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Calgary Family Law Blog

Hague Convention and Habitual Residence: New Developments

In 2018 the Supreme Court of Canada modified the legal definition of what it means to be "habitually resident" in a country, which Canadian judges must follow when ruling on international parental abduction cases.

The Hague Convention is an international law which mandates that Contracting States must order the return of a child that has been wrongfully removed or wrongfully retained to their country of habitual residence (unless one of the exceptions applies). 

What is a separation?

A separation is when two people in a domestic relationship decide to end their relationship and live separate and apart. There is no official designation given to couples who chose to separate. However, you and your partner will need to figure out how to divide the life you have built together, keeping in mind you don’t qualify for the same legal rights as married couples.

The best way around this problem is to create what is known as a separation agreement.

Know the Difference Between Mediation and Mediation/Arbitration(!)

In the midst of a family law matter, you may hear lawyers casually toss around terms like "med" and "med-arb" when planning the next steps for your file - they are referring to mediation and mediation/arbitration. While both useful processes, it is important to understand the differences between mediation and mediation/arbitration before you sign on the dotted line.

Mediation is a process where a third party, usually a lawyer or psychological professional, assist parties in resolving their family law dispute outside of court. Mediation is a without prejudice and non-binding process, and either party may terminate the process at anytime. "Without prejudice" means you are bound by any ideas or proposals you may put forward during the mediation. For example, if James thinks out loud in mediation and utters the words "...maybe I don't need the family boat since I'll never be at the cottage anyways," the opposing party cannot then then run off to court and tell the judge that James abandoned his interest in the family boat at mediation. Agreements made in mediation can be perfected or made binding through other documents recommended by your legal counsel at the conclusion of mediation.

When you suspect your ex is hiding income in the divorce

Divorce can be a stressful, emotionally draining process. This is especially true in cases where one spouse is the breadwinner—or earns the vast majority of the household income—while the other spouse is left in the dark about couple’s true financial situation.

In the event of a divorce, your incomplete understanding of your spouse’s assets and income could prove extremely damaging for your settlement. If your spouse isn’t transparent about their assets with their lawyers, it could prevent secret funds or property from being divided with you. Such assets may include:

Payments to Surrogates in Canada?

Surrogates and intended parents are governed by the Assisted Human Reproduction Act in Canada, and provincial legislation depending in what province you live. It is not currently legal to pay surrogates for their services, except for reimbursement of reasonable and "out of pocket" expenses related to the pregnancy (such as prenatal vitamins or travel to doctor's appointments) or as a result of the pregnancy. As there are no defined regulations in Canada as to which expenses can be reimbursed to the surrogate and to what extent, generally, a "but for" test is used - would the expense occur anyways or has the expense only occurred but for the surrogacy?

Parenting Agreements: What You Should Know

As an adult, navigating separation or divorce can be hard. For children, understanding the implications of a family breakdown can seem impossible. So how can you move forward while helping ensure that your child’s best interests are protected? A parenting agreement can be key tool that helps keep the focus on what matters most.

 

My spouse passed away....do I still owe her Spousal Support?

As a family law lawyer, I sometimes get asked the uncomfortable question, if my spouse dies, am I obligated to continue paying him or her spousal support.

In some circumstances, it is possible that despite the fact your ex spouse has passed away, you may be required to pay spousal support to his/her estate.

To determine whether or not your obligation continues, you will need to review the terms of your separation contract and all your relevant court orders, including your Divorce Judgement. The question of the continuation of this obligation will also depend on a number of factors, some of which include the terms of your separation contract, whether the obligation is binding on your and/or your spouse's estates, whether the contract contemplates death, whether the obligation is a "needs" based claim, and/or whether the obligation is reviewable.

Intersection of Criminal and Family Law

There are many types of crimes which, when one is accused or convicted of, can have a significant impact on a family. This is true for the accused, the alleged victim, and any children involved. It is moments such as these where one finds the intersection of criminal law and family law.

There are many kinds of crimes which can indirectly affect a family. These include any type of abuse against a spouse that is physical, sexual, emotional, psychological or financial. In Canada some crimes that fit this pattern include such as domestic or partner assault, sexual assault and stalking.

Additionally, crimes that did not directly involve the family such as theft, nonetheless have a significant impact should one of the spouse or spouses be incarcerated for a period of time.

National Family Law Conference

Two associates of SBL, David M. Taylor and Elizabeth L. Stewart, recently attended the National Family Law Conference in Vancouver, British Columbia. This is a four day intensive training program hosted by the Federation of Law Societies of Canada. The conference had hundreds of family law lawyers from all across Canada in attendance. Numerous members of the judiciary from across Canada were also in attendance. Topics discussed included advanced rules of evidence in court proceedings including newer mediums such as social media, advanced topics on spousal support, unusual property division, taxation issues in family law, and family trusts, amongst a host of other informative presentations. The members of SBL were also privileged to hear from the Federal Minister of Justice the Honourable Jody Wilson-Raybould who spoke of the new Divorce Act recently introduced into Parliament and the potential changes coming in family law. The lawyers at Soby Boyden Lenz LLP strive to stay on top of the law and emphasis attending educational events such as this in order to provide the best possible advice to our clients.

Estrangement or Parental Alienation – Which Is It?

It’s increasingly common for one parent to make allegations during contentious or difficult divorce proceedings. One type takes the form of parental alienation. What is this phenomenon, and are there other reasons why a child does not want to be with one of its parents? Or do issues exist that justify the child’s estrangement from that parent?

At Soby Boyden Lenz we are here to answer any questions you may have.
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