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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It Takes a Village: Banaszek Family Law explains why your divorce lawyer should not be the shoulder you cry on

At Banaszek Family Law, we believe that divorce and family lawyers should only form PART of your team of professionals as your family goes through a separation. Transitioning a family to a completely different, and often yet to be known, arrangement is extremely taxing for the separating spouses and for their children. In fact, the Holmes and Rahe Stress Scale ranks divorce as the second most stressful life event that someone can go through! On the Scale, divorce is only surpassed by the death of a spouse or a child.

The high ranking of divorce on the Scale should put the stress associated with divorce into perspective for those currently going through the process of unwinding a marriage, for their legal representatives, and for their family members, friends and employers.

We strive to ensure that our clients understand our role in their divorce every step of the way. We understand that clients going through a separation or divorce often benefit from the assistance of mental health professionals, including psychiatrists (medical doctors), psychologists, and various counsellors.

Which issues should be left for mental health professionals to solve?

Family and divorce lawyers are legally trained professionals. This means that in Canada, divorce lawyers are not required to obtain specific counselling or mental health training and education in addition to the Law Society requirements of the province in which they practice law.

If your lawyer primarily practices in family and divorce law, they are often exposed to high-stress and high-conflict interpersonal situations. Although divorce lawyers should have an intimate knowledge of the interpersonal dynamics between their client and separated spouse, it is vital to remember that lawyers are not always equipped to advise and assist with your emotional and psychological well-being and healing.

Lawyers should offer the services of other professionals who are better equipped and specifically trained to assist you. If you are spilling your heart to your lawyer and the information does not assist your legal case, your lawyer should let you know that other services should be employed to reduce your legal bill. Often times, the cost of hiring a counsellor are much lower than the billing rate of your divorce lawyer. In addition, services provided by counsellors and registered psychologists may be partially or wholly covered by your health benefits plan if you have access to one.

In summary, it is best not to seek medical and psychological assistance from a legally-trained professional. Your wallet, lawyer and mental health will thank you.

Which non-legal professionals should I consider hiring during my divorce?

There are a variety of professionals which should be considered by every person going through a separation or divorce. Parties should consider if they would like to attend at counselling alone or with their spouse (if their spouse is agreeable to attending), or attending at both.

If there are children involved and a respectful co-parenting relationship is the goal, the assistance of a counsellor or registered psychologist specializing in family therapy and parenting should be researched and considered.

Parenting coordinators are also professionals which should not be overlooked by separated parents struggling to maintain healthy communication. Parenting coordinators are mental health or legal professionals with mediation training and experience. Parenting coordinators may assist separated parents in the following ways:

• implementing parenting plans for high-conflict parents;

• facilitating the resolution of parent disputes in a timely manner;

• educating the parents about the children’s needs; and

• making decisions within the scope of a court order or a contract [this is possible with the prior approval of the parties and/or the court].

If you are experiencing stress and other symptoms relating to your separation, you should also consider attending at your general practitioner for additional resources and assistance.

Your divorce lawyer has a duty to avoid litigation where possible.

We are aware that our clients are forced to constantly battle with emotions and instability during most of our solicitor-client relationship. Often times, clients come into our office as the first point of contact after deciding to take steps to separate from their spouse, which means that lawyers have a duty to advise their clients of other non-legal resources and professionals that may make the process easier if employed from the outset.

Before a court action for divorce is commenced (the filing of a Statement of Claim for Divorce) with the Court of Queen’s Bench in Alberta, family and divorce lawyers must sign the “Statement of Solicitor” if you are represented by a lawyer. This statement states as follows:

“I, [lawyer’s name], the solicitor for the Plaintiff, certify to the Court that I have complied with the requirements of section 9 of the Divorce Act (Canada).”

Before a lawyer can sign off on this statement, they should be complying with all of the following, as outlined in Section 9 of the Divorce Act:

9 (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding

• (a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and

• (b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation,

unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

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(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.

By signing the Statement of Solicitor, your lawyer is advising the court that they have satisfied these steps. This is not something which should be overlooked. Non-legal professionals have the potential impact of reducing your litigation and resolving interpersonal issues between you and your spouse which may make the entire legal aspect of your divorce more efficient (i.e. less costly).

