A consultation can be useful to most people but you may be wondering if it is required to meet a lawyer to answer a few simple questions.
The purpose of this guide is to help you answer some common questions our lawyers are frequently asked during their consultations and the goal is to minus that trip to the firm if it isn’t needed.
This guide is made up of answers from 3 of our firm’s experienced and talented lawyers. It will cover the following 3 practices; Family Law, Wills & Estate and Real Estate Law.
If you have any further questions, please feel free to contact us directly!
Family Law
1. What a family law lawyer can do when a family relationship breaks down:
- Draft Separation Agreement;
- Negotiate issues like parenting, custody, child access, and division of property;
- Help with the claim of child support and spousal support; and
- Deal with divorce proceedings
2. Why do you need a Separation Agreement?
- To declare that both parties will be legally separated;
- To resolve divorce related matters in a peaceful way so that divorce can be dealt with by way of desk divorce; and
- To avoid any future debt or liabilities incurred by the other party.
3. Can I draft my own Separation Agreement, sign with my spouse and get it commissioned or notarized?
No, that will make it an invalid agreement. A valid separation/divorce agreement has to meet the following criteria:
- It has to be in writing;
- It has to be signed voluntarily; and
- Each party has to obtain independent legal advice
4. I don’t have custody of my child or I lost guardianship of my child, can I not pay the child support?
No, you cannot.
- Child support is the right of every child. It is not the right of either parent. A parent cannot agree to “give up” receiving child support just because they don’t want to deal with the other parent
- When parents separate, the law says they are both responsible for the costs of raising their children. This is the case even if a parent has never lived with the children or the other parent
5. I have been unemployed for six months, and I am pressured by the costs of child support/spousal support. What should I do?
You should hire a lawyer to vary the child support/spousal support for you.
6. My spouse has committed adultery. Did he/she lose the right to claim spousal support?
No, a spouse will not be denied support or given less assistance because he or she
committed adultery. Instead, spousal support is determined based on a number of
factors. You should consult with a lawyer.
7. What’s the limitation period to make the matrimonial property division application?
- If property division application (statement of claim) is made after separation before divorce Judgment, it has to be within two years of the date of separation.
- If Divorce Judgment is given, application has to be made within two years of receiving the Judgment.
8. How is adult interdependent partner defined?
You are in an Adult Interdependent Relationship if you are in a relationship of interdependence with another adult: for three years; or for less than three years if you have signed an Adult Interdependent Partnership agreement; or for less than three years if the two of you have a child together.
9. What’s the general rule for property division for adult interdependent partners?
- Any property purchased by one party during the relationship belongs to the party that paid for it and in whose name it is registered
- Exceptions are as follows: Canada Pension Plan (“CPP”) credits; Land in joint names; Equity
10. What’s the general rule for property division for married couples?
Matrimonial property that can be divided pursuant to the Matrimonial Property Act or a Valid
Property Agreement.
Wills and Estate Law
11. What is a Will?
It is a document in which a person gives written instructions as to how their estate (everything they own) can be distributed (divided up), after that person passed away.
12. Why should you want a Will?
It tells your wishes and you decide what will happen, not the legislation.
Below is a infographic presenting survey results on some important reasons to create a Will by Rocket Lawyer.
13. Some legal terms used in a Will:
Testator: Person who writes the will.
Testate: Person who has died with a valid will.
Executor: Person who carries out the instruction of the Testator’s Will.
Beneficiary: Person who is chosen by the Testator to receive something from the Testator’s estate.
14. What are the process of executing a Will?
Valid Will:
The Executor applies to Court for a “Grant of Probate”
Pays estate debts
Divides up property according to instructions in the Will
None Valid Will:
A family member or a friend applies to Court for a “Grant of Administration”
Pays estate debts
Divides up property according to the Will and Succession Act
15. What is PD and PA?
PD/Personal Directive: A “living will” where individual can outline wishes such as health care decisions, where one lives, any activities one wants to take part in, etc., up to date of death.
PA/Power of Attorney: It allows one to assign someone to make financial decisions on one’s behalf.
16. Dying without a Will:
If none of your relatives apply, and there are no individuals entitled to receive, then Unclaimed Property and Vested Property Act will apply.
Real Estate Law
17. What is Real Estate?
Refers to land, as well as any physical property or improvements affixed to the land, including houses, buildings, landscaping, fencing, wells, etc.
18. What is a Real Property Report?
This is a graphic report showing all features of your property. (IE: Improvements, Locations, Easements etc.)
19. Do I need a Real Property Report?
If your Real Property Report is older than eight years it is recommended that you get a new one. Especially if any new structures have been done to the property
20. Should I accept a Real Property Report as is?
It is never recommended that you accept one as is. If it is older one it not definitely more recommend you do not accept it as is because then you are taking on all liabilities and deficiencies with the report. If you still decide to accept as is then usually we recommend title
insurance to have additional coverage.
21. Title Insurance is it needed all the time?
Depending on your lender it may be required, but not always. Title Insurance is great to have as an additional insurance to cover any deficiencies, fraud, etc. from the date of closing to when the transfer is completed.
22. What is the difference between Title Insurance and House Fire Insurance?
Title insurance is extra insurance to cover deficiencies and fraud between the time of closing
to the date of registration. House fire insurance is to cover the cost of the home itself against fire as well as the contents within it
23. What is CMHC Insurance?
Canadian Mortgage and Housing Corporation. This is default insurance to protect your lender if your down payment is below 20%. Upon default, you are liable for any deficiency judgment against you.
24. How do I cancel my TIPP payment with the City?
You must cancel the TIPP program before the 20th of each and every month. You can do so by calling 311 or by visiting the City of Calgary website and searching cancellation of TIPP.
25. What happens if my possession date lands on a weekend or holiday?
The realtors usually don’t do this, but if so, the realtors or lawyer discuss possession of the
earliest week day.
26. Why is there more than one title when buying a condo as opposed to a house?
The reason for more than one title is that there is sometimes a titled parking lot. That being there is a title for your actual unit as well as a separate one for your parking lot.
27. How are the adjustments calculated?
From the beginning for the year to the date of closing. Credits are dependent on if certain
adjustments are paid or not.
