FAQ & Links
Criminal Q&A • Civil Litigation Q&A • Family Law Q&A • Enduring Power of Attorney • Links
Criminal Q&A
Q: Do I have to provide my name to the police if they are investigating me?
A: Yes, but you are not required to give a statement.
Q: Do I have to blow if I have been stopped in an impaired operation or care and control of a motor vehicle?
A: Yes, if the police officer requests/demands. (Failure to blow may result in a criminal charge.)
Q: Do I have the right to talk to a lawyer if I have been arrested?
A:Yes, but you will usually be required to wait until you arrive at the police detachment.
Q: Do I have the right to talk to a lawyer if I am being investigated, but have not been arrested?
A: It depends on the circumstances and the length of time you have been detained.
Q: What happens if I do not appear in Court on the date specified in documents provided by the police?
A: An arrest warrant may issue and you could face a new charge of Failing to Attend Court.
Q: Don't I get a break if it's my first time being charged?
A: Sometimes. You may be eligible for Extra Judicial Sanctions or the Alternative Measures Program depending on your history and the nature of the offence.
Q: What is Extra Judicial Sanctions or the Alternative Measures Program?
A: They are programs that allow for youth in the first instance and adults in the second instance to give back to the community or the victims of the crime in order for you to avoid a criminal record.
Q: Will a criminal record affect my travels?
A: Some convictions may impede your right to travel outside of Canada.
Civil Litigation Q&A
Q: What is civil litigation?
A: Broadly speaking, any Court action that is not a criminal proceeding is a civil matter. However, civil litigation usually refers to a process used to deal with issues involving money. People generally initiate Court claims (or "sue") on debts owing, such as money owed under a contract or through a loan, or where they have suffered personal injuries or damage to their property as a result of another's actions. One can also sue for an unreturned damage deposit or rent paid according to the Residential Tenancies Act.
Q: Someone owes me money – what do I do?
A: Before starting Court action, you should send the other party a demand letter. In your demand letter, you should:
- ask for payment of the amount owed to you;
- specify a deadline for payment; and
- state you will take Court action if the money is not paid to you by the deadline.
It is a good idea to send your demand letter by registered mail so you can verify the other party received it.
Q: I sent a demand letter and still have not been paid. Now what do I do?
A: You can now take Court action. First, you need to decide what Court to sue at – Provincial Court or the Court of Queen's Bench.
Q: Why would I choose one court over the other?
A: The Provincial Court can hear matters dealing with monetary amounts up to $25,000.00. The Court of Queen's Bench can hear matters dealing with all monetary amounts, but it normally hears those which involve amounts higher than $25,000.00. If you have a claim that is worth more than $25,000.00 and want to go to Provincial Court, you can waive the higher amount and just sue for $25,000.00.
You should also consider the differences in the litigation procedures at both Courts. The Alberta Rules of Court govern the process at the Court of Queen's Bench, and it is more complex, costly, and time-consuming than the process at Provincial Court. Once you file your claim and the other party responds, you will have to go through certain steps to get to trial, which involve disclosing all relevant documents to the other side, participating in Questioning and mandatory alternative dispute resolution. If you wish to proceed at the Court of Queen's Bench, it is advantageous to hire a lawyer, or at least consult with one about the process.
The Provincial Court Act governs the process at Provincial Court, which is less complex and thus easier to navigate without a lawyer. Once you file your claim and the other party responds, a judge can direct that the matter:
- proceed to trial;
- go to mediation; or
- go to judicial dispute resolution.
A date will be set for whatever option the judge chooses, and the parties must attend. If the matter goes to mediation or judicial dispute resolution and is not settled, it will then be set for trial. You do not have to go through the same steps to get to trial at Provincial Court as you would at the Court of Queen's Bench; you simply have to attend Court on the trial date and make your case.
Q: Why would I choose one court over the other?
A: You now need to file your claim with the Court.
If you have chosen the Provincial Court, you need to file what is called a Civil Claim. You can obtain this form from the Provincial Court website, and you will need to state what you want and the facts you are relying on when you fill it out. You have to file your Civil Claim at the Provincial Court location nearest to where your claim arose (for example, if you were injured in a car accident in St. Paul, you would file the Civil Claim at the St. Paul Provincial Court). If you are suing for less than $7500.00, you must pay a $100.00 filing fee. If you are suing for more than $7500.00, you must pay a $200.00 filing fee.
