Virtual Consultations: Banaszek Family Law prepares you for success

Our lives have changed drastically because of COVID-19. It is our goal at Banaszek Family Law to ensure the quality of legal services you receive remains consistent during this uncertain time.

Out of an abundance of caution and to ensure that we are doing our part to limit the spread of COVID-19, all of our initial consultations continue to be conducted remotely as a telephone or video conference call.

Working up the courage to attend at an initial consultation with a family and divorce lawyer is a hurdle for many people to overcome. Many people believe that they must be prepared to walk away from their relationship, or endure protracted litigation if they are scheduling a meeting with a lawyer. THIS DOES NOT HAVE TO BE THE CASE! An initial consultation is a great step to take to become educated on the rights and obligations associated with your relationship and its’ breakdown.

What is an initial consultation?

At Banaszek Family Law, initial consultations provide clients the opportunity to ask questions about their family law and divorce matter. The lawyer’s job is explain the legal framework and the available options to move towards a resolution. Some clients wish to use their initial consultation as an opportunity to obtain independent legal advice about a discrete issue so that they may confidently take steps as a self-represented litigant. Initial consultations are also an opportunity for clients to interview lawyers before retaining them. The initial consultation should provide the client with insights into the lawyer’s ability to communicate confusing concepts in an understandable manner, and confirm if the lawyer is the right fit as a legal representative in a very personal matter.

The meeting with the lawyer is completely confidential - this means that the lawyer cannot share anything about the conversation you have with anyone else, unless it would be valuable to do so and permission from the client is first obtained. The lawyer is also precluded from representing your spouse/the opposing party in the future, so there is no reason to worry about the private information you are divulging being used against you in any manner. Whatever your desired purpose for the initial consultation, it is important that you come prepared to ensure that you receive all the benefits of this valuable meeting.

Preparing for your VIRTUAL initial consultation with Banaszek Family Law

We invite you to review Banaszek Family Law’s helpful tips to prepare for your first VIRTUAL consultation with a family lawyer:

TIP 1: COMPLETE THE INITIAL CONSULTATION FORM

For starters, complete and email back a scanned copy or photograph of the Initial Consultation Form before your consultation. The From will be emailed to you once your consultation is scheduled with Banaszek Family Law. The Initial Consultation Form allows you to provide details about the parties involved and a description of your matter in advance of meeting with the lawyer. Jot down some of the questions you would like to have answered by the family lawyer – this will provide the lawyer with a heads-up of issues which should be prioritized so that they can better structure your consultation and take advantage of the scheduled time.

There have been occasions where the Initial Consultation Form has confirmed that the client’s legal issue is not of a family law or divorce nature, allowing us to redirect the client to another lawyer in the appropriate practice area. This saves you time and money.

TIP 2: PREPARE YOUR DOCUMENTS (and EMAIL THEM TO US!)

You should email the following documents and items to our office prior to your scheduled initial consultation:

• Your government-issued photo identification – the Law Society of Alberta require that the lawyer takes steps to verify the identity of the client, especially if we are meeting you over the phone or video conference. We will keep a scanned copy of your photo ID on file.

• Filed Court documents – these documents will alert the lawyer of any upcoming Court dates or filing deadlines. Reviewing filed Court documents will also provide the lawyer with a better understanding of the opposing party’s position so that a comprehensive strategy that meets your needs can be prepared and discussed.

• Your notes and any questions you may have (check out TIP 3 below). The initial consultation will go by very quickly and we want to make sure that most of your questions are canvassed, so it is best to not leave it up to memory.

• A notepad and pen - it may be helpful to note useful resources or information explained during the consultation. You may also wish to take notes on your computer during the consultation.

TIP 3: WRITE DOWN YOUR QUESTIONS

Jot down some of the questions you would like to have answered by the family lawyer in advance of your video or telephone consultation, and have them readily available during the consultation. You will likely think up many questions you would like answered in the days (or hours) leading up to your consultation. Your list of questions will guide the consultation and increase the productivity of the meeting. The initial consultation goes by quickly and we want to make sure that most of your questions are canvassed, so don’t leave it all up to memory!

