Back to School: Banaszek Family Law explains section 7 extraordinary expenses

Although COVID-19 has created many uncertainties surrounding the “back to school” season in Alberta, one thing remains constant for many separated parents – confusion about section 7 expenses and how to divide them.

In today’s blog, Adrianna Banaszek explains which expenses are classified as section 7 expenses to ensure a smooth transition into a new school year for separated parents and their children:

What is a Section 7 Expense?

In Canada, there are two types of child support obligations: section 3 (base/table support) and section 7 child support (special and extraordinary expenses). If you would like to learn more about child support, read our blog titled: The Basics of Child Support.

The Federal Child Support Guidelines (the “Guidelines”) define “special or extraordinary expenses” as expenses that are:

• necessary because they are in the child’s best interests; and

• reasonable given the means of the parents and the child and in light of the family’s spending patterns before the separation.

This means that determining what will be included as a section 7 expense also depends on the lifestyle of the family before separation, along with the reasonableness of the expense incurred for the child given their needs. Every family and each child’s needs are unique, making the qualification of section 7 expenses circumstantial to some extent.

Special and extraordinary child-related expenses are governed by section 7 of the Guidelines, and are apportioned between separated parents based on each of their respective incomes (each party pays the expense in proportion to their guideline incomes). Section 7 expenses capture those expenses which exceed the ones the parent requesting the support can reasonably cover by section 3 child support (they are not the “every day” expenses).

Special expenses typically include post-secondary school or private school tuition, medical expenses, extracurricular expenses, child care expenses, and other child-related costs.

Considerations for sharing Section 7 Expenses

If the section 7 expenses are eligible to be processed through a health benefits plan, you must only share the outstanding out-of-pocket cost in proportion to your guideline incomes. To determine which amount of a section 7 expense is eligible for division between the parents, the court will take into account any subsidies, benefits or income tax deductions or credits relating to the expense, along with any ELIGIBILITY to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

If you believe that the other parent is inappropriately claiming a section 7 expense or requesting that you pay way more than you should be, contact our office to review your matter.

Does childcare qualify as a Section 7 Expense if I am not working?

The short answer is: NO. The Guidelines outline that childcare is classified as a section 7 expense if it is required as a result of a job, an illness, a disability, or educational requirements for employment if the child spends most of the time with that parent.

Need help calculating child support? Banaszek Family Law is here for you.

Still have questions or issues managing section 7 expenses? Banaszek Family Law is here to help you! During this time, all of our initial consultations are being scheduled as a telephone or video conference call at discounted rates.

Banaszek Family Law wants to see you and your children excel this school year! ●

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New Year, New Rules: Banaszek Family Law welcomes changes to Alberta's family law legislation

On January 1, 2020, Albertans welcomed a new decade along with dramatic changes to the laws regulating property division for separated unmarried couples. This legislative update is welcomed to Alberta alongside changes to the child support regime for adult children and an outdated Act being repealed.

Property division becomes less of a puzzle for unmarried couples

Unmarried couples finally have the same rights to property as their married counterparts. These changes are made possible by Bill 28, amending the Family Law Act in Alberta. Bill 28, (the Family Statutes Amendments Act, 2018) extends property division laws to include "Adult Interdependent Partners". Prior to 2020, there was no legislation in Alberta directing how property should be divided when unmarried couples broke up, resulting in uncertainty and costly legal battles. Alberta’s new legislation treats unmarried couples in the same manner as married couples after they have resided together for at least two (2) years.

In the recent past, unmarried couples in Alberta could not rely on legislation directing how property should be divided following the dissolution of the relationship. Instead, when unmarried couples separated in Alberta, they were forced to rely on (sometimes) obscure legal doctrines to divide any assets and debts that have accumulated or which resulted from the relationship. The legal doctrines the Court focused on included: resulting trusts, constructive trusts, unjust enrichment, and family law claims.

The ways in which the legal doctrines applied was often complex, affording Alberta’s judges vast discretion to make a decision on what is equitable. The nature of this process often left unmarried parties who became litigants unsure of their chances of success before walking into the Court room.

