Patty Farnham, Author at McCuaig Desrochers LLP

Filing a Civil Claim in Alberta’s Provincial Court

August 11, 2020 by Patty Farnham

Have you ever heard someone talk about “small claims court” and wondered what that meant? Alberta has various levels of courts: Provincial Court, the Court of Queen’s Bench, and the Court of Appeal. Each level of court has specific jurisdiction (i.e. authority to hear certain matters), sometimes with overlap. In particular, you may have the option to bring a civil claim in either Provincial Court or the Court of Queen’s Bench. Provincial Court is sometimes informally referred to as “small claims court” and may offer a faster, less complex resolution than proceedings in the Court of Queen’s Bench. This article is intended as an introductory overview about the civil processes in Provincial Court, and why you may want to pursue your civil claim there.

What is a civil claim?

Provincial Court covers a variety of legal areas, including some criminal matters (for adults and youth), family matters, traffic violations, and offences under provincial statutes and regulations and municipal bylaws. Generally speaking, disputes between individuals and/or organizations which do not fall under one of these areas of law may be considered a civil matter. Common examples of civil matters include employment disputes, contract disputes, and landlord and tenant disputes. (Please note that landlord and tenant disputes may also be resolved through the Residential Tenancy Dispute Resolution Service (RTDRS) – see https://www.alberta.ca/residential-tenancy-dispute- resolution-service.aspx for more information on this venue and process.)

What civil matters can Provincial Court hear?

Provincial Court is currently able to hear civil claims and counterclaims seeking $50,000.00 or less. If your civil claim or counterclaim is for more than $50,000.00, you may still bring it in Provincial Court but must be willing to abandon that portion of your claim/counterclaim greater than $50,000.00. Abandoning part of your claim means that you are agreeing to forfeit that amount greater than $50,000.00 and will not be entitled to recover it, now or at any time in the future, in Provincial Court or any other court.

Provincial Court has jurisdiction to hear most civil matters, but cannot decide civil claims or counterclaims that raise the following issues (as per s. 9.6(2) of the Provincial Court Act, RSA 2000, c P-31):

title to land;
validity of any devise, bequest, or limitation;
malicious prosecution, false imprisonment, defamation, or criminal conversation;
anything done by a judge, justice of the peace, or peace officer while that person is executing the duties of that office; or
recovery of taxes by a local authority or school board, other than taxes imposed in respect of the occupancy of or an interest in land that is itself exempt from taxation.

If you are uncertain whether your civil claim falls into one of these areas, please consult with a lawyer.

How to start a civil claim in Provincial Court

To bring a civil claim in Provincial Court, you need to fill in and file a Civil Claim form. Provincial Court recently updated its forms, which can be found on its website (https://www.albertacourts.ca/pc/areas-of-law/civil/forms). You do not provide evidence at this point in the process. There is currently a $100.00 filing fee for civil claims up to and including $7,500.00, and a $200.00 filing fee for civil claims over $7,500.00. This filing fee is payable at the time of filing your civil claim.

Generally speaking, you have two years from the date of discovery of your claim to file a civil claim with the court. This is known as the limitation period; if you do not file your civil claim within the applicable limitation period, there is a good chance that your claim will be dismissed. Please consult with a lawyer to accurately determine the limitation period for your specific claim.

If you are named as a defendant in a civil claim filed with Provincial Court, you may defend the civil claim by filing a Dispute Note form with Provincial Court within 20 days from the date of service of the civil claim if served in Alberta, or 30 days from the date of service of the civil claim if served outside Alberta. A defendant may also set out a counterclaim (i.e. a claim against the plaintiff) in the Dispute Note form.

Next steps in Provincial Court

Provincial Court has adopted a “triage” process used after Civil Claim and Dispute Note forms are filed. Sometimes a civil matter is resolved after one step; sometimes multiple steps will be used on the path to resolution.

First, civil matters are considered for mediation. If a matter is selected for mediation, the parties will be notified of a date and time to attend. Mediations are usually scheduled for two to three hours, and are often held in a more informal space like a boardroom. Parties must attend mediation or risk having their claim/defence/counterclaim struck. Ahead of mediation, parties should collect documents relevant to their position (for example, printed copies of emails, text messages, letters, invoices, contracts, photographs, and/or reports) and consider how they would be willing to settle the matter. During mediation, each party will be provided with the opportunity to present their position. The mediator(s) will then help the parties to explore possible settlement options. The advantage of mediation is that parties can be creative – they can come to settlement agreements with terms that a judge would not be able to order. If the parties come to a settlement agreement during mediation, the matter is concluded at this point. If the matter is not settled during mediation, it is sent on to the next “triage” option.

