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Summer Holidays and Travel with Shared Parenting

The Court has recently decided in a high-conflict case with a detailed parenting plan on summer vacation and travel requirements for children of the marriage. Notably, both parents were driven lawyers, at the top of their respective fields. They shared two children, ages eight and ten, at the time of the hearing and Justice Devlin decided on parenting and child support after a 10-day trial for the parties. Both parents were granted a week on/week off shared parenting schedule.

In his reasons for judgment, Justice Devlin covers the Court’s perspective on summer vacations and travel for parties with shared parenting orders in a detailed parenting plan as an appendix to the judgment.

The “Summer Break” was defined as the first day the children are released from school and the morning of which the children are returned for their first day of school for the new school year. Each parent was permitted to have 2 consecutive weeks of parenting time each summer and the parent with the first choice for their two-week block will alternate every summer. Dates for the first-choice block were to be provided to the other parent by April 1st of each year. After the first parent has had their parenting block of two weeks, the other parent must commence their two-week block no less than two weeks before or after the first parent’s. This is to ensure that each block is separated by two weeks’ worth of normal alternating parenting time.

When it comes to summer camps and activities, each parent was entitled to enrol their children in whatever activities they wished as long as those activities fell during that parent’s parenting time. For travel within Canada during the parent’s parenting time, consent from the other parent was not required. However, the parent travelling within Canada with the children is required to provide the other parent with a complete itinerary, including information such as the address of the location they will be staying at, travel details such as the mode of travel and dates, in addition to a general itinerary for the trip. This information is required to be provided prior to the children leaving Calgary.

When it comes to international travel, one parent is responsible for safekeeping of the children’s passports and is required to provide those passports to the other parent within 48 hours of a written request. The passports are then to be returned to the parent responsible for their safekeeping on the first day that parent has parenting time with the children post-travel.

If traveling to the United States, each parent is required to sign a travel letter no later than January 15th each year to be used for the entire year for any travel with the children for that year. The travelling parent is not required to obtain consent of the non-travelling parent (aside from the travel letter), however, the same details for itineraries and travel plans apply to international travel as they do for travel within Canada.

Any travel outside Canada and the United States requires the express written consent of the non-traveling parent. Such consent is not to be unreasonably withheld and a full itinerary is required. Neither party is permitted to travel to a country with the children that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction or a country that has demonstrated non-compliance with the Hague Convention without prior express written consent of the non-traveling parent or an Order from the Court of Queen’s Bench.

The Court of Appeal reviewed a parenting plan ordered by Justice Poelman of the Court of Queen’s Bench in a case where parenting was not equally shared between the parents. For Summer Break, the Appellate Court upheld the Queen’s Bench parenting plan which stipulated that each parent will have parenting time with the children for alternating periods of thirty consecutive days, with each parent starting the Summer Break on alternating years. The Court also upheld the term that either parent may request the other sign a consent for international travel provided that a detailed itinerary is provided to the non-travelling parent and travel is restricted to countries which are signatories to the Hague Convention.

The Federal Government recommends that any Canadian minor-aged child who is travelling with only one parent should carry a signed Letter of Consent from the other parent. This document communicates to Immigration, Customs, and Border authorities that the non-travelling parent consent to the child’s travel. It is not a legal requirement, but it is strongly recommended by the Government of Canada. In addition, the Government of Canada has a free template for Consent Letters available for parents to use on their website: https://travel.gc.ca/travelling/children/consent-letter

However, not all parenting plans need to be Court-ordered. If parents would like to negotiate their own parenting plans, including conditions for travel with the children during summer break, they can do so on their own or through a lawyer. The key is that each parent should have equal parenting time overall. If one parent’s vacation cuts in to another parent’s parenting time, the parents can agree on make-up time in the future to settle the balance once again.

If you are looking for assistance to develop a parenting plan, summer break plan, or agreements on travel with children, please contact out Family Law team at Robertson LLP.

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Family Law – Best Interests of the Child

When any decision is being made in relation to a child, the legal test required is the same across Canada. This legal test is called, “Best Interests of the Child,” and it involves a variety of factors and criteria for Judges to consider when they apply the legal test to situations involving a child.

The Best Interests of the Child test is also gender neutral, it does not make any assumptions about a parent’s gender and their abilities to care for their child. For example, the Court does not assume that a mother would be better at caring for young children such as babies just because she is a woman who may have, “maternal instincts.” This stereotype about gendered parenting is outdated and is no longer used by the Courts to determine which parent would be better able to care for the child.

