When can a child decide which parent to live with in Alberta?

Divorce is a very complex and emotionally straining process, especially when involving children. However, when these children are old enough to understand what is going on, be aware of the divorce circumstances involved, as well as the potential impacts to their own living situation, the process can become even more difficult.

An older child can have their own preconceived perceptions of life after a divorce, driven by the things they’ve seen and heard when listening in on their parents or being around discussions and/or arguments. Similarly, it’s often that the child’s emotional needs are not taken into account as a top priority when their parents are either separating or divorcing, thanks to the heat these proceedings can generate.

During the divorce process itself, many children will often express preference over which parent they want to live with. Whoever a child feels closest to, or safest with, will always be their preferred guardian, and this can make arranging custody and access tricky to do. One parent may feel that the other parent is influencing their child, and vice versa, and may feel like they will be subjected to a poor arrangement following the divorce's finalization.

And seeing as the innate nature of a divorce can be tumultuous and fuelled by constant disagreements, it is highly recommended to involve an Alberta divorce lawyer when it comes to dealing with parenting plans or child custody arrangements. Lawyers can make these arrangements much easier to come to, and can provide plenty of relevant advice on the pertinent child care questions you haven't been able to resolve.

If you're curious about when a child can decide which parent they want to live with, and what weight their voice holds when going through divorce courts, we've listed our own legal advice below to help you come to an arrangement that makes sense for your family.

The Relevant Legal Framework in Alberta

It's often thought that a child who is aged 12 and over has the right to make a choice about which parent they want to live with. However, this is simply not true, and the reality is a lot more complicated. In Alberta, a child is considered to be any person under the age of 18, and only their parents or the Court can make the decision on where they live until this age is reached. At this point, a child is classed as a legal adult, and only then can they make a decision on their own living arrangements.

Furthermore, the Federal Divorce Act controls custody and access arrangements, whereas Alberta's Family Law Act addresses parenting times and other relevant items. However, these laws are still incredibly important to the family arrangement decision. The Family Law Act states that the Court must take a child's wishes into account when considering where is best for them to live, and the older, more mature the child is, the more weight is given to their wishes.

Canada has since ratified the United Nations Convention on the Rights of the Child, which dictates that children who are able to formulate their own opinions have a right to freely express their views on the matter of divorce during legal proceedings. Indeed, there are various examples of Canadian family law decisions which specially cite this obligation. In such cases where child intervention is required, including adoption by a third party guardian, Alberta's Child, Youth, and Family Enhancement Act will apply.

It's important to note that the Canadian legal framework enforced by Alberta Courts will always prioritize a child's best interests as the main determining factor for which parent a child will live with. A child's wishes will always be given weight, but they won't ever be the only factor taken into consideration. Judges will take it upon themselves to consider many other factors concerning the family when debating the question of who the child gets to live with, and then what kind of access will be given to the other parent.

Some key legal elements a court will consider when acting in a child's best interest

The Courts will take many different elements into account when deciding which parent will get custody over their child. These include, but aren't limited to:

Child's physical, psychological and emotional needs; a child's wellbeing needs to be fully cared for by the parent who the child is legally required to live with, and a court will always take into account which parent is most suited to provide for these needs.
Child's access to school and healthcare; children need to attend school, and in Alberta, they are legally required to do so until the age of 16. A child's attachment to their current school and/or community environment can also be taken into account via this ruling.
Opportunity for least disruption to the child's lifestyle (stability); both parents will often be required by the Courts to undergo a Child Custody Assessment to ascertain their ability to provide a stable home and lifestyle.
Child's current level of stability; as well as determining which parent can provide the best stable lifestyle for their child, the current living arrangements and how adjusted a child is to them will also be taken into account.
Guardian's living arrangements; the Courts will factor in the way a parent lives, such as the size of their house, amount of space, etc., to see if a child will settle into their new home with little trouble. The Courts may even want to be sure that your child will be able to have their own room, and not have to share, as this can affect the child's privacy.
Opportunity to learn their heritage (language, culture and religion); if a child has parents from different cultures, religions, or they speak different languages, the Court will consider how likely a child will be able to learn about the differences in their background when living with either parent.
Degree of attachment to each parent; the relationship between the child and their parents will always be taken into account, and the degree of attachment (closeness) will be heavily evaluated in both cases.
Guardian's ability to uphold relationships; whatever parent is decided to be the best carer for the child will need to assure the Courts that they can uphold the relationship their child has with the other parent. The parent needs to show willingness to allow access, and not allow their own feelings to potentially get in the way.
History of family violence and criminal behaviour; if there is confirmed evidence of criminal convictions regarding family violence, or even if there are allegations brought up against either parent, the Court will also take these matters into consideration.

