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.
by admin | Dec 24, 2019 | Best Criminal Lawyer, Blog, Criminal Defence Lawyer, Criminal Lawyers
Avoiding criminal activity is a priority for most people; however, whether or not someone has actually committed an offence, there is the possibility that they could face criminal charges. As such, people may not know exactly what process they will go through in being arrested and potentially charged for the crime. The following steps give a general guide to what happens when you are arrested for a criminal offense. There is also a quality handbook offered by Alberta Crown Prosecution Service. Without a doubt, hiring a criminal defence lawyer will be the best course of action in your case. Of course, every case is unique and will depend on its own facts.
Arrest and Bail Hearing
An arrest occurs when one of three circumstances is present: a police officer observes a crime in action, a police officer has reasonable and probable grounds to believe that someone has or is about to commit a crime, or a warrant has been issued by a judge or a magistrate which identifies the charge for someone to be taken into custody. In some circumstances, people who are going to be charged with an offence are asked to turn themselves into a police station.
The person who has been arrested or turned themselves in will have to complete certain procedural requirements such as attending for fingerprinting and photographing at the police department at a later date. They can sometimes be held in police custody until a hearing is held or while charges are decided; however, in certain circumstances, they may be released on bail (following a bail hearing or “judicial interim release”). A person has the right to contact legal counsel on arrest or detention and it is suggested that they do so immediately.
To be released on bail, it has to be shown that you are not a threat to public safety and that you will show up to your court appearances. In some circumstances, especially to maintain public confidence in the judicial system, people will continue to be held until their first appearance in court. If you are permitted to be released, the judge or justice of the peace may impose restrictions on you, including being supervised and/or paying a fine to the court for release. If you are let out on bail, you will be provided with a document (an appearance notice, promise to appear, summons, or recognizance) that will give you the information you need about appearing in court.
First Appearance, Election and Pleas
First Appearance
Once you have been charged for an offence, you will need to appear in court. If you have not already hired a lawyer, you will want to do that before your first appearance, so they have ample time to familiarize themselves with your case. Your lawyer can contact the prosecutor’s office to obtain the investigation file detailing the charges against you and what evidence is available before going to trial.
Your first appearance will always take place in a provincial court in front of a provincial court judge. You should arrive at the courtroom at least 15 minutes prior to your scheduled time, as specified on your document. If you have not been let out on bail, you will be brought to the court at the appropriate time by law enforcement. When the clerk calls your name, you will be expected to stand in front of the judge. Sometimes, at this point, the charges against you to
Election
You will then have to make an “election” – this means if your offence is indictable, you can have your trial either:
- Before a Provincial Court judge, or
- Before a Queen’s Court Bench Justice
Pleas
If you are not charged with an offence where you are expected to make an election, you do not have to plead guilty or not guilty at your first appearance – that is something best decided on the advice of your legal counsel who can assess the strength of the case against you. There may be room to bargain or a chance that you can avoid prosecution if the evidence is not very strong. Either way, an experienced and dedicated criminal defence lawyer will be able to guide you to get you the best possible outcomes for you under the circumstances. If you have not yet retained a lawyer, you may ask the judge to reserve your plea until you speak to one and then will be assigned another court date. If you plead not guilty, a trial will be scheduled.
Note: if you choose to plead guilty, the Crown prosecutor will read in the agreed-upon facts supporting the plea of guilty into the record. Always discuss with your lawyer, what facts will be read in when you plead guilty because, in order to plead guilty, you must agree that you committed all the necessary elements of the offence. You should not agree to have committed all essential elements of the offence without first having consulted a lawyer who can advise you about any potential defences that you may have. If you do not agree with the facts alleged against you, you have the right to a trial in which you may contest any facts alleged by the Crown and to advance any defences that may be available to you in law.
If you decide to plead guilty, the judge hearing your plea will hear submissions regarding the appropriate sentence. Sometimes the Crown and the defence agree on an appropriate sentence. Where they disagree they both explain their position to the judge, who makes the ultimate decision. Sometimes the matter is adjourned so that more information can be gathered that is relevant to sentencing such as a pre-sentence report, which details your personal circumstances and your amenability to supervision in the community. In some cases, more specialized reports are used that examines the mental health of the accused in order that the sentencing judge might fully appreciate his or her personal circumstances.
What is Alberta Crown Prosecution?
The Crown holds a lot of decision-making power. They are responsible for prosecuting all offences under the Criminal Code of Canada and other related acts or statues in the province of Alberta. They could also prosecute under a provincial statute if it is likely that a person will be convicted and it is in public interest. They are also responsible for first appearances in court for bail hearings, handling appeals, and developing law policy in the province as well.
It is the Crown that will decide the appropriate charges for an offence and who will present arguments for conviction and sentencing during trials, as well as prepare witnesses for court and examine or cross-examine witnesses.
