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If you are headed to trial, examinations for discovery may be part of the preparation that the lawyers go through to obtain the facts relevant to the claims made in your family law matter. An examination for discovery and review of documents the parties have disclosed helps the lawyers confirm the facts that each party is going to rely on at trial and can help to narrow the issues. The results can also sometimes lead to settlement negotiations and agreements.

Your examination for discovery will likely be the first time that the opposing lawyer will hear from you directly and this can help him or her better understand the strengths of your case and whether you will make a good witness at trial.

The transcript from your examination for discovery can be used in court to undermine your credibility or as the basis for legal arguments regarding your position. Remember that it is a tool for the other side (not you), but it is vital that you be accurate and forthright in your answers. It shows respect for the court and the legal process itself. Your lawyer will have the opportunity to conduct an examination for discovery of the opposing party.

The Mechanics of an Examination for Discovery and What to Expect

It is an oral examination conducted by a lawyer for the opposing party where the party being examined is under oath (you can swear or affirm, to tell the truth).

The Setting

An examination for discovery usually takes place at the office of a certified court reporter or in a boardroom at your lawyer’s or the other party’s lawyer’s office, again before a court reporter. Your lawyer will tell you where and when to attend and will help prepare you if you are the one being examined.

You and your lawyer sit across from your Ex and his/her lawyer with a court reporter at the head of a table.

There is no judge present. The court reporter is there to take down the questions and your answers verbatim (exactly as spoken). The court reporter then produces a transcript and provides copies to your lawyer and your Ex’s lawyer.

The purpose of an examination for discovery is to let the other side ask questions so they can determine what they need to know regarding the issues in the dispute and what evidence supports your position on those issues.

Who must attend

If you are the claimant and your Ex is being examined by your lawyer, you must attend.

If your Ex’s lawyer decides he or she wants to examine you and if your Ex is the respondent, he or she does not have to attend.

The only people in the room will be you, your Ex, your lawyers, and the court reporter. You don’t have to worry about your Ex’s new partner or family members “sitting in.”

Preparing for an examination for discovery

It is normal to be nervous before attending your first examination for discovery. It can help to remember that your lawyer is there to make sure you are not asked inappropriate questions and to protect you if the other lawyer gets aggressive. The general rule is that questions are supposed to address only information that is relevant to the dispute or to the discovery of facts that are relevant to the dispute.

Review materials like affidavits, documents, and timelines

It is an unfortunate situation, but it can take a significant amount of time for a family law dispute to wind its way through the process to a resolution. This means that by the time you get to the point where an examination for discovery is necessary, the details of your dispute (especially if it’s something like a child support review that goes back several years) will not be as fresh in your mind as they once were.

Before you attend, it is a good idea to review any affidavits that have already been filed in court so you can refresh your memory. At least a week before your examination for discovery, set aside enough time to refresh your memory by reviewing the affidavits, any documentary evidence that has been produced, and the chronology of events. Talk to your lawyer about what he or she thinks you should review and tell them if there are any areas you are nervous or unsure about.

Take care of yourself and keep things low stress

Try to get a good night’s sleep beforehand. Eat a proper breakfast (go easy on the coffee or tea, they can make you jittery) and leave yourself plenty of time to get to the place where your examination is being held.

What to wear

This is not court, so you do not need to wear a suit or business attire unless that is your usual mode of dress. But, business casual is a good rule to follow. Wear something comfortable and bring a sweater in case you get cold (because the lawyers will be in suits the air conditioning may be turned on).

At the Examination for Discovery – General Tips

Your lawyer will talk to you about the process. They will ask you if you prefer to swear or affirm. If you are not a religious person, you don’t need to swear. It will not make any difference if you prefer to affirm.

Listen carefully and wait for the whole question

Listen carefully to the whole question that you are being asked and wait until you are sure the lawyer is finished asking the question before you start your answer.

It is perfectly ok to take the time you need to collect your thoughts and think before you answer. You should do this for two reasons: you want to answer only what is asked and avoid giving the other lawyer an opportunity to go on a fishing expedition, and the court reporter can only take down one response at a time, so if you start talking while the lawyer is talking, it disrupts the transcript.

If you don’t understand the question or don’t know the answer, say so

If you don’t understand what the lawyer is asking you, it’s ok to say, “I don’t know what you mean, can you clarify?”