Living arrangements after a divorce: the role of the child's voice

As mentioned earlier, a child can often vocalize their preference of which parent they would prefer to lie with. This preference can change or evolve over time due to a variety of factors, including wanting to stay in their childhood home, or stay at the same school they're used to due to previous relationships they've established there. This is something the Courts will take into consideration as well when finalizing child custody arrangements.

The weight a child's voice has when it comes to the Court's final decision will depend on the maturity level and age of the child in question. Although it's important to note that the legislation does not define a minimum age, there are numerous reported cases in law that implies a child's wishes should 'definitely be considered' by the age of 12, which is often thought to be that important maturity level (according to Albers v Albers, 2011 ABQB 456). However, a child as young as 10 years of age can also have a voice at times (according to RM v JS, 2013 ABCA 441).

Typically, children who are aged 5 and under will not have much weight to their voice, but when a child is aged between 14 and 17, their opinion on the divorce and where they want to live will be a very important factor in the Court's consideration.

Similarly, it is important to have evidence demonstrating that the child in question is mature enough. If it is appropriate to do so, this can be accomplished via the use of a 'Voice of the Child' report, where a qualified psychologist or counsellor meets with the child and documents their views and preferences. In some cases however, this report will not be appropriate, particularly if the child undergoing this evaluation will be placed in an uncomfortable position, or they are too young to be able to express their views surrounding these complicated notions effectively.

When this report is finalized, the judge will apply the law depending on the circumstances of the family, and ultimately decide whether the child's preference over their living situation is in line with their best interests. However, even if one parent is granted 'primary care', the other parent will usually be allowed to see and have access to the child, as well as enquire about their care and well-being depending on the circumstances, and still be able to make decisions revolving around the child's care.

Understanding a child's best interests

In the midst of divorce proceedings, or just after an amicable separation, the time comes to decide who, what, and where will provide for any children you have together. Many people can feel like this is an impossible step in the divorce process, as one parent may have different aims to another, and coming to an agreement can take a long time.

When it comes to putting together an acceptable and beneficial parenting plan, the Courts will always act in your child's best interests. If you and your ex partner or spouse are unable to come up with an agreed parenting plan off of your own backs, it's up to a Judge to decide the best schedule for your child's care. Above all else, the Judge will want to ensure that the child in question comes to no harm under the care of the parent they're placed under, and that this parent is the one best able to provide for them.

Both physical and emotional needs come underneath this umbrella. The Courts need to know that either parent being considered is able to provide things such as long term shelter, food, and clothing, as well as a child's freedom to express their emotions, and maintain a relationship with both of their parents.

As one of their parents yourself, you may feel that you can provide all of these things, and more. However, the Courts will take into account the living circumstances of both parents involved, and determine which one is best suited to be the child's permanent guardian. This can be a complicated process, and it can involve a lot of emotions from all parts, but both the key elements listed above and the role of the child's voice come into this decision as well.

This can be a very hard adjustment to make, and it's why it's always recommended to speak to a divorce lawyer during these lengthy proceedings.

Speak with an Edmonton Family Lawyer today regarding your parenting arrangement

Here at Verhaeghe Law Office, our Alberta Family Lawyers have long term experience in assisting families in resolving their divorce needs, as well as any other specific family circumstances, as amicably as possible. Our lawyers know just how hard it can be to come to a mutually beneficial decision when a child is involved, and it remains our priority to ensure their best interests are always placed first.

We're here to help you help your family, and to settle your child's life as soon as possible after an event like a separation or divorce. To better understand how we can assist with your parenting arrangement, contact our law firm as soon as you can by calling 587-410-2500, and speak directly with a divorce lawyer regarding your child custody arrangements.

Medical Assistance in Dying — Know Your Rights

The Parliament of Canada passed federal legislation in 2016 that allows Canadian adults who meet certain criteria to request medical asosistance in dying (MAID). If you or a loved one is suffering from a serious, debilitating conditin with no chance of improvement, you may be eligible for MAID. Are you being told you don’t meet the requirements? Contact one of our knowledgeable lawyers at Verhaeghe Law Office for assistance.

The Amendments

To ensure that the Canadian Charter of Rights and Freedoms was satisfied, the Supreme Court of Canada ruled that the sections of the Criminal Code that prevented medical assistance in dying were made invalid. Federal legislation was passed in June 2016 that allows Canadians who are eligible to request medical assistance in dying.

Who Can Help

Under the law, physicians and nurse practitioners (in certain provinces) can assist people who meet the legal requirements for MAID. Pharmacists, family members or others asked by the individual in question, and healthcare providers operating under the supervision of the physician or nurse practitioner can help without fear of criminal charges.