Married couples who separate rely on the Matrimonial Property Act, which very clearly outlines what the rights of each party are. All property accumulated during the relationship is divided equally (50/50) between the parties unless it meets one of the following exemptions:

1. Inheritance;

2. Damages one party received in a legal claim;

3. Gift from a third party;

4. Any increase in the value of exempt property is equitably divided between the spouses.

As a result of the changes to the Alberta Family Law Act, property division rules will now apply in Alberta to property acquired after a couple begins a relationship of interdependence whether they are married or not.

Do you want the new property division laws to apply to your situation?

If you are involved in a relationship of interdependence and would like to contract out of the new property division laws in Alberta, contact Banaszek Family Law for legal advice and to draft a Cohabitation Agreement to protect your property and rights.

Existing Agreements relating to property division which were enforceable under the law when they were signed will still be enforceable in 2020 and beyond, regardless of the amendments to the legislation.

Child support for adult children clarified in 2020

The new legislation has clarified the eligibility criteria for child support in the Family Law Act by:

• removing the age limit for adult child support;

• confirming that adult children who are unable to withdraw from their parents' care due to illness, disability, being a full-time student or "other cause" are to be eligible for a child support application; and

• aligning the Family Law Act with legislation in all other Canadian jurisdictions and the Divorce Act when it comes to adult child support.

These changes make it clear when an application for adult child support can be made, allowing the Court to determine the amount of child support (if any) that should be awarded if an agreement cannot be reached by the parties out of Court.

Married Women’s Act is repealed in 2020

If you thought that the title of this legislation and the contents of it were outdated, then you are on the same page as the Alberta Government. As the Canadian Charter of Rights and Freedoms already guarantees equality rights and the Family Law Act recognizes that married women have a legal personality independent from their spouse, the Married Women’s Act is no longer needed and has been repealed.

Additional changes across Canada in 2020

Federal laws related to divorce proceedings and family orders were amended with the passage of Bill C-78, with the majority of changes to the Divorce Act coming into effect on July 1, 2020. The Divorce Act applies to married couples who are divorcing. The Divorce Act is federal legislation, meaning that it applies across Canada. The changes include updated criteria to determine a child’s best interests in custody cases, and much needed measures to address family violence when making parenting arrangements.

Banaszek Family Law is here for you.

The legal landscape is always developing, which means that the legal counsel you trust should understand and adapt to all legislative and procedural changes. If you require independent legal advice with respect to your family law and/or divorce matter, contact Banaszek Family Law to schedule a consultation with Adrianna Banaszek, HERE.

Banaszek Family Law is here to assist you in 2020, and beyond ●

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The New Shape of Surrogacy: Banaszek Family Law explores emerging issues in fertility law

Surrogacy is a regulated and altruistic (reimbursement for expenses is only allowed) alternative for those experiencing difficulty or requiring assistance creating a family of their own. Surrogacy is an arrangement where a woman agrees to carry a baby for others, often being the only option for an infertile or same-sex couple to have their own genetically-related child.

Canadians experiencing infertility, same-sex couples and single parents are increasingly turning to assisted human reproduction (“AHR”) options, like surrogacy. This week, Adrianna Banaszek, founder and family lawyer at Banaszek Family Law, explores emerging issues relating to surrogacy in Canada:

Legislation governing assisted human reproduction in Canada

The Assisted Human Reproduction Act (“AHRA”) is Canada’s federal legislation that governs assisted reproduction procedures like surrogacy and human cloning, to name a few. There are several regulations associated with the AHRA. It is designed to protect and promote the health, safety, dignity, and rights of Canadians who use, or are born of, AHR technology.

Health Canada is responsible for developing policy and regulations under the AHRA, and for administering and enforcing the legislation and its’ regulations. The Government of Canada (Health Canada) outlines that the AHRA achieves this purpose by “setting out prohibited activities related to assisted human reproduction that may pose significant human health and safety risks to Canadians or that are deemed to be ethically unacceptable or incompatible with Canadian values.”

