Lethbridge Alberta Lawyers

What Do the Smallest Personal Injury Awards Look like?

Wed, 07 Jun 2023 15:00:30 GMT

Personal Injury Information

What Do the Smallest Personal Injury Awards Look like?

June 7, 2023 -
John McMullin, Juris Doctor, Associate Lawyer, LETOURNEAU LLP

We’ve reviewed previously in our blog how catastrophic personal injury awards can be incredibly large . Fortunately, those circumstances are rare. Today we’re looking at the other end of the spectrum: what is about the smallest amount that can be awarded in a personal injury case?

In Couch v Olatiregun , 2023 ABKB 104 , Mr. Terence Couch was struck from behind by Mr. Gabriel Olatiregun after Mr. Couch stopped at a yellow turn arrow. Mr. Couch hit his head, claiming whiplash and two injured ribs.

The Court found that Mr. Couch had intermittent pain for approximately a year after the accident. There were significant medical records before the Court, but the only person who testified was Mr. Couch.

The medical records included those of Dr. Woo, a chiropractor, who diagnosed Mr. Couch as having a whiplash associated disorder level II (WAD 2). Dr. Woo indicated that approximately four months after the Accident, Mr. Couch had no restrictions on his activity. Mr. Couch had a pre-accident history of occasional acupuncture and chiropractic treatment for tightness and pain.

The Court found that the Minor Injury Regulation , which caps awards for pain and suffering at a certain amount, applied to the case. Mr. Couch had recovered, the accident did not impair “essential work tasks, essential facets of training or education, or normal activities of [Mr. Couch’s] daily living,” and there was no chronic pain. Mr. Couch had minor inconvenience with his household chores and walking his dogs, which were not sufficient to constitute interference with Mr. Couch’s regular life.

Mr. Couch was awarded $3,000.00 for pain and suffering, $1,672.00 for mileage, and $50.00 for painkillers.

This case is a cautionary tale about 1) the importance of involving an appropriate treatment team, and 2) the need to call appropriate lay witnesses.

We can be fairly confident Mr. Couch expected a larger judgment; very few people hire a lawyer and go through a one day trial after a car accident for less than $5,000.00. It’s likely that Mr. Couch did have some residual pain and limitations, as he testified, “this accident slowed me down.” Chronic pain, and permanent limitations, generally mean that an award is not capped.

However, Mr. Couch’s medical history was not sufficient to establish his pain and limitations. This is not unusual. Medical professionals write their records to assist their clients in recovering, not in building a personal injury case. In these cases, reports from professionals that specifically outline what limitations a victim is dealing with are incredibly important, because a normal review of the records may not disclose this information.

Likewise, it’s important to have medical professionals on your team that know how to treat a motor vehicle accident victim. Medical doctors, chiropractors, and physiotherapists are often not familiar with the importance of setting out the limitations and difficulties an accident victim experiences. It’s best to find treatment providers familiar with personal injury, or if that’s not possible, to educate your treatment providers.

Even without a clear discussion of Mr. Couch’s limitations in his medical records, having family members, friends, or the treatment providers themselves testify as to an accident victim’s limitations is another way to convince a judge that an injury is not minor. The gold standard for evidence is oral testimony, and if there had been more of it, Mr. Couch may have had more success.

At LETOURNEAU LLP, we always ensure our clients’ medical treatment is comprehensive and that their injuries are laid out reports and if necessary, testimony, from reputable medical professionals. Contact us today to discuss your motor vehicle accident and how we can help you maximize your recovery.

If you have been in an accident, it's a great idea to speak to a personal injury lawyer about your rights and responsibilities. Contact LETOURNEAU LLP at 403-329-4311 to set up a free consultation for any accident-related injury.

Learn more about John McMullin , our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law .

This article is for information purposes only and does not constitute legal advice

How Can I Expect an Accident to Affect My Daily Life?

Thu, 11 May 2023 15:36:38 GMT

Personal Injury Information

How Can I Expect an Accident to Affect My Daily Life?

May 11, 2023 -

John McMullin, Juris Doctor, Associate Lawyer, LETOURNEAU LLP

Life after a motor vehicle accident is often an entry into a great expanse of the unknown. You’ve gone through the trauma of the crash itself. After that moment of sound and fury, there’s often no one to tell you what is going to happen. We here at LETOURNEAU LLP can’t predict the future, but we can demystify some of what happens medically after a car accident.

What Are Typical Injuries After an Accident?

It’s very normal to feel like you are absolutely fine after a car accident. You may have told a police officer at the scene that you’re not injured at all, and then a few days later you can’t get off the couch for a week. This can happen when your body’s “fight or flight” response covers the symptoms of the accident so that you can still react to the trauma.

Whiplash symptoms can be more insidious than a sore neck and back. Headache, vision issues, nausea, and memory can all be affected by whiplash.

Concussion is another common injury after an accident, and can cause irritability, depression, word recall, and other issues. PTSD and other mental injuries are also common – you went through trauma, and your body and mind need to deal with it.

Jaw issues, specifically temporomandibular jaw disorder (TMD) are easy to miss when dealing with the aftermath of an accident, but are important to address. TMD can make your headaches and neck pain worse, as well as causing pain and difficulties eating.

More serious injuries such as fractures, chronic pain, burns, and brain injuries can happen in higher-speed accidents, or if someone’s body is particularly susceptible to being hurt in a specific way.

What Do I Do After the Accident to Recover?

There is a lot to do after an accident. One of the most important, if not the most, actions is getting treatment for the injuries you’ve suffered from your accident. You have coverage through your own insurance company for your treatment, and you should use it.

You need to make sure you are working with appropriate healthcare professionals, including:

Your doctor. If you don’t have a doctor, services such as walk-in clinics or the emergency department can assist. You need a medical professional to determine how badly you’ve been hurt. Many accident victims are worried that their symptoms are not serious enough to discuss with their doctor, but it’s important to remember that medical professionals are the ones that will tell you how badly you’ve been hurt, not the other way around. They can’t help you if you don’t tell them what you’re dealing with.
Specialists that you have been referred to. If your accident results in arthritis or fibromyalgia, working with a rheumatologist who specializes in treating those conditions is vital.
Your physiotherapist. At LETOURNEAU LLP, we’ve never had a personal injury client who has not benefitted from going to physiotherapy. Your physiotherapist will help you strengthen and repair damaged muscles and tendons. They can also assist with concussion issues and TMD.
If your doctor recommends it, a psychologist. Remember how we told you to talk to your doctor about your symptoms? This includes mental difficulties. Your doctor can determine if psychological treatment can assist you, and if they do, your insurance company will pay for it.
Your dentist if you have any jaw issues. Most dentists do not specialize in TMD treatment, but they can refer you to someone who does.
Many clients also benefit from chiropractic treatment, massage, or acupuncture. There is some coverage for these services through your own automobile insurance.

It’s important to try and keep all of your treatment team informed of what’s going on. Your doctor should know what your physiotherapist is saying, your physiotherapy treatment for TMD should be discussed with a dentist, and so on.

What Kind of Recovery Can I Expect?

Accidents are like nasty snowflakes: every one is different. You will not be able to know how much you’ll recover until you go through the steps to get better.

However, the earlier you get to treatment, and the better you are at following what your doctors tell you to do, the better chance you’ll have at improving.

Hopefully, you will recover entirely from the accident, but that doesn’t always happen. Generally speaking, your health will not improve after two years of treatment, unless there is further significant intervention such as surgery. This is called maximum medical improvement. Your body may stop responding to treatment after a number of years, so it’s important to prioritize treatment early and often.

Organizing and dealing with treatment is an important part of the service we offer at LETOURNEAU LLP. We work with you to find the best treatment providers for your case, ensure your insurance company meets its contractual obligations to pay for that treatment, and deal with the bumps a nd problems that will come up along the way so that you can focus on getting better. Contact us today to arrange a free consultation to see what we can do to help you recover and get the compensation you deserve.

Learn more about John McMullin , our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law .

This article is for information purposes only and does not constitute legal advice

What Do the Largest Personal Injury Settlements Look Like?

Thu, 04 May 2023 20:04:24 GMT

Personal Injury Information

What Do the Largest Personal Injury Settlements Look Like??

May 4, 2023 -

John McMullin, Juris Doctor, Associate Lawyer, LETOURNEAU LLP

In Alberta, it’s hard to know what to expect from a personal injury lawsuit. We’ve heard of extremely high personal injury cases from the United States , including Stella Liebeck, the 79-year-old woman whose McDonald’s coffee was so hot that she had 3 ^rd degree burns. Those awards are not typical for Canadian decisions for many reasons (a cap on pain and suffering damages and a much lower punitive damages regime being two of the most important) but personal injury awards in Canada are still considerable.

Personal injury awards can vary in amount depending on the injury . Today we’re taking a look at a 2010 case with one of the highest ever awards in a motor vehicle case in Alberta, and with one of the most unfortunate stories you’ll ever hear: Ward v Ward , 2010 ABQB 654 . Cory Ward received an award of $1,597,411.07, and he deserved every penny.

Cory was strapped into a seat belt heading to his girlfriend’s house with his dad, Gerald Ward. Gerald was coming back from Edmonton after filing papers to officially adopt Cory. It was a snowy day and there were snow “snakes” going across the road. Gerald turned left off the highway. He never saw the vehicle driven by James Dixon in the other lane. Dixon’s vehicle struck the Ward’s vehicle on the passenger side where Cory was seated, while going 80-85 km/hour.

Cory Ward was rushed to the hospital. He almost died twice on the way. He was in a coma for 19 days, with a bleeding brain, and fractures to his skull, jaw, shoulder blade, ribs, and pelvis. He had significant nerve damage. His liver was lacerated, his kidney was lacerated, he had air from his lungs bleeding into his body.

Cory was treated for brain injury. He had to relearn his speech, hygiene, sitting, standing, and being able to eat. He required full-time supervision. He recovered his ability to read to the level of a 4.6 grader and do math at a 3.5 grade level.

While the Court found that Cory’s previous academic history meant he likely would not have finished high school, he would have worked and earned an average income for someone without a high school diploma, which the judge calculated at $777,920.00. The justice deducted some of the funds due to Cory having a part-time job with a generous employer as a plumbing assistant, as well the value of having the award now rather than in the future, leaving an award of $632,060.00.

Cory’s future care costs included financial assistance, housecleaning, a day timer, and dental exams, which the justice found would cost $29,700.99 a year after social assistance programs helped out. This worked out to $730,351.07.

There was also $30,000.00 awarded by the Court for Cory’s past loss of income.

Given Cory’s young age and how the accident would affect him until he died, the Court also awarded $205,000.00 for Cory’s pain and suffering.

In conclusion, an injury that radically changes someone’s life, to the point that it is not the same life anymore, can still attract a significant damages award in Canada. These cases are, fortunately, uncommon.

Whether or not you believe your injury is big or small, we would be happy to talk about your case with you. We can put you in touch with medical professionals that can determine the exact injuries you’ve suffered in your accident, then work together to get you a proportionate award.

Learn more about John McMullin , our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law .

