The Basics of Support

family-hands

Whenever a client’s relationship breaks down, we consider whether child support and spousal support come into play. They are different things and different rules apply. Here are some quick facts about child and spousal support in Alberta.

  • Child support is automatic. Every child is entitled to support from his or her parents, at least up until the age of majority. Support is the right of the child, not the parent who receives payment.
  • Spousal support is not automatic. A spouse claiming support must first prove an entitlement to support.
    • In Bracklow v Bracklow ([1999] 1 S.C.R. 420), the Supreme Court of Canada set out 3 grounds for possible entitlement: compensatory, non-compensatory (“needs”) and contractual.
  • The Federal Child Support Guidelines set out the amounts payable in basic monthly child support in divorce cases and courts rarely allow deviations from the guideline amount. The Alberta Child Support Guidelines apply when the parents are not married.
  • The Spousal Support Advisory Guidelines set out a range of amounts payable in monthly support and courts routinely deviate from the suggested range because these guidelines are only advisory (not binding).
  • Adult Interdependent Partners (“Common law” spouses) may also have an obligation to support each other.
  • Basic monthly child support amounts in the Child Support Guidelines are determined by reference to the payor parent’s income (usually the amount on line 150 of the payor’s tax return), the number of children and the province where the payor parent resides.
  • Monthly spousal support amounts are calculated in the  Spousal Support Advisory Guidelines by comparing the two spouses’ disposable income, calculated “net” of any child support obligations.
  • There are two aspects to child support: basic support (also called “section 3 support”) and “special and extraordinary expenses” (also called “section 7 expenses”)
    • Basic support is generally meant to contribute to those everyday requirements of every child, such as food, shelter, clothing and schooling.
    • “Special and extraordinary expenses” are those expenses that are unique to the child, such as child care costs to allow a parent to go to work, or orthodontic braces or specialty education (this is an area of considerable debate). Parents typically share the expenses based on their respective incomes.
  • All aspects of spousal support can be negotiated between the spouses – entitlement, payment by lump sum or by installments, amount and duration of payments.
  • Child support is payable at least until the child reaches the age of majority. In certain circumstances (such as a child living at home to attend university classes full-time), child support is payable when the “child” is otherwise considered an adult.
  • Courts cannot take “spousal misconduct” into account when making an order for spousal support.

These are just the basics of support. If you need more information, we invite you to come in and see us.

 

Guess who’s in charge of the government in Alberta right now?

Jim Prentice rachel notley

Alberta’s provincial election was held on May 5, 2015. It resulted in the first change in the governing party in Alberta since 1971. The Progressive Conservative party, which had formed government for the last 44 years, was defeated by the Alberta New Democratic Party.

Currently, we are in an interesting situation from a legal perspective. As of the writing of this blog post on May 13, 2015, the new premier-designate, Rachel Notley, has not yet been sworn in. Neither have any members of her cabinet.

This raises the question: Who is in charge during the period between the election and the swearing in of Ms. Notley and her team?

You may be surprised to learn that the Premier is still Mr. Prentice, and his cabinet are all still in charge of their respective ministries. These people wll remain in these positions until the new Premier and her cabinet are sworn in.

This isn’t widely advertised, but the information is still out there. Here is a screen shot of today’s Alberta.ca website home page, still showing the smiling face of “Premier Jim Prentice”.

Alberta government home page snip
Similarly, the Speaker of the Legislature is still Gene Zwozdesky (who lost his seat as an MLA in the election); in fact, he is in charge of training the new MLAs about their legislative role.

Why is this? It has to do with the separation of powers between the branches of government, and the concept of continuity.

 

Separation of Powers

First, it is important to know that the work of government is separate from the work of the legislature. Alberta’s legislature is not in session all of the time. It convenes for sessions when it has business to do. For example, in 2014, the legislature was in session for 42 days.
This makes sense, since the legislature is responsible for proposing, debating, passing and amending laws and that is not really a full time job.

The job of governing according to those laws lies with the “executive” branch of the government. As the name suggests, these people “execute” (implement) the laws. This is done through a series of Ministries responsible for particular aspects of governance. Some examples in Alberta are: Finance, Health, Aboriginal Affairs, and so on.

Each Ministry is headed by a Minister, who functions as the chief executive of that Department, and a member of the Executive Council (better known by its informal title, the Provincial Cabinet). The head of the Cabinet (formally, the Chief of Executive Council) is known as the Premier. He (soon to be she) is therefore Chief Executive of the Province.