When applying the Best Interests of the Child test, the Judge will only consider what is best for the child, not what is best for the parents or guardians. No factor is to be given more weight than another factor.

The factors for the Best Interests of the Child are found in section 16 of the Divorce Act:

 

  1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  2. the nature and strength of the child’s relationship with each spouse, each of the child’s sibling and grandparents and any other person who plays an important role in the child’s life;
  3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  4. the history of the care of the child;
  5. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. any plans for the child’s care;
  8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  9. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  10. any family violence and its impact on, among other things,
    1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    2. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  11. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

It is important to keep in mind that when it comes to relocation and mobility, such as one parent moving to another city with the child, there are additional factors that a Judge will consider. You can find these factors in the Divorce Act under section 16.92. These extra relocation factors are:

  1. the reasons for the relocation;
  2. the impact of the relocation on the child;
  3. the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
  4. whether the person who intends to relocate the child complied with any applicable notice requirement under 16.9, provincial family law legislation, an order, arbitral award, or agreement;
  5. the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
  6. the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
  7. whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Things that are not to be considered when determining whether it is in the Best Interests of the Child to relocate are whether the parent would relocate without the child if the child was not permitted to relocate. 

If you have a family situation where parents or guardians cannot agree on what is best for a child, please contact our Family Law Team at Robertson LLP and we can help shed some light on potential solutions for you and your family. 

 

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Wills and Estates FAQ’s

A Will sets out how your assets are to be divided upon your death. A Will can further provide direction for business, guardianship of minor children, special needs dependents, funeral arrangements, and management of death related expenses, among other things.

An Enduring Power of Attorney sets out who will manage your property and financial affairs should you become incapacitated, or, depending on your wishes, prior to such an event occurring.

A Personal Directive (AKA “Living Wills”) allows you to direct who will make important decisions with respect to your care should you be unable to make those determinations for yourself. They outline your wishes for matters such as the type of care you wish to receive or not receive and where you will live should you need more advanced care than can be provided in your home.

Please contact our team directly to discuss your Wills & Estates needs. Our lawyers will provide you with an easy to navigate Questionnaire to begin the process, and to keep it as streamlined and stress-free as possible.

WHAT IS A WILL?
A Will is the legal statement of a person’s last wishes about how to divide his or her property after death. The property that is distributed following the instructions in a will is known as the estate.

WHAT IS AN ESTATE?
The property that you own at the time of your death, including land and possessions, which is distributed following the instructions in your Will is known as your Estate. The property in your Estate is first used to pay debts and taxes. It is then distributed in accordance with the instructions in your will.

WHAT IS A PERSONAL REPRESENTATIVE?
A personal representative (formerly known as an executor) is the person named in a will to carry out the directions contained in the will. The personal representative is responsible for settling the person’s affairs after death. The person’s estate passes temporarily to the personal representative.

Why do I need a Will? What does it do? What if I do not have one?
Wills set out how your assets are to be divided upon your death. They can further provide direction for businesses, guardianship of minor children, special needs dependents, funeral arrangements and management of death related expenses, among other things.

If you do not have a Will in place, the distribution of assets, management of your estate and any guardianship will be left to the courts to decide based on Alberta Law through a lengthy and often stressful process called Probate.

Through a Will you can also name your personal representative (formerly known as an Executor). This is the person whom you trust to have the authority to ensure that your wishes are carried out and to ensure that all your affairs are in order.

DO I HAVE TO MAKE A WILL?
No, a will is optional and voluntary. While it is extremely important to consider making one, you do not have to, and no one can make you sign one if you do not want to do so.

WHAT INFORMATION IS NEEDED FOR A WILL?
Our Lawyers will provide you with an easy to navigate, fillable Questionnaire that will guide you through all the required questions and let you know what information needs to be provided.

You will require at minimum the following information for anyone named in your Will (such as children, spouse, proposed guardians, and other beneficiaries):

Names
Addresses
Birth Dates

You will also need to keep some form of record for amounts of all debts, including mortgages, car loans, student loans, business loans and credit card accounts.