This article is for information purposes only and does not constitute legal advice

E-Scooters in Lethbridge: What’s the Law?

Mon, 01 May 2023 17:38:03 GMT

Personal Injury Information

E-Scooters in Lethbridge: What’s the Law?

May 1, 2023 -

John McMullin, Juris Doctor, Associate Lawyer, LETOURNEAU LLP

E-scooters look they are becoming less of a fad and more of a fixture of summertime in Alberta. Orange Neuron e-scooters and e-bikes are scattered across the city of Lethbridge for anyone who needs a quick ride or to have a bit of fun. They’re easy to use, but what is the law around them, and what happens if you get into an accident while driving one?

Lethbridge Laws About E-Scooters

E-scooters are, oddly enough, defined as motor vehicles in Alberta’s Traffic Safety Act , since they use electricity rather than your muscles to move. This also means that, again according to the Traffic Safety Act, they can only be driven on private property .

However, municipalities can override the Traffic Safety Act when it comes to where scooters go, and Lethbridge allows e-scooters on public sidewalks and paths, as announced enthusiastically on the city’s tourism page.

E-Scooters and Alcohol

It’s important to note that the Traffic Safety Act ’s definition of e-scooters still applies. That means, among other things, you cannot operate an e-scooter if your blood alcohol level is over the legal limit.

Lethbridge has dealt with this issue before in a SafeRoads Alberta hearing: Churchill (Re) , 2022 ABSRA 619 . In this case a woman on an e-scooter drove into a parked car. Multiple witnesses described that she was drunk and she blew over 100 mg% on her blood alcohol test. She was issued a Notice of Administrative Penalty at the scene and that notice was upheld at the SafeRoads hearing.

Riding a scooter while intoxicated may seem like a fun, enjoyable idea. The reality of the situation is that operating an e-scooter while drunk is against the law.

What happens in E-Scooter Accidents?

E-scooters accidents in Lethbridge are legally very similar to any other accident: the party that caused the accident is at fault and can be made to pay. There are a few wrinkles that are useful to know for these accidents.

Do you have the right of way?

If you are riding an e-scooter, you are not a pedestrian. This is important because it means you do not have the right of walk when you are crossing a crosswalk, meaning that it is your job to look out for other vehicles rather than being able to simply go across like someone walking.

Who gets sued?

If you cause an accident while riding an e-scooter, you can be sued for that accident. It is very important to note that you do not have your regular motor vehicle insurance coverage while riding an e-scooter; if you hurt someone, you’re responsible to pay them for their injuries on your own.

If someone else hurts you in an accident they caused, you would be able to sue them, just as if you were riding a bicycle or walking.

However, because e-scooters are owned by an independent company, that company may also get caught up in the litigation. Maybe the scooter broke due to poor maintenance. Maybe it was poorly designed, causing the accident. This can make your legal matter more complicated.

Is there any insurance coverage for e-scooters?

Yes, with some limitations. In Lethbridge, the primary company offering e-scooter services is Neuron. Neuron riders who are operating the e-scooter (or e-bike) in accordance with Neuron’s terms of service have some coverage if they are injured riding the e-scooter. This includes wearing a helmet. Impaired operators do not fall under Neuron’s policy.

There are a variety of coverages available, including dental, medical, physiotherapy, loss of use, funeral, day care, and home modification benefits, up to $50,000.00, with limits for each specific service or loss.

These insurance benefits, however, are only available if written notice is given to Neuron’s insurer within 30 days and written proof within 90 days.

If you were struck by an automobile, you may have coverage through the insurance on that automobile for treatment as well.

E-scooters make personal injury matters more complicated. If you’ve been involved in an e-scooter accident, we can assist you with those complications to ensure you get the compensation you deserve. Contact us by telephone at 403-329-4311 to set up a free personal injury consultation.

Learn more about John McMullin , our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law .

This article is for information purposes only and does not constitute legal advice.

My Spouse Got Into an Accident – Help!

Mon, 24 Apr 2023 15:47:22 GMT

Personal Injury Information

April 24, 2023 -

John McMullin, Juris Doctor, Associate Lawyer, LETOURNEAU LLP

MY SPOUSE GOT INTO AN ACCIDENT - HELP!

There is a lot of information about what to do when you get into a car accident, but what do you do when your spouse is the one involved? Here’s some helpful advice:

Understand The Magnitude of What Happened

Your spouse has just had their life changed in the blink of an eye. Where before they were happy and healthy, they now have to deal with constant pain, memory issues, and limitations on what they can do.

Personality changes are also common after an accident. Your spouse may suffer from anxiety while driving. If they’ve been concussed, your spouse will probably have uncharacteristic outbursts of anger, difficulty remembering things, and a lack of patience as their brain tries to heal itself. When an accident changes the way someone has to live their life (they could be in a wheelchair, their body may hurt when sitting down, they may not be able to get into a car anymore, etc.) there is often a period of depression when adjusting the this new reality.

Your spouse is living in a new world that will require patience and understanding. It’s a difficult time, but realizing how much change your spouse is going through can help you both.

Help Them Help Themselves

Anyone who is in a car accident can improve their condition after the accident by following the advice of healthcare professionals. However, the mental and physical injuries make it really hard to do that. You can assist by helping them remember appointments, helping them get to appointments, and ensure they are doing the work at home that their treatment providers prescribe them, including:

1. Exercises from a physiotherapist;

2. Wearing treatment devices, such as dental orthotics, and using medication;

3. Journalling as advised by a psychologist; and

4. Drafting lists, using post-its, or other memory activities.

Following the advice of treatment providers is the fastest way to get better. It also improves your loved one’s legal case. Failure to attend treatment or follow care-provider advice will result in a lower settlement or award.

What Are Your Legal Entitlements?

The law recognizes that your spouse getting into an accident affects you as well. There are at least two ways this happens: an “in-trust” claim and a loss of consortium claim.

In-trust Claim

In-trust claims are made by the person who was injured on behalf of family members who helped them out. Family members often provide services to injured individuals that the individual would otherwise have to pay for, such as caregiving or extra cleaning. The injured person can ask for money to compensate for those services in their own lawsuit.

A loss of consortium claim is one where you make the claim yourself. If the Accident has result in your sex life, friendship, and companionship you enjoy with your spouse being negatively affected, you can request damages for that loss.

In an Alberta case called Madge v. Meyer , 1999 ABQB 1017 , a wife was awarded $30,000.00 for loss of consortium. The judge found, “Mr. Madge requires some supervision by Mrs. Madge. He makes her life very difficult by virtue of his insecurity and "clingyness". He is no longer able to give Mrs. Madge the comfort and emotional support that one expects, and arguably, is entitled to receive from one's spouse. While they are able to have sexual relations, albeit less frequently than pre-accident, Mrs. Madge is deprived of the emotional response from her husband.”

Whether or not you have a claim of your own, an accident is always difficult to deal with as a family member. At LETOURNEAU LLP, we can find a team of care professionals for your loved one that can make a difference in their lives and assist with any claims you may have yourself. Contact us for a free consultation.

Learn more about John McMullin , our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law .

This article is for information purposes only and does not constitute legal advice.

Personal Injury and Chronic Pain

Fri, 21 Apr 2023 19:39:19 GMT

Personal Injury Information

April 21, 2023 -

John McMullin , Associate Lawyer, LETOURNEAU LLP

PERSONAL INJURY AND CHRONIC PAIN

Chronic pain is an unfortunate reality for many victims of motor vehicle accidents. One University of North Carolina study found that 22% of individuals had chronic widespread pain (chronic pain in multiple, specific areas of the body) one year after the accident. A Journal of Psychosomatic Research study found that 44% of individuals had chronic pain after a motor vehicle or other severe injury 3 years post-accident.

In this blog post we’ll talk about what Chronic pain is, and how it affects your legal case.

What is Chronic Pain?

Chronic pain is pain that lasts for a significant amount of time – according to Johns Hopkins Medicine , over three months. It can eventually lead to chronic pain syndrome, where “people have symptoms beyond pain alone, like depression and anxiety, which interfere with their daily lives.”

Depression, anxiety, PTSD, and pain can interact and increase one another, which is one reason why we work with clients at LETOURNEAU LLP to make sure you’re treating psychological injuries from the accident as well physical ones. Treatment for chronic pain can include medication, stress reduction, sleep aids, physiotherapy, and counselling.

What Have Alberta Judges Said About Chronic Pain?

The law recognizes that chronic pain is a serious condition that deserves monetary compensation; our Alberta Court of Appeal has found that chronic pain is not a minor injury. Chronic pain can be one of many injuries, but even chronic pain alone has lead to significant personal injury awards.

In J ones v Stepanenko , 2016 ABQB 295 , the plaintiff, Ms. Jones, was a 19 year-old nursing student at the time of the accident. She was rear-ended at speed, resulting in, “the collision [pushing] her car in the car ahead of her… the back end [of the Plaintiff’s car] was completely pushed in to the point that the trunk was virtually gone…. The back window was smashed into a million smithereens.”

Ms. Jones had to become an addictions counselor because she was limited in what she could do physically, and wound up treating for over seven years before trial.

The Court found that Ms. Jones had developed fibromyalgia because of the accident. She was awarded $80,000.00 for pain and suffering damages and $282,683.65 in total.

In Mason v Thompson , 2020 ABQB 76 , the Plaintiff, Mr. Mason, was a very successful Realtor who suffered from chronic pain syndrome made worse by depression such that he quit his work as a Realtor. Mr. Mason then went on a quest to find something that would help him. He had needles stuck in him by his physiotherapist. He was injected with nerve blocking drugs and solutions designed to irritate his body (prolotherapy). Mr. Mason’s doctors selectively destroyed certain nerve cells to try and reduce his pain, and his spine was surgically fused, all on top of medication and physiotherapy.

It didn’t work. Mr. Mason shut down. He slept 4 to 5 hours a night and continued to have pain, depression, and anxiety to trial.

While the Court believed Mr. Mason should have continued working somewhat, he received $165,000.00 for pain and suffering, including housekeeping, and $700,000.00 in total damages.

We deal with chronic pain cases regularly at LETOURNEAU LLP. It’s a difficult diagnosis, especially when there appears to be no identifiable cause. We can leverage our network of experts for treatment, diagnosis, and quantification of your injuries. Let us help you find the solutions and the compensation that you deserve.

Learn more about John McMullin , our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law .

This article is for information purposes only and does not constitute legal advice.

The use of social media in personal injury cases - case review

Wed, 15 Mar 2023 17:04:34 GMT

Personal Injury Information

March 15, 2023 -

John McMullin , Associate Lawyer, LETOURNEAU LLP

A lax social media account is a gold mine for an insurance company. In any personal injury case they will scour social media for pictures, videos, or other evidence that can be used to reduce or complicate personal injury claims. We’ve illustrated how this can affect client’s claims by summarizing two cases below:

Motorcycle Victim’s Rock and Roll Hustle Reduces Claim

The British Columbia personal injury case Welygan v Willms , 2013 BCSC 219, shows how drastically social media photographs can affect a personal injury claim. Ms. Welgyan was a passenger on her boyfriend’s motorcycle. He leaned the bike too far on a curve and sent them both tumbling.