Can surrogates obtain payment? New changes coming JUNE 2020.

The current laws in Canada prohibit paying a surrogate mother for the act of carrying the child. NEW regulations from Health Canada will come into effect on June 9, 2020 in the form of the Reimbursement Related to Assisted Human Reproduction Regulations (the "Regulations”) to clarify what type of “payment” or reimbursement of expenses is legal in a surrogacy arrangement.

The inclusion of a comprehensive list of reimbursable expenses is a major development as the current legislation does not specify which particular expenses may be reimbursed. By clearly defining which expenses are reimbursable to a surrogate, the Regulations will reduce fears of being criminally sanctioned for offering an illegal type of payment to a surrogate or for the surrogate accepting same. Consequently, the ability to broadly interpret what constitutes a “reasonable” expense previously allowed parties more flexibility and autonomy in making fertility arrangements.

Reimbursable expenses relating to surrogacy

The following expenditures incurred by a surrogate mother in relation to the surrogacy MAY be reimbursed under subsection 12(1) of the Act: (as outlined in section 4 of the Regulations):

• (a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;

• (b) expenditures for the care of dependents or pets;

• (c) expenditures for counselling services;

• (d) expenditures for legal services and disbursements;

• (e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;

• (f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period;

• (g) expenditures for obtaining a written recommendation referred to in paragraph (f);

• (h) expenditures for the services of a midwife or doula (professional trained in childbirth);

• (i) expenditures for groceries, excluding non-food items;

• (j) expenditures for maternity clothes;

• (k) expenditures for telecommunications;

• (l) expenditures for prenatal exercise classes;

• (m) expenditures related to the delivery;

• (n) expenditures for health, disability, travel or life insurance coverage; and

• (o) expenditures for obtaining or confirming medical or other records.

The new Regulations take into account the various additional expenses associated with pregnancy. For example, with respect to the grocery reimbursement, Health Canada recognizes that a woman's overall health influences the health of her developing baby. The nutrient intake for pregnant women and women who are breastfeeding are generally greater than those of other women, which enables groceries to form part of the reasonable possible expenses for reimbursement.

As you can tell from the foregoing list, the Regulations will allow for pregnancy-related expenditures to be covered by the party enlisting the surrogate’s service. Health Canada is very clear in their Guidance Document that only a party who wishes to reimburse the legitimized expenses may do so, but that there is no obligation to reimburse a surrogate for the expenses they have incurred as a direct result of the pregnancy.

The perspectives on whether payment for surrogacy should be legalized vary across Canada. Some parties accept the current legislation and consider payment for surrogacy a slippery-slop which has the potential of making the process exploitative, while others believe that payment should be an option to acknowledge a woman’s right to choose how she uses her body.

Calgary fertility and surrogacy lawyer

This rapidly developing area of the law requires that your legal counsel understands the legislative and procedural changes. If you require a surrogacy agreement or independent legal advice on a fertility agreement or arrangement, contact Banaszek Family Law to schedule a consultation with Adrianna Banaszek, HERE.

Banaszek Family Law is here to assist you through the legal aspects of building your future ●

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The Basics of Spousal Support

This blog post is from the Banaszek Family Law’s “Family Law Basics” series. This blog series is meant to be a resource and provide some information regarding specific family law topics. These blog posts should not be taken as legal advice as most family law and divorce matters are circumstance-driven and require further analysis and advice from a legal professional. This week, Adrianna Banaszek, Calgary family and divorce lawyer, covers the basics of spousal support in Alberta:

Who is elibigle to claim support?

For married couples, spousal support is governed by the Divorce Act (federal legislation, meaning that it applies across Canada) and the Family Law Act (Alberta’s provincial legislation). Support for unmarried couples in Alberta is governed by the Family Law Act and the Adult Interdependent Relationships Act.

Under the federal Divorce Act, spousal support is most likely to be paid when there is a big difference between the spouses' incomes after they separate. NOTE: Just because one spouse earns significantly more income does not mean that their spouse will automatically be entitled to support payments. A court may decide that the spouse with the lower income is not entitled to support. The court may reach this decision if that spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the marriage or relationship to require financial wealth be distributed more evenly between the parties.

