PROVIDE, DON'T HIDE: Banaszek Family Law explains disclosure in Alberta family law matters

“Non-disclosure of assets is the cancer of matrimonial property litigation” (Cunha v Cunha).

Many individuals resist providing complete financial disclosure in their family law and divorce proceedings, which invariably increases delays and sparks the potential for excessive litigation. During the financial disclosure exchange process, some parties feel that documents being requested from them are private and should not be shared. Some parties may feel that the opposing party (or their lawyer) is trying to gain the upper-hand by exploring every aspect of their financial situation. Talk about feeling exposed!

The “hiding” or “withholding” of disclosure by one spouse, or the perception that the spouse is avoiding full disclosure, is likely rooted in mistrust. These issues tend to be heightened in situations where one party did not have much control of the family assets or financial matters during the marriage or relationship.

Banaszek Family Law helps clients understand which documents they must produce to ensure efficient resolution of their legal matter. The legal guidance of an Alberta family lawyer will help reduce feelings of mistrust and ensure you are only producing the necessary documents to the other side. We are prepared to guide you through the confusing, but critical, process of disclosure exchange. 

I was served with a Notice to Disclose - NOW WHAT?

What is a Notice to Disclose application?

The Notice to Disclose is an Alberta Court application that compels the production of necessary financial documents within a specified period of time, being within 30 days of the filed document being served on you. Some of the information/documents which must be produced include the following:

• income verification documents (tax returns, notices of assessment, pay statements, financial statements for parties who are self-employed in an unincorporated business, where applicable);

• confirmation of all partnership and trust interests, assets and liabilities held in your name (Schedule A, bank statements, credit card statements, statements for all investment interests);

• list of exemptions of assets claimed, where applicable;

• list of special and extraordinary expenses claimed with supporting documentation, where child support is claimed; and

• monthly budget of expenses, where spousal or partner support is claimed.

What should I do after being served?

If the party served with the Notice to Disclose fails to produce the relevant information/documents within the specified time, the party serving the Notice to Disclose is entitled to seek an Order for Costs for non-compliance and an Order for production of the missing documents at the upcoming Court appearance. Therefore, it is vital that you begin organizing the requested documents and seek independent legal advice from a family lawyer right after being served. By booking an initial consultation with an Alberta family lawyer, you will gain an understanding of whether your documents are complete pursuant to the Notice to Disclose and which documents you should NOT produce. A family lawyer should guide you through the disclosure process to ensure that you are not producing privileged (confidential) documents to the opposing party.

What’s the point of Notices to Disclose?

The Court created Notices to Disclose as a way to efficiently compel and expedite the exchange of relevant financial information in family law matters. Where Notices to Disclose are not filed, and if parties are reluctant to exchange documents, it often takes a great deal of time and effort to get relevant financial information from the parties in an action. The Notice to Disclose application puts pressure on the parties to produce the documents because they know there is an upcoming Court date at which an explanation for why the documents are not produced must be given. The sometimes onerous process of document exchange is thereby streamlined with this the Notice to Disclose.

Notices to Disclose can be used in divorce, matrimonial property, parentage and maintenance actions. They are not mandatory, but they are efficient and a good measure for future protection. A Notice to Disclose benefits a family law client in many ways, including reducing the potential for the opposing party to hide assets and income because they are obligated to disclose all aspects of their financial situation.

Other options for disclosure exchange

If the parties are efficient and forthcoming with exchanging disclosure documents without the need of Court intervention, the Notice to Disclose can be used as a guide to cover off most of the relevant documents required to confirm which assets and liabilities will be divided between the parties or exempt, and each parties’ guideline incomes for the purposes of calculating child and/or spousal or partner support. Consult with a family lawyer before making a disclosure request from the opposing party to confirm if you are entitled to receiving this information.

To help ensure that you are producing the correct documents to the opposing party/counsel, or if you wish to gain a better understanding of how you can compel the opposing party to provide you with documents and information relevant to your matter (with or without Court intervention), consult with a family lawyer in your jurisdiction.

Schedule an initial consultation with Adrianna Banaszek of Banaszek Family Law to learn about your legal rights and obligations. During May and June 2019, Banaszek Family Law is offering free 30 minute telephone initial consultations - Make the next move and book yours today!

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The Basics of Child Support

Banaszek Family Law explains how Alberta’s and Canada’s child support regimes strive to create financial equality in the households of separated parents to benefit children:

Child support is a legal right of every child, which is safeguarded by the Alberta and Canadian legal systems. Children of intact families benefit from both parents' incomes, and that should not change if their parents separate or divorce. Child support is meant to equalize the financial situations in both households to ensure that the child is receiving the full benefit of both incomes as it is the duty of both parents to financially provide for their children.