If a civil matter is not appropriate for mediation, or is not settled during mediation, it is often scheduled for a pre-trial conference (also known by the shorthand “PTC”). A PTC is similar to mediation, but takes place in front of a Provincial Court Judge and usually in a courtroom. PTCs are usually scheduled for one hour. Generally speaking, PTCs are “off the record”, meaning that what the parties discuss during the PTC cannot be used if the matter goes to trial. However, there are exceptions to this, and a Judge can use her or his discretion to put admissions made by parties or other notes on the file for the Trial Judge to review.

Like a mediation, parties who fail to attend a PTC risk having their claim/defence/counterclaim struck. Parties are expected to exchange all records and documents relating to the matter typically 14 days before the PTC. This allows all parties to review the evidence and come to the PTC prepared to discuss the matter and provide their positions. During a PTC, parties are given an opportunity to present their positions, and then the Judge will help the parties to identify the facts that are agreed on and the facts that are in dispute, the legal issues that are central to the claim, the evidence that may be required if the matter goes to trial, and possibly the strengths and weaknesses of the parties’ positions. The Judge will also assist the parties in attempting to settle the matter. If the parties come to a settlement agreement during a PTC, the Judge may issue a Court Order setting out the terms of the settlement or direct the parties to exchange correspondence confirming the settlement terms. If the matter is not settled during a PTC, the Judge will schedule the matter for trial and may set deadlines for trial preparations. A Judge who has conducted a PTC is usually not the same Judge who will hear the trial.

Provincial Court has also incorporated two more recent resolution tracks to which parties may also be referred:

Binding Judicial Dispute Resolution (also known by the shorthand “BJDR”) – a civil matter can proceed to a BJDR if all parties consent. It is similar to a PTC, in that parties are expected to exchange all records and documents ahead of the BJDR. A Judge also presides over a BJDR, and if the parties are not able to come to a settlement agreement, the Judge may give a final and binding judgment, which cannot be appealed;
Simplified Trial – a simplified trial is intended for civil matters that can be resolved in approximately one hour, and are generally scheduled in lieu of a PTC. Each party must provide a trial statement ahead of the simplified trial date, setting out the facts and evidence the party intends to rely on, a list of witnesses to be called and summary of evidence expected to be provided by the witnesses, and copies of all relevant documents and records. The Judge will render a judgment (either at the end of the simplified trial or at a later date), which may be appealed.

If none of the preceding options have settled a civil matter, it will be scheduled for trial to be heard by a Provincial Court Judge.

Considerations for bringing a civil claim in Provincial Court

There are various reasons that a party may decide to file a civil claim in Provincial Court instead of in the Court of Queen’s Bench:

While individuals can self-represent (i.e. represent themselves without hiring a lawyer) in Provincial Court and the Court of Queen’s Bench, corporations can only self-represent in Provincial Court. A corporate party may therefore choose to file a civil claim in Provincial Court, so that it can be represented by an agent (for example, an officer or director of the company) without having to hire a lawyer.
Provincial Court generally has less complex proceedings than the Court of Queen’s Bench. As illustrated by the information above, there are generally less litigation steps for a civil claim in Provincial Court compared to in the Court of Queen’s Bench, and Provincial Court generally provides more guidance to parties than the Court of Queen’s Bench. Provincial Court automatically considers the most appropriate resolution path for each civil claim and directs the parties thusly; while parties can take steps to pursue a different resolution path, such guidance from the court can be particularly helpful to parties who have not previously been involved in litigation.
The variety of court-directed resolution options is also unique to Provincial Court. While parties involved in a civil claim in the Court of Queen’s Bench may also pursue mediation, this is typically done outside the court and at the parties’ own expenses. Provincial Court offers more options for resolving claims before getting to the trial stage, which can help to save parties time and money.
Provincial Court also generally offers faster resolution of civil claims than the Court of Queen’s Bench, by diverting claims to different resolution options and by generally being able to schedule matters sooner than the Court of Queen’s Bench.

These are just some of the reasons why a party may decide to file a civil claim in Provincial Court. However, there are certain situations in which it may be more advantageous or appropriate to file a civil claim in the Court of Queen’s Bench. It can therefore be helpful to consult a lawyer on the specific facts and legal issues of your situation before filing your civil claim.

COVID-19 measures in Provincial Court

All levels of court in Alberta have implemented various measures in response to COVID-19. As of the date of this article, Provincial Court mediations are being conducted remotely (telephone, WebEx, or Zoom); pre-trial conferences are being conducted by teleconference in areas outside of Edmonton and Calgary (with teleconference participation encouraged in Edmonton and Calgary); physical distancing and sanitization protocols are in place in courthouses; and filing procedures have been amended for non-urgent documents. Please visit the Provincial Court’s website for up-to-date information.