Note that the physician, nurse practitioner, and others who are directly involved must abide by the rules in the Criminal Code as well as provincial and territorial laws.

What If My Doctor Refuses?

Under the law, healthcare providers do not have to provide MAID. If they are uncomfortable with the practice for any reason, they cannot be forced to provide help. To find a provider who will assist with end-of-life MAID services, refer to the care and coordination systems developed in each province.

Eligibility

All of the criteria, as set forth by the law, must be met in order to be eligible for MAID. The individual must:

Be eligible for health services funded by the government, province, or territory
Be at least 18 years old and mentally competent (capable of making healthcare decisions)
Have a grievous and irremediable medical condition (meet all of the following)
- Have a serious illness, disease, or disability
- Be in an advanced state of decline that cannot be reversed
- Experience unbearable physical or mental suffering from the illness that cannot be relieved
- Be at a point where natural death is reasonably foreseeable (not a specific prognosis)
Be able to give informed consent

Please note that you do not have to have a terminal illness to qualify.

The Process

To initiate the process, the person must discuss end-of-life options with their physician or nurse practitioner and submit a written request. This request must be signed in front of two witnesses, and everyone must date the request. Once the request is submitted, the individual must undergo medical assessments to ensure eligibility. A ten-day waiting period is mandatory after a request is submitted to ensure that the individual has time to reconsider. Exceptions to the waiting period may apply. You may withdraw your request at any time during the process.

Your Rights

Canadians who are eligible have the right to medical assistance in dying. If you or a loved one is considering this option or if you have run into difficulty obtaining the services you are entitled to, please call Verhaeghe Law Office at 587-410-2500.

Illicit Black Market Cannabis Dealers On The Rise

As of 17 October 2018, recreational use of cannabis was no longer considered a violation of criminal law. The legalization fell under the same regulation to how alcohol is controlled in that it limits home production, distribution, consumption areas, and sale times. Although there was a deregulation of cannabis, there was a strengthening in punishment for those supplying the substance to minors or driving while impaired.

After the new year turned over, online sales of cannabis have taken off, but not in Alberta. That hasn’t stopped some black marketers from using the platform. Legal cannabis retailers are calling on the government to crack down on the black market. It’s unforeseen, and illegal, competition that is undercutting the considerable investment legitimate businesses have made to offer cannabis products to the public. The issue is, black marketers within the province are openly operating online with little repercussions, while certified businesses in the province are barred from using the platform to sell and distribute their products.

On the other side, black marketers have indicated that their product helps ease the supply shortages because the demand is so plentiful right now. Federal Minister, Bill Blair, stated recently that the best weapon against the $16-billion black market is successful legalization that ensures competitive prices and safe products. He added that he’s confident that nearly 50% of cannabis sales now are legal.

However, that hasn’t helped quell the concerns from legal retailers who believe that not enough is being done to address those who are skirting the law. Conversely, business owners believe that opening up the law to allow online sales will help them better compete and drive out those who are illegally providing the substance. Perhaps, as alluded to before, the problem lies in the supply.

Oversupply Could Carry Its Own Risks

Industry experts purport that while there is a shortage now, that won’t be the case in two years if licensed producers (LPs) execute their business plan. LPs are worried about this phenomenon because it’ll mean a drop in prices in cannabis at retail, which will ultimately drive down their profits at wholesale. Regulators, LPs, and retailers all agree in saying that a stable, cost-competitive supply will push out the black market, which for now is flourishing. At the end of 2018, illicit sellers held 80% of the market, so you can easily see certified retailers have ground to make up.

The Alberta Gaming, Liquor & Cannabis (AGLC) plans to issue five new licenses every week if the supply keeps increasing. There was a stoppage after only 20% of the marijuana Alberta had ordered delivered. Alberta remains the leader with more than 100 cannabis stores open province-wide, with sales back in March in Alberta reaching more than $14 million in a quickly growing industry that hit $60.5 million nationwide that month.

At Verhaeghe Law Office, we stay updated on all developing law trends for our clients. For more information about us or if you need legal representation, please contact Verhaeghe Law Office at 587-410-2500

Tech Companies & Politicians Talk Privacy

The International Grand Committee on Big Data, Privacy, and Democracy is meeting in Ottawa this week. The members of the committee represent those concerned about the effects of information technology in the social and political spheres in their countries. Some of the represented nations are Argentina, Canada, Chile, France, Germany, Ireland, Latvia, Singapore, Ukraine, and the United Kingdom. During the discussions, the committee will question representatives from Google, Twitter, and supposedly Facebook, regarding user privacy, data security, and foreign influence.

