your appointment of guardians of minor children.

The court will need to approve the guardian and their decision will be based on what is in the best interest of the children. The Offices of the Public Trustee and the Public Guardian will step in to make sure the minor child is looked after with the least impact on their life.

If you are separated or divorced, it is important to note that the other biological parent of the child or children may have the best right to guardianship of the minor children even if you appoint someone other than the biological parent.

Preparing the Last Will and Testament

You don't want to be left in the dark when it comes to your will, and you don't want to leave a giant legal mess for your family to muddle through.

This is why you need an experienced estate lawyer on your side.

For common questions relating to probates, wills, and the services we provide, take a look at our services page. If you need legal resources, take a closer look at our resources page, which includes information like lawyer-client expectations.

But if you need an estate attorney, don't wait until it's an emergency. Head to our contact page to start a conversation about your will and estate planning.

Divorce vs Separation Agreement: Which One Is Right For You?

Divorce vs Separation Agreement: Which One Is Right For You?

More and more couples are opting for a legally binding separation agreement rather than divorce. Learn the benefits of both and when to consider each inside.

It's a sad but unfortunate truth: Approximately 2.6 million Canadians divorced in 2017. This represents about a 780,000-increase from the previous 1.88 million divorcees back in 2000.

It also shows the changing perspective people have not just over divorce, but marriage itself.

If you're considering this route, understand that you do have options other than a divorce, and that is through obtaining a separation agreement. To further simplify the processes for you, I'll present the facts you need to know about divorce and legal separation in Canada, and what you should do following your decision.

Why People Get Divorced

First things first, let's take a look at the primary reasons why people file for a divorce:

  • Destruction of trust, usually due to infidelity and cheating
  • Financial problems that place significant emotional stress on both parties
  • Various types of addictions, including to work, drugs, and alcohol
  • Loss of children
  • Religious incompatibility
  • Irreconcilable differences

These are just some of the many other factors that trigger married individuals into getting a divorce, but they are the most common. Perhaps you find yourself in one of these situations, which is why you are considering filing for one yourself.

Divorce: Is It Really the Best Option?

Regardless of your reasons for wanting a divorce, it's best that you rethink your decision several times before pushing through with it. This is especially true with a separation agreement possibly offering you a wiser alternative.

In any case, determining if what you're experiencing is only a rocky phase or something more long-term is a crucial first-step. Here are a few questions to ask yourself that will help you have a clearer picture of which path to pursue:

  • Can you justify how you feel?
  • Have you considered the possibility that you're making more out of what's happening and what you're feeling?
  • Is there anything you can think of to save your marriage?
  • Are you already convinced that there's no repairing your marriage?

Deciding to end your marriage is one of the biggest, emotionally-charged decisions you can ever face, and one that can affect you in the long run. This is especially true if you still have minor children.

What Makes Separation Agreement Different from Divorce?

When filing for a divorce in Canada, it's vital you understand how complex and lengthy a process it is. In a nutshell, you need to go through ten basic steps to complete it.

Opting for a marriage separation agreement, on the other hand, typically require less from both parties, not to mention giving you the opportunity to avoid having to take things to court.

When you and your spouse decide that legal separation is the best way to approach the marriage, both of you will enter a legally-binding agreement that covers the most important things. From handling property and assets to dealing with debts, and most importantly, agreeing on child custody matters, you and your spouse must give consent on all these.

To help simplify things, we'll walk you through how you can develop a marriage separation agreement:

  • You and your spouse will both agree to legally separating and how both sides will handle property, asset, and debt allocation.
  • You and your spouse will reach an agreement regarding all matters involving your children and how to meet their best interests.
  • You and your spouse are still undecided on divorce but would like to legally separate prior to finalizing your decision on ending the marriage.
  • You are considering legal separation and would want to discuss terms for property division.
  • You have plans of meeting with a lawyer regarding how best to approach the end of your marriage, and would like to prepare an outline for property, asset, and debt division.

Keep in mind that divorce doesn't automatically take place even after some time that you and your spouse have entered legal separation. Nor does this mean that a divorce will automatically happen after legally separating.

For some couples, the time they spend legally separated provides them with an opportunity for reconciliation, which is also one of your options to approach your own marriage. It is also to understand two more things:

  • Canada Pension Plan Distribution is governed by Federal Rules and exists outside the Matrimonial Property Act of Alberta and can apply to married or common-law couples and is based on the amount of time spent together.
  • Matrimonial Property calculations, in the absence of a Matrimonial Property and Separation Agreement are based on values as of the date of divorce NOT separation.