It is fine to confirm you do not know the answer to a question you are asked. Do not guess.

When you should stop talking

If the other lawyer asks you an improper question, your lawyer will jump in. Before the examination for discovery starts, your lawyer will tell you how they will signal when you should stop talking because they are going to object to a question. Typically, they may touch your arm or say, “Don’t answer that.” If this happens, STOP talking, even if you are in the middle of a sentence.

The reason your lawyer may want to stop you is that they want to object to a particular question or line of questioning. Sometimes this happens if the other side is trying to get you to give your opinion on what you think the law is. Sometimes the question is inflammatory or inappropriate, and your lawyer will step in to protect you. Let them do their job.

Tell the truth and be accurate

It may seem obvious, but tell the truth and be as accurate as you can. The transcript of your examination can be used by the other side in their submissions to the court. If you lie, misrepresent or exaggerate in your answers you may come across as untruthful or unreliable, and the other side can use this impression to try to damage your credibility.

Don’t guess at an answer or speculate. Many people have a strong urge to try to answer whatever they have been asked, whether the question is reasonable or not.  If you can’t remember the details of a particular situation, it is okay to say, “I don’t remember.”  The lawyer may ask you to inform yourself about that aspect of the case and respond later, and that’s fine. But don’t try to construct an answer just because you feel obliged to answer.

Keep your answers short and to the point. If the lawyer for the other side wants more detail, they will ask.

Bottomline

Your lawyer will prepare you for your examination for discovery and you should not hesitate to ask questions about the process of you have concerns.

The post Examinations for Discovery: What are They and how are They Used in Family Law? appeared first on Henderson Heinrichs LLPDivorce & Family Lawyers.

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We are pleased to welcome family lawyer Diana Adam to our Edmonton office.

With a background in family and civil litigation, Diana is a confident and committed associate who passionately advocates for her clients every step of the legal process. Diana recognizes the emotional toll family disputes can take. She approaches her client’s issues with a balance of care and candour that is necessary to ensure that they have full information about the process and their options.

In addition to her legal expertise, Diana has a background in psychology and sociology from the University of Windsor. She draws on her prelaw skillset to help her clients stay calm and focused as they navigate the events of a separation and divorce.

Diana practices all aspects of family law, from prenuptial agreements to post-divorce modifications. While armed with the skills necessary to provide resolutions through negotiation, Diana is also a decisive lawyer with the confidence and experience to take a matter to court if that is the best way to achieve results for you and your family.

The post Diana Adam Joins Henderson Heinrichs LLP’s Edmonton Office appeared first on Henderson Heinrichs LLPDivorce & Family Lawyers.

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The Emergence of Cryptocurrency

The growing ubiquity of electronic communications over the past two decades has had a profound impact on the way we practice law.  No longer are we sending letters to opposing counsel by mail or courier; rather, emails ping back and forth at lightning speed.  More than just impacting the practice of law, however, the subject matter has changed enormously as a result of technological advancement.  We are now confronted with another major leap forward in the way business is conducted and money changes hands as a result of an innovation that has flooded the media and public consciousness: decentralized cryptocurrency.

Blockchain cryptocurrency allows the anonymous transfer of money without oversight or control of a governing body.  Cryptocurrency is decentralized, meaning that it is not regulated by a central authority like a traditional currency, and new units and transfers are recorded in a general ledger known as the “block chain”, which is stored in multiple computer systems. The blockchain can be viewed by anyone, but attributing transfers to any individual is difficult or impossible as transfers are identified by address (a series of letters or numbers) rather than by name.  A person can have multiple addresses.  Transfers of cryptocurrency can be made between individuals or through a cryptocurrency exchange.  Some well-known cryptocurrency exchanges include Coinbase, Binance, Bittrex, Kaken, Bitfinex.

A remarkable feature of cryptocurrencies is that they can be “mined” from the system which is programmed to award new bitcoins to miners who solve highly complex math problems.  Mining operations utilize computers to mine new units and receive deposits of cryptocurrency into accounts.