If you have chosen the Court of Queen's Bench, you need to file what is called a Statement of Claim (Civil Form 10). You can obtain this form from the Court of Queen's Bench website at the same address as above, and you will also have to state what you want and the facts you are relying on when you fill it out. You must file your Statement of Claim in the Court of Queen's Bench location nearest to where your claim arose, and you must pay a $200.00 filing fee.
Q: How do I serve the other side?
A: Once you have filed your claim, you have to give the other side notice of the Court action by serving him or her. You can personally give a copy of your filed Civil Claim or Statement of Claim to the person, or you can send it to him or her by registered mail. A claim sent by registered mail is considered served when the other party signs for it, or after seven (7) days have passed from the date you mailed it.
You must prove you have served the other party by filing an Affidavit of Service with the same Court you filed your Claim with.
Q: I served the other party. What does he or she have to do?
A: Once the other party is served, he or she has 20 days to file a response. This response is called a Dispute Note at Provincial Court and a Statement of Defence at the Court of Queen's Bench.
If the other party does not file a response within 20 days, you can ask the Court Clerk to note him or her in default. This means the other party has not responded in time, and you can request default judgment against him or her. If this is the case, you will not have to prove the other party is liable to pay you what he or she owes you, you will simply have to prove how much money is owed.
Q: I have a judgment. How do I collect the money owed to me?
A: Collecting on, or what is called enforcing a judgment is complex process, and this information sheet only provides a brief overview. The enforcement process is primarily governed by the Civil Enforcement Act, though other pieces of legislation such as the Personal Property Security Act also apply. We suggest consulting with a lawyer if you would like to take steps to enforce a judgment.
In order to enforce a judgment, you must file it at the Court of Queen's Bench. After this, you must prepare and file a Writ of Enforcement at the Court of Queen's Bench and the Personal Property Registry. After these steps are completed, and depending on the circumstances, you can:
- Garnish the other party's bank account or employment earnings;
- Hire a civil enforcement agency to seize the other party's property and sell it; or
- Register a judgment against land the other party owns.
Family Law Q&A
Q: I am thinking of separating or have just separated from my spouse or partner: I feel hurt, confused and fearful. What should I do first?
A: What you are experiencing is normal. This is an emotionally charged time of transition in your life. It is important to try to step back, calm down, and look at things as objectively as possible. Checking our website and this page is a good start. You are not alone. Help and support are available. Try to list out as many of your questions as possible in your own words. Take your list of questions to a family lawyer and go over them when you ask for her or his direction. That will help you get the information you need and you will feel better as a result.
Q: I feel unsafe and vulnerable to abuse. What can I do to protect myself and my children?
A: The risk or potential of abuse by your spouse or partner is one of the first things you should discuss with a lawyer. Abuse can take the form of physical, verbal, sexual, and emotional abuse. In Alberta, the Protection Against Family Violence Act provides a mechanism to obtain an Emergency Protection Order very quickly. That Act provides that "family violence" includes acts or threats of acts that cause injury or property damage and that intimidate or harm a family member, forced confinement, sexual abuse, and stalking. If you or your children have been harmed or have been threatened with harm by another family member, you should contact the police. You should also locate and contact the nearest emergency shelter and consider going to that shelter with your children to prevent family violence.
Q: If I choose to leave our home, do I give up any rights I have to occupy our home or to receive fair division of the value of our home?
A: This is a common misconception. For a number of reasons, including preventing family violence, it may be necessary for one spouse or partner to leave the home. Whether you are married or not, if you have to leave the family home, the Matrimonial Property Act for married couples, and the Family Law Act, which applies to both married and unmarried couples, provides that a spouse or partner can be given exclusive possession of the family home. A spouse or partner can make that application before or after one of them temporarily leaves the home. There is no rule or presumption that a partner or spouse who first leaves the home loses rights to the home, including the right to apply for exclusive possession of the home. The Court will consider various matters and will pay particular attention to the needs of any children residing in the family home.
Q: If I am the one who wants the separation and/or divorce, do I have to expect to give up more property or money to my spouse or partner?
