Child Custody: What the Courts Consider When Applying for a Mobility Application

Child Custody: What the Courts Consider When Applying for a Mobility Application

Child Custody: What the Courts Consider When Applying for a Mobility Application

While divorce proceedings and child custody disputes can be emotionally taxing – this process can bring about significant changes to each spouse’s lifestyle post-divorce. In fact, more often than not, we’ve seen many instances where one spouse may choose to relocate to another city, province or country following a divorce due to their change in economic or financial status and take the children with them.

In a situation like this where one parent wishes to pursue a significant relocation with a child – a mobility application is required. The Alberta Courts will always put a child’s best interests first and as a result – the parent seeking to relocate with the child will be required to offer reasons as to why relocating with the child is in their best interests. For more specific examples of what items are taken into consideration by judges during a mobility application, read the decision made by the Supreme Court of Canada in Goertz v. Goertz.

Some of the things Alberta courts will investigate include, but are not limited to:

  • What the child wishes to do
  • Schooling
  • Where the child will live (residence)
  • Whether childcare requirements will be sufficient
  • Support system that will be available including extended family
  • Employment opportunities and/or new income
  • In some cases psychological assessments
  • And more

If a mobility application is requested and granted – the stay-behind parent will still be granted access to the child(ren) providing he/she is entitled to child custody as well.

Mobility applications and pre-existing child custody court orders

In some cases there may be a pre-existing custody court order that enforces the parent who has primary custody and intends to relocate with their child to notify the other parent within a specified time frame of the upcoming move. The Divorce Act requires that the notifying parent outline the proposed change of residence, the time when the change will be made as well as the new place of residence of the child.

Be mindful though these court orders can be contested by an opposing parent and if you’re in a similar situation we encourage you to seek legal counsel from an experienced Alberta divorce lawyer regarding this. For example, if you are against your children relocating with your former spouse there are legal options that you may be entitled to. You may be eligible to file an application to oppose the proposed move and commence court proceedings asking for a judge’s order to prevent your former spouse from moving with the children.

If no such court order exists, then we recommend speaking with your spouse to come to an amicable arrangement and if that doesn’t work out – then definitely seek legal counsel so that both sides can come to an arrangement that works for both parties.

What happens if one parent moves the children without consulting the other parent?

In a situation like this – it is possible to start a court application to have the children returned to their original place of residence and to have child custody arrangements changed over to the other parent. A family lawyer can assist with this process and will make sure that the presiding judge will be equipped with all facts and that the children’s best interests will remain a priority throughout the proceedings. In most Canadian legal jurisdictions – child custody is seen more as a child’s right to access the parent as much as a parent’s right to access the child. Having a family lawyer involved can make sure you are informed of all your legal rights as a parent and help you navigate the complexities of Alberta’s family law guidelines.

Speak with an Edmonton family lawyer today regarding your mobility application

At Verhaeghe Law Office – our Alberta family lawyers are experienced in assisting families sort out their divorce and separation needs. To better understand how we can assist with your child mobility application needs – contact our law firm today by calling 587-410-2500 and speak directly with a member of our legal team.

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.

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

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

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

Divorce can be a complex and emotional process especially when involving children who are old enough to be aware of the circumstances and potential impacts to their own living situation. They often have their own perceptions of life after divorce driven by what they have observed or heard and often times their emotional needs are not placed as a priority when their parents are separating or divorcing. Because the nature of divorces can be quite tumultuous and riddled with disagreements – it is highly recommended to involve an Alberta divorce lawyer when it comes to dealing with parenting plans or child custody arrangements.

BONUS: Information For Children

EXTRA BONUS: Because Life Goes On…..Information For Parents

Relevant framework in Alberta

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. The federal Divorce Act governs custody and access whereas Alberta’s Family Law Act addresses parenting times and other items. The Family Law Act states the Court must takes the child’s wishes into account and more weight is given the older the child is.

Canada has ratified the United Nations Convention on the Rights of the Child which dictates that children who are able to formulate an opinion on the matter have a right to express their views freely in legal proceedings. There are various examples of Canadian family law decisions which cite this obligation. In cases where child intervention is required, including adoption by a third-party guardian, Alberta’s Child, Youth and Family Enhancement Act applies.