The Division of Crypto Assets in Family Law Proceedings

There is no question that cryptocurrency constitutes property which, if it meets the criteria for “family property” pursuant to s.85 of the Family Law Act, S.B.C., C. 25, would be subject to division upon marriage breakdown.  Further, mining operations that result in the acquisition of new units could be quantified and included in a payor’s income for the purpose of calculating child and spousal support pursuant to the Federal Child Support Guidelines and the Spousal Support Advisory Guidelines.

Due to the anonymity afforded to cryptocurrency miners, and the fact that the record of transactions is decentralized, obtaining disclosure of cryptocurrency holdings and income-generating activities will prove to be a major challenge for family lawyers for the foreseeable future.  In many cases the only way to show that the spouse has undisclosed cryptocurrency holdings will be to look for evidence such as a pattern of spending that exceeds disclosed income, and then ask the court to draw an adverse inference or to impute income to the payor.  However, it is not uncommon for a payor to depress their spending until property division and support have been set by agreement or court order.

The valuation of cryptocurrencies also poses a substantial challenge.  The exchange rate of cryptocurrencies is extremely volatile, making pinpointing the market value on any particular date a challenge.  Values can change on an hourly basis.  In British Columbia family law, the relevant date for valuing property for the purposes of property division is the date of the agreement or trial, pursuant to s.87 of the Family Law Act.  One can imagine the difficulty of determining market value of a cryptocurrency where the value has changed several times in one day.

Cryptocurrency Earnings and Support Payments

An even greater difficulty arising from the volatile exchange rates is determining the quantum of income to be attributed to a payor who mines cryptocurrency or receives cryptocurrency as income.  Without a stable exchange rate, how can the courts determine the quantum of income for the purpose of calculating child and spousal support?  Section 17(1) of the Federal Child Support Guidelines provides that a court may determine a payor’s income that is “fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.” However, while the court has the legal authority to make a determination, how to go about it in practice will be quite a challenge for our courts.

As the legal world struggles to catch up, cryptocurrency will continue to pose challenges for many areas of law, including tax law and contract law.  British Columbia family lawyers will be watching to see how the courts handle cases with cryptocurrency as their subject matter.

The post Challenges of Cryptocurrency in Family Law appeared first on Henderson Heinrichs LLPDivorce & Family Lawyers.

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Parents who travel with their minor child without the other parent should have a travel consent form signed by the other parent or a court order signed that confirms you have the right to leave the country without the consent of the other parent. Make sure any requests for authorization to travel is done well in advance to avoid stress.

The government of Canada website recommends that you have the following documents when traveling with minor children: 
  • A copy of the child’s birth certificate;
  • A letter of authorization signed by the parent who is not travelling, containing their address and telephone number; and,
  • A photocopy of the non-accompanying parent’s signed passport or national identity card.

While a consent letter and photocopy of the the non-accompanying parent’s signed passport or national identity card is not a legal requirement for children’s travel outside of Canada it may be requested by immigration authorities when entering or leaving a foregoing country, and an airline agent or Canadian officials when re-entering Canada.

If the parents are separated or divorced, and share custody of the child, the parent travelling with the child should carry copies of the legal custody documents.

If the parents are separated or divorced and one of them has sole custody of the child, the letter of authorization may be signed by that parent only and they should bring a copy of the custody papers.

If one of the child’s parents is deceased, the travelling parent should bring a copy of the death certificate.

Unfortunately, if you cannot produce these documents could be delays or even a refusal to allow you to enter or exit a country.

The best source of information on the consent letter and other documents required can be found HERE.

What happens if someone refuses to sign a travel document?

If traveling outside of Canada children require their own passport. You can apply for a passport for your child if you have custody or are the legal guardian. You will need to have some documentation such as a birth certificate or an adoption order. However, if the children have another guardian, they will have to sign the application as well.

If the other parent refuses to sign then a judge can give you a court order for permission to sign the passport application alone and/or give you a court order stating that you may travel with the child without the other parent’s authorization. Keep in mind that the courts are busy during the holiday season.  Applications for travel should be made as far in advance as is possible given the circumstances.

How can a lawyer help?

If you have questions or need assistance with holiday travel documents for the holidays but don’t know where to start, a family lawyer can assist you through the process. To find out how one of our family lawyers could assist you, contact us.