Sometimes, alternative dispute resolution options (like mediation) or counselling and guidance facilities can also help spouses reconcile. If the goal is not reconciliation, obtaining third-party professional counselling may significantly improve communication between the spouses, which is vital for co-parenting or generally working through issues leading to the breakdown of the marriage. Obtaining the assistance of counselling to attend solely (without your separated spouse) may also significantly improve anxiety, stress and provide resources and tools to make the disruption a separation/divorce causes more manageable.

Book your initial consultation with Banaszek Family Law

At Banaszek Family Law, we understand that ‘it takes a village’ of professionals to assist in your family’s transition. We are prepared to assist our clients in finding all of the resources available to them to help reduce the stress associated with separation and divorce.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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

Virtual Parenting: Banaszek Family Law explores the impact of virtual parent-child contact

The increase of virtual technology options, paired with ease of accessibility, has removed many barriers for parents to communicate with their children post-separation. But, we should not kid ourselves - all that glitters is not gold! Parents who rely (to varying degrees) on virtual technology to maintain relationships with their children often experience additional conflict with the custodial parent due to the introduction of the technological “godsend”.

Adrianna Banaszek, family lawyer and founder of Calgary-based law firm Banaszek Family Law, explains how the booming virtual technology sector has both positive and negative effects on children and their parents post-separation, and how common use of these alternate parent-child contact methods may develop a new legal landscape in Alberta.

What is Virtual Parenting?

“Virtual parenting” refers to parent-child contact and communication through the use of virtual technology.  Virtual parenting is usually parenting from afar through a plethora of communication means, including, text messaging, email, Skype, FaceTime, communicating through social networking sites, and good old-fashioned telephone calls.

Technology allows separated parents the option to increase communication and contact with their children when they are not the primary (custodial) caregiver or during the other caregiver’s parenting time. Whether the risks outweigh the benefits of these alternate modes of communicating for parents and their children is still out for debate.

Virtual tech is shaping the legal landscape

What is certain, however, is the judicial notice that virtual technology is receiving in the Alberta Courts when it comes to decisions about parenting arrangements. There is no doubt that technology has allowed parenting time to take place in situations where it likely would not otherwise. For instance, long-distance parenting arrangements are made possibility with communication technologies. The Alberta decision of BRH v RPS, 2016 ABQB 346, highlights that the use of virtual technology is a factor weighed in mobility applications (parents who wish to relocate the child to another jurisdiction) and long-distance parenting arrangements. Justice R.A. Graesser stated as follows:

[107] Technology will undoubtedly play a role. With technology, the absent parent can have daily face-to-face time with their child via Skype or Facetime, such that communications during non-parenting periods are not limited to one-dimensional telephone calls or written communications.

Although this particular case did not turn on maximizing contact between the parties, notice was taken of the parenting opportunities technology would afford (para 108). This decision was later appealed and the appellant mother was granted primary care of the child with the ability to relocate the child to Spain. Although the success of the appeal did not hinge on the role virtual technology would play, it was considered in allowing the father (non-custodian parent) generous access to his child who was to move overseas in between holidays and summers when in-person parenting time would be realized.

Is virtual technology an aid or a grenade for co-parenting?

Although virtual technologies are common place in the Western world today, there has been minimal research conducted about whether and how virtual parent-child contact impacts children, their parents and the parenting relationship post-separation. The minimal empirical research is most concerning when it comes to families involved in high-conflict disputes, which often stem from poor communication, lack of trust between the parties, and/or mental health issues.

Luckily, Dr. Rachel Birnbaum, is asking these very important questions through her research. Dr. Birnbaum is a social work professor at King’s University College, Western University, where she focuses her research on family justice issues. She conducted a survey which asked the following questions:

1. What conflicts, if any, do adult and child clients report as a result of using any type of technology for parent-child contact?

2. What benefits and challenges do family justice professionals believe about the use of virtual technology as a means of parent-child contact?

