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How do you become a legal guardian for children in Alberta?

by admin | Sep 30, 2020 | Blog

In Alberta, a child’s birth mother and her male spouse are considered the default guardian arrangement for a child. However, families do not always fit neatly into these categories, and as the situation calls for it, roles may have to be defined. In the eyes of the law, it is essential that children have a designated person or persons who look out for their best interests, as children are not considered to have the capacity to advocate for themselves until they reach the age of majority.

What is a legal guardian?

In Alberta, a legal guardian is one who is responsible for the well being of a minor child or adult over the age of 18 who has been determined to not have the capacity to make decisions for themselves. For the purposes of this article, we will be focusing on child guardianship. A guardian of a child has certain rights, responsibilities and powers with respect to the minor child.

A guardian has the right to:

Make important decisions about a child’s life.
To spend enough time with the child that they are able to make informed decisions and exercise their responsibilities towards the child.

Guardians are responsible for:

The basic needs of the child: food, clothing, shelter and medical care.
They are also responsible to care for the child’s physical, emotional and psychological development.
Guardians have the power to determine:
Where and with whom the child will live
What the child’s cultural, linguistic, religious and spiritual upbringing will be
The type of education the child will receive
Day-to-day decisions affecting the child including care and daily activities
Whether the child should work
Dental and medical treatment
To receive health, education or other information on behalf of the child
Representing the child in legal matters
Giving consent for the child to marry if they are between 16 and 18 years old

Guardianship does not give you the right to make financial decisions for a child.

What laws talk about child guardianship?

There are a few legal documents that discuss child guardianship: The Family Law Act and The Divorce Act. The Divorce Act is a federal document and governs guardianship in cases of divorce, and The Family Law Act governs all other child guardianship cases in Alberta in which divorce is NOT taking place.

Who can become a guardian?

A guardian can be different than a parent, though parents are by default considered the guardians of their children as long as they fit certain criteria.

A parent can become a guardian as long as they acknowledge that they are the parent of the child and demonstrate an intention to assume responsibility for the child within one year of becoming aware of the pregnancy or birth of the child.

Demonstrating that you have the best intentions for a child is important to become a child’s guardian. In Alberta, a person can be a guardian but not a parent, and be a parent but not a guardian.

Intent to assume responsibility for a child can take many forms including marriage to the other parent, cohabitating with the other parent, or voluntarily offering financial or other support.

Non-parent adults are also able to become guardians if they fit certain criteria such as:

They have had care and control of a child for a period of over 6 months.
Were assigned guardianship in the will of one of the parents.

A child can have more than 2 guardians, such as in the case of parents who remarry; a child could have 2 sets of parent guardians: a mother, a stepmother, a father and a stepfather.

As a side note, if a pregnancy is the result of a sexual assault, the person who committed the assault is not eligible to become a guardian.

If there is no adult that is able or willing to assume guardianship for a child, a public guardian will be assigned by the court.

How can you become a guardian if you are not a parent?

There are a few ways to become a guardian if you are not already a parent:

A guardian who is a parent of a child may appoint a person to be a guardian in their will
Relatives or friends can apply for a Guardianship Order, which requires a ‘home study’. A home study requires a social worker to visit your home and talk to the people around you in order to determine if you would be a good guardian for the child.

Please keep in mind that the information provided here is for general information, and if you have specific or situational questions related to child guardianship, speak with Kolinsky Law lawyer.

How is spousal support calculated in Alberta?

by admin | Aug 21, 2020 | Blog, Spousal Support Lawyer

When a marriage ends, it often means more than just the end of a relationship. In order to lessen the financial impact on the parties involved –whether including children or not– spousal (or Adult Interdependent Partner) support may be granted by the courts after divorce proceedings have been initiated. Because navigating this process can be complicated, and there is only one opportunity to apply for spousal support, it is generally recommended to consult with a lawyer to ensure that the proper steps are followed.

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What is spousal support?

Spousal support is governed by the Divorce Act of Canada and The Family Law Act of Alberta. Its purpose is to:

Recognize any economic advantages or disadvantages related to the marriage and its subsequent breakdown
Mediate any financial consequences arising from child care that goes beyond child support
Relieve any financial difficulties of the parties that may be brought from the end of the marriage
Allow the spouses the time to ensure their own financial independence

The Divorce Act of Canada legislates married couples in the process of divorce. Under the act, spousal support may be payable depending on certain circumstances. Under this act, spousal support is determined by asking:

Is one of the parties entitled to support?
If they are entitled, at what amount?
How long should the support last?

