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This legislative update is welcomed to Alberta alongside changes to the child support regime for adult children and an outdated Act being repealed.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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It Takes a Village: Banaszek Family Law explains why your divorce lawyer should not be the shoulder you cry on

At Banaszek Family Law, we believe that divorce and family lawyers should only form PART of your team of professionals as your family goes through a separation. Transitioning a family to a completely different, and often yet to be known, arrangement is extremely taxing for the separating spouses and for their children. In fact, the Holmes and Rahe Stress Scale ranks divorce as the second most stressful life event that someone can go through! On the Scale, divorce is only surpassed by the death of a spouse or a child.

The high ranking of divorce on the Scale should put the stress associated with divorce into perspective for those currently going through the process of unwinding a marriage, for their legal representatives, and for their family members, friends and employers.

We strive to ensure that our clients understand our role in their divorce every step of the way. We understand that clients going through a separation or divorce often benefit from the assistance of mental health professionals, including psychiatrists (medical doctors), psychologists, and various counsellors.

Which issues should be left for mental health professionals to solve?

Family and divorce lawyers are legally trained professionals. This means that in Canada, divorce lawyers are not required to obtain specific counselling or mental health training and education in addition to the Law Society requirements of the province in which they practice law.

If your lawyer primarily practices in family and divorce law, they are often exposed to high-stress and high-conflict interpersonal situations. Although divorce lawyers should have an intimate knowledge of the interpersonal dynamics between their client and separated spouse, it is vital to remember that lawyers are not always equipped to advise and assist with your emotional and psychological well-being and healing.

Lawyers should offer the services of other professionals who are better equipped and specifically trained to assist you. If you are spilling your heart to your lawyer and the information does not assist your legal case, your lawyer should let you know that other services should be employed to reduce your legal bill. Often times, the cost of hiring a counsellor are much lower than the billing rate of your divorce lawyer. In addition, services provided by counsellors and registered psychologists may be partially or wholly covered by your health benefits plan if you have access to one.

In summary, it is best not to seek medical and psychological assistance from a legally-trained professional. Your wallet, lawyer and mental health will thank you.

Which non-legal professionals should I consider hiring during my divorce?

There are a variety of professionals which should be considered by every person going through a separation or divorce. Parties should consider if they would like to attend at counselling alone or with their spouse (if their spouse is agreeable to attending), or attending at both.

If there are children involved and a respectful co-parenting relationship is the goal, the assistance of a counsellor or registered psychologist specializing in family therapy and parenting should be researched and considered.

Parenting coordinators are also professionals which should not be overlooked by separated parents struggling to maintain healthy communication. Parenting coordinators are mental health or legal professionals with mediation training and experience. Parenting coordinators may assist separated parents in the following ways:

• implementing parenting plans for high-conflict parents;

• facilitating the resolution of parent disputes in a timely manner;

• educating the parents about the children’s needs; and

• making decisions within the scope of a court order or a contract [this is possible with the prior approval of the parties and/or the court].

If you are experiencing stress and other symptoms relating to your separation, you should also consider attending at your general practitioner for additional resources and assistance.

Your divorce lawyer has a duty to avoid litigation where possible.

We are aware that our clients are forced to constantly battle with emotions and instability during most of our solicitor-client relationship. Often times, clients come into our office as the first point of contact after deciding to take steps to separate from their spouse, which means that lawyers have a duty to advise their clients of other non-legal resources and professionals that may make the process easier if employed from the outset.

Before a court action for divorce is commenced (the filing of a Statement of Claim for Divorce) with the Court of Queen’s Bench in Alberta, family and divorce lawyers must sign the “Statement of Solicitor” if you are represented by a lawyer. This statement states as follows:

“I, [lawyer’s name], the solicitor for the Plaintiff, certify to the Court that I have complied with the requirements of section 9 of the Divorce Act (Canada).”

Before a lawyer can sign off on this statement, they should be complying with all of the following, as outlined in Section 9 of the Divorce Act:

9 (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding

• (a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and

• (b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation,

unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

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(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.