Ms. Welygan claimed she had chronic pain and difficulties with her back as a result of falling from the motorcycle. She also claimed jaw pain and that her pre-existing depression and anxiety were worsened by the accident.

The judge was not convinced that Ms. Welygan had actually hurt her back. He based this opinion off of several factors, including a CPP disability application that did not include those issues and medical records.

He also based his findings on photographs put up on Facebook. Ms. Welygan joined a rock band after the accident, and there was evidence of her dancing onstage, jumping from the stage, and twisting her back during performances.

Despite finding no chronic pain or back injury, the judge found Ms. Welygan had some shoulder pain and increased mental difficulties for a time, as well as her jaw injury, and awarded $35,000.00 for pain and suffering and $5,850 for out of pocket costs. This was likely a significant decrease from what Ms. Welygan expected at trial.

Ballroom Dancer’s High Heel Photos Relevant to Action

In the Ontario personal injury case called Isacov v Schwartzberg , 2018 ONSC 5933, Ms. Isacov’s foot was run over by the defendant. This was especially difficult because Ms. Isacov was a professional ballroom dancer who, in her own opinion, experienced “tremendous devastation” at being no longer able to dance. Her doctor had advised Ms. Isacov that she could no longer wear high-heeled shoes, which is a requirement for ballroom dance.

The defence in this case was able to locate Facebook and Instagram posts of Ms. Isasov dancing with friends while wearing high heels after the accident, and they asked for further pictures from Facebook and Instagram. Ms. Isacov’s lawyers told them there was no way the pictures would be produced, and the issue of whether the pictures could be used came to Court.

The judge in the matter thoroughly reviewed the law about producing pictures on social media. He found that, as the Facebook and Instagram pages were private, there was a privacy interest in them. However, that interest was overridden because the photographs in question would clearly be relevant to Ms. Isacov’s ability to dance and wear heels.

The information in the judge’s decision makes Ms. Isacov appear like she was lying about not being able to dance or wear heels. However, the photographs of Ms. Isacov could have been completely innocent. For example, a higher floor made her look taller, leading to the conclusion she was wearing high heels. She may have tried high heels and dancing momentarily and then immediately stopped as it was too painful. Because those photographs were posted, Ms. Isacov had to deal with an unexpected challenge from the opposing insurance company when she may not have done anything suspicious.

Using social media can be extremely disruptive to a personal injury matter. It’s important to be able to catch up with friends and family, but the public nature of social media (even when making private posts) means that insurance companies can and will use social media posts to reduce claims. If you have a potential personal injury claim, be judicious on what is posted online, and talk to a lawyer at LETOURNEAU LLP about other ways to protect your claim.

If you have been in a bicycle or car accident, it's a great idea to speak to a personal injury lawyer about your rights and responsibilities. Contact LETOURNEAU LLP at 403-329-4311 to set up a free consultation for any accident-related injury.

Learn more about John McMullin , our Lethbridge Personal Injury Lawyer.

Learn more about Personal Injury Law from our Lethbridge law firm website www.LeLaw.ca .

This article is for information purposes only and does not constitute legal advice.

Division of Family Assets upon Separation in Alberta

Wed, 08 Mar 2023 23:57:04 GMT

Legal Separation and Division of Assets

March 8, 2023

Adam Letourneau, K.C. - Managing Partner, Lawyer, LETOURNEAU LLP

The Family Law Act governs how family assets are divided in Alberta (FLA). Separated married couples and separated couples who have been living together in a marriage-like relationship for at least three years or who have a child together are covered by the FLA, whether they are married or not.

Family property is anything that each spouse (whether married or not) or both spouses own on the day of separation, including any growth or decrease in its worth, according to the FLA. Assets including real land or property (houses, land, commercial buildings), bank accounts, investments, businesses, shares in businesses, RRSP's, CPP credits, vehicles, and personal items are included in this, as an example.

The equalization of net family property principle serves as the foundation for family property division in Alberta. By deducting the value of each spouse's debts and liabilities from the value of their assets, the net family property—the total of all the assets and obligations—is determined, with each spouse being entitled to half of it in most instances.

Identifying the assets that are family property is the first stage in the split of assets. Some forms of property, including those bought before the partnership started, gifts or inheritances obtained during the relationship, and personal injury settlements, are potentially excluded from this assessment, meaning they may be off the table for division. These exemptions are case specific.

Each spouse's net family property is estimated once the value of the family property has been established by deducting their debts and obligations from their share of the family property. Hence, the spouse with the higher net family property must split the difference with the other spouse.

The split of family assets must be distinguished from spousal support or partner support, which is determined by distinct criteria such as income, earning potential, and financial needs. However, the assessment of net family property division may change if one spouse is compelled to pay spousal support. Again, each case is fact specific.

If there is a disagreement about how to divide the family's assets, either spouse may ask the Court to make a ruling. In Alberta, only the Court of King's Bench has jurisdiction to determine property division between a separated couple. To determine a fair and equitable split of assets, the Court can take into account a number of elements, including the duration of the marriage, each spouse's contributions, and their individual needs and circumstances.

The Family Law Act , which governs the division of family assets in Alberta, is based on the idea of equalizing net family assets. It's crucial to obtain legal counsel if you're going through a separation or divorce to make sure your rights and interests are safeguarded.

Learn more about our Lethbridge divorce and family law lawyers, Adam Letourneau, K.C. , Spencer McMullin , Emily Tilleman , Austyn Anderson or Tamera Tupou .

Learn more about Divorce and Family Law Frequently Asked Questions from our website.

Call 403-329-4311 to set a free Divorce or Family Law or Property Division consultation today with one of our Lethbridge Divorce or Family Law lawyers.

This article is for information purposes only and does not constitute legal advice.

Car Versus Bicycle: Who is at Fault?

Wed, 08 Mar 2023 22:28:35 GMT

Lethbridge Personal Injury Law Information

March 8, 2022 -

John McMullin , Associate Lawyer, LETOURNEAU LLP

When a cyclist is in an accident with a car, whose fault is it?

The answer depends: who was breaking the law? Who was being unsafe?

Case Law: A Heightened Duty

In the case of Hadden v Lynch , Paul Hadden was a bike courier trying to beat a light while riding on a sidewalk. He was moving at over 32 kilometres an hour and shot out into an intersection.

Unfortunately that was at that same time Juston Lynch was making a right turn after having been stopped at a red light. Hadden decided to test the age-old question of “Who would win, bicycle or garbage truck?” by driving his bicycle straight into Lynch’s vehicle.

As Hadden was riding on the sidewalk, entering a crosswalk on a bicycle, the judge found he had a heightened duty to take care. Lynch had done enough to make sure the intersection was safe, Hadden didn’t, and Hadden lost in this court case.

Conversely, in the case called Dobre v Langley , Tedor Dobre biked up to a crosswalk, hit the pedestrian crossing button, went out into the intersection, and saw Leanne Langley bearing down on him in a Toyota Matrix. He tried to bike out of the way but Langley clipped his back wheel and sent him flying.

The Court in that case found that the driver Langley was not paying attention to the road at all. Dobre had taken steps to ensure he was safe, like checking both ways and activating the lights. The judge reduced Dobre’s damages by 15% and hit Langley with 85% of Dobre's damages.

The bottom line is, be safe and follow your legal responsibilities.

Cyclist Legal Responsibilities

Let’s talk about those responsibilities. In Alberta, the Use of Highway and Rules of the Road Regulation , states the legal requirements for riding a bicycle, including:

1. Having lights on the bicycle at night, as well as reflectors at all times;

2. Keeping hands on handlebars except when signalling;

3. Keeping feet on the pedals unless stopped;

4. Keeping as close to the right edge of the road or curb as possible, including going on the shoulder of the road when able; and

5. Travelling single file.

Riders under 18 need to wear a safety helmet that complies with Alberta’s Vehicle Equipment Regulation . To be clear, everyone riding a bicycle should wear a helmet for safety issues, but there’s no legal requirements for adults to do so.

Bicycles are not to be ridden on sidewalks. They are required to follow traffic signals, such as stop signs and traffic lights, just like any other vehicle. Bicycles do not have a right of way on crosswalks unless the bicyclist dismounts.

Cyclist Safety

Unfortunately, not all drivers watch for cyclists. That’s why it’s important to make sure you’re visible when you’re riding your bike. Wear bright clothing, put lights on your bike and operate them even in the daytime, and make eye contact with drivers if possible. These small steps can make a big difference in keeping you safe.

By following the law, making yourself visible, and being prepared, you can stay safe on the road. And remember, if you do get hit by a vehicle, don’t hesitate to seek legal help. An experienced personal injury lawyer can help you get the compensation you deserve for your injuries and losses.

If you have been in a bicycle or car accident, it's a great idea to speak to a personal injury lawyer about your rights and responsibilities. Contact LETOURNEAU LLP to set up a free consultation for any accident-related injury.

Learn more about John McMullin , our Personal Injury Lawyer.

Learn more about Personal Injury Law from our website.

This article is for information purposes only and does not constitute legal advice.

Jackson v Cooper: Prejudgment Interest and Minor Injuries

Wed, 08 Mar 2023 22:00:23 GMT

Personal Injury Law Information

March 8, 2022 -

John McMullin , Associate Lawyer, LETOURNEAU LLP

On October 21, 2015, Papa Jackson was driving home from work on an ordinary day when Julie Cooper accelerated through a stop sign and smashed into his car.

This began a long journey through the Courts, culminating in the decision in Jackson v Cooper , 2022 ABKB 609. The Court had to address two particular points:

1) What kind of interest was payable on Mr. Jackson’s award?

2) Were Mr. Jackson’s injuries minor?

Interest

When you are hurt in a personal injury accident, interest on your damages is something you need to deal with. The main issue is interest on your pain and suffering. It used to be that there was interest at 4% a year from the date of the accident.

However, on December 9, 2020, a new law went into effect that stated interest was payable from the time the insurance company was made aware that there was a potential claim. Interest was also tied to the rate on ATB Financial Guaranteed Interest Certificates (GICs), then reduced. This number is historically less than 4%; in the last twenty years, only 2002 and 2003 had rates higher than 4%.

Since Mr. Jackson’s injury occurred before the change in the law, but his case was heard after the change in the law, the justice hearing the case, Justice Kraus, had to determine what interest was payable. He found that interest was payable at 4% to the date the law changed, and then payable at the lesser floating rate on December 9, 2020, rather than the lesser variable rate the insurance company wanted. Justice Kraus found there was no specific wording in the legislation that meant insurance rates were supposed to change before December 9, 2020.

Minor Injuries

The Court found that the test in Sparrowhawk v Zapoltinsky , 2012 ABQB 34, was the appropriate way to figure out if an injury was minor, as follows:

1. Is a physical or cognitive function impaired?

2. Is the sprain, strain, or WAD injury "the primary factor contributing to the impairment"?

3. Does the impairment cause substantial inability to perform:

a. Essential work tasks,

b. Essential facets of training or education, or

c. "Normal activities of the claimant's daily living"?