This article was written by Allison Purdon, a lawyer at McCuaig Desrochers LLP.

©2020 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.

Common Legal Issues When Buying or Selling a Home

July 6, 2020 by Patty Farnham

Most people only buy and sell a home once or twice in their lives, so of course they have questions about the process. Unless you are in the business of buying and selling homes you would have no reason to be aware of the common legal issues involved in buying or selling a home in Alberta.

Following are some of the common legal issues you may encounter when looking to buy or sell a home in Alberta. Each circumstance has a unique set of facts and therefore nothing in this article should be taken as specific advice applying to your situation, but rather general information. If you require advice on a specific legal matter relating to one of the issues below, or generally in buying or selling a home, please contact one of our Edmonton residential real estate lawyers to assist you.

Conditions

There are several types of conditions commonly found in real estate purchase contracts. These conditions are typically in favour of the buyer, and it is up to the buyer to release those conditions for a purchase to proceed. The most common conditions are:

- Financing

As a buyer, a financing condition allows you to get approval from your financial institution for a mortgage on the particular property you are planning to purchase. Even with a pre-approval for a mortgage, many lenders will require an appraisal or other evaluation to ensure that they are confident the property you are planning to purchase holds the value you intend to pay. If you are counting on financing to be able to complete a purchase, you will never want to waive a financing condition until you ensure you have written approval in hand relating to the property you wish to purchase.

- Home Inspection

Home inspections are a condition in favour of the buyer to allow an inspection report to be completed. If the inspection report finds deficiencies with the home, depending on the circumstances, the buyer may choose to:

- - accept the agreement as is knowing of the deficiencies; or
  - renegotiate the agreement to address the deficiencies; or
  - terminate the agreement and simply walk away from the property..

- Sale of a Buyer’s Home.

Conditions regarding the sale of a buyer’s home are used where a buyer cannot afford to purchase a property until their current home is sold. If your offer is attractive to a seller, the seller may enter into an agreement to allow the buyer to purchase the property on condition they first sell their home. Typically, these provisions will be time limited in nature. Sometimes these provisions may provide an exclusive window for the buyer under which the seller cannot sell their home to another party. They can also be (and more commonly are) structured such that the seller may continue to show and attempt to sell their home so long as the condition is outstanding. Usually the provision is structured such that should the seller wish to accept another offer, the buyer is given a period in which they can either choose to remove this condition and proceed with the purchase, or alternatively lose out on their chance to buy the property.

2. Real Property Reports

Real Property Reports or RPRs are surveys of a property that outline a property’s boundaries and note improvements/landmarks such as the outline of buildings, decks, sheds and fences. They typically are signed off on by the municipality governing the property in question as falling into one of three categories:

1. 1. Compliant
  2. Non-Conforming
  3. Non-Compliant

If a property is compliant that means that the municipality has evaluated the survey and determined that the property is compliant with municipal bylaws. This is ideally what you want.

If a property is non-conforming this means that the property was once compliant with bylaws, but those bylaws have now changed such that something on the property does not conform with current bylaws. In these cases, the municipality is allowing the structure to remain as is, but there could be an issue in the future if you replace a structure – the replaced structure will need to conform to the newer bylaws.

Non-Compliant means there is an issue that violates municipal bylaws and will need to be addressed. As a buyer or a seller, you will want to discuss solutions to this issue with your lawyer.

As a seller, the best way to avoid issues with a Real Property Report in the midst of a sale of your home is to order one ahead of any sale. In that way if it does find an issue, you may have time to rectify it before the sale.

In some cases, a buyer may be able to purchase title insurance as an option to close transactions where a Real Property Report is not available. This is a more complex issue and you may wish to discuss this with your lawyer.

3. Latent vs Patent Defects

The law in Alberta when it comes to purchasing real estate is “buyer beware”. In other words, you have an obligation as a buyer to make a reasonable inspection of the property for defects. If you choose not to do so then the consequences of that fall upon you.

This applies to what is known in the law as “Patent Defects”. These are defects that a reasonable inspection by a prudent inspector should reveal. There is generally no obligation on the seller to disclose Patent Defects.

“Latent Defects” are defects that would not be revealed by a prudent inspection. A seller is obligated to disclose all Latent Defects within their knowledge when selling a property. If a seller is aware of a Latent Defect but does not disclose it, the buyer may have a cause of action against the seller for any damage they suffer as a result.

If you have questions regarding whether or not you have an obligation to disclose a defect in your home as seller, or you have discovered a defect in a home you have purchased, you should contact a lawyer to receive advice on dealing with your specific issue.