The Family Law Act governs spousal/adult interdependent support obligations. Unlike with child support guidelines, which are law, the spousal support guidelines are only for advisory purposes. Judges use the guidelines, but have no obligation to do so.

What are the factors that the court considers when calculating spousal support?

The court requires a profile of your income, your expenses and assets at the same time as you file your application for support. Both parties must also provide each other with proof of their incomes. It is necessary to make a full disclosure. The court may award costs against a party who has held back information. Taking the time to properly gather the information needed is important, as you will not be granted a second chance to present your information.

The court will need your:

complete tax returns from the past 3 years
Notice of Assessment – a tax status form – from the past 3 years
pay stubs or other proof of income for this tax year
list of your monthly expenses, including receipts if possible
list of all your assets and debts
If you are unable to support yourself because of medical problems or educational status, you will need proof of the medical issues and/or proof of registration at an educational institution.

Are parties in common law subject to spousal support?

In Alberta, a common-law relationship is referred to as an Adult Interdependent Partnership. Adult Interdependent Partners are eligible for spousal support (also known as Adult Interdependent Partner support). In cases where the parties have a child together, this in and of itself does not necessarily establish entitlement to Adult Interdependent Partner support. It is necessary to provide proof of an interdependent and permanent relationship between the parties.

What am I entitled to?

Spousal support is meant to recognize and account for economic advantages and disadvantages caused by the end of a marriage. Income disparity alone does not mean entitlement.

There are two formulations for calculating spousal support, relating to whether or not child support is being paid:

1. If there are no children, you can calculate a range to be awarded:

– Low-End amount: Find the difference between the gross incomes of each of the parties. Multiply that difference by .015. Multiply that number by the number of years the parties have lived together. This is the low-end amount

– High-end amount: Find the difference between the gross incomes of the two parties. Multiply that number by .02. Multiply that number by the number of years the parties lived together. The result is the high-end amount. Please note that the maximum that will ever be paid will result in the parties having equal incomes.

2. If there are children, you can calculate a general amount by taking the net disposable incomes of each of the parties, after taxes, deductions and childcare expenses, to leave 40-46% of the total to the recipient of spousal support. Calculating spousal support with child support is complicated and takes special software to calculate properly. If you would like more specific information about how much should be paid, you must contact a lawyer. The amount will also vary depending on whether or not custody is shared or split or if the children also reside with the payor of spousal support. In cases combining both child support and spousal support in which the payor is unable to pay both, child support will take precedence.

How long can I expect to receive spousal support?

Again, there are many factors to be taken into consideration, but the guidelines generally state:

– In cases with no children, that support will be given for a maximum of one year per year the parties resided together

– In cases with children, the support will continue either for the maximum of one year per year the parties resided together or until the children complete high school, whichever is longer

– The rule of 20 and the rule of 65, wherein support can continue indefinitely if the parties resided together for over 20 years, or if when adding the years lived together to the recipient’s age, the total is more than 65.

What circumstances would exclude me from paying or receiving spousal support?

Misconduct will not factor into it is granted or the amount granted. Spousal support is intended neither to reward nor punish behaviour. Withholding information about income will be viewed by the courts negatively, and could lead to penalties.

What are the steps to apply for spousal support?

To get a clear view of how to begin the process of applying for spousal support, feel free to book a consultation with us.

What does a child’s best interest standard mean in court

by admin | Mar 16, 2020 | Blog, Child Custody, Child Custody Lawyer

When a married couple decides to end their marriage, it inevitably impacts both parties. When a couple files for divorce, the parties that are impacted, with little or no say in the matter, are the children. This is where the courts step in to ensure that the children have a strong voice and that all matters are dealt with while keeping the best interests of the child in mind.

What Does ‘The Best Interest of the Child’ Mean?

The Family Law Act requires all decisions that involve children be made in the child’s ‘best interests’. In fact, all family laws are based on this principle. The question is, what does that mean? Simply put, decisions are to be made with the intention of having the best possible outcome for the child. The Family Law Act also, requires that judges and law enforcers ensure the safety of a child emotionally, physically and psychologically.

