Virtual Consultations: Banaszek Family Law prepares you for success

Our lives have changed drastically because of COVID-19. It is our goal at Banaszek Family Law to ensure the quality of legal services you receive remains consistent during this uncertain time.

Out of an abundance of caution and to ensure that we are doing our part to limit the spread of COVID-19, all of our initial consultations continue to be conducted remotely as a telephone or video conference call.

Working up the courage to attend at an initial consultation with a family and divorce lawyer is a hurdle for many people to overcome. Many people believe that they must be prepared to walk away from their relationship, or endure protracted litigation if they are scheduling a meeting with a lawyer. THIS DOES NOT HAVE TO BE THE CASE! An initial consultation is a great step to take to become educated on the rights and obligations associated with your relationship and its’ breakdown.

What is an initial consultation?

At Banaszek Family Law, initial consultations provide clients the opportunity to ask questions about their family law and divorce matter. The lawyer’s job is explain the legal framework and the available options to move towards a resolution. Some clients wish to use their initial consultation as an opportunity to obtain independent legal advice about a discrete issue so that they may confidently take steps as a self-represented litigant. Initial consultations are also an opportunity for clients to interview lawyers before retaining them. The initial consultation should provide the client with insights into the lawyer’s ability to communicate confusing concepts in an understandable manner, and confirm if the lawyer is the right fit as a legal representative in a very personal matter.

The meeting with the lawyer is completely confidential - this means that the lawyer cannot share anything about the conversation you have with anyone else, unless it would be valuable to do so and permission from the client is first obtained. The lawyer is also precluded from representing your spouse/the opposing party in the future, so there is no reason to worry about the private information you are divulging being used against you in any manner. Whatever your desired purpose for the initial consultation, it is important that you come prepared to ensure that you receive all the benefits of this valuable meeting.

Preparing for your VIRTUAL initial consultation with Banaszek Family Law

We invite you to review Banaszek Family Law’s helpful tips to prepare for your first VIRTUAL consultation with a family lawyer:

TIP 1: COMPLETE THE INITIAL CONSULTATION FORM

For starters, complete and email back a scanned copy or photograph of the Initial Consultation Form before your consultation. The From will be emailed to you once your consultation is scheduled with Banaszek Family Law. The Initial Consultation Form allows you to provide details about the parties involved and a description of your matter in advance of meeting with the lawyer. Jot down some of the questions you would like to have answered by the family lawyer – this will provide the lawyer with a heads-up of issues which should be prioritized so that they can better structure your consultation and take advantage of the scheduled time.

There have been occasions where the Initial Consultation Form has confirmed that the client’s legal issue is not of a family law or divorce nature, allowing us to redirect the client to another lawyer in the appropriate practice area. This saves you time and money.

TIP 2: PREPARE YOUR DOCUMENTS (and EMAIL THEM TO US!)

You should email the following documents and items to our office prior to your scheduled initial consultation:

• Your government-issued photo identification – the Law Society of Alberta require that the lawyer takes steps to verify the identity of the client, especially if we are meeting you over the phone or video conference. We will keep a scanned copy of your photo ID on file.

• Filed Court documents – these documents will alert the lawyer of any upcoming Court dates or filing deadlines. Reviewing filed Court documents will also provide the lawyer with a better understanding of the opposing party’s position so that a comprehensive strategy that meets your needs can be prepared and discussed.

• Your notes and any questions you may have (check out TIP 3 below). The initial consultation will go by very quickly and we want to make sure that most of your questions are canvassed, so it is best to not leave it up to memory.

• A notepad and pen - it may be helpful to note useful resources or information explained during the consultation. You may also wish to take notes on your computer during the consultation.

TIP 3: WRITE DOWN YOUR QUESTIONS

Jot down some of the questions you would like to have answered by the family lawyer in advance of your video or telephone consultation, and have them readily available during the consultation. You will likely think up many questions you would like answered in the days (or hours) leading up to your consultation. Your list of questions will guide the consultation and increase the productivity of the meeting. The initial consultation goes by quickly and we want to make sure that most of your questions are canvassed, so don’t leave it all up to memory!

TIP 4: KNOW THE HISTORY

Be prepared to outline a history of your litigation or a general overview of what has occurred since your separation/conflict arose, if relevant. For example, what has the parenting arrangement looked like since separation? How were the finances organized in the household during the marriage and after separation? If you are prepared to explain your situation, the consultation will run more smoothly and you will gain more out of the process.