Types of child support

In Canada, there are two types of child support obligations: section 3 (base/table support) and section 7 (special and extraordinary expenses) support. Section 3 child support is what most people are familiar with. It is the monthly support payment that rappers explain is a hassle, and something that you must pay until the child is “18 years old”. If your child support education is purely based on references from pop culture, please continue reading this blog post…

Unless otherwise provided under the Federal Child Support Guidelines (the “Guidelines”), the amount of section 3 support is the amount set out in the applicable table for the province, the amount of children for which the support is required, and the income of the parent against whom the order is sought.

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 incomes). Section 7 expenses capture those expenses which exceed the ones the parent requesting the support can reasonably cover (they are not the “every day” expenses). Special expenses may include tuition, medical expenses, extracurricular expenses, child care expenses, and other child-related costs.

NOTE: 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 as the section 7 expense. in determining the amount of a section 7 expense, 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.

How do I calculate child support? (Disclaimer: It’s not always easy math)

Your eligibility to pay or receive child support and the recommended amount payable are determined by federal and provincial guidelines as well as specific rules and formulas. Many factors come into play when determining child support in Alberta.

Guideline Incomes

Child support payments are impacted by how the parties earn income. If a party earns income through self-employment, if they hold substantial investments or trust interests, their “guideline income” (total annual income used to calculate child support) will not be as clear cut as an employee of an at arms-length business or institution.

Guideline incomes may be imputed by a court if the total income the parent is claiming is not appropriate for the circumstances. Some circumstances (and there are many more than listed below!) where imputation of guideline income may be reasonable, include:

• when a party is intentionally under-employed or unemployed;

• when a party resides in a country that has effective rates of income tax that are significantly lower than those in Canada;

• it appears that the party’s income has been diverted which would affect the level of child support to be determined under the Guidelines;

• the party’s property is not reasonably utilized to generate income;

• the party has failed to provide income information when under a legal obligation to do so (AKA: We can’t figure out the party’s total income so we need to produce evidence and make arguments for why that party’s income should be imputed to a certain amount);

• the party unreasonably deducts expenses from income (this can become relevant when a party is self-employed); and

• the party derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

Parenting Arrangement

Child support payments can also be affected by the type of child custody or guardianship arrangements in place. "Shared parenting” applies where both parents each have at least 40% of total parenting time. In shared parenting arrangements, child support is sometimes “set off” by each party’s table child support amount, with the difference of child support being paid to the lower income-earning parent. In a shared parenting arrangement, child support is sometimes reduced to take into account the potentially increased costs of a shared parenting arrangement. The court will also take into account the conditions, means, needs and other circumstances of each party and of the child for whom support is sought before deviating from the applicable table support.

There is a FREE child support calculator available online which can help you obtain a general estimate of your monthly section 3 child support payments.

More factors to consider…

There are many other factors (than listed above) which should be considered in confirming a parent’s child support obligations. For example, just because a “child” has reached the age of majority (18 years old in Alberta) does not mean that they are no longer a “child” for the purposes of calculating child support. Child support may continue to be owed (to the other parent or to the child directly) if they are over the age of majority but are unable, due to illness, disability or other cause, to withdraw from their parents’ charge or to obtain the necessaries of life on their own. This may include a child who continues to rely on their parents for financial support while attending post-secondary education.

If you are a payor of support and you earn income in excess of $150,000, the Court may stray away from applying the Guidelines as the children’s needs are taken care of with support that does not correspond with the total income earned. Alberta courts will consider the amount of child support that is appropriate for the child, taking into account the circumstances of the child who is entitled to the support.

A party who stands in the place of a parent for a child ("in loco parentis”) may also have a child support obligation for the child if he/she separates from the child’s other parent. Meet with a family lawyer to confirm whether you are standing in the place of a parent for a child.

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 to confirm your child support obligations and entitlement to claim a particular amount of support for the children.

What is MEP?

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 child support order. Introducing MEP into the mix may help reduce tensions for parties as the accounting and enforcement of money matters are outsourced.

If you have a court order, you can register your order with MEP here. If you require assistance obtaining a court order for child 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 child support? Banaszek Family Law is here for you.

At Banaszek Family Law, we offer flat rate Child Support Analysis to provide you with a better understanding of what your support obligations are and to confirm the amount of support your children are entitled to.