*Please note, if you are the non-traveling parent and you are concerned that your children won’t be returned you should seek legal help immediately. You can apply to the courts to have your children’s passport taken away from the other guardian. See our previous blog post, “What parents should know about the Hague Convention on the civil aspects of International child abduction.”

The post Holiday Travel: I’m going out of the country with my child during the holidays. Is there anything I need to do? appeared first on Henderson Heinrichs LLP.

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A significant challenge for most separated or divorced parents is determining a parenting schedule that works for everyone during the holidays.  It is a unique issue for each family as every family has their own respective values and traditions during the holidays.  The holiday parenting schedule is often further complicated by extended family’s expectations during the holiday season.  Issues around the holiday season also tend to be emotionally driven and worsened by stress.

Please don’t wait until December to determine the holiday schedule

Chances are if you are reading this, you’ve already at least thought about your holiday parenting schedule, or perhaps you have already argued about it.  Please consider raising the issue of holiday time well before December to ensure that both parents have an opportunity to consider these issues without the pressure and stress of the upcoming holidays.  Settling these arrangements well in advance also allows parents to make scheduling arrangements for holiday celebrations and travel if necessary.  For example, a very common disagreement is that extended families live far away requiring travel by one or both parents for visits during the holiday season.  These arrangements need to be made in advance.

What to do now if you don’t have a holiday parenting schedule?

Hopefully you have an agreement or court order that specifies holiday time and both parents are abiding by the arrangements and there are no extenuating circumstances.

If you don’t have an agreement or a court order that specifies holiday time, someone is not abiding by the court order, or there are special circumstances this year then you should know that December is an exceptionally busy time for the courts.  Therefore, effort by both parties should be made to discuss and hopefully resolve any holiday related issues outside of court.  You can try to discuss this directly with the other parent.

Keep in mind that the holiday season is a time to connect with family.  When it comes to children of separated or divorced parents this usually means an opportunity to connect with both sides of the family.  There will likely need to be some negotiation and ultimately compromise to determine what is best for the children.

You’ve tried everything and can’t agree?

Often parents come to see lawyers because they have tried and been unsuccessful in resolving these issues directly with the other parent.  Communication between separated and divorced parents is not always easy.  It may be that you need the assistance of a lawyer or a mediator to assist with these emotionally fueled conversations.  Or it may be that you need to have a conversation with a lawyer who can help explain the law and what your options are.

How can a lawyer help?

If you have questions about this holiday season or want to develop an ongoing parenting schedule for the holidays but don’t know where to start, a family lawyer can assist you through the process. To find out how one of our family lawyers could assist you, contact us for a free initial consultation.

The post Handling the holidays as a separated or divorced parent appeared first on Henderson Heinrichs LLP.

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I recently received some articles about how casual dating apps, like Tinder, have apparently led to a boom in unplanned pregnancies, often where the people dating are not yet in a serious relationship. So, legally speaking, what happens if a casual relationship leads to pregnancy?

Child Support

Child support obligations will kick in unless it can be shown that the person being asked for child support is not the biological father and has not assumed the role of the parent. It does not matter if the relationship was only a few hours old and the pregnancy was unplanned.

What if the payor parent is already financially responsible for other children when the unplanned child is on the way? By law that is not supposed to be an excuse to pay less support for additional children. Such cases have come before the Alberta courts and their response was basically that the younger children should not be financially penalized because they have older half-siblings.

However, a lower level of child support for the new children might still be justified on the notion that the payor parent truly is stretched too thin to pay the normal level of child support for them. Such an argument requires thorough preparation to have a chance at success, and one should definitely see a lawyer about making it.

Spousal/Partner Support

Pregnancies from casual/short-term relationships generally do not lead to an obligation to support the other parent per se whereas an obligation of child support can increase or even create a spousal support obligation if the parties have cohabited for a long time before separation.

However, such unplanned pregnancies can drive down any existing spousal or partner support obligations that either parent may have towards former partners. To put it simply, child support trumps spousal support.  For specific advice on your situation, please contact legal counsel.

Parenting

For the first few years of a child’s life, the courts usually take the view that, while it is important for the child to form bonds with both parents, the mother is usually the primary caregiver and so the child should mostly live with mom during those years unless the parents have agreed otherwise. The father will usually receive something called “reasonable and generous parenting time” which means that he will be able to see the child as often as he can with everyone being reasonable. If there are disagreements about what this means, then the court can be asked to impose a more detailed parenting arrangement. In any case, the father can often get incrementally more parenting time such that the child is spending half of his time with the father by his early teens.  You can find an overview of how courts decide parenting time in this post.

