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 | 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.
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.