Continuity

The work of government doesn’t stop just because an election has occurred and new people have been elected (and others voted out). Services still need to be delivered, and people still need to be in charge of decision-making.

So, a Minister in charge of a Ministry remains in change until replaced by a new Minister being sworn in.  From time to time, a Minister may resign. In such a case, the Deputy Minister (a civil servant, not an elected politician) has day to day management until a new Minister is appointed.

Little known fact:  although Mr. Prentice resigned as the Progressive Conservative Party leader and he resigned his seat as MLA, he did not resign as Premier.

My final note is that this legal arrangement is not unique to Alberta. It is the same throughout all provincial legislatures and also federally.

So, now you know who is in charge

It’s election time in Alberta – a few interesting facts…

vote hereIf you live in Alberta, you likely know that there is a provincial election underway.

Here are 5 interesting facts that you may not know about elections and voting in Alberta:

  1. Voting is a “Charter Right.”  Section 3 of the Charter of Rights and Freedoms provides that every citizen of Canada has the right to vote in an election of members of the House of Commons (i.e. Federal election) or of a legislative assembly (i.e. provincial /territorial election) and to be qualified for membership therein. The Supreme Court of Canada has confirmed that voting rights enshrined in the Charter of Rights and Freedoms are limited to Federal and Provincial elections and do not extend to other elections. See the case of Baier v. Alberta.
  2. Incarcerated Prisoners Can Vote.  The Supreme Court of Canada decided in 1993 that an attempt to restrict prisoners from having the ability to vote was unconstitutional. See the case of Sauve v. Canada (Attorney General).
  3. Advance Polls.  You do not need a reason to vote an an “advance poll.” You can simply show up and vote without an explanation.
  4. Corrupt Practices.  There are various corrupt practices prohibited by the Election Act in Alberta.  For example, it is a corrupt practice to bet on the outcome of an election for the purpose of influencing the election.  It is an offence punishable by a fine of up to $5,000 or up to 2 years imprisonment or both. (see sections 170 and 177 of the Election Act)
  5. You cannot impersonate an election candidate in Alberta. Impersonating an election candidate in an Alberta  provincial election is an offence punishable by a fine of up to $1,000 (see section 157(3) of the Election Act (Alberta).

All of us at Patriot Law Group believe that voting is both an important right and a duty as citizen to participate in our democracy.  Make sure you get out and vote.

 

Why Does It Cost So Much?

Zimbabwe_$100_trillion_2009

Recently, I was talking to my mother (who lives one of the lesser nine provinces outside of Alberta) and she was complaining about the amount of money it cost her to tidy up a few legal loose ends following the passing of my Dad. As the only lawyer in my extended family, my Mom (a retired accountant) put me on the spot to explain the costs she had to pay, with a look that implied that I must also justify the existence of my profession. (I’m assuming she looked like that because we were actually on the phone at the time. You can insert “an awkward silence” for “a look” and probably get the same effect.)

I explained Patriot Law Group’s dim view of the billable hour and the way we price our services but my explanation of our practices didn’t answer the question she had. I brought up the hoary old cliché used by building contractors: “Good, fast, cheap: pick two.” But that didn’t quite resonate for her, either. She wanted to know “why”, not “how” (although she mercifully stopped short of demanding that I formulate a complete economic and sociological justification for the capitalist free market system).

The “why” boils down to the nature of the work we do and the sizeable risks people need to manage in their lifetimes. In the legal profession, we routinely assist people to navigate the most important and stressful events in a person’s life. Beyond the physical and emotional stress of these events, there are typically very significant legal and financial aspects attached. It pays to handle these events properly.

In the legal world, agreements, contracts and documents work great until they don’t. When handled improperly, things can go pear-shaped in dramatic fashion. An incomplete or ambiguous Will could cost the estate thousands of dollars in legal fees to determine who the beneficiaries are and what their entitlements are. A poorly-drafted settlement agreement to a divorce might not provide the clear and final settlement of spousal support that was intended, leaving the door open to expensive disagreements later on. A carelessly-handled real estate conveyance might miss encroachments shown in the real property report that could cost thousands of dollars to rectify.

At Patriot Law Group, we take care to handle the legal parts your matter in the right way to protect you from needless risks and, by doing so, we try to minimize the stress that come with life’s big events. It’s a big responsibility that we take very seriously. And that’s why we charge for what we do.