The actions and decisions of the Crown Prosecution are governed by several important pieces of legislation, including:
Going to Trial
You or your counsel will receive notice for when your trial is set, including the time and location of the trial. If you have been released on bail, you should arrive at least 15 minutes prior to the trial time with your criminal defence lawyer who will inform the Crown prosecutor of your arrival. Prior to the trial, your lawyer can request full “disclosure” from the prosecutor’s office in order to prepare your defence. This refers to any documents, data, evidence, reports or witness statements the Crown will have accumulated pertaining to your case. You can request disclosure and represent yourself, but a criminal defence lawyer will have much more experience and knowledge to assist you during this time.
Don’t forget: you are innocent until proven guilty beyond reasonable doubt. And it is the Crown which is responsible for proving your guilt. They will present evidence during the trial and examine witnesses they bring, or they will cross-examine witnesses your defence brings to trial. While the details of actual court proceedings are too numerous to put here, essentially both the Crown prosecutor and your defence lawyer present evidence and witnesses. Then the judge will ask for final arguments by your legal counsel and the Crown for your guilt or your innocence. The judge or jury will then decide whether or not you are guilty. If you are found guilty, you will be sentenced for the crime – something which often takes place on another date. Your counsel will also have the opportunity to present evidence and arguments regarding what type of sentence you should receive before sentencing takes place. If you are found not guilty, you are free to go.
Hiring a Criminal Defence Lawyer
Hiring an experienced criminal defence lawyer from Kolinsky Law as early as possible after your arrest will help ensure you and your rights are supported every step of the process from “booking” to trial. We aim to get you the best possible results given the particular details of your case. This could mean actually getting you justice without even setting foot in court, or it could mean having the tenacity to present a convincing enough case to maintain your freedom, argue for alternative sentencing, negotiate pre-trial settlements where possible or provide access to their vast network of experienced and experts to do everything to help your case. Leaving your freedom and future up to chance is not a risk you should take – Kolinsky Law is ready to represent you and build the best defence for you today.
by admin | Nov 29, 2019 | Blog
The Alberta Administrative License Suspension (AALS) applies to you and your license if you have been pulled over for Driving Under the Influence (DUI) and you:
- were found to be in violation of the federal legal limits for alcohol, cannabis or a combination of both,
- were found to have consumed illegal drugs,
- or you refused to provide a breath/fluid sample to a police officer
What does an impaired driving mean for my license immediately?
If it is your first offence, you are subject to an immediate 90-day, no-driving license suspension. After this period has passed, you may apply to drive under a suspended license for a year with the Ignition Interlock Program. If you choose not to participate in the program, you will be suspended for a full year plus the initial 90 days with no ability to drive legally.
Can I get my license back prior to my court date?
The 90-day suspension does not provide exceptions except by successful appeal. Since most court dates are scheduled within the first month after a DUI, you will not be able to get your license back prior to your court date in most circumstances. If you file an appeal – which is possible up to 30 days from the offence date – and the Alberta Transportation Safety Board receives and responds to your appeal, it would be possible to retrieve your license before your first court date, if they accept your appeal; however, given existing processing times, this is very unlikely.
How do I file a DUI appeal in Alberta to get my license back?
In order to appeal your license suspension, you must purchase an Application for Hearing from any Alberta registry. You can choose between an oral or written appeal with the former coming at a higher cost than the latter. As noted above, this must be received within 30 days of the offence date. A successful appeal relies on offering evidence of your innocence in the impaired driving-related offence. The Alberta Transportation Board does not consider discussions of hardship due to suspended licensing when processing appeals.
Fees Associated with Appeals
| Oral Appeal Hearing |
$250 |
| Written Appeal Hearing |
$125 |
What is the Ignition Interlock Program and how does it affect my license?
To obtain your license before your trial whether or not an appeal goes through, you can apply to take part in the Ignition Interlock program through any Alberta Registry. The Alberta Transportation Driver Fitness and Monitoring board will receive your application, taking up to 30 days to issue an approval. This program involves the installation of a device on your car to monitor your sobriety while driving for the duration of your year-long suspension. During this time, you are not allowed to drive any other vehicle unless it contains the Ignition Interlock program.
Fees Associated with the Ignition Interlock Program
| Application Fee |
$63
|
| Passenger Vehicle Installation |
$145
|
| Commercial Vehicle Installation |
$245
|
| Reinstatement Fee |
$210
|
| New License Fee |
Check with Registry
|
| Monthly Interlock Device Rental |
$95/month
|
| Device Removal Fee |
$50
|
What happens to my license if I plead guilty or been found guilty?
If it is a first-time offence, there will be a one-year disqualification under the Criminal Code of Canada alongside a provincial license suspension, run concurrently. You can only get your license back by then applying to take part in the Alberta Ignition Interlock Program. You will also be required to take courses with the Alberta Motor Association (AMA) including the AMA Planning Ahead Course and IMPACT Course. There will be a significant gap in time between your conviction and your approval for the program before you receive your license back, with restrictions.
