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This legislative update is welcomed to Alberta alongside changes to the child support regime for adult children and an outdated Act being repealed.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 ●

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn.

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.