4. Has the impairment has been "ongoing since the accident"? and

5. Is the impairment not expected to "improve substantially"?

Physical or Cognitive Impairment

This factor is a low bar; is there actually an injury? Neither party seriously disputed whether there was an injury so this requirement was met.

Primary Factor

The Court found that Mr. Jackson was credible, and that he described having an injury, so his subjective complaints about the accident were enough to confirm the Accident was their cause.

Substantial Inability

The Court did not find that Mr. Jackson’s essential work tasks were affected by the accident, as he continued in his normal work before and after the accident.

However, as Mr. Jackson no longer played soccer, had restricted ability to play other sports, had reduced ability to play with his children, and affected his sexual relationship with his wife, the Court agreed that Mr. Jackson’s normal activities of daily living had been affected by the accident.

Ongoing Since the Accident

Mr. Jackson was discharged from physiotherapy and the insurance company argued that his injuries resolved at that time. The Court found that Mr. Jackson’s pain improved at some points but went through ups and downs.

No Substantial Improvement

In order to “get out of” the minor injury designation, an injured person has to show that the injury is not going to get better. As the experts stated that Mr. Jackson’s injuries were ongoing, the Court confirmed there was no substantial improvement expected.

After the justice considered all the factors, the justice awarded:

· $55,000.00 for pain and suffering;

· $10,660.00 for loss of earning capacity;

· $10,000.00 for past loss of housekeeping capacity;

· future cost of care of $31,808.00; and

· Interest, including 4% before December 9, 2020.

Jackson was a win for people hurt in a car accident. It shows that ongoing injuries are recognized by the Courts and individuals with injuries that occurred before changes to interest rates are given the rights they deserve under the law.

Jackson is currently under appeal and we will update this article when the appeal decision is released.

If you have been in a car accident, it's a great idea to speak to a personal injury lawyer about your rights and responsibilities.

Learn more about John McMullin , our Personal Injury Lawyer.

Learn more about Personal Injury Law from our website.

This article is for information purposes only and does not constitute legal advice.

Why do lawyers wear special robes in the Courtroom?

adam@lelaw.ca — Tue, 28 Feb 2023 22:37:23 GMT

Learn a bit of the history of legal robes

February 28, 2023

Adam Letourneau, K.C.

In Canada, lawyers don robes during court proceedings as a nod to the history and customs of the legal profession. This custom originated in the United Kingdom, where it was typical for judges and lawyers to dress in robes. In Canada, wearing robes is still typical today and represents the history and customs of the legal profession.

The Standard Robe

The standard lawyer's robe in Canada is black, made of wool or a wool blend, and has long, wide sleeves. The robe is designed to be worn over a petty coat, white shirt and tabs and the roab extends to the feet. It is made of a heavy material to give it a dignified and formal appearance. The petticoat worn under the robe is black with sleeves that extend to the wrists. The white tabs, strips of white cloth extending from the collar of the robe, lay flat against the chest. Wigs are no longer worn by lawyers in Canadian courts (they are in the UK), but the use of robes remains common.

King's Counsel Robes

In Canada, lawyers who are appointed as King's Counsel (K.C.) are entitled to wear silk robes. K.C. is a special honorific that recognizes a lawyer's exceptional merit, contribution to the legal profession, and service to the community. K.C. lawyers wear black silk robes with a slightly different design. These robes are more formal than the standard woolen robes worn by other lawyers.

The Alberta Collar System

In Alberta, judges in the Provincial Court wear black robes and a blue collar, while Justices (what a judge is called there) in the Court of King's Bench wear a red collar. This collar system helps distinguish the rank of the judge in the courtroom.

The History of Robes

In the United Kingdom, where lawyers and judges have worn robes since the 16th century, the use of robes in the legal profession may be traced back to that country. Robes were worn in the early days of the legal profession as a practical precaution to stay warm in chilly courtrooms. But throughout time, robes came to represent the history and customs of the legal profession. When Canada was still a British colony, this custom was introduced to the country. The custom of donning robes has developed to suit Canada's distinctive legal system today, but it still plays a significant role in the legal profession.

In Alberta, lawyers typically wear robes in the Court of King's Bench or Court of Appeal only when there is viva voce evidence, or in other words, live evidence with witnesses. Otherwise, they normally wear suits or other formal attire in the courtroom.

Learn more about our Lethbridge lawyers, Adam Letourneau, K.C. , Devin Wallace , Spencer McMullin , Emily Tilleman , John McMullin , Austyn Anderson or Tamera Tupou .

Learn more about various areas of law from our website.

Call 403-329-4311 to set a consultation today with one of our Lethbridge lawyers.

This article is for information purposes only and does not constitute legal advice.

Why Having a Properly Done Will in Alberta is so Important

Sat, 25 Feb 2023 08:49:58 GMT

Plan your estate now to ensure things happen the way you want them to happen

February 24, 2023

Adam Letourneau, K.C.

When it comes to estate planning, creating a will is one of the most important steps you can take to ensure that your wishes are carried out after your death. Unfortunately, many Albertans do not have a will in place, either because they don't think it's necessary or because they simply haven't gotten around to it. In this article, we'll take a closer look at what happens if you don't have a will in Alberta and why it's important to invest in the services of a lawyer to draft and execute your will properly.

In Alberta, the Wills and Succession Act governs how your estate will be distributed if you die without a will. This legislation sets out a specific order of priority for who will inherit your property and assets, based on your surviving family members. The rules are as follows:

If you have a surviving spouse or adult interdependent partner, they will inherit the entire estate if you have no children or grandchildren.
If you have a surviving spouse or adult interdependent partner, they will inherit the first $150,000 of the estate, plus one-half of the remaining estate if you have children or grandchildren.
If you have no surviving spouse or adult interdependent partner, your children will inherit the entire estate in equal shares.
If you have no surviving spouse or adult interdependent partner and no children or grandchildren, your parents will inherit the entire estate in equal shares.
If you have no surviving spouse or adult interdependent partner, no children or grandchildren, and no surviving parents, your siblings will inherit the entire estate in equal shares.
If you have no surviving spouse or adult interdependent partner, no children or grandchildren, no surviving parents, and no surviving siblings, your estate will pass to your next of kin in the order of priority set out in the legislation.

It's important to note that if you die without a will, your estate will be distributed according to this order of priority, regardless of your wishes. This means that if you have specific plans for how you want your assets to be distributed after your death, it's crucial to have a will in place to ensure that those wishes are carried out. Neglecting to do this important step could mean your wishes do not come to pass.

Another risk of not having a will is that the distribution of your estate can be delayed, as the court will need to appoint an administrator to handle the estate, and someone who is interested and able to do this work will have to take the necessary and complex steps to become the administrator of your estate. This process can be time-consuming and expensive, and can cause additional stress and burden for your loved ones during an already difficult time.

This is why it's important to invest in the services of a lawyer to draft and execute your will properly. A lawyer can help you navigate the complex legal requirements for creating a valid will and can ensure that your wishes are clearly and legally documented.

In conclusion, if you don't have a will in Alberta, your estate will be distributed according to a specific order of priority set out in the Wills and Succession Act . This can result in your assets being distributed in a way that does not align with your wishes and can cause delays and additional stress for your loved ones. By investing in the services of a lawyer to draft and execute your will properly, you can ensure that your wishes are legally documented and that your loved ones are taken care of after your death.

Learn more about our Lethbridge divorce and family law lawyers, Adam Letourneau, K.C. , Devin Wallace , Spencer McMullin , Emily Tilleman , John McMullin , Austyn Anderson or Tamera Tupou .

Learn more about Estate Planning Frequently Asked Questions from our website.

Call 403-329-4311 to set a free Estate Planning Will consultation today with one of our Lethbridge Estate Planning Will lawyers.

This article is for information purposes only and does not constitute legal advice.

Relocating a Child After a Divorce - Possible?

adam@lelaw.ca — Tue, 21 Feb 2023 07:34:57 GMT

Know the new rules

February 20, 2023

Adam Letourneau, K.C.

When parents divorce, one of the most challenging issues they can potentially face down the road is how to deal with the mobility of their children. Mobility refers to the ability of one parent to relocate with the children, either within Alberta or to another province or country. The Canadian law relating to mobility of children is set out in the Divorce Act , which is a federal law that applies to married couples who are seeking a divorce.

It is very important to understand that under section 16.93 of the Divorce Act , the burden of proof in child mobility cases depends on the existing parenting arrangements post-separation. If the parties substantially comply with an existing order, arbitral award, or agreement that provides for substantially equal time with each party, the parent who intends to relocate with the child has the burden of proving to the Court that the relocation of the child would be in the best interests of the child. On the other hand, if the child spends the vast majority of their time in the care of the parent who intends to relocate, the burden of proof is on the parent opposing the relocation to prove that it would not be in the child's best interests. In any other case (other than the two examples listed above), both parties have the burden of proving whether the relocation is in the best interests of the child.

When a court is considering a mobility of a child case, it will look at a range of factors to determine whether the move is in the best interests of the children. Some of the key factors that the court will consider include:

The reason for the proposed move - The court will want to understand the reasons behind the proposed move and whether it is for a valid and good-faith reason, such as a job offer, educational opportunity, or to be closer to family.
The impact of the move on the children - The court will consider how the move will affect the children, including their relationships with both parents, their extended family, and their community.
The ability of the parents to co-parent - The court will consider the ability of the parents to communicate and work together in the best interests of the children, both before and after the move.
The children's wishes and feelings - The court will take into account the views and preferences of the children, particularly as they get older and are able to express their opinions.
The existing parenting arrangements - The court will consider the existing parenting arrangements, including the division of parenting time and decision-making responsibilities, and how they will be affected by the proposed move.

After the burden of proof issue has been resolved, the court will ultimately base its decision in these types of situations on what is best for the children. This can necessitate striking a balance between many aspects and taking into account how the proposed transfer will affect the children's development, quality of life, and general well-being.

Mobility of children post-separation or divorce is one of the more complicated areas of family law. If you are facing a mobility issue, it is important to seek legal advice and guidance to help you navigate this complex process. A lawyer can help you understand your legal rights and obligations, and can provide guidance on how to present your case in the best possible way. It is important to remember that mobility cases can be challenging and emotional, and having the right legal support can make all the difference.

Learn more about our Lethbridge divorce and family law lawyers, Adam Letourneau, K.C. , Spencer McMullin , Emily Tilleman , Austyn Anderson or Tamera Tupou .

Learn more about Divorce and Family Law Frequently Asked Questions from our website.

Call 403-329-4311 to set a free Divorce or Family Law consultation today with one of our Lethbridge Divorce or Family Law lawyers.

This article is for information purposes only and does not constitute legal advice.

The ins and outs of child support in Alberta

adam@lelaw.ca — Tue, 14 Feb 2023 18:55:21 GMT

Know how child support works

Child support is an important topic for parents who have separated or divorced in Canada. The goal of child support is to ensure that the child's needs are met, even when parents are no longer living together. In Canada, child support is governed by the federal Divorce Act and the provincial/territorial family law statutes.

