By:  Sandy Vander Ziel

 Co-parenting can be challenging in the best of times but with the new circumstances surrounding the Covid-19 Pandemic (“Pandemic”), we need to learn to adjust as our “new normal” continues to shift daily.  As family law lawyers, we are being asked about what rules apply with a Pandemic and what can be expected when people are being asked to self-isolate and socially/physically distance while balancing an obligation to abide by the terms of a Parenting Agreement or Court Order. 

 The mandate has been abundantly clear:  it is important to self-isolate and people (including children) are not to be within 2 metres of anyone they do not reside with during the Pandemic.  This mandate is not being treated as a suggestion, and as a community we are doing what we can to flatten the curve. As family law lawyers, we are acutely aware that this mandate can create a difficult situation for parties that are co-parenting and critical family law issues that are arising are as follows:

• If you are in a situation where you co-parent, it is imperative to have a transparent and honest conversation about your expectations around self-isolation and practicing physical/social distancing during the Pandemic. This conversation does not mean that existing parenting schedules or parenting time should automatically be suspended; it means that parents should be open and transparent about the steps they are taking to self-isolate and engage in social/physical distancing if they are required to leave their home.

• If you are in a situation where one or both parties or individuals within their respective households are required to travel to work or are in  high exposure jobs, this fact needs to be taken into consideration and those individuals need to take all precautions as outlined.  In addition, given the current travel restrictions, you may have the right to ask that any travel cease as a result of the mandates that are currently in place.  We strongly advise to seek advice as to your particular circumstance and concern prior to making any unilateral decisions. 

• If a member or members of a household are exposed or show signs of illness, that party needs to advise the other household immediately.

• In situations where it has been determined that the children cannot be alternated between the residences because of factors that put their exposure level at risk, one suggestion is to offer opportunities for web-based contact so the children can connect with the other party during that time.  It is important to note that this does not allow a party to keep the children for the entirety of the Pandemic.  Each situation will be unique and it’s important that you get proper advice before making unilateral decisions. 

• If a party does need to go into self-isolation due to the Pandemic, and the other parent either cannot or does not want to do follow the mandate, there may need to be a discussion regarding make up time for lost parenting time to ensure the parenting regime is not interrupted.  While it may not be mandated, ensuring that the other parent will receive makeup parenting time and being reasonable is crucial to working through this new reality and respecting the co-parenting relationship.

While we cannot say at this time what the Court’s perspective will be on this in the future, it would be hard to understand a Court penalizing parents for doing their best in unprecedented times.   We would hope that Courts and other triers of fact would acknowledge parties for doing their best to balance the safety of the household while not unnecessarily breaching Agreements or Court Orders. 

While there is, and will be, levels of adaptation required what the Courts will likely not allow is parents using this situation as an opportunity to deny parenting time without having legitimate reasons to do so and without addressing what the parenting expectations will be once we emerge from this new normal.

 We are all being asked to adapt to a world that changes daily, we need to remember that when we get back to a new sense of normal and we emerge from this Pandemic, we will be stronger.  This crisis is an opportunity to show the other parent that co-parenting can still be done as long as parties are willing to adapt, be reasonable and transparent.

It is imperative, however to acknowledge that every situation is unique and prior to making any unilateral decisions, we highly recommend that you seek legal advice about these critical issues. 

For more information or to answer any of your questions, please reach out to our Family Law Group.   

By: Catherine Gerrits

Albertans have quickly responded to the recommendations of the Government of Alberta and Alberta Health Services over the past days to reduce the spread of COVID-19 in order to protect our community and our most vulnerable citizens. Many feel anxious regarding business and school closures, self-quarantines and social distancing measures. An important message to help all in these pandemic times is to take prudent steps to be prepared for further changes as they present.

As part of such prudent steps, it is time to take stock of your “emergency plan”. First in mind of many Albertans is in respect of basic needs: food stores and prescription medication. However, as part of that emergency plan, Albertans are strongly encouraged to consider their basic “legal emergency plan” as well.

What is a basic “legal emergency plan”? In Alberta, the three legal documents that can assist you in any emergency are a Power of Attorney, Personal Directive and Will. Generally, these are the most required and cost-effective documents for an adult to have as part of their legal emergency plan. Simply put, the three documents work as follows.

A Power of Attorney deals with your property and financial matters. It allows you to designate the persons who you want to have access and control over your property if you are incapable (for e.g., if you are in a coma). This document is especially necessary if you are the owner of a business, as a Power of Attorney can designate a person to make decisions for your business (e.g. run the business), and designate a different person to make your personal financial decisions (e.g. pay house bills, etc.)