What happens to my license if I am found innocent and win my case?
It is important to note that winning your criminal case does not mean your license is immediately returned to you as AALS continues, despite what happens with Criminal Code charges. In other words, the provincial suspension applies, whether or not you are criminally convicted at trial. The only way to avoid the AALS suspensions (90 days mandatory followed by 1 year) is to file an appeal. It is absolutely essential that you purchase and file the appeal form within the first 30 days of the suspension. This gives you the right to appeal at a later date and you can wait to decide what to do pending your criminal case.
What is the best plan of action for getting my license back?
Hire a criminal defence lawyer right away. At Kolinsky Law, our DUI Lawyers team can assist you with all of the complexities of navigating your DUI criminal case to ensure that you get your license back as soon as possible to limit interruptions to your life and mitigate any damage a DUI could further cause you.
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.
by admin | Nov 25, 2019 | Blog
Reasons for divorce in Alberta are as varied and complicated as each relationship. Every divorcing couple brings individual reasons for the divorce to the negotiation table or the courtroom, but each must claim one of the three legal grounds for divorce under Canadian law. The three grounds for divorce in Alberta are cruelty, adultery, and separation.
1. Cruelty
Is defined as occurring when one spouse inflicts mental or physical cruelty upon the other to the point that they can no longer live together. Cruelty can include violence, drunkenness, constant verbal abuse, or excessive drug use. Cruelty only has to occur once to be grounds for divorce, but this ground does require evidence. Incompatible temperaments or occasional episodes of unkindness do not amount to cruelty, but constant name-calling or other forms of verbal abuse may be considered cruelty.
Although it is possible to be divorced without being separated for one year due to cruelty, unless the other spouse admits to cruelty, you will have to have a trial on the issue and it will take more than one year to deal with the issue. Also, if you condone the cruelty, such as by continuing to live with your spouse, the court may refuse to grant you a divorce on this ground. For most people, it is not practical to rely on this ground for divorce.
2. Adultery
Adultery is when one spouse has sex with another person while the marriage exists. The applicant cannot have condoned the affair, for example in the context of an open marriage, and must provide evidence to support the claim than adultery occurred. In Alberta, there is a standard form affidavit that the cheating partner can sign to admit to adultery. The spouse who had the affair cannot file for divorce on grounds of adultery, and couples cannot jointly apply for a divorce on grounds of adultery.
3. Separation
Separation is the most commonly used grounds for divorce. To become divorced on grounds of separation, the spouses must live separately and apart for at least one year. The reason for the separation does not matter. It is easier to prove separation if each person lives in a separate home, but it is possible to be considered separate and apart while living under the same roof, as long as each person is living independently. For example, cooking and eating separately, sleeping in separate rooms, and not attending social events together.
You should know that you can bring an action for divorce as soon as you are separated. However, your divorce cannot be finalized until the one year period of separation has been completed. Also note that absent special circumstances, all issues relating to the custody and support of children must be dealt with, either by agreement or trial, before the court will grant you a divorce, even though you have been separated for over one year.
Can I get a no-fault divorce in Canada?
Canada has a no-fault divorce. That means that the partner responsible for the breakdown in the marriage is not taken into consideration when determining property division or rights and responsibilities related to childcare and support. The Canadian legal system is not interested in placing blame in cases of divorce, so it is more important to protect your own legal rights than to prove your ex-spouse’s responsibility for the end of the marriage.
The only place where fault plays a role in Alberta divorce law is if you are seeking a divorce on grounds of cruelty or adultery. Unlike separation, cruelty and adultery grounds do not require a year-long period of separation. However, they do require proof that cruelty or adultery took place.
Once the divorce is granted on any grounds, however, the fault for the divorce will not factor into the court’s decision regarding custody or property division. For example, a cheating spouse may be at fault if they are divorced on grounds of adultery, but they will not necessarily lose custody of their children because of that.
Do I have to be a citizen to get divorced in Canada?
In most cases, you have to be a resident of Canada to get divorced here, but you do not have to be a Canadian citizen. You can get divorced in Alberta if you were married in another province, but one or both spouses must live in Alberta for at least a year to get a divorce here.
There is an exception to the Canadian residency requirement if the couple were married in Canada and cannot undo the marriage in the country they live in because that country does not recognize their marriage.
Divorce is just part of the process of ending a marriage
In strict legal terms “divorce” is just the legal ending of a marriage and doesn’t deal with issues of property division, custody, and child or spousal support. Even in the most amicable divorces, coming to a separation agreement is a challenging and complicated process — both legally and emotionally. Whether a divorce is amicable or contentious, whether you have many shared assets and children, or not, it is important to consult with an experienced family lawyer before filing for divorce in Alberta.
If you are considering divorce, consult with a Kolinsky Law experienced family lawyer in Edmonton. We will help you understand your options and the benefits and challenges of pursuing the right grounds for your case, and ensure you get the separation agreement you deserve.