In Alberta, as in other provinces, there are two main types of child support: S.3 and S.7 child support. S.3 child support is basic support that covers the child's basic needs, such as food, clothing, and shelter. The amount of S.3 child support is calculated using the Federal Child Support Guidelines, which take into account the paying parent's income and the number of children they are responsible for.

S.7 child support, on the other hand, covers "special or extraordinary expenses" related to the child's health, education, or extracurricular activities. Examples of S.7 expenses may include things like extraordinary fees for extracurricular activities (not the normal fees), private school tuition, or medical expenses not covered by insurance. The responsibility for paying S.7 expenses is typically shared between both parents, based on their income.

In shared parenting regimes, where one parent has the child for at least 40% of the time, offset child support may be used. Offset child support takes into account both parents' income and the amount of time each parent spends with the child. The idea is that each parent is responsible for their share of the child's expenses, and the higher-earning parent pays the difference between their share and the lower-earning parent's share. Asking a lawyer to calculate off-set child support is essential to ensure the right amount is being paid.

Child support is usually based upon the gross salary of the paying parent, based on line 150 of their last tax return, unless their income has changed drastically since that time.

It's important to get proper legal advice when dealing with child support, as the rules and guidelines can be complex and vary depending on the specific circumstances of each case. An experienced family lawyer can help you understand your rights and obligations regarding child support, and help you negotiate a fair and reasonable agreement with your ex-partner.

When it comes to post-secondary education, child support may still be required even after the child has turned 18 and is attending college or university. In Canada, child support can continue until the child reaches the age of majority (18 or 19, depending on the province), or longer if the child is still dependent due to disability or illness. In cases where the child is attending post-secondary school, the court may consider factors such as the child's living expenses, tuition costs, and the parents' ability to pay when determining the appropriate level of support.

In summary, child support in Canada is a complex and important issue for parents who have separated or divorced. Understanding the differences between S.3 and S.7 child support, as well as offset child support and post-secondary support, can help ensure that the needs of the child are met and both parents are treated fairly. Getting proper legal advice is crucial to navigating the complexities of child support law and negotiating a fair and reasonable agreement.

Learn more about our Lethbridge divorce and family law lawyers, Adam Letourneau, K.C. , Spencer McMullin , Emily Tilleman , Austyn Anderson or Tamera Tupou .

Learn more about Divorce and Family Law Frequently Asked Questions from our website.

Call 403-329-4311 to set a free Divorce or Family Law consultation today with one of our Lethbridge Divorce or Family Law lawyers.

This article is for information purposes only and does not constitute legal advice.

What’s Distracted Driving and Why is it Killing People?

Tue, 14 Feb 2023 18:39:31 GMT

A Personal Injury Insight

March 22, 2021 -

John McMullin , Associate Lawyer, LETOURNEAU LLP

Distracted driving seems like one of those things that, as long as you don’t do it much, it doesn’t matter. You usually don’t check your texts while driving, but you and your best friend are talking about how their kid isn’t doing so great. Or your chequing account is diving towards zero and you see the bank’s number show up on the phone. Maybe you’re stuck in traffic and Candy Crush is the only thing keeping you sane, or you’re in a new city and Google Maps is the only thing keeping you from winding up circling the same Wendy’s for the next twenty minutes.

The reality of the situation is that distracted driving is extremely dangerous. According to the Traffic Injury Research Foundation , 1 in 4 fatal car accidents in Canada is caused by distracted driving. Drivers using an electronic device like a cellphone are up to 3.6 times more likely to get into an accident than those who don’t. If someone is using a phone on the road, it’s putting everyone else at risk.

What Counts as Distracted Driving Legally?

In Alberta, the Traffic Safety Act sets out what counts as distracted driving; the Distracted Driving Regulation provides helpful definitions. You can’t operate a vehicle if a phone (or other screen) is on and you can see it. There are exceptions:

o If you’re using your phone in hands-free mode, and

o If you’re using something to track your vehicle location (such as Google Maps), driver status, or delivery of goods;

o If you’re operating an emergency vehicle during your employment

So not all kinds of distracted driving in Alberta will get you in trouble at a traffic stop. Operating a vehicle while being distracted can attract fines and potential criminal charges. That’s good reason to avoid it.

Moreover, injuries from a car accident can change your life, or someone else’s life, forever. That’s an essential reason to avoid it. Drive safe, and drive focussed.

If you have been in a car accident, it's a great idea to speak to a personal injury lawyer about your rights and responsibilities.

Learn more about John McMullin , our Personal Injury Lawyer.

Learn more about Personal Injury Law from our website.

This article is for information purposes only and does not constitute legal advice.

Learn more about spousal support

adam@lelaw.ca — Mon, 13 Feb 2023 15:21:55 GMT

Spousal Support in Alberta: An Overview

February 13, 2023

In Canada, spousal support refers to the financial support that one spouse provides to the other after separation or divorce. This support is meant to help the recipient spouse become self-sufficient and maintain a standard of living that is similar to the one they had during the marriage.

There are two main types of spousal support in Canada: compensatory and non-compensatory. Let's take a closer look at each.

Compensatory Spousal Support

Compensatory spousal support is intended to compensate a spouse for the sacrifices they made during the marriage. This type of support is usually awarded when one spouse has made significant financial or non-financial contributions to the marriage that have impacted their ability to earn income or build a career. For example, if one spouse stayed at home to raise the children or put their career on hold to support the other spouse's career, they may be eligible for compensatory spousal support.

Compensatory Spousal Support

Non-compensatory spousal support, on the other hand, is intended to meet the recipient spouse's basic needs. This type of support is usually awarded when one spouse has a lower income or earning potential than the other. The goal of non-compensatory spousal support is to ensure that both spouses are able to maintain a similar standard of living to the one they had during the marriage.

Determining Spousal Support in Alberta

In Alberta, the amount and duration of spousal support are often determined by the Spousal Support Advisory Guidelines (SSAG). The SSAG provides guidance to judges and lawyers on how to calculate spousal support based on factors such as the length of the marriage, the income of both spouses, and any special circumstances (such as disabilities or the care of children). However, judges can look at many other factors before deciding how much to award for spousal support.

The SSAG is not legally binding, but it is widely used by courts in Alberta and across Canada as a starting point in the conversation about spousal support, or when a judge is making a decision. There is a lot of variability in spousal support awards, and judges are given significant discretion when making spousal support awards.

Spousal support is an important aspect of family law in Canada and can play a critical role in helping a spouse become self-sufficient after separation or divorce. Whether it's compensatory or non-compensatory, spousal support is meant to ensure that both spouses are able to maintain a similar standard of living to the one they had during the marriage for at least a reasoanble period of time.

If you are going through a separation or divorce and need help understanding your rights and responsibilities regarding spousal support, it's important to speak with a qualified family law lawyer. They can provide you with guidance and support throughout the process and help ensure that your rights and interests are protected.

Learn more about our Lethbridge divorce and family law lawyers, Adam Letourneau, K.C. , Spencer McMullin , Emily Tilleman , Austyn Anderson or Tamera Tupou .

Learn more about Divorce and Family Law Frequently Asked Questions from our website.

Call 403-329-4311 to set a free Divorce or Family Law consultation today with one of our Lethbridge Divorce or Family Law lawyers.

This article is for information purposes only and does not constitute legal advice.

Divorce and Family Law Can be Complex - You May Need a Lawyer

adam@lelaw.ca — Fri, 10 Feb 2023 21:36:34 GMT

Learn more from our experienced family law lawyers.

February 10, 2023 -

Family law in Alberta is a set of legal rules and procedures that govern the relationships between family members, including parents, children, spouses, and common-law partners. These laws cover a wide range of issues, including marriage and divorce, child custody, child support, spousal support, partner support, adoption, and domestic violence. In this article, we will provide a brief overview of some of the key aspects of family law in Alberta.

Marriage and Divorce:

Marriage in Alberta is governed by the federal Marriage Act . This act sets out the requirements for getting married, including obtaining a marriage license, having the ceremony performed by a recognized official, and registering the marriage with the government. Divorce in Alberta, on the other hand, is governed by the federal Divorce Act . To get a divorce in Alberta, one spouse must have lived in the province for at least one year and must have grounds for divorce, such as adultery, cruelty, or separation for a specified period of time. We can help you with these issues.

Child Custody and Support:

Child custody and support are some of the most important and complex aspects of family law in Alberta. When parents separate, they must make arrangements for the care of their children, including where the children will live, who will make decisions about their upbringing, and who will pay for their support. In Alberta, the best interests of the child are always the primary consideration in these matters. If parents are unable to agree on a custody and support arrangement, the court will make a decision based on the child's best interests. We can help you with these issues.

Adoption:

Adoption is a legal process by which a child becomes the legal child of new parents. In Alberta, adoptions can be arranged through government agencies or private adoption services. The adoption process in Alberta involves several steps, including a home study, a matching process, and a court hearing. The court will make the final decision on whether to grant the adoption based on the best interests of the child. We can help you with these issues.

Domestic Violence:

Domestic violence is a serious issue in Alberta, and family law provides several tools to help protect victims of domestic violence. The most common tool is a restraining order, which is a court order that restricts the behavior of the abuser, such as prohibiting contact with the victim or requiring the abuser to vacate the family home. In Alberta, victims of domestic violence can also seek emergency protection orders, which provide immediate protection in cases of serious danger.

Conclusion:

Divorce and Family law in Alberta is a complex and ever-changing area of law that affects the lives of many people. Whether you are facing a divorce, a custody dispute, or other family law issue, it is important to seek the advice of a qualified family law lawyer to ensure that your rights and interests are protected. A knowledgeable divorce or family law lawyer can help you understand your rights and obligations, negotiate a settlement, or represent you in court if necessary.

Learn more about our Lethbridge divorce and family law lawyers, Adam Letourneau, K.C. , Spencer McMullin , Emily Tilleman , Austyn Anderson or Tamera Tupou .

Learn more about Divorce and Family Law Frequently Asked Questions from our website.

Call 403-329-4311 to set a free Divorce or Family Law consultation today with one of our Lethbridge Divorce or Family Law lawyers.

This article is for information purposes only and does not constitute legal advice.

Staying Safe on the Road: Resources for Bicyclists, Pedestrians, and Drivers

Tue, 07 Feb 2023 16:12:52 GMT

Personal Injury Law

March 22, 2021 -

John McMullin , Associate Lawyer, LETOURNEAU LLP

As more Albertans turn to alternative modes of transportation, such as biking and walking, it's important to ensure that everyone on the road stays safe. Whether you're a driver, a bicyclist, or a pedestrian, there are a number of resources available in Canada to help you stay safe and avoid accidents.

For Drivers:

The Canada Safety Council provides information on how to drive safely, including information on school buses , eating behind the wheel , and others . The Canada Safety Council also has a collection of courses for anyone seeking to improve their driving abilities.

Transport Canada provides guidelines for drivers on many topics , including car seat safety .