Facebook Declines Invitation

Facebook CEO Mark Zuckerberg and COO Sheryl Sandberg failed to appear before the committee when called to testify. The panel of international politicians viewed this as disrespectful to legislators everywhere. At this time, Canadian lawmakers have voted to serve a summons on Zuckerberg and/or Sandberg, declaring them in contempt of Parliament. Facebook has been the subject of many scandals surrounding privacy violations, spreading fake news, sowing dissension, and manipulating election outcomes. These are the main topics of this committee’s discussion.

Technology as a Main Influencer

Digital media platforms are becoming the main source for influencing public opinion, bypassing print, and broadcast media. The question is how to best protect people’s privacy and maintain democratic fairness with the extreme power of social media.

Before the meeting in Ottawa began, Facebook, Google, and Microsoft agreed to a declaration that promised 12 initiatives to protect the integrity of Canada’s upcoming fall elections. This agreement included the removal of fraudulent social media accounts and fake content. While this is promising, Twitter and other tech giants declined to commit.

Are We Looking at the Right Problem?

Some experts say that fake news, hate speech, and election manipulation are merely symptoms of a larger problem. Is it the actual business model used by the digital media giants that is at the center of the issue?

Let’s Look at Facebook Again

In the last few weeks, it came to light that a Facebook quiz app built by a Cambridge University researcher leaked the Facebook data of over 50 million people — four years ago. Facebook apologized this week after threatening to sue the reporters who broke the story. Many have expressed that the apology would be more meaningful if FB had actually done something about it when the data breach occurred. The data was obtained in this breach by Cambridge Analytica was sold to the Trump campaign to help determine voting tendencies.

The report of this scandal prompted Android phone users to give more credence to the rumor that Facebook has been collecting call history and SMS data from their phones for quite some time. Downloading all of the data that Facebook stores on their accounts has proven enlightening, and frightening to these Android users. The files contained every single phone call and text for at least a year. Facebook responded by saying that the data collection is opt-in, but has yet to clarify what it needs the data for and why it is part of a contact upload prompt.

Taming the Beast

Social media is made for connecting people with similar interests. This has led to data collection and its use in marketing based on users’ data. The enormous database is a powerful tool for advertising and political influence. So how do we tame the social media beast?

Hopefully, The International Grand Committee on Big Data, Privacy, and Democracy can come up with some real plans and policies that can be implemented at the root of the problem.

If you aren’t sure if your online data is safe, or if you believe someone has exploited your data, call Verhaeghe Law Office at 587-410-2500 for advice.

What to consider when making a parenting plan

A parenting agreement offers a framework for how parents will raise their child(ren) after separation or divorce and can often reduce or prevent conflict by establishing clear guidelines to manage expectations. For now, here are some considerations when creating your own parenting plan.

Firstly, the approach to your parenting agreement can be simple and doesn’t have to use fancy legal terms. It should balance having enough details to be useful while remaining flexible enough to be reasonably applied. You must consider how well you are able to work with the other parent when deciding how much detail is required to clarify expectations. After all, these guidelines are intended to prevent or reduce future disputes and a child has greater chances of coping with their parents’ separation or divorce if parents co-operate with each other.

Secondly, put your child’s best interests first and reflect on their age and current/future stages of when designing your agreement as it relates to the following key topics:

1. Living arrangements and Parenting Schedules

Is it in your child’s best interests to live mainly in one home or move between the two? Consider the proximity of both parents’ homes and handling of child’s belongings (e.g. who will purchase 2 sets of items at each home vs. moving items in between). Also address the scenario where a parent moves (e.g. 30 to 60 day advance notice and consent requirements if they’re interested in child moving with them). Details that may seem trivial now should also be pro-actively addressed, regardless of how amicable and co-operative your relationship, to ensure clear guidelines and avoid future resentment or frustration. Consider:

Drop-off/pick-up logistics to establish reliable habits from the outset (i.e. time windows, days, location, person responsible). The daily routine of each parent should be practically considered to avoid being overly rigid such as unpredictable working hours.
Documenting rules on how to handle changes to schedule due to illness, lateness, or unforeseen events (i.e. advance notice, make-up time?) can alleviate conflict.
Rules on communication when the child is with the other parent (i.e. phone, digital, pictures, etc.)
Childcare and babysitting arrangements
Managing your child’s social life (i.e. who chauffeurs to birthday parties/sleepovers and purchases gifts for child to give, etc.)

2. Vacation/Special Days and Travel

For the child’s sake its often best to decide and agree early on how statutory and religious holidays, summer vacation and other school breaks will be handled to help manage their own expectations. Consider whether child spends certain holidays with one parent every year (e.g. Mother’s or Father’s Day) versus holidays which alternate between households. You may also consider other significant days such as their birthdays or milestone events (e.g. graduation, family weddings).