You will need to provide a list of assets, including detailed information regarding the following:

Real Estate
Bank Accounts
Investments (stocks, bonds, mutual funds etc.)
Pension / Retirement Accounts
Life Insurance Policies
Ownership Interest in a Business
Cars, boats, planes and any other vehicles
Any valuable personal property

You should be sure to provide information regarding any existing Wills, Trusts, Divorce Judgements, Custody Agreements, Prenuptial Agreements and any other legal documents that may affect your Will.

Because of the extent of information provided in your Will, you should be sure to revisit your Will periodically to update it upon certain major life changes to ensure that it is still an accurate reflection of your wishes.

WHEN DO I HAVE TO MAKE A WILL?
There are certainly advantages to having a lawyer prepare your will. He or she has a lot of expertise that you can call upon to deal with matters like tax consequences, international issues, trusts, making suitable arrangements for young children among many other issues.

Wills must be worded very carefully and precisely to make sure that exactly what you want happens. Lawyers are skilled in the careful and precise use of language. It is important to note that making a verbal recording of your wishes (such as video, voice recording, CD or MP3) is not enough and will not be considered a valid will.

WHAT IS A CODICIL?
A Codicil is a legal document that allows you to make additions or changes to the terms of your will. Once it is completed, it will become a part of your original will.

WHAT MENTAL CAPACITY DO I NEED TO MAKE A WILL AND WHO DECIDES IF I HAVE THAT CAPACITY?
Having the mental capacity to make a will means that you must:

Know that you are making a will and understand what a will is;
Know what property you own; and
Be aware of the people (such as a spouse and children) you would normally provide for.

In addition, you must know and approve of the contents of your will. If you were misled, whether by fraud or accident, or someone put undue influence on you, your will may later be found to be invalid.

This is another reason for meeting with a lawyer to discuss your will. This may provide proof that the will was made by your own free choice. Further, you should be alone with the lawyer when making your will. You should be comfortable and able to speak freely without concern of other parties.

WHO CAN BE A WITNESS TO MY WILL?
A witness must:
Be 18 years of age or older;
Cannot be a beneficiary under the will; and
Cannot be the spouse or the adult interdependent partner of someone who is a beneficiary under the will.

The witness does not need to read your will. All they must do is see you sign your name to the will, and then they will sign in front of you.

WHAT SHOULD I DO WITH MY WILL NOW THAT IT IS COMPLETE?
It depends on your situation. Many people choose to put their will in a safe place that their personal representative knows about and can be easily accessed (i.e. a safety deposit box at their bank). Others choose to leave it with a trusted third party such as their lawyer.

REQUEST YOUR WILLS AND ESTATES PLANNING QUESTIONNAIRE

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What Is A Restrictive Covenant?

A restrictive covenant is an agreement between the owners of the affected properties, which places limitations on what can be done on such property.

In newer community developments, a restrictive covenant may be put in place by developers to maintain the value of the properties located in a given subdivision by ensuring uniformity in the architectural and landscaping controls. These restrictions may include the material type or colour of the roof, or the exterior wall material or fences. Another example may be a restrictive covenant limiting the minimum distance to be maintained between the street and a house, or a restrictive covenant preventing the storage of any boats or trucks in the driveways, or prohibiting the installment of satellite dishes or clothes lines, or there may be a restriction placed on whether a business may be run from the property or not.

Once registered, the restrictive covenant runs with the land and will remain on the property title, also binding the subsequent owners of the land.

Restrictive covenants do not have an expiration date unless there is intentionally an end date included within the covenant – this is rarely ever so. Because there is no expiration date some covenants from as far back as the 1800’s will still run with the land and remain in force on the property title. Some older restrictive covenants quite often may be more complex, such as the ones that include restrictions on use (such as only a single family dwelling being permitted) and on the location of buildings (such as the setback from the street). It is possible that a home is built in compliance with current municipal regulations, but it may contravene a restrictive covenant on the title. The property could even have a real property report with a compliance certificate from the municipality and yet there might still be a defect on title if it is not consistent with the restrictive covenant.

It is possible to remove or amend restrictive covenants on title. However, in order to remove a restrictive covenant completely it may be a lengthy process, a court application and a requirement to address potential community concerns. In certain instances, it may be possible to amend a current restrictive covenant rather than to remove it entirely, but the viability of this is determined on a case by case basis and is particular to the nature of the restrictive covenant.