TIP 4: KNOW THE HISTORY

Be prepared to outline a history of your litigation or a general overview of what has occurred since your separation/conflict arose, if relevant. For example, what has the parenting arrangement looked like since separation? How were the finances organized in the household during the marriage and after separation? If you are prepared to explain your situation, the consultation will run more smoothly and you will gain more out of the process.

TIP 5: LOG IN ON TIME

This tip is a sign of the times we are living in. Instead of traveling downtown, searching for a parking spot, and finding our office at the TD Canada Trust Tower, you can have your initial consultation from the comfort of your home. But, this still requires some preparation to ensure that your technology is queued up and ready to perform. Make sure that your camera and microphone is working on your computer, or let us know if you prefer to have the consultation over the phone instead.

Once your initial consultation is scheduled, we will send you a video conference email invite through Microsoft Teams. You will be able to run the application through your Web browser. It is important that you log into Microsoft Teams on time so that you are calm, collected and can take advantage of the entire time scheduled. We understand that technology quits on us sometimes, and if that ends up happening to you, give us a call right away and we will reschedule or complete the consultation over the phone. We guarantee that there is an hour blocked off for your virtual consultation.

Disclaimer: Initial consultations should be MORE than a sales pitch 

If a lawyer only uses the initial consultation as a sales pitch and promises you the ‘moon and the stars’ but does not provide you with any valuable, concrete information, be wary of their ability to represent you. You should be comfortable with the family lawyer you hire because they will be representing your interests during what is usually a highly emotional and stressful time in your life.

Use the initial consultation as a time to interview your potential new lawyer – remember, it’s a two-way relationship. The lawyer must understand your perspective, goals, legal and emotional budget. They must also be able to communicate complex legal issues in an understandable manner. The lawyer should be able to explain what they can do and what their limitations are (whether that be time constraints or general litigation constraints).

At Banaszek Family Law, we want to make sure that your virtual initial consultation is productive and that you receive the necessary information to take next steps on your own, or understand what our involvement in your legal matter looks like if you wish to retain our services. The initial consultation is your chance to interview your future family lawyer and confirm that the relationship is a good fit.

You are one click away from taking control of your life and finding answers to your family law and divorce questions. Make the next move by scheduling your virtual initial consultation with Adrianna Banaszek today, by clicking HERE ●

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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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Child Support in the Wake of COVID-19: Banaszek Family Law explains your legal rights and obligations

In the wake of COVID-19, the financial stability of many Canadian parents is threatened. More than 3 million Canadians have applied for jobless benefits and emergency income aid with the federal government since mid-March. In the midst of all the financial uncertainty, many parents are wondering what their legal obligations are to pay child support pursuant to a Court Order which was made in a more favorable economic climate.

Banaszek Family Law explains the paying parent’s obligations during this challenging time and the rights of the recipient parent who relies on support to ensure the children’s needs are met:

Varying child support during the COVID-19 pandemic

Among Canadians, Albertans are overwhelmingly experiencing the negative financial effects resulting from the COVID-19 outbreak. At the beginning of April 2020, Calgary’s unemployment rate was the highest in the country. Alberta’s energy sector is especially impacted as a result of COVID-19 and the oil price war, dimming the prospects of global oil demand. Oil prices have taken the biggest plunge in decades, creating further uncertainty and financial stress. This stress is spilling over into financial obligations, like child and/or spousal support payments for many Albertans.

The Federal Child Support Guidelines make it very clear that children should benefit from the income of both parents. When parents lose their jobs or their income is reduced, their ability to continue paying child support at a previously Court-ordered or agreed to amount is no longer financially feasible.

Under regular circumstances (pre-COVID-19), when a parent experiences a loss of income, they are responsible for obtaining a new judgment (a Variation Order) from the Court before the Maintenance Enforcement Program of Alberta (MEP) will change the amount they collect.