TIP 5: LOG IN ON TIME

This tip is a sign of the times we are living in. Instead of traveling downtown, searching for a parking spot, and finding our office at the TD Canada Trust Tower, you can have your initial consultation from the comfort of your home. But, this still requires some preparation to ensure that your technology is queued up and ready to perform. Make sure that your camera and microphone is working on your computer, or let us know if you prefer to have the consultation over the phone instead.

Once your initial consultation is scheduled, we will send you a video conference email invite through Microsoft Teams. You will be able to run the application through your Web browser. It is important that you log into Microsoft Teams on time so that you are calm, collected and can take advantage of the entire time scheduled. We understand that technology quits on us sometimes, and if that ends up happening to you, give us a call right away and we will reschedule or complete the consultation over the phone. We guarantee that there is an hour blocked off for your virtual consultation.

Disclaimer: Initial consultations should be MORE than a sales pitch 

If a lawyer only uses the initial consultation as a sales pitch and promises you the ‘moon and the stars’ but does not provide you with any valuable, concrete information, be wary of their ability to represent you. You should be comfortable with the family lawyer you hire because they will be representing your interests during what is usually a highly emotional and stressful time in your life.

Use the initial consultation as a time to interview your potential new lawyer – remember, it’s a two-way relationship. The lawyer must understand your perspective, goals, legal and emotional budget. They must also be able to communicate complex legal issues in an understandable manner. The lawyer should be able to explain what they can do and what their limitations are (whether that be time constraints or general litigation constraints).

At Banaszek Family Law, we want to make sure that your virtual initial consultation is productive and that you receive the necessary information to take next steps on your own, or understand what our involvement in your legal matter looks like if you wish to retain our services. The initial consultation is your chance to interview your future family lawyer and confirm that the relationship is a good fit.

You are one click away from taking control of your life and finding answers to your family law and divorce questions. Make the next move by scheduling your virtual initial consultation with Adrianna Banaszek today, by clicking HERE ●

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Back to School: Banaszek Family Law explains section 7 extraordinary expenses

Although COVID-19 has created many uncertainties surrounding the “back to school” season in Alberta, one thing remains constant for many separated parents – confusion about section 7 expenses and how to divide them.

In today’s blog, Adrianna Banaszek explains which expenses are classified as section 7 expenses to ensure a smooth transition into a new school year for separated parents and their children:

What is a Section 7 Expense?

In Canada, there are two types of child support obligations: section 3 (base/table support) and section 7 child support (special and extraordinary expenses). If you would like to learn more about child support, read our blog titled: The Basics of Child Support.

The Federal Child Support Guidelines (the “Guidelines”) define “special or extraordinary expenses” as expenses that are:

• necessary because they are in the child’s best interests; and

• reasonable given the means of the parents and the child and in light of the family’s spending patterns before the separation.

This means that determining what will be included as a section 7 expense also depends on the lifestyle of the family before separation, along with the reasonableness of the expense incurred for the child given their needs. Every family and each child’s needs are unique, making the qualification of section 7 expenses circumstantial to some extent.

Special and extraordinary child-related expenses are governed by section 7 of the Guidelines, and are apportioned between separated parents based on each of their respective incomes (each party pays the expense in proportion to their guideline incomes). Section 7 expenses capture those expenses which exceed the ones the parent requesting the support can reasonably cover by section 3 child support (they are not the “every day” expenses).

Special expenses typically include post-secondary school or private school tuition, medical expenses, extracurricular expenses, child care expenses, and other child-related costs.

Considerations for sharing Section 7 Expenses

If the section 7 expenses are eligible to be processed through a health benefits plan, you must only share the outstanding out-of-pocket cost in proportion to your guideline incomes. To determine which amount of a section 7 expense is eligible for division between the parents, the court will take into account any subsidies, benefits or income tax deductions or credits relating to the expense, along with any ELIGIBILITY to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

If you believe that the other parent is inappropriately claiming a section 7 expense or requesting that you pay way more than you should be, contact our office to review your matter.

Does childcare qualify as a Section 7 Expense if I am not working?

The short answer is: NO. The Guidelines outline that childcare is classified as a section 7 expense if it is required as a result of a job, an illness, a disability, or educational requirements for employment if the child spends most of the time with that parent.