By signing the Statement of Solicitor, your lawyer is advising the court that they have satisfied these steps. This is not something which should be overlooked. Non-legal professionals have the potential impact of reducing your litigation and resolving interpersonal issues between you and your spouse which may make the entire legal aspect of your divorce more efficient (i.e. less costly).

Sometimes, alternative dispute resolution options (like mediation) or counselling and guidance facilities can also help spouses reconcile. If the goal is not reconciliation, obtaining third-party professional counselling may significantly improve communication between the spouses, which is vital for co-parenting or generally working through issues leading to the breakdown of the marriage. Obtaining the assistance of counselling to attend solely (without your separated spouse) may also significantly improve anxiety, stress and provide resources and tools to make the disruption a separation/divorce causes more manageable.

Book your initial consultation with Banaszek Family Law

At Banaszek Family Law, we understand that ‘it takes a village’ of professionals to assist in your family’s transition. We are prepared to assist our clients in finding all of the resources available to them to help reduce the stress associated with separation and divorce.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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Virtual Parenting: Banaszek Family Law explores the impact of virtual parent-child contact

The increase of virtual technology options, paired with ease of accessibility, has removed many barriers for parents to communicate with their children post-separation. But, we should not kid ourselves - all that glitters is not gold! Parents who rely (to varying degrees) on virtual technology to maintain relationships with their children often experience additional conflict with the custodial parent due to the introduction of the technological “godsend”.

Adrianna Banaszek, family lawyer and founder of Calgary-based law firm Banaszek Family Law, explains how the booming virtual technology sector has both positive and negative effects on children and their parents post-separation, and how common use of these alternate parent-child contact methods may develop a new legal landscape in Alberta.

What is Virtual Parenting?

“Virtual parenting” refers to parent-child contact and communication through the use of virtual technology.  Virtual parenting is usually parenting from afar through a plethora of communication means, including, text messaging, email, Skype, FaceTime, communicating through social networking sites, and good old-fashioned telephone calls.

Technology allows separated parents the option to increase communication and contact with their children when they are not the primary (custodial) caregiver or during the other caregiver’s parenting time. Whether the risks outweigh the benefits of these alternate modes of communicating for parents and their children is still out for debate.

Virtual tech is shaping the legal landscape

What is certain, however, is the judicial notice that virtual technology is receiving in the Alberta Courts when it comes to decisions about parenting arrangements. There is no doubt that technology has allowed parenting time to take place in situations where it likely would not otherwise. For instance, long-distance parenting arrangements are made possibility with communication technologies. The Alberta decision of BRH v RPS, 2016 ABQB 346, highlights that the use of virtual technology is a factor weighed in mobility applications (parents who wish to relocate the child to another jurisdiction) and long-distance parenting arrangements. Justice R.A. Graesser stated as follows:

[107] Technology will undoubtedly play a role. With technology, the absent parent can have daily face-to-face time with their child via Skype or Facetime, such that communications during non-parenting periods are not limited to one-dimensional telephone calls or written communications.

Although this particular case did not turn on maximizing contact between the parties, notice was taken of the parenting opportunities technology would afford (para 108). This decision was later appealed and the appellant mother was granted primary care of the child with the ability to relocate the child to Spain. Although the success of the appeal did not hinge on the role virtual technology would play, it was considered in allowing the father (non-custodian parent) generous access to his child who was to move overseas in between holidays and summers when in-person parenting time would be realized.

Is virtual technology an aid or a grenade for co-parenting?

Although virtual technologies are common place in the Western world today, there has been minimal research conducted about whether and how virtual parent-child contact impacts children, their parents and the parenting relationship post-separation. The minimal empirical research is most concerning when it comes to families involved in high-conflict disputes, which often stem from poor communication, lack of trust between the parties, and/or mental health issues.

Luckily, Dr. Rachel Birnbaum, is asking these very important questions through her research. Dr. Birnbaum is a social work professor at King’s University College, Western University, where she focuses her research on family justice issues. She conducted a survey which asked the following questions:

1. What conflicts, if any, do adult and child clients report as a result of using any type of technology for parent-child contact?