A Personal Directive deals with your non-financial matters – your personal matters. It allows you to designate the persons who you want to make personal, medical and care decisions for you if you are incapable. A Personal Directive can specify who you designate to care for your minor children as well, and this is especially needed if the persons you want to make your medical or care decisions are not the persons who you want to care for your minor children (e.g. guardians). You can separate these roles in a Personal Directive. This document is highly recommended, if not essential, for parents of young children, as it designates their guardians in the case of an emergency. Finally, this document can specify what end-of-life care or medical treatment measures you wish (or do not wish) to take place (for e.g., prolong life at all costs regardless of hope of recovery, or withdraw artificial life prolonging measures.

A Will is generally the most known of the three documents. It allows you to designate the persons who you want to be in control of your assets (estate) when you die, and also the persons or organizations that you designate to receive your estate on death.

Without any of the above three documents, your basic legal emergency plan is deficient, and can result in large legal costs during highly emotional times.

Without a Power of Attorney or Personal Directive, your family may need to seek a temporary or permanent Guardian or Trusteeship Order, in order to be able to access and deal with your assets (e.g. pay bills, access bank accounts, continue business operations) and be authorized to make medical or care decisions for you. As the Alberta Courts have reduced non-essential services in light of COVID-19 measures, an emergency application for a Court Order for Guardianship or Trusteeship may be more costly and therefore more stressful on a family. Without a Will, certain of your more valuable personal assets, such as any real property (e.g., land, house, condo) or bank accounts (including non-registered investment accounts) in your name solely are generally “frozen” and cannot be dealt with by anyone until a Grant of Administration is obtained from the Alberta Courts. This is a very time consuming process, that requires someone to step forward to manage your estate, and this can be contested by other family members or interested parties.

The purpose of this article is not to cause panic, but to provide helpful information in order to help you consider your basic legal emergency plan, and what steps you may need to take to address any deficiencies in your plan.

All our Wills and Estates lawyers are here to help, and can answer any questions you may have on these documents, to assist with any changes that may be required, or to set up new documents for those without the above.

We encourage you to be prudent, and we are here to help you feel confident in your legal planning. The best part of our practice is knowing that clients are confident in the face of all emergencies: they know what their legal documents say and have communicated their legal plan to family and friends they have chosen in those documents to help.

For more information or to answer your questions, please reach out to any of our Wills and Estates Lawyers:

Catherine Gerrits, Fulvio Durante, Mark Sawyer, Mike Anderson

By: Wendy Best

After practicing family law for almost 40 years, it is clear that there are many “myths” or misunderstandings that people have about various family law issues. I attempted to identify the 10 most common issues, but ultimately could only reduce them to 17, as briefly outlined below.

Myth #1: Fault determines rights or entitlement. If you separate because your spouse cheated on you, you don’t have to pay them support or divide your assets.

A: Wrong. Except in extremely rare exceptions, bad conduct has no effect on a person’s entitlement to support or property.

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Myth #2: You need an “official” document in order for you to be “legally separated”.

A: No. As soon as one partner has decided that the relationship is over and advises the other partner or both partners have decided to separate and there is no reasonable prospect of resumption of cohabitation, you are “legally separated” (even if you later engage in occasional consensual sexual contact).

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Myth #3: You need to file for a divorce before your spouse does.

A: No. Who files first is essentially irrelevant.

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Myth #4: If you vacate your home after you separate, you have no rights to it.

A: Mostly wrong. Leaving your home does not disentitle you to a claim to the equity of the home or to force its sale. It might become more difficult to try and return to the home and live there.

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Myth #5: I am entitled to one-half of my spouse’s assets after we split.

A: Not necessarily. Assets that were owned prior to the marriage (and still exist at the separation) and inheritances or gifts from third parties are exempt/protected assets. Also, increases in the value of these protected assets are not necessarily divided equally.

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Myth #6: You only have a legal obligation to support your natural children, not your spouse’s children from a previous relationship.

A: Sorry. If your stepchildren resided with you for a period of time (not necessarily fulltime) and you treated them like they were your children (e.g. you included them on your health insurance or named them in your will), you could have an obligation to pay child support for them after a separation, even if the other biological parent is also paying child support.

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Myth #7: If we’re not living together, we aren’t “common law”.

A: Nope. Firstly, Alberta family law doesn’t recognize “common law” partners. Instead, Alberta has Adult Interdependent Partners (“AIPS”) and living together is not a requirement to be an AIP.

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Myth #8: You don’t need to provide financial disclosure to sign a separation agreement with your spouse/partner, you just need to agree on the terms.

A: So wrong. You will have an agreement, however if it’s later challenged it is highly unlikely the agreement will be upheld.

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Myth #9: If I save money or win a lotto after I’ve separated (but before I’ve finalized any “deal”), I don’t have to share that money with my former spouse/partner.

A: Mostly wrong. Assets/debts or their values are not “frozen” at the time of separation. New assets acquired post-separation are presumed to be shared equally. However, it is potentially possible to overcome the presumption.