It is important to also understand that Matrimonial Property falls under the Matrimonial Property Act of Alberta, while Divorce falls under the Divorce Act of Canada.

When Agreeing to Legally Separate is a Better Alternative

Once the court finalizes a divorce, or as soon as it issues a Divorce Decree, this already means complete termination of the marriage.

However, when you opted for a Marriage Separation Agreement, you are still legally married, even though it's a legally-binding agreement.

So, when does it make better sense for you to enter this agreement rather than completely terminating the marriage right away? Here are a few situations that will help shed light on this matter:

  • You and/or your spouse are not emotionally-prepared for a divorce yet.
  • You and/or your spouse may not want to live under the same roof but also don't want to get a divorce.
  • You and/or your spouse want to keep benefits, such as medical insurance, government-provided, or tax incentives that you otherwise will no longer receive after a divorce.
  • You will pay spousal support throughout the separation period, but you need an agreement to ensure the deduction of the payments on your tax return.
  • You and your spouse want to finalize matters involving properties and finances before beginning the divorce process.

These are just some of the common circumstances wherein entering legal separation is more appropriate or suitable than immediately ending your marriage through divorce. In the event you find yourself nodding in agreement to one or several of the above circumstances, then you may want to have this agreement first before making much bigger decisions.

Find the Best Method for You and Your Marriage

One last thing to keep in mind is that while many couples have chosen this path, it doesn't automatically make legal separation the right choice for you.

Divorce is complex both legally and emotionally; and, so is legal separation. Your confusion is completely understandable. Don't worry; we can help. Feel free to contact our firm regarding any questions about Divorce, Separation, and all aspects of family law in Alberta and Canada.

The Last Will and Testament

The Last Will and Testament

No one likes to talk about death. But if you are n0t prepared with the last will before you go, you're leaving behind a huge legal mess for your family to clean up after you.

If you're not sure where to begin, you've come to the right place.

What is the Last Will and Testament?

Let's start with the basics: what is the last will?

Essentially, your last will is an important legal document that acts as the building block of your estate plan. This can be in the form of a will-based estate plan which may incorporate certain trusts and should be supplements by a Power of Attorney and Personal Directive (“Living Will”)

In creating a proper estate plan, your will is the central document and the last word. It will provide 6 key points of information:

  • Who will serve as your executor
  • The powers of your executor
  • Who will inherit your property
  • How your property will pass to your beneficiaries
  • Who are the Guardians of your minor children
  • It will set up trusts for your minor children

In contrast a Power of Attorney creates trust-based estate plan uses a revocable living trust, which governs what will happen to your estate and asset in the event that you are no longer able to make decisions about your estate on your own, as with dementia or a stroke; which come into existence on mental incapacity and end on death or recovery. If budget becomes an issue it may sometimes be more important to grant power of attorney or include a personal directive.

Estate Planning Lawyers have a joke: "Where there is a Will there is a Relative". It is important to have a fully informed discussion with an experienced Estate Planning Lawyer to ensure your last wishes are carried out and you have an emergency plan in place in case you cannot make decisions for yourself. Along with a good estate plan it is also important to have proper life and disability insurance in place; and, a good lawyer should ask you about this aspect of your estate planning in your appointment as well.

Variations in the Forms of a Will

For the last will to be considered legally valid, there are certain formalities that must be observed with regards to how it is made. However, there are a few exceptions, which are listed below.

Oral Wills

Oral, spoken or "nuncupative" wills are relatively rare, as they are not recognized everywhere (and even then highly specific circumstances with rare validation).

Oral wills are only created and validated when you are in imminent danger of death and they must be created in the presence of two witnesses.

Video Wills

Video wills are a form of oral will and are not considered legally binding in areas that require a written will. A video will is permissible (in accepted jurisdictions) so long as the requirements for an oral will were met.

The key benefit of a video will over a plain oral will is to prove sound mind and freedom from duress at the time of the will's creation.

Holographic Wills

Finally, we come to holographic wills. These are a form of will which is written entirely by hand.

Witnesses are not required, but two disinterested parties have to verify that the handwriting throughout the will is yours. Otherwise, the typical requirements for a valid written will apply.