2. What benefits and challenges do family justice professionals believe about the use of virtual technology as a means of parent-child contact?

The Parents Report

The parents participating in the survey reported that the majority of conflicts occurred as a result of the following:

• 60% reported that the other parent listened in on their conversation with the child.

• 35% reported that the other parent alleged that the child is too busy doing something else at the designated virtual parenting time.

• 41% reported that the child is not available for the call at the designated time.

• 4% reported that the other parent alleges that they do not know how to use or set up the virtual technology to allow for the access.

• Other reasons conflict occurred: using the time to harass the custodial parent, using the child to harass the non-resident parent and child support/inappropriate discussions with the child, and some parents reported that they don’t want their children using technology due to safety or confidentiality concerns.

The Children Report

The children participating in the survey reported that the majority of conflicts sometimes occurred as a result of the following:

• 55% reported that conflict arose as a result of the child being busy and not always wanting to talk to the other parent at the time.

• 45% reported that the child does not have a lot to say to the other parent and the other parent gets upset due to this.

• 39% reported that the other parent is listening to the conversation during the parent-child contact.

Children mostly expressed that although virtual parenting was advantageous, virtual access did NOT alleviate their longing for their parent, and that the virtual parent contact increased their anxiety and sadness about the absence of physical contact with their non-resident parent.

The Lawyers Report

The survey found that from the perspective of family justice professionals, the risk of using virtual parent-child contact is for evidence gathering, meaning the contact is sometimes focused on planning future litigation rather than to strengthen the parent-child bond. The majority of professionals concluded that the benefit of virtual contact is that the child may maintain contact with their parent over geographical distances (beneficial for mobility applications and to foster the parental-child bond).

Benefits and challenges of parenting via virtual tech

Dr. Birnbaum’s survey findings support that there are both risks and rewards surrounding virtual parent-child contact. The risks as identified by the parents result mainly from privacy and confidentiality and the burden placed on the custodial parent to organize the parent-child contact. The benefits include that the child may maintain an ongoing relationship with a parent that they are not constantly in-person contact with. It also has the potential of reducing hostility between parents because they have no contact (or minimal contact) with each other – this is more relevant for children who are older and able to use the technology without assistance or supervision from the other parent.

The findings are important as this is a time when virtual parent-child contact is increasingly being recommended by family justice professionals and the court as a means of maintaining parent-child relationships post-separation. Dr. Birnbaum notes that more research is required to determine the impact of the relative costs and burdens to parents having to provide the technology and how much adult assistance is required to organize and have the child available at the designated time, along with examining the safety risks underlying the use of the different types of technology.

*The study is limited by the sample size.

Implementing virtual parenting post-separation: Whose job is it, anyway?

The short answer is: it is the responsibility of both parents. Although the custodial parent may not believe that they benefit from their child interacting with their ex-spouse or the other parent in situations of high conflict, Canadian courts are very clear that for children to maintain relationships with both parents, both parents must be involved. Maintaining relationships with both parents after the parties have separated is highly valued by the Courts and it is considered to often be in the best interest of the child.

Canadian courts have ruled that custodial parents have an obligation to promote compliance with custody and access orders and cannot simply leave the questions of custody and access up to the child. This means that there is an obligation on the custodial parent to actively facilitate access with the other parent by ensuring that the children are available for the virtual or in-person parenting time. For more information on access enforcement, read the Department of Justice Canada’s Overview and Assessment of Approaches to Access Enforcement: An Update by Dr. Martha Bailey.

Need help crafting a parenting plan post-separation? Banaszek Family Law is here for you.

At Banaszek Family Law, we offer independent legal advice and representation to serve your custody and parenting needs, whether that is drafting a Separation Agreement which includes a comprehensive parenting plan, or representing you in your family law and divorce litigation.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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

Parents Who Gift "Home Sweet Home": Banaszek Family Law explains how to protect a down-payment gift from equal division

Let’s face it… home ownership is an expensive and serious undertaking. For couples ready to purchase a house together, the intermingling of financial resources is almost certainly a must. In addition to pooling your life savings with your life partner to come up with an acceptable down-payment, many couples (eagerly) accept parental involvement (i.e. a down-payment gift) to make their home ownership dreams come true.

