Ask the Law Expert

May 2012 Article

A Healthy Relationship (part 2)

6. They each feel comfortable taking time alone if they need it. They feel okay about doing some things separately.

7. There is no fear in their relationship.

8. They do not restrict or control each other. They encourage each other’s growth.

9. Even when they are busy, they make time for one another and their  relationship.

10. They have a circle of people who know them and support them as a couple.

They spend time with others who have strong and healthy relationships.

As a final quick note, practitioners of the “secret” insist that if you are currently looking for a relationship, you should be mindful of what many avatars throughout history have come to call the “law of attraction.” In a nutshell, “like attracts like.”  Thus, every relationship that you become involved in will fail if your do not learn to love yourself FIRST.  You cannot love someone else if you cannot bring yourself to feel good about yourself.  This is not saying that you should be conceited, narcissistic or arrogant. Rather, it is about maintaining a loving, strong, gracious and healthy self-image.  It’s the basic law of attraction.  If you don’t love yourself, you likely won’t attract a loving relationship.  Some of the most successful people in history have practised this “law of attraction” not just in their relationships but in every aspect of their lives.

Think happy. A wise scholar stated “Your thoughts control your habits. Your habits control your actions.  Your actions define your character.  And your character shapes your destiny.”   Happier thoughts result in happier people…… and ultimately happier relationships.   It might also result in less work for family law lawyers….. which would  undoubtedly make a lot of people happier!

 

 

April 2012 Article

A Healthy Relationship (part 1)

Most of us know from personal experience that relationships can break down for a myriad of different reasons.  We in the legal profession often see the consequences of a “break-up” play out in several different ways.  As a lawyer who spends most of his time helping couples “break-up” as painlessly as possible, I thought it would be a nice change of pace to focus on what most Experts® see as being integral to a healthy relationship.

1. The partners in the relationship should respect and value themselves and each    other. They should treat each other with respect and courtesy.

2. They make decisions together.

3. When they disagree, they know that it’s okay to talk about their differences. They work it out. They find ways for both partners to get what they need.

4. They listen to each other’s view points. They express their feelings and opinions by saying, “I feel….” or “I think…..” They do not make comments or assumptions about the other person.

5. Each partner takes responsibility for themselves. They do not expect the other person to solve their problems or make them happy.

Please tune in next month for the conclusion of this discussion!

 

February 2012 Article

Most of us know from personal experience that relationships can break down for a myriad of different reasons.  We in the legal profession often see the consequences of a “break-up” play out in a myriad of different ways.  As a lawyer who spends most of his time helping couples “break-up” as painlessly as possible, I thought it would be a nice change of pace to focus on what most experts see as being integral to a healthy relationship.

1. The partners in the relationship should respect and value themselves and each    other. They should treat each other with respect and courtesy.

2. They make decisions together.

3. When they disagree, they know that it’s okay to talk about their differences. They work it out. They find ways for both partners to get what they need.

4. They listen to each other’s view points. They express their feelings and opinions by saying, “I feel….” or “I think…..” They do not make comments or assumptions about the other person.

5. Each partner takes responsibility for themselves. They do not expect the other person to solve their problems or make them happy.

6. They each feel comfortable taking time alone if they need it. They feel okay about doing some things separately.

7. There is no fear in their relationship.

8. They do not restrict or control each other. They encourage each other’s growth.

9. Even when they are busy, they make time for one another and their  relationship.

10. They have a circle of people who know them and support them as a couple.

They spend time with others who have strong and healthy relationships.

As a final quick note, practitioners of the “secret” insist that if you are currently looking for a relationship, you should be mindful of what many avatars throughout history have come to call the “law of attraction.” In a nutshell, “like attracts like.”  Thus, every relationship that you become involved in will fail if your do not learn to love yourself FIRST.  You cannot love someone else if you cannot bring yourself to feel good about yourself.  This is not saying that you should be conceited, narcissistic or arrogant. Rather, it is about maintaining a loving, strong, gracious and healthy self-image.  It’s the basic law of attraction.  If you don’t love yourself, you likely won’t attract a loving relationship.  Some of the most successful people in history have practised this “law of attraction” not just in their relationships but in every aspect of their lives.

