Osuji & Smith Lawyers CALGARY AREAS OF LAW PRACTICE Questions and Answers
A. FAMILY LAW Questions And Answers
1. CHILD SUPPORT Questions and Answers
How is child support calculation done?
Alberta child support is calculated using the Federal Child Support Guidelines and gross parental income. If children live with only one of the parents, only the income of the paying parent is taken into consideration. If the children live with each parent approximately the same amount of time, child support is calculated for each parent separately and the amounts are set-off against each other. The result is that only the higher earning spouse pays the child support.
What happens when my ex-partner is not paying the child support?
The Maintenance Enforcement Act, RSA 2000, cM-1 permits Maintenance Enforcement Program (MEP) to collect payment directly from a payor in the amount set out in the order.
If a person supposed to pay support does not make payments to MEP on time, there are a number of sanctions and enforcement measures available to the MEP. For example, late or missed payments will accumulate arrears with accrued interest. This interest is also enforceable by MEP. MEP has the authority to garnish wages, remove funds from bank accounts, and even seize and sell assets to recover the child support or spousal support owed.
If MEP is unable to collect the support funds through garnishees it can resort to more intrusive sanctions. Such sanctions may include a report to the credit bureau, suspending the payor’s vehicle registration, drivers’ license, passport or hunting license.
In some circumstances, MEP may request that the payor prepare a Statement of Finances. This is a form that sets out all the available income and assets available to the person who is supposed to pay support. If a payor fails to complete and return the Statement of Finances, the payor may have to attend court for a default hearing and testify under oath. If they do not attend the default hearing, MEP has the authority under the Act to apply for a warrant for the payor’s arrest.
What is child support meant to cover?
The support amounts are intended to cover not only the direct costs for the children, but also the indirect costs, such as housing and transportation.
What if I have a child support order how do I change it?
You or your partner may need to change your child support order because of changes to your situation. If your court order does not say what should happen if there are changes to your situation, you and your partner can agree to change your court order. If you can’t agree, you can get help from a family law professional or go to court and ask a judge to decide.
2. SPOUSAL SUPPORT Questions and Answers
When do I stop paying spousal support?
For payment obligations to terminate, the paying spouse must obtain court approval. A paying spouse who wants payments to terminate files what is known as a petition for termination of spousal support with the court. The petition is a formal request that the court terminate the spousal support order.
My ex-spouse lives in another province and I want to change spousal support payments – what do I do?
The Divorce Act allows parties who are divorced and live in different provinces to make a special kind of application to vary (change) a support order, without having to travel to the other province to make the application.
This application is called a ‘provisional’ variation application. There is a special process involved with these applications.
What qualifies me to collect spousal support from my ex-partner?
In most cases, only persons who have been involved in a marriage of a “longer duration” (usually over 5 years) are qualified for spousal support. Also, the court will take into account several factors when making the support determination, including: The earning capacity of each spouse.
3. MATRIMONIAL / FAMILY PROPERTY Questions and Answers
What constitutes family property?
Family property is the property that you come to own during a marriage or adult interdependent relationship. Family property includes all assets and debts. Assets include real estate, vehicles, bank accounts, investment, insurance policies, pensions, business interest, valuables collections and furniture. Debts include mortgage, lines of credit, car loans, other loans, overdraft, credit cards and lease payments.
What happens if my spouse and I do not agree on the division of our matrimonial/family property?
If both spouses cannot agree on how to divide the matrimonial assets or a specific matrimonial asset, the court shall make the final order for them under the Matrimonial Property Act.
What if I do not want the matrimonial / family property to be sold and my spouse wants it sold what can I do?
If a spouse does not want the family property to be sold because the spouse wants to acquire the family property, then the spouse keeping the family property must be able to pay the other spouse any equalization payment owing and also qualify to take over the mortgage and any lines of credit associated with the property.
Can my spouse sell the matrimonial / family property without my consent?
In Alberta, the Dower Act prohibits a married person from disposing of a homestead without consent of the non-title spouse. A disposition includes a transfer, a mortgage, and a lease over three years.
4. PARENTING Questions and Answers
What if my ex-partner keeps making it difficult for me to have access to my kids?
You can take your ex-partner to court to enforce the parenting order. If you can prove that he or she is intentionally withholding the children from you, the court will take action to enforce the court orders. Keep track of all the missed visits that was occasioned by your ex-partner’s intentions and make notes with as much detail as possible. For example, record the date, time, and details of each time you were not allowed to see your child.