The Parents Report

The parents participating in the survey reported that the majority of conflicts occurred as a result of the following:

• 60% reported that the other parent listened in on their conversation with the child.

• 35% reported that the other parent alleged that the child is too busy doing something else at the designated virtual parenting time.

• 41% reported that the child is not available for the call at the designated time.

• 4% reported that the other parent alleges that they do not know how to use or set up the virtual technology to allow for the access.

• Other reasons conflict occurred: using the time to harass the custodial parent, using the child to harass the non-resident parent and child support/inappropriate discussions with the child, and some parents reported that they don’t want their children using technology due to safety or confidentiality concerns.

The Children Report

The children participating in the survey reported that the majority of conflicts sometimes occurred as a result of the following:

• 55% reported that conflict arose as a result of the child being busy and not always wanting to talk to the other parent at the time.

• 45% reported that the child does not have a lot to say to the other parent and the other parent gets upset due to this.

• 39% reported that the other parent is listening to the conversation during the parent-child contact.

Children mostly expressed that although virtual parenting was advantageous, virtual access did NOT alleviate their longing for their parent, and that the virtual parent contact increased their anxiety and sadness about the absence of physical contact with their non-resident parent.

The Lawyers Report

The survey found that from the perspective of family justice professionals, the risk of using virtual parent-child contact is for evidence gathering, meaning the contact is sometimes focused on planning future litigation rather than to strengthen the parent-child bond. The majority of professionals concluded that the benefit of virtual contact is that the child may maintain contact with their parent over geographical distances (beneficial for mobility applications and to foster the parental-child bond).

Benefits and challenges of parenting via virtual tech

Dr. Birnbaum’s survey findings support that there are both risks and rewards surrounding virtual parent-child contact. The risks as identified by the parents result mainly from privacy and confidentiality and the burden placed on the custodial parent to organize the parent-child contact. The benefits include that the child may maintain an ongoing relationship with a parent that they are not constantly in-person contact with. It also has the potential of reducing hostility between parents because they have no contact (or minimal contact) with each other – this is more relevant for children who are older and able to use the technology without assistance or supervision from the other parent.

The findings are important as this is a time when virtual parent-child contact is increasingly being recommended by family justice professionals and the court as a means of maintaining parent-child relationships post-separation. Dr. Birnbaum notes that more research is required to determine the impact of the relative costs and burdens to parents having to provide the technology and how much adult assistance is required to organize and have the child available at the designated time, along with examining the safety risks underlying the use of the different types of technology.

*The study is limited by the sample size.

Implementing virtual parenting post-separation: Whose job is it, anyway?

The short answer is: it is the responsibility of both parents. Although the custodial parent may not believe that they benefit from their child interacting with their ex-spouse or the other parent in situations of high conflict, Canadian courts are very clear that for children to maintain relationships with both parents, both parents must be involved. Maintaining relationships with both parents after the parties have separated is highly valued by the Courts and it is considered to often be in the best interest of the child.

Canadian courts have ruled that custodial parents have an obligation to promote compliance with custody and access orders and cannot simply leave the questions of custody and access up to the child. This means that there is an obligation on the custodial parent to actively facilitate access with the other parent by ensuring that the children are available for the virtual or in-person parenting time. For more information on access enforcement, read the Department of Justice Canada’s Overview and Assessment of Approaches to Access Enforcement: An Update by Dr. Martha Bailey.

Need help crafting a parenting plan post-separation? Banaszek Family Law is here for you.

At Banaszek Family Law, we offer independent legal advice and representation to serve your custody and parenting needs, whether that is drafting a Separation Agreement which includes a comprehensive parenting plan, or representing you in your family law and divorce litigation.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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

Parents Who Gift "Home Sweet Home": Banaszek Family Law explains how to protect a down-payment gift from equal division

Let’s face it… home ownership is an expensive and serious undertaking. For couples ready to purchase a house together, the intermingling of financial resources is almost certainly a must. In addition to pooling your life savings with your life partner to come up with an acceptable down-payment, many couples (eagerly) accept parental involvement (i.e. a down-payment gift) to make their home ownership dreams come true.