Think happy. A wise scholar stated “Your thoughts control your habits. Your habits control your actions.  Your actions define your character.  And your character shapes your destiny.”   Happier thoughts result in happier people…… and ultimately happier relationships.   It might also result in less work for family law lawyers….. which would  undoubtedly make a lot of people happier!

Any questions for me please call 527-8311. question@theexperts.ca

 

 

January 2012 Article

Q. Why does there appear to be so much confusion over what constitutes a common law relationship in Alberta?

Many people make incorrect assumptions regarding this subject and the confusion is understandable.  The first thing to appreciate is that the phrase “common law relationship” is no longer the appropriate phrase to use in Alberta and to the extent that the phrase is still used, it may be defined differently under different federal and provincial statutes.  For example, for the purposes of the (federal statute) Income Tax Act you may be deemed to be in a common law relationship if you have lived with a person for a period of only one year.

However, for the purpose of the Family Law Act of Alberta (provincial statute) the term “common law relationship” is no longer used.  Rather, it references the Adult Interdependent Relationships Act which defines persons being in an “adult interdependent relationship” if they have resided together for a continuous period of three years or more……. or alternatively if they have lived with each other for under three years and have a child together.

In other words, for income tax purposes you may be common law after one year, but for common law separation purposes (and the right to claim ‘adult interdependent partner’ spousal support, you would have to meet the three year period (or less if you had a child together).

To create even more confusion for the general public, there may be other statutes that define a common law period as yet a different period of time.   Thus, the reason why most people are confused on the topic of common law relationships is that each individual province in Canada has its own provincial legislations that define exactly what the term means…. and furthermore, some provinces, like Alberta, don’t even use the term “common law” anymore.  The reason why Alberta legislation uses the term “adult interdependent relationship” is because the latter is more appropriate in addressing ALL relationships of interdependence, including same- sex relationships.  Other provinces may use their own phraseology.

Between TV shows dealing with family law matters, general discussions between friends and family along with occasional ‘rants’ by various persons who generalize their particular common law experience…… not to mention the fact that different provinces may have slightly different definitions and terms….. It is not surprising that the topic of “common law relationships” generates so much confusion amongst the general public.

All of which leads me to say the obvious; namely, if you have any questions pertaining to your own particular ‘relationship’ circumstances and wondering whether or not you are in an “adult interdependent relationship” with someone (or whether you might be considered “common law” to use the vernacular) it is best to call a lawyer and simply ask.  Remember that the answer might be different depending on if you are talking to an accountant about your income tax issue or your family law lawyer dealing with your separation.

For those who want to do their own research on the topic, the relevant statute in Alberta for adult interdependent relationships is the Adult Interdependent Relationships Act and the Family Law Act; both of which can be viewed for free online by going to the Queens Printer Website at http://www.qp.gov.ab.ca/index.cfm .   When you get to the site, simply search for the relevant statute and it allows for free viewing or purchase.  Obviously you may want to consult a lawyer for particular issues, but for general information it may eliminate some immediate confusion.  For searches of Statutes of other provinces and Federal statutes you can go to http://www.canlii.org/en/ca/.

 

 

December 2011 Article

Most of us know from personal experience that relationships can break down for a myriad of different reasons.  We in the legal profession often see the consequences of a “break-up” play out in a myriad of different ways.  As a lawyer who spends most of his time helping couples “break-up” as painlessly as possible, I thought it would be a nice change of pace to focus on what most experts see as being integral to a healthy relationship.

1. The partners in the relationship should respect and value themselves and each    other. They should treat each other with respect and courtesy.

2. They make decisions together.

3. When they disagree, they know that it’s okay to talk about their differences. They work it out. They find ways for both partners to get what they need.

4. They listen to each other’s view points. They express their feelings and opinions by saying, “I feel….” or “I think…..” They do not make comments or assumptions about the other person.

5. Each partner takes responsibility for themselves. They do not expect the other person to solve their problems or make them happy.

6. They each feel comfortable taking time alone if they need it. They feel okay about doing some things separately.

7. There is no fear in their relationship.

8. They do not restrict or control each other. They encourage each other’s growth.

9. Even when they are busy, they make time for one another and their  relationship.

10. They have a circle of people who know them and support them as a couple.

They spend time with others who have strong and healthy relationships.