Need help calculating child support? Banaszek Family Law is here for you.

Still have questions or issues managing section 7 expenses? Banaszek Family Law is here to help you! During this time, all of our initial consultations are being scheduled as a telephone or video conference call at discounted rates.

Banaszek Family Law wants to see you and your children excel this school year! ●

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Change of Plans: Postponed weddings give couples time to plan for their futures

Postponed Weddings and Prenups

The COVID-19 pandemic has caused a cascade of wedding postponements and cancellations. Many couples are deciding that they would rather hold off on celebrating their love (and changing their marital status) until it’s possible to come within six feet of family members and friends.

Postponing the big wedding day allows couples the opportunity and additional time to consider entering into a prenuptial agreement. If you were toying with the idea in the past, but got wrapped up in the party planning instead, now is the time to secure your financial future with a spousal agreement. What is more romantic than giving your future spouse certainty about how you intend to divide your assets and debts upon separation (if irreconcilable differences crop up) before tying the knot?

Adrianna Banaszek of Banaszek Family Law explains what prenuptial agreements are, and why they are becoming increasingly popular, especially among millennials.

What is a ‘Prenup’?

A Prenuptial Agreement (“prenup”) is a contract between two future spouses that settles issues of property and debt division, spousal support, or any other matters you wish to make crystal clear in the event of a party’s death or divorce. Entering into a prenup provides parties the opportunity to plan for the unthinkable, which is often difficult, but VERY important. Having a binding plan sorted out in the event of a divorce often saves spouses money because their matters are already decided and do not need to be mediated, litigated or arbitrated. Plus, it’s much easier for most couples to make clear and fair decisions during the “honeymoon phase” or the “postponed wedding” phase, instead of when they are questioning why they decided to walk down the aisle in the first place.

If you do not enter into a prenup, you will be subject to the Divorce Act (Canada) and legislation of your jurisdiction. In Alberta, for the most part, assets and debts accumulated during the marriage will be divided equally, save for exemptions which may apply (like gifts, inheritances and windfalls). Just because you acquired an asset before you began your cohabitation or before marriage, does not mean it is exempt from division with your spouse. The increase in value of “pre-marriage assets” during the duration of your marriage may be subject to equal division as well. If you do not want the legislation to automatically apply to your relationship upon dissolution, entering into a prenup is a way of contracting out of this framework.

The Prenup Process

Bringing up your desire to enter into a prenup or a cohabitation agreement to your partner may be difficult. Some people relate entering into a marriage contract as a sign of distrust, a way of jinxing the relationship, or extinguishing the passion. It may be beneficial to book an initial consultation with a family lawyer before discussing the matter with your partner so that you have an overview of the laws affecting you while you are not covered by a prenup. If your partner is already on board with entering into a marriage agreement, take note that at Banaszek Family Law, we will only meet with one party to the agreement to protect your interests, avoid a conflict, and to ensure that the agreement will not be overturned in the future.

Financial Disclosure Exchange: What’s mine is yours?

The exchange of complete financial disclosure (documents) between the parties to the agreement is part of the drafting process and one way of ensuring that the agreement is not overturned in the future. Sharing details about your assets (savings, property ownership) and debts/financial obligations (student and credit card debts, lines of credit, leases, mortgage) with the person you intend to spend the rest of your life with puts both parties on an equal “knowledge” playing field.

When each party’s financial picture is laid out on the table, the agreement to be entered into becomes more equitable. It also gives each spouse more information about their life partner. After entering into a prenuptial agreement, each spouse should be more prepared to make the decision to marry because they know what they are signing up for from a financial standpoint.

Independent Legal Advice

Once the agreement is drafted by Banaszek Family Law and both parties have had the opportunity to review and approve its’ contents, each party will obtain independent legal advice before entering into the agreement. This will require that your partner attends at a separate law firm and meets with a different lawyer to receive legal advice on the agreement and have their signature witnessed. Obtaining independent legal advice will help ensure that the agreement is not subject to being overturned because one party did not receive the full advantage of legal advice. Obtaining independent legal advice also significantly reduces the possibility that one party can overturn the agreement in the future by claiming that they entered into the agreement under duress or that they did not understand the legal impact of certain clauses of the agreement.

Prenups for the People

Prenups are no longer reserved for the famous and wealthy. Although pop culture often depicts prenups as a preservation tool for the rich party, the less wealthy spouse may also be protected under the agreement with the inclusion of clauses that benefit their position (often upon receiving independent legal advice on the agreement).