To summarize:

1. Avoid distracted driving;

2. Remain focussed on the act of driving;

3. Ensure your car is properly maintained;

4. Use caution when dealing with challenging road conditions;

5. Use winter tires; and

6. Understand how to guard against the unsafe actions of other drivers, cyclists, and pedestrians.

For Bicyclists:

Bike Calgary is a non-profit organization that offers a wide range of resources for bicyclists, including safety tips , and advocacy tools .

Cycling Canada is a national organization that has existed since 1882. It is largely focussed on regulating the sport of cycling but has useful safety information, including this page on managing concussion .

Locally, Headwinds Cycling Club is a non-profit formed in 1986 that provides involvement for cyclists in road racing, mountain biking, and other areas. Headwinds emphasizes safety and encourages its members to review safety materials, linked from this page here .

Generally speaking, cyclists should consider the follow safety information:

1. Maintain your equipment;

2. Ride appropriately, include signalling and predictable cycling;

3. Maintaining caution at intersections where danger is highest;

4. Monitor and treat any injuries received.

For Pedestrians:

Canada Safety Council provides information and resources to help promote pedestrian safety, especially for children. They have valuable information on walking in winter , dressing for visibility , and walking while impaired by alcohol.

Active and Safe Routes to School program is an international initiative to promote walking and cycling to school and to improve safety for children, including travel planning and creative ideas for safe walking .

No matter what mode of transportation you choose, it's important to take steps to stay safe on the road. A motor vehicle accident can change your life or the life of someone you involve. Whether you're a driver, a bicyclist, or a pedestrian, there are resources available to help you stay informed and make smart decisions. By working together and following best practices, we can all help create a safer and more secure road environment for everyone in Alberta.

Learn more about John McMullin , our Personal Injury Lawyer.

Learn more about Personal Injury Law from our website.

This article is for information purposes only and does not constitute legal advice.

Should I Hire a Personal Injury Lawyer?

Fri, 03 Feb 2023 17:37:19 GMT

A personal injury lawyer can make a difference.

February 3, 2023 - John McMullin, JD

Should I retain legal counsel for my personal injury claim? It is a valid inquiry. A personal injury lawyer can help in the following ways:

1) They understand the medical issues that happen after a motor vehicle accident. There are no medical designations for “car accidentist.” While surgeons, physiotherapists, family doctors, and other medical professionals are able to give you the treatment that you need, your lawyer is going to be your number one advocate for your return to health, including reviewing your medical records for potential issues or checking up on your symptoms.

2) Your claim is handled by your lawyer. If you handle the litigation yourself, it could feel like a part-time job. Give it to someone else to do full-time. It can be quite beneficial to be able to avoid the worry and work of dealing with the other driver's insurance company, particularly if that insurance company has a lawyer.

3) On a related point, a lawyer can advise you on what to do as they are familiar with how this operates. A lawyer will be aware of what actions you must take in court and when to take them, from submitting a Statement of Claim through conducting a trial.

4) Lawyers tend to make personal injury clients money. According to a 2016 study by the research company Martindale-Nolo, clients who had a lawyer on their side made more than four times as much money ($77,600 to $17,600) as those who didn't. The Insurance Research Council's Attorney Involvement in Car Injury Claims study, among others, concluded that hiring a lawyer boosts compensation in personal injury cases. Although nobody can promise you'll earn more money as a result of hiring a lawyer, it doesn't appear to hurt.

5) Your claim's value can be calculated with the assistance of a lawyer. A lawyer can help with problems like lost wages or scarring, as well as general damages awards in personal injury cases. They can also put you in touch with financial and occupational health professionals who can estimate how much you've lost in terms of money.

Hiring a personal injury lawyer is a big commitment, but it can come with big benefits. Contact our office at 403-329-4311 for a free consultation to find out if hiring a personal injury lawyer is right for you. Learn more about John McMullin, JD here.

This article is for information purposes only and does not constitute legal advice.

ESTATES NEED A LAWYER IN COURT

Mon, 22 Mar 2021 15:58:11 GMT

Yes, Estates need a Lawyer for Court Appearances

March 22, 2021 -

John McMullin, Associate Lawyer, LETOURNEAU LLP

Can you represent yourself in Court if you are a personal representative, or do you need to hire a lawyer? The answer is simple: an estate is required to have a lawyer for Court appearances. A personal representative (often referred to as an executor) who shows up to Court when an estate is being sued, or is suing, will be told by a judge to go get a lawyer.

The Alberta Court of Appeal confirmed this finding in a case called Oommen v Ramjohn , 2015 ABCA 34. Mr. Oomen was one of the personal representatives for the estate of Frederick Allan Chapman. He had obtained a judgement against a Mr. Ramjohn on behalf of the estate and attempted to ask the Court to deal with distributing funds due to the Estate because of that judgment.

The Court ruled that only individuals could represent themselves in Court, and an Estate is not an individual. This is similar to the rules for corporations, which cannot represent themselves in Court either.

Personal representatives can do many things. They can apply for probate and deal with the estate property according to the will when the proper procedures are followed. Many personal representatives need relatively little assistance from a lawyer.

However, as a result of Oomen and similar cases, legal representation for an estate is not something a personal representative can handle. They cannot stand up in a courtroom and make arguments on behalf of an estate in front of a judge. If you are looking for someone to represent an estate in the Courtroom, please contact our team of experienced litigators for a free half hour consultation.

This article is for information purposes only and does not constitute legal advice.

NEW DIVORCE ACT IS COMING SOON

adam@lelaw.ca — Wed, 27 Jan 2021 22:55:09 GMT

Many changes coming with New Canadian Divorce Act - especially regarding children

January 27, 2021 -

Adam Letourneau, QC, Managing Partner, LETOURNEAU LLP

On May 22, 2018, the government introduced Bill C-78 An Act to amend the Divorce Act . The Bill received Royal Assent on June 21, 2019, and was initially set to come into force on July 1, 2020. The changes have been delayed until March 1, 2021.

Learn more about the new Divorce Act - Changes Explained (from the government website), which gives the new clauses compared to clauses from the old Divorce Act .

Some things to watch out for in your Divorce and family law matters:

Custody and Access

The terms “custody” and “access” have been removed. This is a really big deal in divorce and family law. Instead, the Court will make parenting orders where judges can make determinations of decision-making responsibility and parenting time between the parents. Gone are the old nasty terms custody and access. The hope is that the change in terminology will assist in reducing conflict between parents.

Best Interests of the Child

Each family situation is unique, and parenting orders will depend on the specific circumstances of each family. Equal shared parenting does not work in every circumstance, although it might be appropriate in some situations. Instead, the new Divorce Act says that when “allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”

Bill C-78 now specifically includes factors to be considered regarding best interests of the child. These include:

the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
the history of care of the child;
the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
any plans for the child’s care;
the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
any family violence and its impact on, among other things,
the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Many of these factors are in line with caselaw that has developed over time in the determination of previous custody and access matters , or factors that have been outlined in various provincial statutes, which is applicable to parents who are not married.

Relocation

Traditionally, child relocation in Divorce and separation matters have been very complicated, and often expensive litigation matters because the old legislation did not provide useful guidance to the Courts about this contentious issue. Caselaw did develop over the years, providing criteria to consider. Leading case: the Supreme Court of Canada’s decision in Gordon v Goertz , [1996] 2 S.C.R. 27. However, much uncertainty remained.

The new Divorce Act provides specific factors that should and should not be considered by the court on a mobility application, including the following:

A parent wishing to relocate with the children must provide 60 days’ notice in writing to the other parent of their desire/intention to relocate. The other parent then has 30 days to object to such relocation.
It specifies which parent has the burden of proof in the event the matter moves to court.
If the children spend “substantially equal” time with both parents, a shared parenting arrangement, then the parent who wishes to relocate has to show why the relocation would be in the children’s best interests.
If the children spend the “vast majority” of their time with the parent who wishes to relocate, then the other parent would have to show why it is not in the children’s best interests to move. (this is a huge change!)
In determining whether the move is or is not in the children’s best interests, the Court is to consider the reasons for the relocation, but it is not to consider whether the moving parent would relocate with or without the children. (this is another huge change!)

It is going to take a while to get used to these various changes, as with any legislative change. We will do our best to stay apprised of these and other changes, and how the Court will interpret these legislative changes, and to help our clients to maneuver these changes in their unique circumstances. We know the law. We focus on solutions.

Learn more about the new Divorce Act - Changes Explained (from the government website)

Lear

Consider calling for a free consultation with one of our LETOURNEAU LLP Divorce and Family Law Lawyers at 403-329-4311 to discuss your divorce and family law problems or questions. See you soon.

This article does not constitute legal advice.

Why Arbitration is a good option during COVID-19 Pandemic

Wed, 20 May 2020 21:26:28 GMT

Alternative Dispute Resolution is a great option.

May 20, 2020 -

Emily Tilleman, Associate Lawyer, LETOURNEAU LLP

The spread of COVID-19 has significantly changed how we are all living and working during this public health crisis. The spread of COVID-19 has caused singificant restrictions to the Alberta’s Court of Queens Bench with all civil and family matters that were scheduled to be heard from March 16, 2020 to June 26th, 2020 adjourned sine die (with no return date), unless otherwise directed from the Court. The Alberta Court of Queens Bench, at this point in time, is only hearing emergency matters in person; many matters that were scheduled to be heard during March 16th, 2020 to June 26th, 2020 do not classify as emergency or urgent matters. The Court, as of May 8th, 2020, has some processes to have a limited number of non urgent matters heard via desk application, however if the matter is at all complex, the matter will not likely be heard until restrictions have been further lifted. Many applications have an aspect of complexity and thus the procedures in place for simple desk applications will not be feasible for some time. This has created enormous difficulties in that many individuals whose matters were scheduled to be heard, or those who have new applications to make to the Court, are left in limbo; this adds additional stress to the already significant stress many are feeling due to the COVID-19 pandemic.

How can individuals affected by the court restrictions come to some sort of resolution during these uncertain times?

ARBITRATION

Arbitration is one of several kinds of Alternative Dispute Resolution, it provides parties to a dispute with a choice other than litigation (engaging in court processes). Arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; they agree in advance to comply with the arbitrator's award; and then they participate in a hearing or written document process, allowing both sides to present evidence and argument. The arbitrator's decision is final and legally binding, can be enforced by the Court.

Engaging in arbitration can provide a multitude of advantages to the regular court process some of which include:

The process is generally faster than court litigation. Getting matters resolved through the courts can take a long time. From the point you schedule a hearing for a family law or civil matter it is sometimes 6 months to over a year before you will be before a Judge/Justice. You can avoid waiting to have resolution in your matter by engaging in arbitration, as a hearing can occur much quicker - so long as the arbitrator is available.

Parties can have input in formulating the process for the matter to be heard. This process can be adjusted based upon the parties needs. The complicated and strict Rules of Court are not at play as they would be in litigation in the court.

Your arbitration and the decision will be confidential, rather than a public display or document, as it is with court matters.

Arbitrators can be well versed in family law issues. You can select the arbitrator that both parties would like to determine your matter. Local arbitrators are generally senior family law lawyers who have a wealth of knowledge with respect to family law issues. When you are in front of a Justice there is uncertainty with respect to who will hear your matter, and whether they have specific family law or civil litigation experience or expertise.