What Factors Do the Courts Consider?

At this point in time, the federal Divorce Act does not stipulate the exact factors for determining what is best for children. The reason for this is how unique each case actually is and the fact that listing factors does not increase the predictability of the outcomes in court. There are, however, many factors that are considered to determine the ‘best interest of the child,’ even if they are not formally outlined in the Act:

the child’s perspectives
the child’s own history
the child’s cultural, religious and spiritual upbringing
the benefit to the child by developing a strong relationship with both parents
the ability and willingness for the parents to care for the child
any family history of violence or abuse
any criminal proceedings

How Do Courts Determine the Children’s Perspectives?

Anything that a parent or court will decide can have a direct impact on a child. There are different ways some courts may use the input of the child in the legal proceedings to help assess their best interests. Depending on the child’s age and maturity, there is the possibility for them to be heard in any judicial or administrative proceedings which directly affect the child. This hinges on recognizing that children are not only capable of forming meaningful opinions on decisions that could alter their lives, they ought to be listened to by the powers which seek to protect their best interests. Of course, the opportunity for them to do this varies depending on the court and the province; however, the two most common options available are:

A child advocate or lawyer hired to represent the child
A child psychologist who interviews the child and prepares a report about their findings

How Kolinsky Law Can Help:

Family Law is one area of specialisation for the lawyers at Kolinsky Law. We specialise in all matters related to divorce including custody, child support, child protection, spousal support and more. We believe that children need their voices heard and we work to ensure that while the divorce process is difficult, the child’s best interests are put above all.

What’s the legal difference between annulment and divorce

by admin | Jan 8, 2020 | Annulment, Blog

There seems to be a lot of confusion regarding the difference between an annulment and a divorce in Alberta but the distinction is not as puzzling as it seems. If you find your marriage is over and you are looking at your options for legally ending it, depending on your circumstances, you may be eligible to annul the marriage immediately. In this article, we explore the differences between both, along with reasons for them. As always, we do suggest hiring a family/divorce lawyer to help you navigate all of the formalities of the legal system and explore the best options for you and your family.

What is a marriage annulment?

It is essentially a court order which states that your marriage either did not exist or was not valid. In an annulment, the marriage ends immediately once the court order has been issued. Consulting with an experienced family lawyer who has practiced in Alberta and is well-versed in the system here is your best option for discussing the possibility of an annulment versus a divorce. While an annulment may not always be granted, below are some of the circumstances that may qualify:

Second marriages: If your spouse was already married to another person when they entered into marriage with you, your marriage is not considered valid.
Duress: If you were forced to marry your spouse under threat of physical violence or under duress, you may qualify for an annulment as marriage must be entered into by consenting individuals.
Intoxication: If you were under the influence of alcohol or drugs at the time of your marriage ceremony, you may qualify for an annulment.
False Identity: If you thought you were marrying someone and they turned out to be a different person, the legal contract of marriage in which you entered with them is considered voidable.
Consummation: If your spouse is unable to consummate the marriage and you were unaware of this prior to the ceremony, you may qualify for an annulment.
Parental consent: If you were under the legal age of 18 when you got married and you did so without parental consent, an annulment order could be possible to obtain.
Kinship: If you and your spouse are too closely related, you may qualify for an annulment to void the marriage immediately.
Prerequisites: If your marriage ceremony did not include the essential requirements for Alberta, by law, such as having two witnesses, it is possible you could qualify for an annulment.

What is a religious annulment?

It is important to note that annulments granted by a religious institution are not the same as legal annulments. It is only valid within the religion itself – a legal marriage is otherwise considered to remain intact unless you access the appropriate legal channels to obtain a legal annulment from a judge or you get divorced. This is important, as well, in the case of spouses who religiously annul and then wish to remarry other people. Without a legal annulment or divorce of the first marriage, the second legal marriage will not be considered valid and is voidable.

What are my responsibilities after an annulment?