A: The law does not focus on who is at blame or at "fault" for the decision of one or both spouses or partners to separate and/or to ask for a Divorce Judgment. Specifically, blame or "fault" is not a factor the Court considers in deciding whether or not child support, spousal support, or both should be paid by one spouse or partner to the other.
If you are married, the Matrimonial Property Act sets out rules for the division of matrimonial property. In some circumstances, a Court would consider a number of factors in arriving at a decision on who should get what share of the matrimonial property. For example, if one spouse "dissipates" or has caused matrimonial property to be squandered or lost, a Court may take that into account in dividing the matrimonial property.
Q: We both want what is best for our children. Both of us should be involved in their lives, even if we can no longer live together as spouses or partners. We think that "joint custody" will be best for the children. What exactly is "joint custody"?
A: "Joint custody" can mean a number of things. One thing that joint custody certainly means is simply granting "custody" to each parent. The question is what sharing of decision making between the parents is in the best interests of their children. Many Courts now favour granting some form of "joint custody" rather than "sole custody" to one parent and "access" to the other parent. The following description accurately summarizes the various forms that "joint custody" may take:
" . . . [J]oint custody can take a variety of forms. The most common form involves separating decision-making from the bundle of custody rights so that three elements are considered: (1) physical custody, (2) access, and (3) decision-making. The first two elements are reframed as (1) primary residence, (2) time with the other parent, and the third is left without change as (3) decision-making. In a typical situation, the order incorporating these elements would provide that the child has her or his primary residence with one parent, would spend certain specified times with the other parent, and that both parents jointly would be involved in major decisions affecting the child's health, education, religion, and general well being. Variations on this form involve dividing the primary residence of the child between the parents in equal or some other proportions (shared parenting), or allocating decision-making on all child-related questions to one or other of the parents, or dividing the questions giving some to one parent for decision and the rest to the other. A more recent variation on the form of joint custody is called parallel parenting. In this form, the parents are given equal status, but each exercises the rights and responsibilities associated with custody independently of the other."
James MacDonald and Anne Wilton, the 2012 Annotated Divorce Act, page 524, copyright 2011 Thomson Reuters Canada Limited.
Q. How much child support am I entitled to from my spouse or partner?
A. Most people are now aware that child support amounts are set and determined under the Federal Child Support Guidelines for children of marriages under the Divorce Act and under the Alberta Child Support Guidelines, for children of either married or unmarried parents under the Family Law Act. These rules are now well established. Separating parents must recognize the responsibility they continue to have to support their children after their separation. The amount of child support that should be paid for the benefit of the children depends on the payor's "total income", generally as stated at Line 150 of the Income Tax return. If a payor is self-employed or does not receive salaried income, the parties need to negotiate and to agree on what should be taken to be the payor's total income for child support purposes. Sometimes it is necessary to have the Court make that determination if the parties cannot agree on what reasonable child support should be in that situation.
In addition to basic child support, parents must share the cost of what are commonly called "extraordinary expenses" under the child support guidelines. The expenses must be reasonable in amount given the income of both parents. Examples of section 7 expenses are childcare or daycare expenses, sports, extracurricular activities such as music or dance lessons.
Q. Do I have to see a lawyer every time the income of one or both parents changes, to vary the child support amount?
A. Alberta now has a Child Support Recalculation Program which annually reviews the income of parents who subscribe to the program and who provide their income information annually. The program reviews the income information, determines a child support amount, has the parties confirm their approval of same and then confirms the commencement of payments in the new amount. Parties may be eligible for the program if they receive salaried income and are not self-employed for example.
Q. My separation and divorce is going to lower my standard of living. I have, or will have primary care of our children and will receive child support, but it will still be very difficult for me to make ends meet with my own living expenses and limited income. Should I consider applying for spousal support?
A. Applications for spousal support are now more common than before. Spousal support under the Divorce Act or partner support under the Family Law Act is available based on the same common "factors" and "objectives". A party may be entitled to spousal support either on (a) a compensatory ground, (b) a contractual ground, and/or (c) or a non-compensatory ground, such as a need-based analysis. After entitlement to spousal support has been determined, the amount and duration of the spousal support may be negotiated or Court ordered.
Q. I have heard about different alternatives to Court. How can I avoid the cost and uncertainty of going to Court?
A. Both the Divorce Act and the Family Law Act impose a duty on lawyers to discuss with their clients the availability of alternative methods to going to Court, such as mediation. Mediation is a non-adversarial procedure where a third party facilitator helps people communicate with each other to find compromises in their dispute.