With common law relationships on the rise in Canada and Canadians waiting longer to get married or having to postpone their wedding due to unprecedented global events, more spouses are bringing assets (and debts) into new marriages rather than accumulating them together. Career and financial stability have become priorities before marriage for Canadian millennials (Cardus Family study, August 2016), which in turn increases the need for prenups.

There is a cost/benefit analysis which needs to be undertaken in advance of entering into a prenup, and usually the benefit outweighs the cost because there is so much uncertainty in the future and many people want to keep what they worked hard to accumulate prior to tying the knot. Prenups are now, more than ever, for all people!

Banaszek Family Law is here for you

It is very difficult to plan for all of the variables that may form part of your life and marriage but you can mitigate some of the risks by entering into an agreement with your spouse. The future holds a lot of unknowns, which has become evident with the sudden spread of COVID-19 and its’ adverse impact on countless lives worldwide.

Banaszek Family Law offers flat rates for uncontested family law agreements, including: prenuptial, postnuptial, cohabitation and separation agreements. Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE. We are pleased to continue offering a discounted rate during July and August 2020 for telephone and video conference consultations.

Banaszek Family Law is here to assist you during this unprecedented time ●

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Child Support in the Wake of COVID-19: Banaszek Family Law explains your legal rights and obligations

In the wake of COVID-19, the financial stability of many Canadian parents is threatened. More than 3 million Canadians have applied for jobless benefits and emergency income aid with the federal government since mid-March. In the midst of all the financial uncertainty, many parents are wondering what their legal obligations are to pay child support pursuant to a Court Order which was made in a more favorable economic climate.

Banaszek Family Law explains the paying parent’s obligations during this challenging time and the rights of the recipient parent who relies on support to ensure the children’s needs are met:

Varying child support during the COVID-19 pandemic

Among Canadians, Albertans are overwhelmingly experiencing the negative financial effects resulting from the COVID-19 outbreak. At the beginning of April 2020, Calgary’s unemployment rate was the highest in the country. Alberta’s energy sector is especially impacted as a result of COVID-19 and the oil price war, dimming the prospects of global oil demand. Oil prices have taken the biggest plunge in decades, creating further uncertainty and financial stress. This stress is spilling over into financial obligations, like child and/or spousal support payments for many Albertans.

The Federal Child Support Guidelines make it very clear that children should benefit from the income of both parents. When parents lose their jobs or their income is reduced, their ability to continue paying child support at a previously Court-ordered or agreed to amount is no longer financially feasible.

Under regular circumstances (pre-COVID-19), when a parent experiences a loss of income, they are responsible for obtaining a new judgment (a Variation Order) from the Court before the Maintenance Enforcement Program of Alberta (MEP) will change the amount they collect.

If you would like to learn more about child support and the role of the Maintenance Enforcement Program, read our blog post here: The Basics of Child Support.

A variation in child support or spousal support is permitted under the Family Law Act (Alberta - provincial legislation) and the Divorce Act (Canada - federal legislation). The Court may consider changing a child support Order if there was a change in circumstances experienced since the previous Order was made. These circumstances include a change in any of the following:

• the number of children who are dependent on the parties;

• employment that results in a long-term change in income;

• special or extraordinary Section 7 expenses incurred for the children; and

• the access costs for visits between the parties and their children.

The Court may also consider the payor’s ability to make the current payments, or other factors based on legislation the Order was made under.

Note: If the parties entered into a separation agreement, the agreement may limit how and when a variation may occur. Provide your separation agreement to your lawyer at the initial consultation so that they may review it and provide you with accurate legal advice.

MEP’s role during the pandemic

Without a Variation Order, MEP will continue to enforce the Court Order currently registered with them. MEP does not have the same jurisdiction to make changes to child support as the Court. With access to the Courts being reduced during this time, the ability to bring a claim to vary support promptly is impacted.

MEP recognizes the hardship experienced by many payor parents as a result of COVID-19 and reduced access to the Courts. The Law Society of Alberta has recently released the following statement:

The Maintenance Enforcement Program (MEP) recognises COVID-19 may impact a payors’ ability to meet their court ordered child support obligations. Similarly, it is recognised recipients are also impacted by COVID-19, and still have monthly obligations for the child(ren). Therefore payors making no payment is not an option.