If you would like to learn more about child support and the role of the Maintenance Enforcement Program, read our blog post here: The Basics of Child Support.

A variation in child support or spousal support is permitted under the Family Law Act (Alberta - provincial legislation) and the Divorce Act (Canada - federal legislation). The Court may consider changing a child support Order if there was a change in circumstances experienced since the previous Order was made. These circumstances include a change in any of the following:

• the number of children who are dependent on the parties;

• employment that results in a long-term change in income;

• special or extraordinary Section 7 expenses incurred for the children; and

• the access costs for visits between the parties and their children.

The Court may also consider the payor’s ability to make the current payments, or other factors based on legislation the Order was made under.

Note: If the parties entered into a separation agreement, the agreement may limit how and when a variation may occur. Provide your separation agreement to your lawyer at the initial consultation so that they may review it and provide you with accurate legal advice.

MEP’s role during the pandemic

Without a Variation Order, MEP will continue to enforce the Court Order currently registered with them. MEP does not have the same jurisdiction to make changes to child support as the Court. With access to the Courts being reduced during this time, the ability to bring a claim to vary support promptly is impacted.

MEP recognizes the hardship experienced by many payor parents as a result of COVID-19 and reduced access to the Courts. The Law Society of Alberta has recently released the following statement:

The Maintenance Enforcement Program (MEP) recognises COVID-19 may impact a payors’ ability to meet their court ordered child support obligations. Similarly, it is recognised recipients are also impacted by COVID-19, and still have monthly obligations for the child(ren). Therefore payors making no payment is not an option.

To assist payors, the MEP will offer a temporary payment arrangement for less than the ordered amount or a temporary decrease in their current payment arrangement. This applies to payors contacting MEP looking for assistance during the pandemic due to loss of income as a result of COVID-19 diagnosis, self-isolation, loss of job (or reduced hours) or impact of childcare/school closure. Assistance to these payors will be temporary, and it is the responsibility of these payors to keep in touch with MEP month-to-month.

If you have experienced a change to your financial situation as a result of COVID-19, you should contacted your MEP case officer immediately to arrange for a payment plan and receive further information. Banaszek Family Law assists clients requiring legal support during this time. We can assist you with negotiating a new child support order or agreement, or setting up an interim payment plan with MEP to assist you financially until the Courts reopen or your economic situation changes.

Banaszek Family Law is here for you

If you require independent legal advice with respect to your family law and/or divorce matter, contact Banaszek Family Law to schedule a telephone consultation with Adrianna Banaszek, HERE. We are pleased to continue offering a discounted rate during May 2020 for telephone consultations.

Banaszek Family Law is here to assist you with your child support matter during this unprecedented time●

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn for more updates on how COVID-19 is impacting family law issues.

Co-Parenting During a Global Pandemic: Banaszek Family Law explains your legal rights and responsibilities

Parenting with an ex-partner can be an exhausting undertaking, fraught with stress if the parents do not communicate effectively or cooperate with each other. Co-parenting has become even more challenging for some since the outbreak of COVID-19. Canadian courts are weighing the potential threat of COVID-19 compromising a child’s health against depriving access to both parents.

Banaszek Family Law explains your custody rights and responsibilities during this time when tensions are high and access to the Courts is limited:

Can parenting time be restricted because of COVID-19?

Most Canadians are practicing social distancing to do their part to flatten the curve and contain the virus’ spread, leading some parents to wonder if it is "safe” or appropriate to share custody during this time. We are turning to health authorities and the Courts to understand what parenting rights and responsibilities are during this unprecedented time.

Alberta’s Chief Medical Officer of Health, Dr. Deena Hinshaw, has clarified that the current social distancing restrictions do not mean that “parents or children would need to choose which household they stay in” and restrict parenting time as a result. Dr. Hinshaw has also stated that parents should do their best to contain the number of people their families are in contact with.

Courts across Canada are being flooded with urgent parenting disputes and deciding whether the introduction of harm caused by COVID-19 contact or spread to the children is an element worthy of breaching a parenting arrangement.