It does not mean that spouses are absolved of either their status as parents or that they cannot bring forth claims against one another as it pertains to property and support. Such claims can be brought forward about the following:

The division of property and assets
Spousal support
Child support or custody

It is also possible that, at the time of annulment, the court can issue orders pertaining to finances, property distribution and/or custody. Your best option, as mentioned above, is to enlist the services of a quality family lawyer to help make decisions about how to best end your marriage and assist you throughout that process.

Getting a lawyer for your family law needs

If you still don’t know whether pursuing a divorce or a marriage annulment is best for you, a family lawyer from Kolinsky Law can help you determine the best option for your circumstances. They will help you weigh the pros and cons of each option, always directing you to the very best choice for your particular circumstances. The family lawyers at Kolinsky Law know the Alberta system well and have years of experience in serving Albertan families. Call today to set up a consultation.

Steps to get ready for your consultation with a family lawyer

by admin | Nov 25, 2019 | Best Lawyers in Edmonton, Blog, Family Attorney, Family Law Lawyer, Family Lawyer

Meeting with a family lawyer for the first time can be stressful. Many are unsure of what to expect and feel some anxiety because of that. At Kolinsky Law in Edmonton, we strive to make your experience as comfortable and stress-free as possible. Of course, the nature of why clients come into a lawyer’s office is generally and often stressful, but we aim to reduce your stress as much as we can by communicating clearly and creating step-by-step processes to approach your legal matters. As such, we have compiled some recommendations on what you can do to best prepare for your consultation with a Family Law Lawyer.

1. Be Open and Honest

For many people, it is difficult to open up in the first meeting. You have just met the lawyer, and do not know what to expect. It is very important, however, that you give an honest account of your situation and any issues that are sensitive to you or your family. Remember that the consultation is private, and cannot be discussed with others without your permission, except in the case of child endangerment.

2. Bring All Documents

Start by making copies of all the documents you have collected so that your family lawyer will have them for your file. Depending on your case, the documents you might need include:

Marriage certificate
Any current or past orders made that are related to the case
Application to Obtain an Order or to Change an Order
Prepared Financial Statements

3. At the beginning of your consultation, your lawyer will collect basic information about you and your situation. Your lawyer may want to know:

Your name, any previous names, address, occupation, annual income, and date of birth,
Your spouse’s full name, address, occupation, annual income, and date of birth
Your marital status prior to this relationship (single, widowed, divorced)
Your partner’s marital status prior to this relationship
Alberta residency information and other citizenships of both partners
Information about the relationship, including the date the two of you started to live together, the date of your marriage and the name of the city or town where you got married
The date of separation
The full names and birthdates of any children
The care arrangements and any parenting plans that are presently in place for the children
Any prenuptial agreements
Any potential and believed risks, including family violence, abduction, and financial risks like bankruptcy
Why the relationship ended

4. Your lawyer will want to know your financial information and may ask for:

The approximate balance of all financial accounts, including savings, RRSP, investment accounts, and the names of the financial institutions holding the accounts,
All assets
The amounts of any debts, including credit cards, loans, lines of credits and where they are held
Information about any stock or bond portfolios,
Pension plan information
Real estate owned in Alberta and elsewhere, including address, value, and how ownership is divided.

5. Get Organized, Take Notes and Ask Questions

Throughout the consultation, you may want to write down notes and any questions you may have along the way. Your lawyer may have a lot of information for you and will want to collect many details from you, so this can be the best way to ensure your questions get asked either during the flow of the conversation or after. Sometimes it is most cost-efficient to ask several questions at once. In order for your lawyer to serve you better, you must fully understand your case and the entire legal process.

6. Discuss Costs

Your lawyer will discuss fees during this meeting, and you should be prepared to as well. If you want to discuss payment plans, retainer information, and written fee agreements, the consultation is the time to do so.

7. Read all Documents Carefully Before Signing

Before you sign a document, ask your lawyer to fully explain it to you and then read it thoroughly. Be prepared to spend some time going through documents in-office.

8. Keep your own files

Ask for copies of all documents prepared for your case and build your own file to keep at home.

9. Listen to your lawyer

Finally, always remember that, at Kolinsky Law, your lawyer is looking out for your best interests and the best interests of any children involved. The lawyer’s judgments and decisions are based on legal knowledge and training, as well as extensive experience so it is important to listen to your lawyer and think about what your lawyer asks you to do. We are here for you and what is important to you.

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