Banaszek Family Law also offers independent legal advice and full representation with respect to child support and parenting 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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Prenups are for Lovers: Banaszek Family Law dispels myths about marriage contracts

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? NOTHING. Adrianna Banaszek of Banaszek Family Law explains what prenuptial agreements are, and why they are becoming increasingly popular, especially among millennials.

Popular culture has depicted prenups as something the financially-advantaged partner would want to propose in an effort to preserve their wealth. The once thorny subject is becoming less taboo as more people understand the nuances of entering into a private agreement that governs your relationship.

https://www.youtube.com/watch?v=sEsIV79ixok

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 in the event of a divorce, usually saves spouses money because their matters are already decided and do not need to be mediated or litigated. Plus, it’s much easier for most couples to make clear and fair decisions during the “honeymoon phase” instead of when they are questioning why they decided to walk down the aisle to Ben E. King’s Stand by Me 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 course of your marriage may be subject to equal division as well. If you do not want the legislation to automatically apply to your relationship if there is no agreement to settle matters amicably, 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 and to reduce the chances of the agreement being overturned.

Financial Disclosure Exchange

The exchange of complete financial disclosure 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) 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 party more information about one another so that when they make the legal decision to marry, they know what they are signing up for.

Independent Legal Advice

Once the agreement is drafted by our office and both parties have had the opportunity to review and approve its’ contents, each party should (read: must) 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, more spouses are bringing assets (and debts) into marriages rather than accumulating them all together as was the case in the past. 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. Prenups are now, more than ever, for all people!

Final Thoughts

It is very difficult to plan for all of the variables that may form part of your life and marriage. Although your marriage agreement can take many possibilities into account, there is always room for making changes to the agreement if it is by agreement of both parties and will be solidified with independent legal advice. It is often beneficial to reevaluate and update your marriage contract before or after big life changes, such as a change of career of one or both of the spouses, or a shift in the family dynamic (for example, the addition of children into the picture and shifts in caregiver roles).

You are NOT precluded from entering into a marriage agreement if you are already married. Spouses may enter into a post-nuptial agreement (“postnup”) if they are in agreement about the terms following their “I Do’s”. The risk you run into with waiting to see how your spouse feels about entering into an agreement after the wedding date is the potential for rejection. If you do not enter into a prenup before the marriage is solemnized, and if your spouse does not consent to enter into a postnup, the Divorce Act (Canada) and legislation in your jurisdiction will apply if you separate.

Banaszek Family Law offers flat rates for uncontested family law agreements, including: prenuptial, postnuptial, and cohabitation agreements. Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

Legal Coaching: Banaszek Family Law offers legal support that fits your needs

At Banaszek Family Law, we understand that retaining a lawyer to represent you in your family law or divorce matter can be an unexpected and costly expense. We also understand that no one else knows your family law matter and family dynamic better than you do, so self-representing may be the most effective option.

To help alleviate the financial burden and to provide clients with the amount of legal support they require, Banaszek Family Law is proud to offer legal coaching and unbundled legal services to better serve Albertan and British Columbian family law clients.  

What is legal coaching?

An increasing amount of family law litigants find themselves stuck between being unable to afford a lawyer and not qualifying for Legal Aid services. Many people who want to (or need to) self-represent in their family law proceeding can also obtain assistance from a family lawyer to ensure that the documents they are filing are completed adequately, to gain a better understanding of the court process, or to prepare for and feel confident about attending at court, mediation, arbitration or Questioning (Discovery) on their own.

Legal coaching, often called “unbundled legal services”, gives clients the control and convenience of contacting a lawyer at their discretion to obtain assistance. With legal coaching, the client receives the advice and support on any discrete aspect of their family law case. The resulting legal bill can therefore be significantly reduced as the client is only paying for the assistance they requested along the way.

If you are a legal coaching client, the firm and lawyer you have hired will not be on the Court record as your counsel. This means that you would represent yourself in court and receive all correspondence and court documents from the opposing party, the opposing counsel or the court, directly. It would be your responsibility to contact Adrianna Banaszek to request specific assistance at any step in the proceedings.

As a legal coach, Adrianna Banaszek works in the background to assist you. Legal coaching clients can contact Banaszek Family Law to obtain legal advice like a fully retained client would, but taking next steps in your matter would be your responsibility. It is essentially a dial-a-lawyer legal service option, but the lawyer picking up the call or responding to your emails understands where you are in the legal process so that you are receiving efficient advice.

Am I married to one type of representation?

Family law and divorce proceedings are unique and dynamic. If you enter into a legal coaching relationship, you are not stuck with it if you crave more support and wish to have full legal representation. On the other hand, you may need to reduce the level of representation received from your counsel, which is why we understand that sometimes full representation will turn into a legal coaching relationship. The type of legal services required to serve you best may change as your case evolves, and Adrianna Banaszek is prepared to adapt to your situation.  