4. Role of a Lawyer in Your Real Estate Transaction

The role of a lawyer in a real estate transaction is most commonly to transfer title and to deal with financing (both securing it for a buyer or paying it out for a seller). Often lawyers are not involved prior to the real estate contract being signed, but that doesn’t mean they shouldn’t be if you have questions or need advice. Should you have questions regarding legal issues or the form of your real estate contract it may be advisable to contact a real estate lawyer prior to signing your real estate purchase contract. Once you sign that contract you are bound to its terms, and sometimes speaking with a lawyer will save you from stepping in some common pitfalls related to buying or selling real estate. You can also add a condition to your real estate purchase contract allowing for a lawyer’s review, but if you intend on doing so we recommend you speak with a real estate lawyer to ensure that condition is properly structured and enforceable.

If you are interested in buying or selling your home, our Edmonton residential real estate lawyers would be pleased to assist you. You can see our full listing of our Edmonton residential real estate lawyers here: https://www.mccuaig.com/practice-areas/residential-real-estate-lawyers-edmonton/

This article was written by Benjamin Seigel.

A Look at Wills and Estate Plans – What’s included in my estate plan?

July 3, 2020July 3, 2020 by Patty Farnham

What is my Estate?

An estate, when referred to in the financial and legal sense of the word, is an individual’s total assets, minus any of their liabilities(debts). Put another way, it is an individual’s net worth. An estate refers to everything of value that an individual owns— houses, stocks, bonds, cash and bank accounts, collections of art, antique items, family heirlooms, jewellery, insurances, investments, pensions, and all other forms of personal property such as boats, mobile homes and RVs. Additionally, in some circumstances insurance policies, RRSPs, or pension plans and other assets, which can be designated, can also form part of someone’s estate if the designated beneficiary is the estate. However, if those types of assets are designated to someone other than the estate, these assets will not form part of the estate. Instead, those assets will flow directly to the specified beneficiary of that specific asset. This means that these assets, designated to a specific person, would not follow what is instructed in the last will and testament.

There are also other considerations for determining whether property will be excluded from an estate. As mentioned, it is important to determine what property will be excluded from an estate because that property will not be dealt with according to that person’s will. This can result in serious and unexpected consequences when administering and estate or making a probate application. If the individual in question is deceased, their intentions can be difficult to determine in relation to these assets which can flow outside of the estate. This can lead to confusion and division amongst family members already dealing with the loss of a loved one.

Joint Assets

In addition to assets with specified beneficiaries, assets that are jointly owned can also be excluded from the estate. At times, joint assets can allow the executor (also known as the personal representative) to avoid the need for a probate application to administer an estate. This can save time and money in the administration of an estate. Joint ownership of assets is common and can be a useful estate planning tool, if implemented correctly. However, used incorrectly joint ownership can cause problems and confusion, which will increase the time and costs of administration to the estate.

Property owned by spouses is often owned jointly. This is noted on a home’s certificate of title of the property as joint tenants. The implication of joint tenancy is that when one joint owner dies, the property is transferred directly to the other joint owner and does not form part of the deceased person’s estate. This type of transfer occurs because the surviving owner has a right of survivorship in the property.

Utilizing the right of survivorship, jointly held property can allow the executor or personal representative to avoid the need and the cost associated with acquiring a grant of probate. One of the ways this can be done by parents is by adding their children as a joint tenant to their property. While this can be used as an effective estate planning technique, it also has the potential to create problems. For example, there are different legal considerations that apply for adult children and non-adult aged children. If a parent is implementing this type of estate planning strategy, it is crucial to determine if the intent of the parent is to leave the property entirely to the adult child, now jointly on title of a home or other property, or if the parent’s intent is that all beneficiaries of their estate should share that property according to the parent’s will. There are valuable reasons for a parent to have their adult children hold property in such a manner but doing so without proper legal guidance can create numerous complications.

In some cases, transfers of property into joint names have resulted in lengthy and contentious court challenges. For example, in one Alberta case Pohl v Midtal, 2017 ABQB 711 a parent was unable to remove their adult child as a joint tenant to property that they had previously added. When they had initially added the child, for estate planning purposes, their relationship with that adult child was positive. Subsequently, the relationship soured, and the parents attempted to revoke that adult child’s joint tenancy from the property. The court ruled that they were not permitted to do so.

Another case, Coates v Coates, 2017 SKQB 303 involved a mother who added her four children as joint tenants to the title of some of her properties. One of the children racked up debts and a judgment was issued against him. The child’s creditors registered their judgment for payment of the child’s debts against the jointly held property, and ultimately forced the sale of that property for the payment of the debt.