The Duties of an Attorney

gavelNow, if you were an American you would likely think that this article is about the duties of a lawyer. But this post originates from Alberta, Canada, where the word “attorney” means something quite different.

In Alberta (like the rest of Canada) an “attorney” is a particular type of person: someone appointed in a document to make property and financial decisions on behalf of another. The document is called a “Power of Attorney”. The name suggests the nature of the document: one person (the “donor”) is granting another person (the “attorney”) the power to make decisions on his or her behalf concerning money and other types of property.

If you find yourself appointed as an attorney by one of these documents, it is important that you understand that you are subject to a variety of legal duties the moment you begin exercising your authority.

Here are a few simple rules to help you to understand the significant duties of an Attorney in Alberta:

  1. As an attorney, you are a type of trustee. Trustees are able to deal with property for the benefit of another person. Because the trustee is dealing with “other people’s money”, very strict rules apply to the conduct of the trustee, and significant penalties can apply to a person who breaches the trust.
  2. As an attorney, you must make decisions that are only for the benefit of the donor. You may only benefit someone else if the donor gives you express permission to do so. You may not benefit yourself or a person with whom you do not deal at arm’s length (such as your spouse) unless the donor gives you clear authority to do so.
  3. As an attorney, you must keep a written record of what you do on behalf of the donor, and you must keep those records for a period of at least two years after you cease to act as attorney. The purpose behind keeping records is to be able to demonstrate what you have done and how it was for the benefit of the donor.
  4. You must be prepared to account for what you have done as attorney at any time. The donor or another “interested person” (which could include other family members of the donor) can seek an accounting and a court can order an accounting. If you have kept the records mentioned in point 3, above, an accounting will be relatively simple to do.
  5. If you are exercising a Power of Attorney that comes into effect only if the donor has become mentally incapacitated, then you have a duty to monitor the capacity of the donor and you may need to stop acting as attorney if the donor recovers his or her mental capacity.
  6. While you can decline to act as attorney, if you are the attorney for an incapacitated person, you must generally decline up front and before you commence your duties. Otherwise, you have a duty to use your powers to protect the donor’ interests, and you cannot renounce your appointment without the permission of the court (usually after passing accounts).

Of course, every situation is unique. This general information will help you understand the duties of an attorney but it not a substitute for legal advice. Feel free to contact us for a consultation.

Employment Law – Termination Packages

Given changes in the Alberta economy, there has been much in the news lately about layoffs and downsizing.

When companies  terminate the employment of their employees, the employees are often offered a “severance package.”  The severance offer usually comes in the form of a letter.  The offer is typically is open for acceptance for a relatively short period of time (between a couple of days to a week or so).  Acceptance of the offer means the employee will have no further claim against the employer other than for the benefits outlined in the offer.

It is a good idea to talk to a lawyer before accepting a severance package, even if it appears that the offer is consistent with “what everyone else is getting.”  This is because an employee’s specific entitlements on termination can vary quite a bit depending on a number of factors.

In Alberta, an employer can terminate an employee’s employment at any time, for almost any reason. This is subject to a few restrictions like discrimination on the basis of a prohibited ground such as religion.   Provided that the termination is not for “Just cause” (a topic for another blog post) , the employer’s obligation on such termination, however, is to provide reasonable notice of termination (“working notice”), or pay in lieu of this.  In practice, working notice is rarely used and the offers are almost always focused on pay in lieu of notice.

The issue then becomes what is reasonable notice?  If there is a written employment contract that confirms this, then this may govern provided that the contract is very clear on this point and the termination provisions meet the minimum notice requirements outlined in the Employment Standards Code.

If there is no written employment contract, or the contract does not address the issue of notice on termination, then a different kind of analysis is required.  While the statutory minimum notice period under the Employment Standards Code will be required, an employee may be entitled to more notice than that pursuant to the “common law.” This is the judge-made law which has evolved over time.

A “common law” analysis looks to a variety of factors in determining an appropriate notice period.  These include the age of the employee, the nature of the employment (management vs. labourer, for example), the length of the employee’s service, and the availability of alternative employment.    These factors are often called “Bardal Factors” after the case of Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253 (H.C.)

So that an employee can be satisfied that he or she is accepting an offer that is appropriate in light of their circumstances, a consult with a lawyer is a good idea.  Feel free to contact Patriot Law Group for just such a consult.

 

What makes the legal profession a “profession”?

court roomLawyers take pride in being members of the legal profession.  But what does that mean?  What is a “profession”, and why are lawyers considered professionals?