Alberta Justice, through Family Justice Services, offers a group of programs and services to separating or divorcing couples, including mediation services. You may want to check the Alberta Courts website or go to our links below for more information.
Collaborative negotiation is a relatively new process to help separating couples find compromise.
What is an Enduring Power of Attorney and a Personal Directive?
The idea behind both an Enduring Power of Attorney (EPA) and a Personal Directive (PD) is to appoint someone to make decisions on your behalf in the future should you become disabled for any reason. With an EPA, you can make it have immediate effect (an "Immediate" EPA) or have it come into effect only when a triggering event occurs some time in the future which results in a lack of competency on your part (a "Springing" EPA).
With an EPA, you appoint someone to manage your financial affairs on your behalf should you become incompetent, in essence appointing a trustee for yourself. It can be your spouse, a sibling, a parent, a relative or a friend. Whomever you choose, you should choose solely on the basis of competency, not out of kindness or loyalty or because they are your oldest child. This will be a person who will be managing your financial affairs for potentially many years, and it should be someone who is trustworthy and intelligent. You should consider not only a primary Attorney but also someone who could act as an alternate should your first choice be unable or unwilling to act or to continue to act. You should also consider whether you want to pay your Attorney for acting. It can be a difficult process to act as an Attorney, especially initially when they have to sort our your previously very private financial affairs, and as mentioned above, it is a position that could last for a very long time, so some form of payment, whether monthly or annually is something you should consider.
With a PD, you appoint someone to make personal non-financial decisions on your behalf should you become incompetent. This person is referred to as your "Health Care Agent" and this is in essence appointing a guardian for yourself. Like an EPA, it can be your spouse, a sibling, a parent, a relative or a friend. Whomever you choose, you should choose solely on the basis of competency, not out of kindness or loyalty or because they are your oldest child. This will be a person who will be managing your personal affairs for potentially many years, and it should be someone who is trustworthy and intelligent. They will be making decisions on your behalf that relate to such things as to where you live, who you can or cannot associate with, what kind of medical care, both major and minor, that you will receive, what kind of social, vocational or recreational activities you can take part in and the like. You should consider not only a primary Health Care Agent but also who could act as an alternate should your first choice be unable or unwilling to act or to continue to act. As this person will be responsible for making among other decisions, health care decisions, you must have discussions with them as to how you would want to be treated, or not treated, given any one of a number of different health care scenarios. This can often be awkward and difficult but is absolutely vital to the person being an effective representative to speak for you when you cannot speak for yourself.
The Alberta Government, through Alberta Seniors and Community Supports has now created a registry, to allow people to register their personal directive at no cost. Should you choose to use the registry you can enter and maintain your own information. A copy of your Personal Directive would not be registered. It is meant to allow approved professionals such as healthcare providers, to find out if a person has a personal directive and how to contact their Health Care Agent.
Registration can be done online or by mailing a registration form to the Office of the Public Guardian, who will enter the information. A registration form can be ordered from the Office of the Public Guardian, toll free, at 1-877-427-4525. Once the form is completed and returned to the Office of the Public Guardian, they will in turn send a letter to the Maker of the Personal Directive and to the Health Care Agent, requesting their consent to post their information in the registry. Once this consent has been obtained, a unique enrolment code included in that letter can be phoned into the Office of the Public Guardian or entered online. Until this code is submitted to the Registry, information on the Maker or Agent cannot be viewed by anyone except the staff at the Office of the Public Guardian. A Maker or an Agent can change or remove their information from the Registry either online or by calling the Office of the Public Guardian. Go to http://www.seniors.gov.ab.ca/opg/registry/# for further information as to how to register online.
Prepared by LAMOUREUX CULHAM LLP
Links
Government of Alberta Children and Youth Services
Department of Justice Canada
Government of Alberta Justice and Attorney General - Aboriginal People in the Justice System
Town of St. Paul
Alberta Queen's Printer
The Law Society of Alberta
The University of Alberta Faculty of Law Blog
Alberta Courts - Provincial Courts Family Justice Services
Federal Department of Justice Family Law Assistance Services
The Alberta Association of Services for Children and Family
Collaborative Family Lawyers of Canada