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Myth #10: If I quit my job, I don’t have to pay support.

A: Don’t bother. The court has the power to impute an income to an under or unemployed spouse/partner, and can order you to pay support based on that imputed income.

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Myth #11: If you don’t have any parenting/access time with your children, you don’t have to pay child support for them.

A: No. A parent has an absolute obligation to pay support in accordance with the Child Support Guidelines, irrespective of their relationship or parenting time.

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Myth #12: I have equal parenting time. I don’t have to pay child support for them.

A: Likely wrong. Shared parenting child support obligations are complex. Often, but not always, the support is determined pursuant to the “set-off” method. If your income is lower, you will pay, but also receive, support.

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Myth #13: Once your children are over the age of 18, you don’t have to pay child support.

A: Mostly wrong. Children are entitled to be supported after the age of majority if they are going to school (sometimes including graduate or second university degrees) or are physically or mentally disabled and unable to support themselves.

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Myth #14: If my ex remarries or lives “common law” with a third party, I won’t have to continue to pay my ex any spousal support.

A: Mostly wrong. Remarriage or living together does not eliminate an existing support obligation. At best, it might reduce the amount of the payment.

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Myth #15: You can refuse to allow a divorce to be granted.

A: No. You can potentially delay a divorce, but not prevent it. Once a judge is satisfied that proper arrangements have been made for the support of any children and the grounds for a divorce are met (generally a 1 year separation), a person is entitled to proceed to apply for a divorce, whether or not the other spouse agrees.

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Myth #16: Family law rules are essentially the same in every province.

A: Definitely not. There are many differences between provinces, primarily in respect of property and spousal/partner support.

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Myth #17: Family law is easy. Your friends or family that have already gone through their own separation or divorce can help you with yours.

A: Family law is not straightforward. Your friends/family can most certainly provide you with emotional support. We don’t recommend that you rely on their legal advice.

Summary

Should you wish to receive advice in respect of any of these issues, please contact our office in order to make an appointment with Wendy or one of our family law lawyers.

Calgary, August 30, 2019 — Dunphy Best Blocksom LLP is pleased to announce that 6 lawyers have been included in the 2020 Edition of The Best Lawyers in Canada. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.
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By: Sarah Nasser

Travel is a fun and exciting time for children. It exposes them to new environments, new people and different cultures. But before you pack their bags and take them to the airport, you might need to take care of a little extra paperwork.

Travel consent letters are generally prepared for a parent who intends to travel internationally with their child(ren) absent the other parent. While not a legal requirement when travelling, a travel consent letter is highly recommended by the Government of Canada and family lawyers alike, especially on international trips where it may be requested by immigration authorities and/or Canadian officials. Failure to produce a letter upon request may result in delays and/or refusal to enter or exit a country.

It is not just separated and/or divorced spouses that may need a travel consent letter. If a minor child is travelling without their custodial guardians, whether that is their grandparents or their basketball coach across the Canadian border, it will also be necessary to obtain and carry a travel consent letter.

What if you have sole custody of your child(ren)? Despite having sole or final decision making rights for your child(ren), it is strongly recommended that the travel consent letter is signed both by parents with custodial rights and by parents with access rights to the child(ren).

Do I have to sign a travel consent letter? Generally most parties get travel consent orders signed by the other party without issue, however, if the other parent does not consent to the travel letter, a court application will be necessary to ensure you are able to travel.  Best practice is to ask for consent early to ensure there is time to bring an application if required.

Please note that we always suggest getting the travel consent letter notarized by a Notary Public to ensure that you will be able to travel. If you need a Notary Public please contact our office.

By: Sarah Nasser

Currently there is no legislation in Alberta that indicates how to divide property when an unmarried couple breaks up. This is soon set to change.  In slightly more than a year, Alberta will join British Columbia, Manitoba and Saskatchewan in providing people in Adult Interdependent Partnerships (“AIP”) with property rights equivalent to those enjoyed by married spouses.

Calgary, August 21, 2018 — Dunphy Best Blocksom LLP is pleased to announce that 5 lawyers have been included in the 2019 Edition of The Best Lawyers in Canada. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.
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By Sarah Nasser
 
For better or for worse, social media is here to stay. Facebook, Instagram, LinkedIn, Twitter, Skype, and Snap Chat – the platforms are endless. In the family law context social media has undoubtedly been a useful tool for separated families, when used responsibly. These platforms have allowed parents and children to remain connected and share moments in real time. In fact, this type of communication is now frequently included in Parenting Orders to ensure that children have regular communication with both of their parents when they are not physically with them.
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New research from the University of Calgary reveals that sexting is on the rise amongst teenagers aged 12 – 17 years old.

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Bullying and harassment complaints delivered to Chief of Police

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