To assist payors, the MEP will offer a temporary payment arrangement for less than the ordered amount or a temporary decrease in their current payment arrangement. This applies to payors contacting MEP looking for assistance during the pandemic due to loss of income as a result of COVID-19 diagnosis, self-isolation, loss of job (or reduced hours) or impact of childcare/school closure. Assistance to these payors will be temporary, and it is the responsibility of these payors to keep in touch with MEP month-to-month.

If you have experienced a change to your financial situation as a result of COVID-19, you should contacted your MEP case officer immediately to arrange for a payment plan and receive further information. Banaszek Family Law assists clients requiring legal support during this time. We can assist you with negotiating a new child support order or agreement, or setting up an interim payment plan with MEP to assist you financially until the Courts reopen or your economic situation changes.

Banaszek Family Law is here for you

If you require independent legal advice with respect to your family law and/or divorce matter, contact Banaszek Family Law to schedule a telephone consultation with Adrianna Banaszek, HERE. We are pleased to continue offering a discounted rate during May 2020 for telephone consultations.

Banaszek Family Law is here to assist you with your child support matter during this unprecedented time●

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn for more updates on how COVID-19 is impacting family law issues.

Banaszek Family Law serves Albertans during the COVID-19 pandemic

We are living in unprecedented times. The World Health Organization has declared the novel coronavirus outbreak a global pandemic. We are finishing out March 2020 with 754,948 confirmed cases and 36,571 lives claimed by the coronavirus disease (COVID-19) worldwide. The virus has spread to every continent, except for the land of barren ice: Antarctica.

In a time of escalating uncertainty, Banaszek Family Law continues to serve Albertans with preventative measures in place to protect our community. Since the City of Calgary declared a local state of emergency on March 15, 2020, Banaszek Family Law has been conducting all client meetings over the phone or by video conference. All Court documents will be fax-filed to reduce traffic at the Calgary Courts Centre and all Court registries throughout the province. We will continue to limit in-person interactions for as long as public health officials advise that social distancing is required to ensure we are doing our part to flatten the curve.

Where matters are urgent or requiring immediate resolution, Albertans can continue to rely on Banaszek Family Law and our justice system to serve and protect their interests. In the latest Alberta Courts announcement, access to all courthouses in the province of Alberta is being restricted until further notice. Currently, only emergency or urgent matters are being heard by Alberta Courts. Emergency matters are those in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order. If you are currently experiencing a family law matter which you believe to be of an urgent nature, contact Banaszek Family Law immediately to seek legal advice.

Banaszek Family Law is here to assist you during the pandemic as we believe that your family law matter does not need to be stalled or put on hold during these uncertain times even if it is not of an urgent nature. Although access to the Courts is limited right now, litigation should never be the only method to finalize a family law dispute. More than ever before, alternate dispute resolution options should be considered and employed before litigation. Throughout Alberta, qualified mediators and arbitrators continue to offer their private services remotely, and negotiations and settlements between counsel and parties can still be accomplished without a scheduled Court appearance.

Although we are distancing from our downtown Calgary office at this time, Banaszek Family Law’s contact information remains the same. We can be reached by telephone directly at: 587-390-8548. To book an initial telephone consultation or obtain independent legal advice, please complete the consultation request form HERE.

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn to receive updates on how COVID-19 is impacting family law issues.

We wish our readers and clients good health ●

New Year, New Rules: Banaszek Family Law welcomes changes to Alberta's family law legislation

On January 1, 2020, Albertans welcomed a new decade along with dramatic changes to the laws regulating property division for separated unmarried couples. This legislative update is welcomed to Alberta alongside changes to the child support regime for adult children and an outdated Act being repealed.

Property division becomes less of a puzzle for unmarried couples

Unmarried couples finally have the same rights to property as their married counterparts. These changes are made possible by Bill 28, amending the Family Law Act in Alberta. Bill 28, (the Family Statutes Amendments Act, 2018) extends property division laws to include "Adult Interdependent Partners". Prior to 2020, there was no legislation in Alberta directing how property should be divided when unmarried couples broke up, resulting in uncertainty and costly legal battles. Alberta’s new legislation treats unmarried couples in the same manner as married couples after they have resided together for at least two (2) years.