Can my ex-partner and I mutually agree on parenting without going to court?
Parenting can be agreed outside of the courtroom by mutual agreement between the parties involved, and sometimes a neutral third party. A reasonable parenting agreement arrived at between the parties in a mature and open manner will probably be acceptable to the court.
At what age can my child decide where he or she wants to live?
If the child is under 12 years of age, shifting to live with the other parent might be a little hard but not impossible if they provide legitimate reasons. When the child is 14 years of age or over, it becomes an offense for anybody to compel them.
5. DIVORCE Questions and Answers
When can I file for a divorce?
In order to file for divorce, you can either be separated for at least a year or unless there is physical or mental cruelty or adultery.
How do I get a divorce if I can’t find my spouse?
If you cannot find your spouse, you can request permission from the court to publish a notice of the divorce in the newspaper or post a notice in the courthouse. This is called a Motion to Serve by Publication or Posting.
I was married outside Canada/Alberta can I still file a divorce?
You can get a Canadian divorce if you were married in a different country, provided certain prerequisites are met. The reason is that when it comes to divorce, it does not matter where you were married. What matters is where you live when the divorce proceedings are commenced. You can file for divorce in Alberta if you or your partner have lived in Alberta for 1 year.
6. COHABITATION Questions And Answers
My boyfriend and I have been living together and we do not intend to get married what do you advice we do to protect our relationship?
To fully protect your rights, you should consider drafting the necessary documents. For example, a will, an enduring power of attorney, personal directives and a cohabitation agreement.
What happens to my property after cohabitation has ended with my partner?
The property belongs to you if you exclusively paid for it. to the person who paid for it. Any property you or your partner purchased belongs solely to that person. Your partner has no legal right to the property purchased by you just because you have lived together for a period of time.
However, if your partner as contributed to your property, either directly or indirectly, your partner may have rights. A direct contribution would include, but is not limited to paying for the mortgage, utilities or renovations. An example of indirect contribution would include, but is not limited to childcare, maintaining the household or decorating the household.
I have been cohabiting with my partner and we had children what are my rights towards our children?
If a child is born, the mother is considered the sole guardian and custodial parent of the child if the father does not acknowledge himself as a parent and does not demonstrate an intention to take on the responsibilities of a guardian within one year of either becoming aware of the pregnancy or becoming aware of the birth of the child, whichever is earlier.
Otherwise, the father may apply for guardianship and parenting time with the child.
7. PRENUPTIALS Questions And Answers
When should I consider having a prenuptial agreement?
A prenuptial agreement is entered into before marriage, but does not become enforceable until after the marriage has taken place. It can deal with property owned jointly or by either spouse separately.
How long does a Prenuptial agreement last?
A prenup is a contractual agreement, and like most contracts, the lifespan of the agreement will depend on the specific stipulations included. Typically, a couple’s prenuptial agreement will last for the lifetime of the marriage.
In some cases, couples include a “sunset” clause. This is a provision in the agreement that stipulates a preset termination of the prenup after a fixed period. For example, you can set the prenuptial agreement to last for 5 years before it automatically expires.
If there is no sunset clause or specific stipulation regarding how long a prenup should last, its lifespan is indefinite.
Both sides may wish for their prenup to end after a certain number of years or want the prenup to last indefinitely. The choice is completely personal and unique to each couple.
When can I decide to cancel or withdraw from my prenuptial agreement?
A prenuptial agreement can be changed or canceled, provided it is mutually agreed by both parties. A single partner cannot change or cancel the prenuptial agreement by themselves. They must have the agreement and signature of the other party.
B. REAL ESTATE LAW Questions & Answers
Why do I need a lawyer while acquiring my property?
When purchasing a new home, you need a lawyer because most lenders demand that their paperwork be prepared by a lawyer. Typically, on residential purchases, the same lawyer acts for both the bank and the buyer.
At what stage should I hire a lawyer while acquiring my property?
You should retain a lawyer as soon as you have a firm purchase contract.
Can I acquire a property without involving a lawyer?
You can but a real estate lawyer protects your interests, so it’s the smart move even if you’re paying cash with no mortgage.
What can I do when the property I have acquired has existing tenants?
If you are purchasing the property as an investment property, you can keep the tenants and ask the sellers for the Rental/Lease Agreement, and the damage deposit.
If you do not want to keep the tenants, after you have a firm purchase contract, and before possession date the Sellers must give tenants 90 days notice to move out if they are on a month-to-month residency. On the other hand, if there is a Lease Agreement in place then the terms of the lease must be honoured, until the lease agreement expires.