What is often forgotten is that the father of a child who was conceived through a casual, short-term relationship could have the same parenting rights as the father of a child conceived from a long-term relationship. In practice, achieving this is often difficult because the father in question will often have stayed away from the child, either of his own will or due to the mother’s wishes, for a significant part of the child’s early years.  However, if the father does want to be a father to the child and gets appropriate legal advice so that an unfavourable parenting status quo does not develop, then regular and meaningful parenting time between the father and the child can usually be achieved.

Of course, the father in that situation may wish to confirm that he really is the biological father first because if it turns out that he is not the biological father but has been acting as a parental figure for some time anyway, then he may remain obligated to pay child support for some time even if he chooses to stop acting as a parent to the child.

The post Tinder Surprises – Support Obligations and Parenting Rights appeared first on Henderson Heinrichs LLP.

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In making an agreement or order for care and time of children the parties and the court must consider the best interests of the child only. Under the Family Law Act, Division 1, Section 37(2), there is a specific list of factors to consider in determining the best interests of children. At subsection b on that list it states that the child’s views should be considered unless it would be inappropriate to consider them. Therefore, if it is determined that it is appropriate to consider the views of the child then the court may appoint someone to assess the views of a child in relation to a family law dispute. That person must be a family justice counselor, social worker or another person approved by the court and must be independent of the parties. However, practically speaking how does this happen?

There are different ways in which this evidence can be obtained. The most commonly used are the Views of the Child Report and the Voice of the Child Report. What’s the difference?

Voice of the Child Report (also referred to as a “Hear the Child Report”)

One of the most common ways of providing evidence of the child’s views to the court is to obtain a Voice of the Child Report.   Individuals who produce these reports include both experienced family lawyers and mental health professionals who have received training and have developed a skill set for interviewing children. While they are qualified to interview children and relay the information they are not qualified to provide opinions or assess the views of a child. These reports are basically hearsay evidence designed to allow the child a voice in the decision of their parenting.

Views of the Child Report

A Views of the Child Report is a more in-depth report that provides opinion and assessment on the child’s views. Individuals who prepare these reports have the expertise to provide expert opinion evidence to the court.   Most these individuals would prepare an extensive report commonly referred to as a section 211 or custody and access report.

However, keep in mind that they are simply one piece of evidence that the court considers when making a decision on the best interests of children.

A terrific resource for more information is the website hearthechild.ca.

If you want to discuss whether or not it’s appropriate to obtain a Voice of the Child Report or a Views of the Child Report please contact the experienced lawyers a Henderson Heinrichs LLP for a free initial consultation.

The post Do Children get a Voice in Family Proceedings? appeared first on Henderson Heinrichs LLP.

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When is Filing a Consumer Proposal the Best Option for Debt? Guest Post – Gareth Slocombe, CIRP, CPA-CA, Trustee

Separating spouses may experience debt problems due to numerous reasons:

  • Long term stress in a relationship;
  • Difficult family situation before and after a separation; and/or
  • Credit card and loan debt as a result of split families attempting to meet monthly expenses.

In addition to rising consumer debts, an equalization payment from one spouse to the other may be required as a result of the terms of separation.

As discussed in our previous post, some joint debts your spouse has agreed to pay, or has been ordered to pay by the court, are still your debts in the eyes of the lender. As such, you will still be liable for these debts if your spouse defaults.

In summary, you may be responsible for multiple debts following a separation. These debts may include joint debts, new debts incurred since separation, or potential debts arising from a default by your ex-spouse.

How to deal with debts following a separation

The first step in managing your debts is developing a realistic budget. This can be challenging for a number of reasons:

  • You may have  been required to move to a new residence involving new and unforeseen costs including utilities, transportation, childcare expenses etc.;
  • Your household income may be substantially lower due to a loss of the income of your spouse that may or may not be made up for through maintenance or child support payments; and/or
  • You may now be required to pay maintenance and child support to your ex-spouse and have limited funds remaining to manage your own debts and ongoing living expenses.