In the recent past, unmarried couples in Alberta could not rely on legislation directing how property should be divided following the dissolution of the relationship. Instead, when unmarried couples separated in Alberta, they were forced to rely on (sometimes) obscure legal doctrines to divide any assets and debts that have accumulated or which resulted from the relationship. The legal doctrines the Court focused on included: resulting trusts, constructive trusts, unjust enrichment, and family law claims.

The ways in which the legal doctrines applied was often complex, affording Alberta’s judges vast discretion to make a decision on what is equitable. The nature of this process often left unmarried parties who became litigants unsure of their chances of success before walking into the Court room.

Married couples who separate rely on the Matrimonial Property Act, which very clearly outlines what the rights of each party are. All property accumulated during the relationship is divided equally (50/50) between the parties unless it meets one of the following exemptions:

1. Inheritance;

2. Damages one party received in a legal claim;

3. Gift from a third party;

4. Any increase in the value of exempt property is equitably divided between the spouses.

As a result of the changes to the Alberta Family Law Act, property division rules will now apply in Alberta to property acquired after a couple begins a relationship of interdependence whether they are married or not.

Do you want the new property division laws to apply to your situation?

If you are involved in a relationship of interdependence and would like to contract out of the new property division laws in Alberta, contact Banaszek Family Law for legal advice and to draft a Cohabitation Agreement to protect your property and rights.

Existing Agreements relating to property division which were enforceable under the law when they were signed will still be enforceable in 2020 and beyond, regardless of the amendments to the legislation.

Child support for adult children clarified in 2020

The new legislation has clarified the eligibility criteria for child support in the Family Law Act by:

• removing the age limit for adult child support;

• confirming that adult children who are unable to withdraw from their parents' care due to illness, disability, being a full-time student or "other cause" are to be eligible for a child support application; and

• aligning the Family Law Act with legislation in all other Canadian jurisdictions and the Divorce Act when it comes to adult child support.

These changes make it clear when an application for adult child support can be made, allowing the Court to determine the amount of child support (if any) that should be awarded if an agreement cannot be reached by the parties out of Court.

Married Women’s Act is repealed in 2020

If you thought that the title of this legislation and the contents of it were outdated, then you are on the same page as the Alberta Government. As the Canadian Charter of Rights and Freedoms already guarantees equality rights and the Family Law Act recognizes that married women have a legal personality independent from their spouse, the Married Women’s Act is no longer needed and has been repealed.

Additional changes across Canada in 2020

Federal laws related to divorce proceedings and family orders were amended with the passage of Bill C-78, with the majority of changes to the Divorce Act coming into effect on July 1, 2020. The Divorce Act applies to married couples who are divorcing. The Divorce Act is federal legislation, meaning that it applies across Canada. The changes include updated criteria to determine a child’s best interests in custody cases, and much needed measures to address family violence when making parenting arrangements.

Banaszek Family Law is here for you.

The legal landscape is always developing, which means that the legal counsel you trust should understand and adapt to all legislative and procedural changes. If you require independent legal advice with respect to your family law and/or divorce matter, contact Banaszek Family Law to schedule a consultation with Adrianna Banaszek, HERE.

Banaszek Family Law is here to assist you in 2020, and beyond ●

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The New Shape of Surrogacy: Banaszek Family Law explores emerging issues in fertility law

Surrogacy is a regulated and altruistic (reimbursement for expenses is only allowed) alternative for those experiencing difficulty or requiring assistance creating a family of their own. Surrogacy is an arrangement where a woman agrees to carry a baby for others, often being the only option for an infertile or same-sex couple to have their own genetically-related child.

Canadians experiencing infertility, same-sex couples and single parents are increasingly turning to assisted human reproduction (“AHR”) options, like surrogacy. This week, Adrianna Banaszek, founder and family lawyer at Banaszek Family Law, explores emerging issues relating to surrogacy in Canada:

Legislation governing assisted human reproduction in Canada

The Assisted Human Reproduction Act (“AHRA”) is Canada’s federal legislation that governs assisted reproduction procedures like surrogacy and human cloning, to name a few. There are several regulations associated with the AHRA. It is designed to protect and promote the health, safety, dignity, and rights of Canadians who use, or are born of, AHR technology.

Health Canada is responsible for developing policy and regulations under the AHRA, and for administering and enforcing the legislation and its’ regulations. The Government of Canada (Health Canada) outlines that the AHRA achieves this purpose by “setting out prohibited activities related to assisted human reproduction that may pose significant human health and safety risks to Canadians or that are deemed to be ethically unacceptable or incompatible with Canadian values.”