The gifting of down-payments by parents to their millennial children is on the rise as home ownership becomes increasingly unattainable by historical standards in many Canadian cities. Unsurprisingly, down-payment gifts have doubled from 7% in 2000 to 15% for homes purchased between 2014 and 2016 (Mortgage Professionals Canada). There are legal implications to consider when monetary gifts are poured into a down-payment for a soon-to-be married couple’s home, especially since a substantial amount of Canadian marriages end in divorce.

Dividing the matrimonial home upon divorce in Alberta

In the event of separation and divorce, both spouses will be entitled to half of the home’s value after the mortgage and other encumbrances are accounted for, even if part of the down-payment was a gift from one of the spouse’s parent(s).

[Unequal financial contributions between spouses to attain their home can also have significant legal implications if the parties separate in the future — Stay tuned for a future blog post on this issue!]

If it is your intention to protect the down-payment and ensure that it is either paid back to your parents or remains a gift that your spouse cannot claim entitlement to, steps MUST be taken to legally protect the intention of the gift. Although gifts received from third parties to one spouse alone are often exempt from the presumptive equal distribution under the Alberta Matrimonial Property Act, the matrimonial home is treated differently. The matrimonial home is an exception in family law, and division of the value of the home depends on the circumstances surrounding the down-payment.

For example, in Henderson-Jorgensen v Henderson-Jorgensen, 2013 ABQB 213, the Alberta Court of Queen’s Bench dealt with a claim by the Husband that his father had gifted him $83,500 for the down-payment on a condo which was later sold to buy the matrimonial home and he claimed that this money should not be divided with the Wife. The key finding of the Court was that the Husband’s father was gifting the down-payment to both parties equally. Therefore, the Husband’s claim for the $83,500 exemption from the matrimonial home value was denied by the Court (para 140-41).

If there is disagreement about how the value of the matrimonial home is to be split between the parties and the matter is litigated in Court, the intention of the person making the gift will be taken into account by the judge. Free of any agreement, each party will have to convince the Court that the down-payment was intended to either be a gift for both parties or specifically for one. A spouse claiming the gift is excluded from division of matrimonial property is responsible for demonstrating that the property is really a gift to them alone. The onus to prove this fact is on the spouse wishing to protect the value of the property for their sole benefit.

Protecting the down-payment gift from equal division

Parents wishing to make home ownership a reality for their children while also protecting their rights need to have documentation that clearly states that the gift is for one person (their child) only. If there is no contract or document ensuring that the down-payment is protected, the way in which the home is used by the parties will determine the status of the gift. This means that if the home is the primary residence of both parties, and especially if the couple is raising children in the home, it will be considered the “matrimonial home”. To help ensure that the down-payment gift remains with the intended person upon dissolution of a marriage, a prenuptial agreement is your best bet for preserving the significant contribution from being divided equally.

Prenuptial agreements can be executed before the parties marry, or parties who are already married may enter into a post-nuptial agreement to have the same contractual effect. A marital agreement will reduce the potential risk for financial disappointment when your emotions are already in a state of turmoil. If the parties are in a common law relationship and not married, a cohabitation agreement may also be used to outline the total down-payment contributions received from third parties to safeguard against an unintended “payout”.

Discussing the importance of a prenuptial or cohabitation agreement with your spouse usually alleviates financial tension down the road. Read about prenuptial agreements and the value they provided in Banaszek Family Law’s blog post: Prenups are for Lovers.

An added benefit of entering into a cohabitation, prenuptial or post-nuptial agreement is the requirement for the couple to disclose their financial circumstances to each other. Relationships often fail due to difficult financial circumstances and a lack of communication, so obtaining an understanding of each other’s finances before tying the knot may be a key to avoiding divorce (or at least gaining some certainty that marriage is the right choice in advance of making it official).   

The concurrent rise in down-payment gifts and rate of divorce makes entering into a prenuptial agreement to prevent a generous gift from being disturbed in an unintended manner a no-brainer. Banaszek Family Law offers flat rates for uncontested family law agreements for clients in Alberta and British Columbia. Family law agreements provide peace of mind for both the parents gifting down-payments to their children and the spouses purchasing their new home.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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