The flexibility and ease of the process allows for potentially lower costs then what would be incurred through the court process.

During this crisis individuals need resolution with respect to their family law and civil matters. The COVID-19 pandemic court restrictions have added additional stress for many parties and having a process to resolve these issues can be of benefit to you.

The ADR Institute of Alberta has several materials on their website with respect to arbitration and the benefits of arbitration . Visit https://adralberta.com/ for further information. Additionally, Adam O Letourneau, QC of our firm is a Chartered Arbitrator and Chartered Mediator. He is capable and willing to handle any arbitration matters you may have. Give us a call at 403-329-4311 to learn more.

Additionally, we can help you to bring your matter to arbitration, as we are familiar with some very good, certified and qualified local arbitrators, and we have represented a number of clients in arbitration matters. Give us a call at 403-329-4311 to learn more.

PRESERVATION ORDERS: MAKING SURE THERE’S SOMETHING WORTH FIGHTING OVER

Wed, 20 May 2020 17:51:30 GMT

Protecting Matrimonial or Family Property in Separation Matters

May 20, 2020 -

John McMullin, Associate Lawyer, LETOURNEAU LLP

You’ve been separated or divorced and you suddenly see a “For Sale” sign up on your old matrimonial home. You’re worried about a real estate contract gone wrong. Maybe a parent died, and you’re worried the personal representative is going to sell their property, then fritter away the money. One of the main challenges in litigation is making sure there will still be something worth fighting for once the dust settles. A Preservation Order is one way you can try and address this issue.

A Preservation Order is a Court Order that prevents a party to litigation from disposing of the property that is the subject of the litigation. It does not cover property that is not in dispute. So, while you can put a Preservation Order on a house that you believe you have some right to, you generally can’t put a Preservation Order on the other party’s bank account, unless you have a judgment against them already.

Recent case law illustrates two grounds a Court can use to grant a Preservation Order. In the Alberta Court of Queen’s Bench case of SFM v MRM , 2020 ABQB 302, the Court had to decide whether the proceeds of the sale of a home should be preserved. The mother in the relationship had sold the family home, and used a small portion of the proceeds for her living expenses.

The Court stated that the applicable test involved three elements:

1. A prima facie case (which is where there is a reasonable argument to be made for one side, rather than being frivolous or unfounded);

2. A real and substantial risk that assets will be dissipated without the Order; and

3. An undertaking for damages, so that if the party whose assets are “frozen” experiences loss as a result, the party getting the Preservation Order will pay that loss.

The trial justice did not find that the test was met. However, the judge granted a Preservation Order based on section 9 of the Matrimonial Property Act (now the Family Property Act ), to ensure that the husband would be able to collect on any judgment. As there was no evidence that the husband would be entitled to more than half of the matrimonial home, the Court only ordered that half of the sale proceedings should be preserved.

SFM v MRM was heard on an emergency basis despite COVID-19 restrictions. Currently, Court proceedings have slowed due to prevent spreading the novel coronavirus. However, the Courts will still consider hearing applications for a Preservation Order. If you want to ensure that your property will still be there after the court battle is over, contact the lawyers at LETOURNEAU LLP for a free consultation to discuss your legal options.

Courts are Opening Up for Family Law in Alberta - Somewhat

Wed, 13 May 2020 03:00:48 GMT

Alberta Courts are Opening Up Certain Processes for Family Law Issues

May 12, 2020 -

Adam Letourneau, QC, Managing Partner, LETOURNEAU LLP

The Courts have been working hard to catch up to the Covid-19 state of emergency restrictions that have effectively stopped most family law matters from proceeding in Court, other than a fairly restricted number of emergency situations.

Last week, the Court of Queen's Bench announced some creative methods to try and catch up and to deal with ongoing family law issues. These include allowing desk applications for Notices to Disclose and orders to enforce exchange of disclosure. It also includes the potential to have certain matters heard where there is counsel on both sides, and where there is agreement to make legal arguments by written submissions only. The Court of Queen's Bench is also entertaining a limited number of legal issues to be decided by a simple desk application to an Emergency Justice (judge), including such things as simple child support applications, travel consent applications, parenting time for vacation or summer holiday times, simple Parenting Variation Application (e.g. pick up location, pick up or drop off time, change in supervisor, and other simple changes to parenting arrangement), exclusive possession of matrimonial/family home, and a few other issues.

There are very specific processes that must be followed for these types of applications, and, in certain circumstances, there must be legal counsel on both sides. We have studied these carefully and have started making such applications on behalf of our clients. We are very grateful for these opportunities to seek resolution where negotiation, mediation or arbitration have not worked.

For emergency situations, such as a child being exposed to danger, the threat of a child being taken from the jurisdiction, or review of Emergency Protection Orders, an interim online application must be made, and if the Emergency Justice (judge) deems that it meets certain criteria, they will then give direction to provide an application and supporting affidavits.

We look forward to other adaptations to be made by the Courts, and we will try to update you on this Blog.

If you require advice or help obtaining child support, child custody or parenting orders, or other family law or divorce issues, please contact us . The team of family law lawyers at LETOURNEAU LLP are trained in these complex matters, and we would be pleased to assist you in either negotiating a solution, or in representing your interests or your children's interests in the Courts. Consider calling for a free consultation with one of our LETOURNEAU LLP Family Lawyers at 403-329-4311 to discuss your family law matter. See you soon.

This article does not constitute legal advice.

Wills Over Videochat

Wed, 06 May 2020 22:18:52 GMT

Making a Last Will or a Living Will in the Time of Covid-19

May 6, 2020 -

John McMullin , Associate Lawyer, LETOURNEAU LLP

The novel coronavirus presents a big challenge to having your will (last will or living will) completed: how do you get witnesses to sign your will if you are self-isolating? Some jurisdictions, such as Ontario, have allowed witnesses to view the signing of a will over videoconferencing, but in Alberta, a will currently has to be signed by the person making it (the testator) in the presence of two witnesses.

This is not a problem for someone who is healthy and able to visit a lawyer’s office, as law offices are essential services and a law firm will generally have protocols in place for an individual to sign a will with minimal risk of infection. If someone is self-isolating or otherwise homebound, getting witnesses to sign a will is significantly more difficult, but there are tools to help you solve any potential problems.

Execute a Holographic Will With a Lawyer

Holographic wills, which are wills written by the testator entirely by hand, can be an effective way to have a will without breaking self-isolation. A holographic will is valid even if there are no witnesses, so there is no need to have someone in close contact with the testator to make it.

A lawyer can assist with ensuring your holographic will has the effect you want. Making a holographic will on your own does expose you to potentially leaving out important property, instructions, or accidentally failing to meet the legal requirements for a valid holographic will. Holographic wills can also result in litigation if someone believes the will is fake, or that the testator was pressured into making it. Legal assistance can make sure that these concerns are addressed.

Using Available Witnesses and Safe Practices

When a client of LETOURNEAU LLP signs a will, we have staff members witness the document to prevent complications. However, anyone can be a witness to a will, including your friends, neighbours, care workers, or family members. You can have a will drafted by one of our lawyers, sent to you, and sign it in the safety of your home with their assistance.

It is crucial that whoever witnesses the will is not a beneficiary, or the spouse of a beneficiary. If your daughter and your son are each supposed to receive half of your estate (with them each receiving half of the residue), and your son witnesses your will, that gift is void and your daughter will receive your whole estate, per the operation of section 21 of the Wills and Succession Act . Gifts to someone providing translation services for someone making the will, or someone signing on behalf of a testator, are also void.

Witnesses must see you sign the will. Witnesses can observe you signing the will from a safe distance, through an open doorway, or through a window. The witnesses can then retrieve and sign the will. It is not necessary for the witnesses to read the will before they sign it. A lawyer can observe these proceedings via videoconferencing to make sure everything occurs correctly.

Making sure your will is stored correctly is important. Many law firms, such as ours, have fireproof storage vaults and systems for wills. If you keep the original copy of your will, make sure it is kept in a safe place, and that your personal representative knows where it is.

We want to make sure you can choose how your possessions and property are dealt with after you are gone. If you want the security and peace of mind a will can give you, contact LETOURNEAU LLP to arrange a consultation on how best to have your will put into place.

This article does not constitute legal advice.

Should children have a say in custody and parenting matters?

Tue, 05 May 2020 19:53:44 GMT

Practice Note Assessments, Interventions and Voice of the Child Reports in Custody and Parenting Matters

May 5, 2020 -

Adam Letourneau, QC , Managing Partner, LETOURNEAU LLP

I often have parent clients ask me whether it would be advisable to have their children or teenagers participate in custody or parenting court matters. I tell them that it can make a difference in certain circumstances, and it is worth considering. In others, it is best to keep the children away from the conflict and the adult decisions that need to be made.

Generally speaking, as a society, we try to avoid having children come to the Courts to participate in stressful dispute situations. As such, in Alberta, we have some different options available to allow children to have some input into the outcome of their parent's dispute regarding parenting.

The Court of Queen's Bench has two formal options available. One is called a Practice Note 8 or a Parenting Time / Parenting Responsibilities Assessment. The second is called a Practice Note 7 or Intervention. The former is a more comprehensive assessment completed by a neutral psychologist or registered social worker, by Court order, who conducts one or more interviews, and sometimes psychological or other tests, on the disputing parties, the children and possibly other involved third parties such as grandparents or teachers or physicians. The assessment can take anywhere between 3 to 12 months, depending on the complexity. The College of Psychologists has rigorous expectations of their psychologists, so often a lot of investigation and detail is required. The expert then writes up a report (can be anywhere from 12 to 100 pages) with recommendations to the Court regarding parenting scheduling, parenting responsibilities and any other concerns or recommendations related to the children.

A Practice Note 7 Intervention is an opportunity for the parties and often the children to meet, by Court order, with a neutral psychologist or registered social worker who will meet with the parties and the children and will try to help them come up with better ways to conduct parenting, including scheduling and responsibilities. The expert will then provide a report on what the parties have agreed upon or have done, or what the expert believes should potentially be done moving forward. This is a less formal report.

These two options are often well regarded by the Courts as the Court usually respects the fact that the neutral expert has been directly involved and has met with all affected parties. Judges are not able to do this work themselves. The fact that the assessor is neutral is very important. These two options can also be extremely expensive, running anywhere between $5,000 and $40,000 depending on the complexity of the matter.

Another option that I have seen used more often lately is a Voice of the Child Report. Again, a neutral third party is ordered to meet with the children, and often with the parents, to assess what is potentially going on with the child, and to provide a report on what the child is saying in terms of preferences, problems in the homes, or other ancillary issues. The report usually does not provide recommendations as to where the child should reside, for example, but does hopefully reflect what is really going on. There can be evaluative reports or non-evaluative reports depending on what the Court or the parties are seeking from the expert. The Voice of the Child Report or VOC Report can also, sometimes, reflect whether there is a risk that parental alienation is occurring with the children by either parent. In a Voice of the Child Report, there is usually no assessment of, or recommendation made about, the child’s best interest. A Voice of the Child Report is usually less costly than a Practice Note 8 assessment or a Practice Note 7 intervention, but can still cost quite a bit - anywhere between $1,000 and $2,500, from what I have seen, depending on the complexity of the matter.