Can surrogates obtain payment? New changes coming JUNE 2020.

The current laws in Canada prohibit paying a surrogate mother for the act of carrying the child. NEW regulations from Health Canada will come into effect on June 9, 2020 in the form of the Reimbursement Related to Assisted Human Reproduction Regulations (the "Regulations”) to clarify what type of “payment” or reimbursement of expenses is legal in a surrogacy arrangement.

The inclusion of a comprehensive list of reimbursable expenses is a major development as the current legislation does not specify which particular expenses may be reimbursed. By clearly defining which expenses are reimbursable to a surrogate, the Regulations will reduce fears of being criminally sanctioned for offering an illegal type of payment to a surrogate or for the surrogate accepting same. Consequently, the ability to broadly interpret what constitutes a “reasonable” expense previously allowed parties more flexibility and autonomy in making fertility arrangements.

Reimbursable expenses relating to surrogacy

The following expenditures incurred by a surrogate mother in relation to the surrogacy MAY be reimbursed under subsection 12(1) of the Act: (as outlined in section 4 of the Regulations):

• (a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;

• (b) expenditures for the care of dependents or pets;

• (c) expenditures for counselling services;

• (d) expenditures for legal services and disbursements;

• (e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;

• (f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period;

• (g) expenditures for obtaining a written recommendation referred to in paragraph (f);

• (h) expenditures for the services of a midwife or doula (professional trained in childbirth);

• (i) expenditures for groceries, excluding non-food items;

• (j) expenditures for maternity clothes;

• (k) expenditures for telecommunications;

• (l) expenditures for prenatal exercise classes;

• (m) expenditures related to the delivery;

• (n) expenditures for health, disability, travel or life insurance coverage; and

• (o) expenditures for obtaining or confirming medical or other records.

The new Regulations take into account the various additional expenses associated with pregnancy. For example, with respect to the grocery reimbursement, Health Canada recognizes that a woman's overall health influences the health of her developing baby. The nutrient intake for pregnant women and women who are breastfeeding are generally greater than those of other women, which enables groceries to form part of the reasonable possible expenses for reimbursement.

As you can tell from the foregoing list, the Regulations will allow for pregnancy-related expenditures to be covered by the party enlisting the surrogate’s service. Health Canada is very clear in their Guidance Document that only a party who wishes to reimburse the legitimized expenses may do so, but that there is no obligation to reimburse a surrogate for the expenses they have incurred as a direct result of the pregnancy.

The perspectives on whether payment for surrogacy should be legalized vary across Canada. Some parties accept the current legislation and consider payment for surrogacy a slippery-slop which has the potential of making the process exploitative, while others believe that payment should be an option to acknowledge a woman’s right to choose how she uses her body.

Calgary fertility and surrogacy lawyer

This rapidly developing area of the law requires that your legal counsel understands the legislative and procedural changes. If you require a surrogacy agreement or independent legal advice on a fertility agreement or arrangement, contact Banaszek Family Law to schedule a consultation with Adrianna Banaszek, HERE.

Banaszek Family Law is here to assist you through the legal aspects of building your future ●

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The Basics of Spousal Support

This blog post is from the Banaszek Family Law’s “Family Law Basics” series. This blog series is meant to be a resource and provide some information regarding specific family law topics. These blog posts should not be taken as legal advice as most family law and divorce matters are circumstance-driven and require further analysis and advice from a legal professional. This week, Adrianna Banaszek, Calgary family and divorce lawyer, covers the basics of spousal support in Alberta:

Who is elibigle to claim support?

For married couples, spousal support is governed by the Divorce Act (federal legislation, meaning that it applies across Canada) and the Family Law Act (Alberta’s provincial legislation). Support for unmarried couples in Alberta is governed by the Family Law Act and the Adult Interdependent Relationships Act.

Under the federal Divorce Act, spousal support is most likely to be paid when there is a big difference between the spouses' incomes after they separate. NOTE: Just because one spouse earns significantly more income does not mean that their spouse will automatically be entitled to support payments. A court may decide that the spouse with the lower income is not entitled to support. The court may reach this decision if that spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the marriage or relationship to require financial wealth be distributed more evenly between the parties.