However, the Canadian legal framework enforced by Alberta Courts will always prioritize the child’s best interests as the determining factor for which parent a child will reside with. Although the child’s wishes can be given weight these are not the only factors taken into consideration. Judges will always consider may other factors as well when debating who the child gets to live with and what type of access will be given.

Some of the key elements Alberta courts will consider regarding the child’s best interests include, but are not limited to:

  • Child’s physical, psychological and emotional needs;
  • Child’s access to school and healthcare;
  • Opportunity for least disruption to the child’s lifestyle (stability);
  • Opportunity to learn their heritage (language, culture and religion);
  • Degree of attachment to each parent;
  • History of family violence and criminal behaviour; and
  • more

Living arrangements after divorce: The role of the children’s voice

Oftentimes, children can vocalize a preference of which parent they would prefer to live with. Their preference can evolve over time, driven by a variety of factors (e.g. wanting to live in their childhood home, stay at the same school, etc.) and this is something the Courts will take into consideration when finalizing child custody arrangements.

The weight of the child’s voice in the Court’s decision depends on the child’s maturity level and age. Although the legislation does not define a minimum age, there are numerous reported case law that implies that a child’s wishes should “definitely be considered” at 12 years old according to Albers v Albers, 2011 ABQB 456. A child as young as 10 years old can at times have a voice as well according to RM vs JS, 2013 ABCA 441. Typically, when a child is aged 14 to 17, their opinion is an important factor in the Court’s consideration.

It is important to have evidence demonstrating the child is mature enough. If appropriate, this can be accomplished by 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, this may not be appropriate if the child is placed in an uncomfortable position or if they are too young to express their views effectively.

The judge will apply the law depending on the circumstances of the family and ultimately decide whether the child’s preference is in line with their best interests (or not). Ultimately, even if one parent is granted “primary care”, the other parent is typically allowed to see the child and enquire about their care and well-being depending on the circumstances.

Speak with an Edmonton family lawyer today regarding your parenting arrangement

At Verhaeghe Law Office, our Alberta family lawyers are experienced in assisting families resolve their divorce needs and specific circumstances as amicably as possible. Especially when children are involved – it remains our priority to ensure their best interests are placed first. To better understand how we can assist with your parenting arrangement – contact our law firm today by calling 587-410-2500 and speak directly with a divorce lawyer regarding your child custody arrangements.

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 Adult Interdependent Relationships Differ From Marriage?

What is an Adult Interdependent Relationship?

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:

  1. A benefit or enrichment on the defendant
  2. The plaintiff suffers a loss or is put into a financial disadvantage
  3. 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

Ways to Make Joint Custody Work

Ways to Make Joint Custody Work

Ways to Make Joint Custody Work

Sharing custody of your children after a divorce is stressful for everybody involved, but it can be a lot worse if you are not prepared. Having to coordinate schedules, determining when the best times are for your children to visit each parent equally, dividing holiday time, and transporting your children between houses takes a lot of work to organize. If you are in the middle of a divorce or just entering joint custody for the first time, read below to ensure you, your ex-partner and your children are prepared for this new change.

Keep a Positive Attitude

It may be hard, but having a positive attitude when you are around your children and your ex-spouse goes a long way in keeping your children in better spirits. Even if you are by yourself with your children, never talk down about your ex-spouse when they are around. Children, especially if they are young, can pick up bad feelings about their other parent based on how you talk about them. At the end of the day, having joint custody is about making your children happy, so keep their emotions in mind every time you see them.

Be Open and Realistic About Your Schedule

If you and your ex-spouse lead very busy lives, you need to make sure you both know each other’s schedule to ensure your children get equal time with both of you. If you know you will be taking a business trip in a few months, ask your ex-spouse if you can see your children a bit more before and after the trip to make up for that time. You may also need to sacrifice some leisure activities to make time to see your children. Joint custody will require a lot of compromise and sacrifice, so make sure you and your ex-spouse know major events or trips to work around your schedules.

Keep an Open Channel of Communication

To ensure you are aware of each other’s schedule and if anything last minute comes up, you need to have open communication. With today’s technology, it’s very easy to keep in contact to discuss schedules and upcoming events. You can have email chains, Google Calendars or text as ways to keep in contact without calling or talking in person.