If you are considering adding your child or another person to your property as a joint owner, we invite you to seek legal advice prior to effecting that change, to review all of the risks involved, and the options available to create the estate plan that best matches your wishes. Alternatively, if you believe a loved one’s estate is not being properly administered, we would be happy to review the administration and advise you of your options.

McCuaig Desrochers, has been assisting Edmontonians and Albertans for 125 years. Our team of estate lawyers can assist in the planning and the drafting of your estate. We are also available to assist in an application for probate or administration, or to challenge someone else’s improper administration of an estate.

This article was written by Patrick Coones. Patrick is a lawyer at McCuaig Desrochers LLP.

COVID-19 NOTICE

June 26, 2020June 26, 2020 by Patty Farnham

At McCuaig Desrochers LLP we are continuing to follow strict protocols and guidelines in respect COVID-19. Acknowledging that this will be a factor for months ahead, we remain committed to serving our clients and keeping our employees safe during this challenging time.

Our office remains open for business; however, for the safety of our staff and clients alike, we are not permitting clients to attend at our premises at this time. Virtually all of our business is being conducted via telephone, email, and videoconference. New rules are in place to allow for many legal documents to be completed by videoconference. Our lawyers are all equipped to serve you while working remotely.

Like you, we are not sure what the “new normal” will look like, but we continue to provide full legal services to our valued clients. You can reach our team through their normal office telephone numbers and email addresses.

Please feel free to contact us directly with any questions or concerns you may have. For the direct-line phone numbers and email addresses of our lawyers, please visit www.mccuaig.com and reference the individual lawyers’ profile pages.

Sincerely, McCuaig Desrochers LLP

UPDATED: Estate Planning During the COVID-19 Pandemic

May 26, 2020 by Patty Farnham

Much of the work done with lawyers these days can be accomplished by phone or e-mail. Estate planning can be a bit more challenging during quarantine or self-isolation due to the requirement for witnesses on estate planning documents. However, the Alberta government has recently issued a Ministerial Order that will allow lawyers to fulfill witnessing requirements for estate planning documents without meeting with you in person. We have Edmonton Wills and Estate lawyers to assist you in putting in place an estate plan. Below we will discuss what options are available, and how you can work with one of our estate planning lawyers during quarantine or self-isolation to complete an estate plan.

What documents make up an estate plan, and what are the witnessing requirements for each?

Personal Directive – This document names someone (an “agent”) to make health care and living decisions on your behalf should you lose capacity to do so. This document requires you and a witness to sign in each other’s presence. That witness cannot be someone named as your agent, or the spouse or interdependent partner of either yourself or someone named as your agent. This document should also go in your “green sleeve”.

Enduring Power of Attorney – This document names someone (an “attorney”) to control your assets and make financial decisions on your behalf should you lose capacity to do so. This document requires you and a witness to sign in each other’s presence. That witness cannot be someone named as your attorney, or the spouse or interdependent partner of either yourself or someone named as your attorney.

Will – This document governs what happens to your estate when you die and names someone (an “executor” or “personal representative”) to bring in all your assets, pay your debts and distribute your property to your beneficiaries.

There are two types of wills available to most people that are valid under the law in Alberta:

Formal Will – This document requires you and two witnesses to all sign in each other’s presence. If a witness to the will is a beneficiary under the will, or the spouse or interdependent partner of a beneficiary under your will, the gift to that beneficiary is considered void unless the court orders otherwise.
Holograph Will – This document requires you to write out the will entirely in your own handwriting and to sign it. It does not require you to have any witnesses.

How can one of our estate planning lawyers help you complete an estate plan during quarantine or self-isolation due to the COVID-19 corona virus?

The recent Ministerial Order (M.O. 39/2020) issued on May 15, 2020 by the Alberta Government deems that the witnessing requirements for Personal Directives, Enduring Powers of Attorney and Wills may be completed via videoconference technology if a lawyer is providing legal advice in respect to the making, signing and witnessing of those documents. The order specifies that the witness and party signing the document must be able to hear and see each other in real time, so all parties must have access to videoconferencing technology for this method to work.

This relaxing of the need for witnesses to meet in person appears to be a temporary measure during the COVID-19 pandemic, and additionally can only be utilized if a lawyer is involved in this process.

Can you help me with an estate plan if I live outside of the Edmonton area?

We are happy to work with anyone in the province of Alberta to assist with your estate plan. In normal circumstances it may be easier to work with a lawyer near you due to the witnessing requirements for your estate plan, however if you are planning to execute an estate plan remotely we would be happy to assist you. As laws regarding estate planning vary province by province we are not able to assist those who live outside Alberta.