What happens when I am a tenant and the property without insurance gets destroyed by fire or water due to the negligence of the next-door neighbor?
If you have tenant insurance, which is highly recommended you can file a claim with your insurance provider to cover your personal property personal damages.
C. WILLS AND ESTATE Questions and Answers
1. What is a Will and what is a Codicil?
A will is a legal document that expresses the wishes of a testator on how his/her estate should be distributed after his death. A codicil is a modification/addition to the will.
2. Can I make my Will myself or do I need a lawyer?
Yes, you may. However, there are various requirements under the Wills and Succession Act for a Wil to be valid. If your Will is not valid, there might be issues in obtaining a Probate for same. It is advisable to have your Will prepared by a lawyer to avoid any issues regarding its validity.
3. When is the appropriate time to make a will?
Now is the appropriate time to make a Will. You may always change your Will with a codicil or revoke your previous Will with a recent Will. It is also advisable to revise your Wil after separation/divorce.
4. What happens if I die without making a will?
Then the Intestate Succession Laws comes into play and the court would decide the beneficiaries of your estates under the Intestacy Laws.
5. What happens if I make a will and lost the will?
If you prepare a Will by yourself, you must keep it in a safe place e.g., locker etc. or entrust your executor with same. If our office assists you in preparing your Will, we ensure the safekeeping of the Will for our clients. In the event your copy of the Will is misplaced, our office can always issue a notarized copy of the Will bound on the original we kept with us in our fireproof cabinets.
D. CIVIL LITIGATION Questions and Answers
1. When does a contract become enforceable?
Certain elements must be present to form a binding and enforceable contract. These elements include intention to create a binding agreement, offer, acceptance, consideration, and essential terms. There can be oral and written contracts. While an oral contract can be as valid as a written contract, certain transaction requires a contract to be in writing. For example, a purchase and sale agreement of a house must be writing.
2. What makes a contract unenforceable?
A contract that lacks any of the essential elements above is considered unenforceable. In practice, a contract that seems binding on its face can also be challenged in various ways.
(a) When a party to a contract lacks capacity to understand the terms and consequences of the contract, the contract may be determined unenforceable.
(b) When a contract is a result of duress or undue influence, the contract may be determined unenforceable.
(c) When there is a misrepresentation made by one party that induced another to enter a contract, the contract may be determined unenforceable.
(d) When a contract is created for illegal purposes, or is contrary to sound public policy, the contract may be determined unenforceable.
3. Can an unsigned contract be enforceable against the named parties in the contract?
A signature is evidence that the parties intended to form a contract. However, a lack of signature does not automatically make a contract unenforceable. A court will consider whether the agreement between the parties has been reached, not whether a piece of the contract was signed. For example, the court can consider whether the parties have conducted themselves as per the unsigned contract in determining the existence of the binding contract.
4. Can I file a claim against individuals behind a company for the company’s breach of agreement?
A corporation is a separate legal entity. It is distinct and separate from its shareholders. As such, a corporation can enter into an agreement on its own and be bound by its own obligations, and as a general rule, shareholders do not incur liability for their corporation’s breach of its contractual obligations. In certain extraordinary circumstances, a court may disregard the separate legal personality of a corporation and allow a claim against individual shareholders of the corporation. Such circumstances generally arise where the corporation was used for fraudulent or illegitimate purposes.
E. CORPORATE COMMERCIAL AND BUSINESS LAW Questions And Answers
1. I want to start a business what steps should I take?
Business formation is a crucial first step towards running a successful business. You have to understand the goal of the business and how it suits your needs and purpose. The advantages and disadvantages of one type of business over another. There are several factors to consider when structuring your business. The common elements are liability issues, tax considerations, costs to establish, the number of members and profit distributions to name a few.
2. Do I need a lawyer to incorporate my business?
If you choose to incorporate your business without one, your corporation will be registered, however, you won’t receive legal advice and there’s a very good chance that important steps will be missed. If you need legal service you can click here to get across to us at [email protected].
3. Why should I incorporate my Business?
There are several features that are unique to a corporation which makes it the favored legal structure for many businesses. These include: Limited liability, perpetual existence, capital acquisition, tax advantage, credibility and prestige.
4. How can I choose a Corporation name?
Every corporation must have an acceptable name at the time of their incorporation because the corporation will then exercise its rights and carry out its obligations under this name. All corporate names must conform to various statutory requirements. The most common concern when trying to select a corporate name is that corporate name cannot be identical to or lead to confusion with another corporation or business already using an identical or similar name.