Listen to your Children

Your children will be going through a lot of emotions during your divorce as well. You should always listen to their concerns and ask them how they are doing. You should also be aware of their schedule. If they play sports during the week, you need to make sure somebody is available to take them to their games and practices. They may also want to go to birthday parties and sleepovers throughout the year that may compromise your joint custody schedule. When your children get older, you have to be supportive of their schedules when they start working part-time jobs and participating in other extracurricular activities.

With decades of experience in Child Custody matters, please feel free to Contact Us for more information.

Domestic Abuse: There Is A Way Out

Domestic Abuse: There Is A Way Out

Domestic Abuse: There Is A Way Out

According to a report released in early 2017 from the Canadian Centre for Justice Statistics (CCJS), Alberta ranks third highest out of all Canadian provinces when it comes to intimate partner violence. The report shows that 80% of police-reported incidents came from women, and also that one-third of Canadians over the age of 15 have experienced abuse as a child. Those are staggering numbers. In many situations, the victim often feels helpless and that there is no end in sight.

What Is Considered Domestic Abuse?

  • Physical Abuse - This pertains to any punching, slapping, kicking, choking, or injuries from a weapon or object.
  • Psychological Abuse - Living in constant fear of threats of violence either for yourself or your children. This includes harassing phone calls at work.
  • Emotional Abuse- Put-downs, name calling, and never-ending criticism alone or in front of loved ones. Often individuals who are emotionally abused find it hard to keep friends outside the home.
  • Sexual Abuse or Marital Rape - Being forced against your will to perform sexual acts or have pain or injury inflicted during intercourse.
  • Financial Abuse- Having no access to the family’s money, or how it is spent or saved. The divorce law states that in cases of divorce, women have a right to 50% of the family’s assets.

What Can I Do?

  1. Don’t alert the abuser that you’re leaving. This can make matters worse.
  2. Create a safety plan. If you can, stash some money, clothing, documents, and other essentials in case you need to leave. Find a place to stay in case of an emergency and alert a few trusted friends and family members. It’s important to be prepared for your safety in case a situation might escalate.
  3. Even if you’re not ready to leave the relationship, try joining a support group so you can discuss your situation with others and receive counseling from trained professionals.
  4. Many domestic violence centers offer one-on-one counseling that provides therapy and connects you to resources in the area.
  5. If you are in immediate danger, call 911.

How Do I Help Somebody Suffering From Domestic Abuse?

At Verhaeghe Law Office, we understand the stress that comes from any lawsuit, and how it multiplies when a family is involved. Filing a police report and requesting a restraining order all seem like easy things to do from the outside, but when you’re the victim, it’s much more challenging. Many times, victims of domestic violence have attempted to leave multiple times, but find the comfort of the abuser more manageable. It’s best not to blame or judge. Instead, demonstrate that you care, and the best way to accomplish this is through listening. Suggesting domestic violence support groups, hotline numbers, and other resources can help take the strain off them. At the end of the day, the victim has to decide on their own.

How Does The Law Protect Victims of Domestic Abuse?

In most cases, courts don’t allow family members to sue each other for torts. However, when the family unit is already broken down, (e.g., when domestic abuse takes place), the injured party is allowed their day in court. When working with domestic abuse victims, a common occurrence is finding they have been robbed of their sense of control and their emotional outlet. Finding the strength to come forward, should not only be commended but it also restores a sense of control and provides emotional relief on some level for the victim.

The types of damages that can be sought are:

  1. Medical Expenses
  2. Lost Wages
  3. Pain and Suffering
  4. Punitive Damages

Remember, a civil lawsuit isn’t for protection. Instead, it’s designed to help recover monetary compensation for a domestic violence injury. There are other ways to obtain immediate protection — restraining orders, arrests, and criminal prosecution. A civil suit should wait until the victim, and other family members are safe.

What Happens After?

Usually, a divorce or divorce proceedings are necessary. A final divorce is not necessary before a personal injury lawsuit. If the victim is awarded the damages for their injuries while the divorce proceedings are underway, the damages owed will be applied to the divorce settlement.

It’s important to understand that the victim is undergoing stress that those from the outside can’t possibly understand. While we think we might be helping, it might also put the victim in even more danger. If shown a way the victim will find a way out of the abusive cycle and get the help they need. At Verhaeghe Law, we will be ready to help you get the justice you and your family deserve.