There are plenty of definitions of professions out there, but most of them boil down to sharing these characteristics:

  • Use of a skill and knowledge acquired as a result of prolonged training which enables a person to render specialized services.
  • A sense of responsibility to the public (society) as result of the person’s possession of the specialized knowledge and skills.
  • A sense of group identity and a system of internal (self) administration based on a body of ethics and standards of performance.

Historically, the first recognized professions were physicians, lawyers and religious ministers. Looking at the characteristics noted above, it is easy to see why this was the case.  In the case of lawyers:

  • The knowledge of the law and the skill in its application to a wide variety of circumstances to avoid or resolve problems is gained through training extending for 3 years beyond the undergraduate level, with an additional period of supervised “articling” (akin to apprenticeship) to an experienced lawyer and a lifelong commitment to continuing education and development.
  • The sense of duty to serve those in need of legal advice and representation is deeply ingrained throughout the training and services of lawyers.  This is why most lawyers provide some of their legal services on a pro bono (no fee) or “low bono” (reduced fee) basis.  (For example, at Patriot Law Group we have a long history of providing basic legal services free of charge to World War 2 and Korean War veterans.  (That is part of why we use “Patriot” in our law firm name.)
  • The group identity is maintained through our system of regulation by a Law Society (in Alberta, the Law Society of Alberta) which includes strict standards of performance and a code of ethics (the Code of Conduct in Alberta).

As society has progressed and become more complex, additional professions have been recognized.  For example, all of our lawyers at Patriot Law Group have had earlier careers as commissioned officers in the Canadian Armed Forces, part of the military profession.

Other well-recognized professions today include (to name just a few):

  • Chiropractors
  • Dentists
  • Optometrists
  • Pharmacists
  • Veterinarians
  • Accountants
  • Architects
  • Engineers
  • Professors

So, professions have a long history.  At Patriot Law Group, we take our responsibility as professionals seriously.  We regularly apply our professional experience and knowledge gained as military officers to our work as legal professionals.  We think it makes us better professionals.  It helped us define our approach to everything we do as lawyers:  Do the right thing for the right reason.

Solicitor-Client Privilege – a Principle of Fundamental Justice

When you meet with a lawyer for the first time, the lawyer will likely tell you that everything you say to him or her is confidential.  Have you ever wondered why this is?  Or, perhaps you have wondered how confidential?

Communications between a lawyer and a client are governed by a long-established and special degree of confidentiality which has, in recent years, been elevated to an almost quasi-constitutional right.

The definition of solicitor-client privilege that continues to be used frequently, despite its age, was coined by John Henry Wigmore, an American jurist and expert in evidence.   The definition is as follows:

“Where legal advice of any kind is sought from a professional legal advisor, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.”

Much has been written about the importance of solicitor-client privilege and this short blog post cannot possibly provide a comprehensive analysis,  just a short snapshot.  In the simplest sense, however, solicitor-client privilege is absolutely necessary for the proper operation of our justice system and the rule of law.  This is  because it permits lawyers to provide committed client representation with undivided loyalty to the lawyer’s client.  A lawyer needs to have full and frank discussions with his or her client in order to provide that proper representation.

A recent Supreme Court of Canada decision (Canada A.G. v. Federation of Law Societies of Canada, [2015] S.C.J. No. 7) looked at the importance of solicitor-client privilege in the context of Canada’s federal anti-money laundering regime (which would have required disclosure of client names and certain other particulars in the context of certain financial transactions).   The Supreme Court ruled unanimously that the 2008 regulations requiring this disclosure were unconstitutional as they applied to Canadian lawyers and law firms.

There are only a few, very narrow, exceptions to solicitor-client privilege:  where there is an imminent threat to public safety, or where a party’s “innocence is  at stake.”

In the end, you can be confident that your conversations and communications with your lawyer are highly confidential, and that they need to be.

If you are interested in a comprehensive discussion of solicitor-client privilege in Canada, you may be interested in a paper prepared by Professor Adam Dodek of the University of Ottawa for the Canadian Bar Association.

Legal writing vs. Legalese

You don’t have to look too far to find “legalese” in your life. Look at your mobile phone bill or your iTunes terms of use or the so-called bumper-to-bumper warranty on your car. We really aren’t fans of it, either.

The thing is that not all legal writing is really legalese. Every profession and every industry has its own terminology, jargon and pet phrases. The legal profession is no different. For example, I had never heard or read the word “sedulously” until I went to law school (I  am yet to use it in speech or writing, but I bet it would kill in Scrabble).