As a final quick note, practitioners of the “secret” insist that if you are currently looking for a relationship, you should be mindful of what many avatars throughout history have come to call the “law of attraction.” In a nutshell, “like attracts like.”  Thus, every relationship that you become involved in will fail if your do not learn to love yourself FIRST.  You cannot love someone else if you cannot bring yourself to feel good about yourself.  This is not saying that you should be conceited, narcissistic or arrogant. Rather, it is about maintaining a loving, strong, gracious and healthy self-image.  It’s the basic law of attraction.  If you don’t love yourself, you likely won’t attract a loving relationship.  Some of the most successful people in history have practised this “law of attraction” not just in their relationships but in every aspect of their lives.

Think happy. A wise scholar stated “Your thoughts control your habits. Your habits control your actions.  Your actions define your character.  And your character shapes your destiny.”   Happier thoughts result in happier people…… and ultimately happier relationships.   It might also result in less work for family law lawyers….. which would  undoubtedly make a lot of people happier!

Any questions for me please call 527-8311.

 

 

October 2011 Article

What does it mean when something is owned “jointly”?

When two people own something, (lets say a house for example) as joint tenants, it means that all of them own 100 percent of the house. It does not mean that they each own fifty percent of the property. This is significant because upon death, the surviving joint tenant receives the deceased’s interest in the property by operation of law. Thus, if you die but all your property holdings were held jointly with other people, none of that property will form part of your estate; rather your interest in those properties will be absorbed by your fellow joint tenancy holders.

Joint Tenancy can be distinguished from property owned as tenants in common. In this scenario, both persons can own whatever percentage portion of the property that they designate and it is specifically stated on Land Title registration records. In this case, if one of the tenants in common dies (owning 40 percent for example) that forty percent will form part of the deceased’s estate. It will not flow to the surviving tenant in common because the property was not jointly held.

A common example of how failure to understand what “joint” means at law has hurt people is with seniors who choose to open a “joint bank account” with one of their children to have their child aid them in paying their bills. Quite often, Mom or Dad fail to realize that if they die, all of the money in the jointly held account will flow directly to that particular child (whose name is on the joint account) and will not form part of their estate, thereby depriving their other children from receiving any money from that account under their will. To avoid this, people are advised that if they require the help of their children for financial purposes, that they obtain an enduring power of attorney which will authorize the appointed child to do financial transactions on their behalf but avoid the shortfalls and potentially negative consequences of opening up a joint account.

For the amount of time and trouble it can save, one is advised to simply ask their lawyer for advice if you are contemplating opening a joint account with him/herself and a child for the purposes of having that child handle your finances.

 

 

September 2011 Article

I have two children from a previous marriage and have been seeing someone for over 3 years now.  I want to get married.  He says that he has no objection to marriage but that he wants me to me to sign a prenuptial agreement.  Is a Prenuptial Agreement (PA) a good idea?

Whether a prenuptial agreement is a good idea depends upon its terms and, of course, whether or not it ever needs to be relied upon in the first place.  Obviously no couple ever gets married with plans to eventually divorce.  However, the law allows a couple (under the provisions of the Matrimonial Property Act of Alberta) to essentially create their own rules that will govern the separation of their property in the event of a marriage breakdown.  The important qualifier to this is that both parties must receive independent legal advice in order for the PA to become legally binding.

It is astounding to me how many clients I will get in a year that will walk into my office with a draft PA that their spouse has drafted (through their lawyer)….. and they seem to blindly assume that they know exactly what the ramifications are of signing it.  Frankly, most people have no idea just how devastating a PA can be if one just blindly signs one without any serious scrutiny of the potential consequences that can result from a marriage breakdown. For example, the Matrimonial Property Act gives you a right to share in all of the assets and debts that are acquired during the years of the marriage. Also, it gives you the right to share in one half of the growth of any assets that your husband at the time of your marriage up until your divorce. Thus, the most common thing to see in a PA is a clause that has the parties waiving any interest in the assets acquired by the other spouse during the marriage… in addition to waiving any interest in the growth on any assets existing before or at the time of the marriage.