It is important to note that many holographic wills are deemed invalid by the Surrogate Court of Alberta; even, more important, is that many holograph are not thorough enough to cover the "What If" situations that a proper Estate Plan will cover.

Legal Requirements of the Last Will

With that in mind, what are the legal requirements of the last will?

Your estate lawyer can break down the requirements more specifically (and help make sure that you meet them) but here's what you should be looking out for.

Testamentary Intent

You may hear of a will referred to as the last will and testament. This is why you are often referred to as the testator, so the word "testamentary" refers to you.

Testamentary intent means that you intend in no uncertain terms for this document to be your legally binding will. Your will should include specific language like "this is my last will and testament."

It seems basic, but if this language isn't included, your beneficiaries could contest the will as invalid.

Testamentary Capacity

Essentially, testamentary capacity means that you were of sound mind when you made the decision to create the last will as it currently reads.

To be precise, testamentary capacity means that at the time of creating the will, you fully understood that you were creating a will, that you understood the nature of the property you own and how the will relates to it, and you fully understood the language being used and who would inherit your property; and, you fully understand who your beneficiaries are (or should be) in relation to the size of your estate.

If you believe that someone might have reason to doubt your soundness of mind at the time of writing the will, you should get a doctor's letter included which states that you were lucid and of sound mind at the time of signing the will.

Legal Age

In most places, you have to be at least 18 years old to create a legally binding last will and testament.

However, there are some notable exceptions, particularly with underage military members, emancipated minors, or if a minor has inherited a large sum of money. If you are a minor, talk to your lawyer about your circumstances.

Legal Witness

In most areas, you need at least two adult witnesses to sign the will, though some areas require more.

By signing, your witnesses are affirming three things:

  • They know the document is a will
  • That you were of sound mind when you signed the will
  • That all three people were in the room, together, when the will was signed.

This is particularly important if your will is contested, as the witnesses will be called upon to testify.

We mentioned the term "disinterested witnesses" earlier. Some areas require disinterested witnesses--in other words, people who do not stand to benefit from the last will in any way.

Even if your area doesn't require them, disinterested witnesses are a good idea because if your will is contested, the witnesses cannot be accused of coercing you for their own gain.

Valid Signature

Finally, you must sign your will.

It seems obvious, but since the will takes effect after you're dead and no longer around to speak for its contents, the signature is your way of attesting that this is your will and you fully agree with the contents.

The signature must be completed entirely of your own free will--otherwise, if it comes out later that you were coerced, signed under duress, or signed under fraud, the entire will could be invalidated.

If you're unable to sign, a representative may be allowed to sign for you with your permission and in your presence.

Essential Parts of the Last Will

We mentioned earlier that the last will needs to follow certain formalities in order to be considered binding. Your estate lawyer can walk you through more specific details, but here are seven key points.

Introductory Language

In other words, the paragraph immediately after the title.

This will establish you as the testator, that you intend for this to be your last will, and that you are creating the will in sound mind and of your own volition.

One important part is the final sentence of the introduction, which explains that any wills which may exist created prior to this one are no longer valid after executing this will (which happens when you sign in the presence of a witness).

Declarations

This is a short section, meant to state your marital status at the time of signing the last will as well as the names of any living biological or adopted children you may have.

Payment of Debts and Expenses

From here, we move on to an important part of any will: settling any remaining debts and expenses.

Typically, this is done by having debts paid out of the residuary estate, which is the assets that remain in your estate after paying your final debts. By law, your legally enforceable debts must be repaid upon your death.

General Instructions

This clause in the last will includes any specific instructions relating to the beneficiary. Typically, it states that the beneficiary must survive you by at least 30 days in order to legally receive a gift under the will.

It may also include specific instructions if the beneficiary dies not long after you, as in a car accident where both of you suffered severe injuries.

Tangible and Intangible Property

To put it simply, tangible property is any form of property you own besides real estate. It includes things like cars but also includes furniture, jewelry, etc.

Intangible property is a non-physical asset like a bank account, retirement account, insurance, stocks, investment accounts, etc.

This section outlines what will happen to that property, including what will happen if your first-choice beneficiary cannot claim the gift. If no beneficiaries can claim it, your assets will return to the residuary estate and pass to whatever beneficiaries are due to receive such property.

It's worth noting that you can specify two or more such beneficiaries under the will. For example, it's common for a spouse to be the first choice and for the children to receive the property as secondary beneficiaries if the spouse doesn't survive you.