In a recent BC parenting dispute heard by the Provincial Court, the father restricted the mother’s parenting time because she is a health care worker who treated a patient diagnosed with COVID-19. The father also continued to work on site projects for his demolition company with some restrictions. The Judge found that parenting time should be reinstated for the mother as she mitigated her risk of contracting COVID-19 and the risk is not escalated to the point that the child should be deprived of parenting time with her.

The Judge based his decision on what is in the best interests of the child during the pandemic and weighed the following relevant factors in coming to the decision:

• Whether the child is at an elevated risk of suffering the more severe consequences of the virus;

• Whether either party, or those in their household are at an elevated risk of suffering the more severe consequences of the virus;

• Each party’s exposure to the risk of contracting the virus;

• Steps taken by each party to mitigate the risk of exposure;

• All of the relevant factors listed in the BC Family Law Act, including:

  • The child’s health and emotional well-being;

  • The child’s views, where appropriate (depending on age and maturity);

  • The child’s relationship with each parent;

  • The history of the child’s care;

  • The child’s need for stability, given his age and stage of development;

  • Each parent’s ability to exercise his or her parental responsibilities;

  • The ability of each party to cooperate in parenting the child; and

  • In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.

Can I litigate my parenting matter during the pandemic?

Access to the Alberta Courts is being restricted in an effort to reduce the spread of COVID-19. The Alberta Court of Queen’s Bench and the Provincial Court of Alberta is only hearing urgent or emergency matters until further notice.

Emergency matters are being classified as matters of the highest priority, requiring immediate attention. The Alberta Courts consider emergency matters as ones in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order. For family law matters, these include:

• Orders where there is a risk of violence or immediate harm to one of the parties or a child;

• Orders where there is a risk of removal of a child from the jurisdiction; and

• Emergency Protection Order reviews.

If you believe that you are being denied parenting time unreasonably or if you believe that your children are at risk of contracting COVID-19 due to the parenting arrangement in place, contact Banaszek Family Law to set up an initial telephone consultation today by completing the online intake form. Upon submitting a consultation request, you will be contacted to schedule your initial consultation promptly.

Before an urgent matter is heard by the Court, the party claiming urgency must provide specific evidence or examples of parental behaviour that creates a level of urgency. The responding party must also assure the Court that the concern is unwarranted. There is an onus on both parents to act responsibility and attempt to problem-solve before initiating urgent court proceedings.

In a recent Ontario family decision, the mother in a joint custody arrangement applied to have the court hear her application on an urgent basis to deny the father access to the child because of the threat of COVID-19. This application was denied by the Judge, finding that it was not of an urgent nature.

Justice Pazaratz found that vague concerns about the other parent not exercising social distancing did not meet the high test of urgency.  He found that parents “…should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.”  This case is currently the leading Ontario case on urgency for custody and access issues during the pandemic and sets a precedent which judges across the country will consider.

Banaszek Family Law is here for you

As we experience an unprecedented global shift as a result of the novel coronavirus, the legal landscape is changing and adapting. The legal counsel you retain should understand the impact this state of emergency has on your legal rights and obligations as a parent.

Banaszek Family Law continues to operate during this time with measures in place to protect our community. To ensure that we are doing our part to flatten the curve, we are practicing social distancing and all client meetings are taking place over the phone or by video conference.

At an initial consultation with Banaszek Family Law, you will receive independent legal advice to decide whether your custody dispute qualifies as urgent enough to litigate during this time. If your matter requires immediate resolution but it is not urgent enough to be heard by the Courts in Alberta, there are other dispute resolution options which may be employed.

If you require independent legal advice with respect to your family law and/or divorce matter, contact Banaszek Family Law to schedule a telephone consultation with Adrianna Banaszek, HERE. We are pleased to offer a discounted rate during April 2020 for telephone consultations.

Banaszek Family Law is here to assist you with your parenting matter during this unprecedented time ●

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn for more updates on how COVID-19 is impacting family law issues.

