by admin | Jul 14, 2021 | Best Lawyers in Edmonton, Blog, Divorce and Separation, Divorce Attorney, Divorce Lawyer, Divorce Mediation
Divorces in Alberta, by their nature, are disruptive. When children are involved, family law has traditionally placed a priority on their physical and emotional needs due to the upheaval that they experience. The Divorce Act amendment that came into effect on March 1, 2021, elevates the best interests of the child. It also includes updated legal terminology, recognition of family violence, and addresses relocation issues.
As you consider ending your marriage, you should understand these changes to the Divorce Act. If you choose to go forward with a divorce, the new terminology and rules will impact the process. You may choose to consult an Edmonton Divorce Lawyer when you have questions about how the modernised Divorce Act could apply to your family situation.
What Is the Divorce Act?
The Divorce Act is national legislation originally passed by Parliament in 1968. It outlines laws concerning divorce, separation, and child custody and support. The act defines legal terms and rights and sets forth the process for dissolving a marriage. The Court of the Queen’s Bench of Alberta oversees divorces within the province in accordance with this federal law and other provincial family laws.
Why Was the Divorce Act Amended?
The amendments within section 12 of Bill C-78 address a variety of issues, but the primary purpose of the update was to increase the importance of the best interests of the child when making decisions around parenting time relocation. Although this principle has always held great legal importance, the amendment now directs courts to “only” consider the best interests of the child.
According to the Law Society of Alberta, other smaller changes in the amendment ease court burdens should an electronic hearing be needed or someone other than a parent needs to obtain or modify a contact order. New rules also apply to inter-jurisdictional applications.
Who Is Affected by the New Divorce Act Rules?
Anyone in Edmonton moving forward with a divorce after March 1, 2021, will follow the updated laws, terminology, and procedures as mandated by the amendment. If you already initiated a divorce before the effective date but have not yet received a final divorce order, then your divorce will move forward under the new laws.
Overview of Divorce Act Changes for Alberta Families
Because the amendment represents the first major overhaul of the Divorce Act in decades, it covers plenty of legal territory. For the most part, the changes fall into five major categories:
- Legal terminology
- Alternative dispute resolution
- Best interests of the child factors
- Family violence
- Relocation
New Divorce Terminology
Lawmakers eliminated the old terms “access” and “custody” and replaced them with “parenting time” and “decision-making responsibility.” Sometimes the previous terms caused confusion, and the new legal language may help people more fully understand their rights and responsibilities during the divorce process.
What Is Parenting Time?
This term describes the time that a parent and child spend together. Parents have the right to determine the schedule for dividing their individual time with children as long as they agree and a court does not deem the schedule to interfere with the best interests of the child.
Generally, parents choose to split their parenting time on a mostly equal schedule or assign the bulk of parenting time to one parent while the other parent has the children less often. Many reasons could prompt a parent to choose limited parenting time, such as a need or desire to live in a different location or an inability to provide an acceptable home for children.
What Is Decision-Making Responsibility?
Decision-making responsibility is not determined by the amount of parenting time that you have. A parent who must travel for work and therefore cannot provide the primary parental household may still have full or partial decision-making responsibilities. These responsibilities encompass the right to make major decisions about a child’s life in regards to education, religion, cultural traditions, health care, and extracurricular activities. You may need the representation of a divorce lawyer to influence whether you have full decision-making responsibilities, partial control, or no input over decisions.
Alternative Dispute Resolution
The amendment promotes the goal of avoiding litigation whenever possible. Mediation, collaborative family law, co-parenting counselling, and arbitration are all forms of alternative dispute resolution. According to the amendment, a divorce lawyer should advise you of these options and encourage you to explore ADR whenever feasible. Negotiating divorce agreements privately could resolve problems faster than waiting for a court to issue a decision.
Factors Guiding the Determination of the Best Interests of the Child
Now that the best interests of the child are preeminent when making decisions in a divorce, the updated laws provide more guidance about the factors used to define the best interests of the child. Previously, federal and Alberta laws offered little guidance beyond valuing the physical, emotional, and psychological well-being of a child. The amended federal Divorce Act now lists certain factors. However, a court may consider any pertinent issues even if they are not specifically included in the amendment.
Influential factors:
- Child’s needs according to age and developmental status
- Child’s relationship with each parent
- Parental willingness to have a relationship
- Parental history of caring for the child
- Child’s preferences considered in conjunction with child’s maturity level
- Child’s heritage
- Willingness and ability of parents to cooperate with caregiving
- History of family violence
Family Violence
The original Divorce Act and previous amendments contained no language about family violence. The 2021 amendment now clearly defines family violence and requires judges to consider it when deciding on a contact order. Among other issues, a judge must weigh the frequency or pattern of violence, nature of violence, and it’s physical, emotional, or psychological impact on the child. The law specifies that the violence does not necessarily have to be inflicted directly on a child. Exposure to family violence represents an issue a judge should take into account. Additionally, conduct does not have to result in an actual criminal offence to qualify for consideration.
Relocation
After a divorce has been settled, occasions can arise when a parent wants or needs to move. Legal changes now obligate a parent with any decision-making authority or parenting time to inform the other parent of the desire to move in writing 60 days prior to the intended move. Court forms must be prepared. The other party may consent or dispute the relocation. If a court must decide the issue, the best interests of the child once again direct the outcome.
Updated Forms at the Court of the Queen’s Bench of Alberta
The changes to the Divorce Act have resulted in amendments to the Alberta Rules of Court. As of March 1, 2021, Alberta courts have updated their court forms to reflect the new procedures and terminology that now apply to divorces.
How Will the Changes Influence My Divorce in Alberta?
The changes to the Divorce Act will have the most bearing on parents who get divorced. The best interests of the child must be satisfied at every turn as parenting time, contact, and decision-making responsibilities are determined. If family violence is an issue in your case, the new law makes it much easier for a judge to recognise the seriousness of such events.
Every divorce revolves around factors and priorities unique to a family. Talking to a Divorce Lawyer in Edmonton, Alberta, can clarify your legal position and help you negotiate an acceptable outcome. You may even avoid the expense and delay of a courtroom battle through an enhanced legal emphasis on ADR.
At Kolinsky Law, you can access up-to-date legal advice as you navigate immediate and long-term decisions related to your divorce. Solutions to complex and distressing family problems can be found when we advocate for your rights. The changes to divorce law are meant to produce the best results for families. Contact Kolinsky Law today for crucial guidance about your divorce.
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.
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 | 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.