Estate

Note that tangible property did not include real estate. That's because real estate is covered under the estate section. You have a few options here.

You can choose to give your entire estate as a gift to one beneficiary or give it to co-beneficiaries. Otherwise, you can specify a beneficiary and secondary beneficiary to receive the residuary estate.

If no beneficiaries survive you, then your estate will pass to your heirs based on the inheritance laws of the area you live in. Generally, they aim to give your estate to your spouse or closest living relative.

Digital Assets

These days, with the existence of social media and a proliferation of digital information, it has now become necessary to include instructions in your will.

In the digital assets section, you can bequeath your digital assets to a beneficiary or beneficiaries, including social media accounts, digitally stored photos, online accounts, and other digital information.

Executors and Executor Powers

This section appoints the executor or executors responsible for handling your last will and distributing your property after your death.

It's generally a good idea to appoint a first- and second-choice executor in case your first choice is unable or unwilling to serve. In the absence of an executor, a court will appoint one.

This section grants the executors their power to fulfill the wishes outlined in your will, including any expedited procedures or unsupervised processes to administer the estate as quickly as they can.

Guardians

This section is your appointment of Guardians of Minor Children. The Court will need to approve the Guardian and their decision will be based on what is in the best interest of the children. The Offices of the Public Trustee and the Public Guardian will step in to make sure the minor child is looked after with the least impact to their life.

If you are separated or divorced, it is important to note that the other biological parent of the child or children may have best right to Guardianship of the minor children even if you appoint someone other than the biological parent.

Preparing the Last Will and Testament

You don't want to be left in the dark when it comes to your will, and you don't want to leave a giant legal mess for your family to muddle through.

This is why you need an experienced estate lawyer on your side.

For common questions relating to probates, wills, and the services we provide, take a look at our services page. If you need legal resources, take a closer look at our resources page, which includes information like lawyer-client expectations.

But if you need an estate attorney, don't wait until it's an emergency. Head to our contact page to start a conversation about your will and estate planning.

8 Things You Need to Know About Divorce Mediation

8 Things You Need to Know About Divorce Mediation

Are you thinking about divorce mediation as a way of sorting out the stressful mess that has become your divorce? That's a good idea. Stats Can (Statistics Canada) shows that 1/3 of all written agreements between the parties are drafted by lawyers; saving clients large sums of money and huge amounts of stress.

Divorce mediation focuses on a cooperative method that involves bringing in a third party to mediate negotiations.

This can be the best way to proceed for the following reasons.

1. It's Actually Less Expensive

Divorce mediation can save you the legal costs associated with a long and dragged out divorce process.

Committing to it early on in the process can save you a lot of money over the long-run. Particularly if you and your ex are currently on contentious terms and you feel like they're going to fight you on every single detail, or vice versa.

2. It Can Help You Get a Better Settlement

Choosing mediation can actually get a better settlement when it comes to:

  • Spousal support
  • Child support
  • Child custody

You're committed and working towards a good outcome for everyone. This means you're less likely to get worn down and give in over the grind of a long and drawn out divorce process.

Too many people just "cave" in the late stages of a divorce, simply because they have run out of money to keep fighting, or they simply just want to put it all behind them.

You can avoid this with divorce mediation.

3. It Can Keep You Out of the Courtroom

The entire point of divorce mediation is to keep you out of divorce court.

Divorce court should always be your absolute last resort. It's expensive, it's hostile, and you're putting your fate 100% in the hands of a judge. Once their decision is final, it is very final.

Mediation is more affordable and ensures you have a say in your future at every single phase of negotiation.

4. It Takes the Hostility Out of Things

Trust us when we say we've seen couples who couldn't have been further apart come together during the mediation process.

Infidelity, lies, and resentment during the marriage can put both parties in an adversarial mode during most divorces. Bringing in a third party can help defuse the built-up emotions and keep you focused on the future.

5. It's Less Stressful

The most stressful part of divorce can be the unknown. Not knowing what tomorrow will bring. Who will the kids live with? Can I keep the house? How will the family business be split?

The stress comes from not knowing the answers to these questions and feeling like the outcome is completely out of your hands.

Mediation keeps you involved and helps you feel like you have a say in your future.

6. It's Better for the Kids

You are also probably stressing about the short and long-term effect that this divorce will have on the children involved.