Should you have questions regarding the above or if you are interested in speaking with one of our estate planning lawyers about the possibility of putting an estate plan in place during the COVID-19 public health emergency, please feel free to reach out to any of our estate planning lawyers by telephone or e-mail. A full listing can be found here: https://www.mccuaig.com/practice-areas/wills-estate-lawyers-edmonton/

This article was written by Ben Seigel. Ben Seigel is a lawyer at McCuaig Desrochers LLP.

Separating Unmarried Couples and the Family Home in Alberta – the Family Property Act and the Dower Act

May 21, 2020May 21, 2020 by Patty Farnham

In Alberta, adult interdependent partners, or to use a phrase people are more familiar with, “common law” couples, now have similar protections to married couples when it comes to property division when their relationship breaks down. These are generally couples who have lived together in a “relationship of interdependence” for at least three years, or for a shorter period of time if they have children together, or couples who have chosen to sign an “adult interdependent partner agreement”.

On January 1, 2020 the new Alberta Family Property Act came into force and brought with it a sweeping change to the law which gave these types of couples specific rights to property division rights. You can find a brief primer on the Family Property Act and how it may affect you here.

But what happens when adult interdependent partners separate, and one of them (or both of them) jointly own a home? Or if just one of them owns the home which they both lived in during the relationship? The answer may be complicated, and we recommend you reach out to one of our Edmonton Family Law Practice Group lawyers to better advise you on your personal circumstances. This article is meant only for basic legal information, and it is not to be considered legal advice.

Here are two possible scenarios, explained simply:

Partner A purchased their home before the relationship began, and Partner B moved in. Partner B does not have their name on the title to the house, but the parties lived there together for 10 years. The house increased in value, from $20,000 when they moved in together to $100,000 when the relationship ended years later.
- In this case, the value of the house equity at the time of moving in together (the $20,000) may be “exempt” and Partner A can keep that amount for themselves, however, the $80,000 increase in value of the home over the years of the relationship may have to be shared with Partner B, even though Partner B, even though Partner B does not have their name listed on title as an “owner” of the house.
- This will also apply to the value of other assets that Partner A or Partner B had at the time they moved in together, such as investment accounts, other real property like houses or cabins, or other valuable personal property.
Partner A and Partner B decide to purchase a house together before moving in together for the first time. They each contribute 50% of the down payment ($20,000 each) to buy their dream home. Several years later, the house is worth $100,000. Now, according to the Family Property Act, the equity or value in this home would be divided equally. There may be some consideration for each person to receive 50% of their initial down payment back first, and then divide the rest equally. This is generally the case even if one of the partners was the only one paying for the mortgage and other expenses for the house. The Family Property Act does not consider “who paid for what” for this kind of property that is obtained during the relationship.

It is very important that people seek out legal advice early, and that they consider entering into a cohabitation agreement if they wish to protect assets they may have owned before moving in with a new partner. If no prior agreement is reached between the parties with independent legal advice from lawyers, then the legislation will apply if the relationship ends, whether people want it to or not. It may be too late by then to have a former partner agree to waive their rights they have to the other’s property.

What about if Partner A decides to sell the house they own in their own name without sharing any of the proceeds with Partner B?

In Scenario 1 above, an issue of concern is that Partner A, after the relationship ends, may want to sell the house. Since Partner B is not identified as an “owner” of the house and their name is not on the title, Partner A does not have to get their permission before selling, in the way that two people would have to if they were both named on title to the house as joint owners.

If the partners above were legally married, a piece of legislation going back over 100 years and still in force in Alberta called the Dower Act applies to them. Dower prevents any owner of a “homestead” (today’s home) from selling or mortgaging the property without first getting the written permission and consent of their spouse. The legislation also has some other protections for the spouse such as the right to live in the house. This applies whether or not the spouse has their name on the title or not. The Dower Act only applies to married spouses, and so adult interdependent partners or common law partners are not protected by this historic legislation.

This means that a non-married, adult interdependent or “common law” partner who is not listed as an owner to the family home could potentially face a situation where their former partner tries to sell or mortgage the valuable property without their consent, and perhaps keep or spend the proceeds from the sale for themselves. They simply would need to swear an affidavit saying they are not married to prove that the Dower Act does not apply to them, without the need to disclose the common law relationship as part of the land sale.

What can you do if you are in this situation?

There are legal actions that people can take to protect their rights, such as filing a lawsuit under the Family Property Act to fairly divide property, and other important steps that can be taken immediately to protect their rights and interests, which should be done with the advice of a lawyer. There are options as well such as bringing a court application to prevent certain steps from taking place, registering at the Land Titles Office, and engaging in negotiations, mediation or other forms of dispute resolution.