Travel is another important topic. Does one or both parents desire advance notice and consent for travel (e.g. local and out-of-province) beyond what may be required by law when travelling out of country? Decide who will maintain and store the child’s passport. Each parent should have a copy of their passport number.

3. Health Care

Parenting involves taking care of your child in sickness and in health. To ensure the continued quality of care your child enjoyed before your separation, consider pro-actively addressing topics such as:

Who is responsible for holding and maintaining child’s health card? Will it follow the child’s movement between homes?
Who takes time off work when child is ill?
How decisions and consent will be approached on dental and medical treatment including vaccinations, preventative procedures vs. emergency situations
How will each parent notify each other in case of medical emergencies?
How will access to medical records be managed or shared?
Managing costs of special needs that may appear over time (e.g. orthodontic braces, speech therapy, dietary restrictions, prescription eyewear, counselling)
Logistical arrangements for medical or dental check-ups
Medical costs including insurance (who secures and maintains policy, submits claims, co-payments)

4. Education

To ensure a seamless transition with your child’s school consider how to approach decisions such as:

Choice of school and additional needs like tutoring
Logistics (pick-up/drop-off)
Access and sharing of school records
Attendance of parent-teacher conferences and school events
Signing permissions forms for school events versus payment and attendance
Absences (illness and other circumstances)

5. Other parenting topics

There are many other key conversations to be had in the parenting world. Why not consider documenting them in your Parenting Plan? A non-exhaustive live includes:

Decisions on religious and cultural education and activities including second-language instruction
Policy on child’s use of electronic devices and phone since consistency is required from both parents
Dietary and nutritional preferences and restrictions
Gifts (both to their child and their social circle)
Decisions on family pets and whether they move between homes
When it’s appropriate to introduce and involve a new partner or sibling to your child
Handling visits from extended family

Lastly, your parenting plan may want to contemplate how parents should communicate (frequency, method, type of info required) and a process for reviewing and making changes to the plan if special circumstances arise (e.g. parenting schedule, etc.). Also, many couples use an app to help manage co-parenting schedules such as Our Family Wizard or feel free to click here for a list of some of the more popular co-parenting apps.

Speak with an Edmonton family lawyer today regarding your parenting plan legal needs

If you are considering entering into a parenting agreement - contact us today because our family lawyers can assist you with its development, facilitating agreement between both parents and ensuring its enforceable in Court. Contact usfor a consultation today by calling 587-410-2500.

*Please note the content in this blog offers a general overview and does not constitute legal advice as every case is unique from one another. We encourage you to seek legal advice for answers related to developing a parenting plan suitable to your specific situation.

What are the Alberta Child Support Guidelines?

Children have a legal right to financial support from both parents and a separation or divorce doesn’t change the ongoing legal obligation for either parent to support them. In a divorce or separation in Alberta, both parents are expected to share the cost of raising their child(ren). If parents can’t agree to the amount of child support, a judge will decide in accordance with the established Guidelines.

In Alberta, there are two relevant Guidelines and your situation will dictate which one to use:

Federal Child Support Guidelines (under Canada’s Divorce Act) apply in all divorce cases in Alberta since Alberta is not a “designated province” (i.e. it has not made arrangements with the Government of Canada to use their own guidelines in lieu of federal guidelines if both parents live there).
Alberta Child Support Guidelines (under Alberta’s Family Law Act) are highly aligned with the Federal Child Support Guidelines and apply when the parents were never married to each other or when married parents have separated but neither has applied for a divorce

Both are binding laws that Courts follow to help ensure all of Alberta’s children are treated equally and fairly across the province, regardless of the legal standing of their parents’ relationship. The Guidelines help reduce conflict and tension between parents by making the calculation of child support orders more objective by establishing a base or “table” child support amount for a child under the age of majority (i.e. 18 years in Alberta) via a set of tables.

Alberta’s Child Support Guidelines refer to the federal tables which set out basic child support amounts that depend on the payor’s guideline income, the number of children the payor’s obligated to support in the recipient’s custody and the province the payor resides in.

A key principle of the Alberta Guidelines is that child support be based on a parent’s ability to pay a determined amount based primarily by the most recent income as shown on line 150 of their personal tax return. In certain situations, a different amount may be used such as when the payor’s annual income varies greatly on a yearly basis, if they’re self-employed, or are intentionally unemployed or under-employed, etc. The basic child support amount generally depends on the following parenting arrangements:

Sole custody
In cases where a child spends more than 60% of the time with one parent over the year, the federal table for the province where the paying parent lives is used to identify the amount of support matching the paying parent’s income and number of children being supported.
Shared or split custody
In cases where a child spends at least 40% of the time with each parent in a year (shared) or in cases where each parent has sole custody of at least one child (split) – the guidelines confirm payments which account for the income of both parents and the anticipated expenses of the child.