Unmarried couples may be eligible for support if they meet the threshold requirements to be considered “Adult Interdependent Partners” as defined in the Adult Interdependent Relationships Act . In Alberta, you are considered an “Adult Interdependent Partner” of another person if you have lived together in a relationship of interdependence (section 3 of the Act):

• for a continuous period of not less than 3 years, or

• of some permanence, if there is a child of the relationship by birth or adoption, or

• have entered into an adult interdependent partner agreement with the other person under section 7.

There are limited legal protections to guarantee financial support from your separated partner if you do not meet the threshold requirements of the legislation. At Banaszek Family Law, we suggest entering into a Cohabitation Agreement to either ensure that financial support is paid or waived upon separation if you do not wish for the current legislative framework to apply.

How is entitlement to spousal support determined?

Unlike child support, spousal support is not an automatic right of a party who earns less than their spouse when they separate. The federal and provincial legislation strive to compensate spouses who have suffered financially as a result of the marriage/relationship or due to its’ breakdown. Judges consider various factors in determining if a spouse should receive support after a divorce. Some of these factors include:

1. the financial means and needs of both spouses;

2. the length of the marriage;

3. the roles of each spouse during their marriage;

4. the effect of those roles and the breakdown of the marriage on both spouses' current financial positions;

5. the care of the children;

6. the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and

7. any orders, agreements or arrangements already made about spousal support.

Judges must also consider whether spousal support would meet the following purposes:

1. to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage;

2. to compensate the spouse with the lower income for ongoing care of children; or

3. to help a spouse who is in financial need if the other spouse has the ability to pay.

At the same time, the judge must consider that a spouse who receives support has an obligation to become self-supporting, where reasonable.

Types of spousal support entitlement

There are 3 categories of entitlement to spousal support: compensatory, non-compensatory and contractual (Moge v Moge; Bracklow v Bracklow). Compensatory spousal support is based on an economic disadvantage caused by the marriage to one of the spouses. Non-compensatory is needs-based support. The non-compensatory category acknowledges that married couples often become economically interdependent, and require financial support from the other to continue to meet their basic needs following separation. Contractual spousal support is agreed to by way of contract between the spouses.

Try this FREE spousal support calculator to obtain a general estimate of spousal support entitlement based on the duration of your relationship and each parties’ respective incomes. The Spousal Support Advisory Guidelines are not law but suggest appropriate ranges of support in a variety of situations for spouses entitled to support. The Guidelines are taken into account by lawyers in support negotiations and judges in making decisions about spousal support quantum and duration.

At Banaszek Family Law, we suggest you meet with a family lawyer to obtain independent legal advice as there are many factors which must be considered in confirming your spousal support obligations and potential entitlement to claim a particular amount (and length) of support following your separation from your spouse.

How does child support affect spousal support?

If either spouse is paying child support, the judge must also determine how a requirement to pay spousal support would affect child support payments. The Divorce Act clearly states that a judge must give priority to child support when a person applies for both child and spousal support. Both parents have an obligation to support their children.

To learn more about child support in Alberta, read our blog post: The Basics of Child Support.

How can I collect spousal support?

The Maintenance Enforcement Program (“MEP”) is a Government of Alberta program which collects court-ordered child support, spousal and partner support, and takes care of enforcement as needed. MEP is a free service which allows either the payor or the recipient of support to register the spousal support order. Introducing MEP into the mix may help reduce tensions for parties as the accounting and enforcement of financial matters is outsourced.

If you have a court order, you can register your order with MEP here. If you require assistance obtaining a court order for spousal support (whether it is a litigious situation or an amicable one which would be accomplished by consent of both parties) contact Banaszek Family Law to learn how we can assist you.

Need help calculating or obtaining spousal support? Banaszek Family Law is here for you.

A great free resource to assist you in understanding the process and documents required to vary spousal or partner support is found at the Government of Alberta website.

