Patty Farnham

The Alberta Courts are currently responding to the COVID-19 pandemic and doing their best to reduce the spread of this virus along with the rest of us. As such, for family law matters, new applications to the Court are limited to emergency and urgent cases only until at least May 1, 2020. Please see the latest updates here:

Court of Queen’s Bench and Provincial Court of Alberta information: https://albertacourts.ca/qb/resources/announcements

At McCuaig Desrochers LLP, our Family Law Practice Group remains prepared help you navigate these uncertain times with urgent or emergency Court applications. We are able to provide consultations via phone or video conferencing to determine whether it is in your and your children’s best interests to proceed with an emergency court application or if other options may be available to resolve disputes.

Generally, existing parenting orders should be followed and complied with, and a Court application and order must be sought before making any unilateral changes to an existing parenting order.

For parents concerned about how to handle their existing parenting orders or agreements during the ongoing COVID-19 crisis, the recent Ontario decision of Ribeiro v. Wright, 2020 ONSC 1829, (Ribeiro) provides some guidance. In Ribeiro, the mother brought an emergency application to suspend all in-person parenting time with the father due to the risk caused by COVID-19.  Consequently, the Court in Ribeiro had to weigh the health, safety, and wellbeing of the child against the presumptions that:

1. Court
   orders should be complied with; and
2. meaningful
   personal contact with both parents is in the best interest of the child.

The Court’s decision in Ribeiro was that the application was not urgent and the Mother’s request to suspend the Father’s parenting time was denied. Justice Pazaratz was not dismissive of the mother’s concerns but was not satisfied that she had established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols. The Justice observed that parents with concerns may seek an emergency court application but should not presume the existence of COVID-19 will automatically result in any suspension of parenting time.

The Court emphasized that, during the COVID-19 crisis, both the Courts and parents will need to be practical, flexible, and creative to protect the physical and emotional wellbeing of children as:

“None of us know how long this crisis is going to last.  In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved.  But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset.  A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.  In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

Justice Pazaratz made the following observations
in reaching his decision:

• There should be a presumption that existing parenting arrangements and schedules continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

•  In some cases, a parent may have to forgo their time with a child, for example, if they are subject to a personal restriction, under self-isolation or quarantine for 14 days, personally ill, or have been exposed to illness.

•  Parental
  risk factors through employment or association, may require controls with
  respect to time with the child.

•  A parent’s lifestyle or behavior, such as failing to comply with social distancing or failing to take reasonable health precautions, may raise concerns about parental judgment and whether or not direct parent to child contact should be reconsidered. There should be zero tolerance for any parent who recklessly risks exposing a child or members of the child’s household to COVID-19.

•  Social distancing during exchanges is imperative.

•  Every family and situation are unique and there are no easy answers to these questions. However, no matter the challenge, for the sake of the children, everyone needs to work together to maintain important parental relationships and find ways to do it safely.

•  Judicial resources during the COVID-19 crisis
  are limited, so parents need to act responsibly and try and problem solve
  between themselves before they initiate urgent court applications.

•  There will be little tolerance for parents who
  do not take their parenting responsibilities or COVID-19 seriously during this emergency. Judges will likely take judicial notice of
  the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their
  child at home.

•  The courts will examine each application on a
  case-by-case basis, and given the reduced judicial resources at this time, not
  all cases will meet the criteria of “urgent” or “emergency”.

Seeking legal advice from one of our Family Law Practice Group at McCuaig Desrochers LLP is the best way to understand how your circumstances may be considered by the courts in Alberta. Contact us via email or phone.

McCuaig Desrochers LLP wants to alert you to upcoming amendments to the Matrimonial Property Act. These Amendments substantially change the property rights of people living in Alberta that are Married or in Common Law Couples. As of January 1, 2020, the Family Property Act will be in force in Alberta.

How do these changes affect division of property at the end of a relationship?

The most notable change is that Common Law Couples will be entitled to the same property rights as couples that are married (50/50 division). Before these changes, “Common Law Partners” had to make claims of “unjust enrichment” to prove their property rights which were costly and hard to prove. These claims often resulted in less than 50/50 division of property. The changes will also affect the timing of whenthese property rights (presumed to be 50/50 division) begin. This currently takes effect on the date of marriage. As of January 1, 2020, property rights could start as soon as a couple starts living together, rather than at the date of marriage.  Property includes ownership or shares in corporations and is defined very broadly!

How do I know if I’m in a Common Law relationship/ interdependent partnership?

Generally speaking, you are an Adult Interdependent Partner / Common Law if you and another person:

• Live together for at least 3 continuous years, OR
• Live together and have a child (through birth or adoption), OR
• Have signed an adult interdependent partner agreement (a contract that complies with requirements in the Adult Interdependent Relationship Act).

When does it take effect? Who does it affect?

The Amendments have already been passed, but the changes officially come into effect on January 1, 2020.  This affects every present and future relationship in Alberta—including people who are already married.

What if I’m already in a relationship?

The Amendments will take effect immediately on January 1, 2020. Any divorce or breakdown after January 1, 2020 will be subject to this new legislation.

How does it affect me if I’m already married?

If you’re already married, the presumption to 50/50 division of your property acquired during the relationship will apply to any property obtained after you first started living with your partner, rather than only applying to property obtained after marriage. This could be a significant change for couples who are recently married but lived together for a long time before marriage.  All the property acquired while living together will be presumed to be split 50/50.

What can I do to prepare?

A properly drafted cohabitation agreement, prenuptial or post-nuptial agreement can provide predictability and comfort for any couple living together, whether married or not. In fact, this will be the only way to give yourself certainty and protection with respect to your assets from the effect of this legislation. If you do not have an agreement in place governing what happens to your property in the event of a relationship breakdown, this legislation will apply to you.

These Amendments are a fundamental shift in how common law/marital property rights are treated in Alberta. Couples, whether they choose to marry or not, will have the same 50/50 entitlement to property upon the breakdown of the relationship.

If you have questions or concerns about your rights or obligations, please contact our Family Law Practice Group for guidance and assistance. We can assist you in drafting any agreement to help protect you and your family.