You may have heard scary statistics like children of a divorce are 50% more likely to develop health problems than two-parent families. But it doesn't have to be that traumatic.

There's no doubt that this experience can be disruptive and long-lasting. But the impact that it has on the kids is largely up to you.

It may not always feel like it, but you are your child's #1 role model. You're the one who shows them how an adult should behave. And a lot of what they think adults should do to resolve conflicts will come from this experience.

So if mom or dad are yelling into their cell phone or constantly arguing in a heated way, they will see that as the norm.

But, if they can see their parents coming together, despite the obvious difficulty, and working together as a team towards a common goal, they will find it easy to mirror that behavior later in life.

7. It Helps You Move on

You don't want a long process. Even if you initially feel like you want the other party to suffer, you actually don't want that. You would rather just move onto the next phase of your life as peacefully as possible, with a feeling of closure.

Of course, you want to be set up to do so. You will want the best possible settlement to make sure you're financially where you need to be. And, you need to know that your future with your kids is assured of a good custody settlement.

Divorce mediation can help you achieve all of those things, which helps you truly start to put the past behind you and build a new and better life.

It can't help you take back the years of your life where you were unhappy. It can, however, set you up to pursue the happiness you deserve in the next chapter of your life.

8. If You're Anticipating a War, You Should Start With Divorce Mediation

The more difficult you imagine thins being between you and your ex, the more reason to start talking about mediation right now.

Don't waste time or money with heated exchanges and unproductive conversations. Take the emotion and stress out of things right in the early stages, so you can arrive in a better place as soon as possible.

You may have a steadfast idea in your head right now that you and your ex hate each other, will never be able to work together, and both sides ending up in divorce court is all but inevitable.

Again, it doesn't have to be that way, mediation exists because people enter into a divorce with this mentality, and it works because it facilitates the process of working together.

Even the most resentful and hostile couples have become mediation success stories, despite their hesitation going into the process.

Ready to Talk About Your Divorce?

We are experienced in Divorce and Family Law but handle cases of all types.

How can we help you? Click here to contact us anytime.

How to Handle Obtaining Power of Attorney for Your Parents

How to Handle Obtaining Power of Attorney for Your Parents

As your parents age, obtaining power of attorney is important, but can be a difficult subject to broach. Learn more here about how to navigate the process.

If you love your parents, you know you'd do anything to make sure they have a quality of life. As they get older, they may naturally need more assistance in their daily lives. This could include aged care and sometimes it can also mean having someone who can manage their finances for them.

But that is not the case for all parents.

According to statistics, only around 51% of Canadians have a Will and other estate planning documents, with the younger the age of the person, the less likely they are to have a Will.

If you want the best for your loved ones, you need to consider how you will go about obtaining power of attorney for your parents. It's a process that requires a lot of care and thought, so read on to find out the best way to go about it.

What is Power of Attorney?

Also known as a POA or a power of attorney agent, a power of attorney is someone who manages the livelihood and finances of another person when they are unable to do so themselves.

This may include looking after their finances, dealing with the Canada Revenue Agency, Banks, Land Titles, Insurance Companies, Investments Companies and all other legal matters that do not involve medical or personal life choices.

There are specific guidelines that must be followed by the agent when it comes to the principal they are looking after.

Why Would Your Parents Need One?

One of the most common reasons for using a power of attorney is when one or both of your parents have a condition which makes them mentally unfit to care for their own finances. This includes conditions such as dementia or Alzheimer's.

According to statistics, one in eight people over the age of 65 has Alzheimer's disease and nearly 50% of people over the age of 85 have it.

By obtaining power of attorney, a trusted family member or friend can make certain business and financial decisions on their behalf. This allows them to get the care they need and to ensure their assets are looked after properly.

It is vital to note that your parents cannot consent to have a power of attorney if they already have dementia or Alzheimer's. This is because they aren't considered sound of mind enough to make that choice on their own.

Therefore, you need to ensure you have a legally binding power of attorney in place should the worst happen in the future.

How do You Go About Obtaining Power of Attorney?

There are a number of steps you must take in order to obtain power of attorney. As it involves a topic that can be tricky for some to discuss with their parents, it's important to do this slowly but as soon as possible.

Continue reading to learn these steps.

1. Discuss it with Your Parents

Before you can do anything, you need to ensure there is clear and open communication between you and your parents. Talk to them about what could happen in the future and how you want to ensure they have peace of mind.