We highly suggest entering into a cohabitation agreement or prenuptial/postnuptial agreement to ensure that support obligations are either waived or secured in the event of a separation or divorce (depending on your desired outcome). To gain a better understanding of how a marriage or cohabitation agreement may be beneficial to you, read our blog: Prenups are for Lovers.

At Banaszek Family Law, we offer flat rate Spousal Support Analysis to provide you with a better understanding of what your support obligations or entitlement may be. Banaszek Family Law also offers independent legal advice and full representation with respect to spousal support matters in both Alberta and British Columbia. Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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The Basics of Child Support

Banaszek Family Law explains how Alberta’s and Canada’s child support regimes strive to create financial equality in the households of separated parents to benefit children:

Child support is a legal right of every child, which is safeguarded by the Alberta and Canadian legal systems. Children of intact families benefit from both parents' incomes, and that should not change if their parents separate or divorce. Child support is meant to equalize the financial situations in both households to ensure that the child is receiving the full benefit of both incomes as it is the duty of both parents to financially provide for their children.

Types of child support

In Canada, there are two types of child support obligations: section 3 (base/table support) and section 7 (special and extraordinary expenses) support. Section 3 child support is what most people are familiar with. It is the monthly support payment that rappers explain is a hassle, and something that you must pay until the child is “18 years old”. If your child support education is purely based on references from pop culture, please continue reading this blog post…

Unless otherwise provided under the Federal Child Support Guidelines (the “Guidelines”), the amount of section 3 support is the amount set out in the applicable table for the province, the amount of children for which the support is required, and the income of the parent against whom the order is sought.

Special and extraordinary child-related expenses are governed by section 7 of the Guidelines, and are apportioned between separated parents based on each of their respective incomes (each party pays the expense in proportion to their incomes). Section 7 expenses capture those expenses which exceed the ones the parent requesting the support can reasonably cover (they are not the “every day” expenses). Special expenses may include tuition, medical expenses, extracurricular expenses, child care expenses, and other child-related costs.

NOTE: If the section 7 expenses are eligible to be processed through a health benefits plan, you must only share the outstanding out-of-pocket cost as the section 7 expense. in determining the amount of a section 7 expense, the court will take into account any subsidies, benefits or income tax deductions or credits relating to the expense, along with any ELIGIBILITY to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

How do I calculate child support? (Disclaimer: It’s not always easy math)

Your eligibility to pay or receive child support and the recommended amount payable are determined by federal and provincial guidelines as well as specific rules and formulas. Many factors come into play when determining child support in Alberta.

Guideline Incomes

Child support payments are impacted by how the parties earn income. If a party earns income through self-employment, if they hold substantial investments or trust interests, their “guideline income” (total annual income used to calculate child support) will not be as clear cut as an employee of an at arms-length business or institution.

Guideline incomes may be imputed by a court if the total income the parent is claiming is not appropriate for the circumstances. Some circumstances (and there are many more than listed below!) where imputation of guideline income may be reasonable, include:

• when a party is intentionally under-employed or unemployed;

• when a party resides in a country that has effective rates of income tax that are significantly lower than those in Canada;

• it appears that the party’s income has been diverted which would affect the level of child support to be determined under the Guidelines;

• the party’s property is not reasonably utilized to generate income;

• the party has failed to provide income information when under a legal obligation to do so (AKA: We can’t figure out the party’s total income so we need to produce evidence and make arguments for why that party’s income should be imputed to a certain amount);

• the party unreasonably deducts expenses from income (this can become relevant when a party is self-employed); and

• the party derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

Parenting Arrangement

Child support payments can also be affected by the type of child custody or guardianship arrangements in place. "Shared parenting” applies where both parents each have at least 40% of total parenting time. In shared parenting arrangements, child support is sometimes “set off” by each party’s table child support amount, with the difference of child support being paid to the lower income-earning parent. In a shared parenting arrangement, child support is sometimes reduced to take into account the potentially increased costs of a shared parenting arrangement. The court will also take into account the conditions, means, needs and other circumstances of each party and of the child for whom support is sought before deviating from the applicable table support.