The gifting of down-payments by parents to their millennial children is on the rise as home ownership becomes increasingly unattainable by historical standards in many Canadian cities. Unsurprisingly, down-payment gifts have doubled from 7% in 2000 to 15% for homes purchased between 2014 and 2016 (Mortgage Professionals Canada). There are legal implications to consider when monetary gifts are poured into a down-payment for a soon-to-be married couple’s home, especially since a substantial amount of Canadian marriages end in divorce.

Dividing the matrimonial home upon divorce in Alberta

In the event of separation and divorce, both spouses will be entitled to half of the home’s value after the mortgage and other encumbrances are accounted for, even if part of the down-payment was a gift from one of the spouse’s parent(s).

[Unequal financial contributions between spouses to attain their home can also have significant legal implications if the parties separate in the future — Stay tuned for a future blog post on this issue!]

If it is your intention to protect the down-payment and ensure that it is either paid back to your parents or remains a gift that your spouse cannot claim entitlement to, steps MUST be taken to legally protect the intention of the gift. Although gifts received from third parties to one spouse alone are often exempt from the presumptive equal distribution under the Alberta Matrimonial Property Act, the matrimonial home is treated differently. The matrimonial home is an exception in family law, and division of the value of the home depends on the circumstances surrounding the down-payment.

For example, in Henderson-Jorgensen v Henderson-Jorgensen, 2013 ABQB 213, the Alberta Court of Queen’s Bench dealt with a claim by the Husband that his father had gifted him $83,500 for the down-payment on a condo which was later sold to buy the matrimonial home and he claimed that this money should not be divided with the Wife. The key finding of the Court was that the Husband’s father was gifting the down-payment to both parties equally. Therefore, the Husband’s claim for the $83,500 exemption from the matrimonial home value was denied by the Court (para 140-41).

If there is disagreement about how the value of the matrimonial home is to be split between the parties and the matter is litigated in Court, the intention of the person making the gift will be taken into account by the judge. Free of any agreement, each party will have to convince the Court that the down-payment was intended to either be a gift for both parties or specifically for one. A spouse claiming the gift is excluded from division of matrimonial property is responsible for demonstrating that the property is really a gift to them alone. The onus to prove this fact is on the spouse wishing to protect the value of the property for their sole benefit.

Protecting the down-payment gift from equal division

Parents wishing to make home ownership a reality for their children while also protecting their rights need to have documentation that clearly states that the gift is for one person (their child) only. If there is no contract or document ensuring that the down-payment is protected, the way in which the home is used by the parties will determine the status of the gift. This means that if the home is the primary residence of both parties, and especially if the couple is raising children in the home, it will be considered the “matrimonial home”. To help ensure that the down-payment gift remains with the intended person upon dissolution of a marriage, a prenuptial agreement is your best bet for preserving the significant contribution from being divided equally.

Prenuptial agreements can be executed before the parties marry, or parties who are already married may enter into a post-nuptial agreement to have the same contractual effect. A marital agreement will reduce the potential risk for financial disappointment when your emotions are already in a state of turmoil. If the parties are in a common law relationship and not married, a cohabitation agreement may also be used to outline the total down-payment contributions received from third parties to safeguard against an unintended “payout”.

Discussing the importance of a prenuptial or cohabitation agreement with your spouse usually alleviates financial tension down the road. Read about prenuptial agreements and the value they provided in Banaszek Family Law’s blog post: Prenups are for Lovers.

An added benefit of entering into a cohabitation, prenuptial or post-nuptial agreement is the requirement for the couple to disclose their financial circumstances to each other. Relationships often fail due to difficult financial circumstances and a lack of communication, so obtaining an understanding of each other’s finances before tying the knot may be a key to avoiding divorce (or at least gaining some certainty that marriage is the right choice in advance of making it official).   