Don't forget to explain to them what a POA is to them and why they need it. As well as this, make sure you have their permission before obtaining Power of Attorney for them. Also, ensure they are sound of mind enough to grant that permission too.

2. Consider the Best Agent

You also need to choose someone to be your parents' agent. This is the person who will hold power of attorney over them. Thus, it has to be someone you can trust.

Essentially, this should be their spouse and then you. You should also think about an alternate agent in case the primary agent is unable or unwilling to act as an agent for your parents.

But if you, for whatever reason, are unable to act as their agent, consider someone else who would make a suitable candidate.

Think about how close the potential candidate is to your parents. It has to be someone who knows them well and can make decisions on their behalf that would align with their wishes, including cultural and religious beliefs.

For example, they need to know for certain whether they would be happy to be resuscitated or not in an emergency situation.

Geographic proximity is also important too. If you live on the other side of the world from your parents, you want someone close by who can look out for the needs and desires of your parents in an emergency.

You also want a candidate who is in good health. After all, an agent who has power of attorney should be able to carry out decisions on your parents' behalf without having health issues to deal with as well.

3. Determine the Type of Power of Attorney Needed

There are different reasons for obtaining power of attorney. Therefore, it makes sense that there are different types of power of attorney too. You need to decide which one is the best for your parents and the condition they are in.

A springing power of attorney does not go into effect until a certain qualification is met. It is typically granted once the principal is incapacitated and a doctor signs a medical directive stating that the person no longer has the mental capacity to make their own day to day business and financial decisions.

In comparison, an immediate power of attorney goes into effect immediately and continues to be valid afterward.

4. If All Else Fails, Pursue Legal Guardianship

If for some reason you cannot properly obtain power of attorney, you can still attempt to get legal guardianship over your parents. This is especially useful if one or both of your parents are already incapacitated.

The authority held by a guardian is similar to that held by someone who has gone through the process of obtaining power of attorney. They are still accountable to the court and they must also provide regular transaction reports.

In order to become a guardian, the principal must be deemed to be legally incompetent. Thus, your parents must be unable to meet their own needs.

Once you file for guardianship, in Alberta called a Dependent Adult Application, the court will have a hearing. The proposed guardian must establish the incompetence of the principal and that no other alternatives are available.

Once this is ascertained, the legal guardianship is granted. This is a very formal and expensive process, often costing somewhere between $5000.00-$10,000.00.

5. Alberta Requirements for Obtaining Power of Attorney

The Power of Attorney is a very powerful document. Therefore, each province is different when it comes to requirements of obtaining power of attorney. Some of them have special forms that you need to fill out.

If you're in a complicated situation and you're not exactly sure what to do, you can hire an attorney. This attorney can assist you and your parents in going through the proper requirements for granting power of attorney.

A hired attorney can prepare the document and they may notice any legal issues that you could have missed.

Any specific details are helpful as well. For example, instead of just saying that the agent has power over the principal's finances, say that the agent has the power to withdraw money from the principal's bank accounts and make payments for them.

6. Have the Document Notarized

Once drafted, you need to ensure you have multiple copies of the POA.

Rather than just giving out the originals when it comes into effect, make sure the document is notarized as a true copy. Most financial institutions will happily accept a Notarized True Copy allowing you to retain the originals for Alberta Land Tiles, that now accept Notarized copies and the Canada Revenue Agency.

Get Started Obtaining Power of Attorney Today

If you want what is best for your parents, you need to ensure you are obtaining power of attorney over them in case the worst was to happen. In order to do this, you need to take careful steps legally. To help you, you need a professional attorney who can provide you with assistance in this matter.

For more information or to get in contact with us, click here.

Complete Guide: When and How to Get Full Custody of Your Child

Complete Guide: When and How to Get Full Custody of Your Child

When and How to Get Full Custody of Your Child

In some situations, getting full custody of your child is in their best interest. Find out how to get full custody and when you absolutely need it.

Divorce, separation, and break up. These mark some of the most challenging experiences families ever endure.

The decisions involved in the dissolution of a couple feel heart wrenching and painful. They have repercussions long after custody papers are finalized.

Exploring how to get full custody may prove necessary. But it should only be considered after careful reflection.

Divorce, separation, or a break up dismantle lives and families. Heightened emotions can lead former partners to make tragic choices. They may act out of fear, anger, or disappointment.