There is a FREE child support calculator available online which can help you obtain a general estimate of your monthly section 3 child support payments.

More factors to consider…

There are many other factors (than listed above) which should be considered in confirming a parent’s child support obligations. For example, just because a “child” has reached the age of majority (18 years old in Alberta) does not mean that they are no longer a “child” for the purposes of calculating child support. Child support may continue to be owed (to the other parent or to the child directly) if they are over the age of majority but are unable, due to illness, disability or other cause, to withdraw from their parents’ charge or to obtain the necessaries of life on their own. This may include a child who continues to rely on their parents for financial support while attending post-secondary education.

If you are a payor of support and you earn income in excess of $150,000, the Court may stray away from applying the Guidelines as the children’s needs are taken care of with support that does not correspond with the total income earned. Alberta courts will consider the amount of child support that is appropriate for the child, taking into account the circumstances of the child who is entitled to the support.

A party who stands in the place of a parent for a child ("in loco parentis”) may also have a child support obligation for the child if he/she separates from the child’s other parent. Meet with a family lawyer to confirm whether you are standing in the place of a parent for a child.

At Banaszek Family Law, we suggest you meet with a family lawyer to obtain independent legal advice as there are many factors which must be considered to confirm your child support obligations and entitlement to claim a particular amount of support for the children.

What is MEP?

The Maintenance Enforcement Program (“MEP”) is a Government of Alberta program which collects court-ordered child support, spousal and partner support, and takes care of enforcement as needed. MEP is a free service which allows either the payor or the recipient of support to register the child support order. Introducing MEP into the mix may help reduce tensions for parties as the accounting and enforcement of money matters are outsourced.

If you have a court order, you can register your order with MEP here. If you require assistance obtaining a court order for child support (whether it is a litigious situation or an amicable one which would be accomplished by consent of both parties) contact Banaszek Family Law to learn how we can assist you.

Need help calculating child support? Banaszek Family Law is here for you.

At Banaszek Family Law, we offer flat rate Child Support Analysis to provide you with a better understanding of what your support obligations are and to confirm the amount of support your children are entitled to.

Banaszek Family Law also offers independent legal advice and full representation with respect to child support and parenting matters in both Alberta and British Columbia. Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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Legal Coaching: Banaszek Family Law offers legal support that fits your needs

At Banaszek Family Law, we understand that retaining a lawyer to represent you in your family law or divorce matter can be an unexpected and costly expense. We also understand that no one else knows your family law matter and family dynamic better than you do, so self-representing may be the most effective option.

To help alleviate the financial burden and to provide clients with the amount of legal support they require, Banaszek Family Law is proud to offer legal coaching and unbundled legal services to better serve Albertan and British Columbian family law clients.  

What is legal coaching?

An increasing amount of family law litigants find themselves stuck between being unable to afford a lawyer and not qualifying for Legal Aid services. Many people who want to (or need to) self-represent in their family law proceeding can also obtain assistance from a family lawyer to ensure that the documents they are filing are completed adequately, to gain a better understanding of the court process, or to prepare for and feel confident about attending at court, mediation, arbitration or Questioning (Discovery) on their own.

Legal coaching, often called “unbundled legal services”, gives clients the control and convenience of contacting a lawyer at their discretion to obtain assistance. With legal coaching, the client receives the advice and support on any discrete aspect of their family law case. The resulting legal bill can therefore be significantly reduced as the client is only paying for the assistance they requested along the way.

If you are a legal coaching client, the firm and lawyer you have hired will not be on the Court record as your counsel. This means that you would represent yourself in court and receive all correspondence and court documents from the opposing party, the opposing counsel or the court, directly. It would be your responsibility to contact Adrianna Banaszek to request specific assistance at any step in the proceedings.

As a legal coach, Adrianna Banaszek works in the background to assist you. Legal coaching clients can contact Banaszek Family Law to obtain legal advice like a fully retained client would, but taking next steps in your matter would be your responsibility. It is essentially a dial-a-lawyer legal service option, but the lawyer picking up the call or responding to your emails understands where you are in the legal process so that you are receiving efficient advice.