The guidelines do allow for Court discretion when the payor earns more than $150,000 annually and when one parent is suffering undue hardship. To claim undue hardship, the recipient or the payor must first prove to the Judge that they or their children are suffering an undue hardship such as:

Parent has children in multiple households owed support;
One parent took on responsibility of high debts incurred while together; or
One parent lives far away and cannot afford the resulting higher access costs

Secondly, the person requesting undue hardship has to demonstrate to the Court they have a lower standard of living than the other parent.

There is also the possibility for the Court to make an order for the payment of special expenses, also known as section 7 expenses such as:

Child care expenses;
Medical and dental insurance and expenses not covered by insurance;
Extraordinary school and extracurricular expenses; and
Post-secondary education expenses

In December 2018, Alberta’s Family Law Act was amended to ensure children 18 years or older are eligible for child support if they’re still under their parents’ charge and unable to withdraw from their parents’ charge or obtain the necessaries of life (e.g. due to illness, disability, full-time student status, etc.)

If you wish to change an existing child support order granted under Alberta’s current or former provincial legislation you must do so under the Family Law Act. The court may consider changing a court order if the personal circumstances of each parent have changed significantly since the time the previous order was made such as:

Number of dependent children
Long-term change in income due to employment
Special or extraordinary section 7 expenses incurred for children
Travel/access costs for visits between parties and their children

Speak with an Edmonton family lawyer today regarding your child support needs.

At Verhaeghe Law Office – our Alberta family lawyers have helped numerous clients address their child support needs. We can help you prepare and work towards an expeditious and reasonable payment arrangement. Contact us for a consultation today or by calling 587-410-2500 and speak directly with a member of our legal team today.

Note: This blog offers general information for your convenience and does not constitute legal advice. Family law can be complex and you’re encouraged to seek legal advice to better understand your rights and responsibilities as well as the rights of your children.

How does Alberta Laws view common law unions?

At Verhaeghe Law – our Edmonton family lawyers have experience in dealing with the dissolution of common law unions as well as providing legally enforceable agreements for couples who are considered common law. However, it is important to note that in 2003 – Alberta laws have replaced the word “common law” with a newly coined legal term referred to as “adult interdependent relationship”. These relationships now have similar rights to that of married couples. Contact our office today and let us help you with your legal needs regarding your common law relationship/adult interdependent relationship. In the meanwhile, here are some commonly asked legal questions with regards to these types of relationships in Alberta.

1. How is a common law relationship now defined in Alberta?

This term historically referred to describe a couple that lived together but were not legally married. However as of June 2003, this term is no longer used in Alberta in a legal sense and has been replaced with “adult interdependent relationship”.

2. How long do you have to live together to be considered common law in Alberta?

As of recently, the term common law is no longer used to refer to unmarried couples who have been living together for an extended period of time. The term formerly referred to as common-law unions has been replaced with “adult interdependent relationship”. In order for a couple to be considered in an adult interdependent relationship – they must have resided with each other for at least three years or having an existing adult interdependent partner agreement in place. There are other stipulations that apply or may deem an adult interdependent relationship void which is described in more detail below.

3. What is the Adult Interdependent Relationships Act?

This Act cements the fact that the courts view adult interdependent relationships (formerly referred to as common law unions) with legal recognition. However, there are a number of factors that couples must satisfy in order to be considered as an adult interdependent relationship. Call an Edmonton family lawyer for more information on what these factors are.

4. What is an adult interdependent partner agreement?

This is an agreement that is mutually accepted and agreed upon by both parties in an adult interdependent partnership. In order for this document to be legally recognized – we recommend you hire an Alberta based family lawyer to draft it for you as it must be in the form that is provided in the Adult Interdependent Partner Agreement Regulation and include a series of details.

5. Can same-sex partners be adult interdependent partners under the Adult Interdependent Relationship Act?

Yes absolutely. However, there are certain conditions that must be satisfied under the Adult Interdependent Relationships Act in order for same sex partners. For example, some of these stipulations include that the couple must be living together for at least three years or that there must be a child in the relationship (either by birth or adoption) or the couple has entered into an adult interdependent partnership agreement.

6. When is an adult interdependent partner agreement not valid?

Yes there are instances when an adult interdependent relationship may not be considered valid. Especially if the agreement was made under duress, fraud or undue influence at the time the agreement was signed. Additionally, if one of the parties did not have the mental capacity to understand what they were signing into or if the parties were not living together or one of the parties were already married – the agreement is not legally binding. There are other situations as well where the agreement may be deemed invalid. Contact an Edmonton family lawyer for more information on this topic if this situation may pertain to you.