It is recommended that you first meet with a family lawyer practicing in the jurisdiction in which your family law matter is located before making a decision about the level of legal support you wish to obtain. Adrianna Banaszek practices family law in both Alberta and British Columbia.

Contact Banaszek Family Law to learn more about the legal services we offer to fit your needs. Make the next move by booking an initial consultation today, HERE ●

Follow Banaszek Family Law on Twitter: @BanaszekLaw and LinkedIn: Banaszek Family Law.

Some Diamonds are NOT Forever: Who keeps the ring when an engagement is called off?

This week’s news is buzzing with Jennifer Lopez’s million-dollar engagement ring. After seeing J.Lo’s left hand droop under the weight of the diamond, even the most hopeless of romantics are left wondering: who gets to keep the iceberg ring if the relationship falls apart before the wedding?

Albertans who have called their engagement off (or who are contemplating it) may also be questioning if an engagement ring is treated like a traditional gift, or if it is possible for the giver to recover it when nuptials do not follow the proposal.

Alberta Law on Engagement Ring Returns

The general rule is that where an engagement is broken, the engagement ring must be returned to the person who “gifted” the ring because the condition of getting married was not fulfilled. Alberta Courts view engagement rings as “conditional gifts” because they are usually given on the condition that the parties will say their “I do’s”.

It is irrelevant who caused the break-up in determining the right of the giver to recover the gift. Unlike many Canadian provinces, Alberta has legislation which specifically outlines that if a person makes a gift to another “in contemplation of or conditional on their marriage” and if the marriage does not take place, fault will not be considered in determining who has the right to recover the gift (Family Law Act, s. 102). In short, the blameworthy party is not precluded from recovering the engagement ring.

After a couple marries, the condition on the gift is fulfilled and the engagement ring is owned by the person who received it. In the event of divorce, the giver will have a difficult time arguing that they should be able to recover the ring and it is unlikely that they will be successful. The expectation is that the couple will marry, not remain married indefinitely for the ring to remain with the receiver.  

Exceptions to the General Rule

In a recent Alberta Court of Queen’s Bench case, Bhachu v Brown, 2019 ABQB 150, Justice M.J. Lema found that the engagement ring should be kept by the party who received it, even though the condition of entering into a marital union did not take place. In Bhachu, the Judge found that the Defendant was entitled to keep the ring because of “the long period (five years) during which the parties were engaged with no evidence of concrete steps towards marriage” and he took into consideration that both parties gifted rings to each other (Bhachu, para 149).

The Court will look at the intention of the proposing party and whether there is any evidence which would confirm that the giver intended for the engagement ring to be kept even if the couple does not marry. If the proposer’s actions before or after separation show that the recipient should keep the engagement ring even if the parties do not wed, it is viewed as an “absolute gift” by the Court. Delay in requesting the ring back will be an indication that it was intended as a gift without any restrictions, and meant to be kept by the person who received it indefinitely.

Obtain Independent Legal Advice to Protect Your Interests

Couples can ensure the engagement ring, or any other asset, is protected in the event of relationship breakdown by entering into a cohabitation or marriage agreement. Couples may also enter into an agreement after they have married (a “post-nup”). Banaszek Family Law offers flat rates for these types of uncontested agreements.

You may require further legal advice on property division and adult interdependent partner support if you and your partner were in a common law relationship before separating. To help ensure that there are no doubts about who will keep the engagement ring or any other assets in your relationship before or after the marriage, consult with a family lawyer in your jurisdiction. Schedule an initial consultation with Adrianna Banaszek to find out how you can legally protect yourself and your assets, regardless of their monetary value ●

Follow Banaszek Family Law on Twitter: @BanaszekLaw and LinkedIn: Banaszek Family Law.

Banaszek Family Law is open for business downtown Calgary!

Adrianna Banaszek, founder of Banaszek Family Law, is thrilled to announce that the newest Calgary law firm will call the 30th floor of the TD Canada Trust Tower home! Adrianna is dedicated to providing quality, client-centered family law and divorce services for Albertans and British Columbians through her practice.

Banaszek Family Law offers full representation, legal coaching and unbundled legal services, flat rate agreements/divorces, and independent legal advice. Ask your questions and canvas your options by booking an initial consultation with Adrianna Banaszek today.

Please follow Banaszek Family Law’s social media accounts - fresh content will be launched shortly. Thank you for your support as we grow!