Even with a realistic budget, it may not be possible to consistently meet your financial obligations.

While options such as consolidation loans may seem appealing, they are often just stopgap measures that do not sufficiently address the fact that outstanding debts are too high to manage. Ad hoc settlement agreements with creditors are also often unworkable since you must make lump sum settlement payments and deal with all creditors individually.

Filing a Consumer Proposal

Filing a consumer proposal is often a viable solution to many types of debt problems and has many advantages over other solutions.

To file a consumer proposal, you will first need  assistance from a Licensed Insolvency Trustee.

Although circumstances can vary considerably, filing a consumer proposal is usually most appropriate for debtors who:

  • Owe less than $250,000 (excluding a home mortgage);
  • Cannot repay loans in full; and
  • Have a stable source of income.

The trustee will help you develop a plan that can substantially reduce your outstanding unsecured debt by more than 80% and consolidate payments into one interest- free monthly payment that you can manage.

One of the major benefits of a consumer proposal is that once you file, all collection efforts against you, including garnishments, stop immediately.

You will need only 51% of your creditors (calculated by dollar value) voting in favour of the proposal in order for it to be accepted and legally binding on all your unsecured creditors.

Benefits of a consumer proposal as a debt solution

In the context of a spousal separation, a consumer proposal has a number of benefits as a debt solution:

  • It will eliminate potential liability for joint debt obligations that your ex-spouse has agreed to take over but which he/she could default on in future.
  • It can include a debt owed by you as an equalization payment to your ex-spouse.
  • It can reduce your overall debts such that your future support and maintenance payments (which cannot be included in the proposal) become more manageable. This can ultimately benefit both you and your ex-spouse.

In many cases, it makes sense for both spouses to file separate consumer proposals to deal with their debts.  However, it may be beneficial to file a joint consumer proposal if a majority of the debts to be compromised are owed jointly by you and your spouse and a workable agreement between you can be reached as to how much of the monthly proposal payment each of you will make.

There are many scenarios in which a consumer proposal filing may be the best option, however matters involving separating spouses can be complicated. It is important to contact a Licensed Insolvency Trustee to assess your debt situation and to advise you of your options.

*Gareth Slocombe is a member of the Canadian Association of Insolvency and Restructuring Professionals. He is a Licensed Insolvency Trustee and a Chartered Professional Accountant. You can learn more about Gareth and the services he provides by visiting his website at debthelpbc.ca.

The post Dealing with Debt after Separation appeared first on Henderson Heinrichs LLP.

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As a follow up to Rain Henderson’s 2015 interview with News1130 discussing the Ashley Maddison breach,  Michael Proskiw takes us through the grounds and requirements that must be satisfied before a Court will grant a divorce.

When will the Court Grant a Divorce?

There are grounds and requirements that must be satisfied before a Court will grant a divorce. Additionally, there are bars to divorce that, if present, may prevent the Court from granting a divorce. 

Grounds and Requirements for Divorce

Marriage breakdown is the only ground for divorce and may be granted on a fault or no-fault basis. However, there are little to no consequences for causing the marriage’s breakdown. For example, if your spouse cheated on you, you will not have an increased chance of achieving a favourable outcome in property division, support payments, custody disputes, or other matters of similar ilk because of your spouse’s infidelity.

Marriage breakdown can be established by living separate apart for one year, or if adultery or cruelty occurs:

  1. Living Separate and Apart

Living separate and apart is established where you and your spouse have lived separate and apart for one year immediately preceding the divorce judgment and are living apart at the time of your divorce proceeding.

Spouses can be said to be living separate and apart, even if they are living under the same roof, where there is a complete withdrawal from the performance of matrimonial duties and obligations:

  • Occupation of separate bedrooms
  • Absence of sexual relations
  • Little, if any, communication between the spouses
  • Eating meals separately
  • No social activities
  • Spouses do not perform domestic services for each other unless there is a contract for those services

Evidence of each indicia is beneficial in showing the Court that you have lived separate and apart for one year. However, it is not necessary to establish all six elements.

  1. Adultery

Adultery allows the divorce to proceed prior to the one year barrier. For example, if there is proof of adultery and it is not disputed by the adulterer, then the judge is required to grant the divorce. Note that only the spouse that did not commit the adultery can apply for divorce.