The concurrent rise in down-payment gifts and rate of divorce makes entering into a prenuptial agreement to prevent a generous gift from being disturbed in an unintended manner a no-brainer. Banaszek Family Law offers flat rates for uncontested family law agreements for clients in Alberta and British Columbia. Family law agreements provide peace of mind for both the parents gifting down-payments to their children and the spouses purchasing their new home.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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

It's Still Cheating If You're "Stampeding": Banaszek Family Law explains how adultery affects the Alberta divorce process

The Calgary Stampede has gained considerable notoriety as the biggest party in the West in its 107 years since inception, putting the Albertan tradition and festivities on the international map. Along with fewer Smithbilt hats and plaid flooding the streets of Calgary as Stampede winds down each year, comes a reoccurring trend: a spike in divorce filings, dubbed “The Stampede Effect”.

The prolonged party atmosphere (officially 10 days) often involves free-flowing alcohol, cowboy/girl costumes, concerts and shows galore. Stampede attendees are prepared to let their guards down and let loose. An already vulnerable relationship may not be able to survive Stampede, while some people experience an epiphany in the midst of all the socializing that they would prefer to be single. Although there is no pooled data publicly available to establish the actual increase in separations/filings for divorce following Stampede, it is no surprise that this trend exists. Questionable behaviors and actions are common during Stampede, including adultery, often leading to legal dissolution of marriages.

Many divorce lawyers in Calgary are prepared for the usual influx of calls following Stampede to field questions about the legal effects of adultery, and the divorce process in general. An American study suggests that increases in divorce filings often peak right after big events and seasonal changes, like right after winter and summer holidays, or in Calgary’s case, when “The Greatest Outdoor Show on Earth” winds down.

Banaszek Family Law provides you with some insight into whether adultery needs to be brought up in the legal context of your separation/divorce, and if you wish for it to be advanced, what type of evidence you require to successfully obtain your divorce:

Does adultery impact divorce proceedings?

In Alberta (and throughout Canada), the law relating to divorce based on adultery is governed by the Divorce Act (section 8(2)) which provides that the breakdown of a marriage is established legally only if:

1. The spouses have lived separate and apart for at least one year (most common ground for filing for divorce); or

2. The spouse against whom the divorce proceeding is brought has committed adultery; or

3. The spouse against whom the divorce proceeding is brought treated the other spouse with physical or mental cruelty.

It must be the other party who commits the act of adultery to file under this ground, meaning, a spouse cannot apply for a divorce based on his or her own adulterous acts. It is considered a “no fault” divorce if you file on the grounds of one-year post separation. A “fault” divorce is when you file under the other two grounds or a combination of them. In essence, when filing under the “fault” divorce grounds, the spouse initiating the legal process is blaming the marriage breakdown on the behavior of their spouse.

If your spouse committed adultery, you may file for divorce on this basis at any time after it becomes known to you. Although many spouses blame adultery as the culprit for their marriage breakdown, many also acknowledge that there were other relationship issues present before the adultery even occurred. Therefore, it is not often the case that separated spouses file for divorce based on adultery.  

In short, if you find out that your spouse has committed adultery and you wish to obtain a divorce, it is one way in which you may obtain one from the Court of Queen’s Bench of Alberta. Although it is an established ground for filing for divorce, it does not ultimately determine or often impact how matrimonial property/debt is divided, parenting arrangements are made, or how other corollary relief matters are handled. Past conduct of a parent is irrelevant in determining custody arrangements, unless that conduct is relevant to the spouse’s ability to parent (D.B.S. v. S.R.G., 2005 ABCA 2, para 69).

How much evidence do you need to prove adultery?

Adultery must be proven in court with evidence. One way of proving that adultery existed in the marriage is by filing an affidavit sworn/affirmed by the person who committed adultery with your spouse or your spouse attesting to this fact. As many people who commit adultery do not want to confirm this for the sake of obtaining a divorce (or their spouses does not wish for it to be on the court record), most file for divorce on the grounds of having been separated for at least one year. Most spouses avoid seeking out the necessary evidence to obtain a divorce based on adultery, minimizing legal costs and the time spent to obtain the divorce judgment.