Unmarried couples may be eligible for support if they meet the threshold requirements to be considered “Adult Interdependent Partners” as defined in the Adult Interdependent Relationships Act . In Alberta, you are considered an “Adult Interdependent Partner” of another person if you have lived together in a relationship of interdependence (section 3 of the Act):

• for a continuous period of not less than 3 years, or

• of some permanence, if there is a child of the relationship by birth or adoption, or

• have entered into an adult interdependent partner agreement with the other person under section 7.

There are limited legal protections to guarantee financial support from your separated partner if you do not meet the threshold requirements of the legislation. At Banaszek Family Law, we suggest entering into a Cohabitation Agreement to either ensure that financial support is paid or waived upon separation if you do not wish for the current legislative framework to apply.

How is entitlement to spousal support determined?

Unlike child support, spousal support is not an automatic right of a party who earns less than their spouse when they separate. The federal and provincial legislation strive to compensate spouses who have suffered financially as a result of the marriage/relationship or due to its’ breakdown. Judges consider various factors in determining if a spouse should receive support after a divorce. Some of these factors include:

1. the financial means and needs of both spouses;

2. the length of the marriage;

3. the roles of each spouse during their marriage;

4. the effect of those roles and the breakdown of the marriage on both spouses' current financial positions;

5. the care of the children;

6. the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and

7. any orders, agreements or arrangements already made about spousal support.

Judges must also consider whether spousal support would meet the following purposes:

1. to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage;

2. to compensate the spouse with the lower income for ongoing care of children; or

3. to help a spouse who is in financial need if the other spouse has the ability to pay.

At the same time, the judge must consider that a spouse who receives support has an obligation to become self-supporting, where reasonable.

Types of spousal support entitlement

There are 3 categories of entitlement to spousal support: compensatory, non-compensatory and contractual (Moge v Moge; Bracklow v Bracklow). Compensatory spousal support is based on an economic disadvantage caused by the marriage to one of the spouses. Non-compensatory is needs-based support. The non-compensatory category acknowledges that married couples often become economically interdependent, and require financial support from the other to continue to meet their basic needs following separation. Contractual spousal support is agreed to by way of contract between the spouses.

Try this FREE spousal support calculator to obtain a general estimate of spousal support entitlement based on the duration of your relationship and each parties’ respective incomes. The Spousal Support Advisory Guidelines are not law but suggest appropriate ranges of support in a variety of situations for spouses entitled to support. The Guidelines are taken into account by lawyers in support negotiations and judges in making decisions about spousal support quantum and duration.

At Banaszek Family Law, we suggest you meet with a family lawyer to obtain independent legal advice as there are many factors which must be considered in confirming your spousal support obligations and potential entitlement to claim a particular amount (and length) of support following your separation from your spouse.

How does child support affect spousal support?

If either spouse is paying child support, the judge must also determine how a requirement to pay spousal support would affect child support payments. The Divorce Act clearly states that a judge must give priority to child support when a person applies for both child and spousal support. Both parents have an obligation to support their children.

To learn more about child support in Alberta, read our blog post: The Basics of Child Support.

How can I collect spousal support?

The Maintenance Enforcement Program (“MEP”) is a Government of Alberta program which collects court-ordered child support, spousal and partner support, and takes care of enforcement as needed. MEP is a free service which allows either the payor or the recipient of support to register the spousal support order. Introducing MEP into the mix may help reduce tensions for parties as the accounting and enforcement of financial matters is outsourced.

If you have a court order, you can register your order with MEP here. If you require assistance obtaining a court order for spousal support (whether it is a litigious situation or an amicable one which would be accomplished by consent of both parties) contact Banaszek Family Law to learn how we can assist you.

Need help calculating or obtaining spousal support? Banaszek Family Law is here for you.

A great free resource to assist you in understanding the process and documents required to vary spousal or partner support is found at the Government of Alberta website.

We highly suggest entering into a cohabitation agreement or prenuptial/postnuptial agreement to ensure that support obligations are either waived or secured in the event of a separation or divorce (depending on your desired outcome). To gain a better understanding of how a marriage or cohabitation agreement may be beneficial to you, read our blog: Prenups are for Lovers.

At Banaszek Family Law, we offer flat rate Spousal Support Analysis to provide you with a better understanding of what your support obligations or entitlement may be. Banaszek Family Law also offers independent legal advice and full representation with respect to spousal support matters in both Alberta and British Columbia. Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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