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What does bail mean in Alberta?

by admin | Dec 11, 2020 | Best Criminal Lawyer, Blog, Criminal Defence Lawyer, Criminal Lawyers

When a person is charged with a crime and is awaiting trial in Canada, they can be temporarily released on bail or held in custody until their trial. Many considerations are held in balance when bail is considered, such as the charged person’s interest in freedom; the protection of community, victims or witnesses; and the importance of maintaining public confidence in the system. Bail is a complex subject and its procedures change depending on the crime someone has been charged with, and the stage of their case.

What is bail?

Bail refers to the temporary release of a person facing criminal charges before they appear for trial. The technical term for bail in Canada is ‘judicial interim release‘. If police are going to detain a person instead of releasing them after arrest, they must bring them before a judge or justice of the peace within 24 hours.

Police might have different reasons to bring someone to bail court, depending on the severity of the charges. For example, these reasons may include:

The likelihood of them attending their court date
The protection of witnesses, victims and the community, or
The nature of the crime they are charged with.

The crown should not detain a person merely for the sake of completing their investigation, but if there is concern that the charged person may interfere with the investigation or destroy evidence, it may be reasonable grounds to deny bail. The bail hearing is not a trial to determine whether or not a person has committed the crime for which they are being charged. It is a hearing to determine whether or not it is reasonable for them to be released back into the community temporarily, and whether they should be bound by certain conditions for this release, including producing bail money.

Legally, the grounds for detention are:

To ensure a person will attend court as required (primary ground)
To ensure the safety of the public such as any victims or minors (secondary ground)
To maintain confidence in the administration of justice (tertiary ground)

Typically, when someone is detained, the onus is on the police and crown prosecutor to prove why a person should be held longer, or have more restrictions on their release. The Canadian Charter of Rights and Freedoms guarantees that no person should be denied reasonable bail without just cause.

There are however, cases when the burden is on the charged person to prove why they should not be detained. This is called ‘reverse onus’, and applies in a few situations, including the following:

If they were on release for another offense when they committed the subject offense
If they have a history of failing to attend court or complying with promises to appear
If the offense involved their use of a firearm
If the person normally does not reside in Canada
If the offense is purported to be related to weapons trafficking, terrorism or connection to a criminal organization

What happens at a bail hearing?

A person appears before a judge or justice of the peace. In Alberta, a first appearance bail hearing happens by video or teleconferencing. Bail hearings happen from 8am-midnight, 365 days a year to ensure that anyone being detained has the right to a hearing within 24 hours. If you are arrested, you have the right to speak to a lawyer before your bail hearing.

The Justice of the Peace decides one of three things:

to release the person
to detain the person
to adjourn case without bail until a later date

If a person is granted bail, they may or may not have conditions tied to their release. Conditions are to be as unrestrictive as possible while securing public safety, ensuring attendance at court and respecting the administration of justice. It is important for the accused to have proper representation in court to ensure that the restrictions can be as limited as possible in their favor.

What are the possible bail release outcomes?

There are a number of options available for the judge or justice of the peace to consider when releasing a person on bail:

Undertaking without conditions: like a promise to appear, you promise to come to court when required.
Undertaking with conditions: You promise to come to court, but you have some restrictions on your freedom. For example, you might not be able to have contact with a specific person.
Recognizance: You agree to a) follow conditions set by the court b) pledge/promise a set amount of money to the court to be a security for your release c) sign your own bail. By signing for your own bail, you recognize that you will pay that set amount of money to the court if you do not follow your bail conditions.
Surety recognizance: Someone must come to court and agree to supervise you and provide a specific amount of money as security to the court. If you do not follow your bail conditions, your surety will have to pay the money to the court.

Failures to comply with an undertaking, or a breach of recognizance are also chargeable offences, so any breach of bail conditions may lead to more charges down the line.

If you have been charged with a crime, feel free to contact us to guide you through this complex and difficult process.

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.

Book Consultation for quick advise

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.

Your right to speak with a lawyer after you are arrested

by admin | Jul 30, 2020 | Best Criminal Lawyer, Best Lawyers in Edmonton, Blog, Criminal Defence Lawyer, Criminal Lawyers

According to the Canadian Charter of Rights of Freedoms if you are arrested you have a number of rights. The CCRF is in place to protect these rights.

Some of the most important rights are:

The right to remain silent when questioned by the police.
The right to be told why you have been arrested or detained.
The right to be told that you can hire a lawyer.
The right to be told about the availability of duty counsel and legal aid.
The right to speak with a lawyer in private, as soon as possible.

The Right to Speak with a Lawyer

Upon arrest, you have the: “right to retain and instruct counsel without delay and to be informed of that right”.

Police must inform you that you can speak with a lawyer, but do they have other obligations to fulfill? The answer is YES!

What does Police Need to Do to Help You Speak to a Lawyer?