  1. Cruelty

Cruelty also allows the divorce to proceed prior to the one year barrier. Cruelty is a ground for divorce if one spouse treats their spouse with physical or mental cruelty of such a kind that makes living together unbearable. Cruelty of such a kind only needs to occur once before a spouse may ask the Court for a divorce. Like adultery, only the spouse who did not commit the cruelty can apply for divorce.

Practically speaking, adultery and cruelty are seldom used as grounds for divorce anymore because divorce can be granted on a no-fault basis. As previously mentioned, the fact that one spouse may be a victim is not relevant in divorce proceedings. The only advantage of claiming adultery or cruelty is that you can avoid the one-year waiting period.

Bars to Divorce

There are three bars to divorce that may prevent the Court from granting a divorce: collusion, connivance, and condonation:

  1. Collusion

Collusion occurs if you and your spouse make an agreement to fabricate evidence in order to convince the Court to grant your divorce. For example, collusion would occur if you and your spouse claim that you have been living separate and apart for greater than one year, when you and your spouse have been living separate and apart for less than one year. Collusion is an absolute bar to divorce, which means spouses guilty of collusion will not be allowed to divorce.

  1. Connivance

Connivance is the process of encouraging the other spouse into actions that would result in a marriage breakdown. For example, connivance would occur if one spouse encouraged the other to commit adultery. Connivance is a discretionary bar to divorce, which means the Court still has the option of granting the divorce even though the spouses participated in connivance.

  1. Condonation

Condonation occurs when one spouse forgives the other for committing adultery or cruelty and the spouses continue or resume living together. Like connivance, condonation is a discretionary bar to divorce.

For more information about any aspect of divorce, please contact our Edmonton office.

The post When will the Court Grant a Divorce? appeared first on Henderson Heinrichs LLP.

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Reducing Your Child Support Obligations Upon Loss of Employment in Alberta

Jobs can be difficult to maintain in this fickle economic climate in Alberta. If you have been laid off or fired and have ongoing child support obligations, then it may be possible to have the Court reduce your monthly payments.

The Calculation of Child Support Payments in Alberta

The quantum of your ongoing child support obligation is often calculated based on your income from the previous year. It is sensible to use your previous year of income because it is easy to calculate. However, this method of calculation is not fair for child support payors that have been fired or laid off and have experienced a decrease in income. In the Court of Appeal of Alberta’s decision in L. (R.E.) v. L. (S.M.), 2007 ABCA 169, the Court stated that:

“The Guidelines do not state that the past year’s income is the basis for calculating support. Section 16 could have but does not, define annual income as income stated on the previous year’s tax return… Reading section 16 with section 2(3) directs that for the Guidelines the most current information must be used. A court following this directive would end up with an estimate of the payor’s current annual income with an adjustment at year’s end once the actual income is known.”

Children are entitled to be supported as if the family were together. Because of this, the quantum of child support ought to be determined using the payor’s current year of income.

One of the objectives in Alberta’s Child Support Guidelines is to establish a fair standard of support for children that ensures that they benefit from the financial means of both parents. The Court of Appeal in the above noted case satisfies this objective by considering the payor’s ability to make the current payments. Child support must account for the financial means of the parent and if you have lost your job or have been laid off, then it may lead to a reduction of your child support obligations.

A Few Words About Financial Disclosure

It is important to note that you cannot have your child support obligations reduced if the Court decides that you have been intentionally unemployed or intentionally under-employed. If you are unemployed, then you need to provide an explanation for the unemployment. If you are under-employed, then you need to provide an explanation for that as well. An application to reduce your child support obligations is likely to be unsuccessful if a judge’s suspicion that you are intentionally unemployed or intentionally under-employed is coupled with your failure to provide reliable, accurate, timely, and complete financial information. It is necessary to keep all records of your attempts at gaining employment if you wish to pursue a reduction in child support payments.

Vary Your Child Support Payments

The quantum of your child support payments ought to change along with your current employment situation. If you have lost your job, then you may be entitled to have your child support obligations reduced. Please contact our Edmonton office to book your free initial consult.

The post Reducing Your Child Support Obligations Upon Loss of Employment in Alberta appeared first on Henderson Heinrichs LLP.

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