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Author: Linda Jensen

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Author: Linda Jensen

Alberta Court of Appeal Sets New Test for Imputing Income for Support Purposes

New Test to Impute Income for Child Support Purposes in Alberta The calculation of how much a parent is required to pay in child support is based on how much that parent earns. Normally, the court will determine what the parent’s income is by looking at their annual tax return, or the tax returns of any corporation that the parent operates. However, determining a person’s income may be more complicated in situations where one parent believes the other parent is intentionally unemployed or earning less than they are capable of. In such situations, the Federal Child Support Guidelines [...]

By |28/11/2022|

How to Apply for a Family Protection Order in BC

Applying for a family protection order in British Columbia Family violence is a distressing experience that can leave people wondering what their options are. If you have experienced family violence or believe that you or a family member are at risk of family violence, you may apply to court for a family protection order to protect yourself or any family member, such as your children. It is a good idea to have the assistance of a family lawyer in this process, not only to guide you through the legal steps, but also to help you understand other resources [...]

By |19/10/2022|

Who Decides Whether Grandparents Can Have Contact with the Children After Parents Separate?

Deciding if Grandparents Can Have Contact with the Children After Separation When couples separate or divorce, extended family members may have concerns about their ability to continue to spend time with the children of the relationship. In particular, grandparents, who may have previously enjoyed a close relationship with the children, can find themselves wondering what they can do if the parents’ separation or divorce has resulted in their access to the children being diminished, or even cut off entirely. Conversely, parents who for various reasons may have objections to the continued involvement of grandparents or extended family in [...]

By |23/08/2022|

Property Division and the Enforceability of Prenuptial Agreements in Alberta

Enforcing Property Division & Prenuptial Agreements in Alberta Alberta’s Family Property Act provides a legislative scheme governing the division of a couple’s assets in the event of separation or divorce. The default rule under the Act is equal division of all property acquired during the relationship, subject to exemptions for things like gifts or inheritance. While courts retain discretion to order an unequal division, they are generally disinclined to do so in the absence of some exceptional circumstance creating a real imbalance in the contributions made by each spouse (Jensen v Jensen, 2009 ABCA 272). However, this default [...]

By |06/07/2022|

Intestate Succession and “Marriage-like Relationships” in BC

Intestate Succession and “Marriage-like Relationships”: Determining Who Inherits In two recent decisions, the British Columbia Court of Appeal has provided guidance concerning the circumstances in which a common law partner may qualify as a “spouse” under the Wills, Estates and Succession Act (“WESA”). The qualification is an important one - it determines whether the individual is entitled to inherit the estate of a partner who has died without leaving a will. In Coad v. Lariviere, 2022 BCCA 222, the applicant was found to be entitled to inherit; in Jones v. Davidson, 2022 BCCA 31, she was not. [...]

By |06/07/2022|

Imputing Income to a Parent Who is Underemployed in British Columbia

How a Parent Gets Sole Custody of Their Child in British Columbia Parents in British Columbia have a positive duty to provide financial support for their children in an amount that is commensurate with their income (Family Law Act, s. 146(1); DBS v SRG, 2006 SCC 37). The Federal Child Support Guidelines provide rules guiding the determining of a parent’s income, and the amount of support payable, based on that income. But what happens when a parent’s income is less than it could be – especially where that situation results from the parent’s own choices? This question [...]

By |04/07/2022|

Child Support for Children Attending Post-Secondary Education

Child Support for a Child's Post-Secondary Education in Alberta Alberta’s Family Law Act states that every parent has an obligation to provide support for his or her child (s. 49(1)). After separation or divorce, this obligation requires parents, to the extent of their means, to share the costs associated with the care, support and educational needs of the child, and is not limited merely to providing the necessaries of life [1]. Nor is it limited to children who are minors. On the contrary, both the Divorce Act and the Family Law Act define a “child” to include one who [...]

By |30/06/2022|

Changes to the Framework for Application to Relocate with Children After Divorce

Relocating with Children After Divorce in Alberta A request by one parent for permission to relocate with the children of the marriage will generally involve a significant change to the existing parenting regime. The governing question for the court is whether relocation is in the child’s best interests. Before the recent amendments to the Divorce Act that came into force on March 1, 2021, applications seeking permission to relocate were governed by the framework established in Gordon v Goertz, [1996] 2 SCR 27, a leading decision rendered 25 years ago. For the most part, the amendments to the Act [...]

By |13/06/2022|

Making Interim Changes to Custody and Parenting Arrangements in Alberta

Changing an Established Custody and Parenting Arrangement in Alberta One of the more contentious issues in divorce proceedings can be parenting of the children. Where the parties are unable to agree on arrangements related to custody, access, or decision-making respecting the children, courts may be called on to make orders resolving those issues, often on an interim basis and without the benefit of a full evidentiary record addressing the best interests of the child. Typically, such orders are intended to govern until the parents are ready for trial and the court can grant a final order. However, changing circumstances, [...]

By |10/06/2022|

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