Some of the terms we use have a very specific and clear meaning, even though the term may be completely unfamiliar to non-lawyers. For example, in a will, a “per stirpes distribution” has a clear and definite meaning that can save the lawyer from having to write a paragraph of explanation. The problem is that most people need that term explained and this is why we generally prefer the plain language version, even if it takes a little longer to say or write. (Incidentally, our support staff get the double-whammy of hearing both legal jargon and military slang – including the odd bit of jackspeak).

Aside from obscure terms, another complaint about legal writing is that it’s just too wordy. We learned in law school that lawyers are professionally descended from scribes, who were paid by the word. (I assure you that this is no longer the case.) This payment scheme explains how redundancies like “null and void” and “cease and desist” came about.

However, not every long-winded document is chock-full of filler words. We often see real estate deals or separation agreements written from scratch or filled in from a Mad Libs-like online form. The people that bring these in are often surprised to find out that their nice, short document does not do what they want it to do (or may be entirely unenforceable) because certain provisions are missing.  A comprehensively written document, while a bit of a long read, can go a long way to properly identify and protect your rights.

At Patriot Law Group, we are big on clarity. We want to do more for our clients than just deliver a fair result; we want our clients to understand what we’re doing and why we’re doing it, so they will understand what they’re signing and why. This is one of the reasons we prepare plans for our clients and it’s a big reason why we write in plain language as often as possible.

If I had to sum up my thinking on legal writing in two words, I would say, “eschew obfuscation.”

Lien on me …

With some regularity we get questions from clients who are trying to collect on a debt, or who who owe a debt.  We get asked , “Can I slap a lien on his property?”  (Or, if the client is owing the money,  “Can he or she slap a lien on my property?”)

What is a lien?

There are various definitions of a lien.  Very simply, it means a claim that one person has against the property of another person as a security for a debt owed.  The ultimate remedy for an unpaid debt to which a lien has attached is that the property can be sold to satisfy the debt.

The authority for a lien must be rooted in either a specific statute, or the “common law” (the judge-made law that has developed over centuries of court decisions and precedents).

What kinds of liens exist in Alberta law?

There are a large number of liens encountered in Alberta, reflecting the diversity of situations in which a debt can arise relating to specific property.  Liens can apply to either personal property (moveable things) or real property (land).

Here are just a few examples of liens specifically provided by statutes, and some of the circumstances in which they can arise:

  1. Builder’s Lien. Thinking about not paying a contractor who installs new windows for your home?  The contractor can register a lien against title to the home.  This is definitely the most widely known lien.
  2. Warehouseman’s Lien. Have you put goods into a storage facility?  If you don’t pay the storage costs, this lien allows the goods to be detained and then sold if you don’t pay up.
  3. Woodmen’s Lien. Always dreamed of being a lumberjack?  This is your protection:  you have a lien on any logs or timber for the labour or services you provided.  (We actually had one of these recently, which gave me the idea for this post.)
  4. Garage Keeper’s Lien. Don’t have enough money to pay your auto mechanic?  He may just assert a lien and keep your vehicle until you can pay. Not very convenient in this day and age.
  5. Animal Keeper’s Lien. Not able to pay for Fido’s boarding costs at the end of your vacation? Pay up or the Kennel operator may use this lien to sell Fido to satisfy the debt.
  6. Wharf Keeper’s Lien. Wait … what? Yes, if you keep your boat at a wharf and do not pay the applicable fees, the Wharf Keeper can detain your boat until you pay up.  (This is actually one of several types of lien covered by the Possessory Liens Act.)

How can you put a lien on someone’s property?

Putting a lien on another person’s property should not be done lightly.  There are strict requirements that must be in place, and often specific documents must be used and specific processes must be followed.

There are also strict timelines to be observed.

Failure to observe timelines or necessary procedures can result in the lien being lost.

The overall message is that while liens are a powerful mechanism to use to enforce payment of a debt, great care is required or it can back-fire on you and you can end up at the wrong end of a lawsuit for unlawfully asserting a lien.

What should you do if a lien has been asserted against your property?

This one is simple:

  1. If you don’t dispute the debt that the lien is attempting to enforce, pay it. The property must then be returned to you (or in the event of a lien registered against your land, the lien must be discharged).
  2. If you dispute the debt, get some legal advice. As indicated above, the law relating to liens can be very technical.  So, go to the technical expert in the law:  your lawyer.