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 ●

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn for more updates on family law issues.

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.

PROVIDE, DON'T HIDE: Banaszek Family Law explains disclosure in Alberta family law matters

“Non-disclosure of assets is the cancer of matrimonial property litigation” (Cunha v Cunha).

Many individuals resist providing complete financial disclosure in their family law and divorce proceedings, which invariably increases delays and sparks the potential for excessive litigation. During the financial disclosure exchange process, some parties feel that documents being requested from them are private and should not be shared. Some parties may feel that the opposing party (or their lawyer) is trying to gain the upper-hand by exploring every aspect of their financial situation. Talk about feeling exposed!

The “hiding” or “withholding” of disclosure by one spouse, or the perception that the spouse is avoiding full disclosure, is likely rooted in mistrust. These issues tend to be heightened in situations where one party did not have much control of the family assets or financial matters during the marriage or relationship.

Banaszek Family Law helps clients understand which documents they must produce to ensure efficient resolution of their legal matter. The legal guidance of an Alberta family lawyer will help reduce feelings of mistrust and ensure you are only producing the necessary documents to the other side. We are prepared to guide you through the confusing, but critical, process of disclosure exchange. 

I was served with a Notice to Disclose - NOW WHAT?

What is a Notice to Disclose application?

The Notice to Disclose is an Alberta Court application that compels the production of necessary financial documents within a specified period of time, being within 30 days of the filed document being served on you. Some of the information/documents which must be produced include the following:

• income verification documents (tax returns, notices of assessment, pay statements, financial statements for parties who are self-employed in an unincorporated business, where applicable);

• confirmation of all partnership and trust interests, assets and liabilities held in your name (Schedule A, bank statements, credit card statements, statements for all investment interests);

• list of exemptions of assets claimed, where applicable;

• list of special and extraordinary expenses claimed with supporting documentation, where child support is claimed; and

• monthly budget of expenses, where spousal or partner support is claimed.

What should I do after being served?

If the party served with the Notice to Disclose fails to produce the relevant information/documents within the specified time, the party serving the Notice to Disclose is entitled to seek an Order for Costs for non-compliance and an Order for production of the missing documents at the upcoming Court appearance. Therefore, it is vital that you begin organizing the requested documents and seek independent legal advice from a family lawyer right after being served. By booking an initial consultation with an Alberta family lawyer, you will gain an understanding of whether your documents are complete pursuant to the Notice to Disclose and which documents you should NOT produce. A family lawyer should guide you through the disclosure process to ensure that you are not producing privileged (confidential) documents to the opposing party.

What’s the point of Notices to Disclose?

The Court created Notices to Disclose as a way to efficiently compel and expedite the exchange of relevant financial information in family law matters. Where Notices to Disclose are not filed, and if parties are reluctant to exchange documents, it often takes a great deal of time and effort to get relevant financial information from the parties in an action. The Notice to Disclose application puts pressure on the parties to produce the documents because they know there is an upcoming Court date at which an explanation for why the documents are not produced must be given. The sometimes onerous process of document exchange is thereby streamlined with this the Notice to Disclose.

Notices to Disclose can be used in divorce, matrimonial property, parentage and maintenance actions. They are not mandatory, but they are efficient and a good measure for future protection. A Notice to Disclose benefits a family law client in many ways, including reducing the potential for the opposing party to hide assets and income because they are obligated to disclose all aspects of their financial situation.

Other options for disclosure exchange

If the parties are efficient and forthcoming with exchanging disclosure documents without the need of Court intervention, the Notice to Disclose can be used as a guide to cover off most of the relevant documents required to confirm which assets and liabilities will be divided between the parties or exempt, and each parties’ guideline incomes for the purposes of calculating child and/or spousal or partner support. Consult with a family lawyer before making a disclosure request from the opposing party to confirm if you are entitled to receiving this information.

To help ensure that you are producing the correct documents to the opposing party/counsel, or if you wish to gain a better understanding of how you can compel the opposing party to provide you with documents and information relevant to your matter (with or without Court intervention), consult with a family lawyer in your jurisdiction.

Schedule an initial consultation with Adrianna Banaszek of Banaszek Family Law to learn about your legal rights and obligations. During May and June 2019, Banaszek Family Law is offering free 30 minute telephone initial consultations - Make the next move and book yours today!

Follow Banaszek Family Law on Twitter: @BanaszekLaw, Facebook, and LinkedIn.

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 ●

Follow Banaszek Family Law on Twitter: @BanaszekLaw and LinkedIn: Banaszek Family Law.