TAKE AWAY

If you have a restrictive covenant registered on title, it is vital to understand what this document entails before signing the purchase contract. There is no guarantee it can be removed or amended, and it is a restriction as to what the buyer can or cannot do with the subject property.

Questions about interrupting your restrictive covenant? Contact our team today. We’re here to help!

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Party Wall Agreements

WHAT IS A PARTY WALL?

A party wall is a common wall shared between owners of adjoining properties. Examples of this include semi-detached townhouses, adjoining condominium units or duplexes.

WHAT IS A PARTY WALL AGREEMENT?

A party wall agreement details the rights, obligations, and ownership with respect to the common wall (the party wall). The agreement will provide specific details such as: maintenance obligations, encroachments of the wall on to the neighboring property and restrictions on renovations or alterations. The agreement must be signed by all parties that share the party wall. 

WHEN DO YOU NEED A PARTY WALL AGREEMENT?

A party wall agreement is always recommended. If you purchase a property without such an agreement in place, speak to your lawyer about creating a proper agreement between yourself and the other party, and having it registered on title to avoid any potential disputes in the future.

WILL MY LAWYER EXPLAIN THE EXISTING PARTY WALL AGREEMENT TO ME?

Yes. In the instance of a home purchase, your lawyer will review the existing party wall agreement registered on the title of the home. They will explain your rights, ownership and obligations as agreed to in the existing party wall agreement and advise you if there is anything that may be of concern. It is important to understand what you and your neighbors can / cannot do in respect to your property and any shared common wall(s) (party wall).

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New Home Warranty Programs

With a new build home, it is entirely possible that construction flaws may reveal themselves immediately upon purchase, or a few months or even a few years after purchasing the newly built home.

As of February 1, 2014, every new build home in Alberta is protected under warranty. Alberta’s New Home Buyer Protection Act (“NHBPA”) advocates for very high-quality standards in order to make sure that every new home stands the test of time. This applies to all new homes constructed by builders ranging from condominiums, recreational properties, manufactured homes, multi-family homes, duplexes to single-family homes.

A new home warranty is an insurance product that protects your home from material, labour and structural defects that may arise after construction. The warranty stays with the home, whether you are the original owner or subsequent buyer and typically lasts for 10 years.

Before you sign a contract with a builder, it is essential to verify that your chosen home builder is registered with a warranty provider, and for you to understand what is covered, for how long it is covered and what potential defects may not be covered.

WHAT IS THE ALBERTA NEW HOME WARRANTY PROGRAM?

While there are a number of warranty providers in Alberta, the one that is the most popular amongst builders is the Alberta New Home Warranty Program. Founded in 1974, the Program is currently Alberta’s largest home warranty provider with over 700 Builder Members.

MANDATORY WARRANTY

According to the Alberta’s New Home Buyer Protection Act (NHBPA) legislation, at a minimum the warranty on each new home will provide “1-2-5-10” coverage.

1 Year – Labour and Materials

Mandatory warranty includes one year’s coverage for defects in materials and labour. This addresses issues with the way your home was built or the materials it was built with. It includes such items as flooring, trim and fixtures.

2 Year – Distribution Systems

New home warranty must cover defects in labour and materials related to heating, electrical and plumbing systems for two years from the warranty commencement date.

5 Year – Building Envelope

Homebuilders in Alberta must provide five years’ coverage for defects in the building envelope and must offer an optional two-year extension on building envelope coverage for a total of seven years’ coverage.

10 Year – Structural Integrity

Mandatory warranty covers the key structural components (for example, the frame and foundation) of single-family homes and multi-family dwellings for 10 years from the warranty commencement date.

Should the home become uninhabitable as a result of a defect or while warranty work is underway, programs such as the Alberta New Home Warranty Program will pay a daily rate up to a maximum amount for reasonable living expenses incurred by the insured.

It is important to understand that as with any coverage, a new home warranty will come with coverage limits. These limits differ based on the type of dwelling: Single-family, multi-family registered under a condominium plan, warrantable common property, or a non-condominium multi-family unit (Ex. A duplex, or row townhouse.)

PRE-POSSESSION AND DEPOSIT INSURANCE

The Alberta New Home Warranty Program offers pre-possession insurance for single-family homes, which is a combination of deposit insurance and home completion insurance. The Government of Alberta does not mandate the inclusion of pre-possession and deposit insurance coverage in every new home warranty, and it is an entirely optional product that the Alberta New Home Warranty Program chooses to offer to its members. Additions like this are important to understand and look for when it comes to reviewing the inclusiveness of the offered warranty through your chosen builder.