Different police forces go about this responsibility in different ways. Some will give you a phonebook, phone or possibly the internet to search for your lawyer. Others may contact the lawyer themselves then give you the opportunity to speak with your chosen lawyer.

If the police take on the responsibility of finding and contacting counsel for you, they must be as diligent and persistent as you would be. This means they use all means possible to find, contact, and connect you with your legal counsel. It is not enough for them to simply call and leave a message.

This includes actions like:

Calling all possible contact numbers.
Expressing urgency to secretaries or legal assistants.
Giving you access to your cell phone if you have a contact number stored there.
Reaching out to the family who may have contact information for your lawyer.

How Many Phone Calls Do You Get?

You may have seen in movies and TV shows that someone who is arrested gets one single call. If the lawyer doesn’t answer then it’s game over.

This is not the case in a real-life situation. Unless there are extenuating circumstances, the police officer must give you a “reasonable opportunity” to contact your lawyer. If after a reasonable amount of time the lawyer has not yet answered or returned the call you should be given the opportunity to speak to another lawyer or opt for duty counsel.

If you do decide you do not want to contact another lawyer, the police must inform you that you have the right to wait for a reasonable amount of time to hear back from your lawyer and the police can not interview you during that time.

What Obligations Do You Have If You Are Arrested?

Yes, You also have obligations when you have been arrested. You must be reasonably diligent in seeking counsel.

How Kolinsky Law can Help?

Kolinsky Law is a results-driven law firm with highly experienced Criminal Lawyers. They know that their responsibilities towards their clients begin with accessibility. After contacting them, your lawyer will help guide you through the process. They will work to get details about your arrest, brief you prior to questioning and take steps to get you the best possible results. If you are arrested, it can be overwhelming and scary but you can depend on the Criminal Lawyers at Kolinsky Law to be there every step of the way.

Driving Over 80 versus Impaired Driving

by admin | Apr 7, 2020 | Best Lawyers in Edmonton, Blog, DUI, Impaired Driving Lawyers

Everyone knows that you should never drive drunk. If you drink, leave your keys and take a cab. We hear this over and over again on commercials, radio ads and see this very message posted in bars and pubs.

What happens if you do not think you are drunk? What happens if you think you can handle driving home? What happens when you see those red and blue lights flashing in your rear-view mirror? There are different degrees of impairment that some may find confusing but it’s best to know what they mean in advance to find out what your rights are when it comes to driving and alcohol consumption.

As a prominent example, it is not uncommon for the terms “Impaired Driving” and “Driving Over 80” to be confused. The reason is that both these charges are often laid together but they have different meanings.

Driving Over 80:

It is a criminal offence in Canada to operate a motor vehicle when the Blood Alcohol Concentration (BAC) is more than 80mg of alcohol per 100 mL of blood.

Blood alcohol concentration depends on a number of factors including how much alcohol was consumed, how much time has passed since the most recent drink, gender, weight, how the body absorbs alcohol and eliminates it.

Impaired Driving:

Impaired driving does not depend on the blood alcohol level at all. It simply means that the driver’s ability to operate the motor vehicle was impaired by alcohol or drugs.

Federal Consequences:

What is confusing is that someone may be charged with impaired driving when their BAC is below 80mg. At the same time, another driver may be charged with Driving Over 80 but not be impaired at all. This really comes down to alcohol tolerance. In fact, toxicologists have found that some people may be impaired from less than 50mg of alcohol per 100mL of blood while others can tolerate much higher than 80mg of alcohol per 100mL before becoming impaired.

If the driver is found to have a Blood Alcohol Concentration over 80mg, they will be charged with that. If their BAC is below 80 but there is evidence of impairment including weaving, or an accident then they will face an Impaired Driving Charge.

If you are found guilty of criminal-level impaired driving (Over 80), you may be required to:

Complete a driving prohibition. The prohibition time may vary depending on the offence.
Pay fees such as reinstatement fees.
Complete remedial education courses.
Successfully participate in the Mandatory Interlock Program.
Successfully complete a roadside test.

Provincial Consequences:

In Alberta, like most provinces, if a driver is found to have a blood alcohol concentration of 0.050 and 0.079 they will face Provincial consequences.

1. First time within a 10-year period:

an immediate 3-day driver’s license suspension
a 3-day vehicle seizure

2. Second time within a 10-year period:

an immediate 15-day driver’s license suspension
a 7-day vehicle seizure
Crossroads course

3. Third and subsequent times within a 10-year period:

an immediate 30-day driver’s license suspension
a 7-day vehicle seizure
IMPACT program

How Can Kolinsky Law Help?

Our dedicated team of criminal lawyers work to help those charged with a crime and provide them with legal advice. In cases of Impaired Driving or Driving Over 80, the penalties can be serious. This is where we come in. The lawyers at Kolinsky Law have what it takes to guide you through the process and work to get you the best possible results.

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.

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