What you should know about changes to the Divorce Act

What you should know about changes to the Divorce Act

What you should know about changes to the Divorce Act

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

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

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

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

Changes to Terminology

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

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

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

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

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

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

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

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

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

New provisions dealing with family violence

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

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

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

Changes relating to relocation applications

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

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

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

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

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

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

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

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

Other additions and changes

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

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

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

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

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

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

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

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

Practical Considerations Of Dying Intestate

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

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

Distribution Of Property Under The Act

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

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

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

Other considerations

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

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

The Benefits Of Having A Will

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

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

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

What Are The Pros and Cons Of a Living Trust

What Are The Pros and Cons Of a Living Trust

What Are The Pros and Cons Of a Living Trust

A trust is a legal mechanism by which one person (the settlor) gives money or property to a trustee, who manages it and eventually distributes it to its intended recipient or recipients (the beneficiaries). A testamentary trust is a trust that is established in a will and comes into effect when the settlor dies. A living trust, also known as an inter vivos trust, can be set up anytime during the settlor's life.

There are many different types of living trust and each type may have its own specific pros and cons. Our wills and estates lawyers can help you to explore the pros and cons of a living trust and determine what type of trust might benefit you in your estate planning.

The Benefits Of A Living Trust

Both testamentary trusts and living trusts are most commonly used as estate planning tools and can have tax deferral benefits for the settlor. Some other common benefits of a trust include:

  • assets can be protected from legal battles or creditors of the beneficiary
  • the settlor can maintain more control over what is done with an asset after they have passed it on than they would if they transferred it by way of a will or by simply giving the asset to the beneficiary
  • the beneficiaries may save money on probate and executor fees after the death of the settlor.

Living trusts are often set up with a very specific purpose in mind. For example, parents or grandparents might establish a trust for an adult child with a disability, which might enable the child to continue receiving benefits from the Assured Income for the Severely Handicapped program, or other government benefits.

Disadvantages Of A Living Trust

There are costs involved with establishing a living trust. Trusts are more complicated to prepare than wills and generally require the help of a lawyer. It is also necessary to transfer the assets to the trust. Depending on the number and type of assets involved, this might be quite expensive.

A living trust also has ongoing costs to ensure compliance with laws. For example, the trustee will need to file a trust tax return annually on behalf of the trust. The trust will also usually pay the trustee for ongoing services involved in managing the trust.

The assets in a living trust are not readily accessible to the beneficiaries. While this might be seen as an advantage to the settlor, it can also cause inconvenience and difficulties for the beneficiaries. For example, it may be significantly more difficult for a beneficiary to obtain a loan using trust assets as collateral. When things become more difficult, they also become more expensive, especially if they require a significant time investment from the trustee or if the beneficiary needs to hire a lawyer.

Speak To Our Legal Team Today

Our Alberta wills and estates lawyers can explain to you in detail what are the pros and cons of a living trust and focus on the pros and cons of a particular living trust in your particular circumstances. Give us a call today to find out what you need to know about this potentially helpful estate planning tool.

*Disclaimer: Please note the advice contained in this article is not intended to act as legal advice and instead intended to act as a general overview on a legal topic. For specific legal advice please consult with a lawyer.

The Differences Between an Executor vs an Administrator in a Will

The Differences Between an Executor vs an Administrator in a Will

The Differences Between an Executor vs an Administrator in a Will

The terms executor of a will or estate and administrator of a will or estate are often used interchangeably. In Alberta, when a person writes a will, they are required to name a personal representative to be in charge of paying the deceased's taxes and debts and the distribution of the estate. This named personal representative is also known as an executor because historically (and still today, in other jurisdictions) that was the term used in wills and estate legislation and it continues to be the term that most people know.

An administrator, on the other hand, is a person appointed by the court to administer the estate of the deceased under the Estate Administration Act. This happens when:

  • the executor or personal representative named in a will is unable or unwilling to act
  • the deceased failed to name an executor in the will
  • the deceased failed to deal with their entire estate in the will, or
  • the deceased died without a will (intestate).

Our Edmonton area wills and estates lawyers can clear up any confusion regarding the differences between an executor vs an administrator in a will and what those differences might mean for your situation.

Who Will The Court Name As Administrator?

In a situation where the deceased left a will, but the will either failed to name an executor or failed to deal with the entire estate, the estate will need to apply for a grant of administration with will annexed. The grant is a court order that appoints an administrator to manage and distribute the estate according to the will.

The court is required to name the person with the highest priority on the list of eligible candidates set out in the Estate Administration Act. For example, the top three options are:

  • the personal representative named in the will (if there is one, and if they are willing to act)
  • the personal representative named by the person authorized in the will to name a personal representative (if there is one), or
  • a residual beneficiary.

In a situation where the deceased left no will, the estate must apply for a grant of administration, which is a court order that appoints an administrator to distribute the estate according to the rules of intestacy set out in the Wills and Succession Act.

In this case, the top three options for administrator are based on the most likely beneficiaries set out in the Wills and Succession Act:

  • the surviving spouse or common law partner of the deceased
  • a child of the deceased, or
  • a grandchild of the deceased.

Typically, the person with the highest priority on the list prepares the application and is appointed the administrator, but they can also appoint someone else if they do not want to act as the administrator.

What Are The Duties Of An Executor Vs An Administrator?

Once an executor agrees to act or an administrator is named by the court, their duties are similar. They both owe a fiduciary duty to the estate and its beneficiaries. They both are responsible for managing and distributing the estate. However, there are technical differences between an executor vs an administrator in a will that may or may not be relevant in your circumstances. We recommend you speak with a lawyer to get more sound legal advice on this matter as every situation is different.

Book A Consultation with Verhaeghe Law Office Today

If you or a loved one need legal assistance from an estate administration lawyer book a consultation with us. Contact our Edmonton estate administration lawyers today for more information. A member of our legal team will be pleased to speak with you.

Disclaimer: Please note the content prescribed here is intended to act as a general overview on a legal topic and does not constitute as legal advice. For specific legal advice please consult with an estate administration lawyer on this subject matter.