A corporate name is generally made up of 3 parts: Distinctive element; Descriptive element; and a legal ending.
The distinctive element of the name is the part that distinguishes the business in association with which it is used or intended to be used by its owners from other businesses or that is adapted to so distinguish them from other corporations i.e. what makes them different.
The descriptive element describes the main activities or type of business of the corporations.
The legal ending indicates that it is in fact a legal corporation and not just a business registration or partnership. You can choose from the following words: Incorporated, Limited and Corporation, or their respective abbreviations: Inc., Ltd. and Corp.
All corporations MUST have a distinctive element and a legal ending to their names. Some corporations choose not to have a descriptive element.
F. PERSONAL INJURY LAW Questions And Answers
1. What steps should I take If I am involved in a motor collision?
Do not voluntarily assume liability, take responsibility, or sign statements regarding fault, do not pay, or promise to pay, for damages at the scene of the collision, do not agree to forget about the collision, do not accept money or discuss any settlement.
Stop, if your vehicle is involved in a collision and you don’t stop, you may be subject to demerit points or criminal prosecution.
Call 911 If anyone is seriously injured, or If you suspect any other driver may be guilty of a Criminal Code offence, such as impaired driving, If the police come to the scene, ask for a copy of their report or the file number they have assigned to it.
Do not move anyone injured in the collision, you may aggravate their injuries. Do not stand in between 2 vehicles or behind the vehicle to inspect damage, as your safety could be jeopardized. If your vehicle is drivable, there are no serious injuries and the area is safe, move your vehicle to the side of the road, out of traffic. Failure to protect your vehicle from further damage after the incident, as far as reasonably possible, may limit the compensation provided by your insurance company.
However, in cases where there is a serious injury or a suspected impaired driver, vehicles need to remain where they are so the collision scene can be investigated. If your vehicle is not drivable, turn on your hazard lights, or use cones, warning triangles or flares. All passengers should get out of the vehicle and walk to a safe place if they are not seriously injured.
Report to the police
Report to the police in these circumstances:
- If anyone is injured
- If any driver does not have documentation such as a driver’s license, registration or insurance
- If one or more of the vehicles isn’t drivable
- If the total damage to all the vehicles and property appears to be more than $2,000 (as of January 1, 2011), you must go to a police station and file a Collision Report Form failure to do so could result in demerit points or a fine
- Note the file number the police have assigned to your report
- If the driver is incapable of making the report, a passenger should file the report, or the owner of the vehicle upon learning about the collision
- Exchange contact and insurance information. Collect contact, vehicle, and insurance information from other drivers. Use your smartphone to take photos or write down the information. Record: Driver’s license numbers, Drivers’ names and contact information, Policy numbers, License plate numbers and Names of the insurance companies.
- Get witness contact information: If you have a witness, ask for their contact information.
- Document the accident details: Take photos of all vehicles involved, note the weather conditions, and write down the events that led to the accident. You can use this information to fill out the police accident report.
- Notify your insurer
2. How long do I have to lay claims when I am injured in a car accident?
If you were involved in an accident, you should report it to police as soon as possible. If the damage exceeds $2,000 and the vehicle is drivable, you have 24 hours to file a report at your local police station. Failure to do so could result in a fine.
Depending on the details of your car insurance, you will have a certain time period to report a car accident to your insurer. Generally, you have 30 days.
3. Why should I file a Police Collision Report in Alberta?
Even though you are legally required to file a police report in many circumstances, it provides you with protection. It gives you an accurate record of events, protects you legally, proves fault, and protects you against fraud. Plus, you can rest easy knowing you did everything the right way.
4. Can I negotiate with the Insurance company without involving a lawyer?
You can settle minor personal injury claims without a lawyer. But when your injury is severe or becomes complicated, there is too much at stake. You do not have to face the insurance company alone and get a lawyer to help you. Click this link if you want us to be of help.
5. What If I was hit by a car without insurance or the driver flees the scene of the accident?
If you’ve been injured in a vehicle accident and the at-fault driver doesn’t have valid insurance or flees the scene, you may not have anyone to sue for your injuries. The Motor Vehicle Accident Claims Program (MVAC) provides you with a way to sue and get payment for your injuries. The goal of the program is to protect the victims injured by uninsured or unknown drivers by ensuring they have a place where they can sue and receive payment for their personal injuries. Due to the uninsured or unknown nature of the at-fault drivers, these victims would often not be able to claim any damages for their injuries otherwise.