RENOVATION WARRANTY

The Alberta New Home Warranty Program also offers the Alberta Renovation Warranty Program via their members. The Program imposes strict standards for membership thus giving the homeowners complete confidence in their chosen renovators.

The Alberta Renovation Warranty Program combines deposit protection insurance up to $100,000.00 with Warranty Insurance that covers materials and labor up to $100,000.00 and provides comprehensive protection from the moment a homeowner engages with the renovation company until two years after the work is substantially completed.

Questions about purchasing a new construction home? Questions about your New Home Warranty or the Builder’s contract? Contact our real estate lawyers Here.

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What Is An Encroachment Agreement?

Often, a purchaser may discover that the property they are buying encroaches on someone else’s property, or vice versa, that there is an encroaching improvement on the property they are buying. This encroachment could be on or by a private property or municipally owned land. This can be dealt with by utilizing an encroachment agreement.

WHAT IS AN ENCROACHMENT AGREEMENT?

An encroachment agreement is a legally binding real estate document signed by neighboring property owners when a property encroachment is found to exist. An encroachment agreement acknowledges and describes the encroachment, identifies the owner of the encroachment, and states the agreed-upon resolution. The encroachment agreement becomes binding between the two properties and once the encroachment agreement is registered it runs with the land-meaning it will remain registered on the Certificate of Title even after the original owners sell.

WHAT ARE SOME EXAMPLES OF AN ENCROACHMENT?

Fence lines can be the most common type of structure that may encroach onto a neighboring property. A few other examples of frequently seen encroachments are structural additions, the original house, decks, sheds, retaining walls and sometimes even eaves troughs.

HOW CAN I TELL IF I NEED AN ENCROACHMENT AGREEMENT? HOW DO I GET AN ENCROACHMENT AGREEMENT?

The surest way to confirm if an encroachment agreement is required is to review the up to dateReal PropertyReport with your real estate lawyer. The RPR is a legal document prepared by an Alberta Land Survey or that illustrates property boundaries and improvements (structures) relative to the boundaries and will show if there is anything encroaching on those boundaries.(How do I get a Real Property Report? Click here for a detailed article on RPR’s.)

Dependent on whether the encroachment is on private property or municipally owned lands, your real estate lawyer will then guide you through the appropriate agreement drafting or application process and explain your obligations and potential risks under the agreement.

*TAKE AWAY:

As with any additional agreements or applications, these processes can take time when required. It is best practice to review the Certificate of Title and current RPR early on in your transaction and send any questions or concerns to your real estate lawyer as soon as possible in order to keep your real estate purchase or sale as smooth as possible.

Contact our real estate lawyers today for assistance with any encroachment agreement related matters.

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What Is A Certificate Of Lis Pendens?

A certificate of lis pendens is intended to provide notice of pending litigation in respect to a particular parcel of land.

When you see a certificate of lis pendens registered on a property title this usually means that the property owner has been sued, but there is no judgment yet. This registration of a certificate of lis pendens protects the plaintiff’s interest in the land while the seller loses the ability to deal in the proper t y freely.

The registration of a certificate of lis pendens is also expressly authorized by the Builders’ Lien Act and the Matrimonial Property Act . As such, it is common to see these registrations on title in relation to trades disputes, or family law matters.

If the court rule s in favor of the plaintiff who took action to register a certificate of lis pendens, a writ may then be registered on the property title.

The registration of a writ indicates that the lawsuit has been awarded and the plaintiff now has a cemented interest in the property. Should this arise in the course of buying real estate a seller will need to have these registrations discharged before, during or after closing as the new buyer will not under proper direction from their lawyer accept these registered interests.

As a home buyer, the Realtor® you choose to work with on your home buying journey may complete an initial review of the title prior to your offer going firm.

Should you come across a certificate of lis pendens, writ or caveat registration during an initial review it is always best practice to bring it to your lawyers attention as soon as possible. To view these registrations on the surface may not offer a clear idea of the timeline required to have them discharged (if necessary) and these detai ls may only become apparent under further review by your real estate lawyer.

Questions about registrations on your Certificate of Title? Contact our real estate lawyers today.

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We are committed to delivering efficient and effective legal services, with a focus on communication, responsiveness and attention to detail.

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