Don’t hesitate! The Family Property Act has time deadlines to claim rights under it through a court action. At the most an adult interdependent partner has three years from separation to bring a claim, but only one year from the sale or transfer by the other partner of property like the family home.

We strongly recommend you reach out to one of our Edmonton Family Law Practice Group members for advice if you think something like this could happen or is happening to you (time is of the essence!), or if you are separating from your common law partner and one or both of you own property in your name.

This article was written by Megan Dawson. Megan Dawson is a lawyer at McCuaig Desrochers LLP, and practices in the areas of Family Law.

NOTICE RE CORONAVIRUS RESPONSE

May 7, 2020 by Patty Farnham

McCuaig Desrochers LLP continues to monitor the changing guidelines in respect of the coronavirus (COVID-19) outbreak. We remain committed to serving our clients and keeping our employees safe during this challenging time. We continue to meet our responsibility to staff, their families, our clients, and our community and have implemented numerous precautionary measures. Our office remains open for business; however, for the safety of our staff and clients alike, we are not permitting clients to attend at our premises at this time. Virtually all of our business is being conducted via telephone, email, and videoconference. Accommodations have been made by the Provincial government to allow for many documents to be completed by videoconference. Our Lawyers are all equipped to serve you while working remotely. Please be assured that we remain dedicated to serving our valued clients. You can continue to reach our team via their normal office telephone numbers and email addresses. We continue to refine our business continuity practices to ensure that we are doing our part while being responsive to your legal and business needs. Please feel free to contact us directly with any questions or concerns you may have. For the direct-line phone numbers and email addresses of our lawyers, please visit www.mccuaig.com and reference the individual lawyers’ profile pages. Sincerely, McCuaig Desrochers LLP

Alberta Family Courts Weighing in on COVID-19 Parenting Matters

May 6, 2020May 4, 2020 by Patty Farnham

Alberta now has its own written Court decision for emergency parenting applications. In SAS v. LMS, 2020 ABQB 287, the father of two children applied to have the current parenting arrangement enforced after the children’s mother informed him that their children would be staying with her due to her concerns with his conduct during the current COVID-19 environment.

While the Alberta Courts are still only hearing emergency or urgent matters, which require special permission from the Court to be heard, Justice Graesser made it very clear that unilateral actions, or what are frequently referred to as “self-help remedies” will not be accepted as proper. Justice Pazaratz’s point in Ribeiro v. Wright, 2020 ONSC 1829 (previously reviewed by the McCuaig Family Law Group) continues to apply to Alberta families: parents need to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings. Parents need to seek court intervention before making any changes to their existing court orders if they cannot agree with the other parent, except in extreme circumstances. If you think such circumstances could apply to you, please contact one of our Family Law Group lawyers for further advice.

Justice Graesser provided a 9-point summary of his conclusions as to what the Court will consider when assessing parenting in the face of COVID-19. These considerations include: acting in reasonably and with good faith; following court orders; COVID-19 is not an automatic change in circumstances; and, parents who are non-compliant with COVID-19 safety measures can expect no second chances.

A second issue in this case was that of “cohorts” (two groups who do not live in the same home who may interact due to each group being positive the other is properly isolated and uninfected), as the father raised the concept of cohorts in relation to his regular interaction with a coworker and her household. Justice Graesser did not accept the concept of “cohorts” as a loophole to Dr. Hinshaw’s previous suggestion of partnering with a “cohort family”, allowing people to expand their social circle (from her March 26, 2020 announcement). Justice Graesser determined that separated families, who share parenting, are themselves a “cohort family” and that strangers or other groups should not be introduced to this “cohort family”, nor should the “cohort family” be introduced to strangers or other “cohorts” unless all families involved are fully aware and trusting with this arrangement. Parents who share parenting cannot establish a “cohort family” with outside people/groups as that would be introducing a stranger to the actual “cohort family”, which consists of separated parents and their children.

With the continued evolution of the Court’s application of COVID-19 safety measures to parenting arrangements, as well as navigating emergency access to the Court, we recommend you contact one of our Family Law Practice Group members at McCuaig Desrochers as we would be pleased to assist you with how to best deal with any parenting concerns you may have.

Cory Dawson is an associate at McCuaig Desrochers LLP and a member of our experienced Family Law Practice Group.