But getting full custody may be the only way to secure your child's safety and security. Read on to find out more about how to get full custody of a child and why it's sometimes necessary.

In the Best Interests of the Child

Canada's family judges prefer joint custody arrangements with both parents involved in raising a child. Final determinations vary by court. But judges will attempt to rule in the best interests of the child.

Separation and divorce are traumatic events for a child. No one knows this better than family judges.

Parents seeking full custody must prove that other custody arrangements would negatively impact the child. This can prove a challenging endeavor. Before exploring how to get full custody further, let's briefly explore available custody options.

Physical Custody

It's important to understand different types of child custody. They have a direct impact on divorcing or separating parents' rights to their children. It's important to understand these types of custody when exploring how to get full custody.

Most people are familiar with physical custody, which refers to a parent's right to live with their child. When a child will be spending significant time living with both parents, some courts award joint custody.

But in situations where parents live too far apart, courts award sole physical custody to one parent. Sole custody is meant to spare children the strain of too much traveling.

When one parent has sole physical custody, the child spends every day living with that parent. They only see the other parent for visits.

Legal Custody

Legal custody refers to the legal authority to make major decisions for a child. These decisions include choices about medicine, religion, and schooling.

When one parent has legal custody, they have the power to make unilateral decisions. They choose how the child will be brought up without input from the other parent.

Family judges feel most comfortable awarding joint legal custody to divorcing parents. Again, family judges base their decisions on what's in the best interests of a child. Having both parents involved in important decisions related to a child usually proves optimal.

Sole Custody

Sole custody is also known as full custody. Where joint physical and legal custody would prove detrimental to a child, a judge may award sole custody.

For parents interested in how to get full custody of their child, be prepared for a difficult legal battle. Family courts prefer that parents share custody of a child.

To be awarded sole custody, a parent must show that their former partner is unfit to parent. This can be due to one of the following reasons:

  • significant financial problems
  • mental illness
  • alcoholism
  • drug abuse
  • a history of domestic abuse

When a new live-in partner enters the mix, they can affect custody, too. If a live-in partner is deemed unfit to parent, sole custody may prove necessary.

Joint Custody

Joint custody arrangements can refer to physical custody, legal custody, or both. Joint custody involves parents sharing the responsibility of housing a child. The same goes for joint legal custody where both parents have input into choices regarding their child's future.

Joint custody arrangements aren't just for divorcing parents. They are also arranged for couples who are separated, no longer living together or those who never lived together.

Couples who share joint physical custody work out visitation schedules. They do this based on each parents' housing situation, work responsibilities, and child's needs.

In situations where couples can't nail down a schedule, the court will intervene imposing an arrangement. These arrangements generally involve alternating weeks with each parent.

But they can also encompass longer time periods such as alternating months or longer. In some instances, a child spends weekdays with one parent and weekends and holidays with the other.

In rare instances, children may stay in the same home all the time. In this case, parents take turns living in. Parents must secure private housing outside of their scheduled time with their child. This arrangement is called "nesting" or "bird's nest custody."

Advantages and Disadvantages of Joint Custody

Canada's family judges believe that joint custody arrangements are generally in the best interests of the child. They believe a child needs exposure to both parents.

So, advantages of joint custody include the child staying in regular contact with both parents. The arrangement also allows parents to share responsibility for the child.

Among joint custody's disadvantages, it involves moving a child back and forth. Maintaining two homes for a child can be cost-prohibitive for some. When one parent (or both) is noncooperative, a joint custody arrangement can negatively impact a child.

Despite these disadvantages, family courts have moved away from sole custody. They generally accept the importance of carving out more of a role for each parent in a child's life. Even when sole physical custody is awarded, courts shy away from sole legal custody.

So, joint custody of one sort or another tends to be the norm in Canada's family court system. But there are situations that override this. Sometimes, it may be in a child's best interests for one parent to seek out how to get full custody.

Factors for Getting Full Custody

When a former couple is in the midst of a divorce or a break-up, emotions run high. It can be easy to act out of animosity, anger, or vengeance. This can extend into custody arrangements.

But former couples need to move past these emotions. They should try to make a joint custody agreement work.

One parent should never attempt to gain sole custody for selfish reasons. It shouldn't be pursued out of spite or wishing to avoid an ex.

In parenting arrangements, it is the child's best interests, not those of either parent, that need to be put first. But situations arise where one parent proves negligent, unfit, or abusive.