If, in your situation, you give up your job and move into a nice new home (with your two kids obviously moving in as well) that is in your spouse’s name, you have to be careful not to sign away any interest that you may come to have with respect to the home under the terms of the Matrimonial Property Act.  If your future husband tells you that he would never leave you destitute and you trust him… so be it.  But I make the observation that one of the first things to leave a failed marriage is trust.  Remember… the whole point of a PA (in my respectful opinion) is to draft a set of equitable and fair rules that are tailor-made for a particular couple’s financial and property circumstances in the event that trust and understanding are no longer possible.) To put it another way, if a spouse raises the issue of a PA, the ensuing discussion should not be avoided solely on the grounds that it is a question of trust; rather, the consideration should focus on what will happen if the trust is lost?

We have all heard the expression “Hell hath no fury like a (wo)man scorned.”  ‘Trust’ me when I tell you that it applies to both genders in some divorces.  To enter into any marriage on the assumption that it may never breakdown is a choice that all of us are entitled to make.  And to the credit of many people who have gone through a divorce, a separation does not have to be filled with high conflict.  The only thing that I wish to emphasize is that many couples will avoid discussing what will happen in the event of a relationship or marriage breakdown in terms of their property (not to mention such things as spousal and child support) because they are afraid of offending the other party.  This is perfectly understandable.  But it is my observation that many people are not aware of how the application of the Matrimonial Property Act could impact their property in the event of a separation or divorce.

The most important thing is to simply become informed.  Accordingly, if your fiancé wants to discuss the terms of a PA with you I would advise you to do the following:

Make no promises or guarantees with respect to what you are prepared to agree to before you consult a lawyer.  They are many nuances in a separation that need to be explored.  In my experience most clients will come into my office with a generic PA that was drafted by their spouses lawyer that often has very little consideration in terms of both property and spousal support.  (What is even more incredible are the clients I have come in one week before their wedding and expect it to be a formality! It is, in my view, a form of emotional coercion when one spouse sends his/her spouse to a lawyer expecting a PA to be executed with a wedding date merely days or weeks away.  And if a lawyer believes there to be coercion of any kind, we cannot swear that our client executed the PA free from undue influence.  Thus, we may refuse to sign the certificate of independent legal advice that makes the PA legally binding.

If your spouse wants to address the issue of a PA, the best thing to do is to both obtain legal counsel and give yourselves enough time (and of course your respective lawyers enough time) to approach the property and support issues in a timely, productive, efficient and informative manner.   PA’s are not necessary for every couple, but if the subject, once raised, is avoided, it may reflect a naiveté that could come back to haunt one or both parties in the future when ‘trust’ is lost.

Because of the complexity surrounding the issue of PA’s I would advise that any couple considering obtaining one consult with their respective family law lawyer.

 

 

August 2011 Article

Most of us know from personal experience that relationships can break down for a myriad of different reasons. We in the legal profession often see the consequences of a “break-up” play out in a myriad of different ways. As a lawyer who spends most of his time helping couples “break-up” as painlessly as possible, I thought it would be a nice change of pace to focus on what most experts see as being integral to a healthy relationship.

  1. The partners in the relationship should respect and value themselves and each other. They should treat each other with respect and courtesy.
  2. They make decisions together.
  3. When they disagree, they know that it’s okay to talk about their differences. They work it out. They find ways for both partners to get what they need.
  4. They listen to each other’s view points. They express their feelings and opinions by saying, “I feel….” or “I think…..” They do not make comments or assumptions about the other person.
  5. Each partner takes responsibility for themselves. They do not expect the other person to solve their problems or make them happy.
  6. They each feel comfortable taking time alone if they need it. They feel okay about doing some things separately.
  7. There is no fear in their relationship.
  8. They do not restrict or control each other. They encourage each other’s growth.
  9. Even when they are busy, they make time for one another and their relationship.
  10. They have a circle of people who know them and support them as a couple. They spend time with others who have strong and healthy relationships.

As a final quick note, practitioners of the “secret” insist that if you are currently looking for a relationship, you should be mindful of what many avatars throughout history have come to call the “law of attraction.” In a nutshell, “like attracts like.” Thus, every relationship that you become involved in will fail if your do not learn to love yourself FIRST. You cannot love someone else if you cannot bring yourself to feel good about yourself. This is not saying that you should be conceited, narcissistic or arrogant. Rather, it is about maintaining a loving, strong, gracious and healthy self-image. It’s the basic law of attraction. If you don’t love yourself, you likely won’t attract a loving relationship.