Banaszek Family Law serves Albertans during the COVID-19 pandemic

We are living in unprecedented times. The World Health Organization has declared the novel coronavirus outbreak a global pandemic. We are finishing out March 2020 with 754,948 confirmed cases and 36,571 lives claimed by the coronavirus disease (COVID-19) worldwide. The virus has spread to every continent, except for the land of barren ice: Antarctica.

In a time of escalating uncertainty, Banaszek Family Law continues to serve Albertans with preventative measures in place to protect our community. Since the City of Calgary declared a local state of emergency on March 15, 2020, Banaszek Family Law has been conducting all client meetings over the phone or by video conference. All Court documents will be fax-filed to reduce traffic at the Calgary Courts Centre and all Court registries throughout the province. We will continue to limit in-person interactions for as long as public health officials advise that social distancing is required to ensure we are doing our part to flatten the curve.

Where matters are urgent or requiring immediate resolution, Albertans can continue to rely on Banaszek Family Law and our justice system to serve and protect their interests. In the latest Alberta Courts announcement, access to all courthouses in the province of Alberta is being restricted until further notice. Currently, only emergency or urgent matters are being heard by Alberta Courts. Emergency matters are those in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order. If you are currently experiencing a family law matter which you believe to be of an urgent nature, contact Banaszek Family Law immediately to seek legal advice.

Banaszek Family Law is here to assist you during the pandemic as we believe that your family law matter does not need to be stalled or put on hold during these uncertain times even if it is not of an urgent nature. Although access to the Courts is limited right now, litigation should never be the only method to finalize a family law dispute. More than ever before, alternate dispute resolution options should be considered and employed before litigation. Throughout Alberta, qualified mediators and arbitrators continue to offer their private services remotely, and negotiations and settlements between counsel and parties can still be accomplished without a scheduled Court appearance.

Although we are distancing from our downtown Calgary office at this time, Banaszek Family Law’s contact information remains the same. We can be reached by telephone directly at: 587-390-8548. To book an initial telephone consultation or obtain independent legal advice, please complete the consultation request form HERE.

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn to receive updates on how COVID-19 is impacting family law issues.

We wish our readers and clients good health ●

Happy Anniversary: Banaszek Family Law turns ONE

Banaszek Family Law is celebrating ONE YEAR of resolving family law and divorce matters for clients throughout Alberta! We are proud to announce this momentous milestone, reflect on the past year and look toward the future as Banaszek Family Law continues to grow.

A message from Adrianna Banaszek, Founder of Banaszek Family Law

I opened Banaszek Family Law in Calgary’s downtown core a year ago with a focus on providing quality, client-centered family law services to my clients, while recognizing that they often seek my representation during the most overwhelming time in their lives. Banaszek Family Law is fueled by my passion to help clients find peace of mind, my understanding that legal services must adapt to client needs, and my focus on seeking out creative and efficient conflict resolution options.

I owe a great deal of my success to the supportive Calgary community. Our City is a fabulous place for dreamers, entrepreneurs, students, nature enthusiasts and families. I am thankful for the support I have received to turn my dream into a business I am proud to call my own. I could not imagine a better city to build a client-centered firm and call home.

Thank you for all of your support in our first year of business, and as we continue to build a strong foundation to assist more Albertan families with their legal needs.

Looking toward the future

In Year Two, Banaszek Family Law is excited to announce that more alternative dispute resolution options will be added to the roster of legal services offered. We are always looking for new ways to provide ‘family law services that fit your needs’, including alternatives to full legal representation. Banaszek Family Law currently offers legal representation for most family law matters, including child and spousal support, child custody and access matters, matrimonial and family property division, fertility law, separation and divorce.

Along with full representation, we offer legal coaching and unbundled legal services for self-represented litigants, flat rates for uncontested matters, and independent legal advice. We are a specialized firm, prepared to tackle your legal matters.

Banaszek Family Law is here to assist you as we grow ●

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn for all of your family law information and updates on our growth in Year Two!

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.

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