In these situations, learning how to get full custody of the child proves necessary for the child's wellbeing. Seek family court assistance as soon as possible if you suspect this is your situation.

When a Parent Should Seek Sole Custody

In extreme circumstances, where a child faces real harm from one parent, the other parent should seek sole custody. Seeking full custody, then, should be reserved as a means of protecting a child from endangerment.

What are some circumstances where one parent should seek sole custody? What do you need to know about how to get full custody? Read on.

Abuse ranks at the top of the list.

A clear and present danger exists when one parent has a history of domestic violence or sexual abuse. The danger increases if they have acted out on the child or other children. In such cases, a child should be removed from the potential of real physical harm.

When one parent suffers from serious mental illness, removing a child from their custody may prove best for the child. This means the parent exhibits signs of irrational, unpredictable behavior and mental instability. This would include situations where one parent expresses suicidal thoughts or exhibits such behaviors.

Whether it's alcohol or drugs, substance abuse also raises red flags for judges making sole custody decisions. When a parent is under the influence of alcohol or drugs, they present a real threat to a child. This extends to when a parent abusing a controlled substance is unable to properly supervise or care for a child.

Other Reasons Sole Custody Gets Granted

Another obvious reason for granting sole custody is when one parent is in prison. Because of the parent's incarceration, they prove unable to provide care or lodging for a child.

Under such conditions, seeking sole custody will likely be in the best interests of the child. Then, in future, the formerly imprisoned parent may be offered visitation if no harm will come to the child.

Some parents drop off the radar in the early stages of a child's life. They may be absent for years suddenly re-emerging to take custody of a child that they don't even know. When one parent has shown little or no interest in a child, the other parent should ascertain how to get full custody.

Relocation can present another such situation. When one parent decides to move out of the province, territory, or country, joint custody gets difficult. This may create a situation where sole custody is awarded to the one parent.

Legal Considerations for Those Seeking Full Custody

It's important to understand how family court works and what to expect. Judges will consider a variety of factors while making a custody decision. They will look at:

  • the paternity of a child
  • each parent's relationship with the child
  • how far parents live from one another
  • past histories of domestic violence or abuse
  • incarceration and more

Provinces and territories can vary widely on child custody legal matters. Read up on what the laws where you're seeking custody say about how to get full custody. The chances of getting full custody vary widely by location and situation.

Under the best circumstances, you and your ex-partner may be able to hash out a full custody agreement. If you can agree upon a sole custody arrangement, do so.

Then, present your arrangement to a judge. Typically, judges will approve these.

When one parent is noncooperative and refuses to come to court, the path for how to get full custody gets easier. When one parent neglects to be involved in family court and does not protest the custody, they show disinterest. A judge is more likely to side with the parent suing for full custody.

If you and your ex can't agree, then you'll face a long, uphill battle. You will have to prove to the court that your ex-partner represents a serious threat to your child. This can be challenging and difficult.

Despite gaining full custody of a child, you will still have to allow your ex visitation. If you feel that visitation could pose a threat to your child, ask the court for supervised visits.

But extreme risks to the wellbeing of the child must exist and be proven to a judge. Otherwise, family court will not deny access of a parent to their child.

How to Get Full Custody

Here's the takeaway. When it comes to how to get full custody, a parent must prove it's in the best interests of the child.

This means you'll need to prove that the relationship you have with the child merits this arrangement. You'll also need to prove that you can provide them with a stable, secure home life.

Family courts typically prefer joint custody arrangements. But there are extreme circumstances where full custody is necessary.

To gain full custody, you must prove that the other parent is unable to properly care for a child. Or, that the other parent presents a risk to that child.

Situations which might urge a judge to rule for full custody include:

  • domestic violence
  • physical or sexual abuse
  • mental illness
  • alcohol or drug abuse
  • incarceration
  • abandonment
  • relocation

So, how to get full custody of your child? You'll need to show the court that you respect its decisions and that you desire to cooperate with your ex.

Also, read up on child custody laws in Canada. Seek legal representation, and follow courtroom etiquette.

You should consider requesting an in-home custody evaluation. An in-home custody evaluation helps family court evaluate living arrangements and your relationship with your child. They prove helpful when your ex tries to paint you in a bad light.

We're here to provide you with the legal resources that you need. Contact us today to learn more about how to get full custody.