Where There’s A Will

May 6, 2020April 8, 2020 by Patty Farnham

It is timely to post a 2019 Podcast from the Edmonton Community Foundation where our very own Mike Simons participated in a discussion about the importance of having not only a will but also a power of attorney and a personal directive. You can hear their podcast by clicking this link:

https://www.thewellendowedpodcast.com/episodes/episode-53-where-theres-a-will/

Estate Planning During the COVID-19 Pandemic

April 14, 2020April 6, 2020 by Patty Farnham

Estate Planning during Quarantine or Self-Isolation due to COVID-19 or Corona Virus

Much of the work done with lawyers these days can be accomplished by phone or e-mail. Estate planning can be a bit more challenging during quarantine or self-isolation due to the requirement for witnesses on estate planning documents. However, we have Edmonton Wills and Estate lawyers to assist you during these times. Below we will discuss what options are available, and how you can work with one of our estate planning lawyers during quarantine or self-isolation to complete an estate plan.

1) What documents make up an estate plan, and what are the witnessing requirements for each?

There are two types of wills available to most people that are valid under the law in Alberta:

Formal Will – This document requires you and two witnesses to all sign in each other’s presence. If a witness to the will is a beneficiary under the will, or the spouse or interdependent partner of a beneficiary under your will, the gift to that beneficiary is considered void unless the court orders otherwise.

Holograph Will – This document requires you to write out the will entirely in your own handwriting and to sign it. It does not require you to have any witnesses.

2) How can one of our estate planning lawyers help you complete an estate plan during quarantine or self-isolation due to the COVID-19 corona virus?

This will depend in part on whether you have witnesses available you can meet in a safe and appropriately distanced manner. All of the above documents require your witnesses to be physically present to witness each other’s signatures. However, as long as you and your witnesses can physically see all of the signatures being placed on the paper you can be separated by a space of two meters and/or could have a clear barrier such as a car window between yourself and witnesses.

If you can meet safely with TWO appropriate witnesses

If you have two adult witnesses available to execute documents as set out above, you will be able to work with a lawyer by phone and e-mail to create a traditional estate plan. You can then execute that estate plan with those witnesses and send a scanned (or physical) copy of the documents to your lawyer to review and ensure they are executed properly.

Typically witnesses to these documents would execute affidavits of execution at the time for signing to allow for future official use of these documents, but in present circumstances this can be left until either use of these documents is required, or this public health emergency has concluded.

If you can meet safely with ONE appropriate witness

You will be able to execute a Personal Directive and Enduring Power of Attorney with your witness as outlined above after working with a lawyer by phone and e-mail. You can then send a copy to your lawyer to ensure it was executed properly.

If you have access to only one appropriate witness, there are still options available to you to put a Will in place, which are explained below.

If you cannot meet safely with ANY appropriate witnesses

If you do not have access to any appropriate witnesses you will not be able to execute a valid Personal Directive or Enduring Power of Attorney, but there are some options to put a Will in place.

The first option is to execute a Holograph Will. Our estate planning lawyers can assist you in this by helping you determine your wishes for your estate and the appropriate issues that need to be accounted for in a Will via phone and e-mail. They can also help you draft this document either by working with you over the telephone or videocall as you physically write the Holograph Will, or alternatively can send you by e-mail a document with the words that you should copy to execute your own Holograph Will. You can then send a copy of the executed Will to your lawyer to review and ensure that what you have written correct reflects your wishes. As a Holograph Will must be entirely in your own writing, this option works better for fairly simple Wills.

The second option is to work with your lawyer to create a more traditional Formal Will, and to execute the same without witnesses. This does not result initially in a valid Will in Alberta, but in a Will that should be capable of validation by court application under section 37 of the Wills and Succession Act, SA 2010, c W-12.2.

Under this second option, at the end of this public health emergency, you should make an appointment to meet with your lawyer when it is safe to do so and execute another copy of the Will with two witnesses, to meet the required legal formalities. Otherwise, there will be some additional costs to your estate to make an application to validate your Will after you’ve passed away. There are also no guarantees that a court will accept and validate that Will, but your lawyer should work with you to create the best evidence possible to show the court that the Will should be validated should it need to be used.

3) Will these witnessing requirements be changed to allow lawyers or other people serve as witnesses via videocall or other means if this public health emergency continues for an extended period of time?

The short answer is maybe. There has been some guidance issued for the commissioning of certain types of affidavits by electronic means over videocall, however as of April 2, 2020 there has been no direct indication that the witnessing requirements for estate planning documents in Alberta will be changed.

4) Can you help me with an estate plan if I live outside of the Edmonton area?

We are happy to work with anyone in the province of Alberta to assist with your estate plan. In normal circumstances it is easiest to work with a lawyer near you due to the witnessing requirements for your estate plan, however if you are planning to execute an estate plan remotely we would be happy to assist you.

This article was written by Benjamin M. Seigel. Ben is a lawyer at McCuaig Desrochers LLP

©2019 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.

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