In order to qualify as "adultery," there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage — a cyber-relationship or emotional cheating will not qualify. In order to prove adultery, there is no requirement that the other spouse gets "caught in the act," or that there be physical evidence presented to prove the affair. Instead, as with all civil actions, a court must be satisfied on a “balance of probabilities” that the evidence is credible and that adultery has taken place. The onus to prove the adultery is on the spouse who commences the divorce action on this ground. The evidence will be considered sufficient if the adulterous spouse admits to the extramarital affair.

The court is focused on resolution rather than on placing fault on one of the spouses for the dissolution of the marriage. For the most part, blaming your spouse does not improve or diminish your matrimonial property entitlement in Alberta, and so even if adultery is present, it often does not play a role in divorce proceedings.

Banaszek Family Law helps you find clarity during your marital separation

Seeking independent legal advice from an Alberta lawyer is the first step to gaining legal knowledge and an understanding of how to handle your divorce matter. If you have never met with a family lawyer and are unclear on the process, read this blog post to learn what an Initial Consultation is and why it is beneficial to come prepared: Banaszek Family Law prepares you for your initial consultation with a family lawyer.

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 initial consultation with Adrianna Banaszek today by clicking HERE.

Banaszek Family Law wishes everyone a safe and memorable Stampede! YAHOO! ●

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

View from the Driver’s Seat: Banaszek Family Law prepares you for your initial consultation with a family lawyer

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 be prepared to endure protracted litigation if they are scheduling a meeting with a lawyer. Adrianna Banaszek, family lawyer and founder of Banaszek Family Law, explains that this perspective should not be the norm, and illuminates why initial consultations are very important meetings for her and her clients:

“The most rewarding aspect of my job is empowering people dealing with family law issues so that they feel less hopeless during an emotional and very stressful transition in their life. When I meet with clients for the first time, I focus on gaining an understand of where they would like to see themselves, and their families, in the future.

Every client has a different definition of “resolution”. During the initial consultation, I focus on understanding what each client perceives to be a resolution of their matter because that will inform the legal options I propose and the level of representation I can offer. The decisions made as a result of the legal advice obtained can have significant impacts for the client and their family, and that aspect of the initial consultation is never taken lightly by me.”

What is an initial consultation?

At Banaszek Family Law, initial consultations provide the opportunity for clients to canvas their 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 next 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 reap all the benefits of the valuable meeting.

Preparing for your initial consultation at Banaszek Family Law

For many family law clients, the initial consultation is the first time they have ever explained their very personal concerns to a stranger. Due to nerves, stress, and the novelty of the experience, many clients do not take full advantage of their initial consultation. We have compiled 5 TIPS that will help you prepare for an initial consultation with Banaszek Family Law:

TIP 1: Complete the Initial Consultation Form

For starters, complete and send back the Initial Consultation Form before attending at your initial 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 which issues should be prioritized so that they can better structure your consultation to 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.

TIP 2: Prepare your documents (and bring them with you!)

You should bring the following documents and items to your initial consultation:

• Your government-issued photo identification – the Law Society of Alberta and British Columbia require that the lawyer takes steps to verify the identity of the client. We will keep a scanned copy of your photo ID on file.

• Filed Court documents – these documents will alert the lawyer to 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.

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

• A notepad and pen - if you don’t bring your own, we will provide these for you so that you may note useful resources or information explained 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 stepping foot in their office, and bring them with you to 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 come prepared to explain your situation, the consultation will run more smoothly.

TIP 5: Arrive on time

Once your initial consultation is booked, make sure you know where the lawyer’s office is located and how you are going to get there. It is important that you come on time to your consultation so that you are calm, collected and can take advantage of the entire time scheduled. We guarantee that there is an hour blocked off for your consultation.

Banaszek Family Law is located on the 30th floor of the TD Canada Trust Tower, downtown Calgary. We are conveniently located on the C-Train line at the 4th Street SW stop. If you are driving in, the CORE parkade is located on 4th Street, between 8th Avenue SW and 7th Avenue SW and is open during our hours of operation.

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 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 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 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. 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 initial consultation with Adrianna Banaszek today, by clicking HERE ●

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