7. Do adult interdependent relationships laws equal to laws for married couples under the Matrimonial Property Act?

The Supreme Court of Canada has said that laws that discriminate against those living in common law relationships as compared to those who are married may be deemed invalid. The legalities surrounding this question are not entirely clear or present at the matter and will require legal interpretation. If this situation may pertain to you – we recommend you contact an Edmonton family lawyer today.

8. If I enter into an adult interdependent relationship can I insure the life of my partner?

Yes this can be done because the Adult Interdependent Relationships Act amended the Insurance Act to allow partners to have their lives insured. Additionally, there are also rules which permit partners to receive specified insurance benefits as well.

Speak with an Edmonton family lawyer today regarding your adult interdependent relationship legal needs

If you are considering entering into an adult interdependent relationship and would like to have legally binding agreements in place – contact us today because our lawyers can assist you with this. Furthermore, if you have additional questions regarding the adult interdependent relationships and require legal advice – a member of our legal team will be happy to speak with you. Contact us for a consultation today by calling 587-410-2500 and speak directly with one of our Edmonton family lawyers today.

*Please note the content in this blog does not constitute legal advice as every case is unique from one another. Child support calculations are best supported by legal advice based on your specific circumstances. This blog offers a general overview and does not constitute legal advice. We encourage you to seek legal advice for answers related to your divorce and/or family law questions.

What is an Adult Interdependent Relationship?

It’s important to note that “spouses” in common law marriages in Alberta are referred to as “adult interdependent partners.” A common law marriage is defined by when a couple has lived together for three or more years or has a child and live together. In Alberta, a formal document called the Adult Interdependent Partner Agreement is completed to indicate that both individuals are each other’s partners.

One of the misunderstandings in regards to common law marriages is that when a breakup occurs, all assets are evenly divvied up. Unless a cohabitation agreement was signed, the division of property would not be split 50/50. In simple terms, property usually stays with the person who paid for it, but if a partner contributed to the other person’s property, they might have rights to it. Common law marriages are not covered under the Matrimonial Property Act, but individuals can still lay claim to the property through other means called the Unjust Enrichment Claim.

Unjust Enrichment Claim

The plaintiff in these claims must prove three steps to show there is unjust enrichment:

A benefit or enrichment on the defendant
The plaintiff suffers a loss or is put into a financial disadvantage
There is no juristic or legal reason to justify the financial gain

It’s the responsibility of the plaintiff to show no juristic reason is recognized. If met, then the obligation falls to the defendant to show that there is a just reason as to why they should retain the benefit. From there, the Court considers both the reasonable expectations of the parties and public considerations. The Court will award monetary damages or constructive trust based on those considerations. A monetary award may be calculated based upon the value received, or if the property were a joint venture, they would award a share of the assets based on the proportionate contribution by the plaintiff.

What About The Children?

This is the most emotional and challenging portion of any breakup; what about the kids? In adult interdependent relationships, the mother is considered the sole guardian of the child if the father does not acknowledge or demonstrate an intention to take on the responsibilities of a guardian. “Parenting time” means more than visiting rights, and only guardians can have parenting time. A guardian has the right to be involved in the supervision, care, and control of the child and any major decision-making regarding the child. Parenting time is resolved by a written agreement or by Court Order.

Spousal Support

An interdependent partner can apply for spousal support, and the child is entitled to financial support. As with marriage laws, both mother and father are expected to financially support the child until they reach age 18. If the child is still in school or dependent in any other way, child support is required.

The laws between marriage and adult interdependent relationships can be confusing. Allow us to help guide you through. For more information, please contact Verhaeghe Law Office at 587-410-2500

What Happens If You’ve Delayed In Bringing a Court Claim?

Generally speaking, any party that wants to initiate a court action must do it within a couple of years when he/she first becomes aware of the existence of the claim. This period is called the limitation period and there are many considerations that define when a limitation period commences for a particular claim. Many times you may be dealing with a problem with your landlord or a neighbour or your workplace. Sometimes the issue is so small and at a nascent stage that many individuals wait quite some time before they decide to take legal recourse to initiate action and seek a remedy. At such times, a court may or may not grant you the permission to bring in a claim. For instance, in the case of Presley v Van Dusen, 2019 ONCA 66, the Ontario Court of Appeal recently confirmed that for the limitation period to commence, one of the key considerations that must be asked is whether or not a legal proceeding is really an appropriate means to seek to remedy the injury, loss, or damage?