Am I married to one type of representation?

Family law and divorce proceedings are unique and dynamic. If you enter into a legal coaching relationship, you are not stuck with it if you crave more support and wish to have full legal representation. On the other hand, you may need to reduce the level of representation received from your counsel, which is why we understand that sometimes full representation will turn into a legal coaching relationship. The type of legal services required to serve you best may change as your case evolves, and Adrianna Banaszek is prepared to adapt to your situation.  

It is recommended that you first meet with a family lawyer practicing in the jurisdiction in which your family law matter is located before making a decision about the level of legal support you wish to obtain. Adrianna Banaszek practices family law in both Alberta and British Columbia.

Contact Banaszek Family Law to learn more about the legal services we offer to fit your needs. Make the next move by booking an initial consultation today, HERE ●

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Some Diamonds are NOT Forever: Who keeps the ring when an engagement is called off?

This week’s news is buzzing with Jennifer Lopez’s million-dollar engagement ring. After seeing J.Lo’s left hand droop under the weight of the diamond, even the most hopeless of romantics are left wondering: who gets to keep the iceberg ring if the relationship falls apart before the wedding?

Albertans who have called their engagement off (or who are contemplating it) may also be questioning if an engagement ring is treated like a traditional gift, or if it is possible for the giver to recover it when nuptials do not follow the proposal.

Alberta Law on Engagement Ring Returns

The general rule is that where an engagement is broken, the engagement ring must be returned to the person who “gifted” the ring because the condition of getting married was not fulfilled. Alberta Courts view engagement rings as “conditional gifts” because they are usually given on the condition that the parties will say their “I do’s”.

It is irrelevant who caused the break-up in determining the right of the giver to recover the gift. Unlike many Canadian provinces, Alberta has legislation which specifically outlines that if a person makes a gift to another “in contemplation of or conditional on their marriage” and if the marriage does not take place, fault will not be considered in determining who has the right to recover the gift (Family Law Act, s. 102). In short, the blameworthy party is not precluded from recovering the engagement ring.

After a couple marries, the condition on the gift is fulfilled and the engagement ring is owned by the person who received it. In the event of divorce, the giver will have a difficult time arguing that they should be able to recover the ring and it is unlikely that they will be successful. The expectation is that the couple will marry, not remain married indefinitely for the ring to remain with the receiver.  

Exceptions to the General Rule

In a recent Alberta Court of Queen’s Bench case, Bhachu v Brown, 2019 ABQB 150, Justice M.J. Lema found that the engagement ring should be kept by the party who received it, even though the condition of entering into a marital union did not take place. In Bhachu, the Judge found that the Defendant was entitled to keep the ring because of “the long period (five years) during which the parties were engaged with no evidence of concrete steps towards marriage” and he took into consideration that both parties gifted rings to each other (Bhachu, para 149).

The Court will look at the intention of the proposing party and whether there is any evidence which would confirm that the giver intended for the engagement ring to be kept even if the couple does not marry. If the proposer’s actions before or after separation show that the recipient should keep the engagement ring even if the parties do not wed, it is viewed as an “absolute gift” by the Court. Delay in requesting the ring back will be an indication that it was intended as a gift without any restrictions, and meant to be kept by the person who received it indefinitely.

Obtain Independent Legal Advice to Protect Your Interests

Couples can ensure the engagement ring, or any other asset, is protected in the event of relationship breakdown by entering into a cohabitation or marriage agreement. Couples may also enter into an agreement after they have married (a “post-nup”). Banaszek Family Law offers flat rates for these types of uncontested agreements.

You may require further legal advice on property division and adult interdependent partner support if you and your partner were in a common law relationship before separating. To help ensure that there are no doubts about who will keep the engagement ring or any other assets in your relationship before or after the marriage, consult with a family lawyer in your jurisdiction. Schedule an initial consultation with Adrianna Banaszek to find out how you can legally protect yourself and your assets, regardless of their monetary value ●

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