It is quite common for people to suffer an issue long before they opt for the legal route. Typically, in this Presley v Van Dusen case, the claim for a defective septic system was filed in August 2015, although the homeowners had already started noticing problems with the septic tank in the spring of 2011 itself. In this particular case, the Small Claims Court judge dismissed the claims stating that the claim was started too late after the problem was first noticed. Even after an appeal against this dismissal was made in the Divisional Court, the homeowners did not get the solicited remedy as this court too agreed with the decision of the Small Claims Court judge. Unfortunately, neither courts acknowledged that it was only after trying for a long time to get the problem fixed, the homeowners realized that a legal proceeding was the only way left to address their issue.

From the Court of Appeal’s point of view, one important aspect of this case was that the septic installer kept providing ongoing guidance and feedback to the homeowners for solving the problem. Moreover, he also promised that he would be returning to the home to fix the issue and due to this manifestation of intent, the homeowners probably did not take the legal recourse sooner.

The Court of Appeal found that the homeowners did not know that filing a claim would be an appropriate means of seeking a remedy till they were convinced that the septic installer was not intending to follow through on his promises.

In conclusion, the law respecting limitation periods needs to be applied in a way as to deter needless litigation. However, having said that it is extremely important to regard the timing of the issue when it comes to filing a claim. Typically, a two year limitation period needs to be taken into consideration. If you are thinking about filing a claim and are not sure whether it is too late for filing one or are interested to know your legal alternatives, talk to a qualified and experienced lawyer from Verhaeghe Law Office. Their team of best civil lawyers in Edmonton can provide sound legal advice on any civil, immigration and or for defence in any court-related matter.

How Alberta business owners calculate child support

Divorce and/or separation proceedings can be an emotional and complicated process for all parties involved. It can be even more challenging for business owners as there are additional considerations unique from most other divorces. When divorce proceedings include business owners – the calculation of child support payments can become a rather complex and challenging process. In situations like this, we recommend you consult with a divorce lawyer to review what your options are as well as answer any complex questions you may have with regards to your divorce and subsequent child support payments.

The Federal and Alberta Child Support Guidelines are two legal frameworks designed to provide guidance on financial support payments. However, as a business owner some sections of these frameworks may or may not apply to you during your divorce proceeding and requires individual legal advice and interpretation to your unique and individual situation. For example, if you are a business owner that is married – the Federal Child Support Guidelines may be used to govern child support calculation whereas if you are not married, the Alberta Child Support Guidelines may be used as a reference point to calculate child support payments. Both the Federal and Alberta Child Support Guidelines make sure that regardless of your marital status and as a business owner – the courts will be looking very closely at the amount that you as a business owner are claiming as an expense. Hiring an experienced family lawyer to help reduce the complexities of your case as they pertain to child support payments is highly recommended in a situation like this.

The Alberta Child Support Guidelines

The Alberta Child Support Guidelines require parties to disclose things like income, debt, assets, expenses and other relevant financial information as they pertain to divorce proceedings. In the case of business owners, chartered professional accountants or chartered business valuators can assist business owners with providing this information as they relate to divorce proceedings as well as inform the relevant party as to what their options are.

The Federal Child Support Guidelines

The Federal Child Support Guidelines are a set of guidelines that explain how financial assistance for minor children will be calculated. Additionally, it serves to fulfill four major objectives including:

Establish a fair standard of support for children that they continue to benefit financially even after both spouses have separated
Reduce conflict and tension between spouses by making the child support calculation process more objective
Improve efficiency of the legal process as they pertain to child support calculations
Ensure consistent treatment of spouses and children

What Information Is Required To Prove Income During Child Support Deliberations?

During divorce proceedings – a business owner may be required to provide extensive financial documentation. The purpose of providing documentation on the below items is to assist with the assessment of the required child support amount. Some of the required documentation may include:

Business financial statements
Earnings slip
Tax returns
Re-assessment records
Insurance as it pertains to your business
Workers compensation information if applicable
Disability information if applicable
Public assistance records if applicable
Partnership information
Trust settlement records
Pre-tax income records
And more

If you are a business owner and believe you need to dispute the amount of child custody payments you are required to make then contact our Edmonton law office today. There are too many complexities to discuss here with regards to child support payments as a business owner and it’s best to seek legal assistance regarding your individual situation.

At Verhaeghe Law Office – our Edmonton family lawyers have helped numerous business owners embattled in child custody payment disputes. Where things can get complex in a situation like this is when business finances become embroiled with personal finances which may leave the justice system to interpret your financial situation very differently than how Canada Revenue Agency does. We encourage you to seek legal counsel if you are a business owner and are about to or are currently going through divorce proceedings and especially if there is a debate on the child custody payments you are required to make. We can help you prepare and work towards an expeditious and reasonable payment arrangement as we help navigate you through your divorce proceedings. Contact us for a consultation today by calling 587-410-2500 and speak directly with one of our Edmonton divorce lawyers.

We encourage you to seek legal advice for answers related to your divorce and/or family law questions.