Another option that I see utilized more in Alberta is to have legal counsel appointed for the children. This is done by Court Order, and can be by consent between the parties, or by a judge's order. The parties will usually either share the cost of this lawyer for the children, or sometimes the Court will order that a lawyer be appointed for the children through Legal Aid, with the ultimate costs for that lawyer's services to be determined by a judge down the road. Lawyers who represent children have specialized skills, and will usually meet with the children on a few occasions, privately, without the parents present. Hopefully, they will develop some rapport with the children, and will then obtain their instructions as to what their preferences or concerns might be in the parenting situation. This is called instructional advocacy. The lawyer will then report to the parents or to their lawyers, as well as to the judge, as to what the children, as their clients, are saying about the situation. It is also possible, in certain circumstances, for a lawyer to act as something called amicus curiae (friend of the Court) and to then advocate for the best interests of the children, even where the children cannot provide proper instructions to their lawyer, or where the lawyer as amicus is concerned that the children may not be able to provide unbiased instructions, such as where serious parental alienation is a problem.

Article 12, UN Convention on the Rights of the Child, states that:

States’ Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The Courts have not necessary followed this important requirement from the UN in all cases. There seems to be some inconsistency when it comes to the use of Voice of the Child Reports, although I have often seen them used and respected by judges in Southern Alberta matters. There has been some concern about a decision from the Ontario Court of Appeal ( Mader v. McCormick , 2018 ONCA 340) refusing a father’s request that the children (age 13 and almost 16) be granted their own lawyer, finding that it might be embarrassing, uncomfortable and burdensome to the children. The father claimed the Court was obliged to follow the United Nations Convention on the Rights of the Child and appoint counsel for the children. The Court disagreed, stating (at para. 13):

"This remedy [appointing a lawyer for the children] should not be available only for the asking. In as much as it implicates the children very directly in the entire litigation, it is a very blunt instrument indeed. It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents in a context where the children should be protected as much as possible from the contest being waged over their future care and custody. All actions involving custody and access over children should be governed by one paramount consideration: no one should be allowed to act in a way that might endanger their well-being. The test of “the best interests of the children” as insipid and fluid as it might be, still remains the benchmark against which any person wishing to interfere in their lives should be measured [emphasis added]."

Discuss this situation with a lawyer if you come across this particular problem.

One last comment on this topic. I have often heard judges say that children should have a voice, but not necessarily a choice. The judges have taken the view that adult decisions need to be made by adults. Age can make a difference here. If a child is 14, 15, 16 or 17, I have often heard judges say that any order made affecting that child would be very difficult to enforce. A child of this age makes their decisions with their feet, so to speak. Children in the range of 11 to 13 years old seem to have more influence on judges when their voice is heard, but I would not say there is any certainty to an outcome on that basis. Every child is different, with different maturity levels, for example. Each custody or parenting matter is unique, and a judge must determine what is in that child's best interests, looking at all factors involved in that particular situation.

These are just some of the options and considerations available. I have used all of these options at various times in my custody and parenting litigation matters. I also have represented many children as both instructional advocate and amicus . I have found the Court to be respectful of me in that role, and often my submissions have been used in making decisions. I have also found the Court to be quite deferential to the expert reports provided, whether they be Practice Note 8, Practice Note 7 or Voice of the Child Reports.

If you require advice or help obtaining child custody or parenting orders, please contact us. The team of family law lawyers at LETOURNEAU LLP are trained in these complex matters, and we would be pleased to assist you in either negotiating a solution, or in representing your interests or your children's interests in the Courts. Consider calling for a free consultation with one of our LETOURNEAU LLP Family Lawyers at 403-329-4311 to discuss your family law matter. See you soon.

This article does not constitute legal advice.

Varying Child Support during COVID-19

Mon, 04 May 2020 16:18:57 GMT

Varying Child Support during COVID-19

May 4, 2020 -

Spencer McMullin , Associate Lawyer, LETOURNEAU LLP

In these economic circumstances, it's understandable that obtaining child support or spousal support can be both difficult and extremely necessary. It is also understandable that an individual may need to vary a previous support provision, as layoffs and terminations upend economic situations. Many parents may be wondering if they are still required to pay support despite large changes to income due to the COVID-19 pandemic. Others may be wondering if the support payments they rely on will continue.

As the COVID-19 pandemic situation continues to cause unprecedented change, it is clear that parties will be most successful when they are reasonable and mature. Currently, the Alberta courts have restricted hearings to emergent and urgent matters. This does not mean that child support is no longer payable, even if you have lost your job. Child support is the right of the child, and children have the right to benefit from their parents' income. Even when parents have competing needs (such as debt payments, spousal support payments, mortgages, etc.) child support generally comes first.

If a current child support order is in place, pareents need to be aware that the order remains an order of the Court, which must be followed. As well, the Alberta Maintenance Enforcement continues to have authority to enforce the most recent support Orders.

If your economic situation has changed, there are steps that you should take. First, a negotiated settlement can be pursued. While the Courts have restricted sittings, the Courts will consider granting an Order that both parties have consented to. The child support payor should contact either the recipient of child support or the recipient's lawyer and explain the situation and attempt to negotiate a consent order changing the payment sums.

This communication serves two purposes. Ideally, it will open the door to negotiation and consent. We note that the parties can also explore mediation or arbitration at this time to determine child support if both parties are willing to consider. However, if the parties cannot reach an agreement, the payor has at least given notice to the recipient that they wish to vary child support. Proof of this notice will be important if a payor does not pay child support and later applies for a reduction in arrears when the Court's restrictions are loosened.

The payor should provide proof of a reduced or eliminated income to the other party. This could include a record of employment, a notice of termination, a letter from an employer explaining reduced salary, or a current pay stub with past comparables. Proof of reduction or elimination of income will also be very important if an application to strike arrears is made in the future. A court will only consider this type of application if there has been a "material change in circumstances" and a sharp reduction in income generally will qualify as a change in circumstances.

If negotiation is unsuccessful, a payor of child support can approach the Maintenance Enforcement Program for some relief. The Maintenance Enforcement Program has made the following announcement:

"The Maintenance Enforcement Program (MEP) recognises COVID-19 may impact a payors’ ability to meet their court ordered child support obligations. Similarly, it is recognised recipients are also impacted by COVID-19, and still have monthly obligations for the child(ren). Therefore payors making no payment is not an option.

To assist payors, the MEP will offer a temporary payment arrangement for less than the ordered amount or a temporary decrease in their current payment arrangement. This applies to payors contacting MEP looking for assistance during the pandemic due to loss of income as a result of COVID-19 diagnosis, self-isolation, loss of job (or reduced hours) or impact of childcare/school closure. Assistance to these payors will be temporary, and it is the responsibility of these payors to keep in touch with MEP month-to-month.

If you have payor clients that are impacted by COVID-19, it is important they contact their MEP Case Officer for assistance as soon as they know they will need it."

If a payor can come to an arrangement with MEP, he or she may be able to apply for a retroactive variation when the courts loosen their restrictions. We have heard anecdotally that some lawyers have been more successful than their clients in negotiating with MEP.

If you require advice or help varying child support orders in these times, please contact us . The team of family law lawyers at LETOURNEAU LLP are trained in negotiation and dispute resolution, and we would be pleased to assist you in working with your opposing party and/or with the Maintenance Enforcement Program. And if necessary, we can assist you in preparing an application for retroactive variation when the Courts do loosen their restrictions.

This article does not constitute legal advice.

Who's in charge if I'm on a Ventilator?

Tue, 28 Apr 2020 17:59:00 GMT

Personal Directives in the time of Covid-19

April 28, 2020 -

John McMullin, Associate Lawyer, LETOURNEAU LLP

It’s difficult to figure out how exactly COVID-19 will impact your own life. We live in a time of uncertainty, with social distancing, travel bans, and economic challenges. Deciding what to do if you contract the virus is an important step to take that can help you regain some control. By creating a document called a personal directive, you can tell your loved ones and your doctors how you’d like to be treated even if you are unable to provide directions.

A personal directive is a legally binding document. It appoints an agent who is able to make decisions on your behalf once you lose the capacity to do so, and describes what the agent’s authority is. For example, you may want your agent to be able to make decisions about what health information to share with your family members, or how much medical intervention you are comfortable with.

These instructions are especially important during this pandemic. Some people may want to avoid going to a hospital if they are sick , especially if it results in painful procedures that may not prolong their lives; others want the most care possible. A personal directive allows an agent to make decisions about whether you want to give up your assigned medical equipment for people you feel could benefit more, like some other people have done .

A personal directive is also a gift to your family members. If you have lost capacity, it is stressful for your family to try to guess what kind of healthcare treatment you need. Healthcare decisions are sometimes required very quickly, and a personal directive can give your family peace of mind that they made the right decision, rather than having to rush their choice and then worry if it was correct.

In Southern Alberta, we appear to be relatively sheltered from the effects of the virus. As of April 26, 2020 , there were 12 cases in Lethbridge, two cases in Taber, one case in Lethbridge County, and 25 cases in Medicine Hat. However, there is the possibility of a second wave of the virus, like that seen in China or Singapore , with increased infections once social distancing measures are eased. Even if, as we all hope, the COVID-19 pandemic is mild in our area of the world, a personal directive will continue to protect your wishes and your family during any future healthcare issues.

Making decisions about healthcare and capacity is frightening, but also important. COVID-19 can provide you the push to take care of these vital decisions. We at LETOURNEAU LLP are able to arrange for proper execution of your personal directive remotely to ensure your safety. Our fees for this service can be found here . Stay safe. We will get through this together.

This article does not constitute legal advice.

Never a better time than now to plan your estate

Mon, 27 Apr 2020 21:57:34 GMT

A good estate plan can put your mind to rest.

April 27, 2020 -

Adam Letourneau, QC , Managing Partner, LETOURNEAU LLP

There has never been a better time than now to consider getting a will, a personal directive and an enduring power of attorney in place. Whether it is a pandemic, or a health scare, or a change in circumstances in your life, such as separation or divorce, or adoption, having your affairs in order can give you peace of mind.

You can set out your last wishes in what is called a holographic will. The legal requirements for this are very specific, and we suggest that you consult a lawyer before attempting to do this on your own.

Better yet, consider engaging one of our lawyers to help you set up your estate plan. We will walk through all of the legal considerations, discuss best practices for choosing your executor (personal representative), agent or attorney depending on which document we are preparing for you. We will discuss options for distributing your estate and the avoidance of legal pitfalls. The wording of a will is extremely important to ensure that your wishes are carried out the way that you hoped for.

We will also discuss with you the importance of having a proper and legal personal directive in place, which will dictate who you want to make decisions for you if you become incapacitated. What kind of care will you want? What kind of medical intervention? Where will you want to live? Will you want pain medication or life support?

Lastly, we will also discuss with you having an enduring power of attorney in place so that someone you trust will be able to take care of your financial, legal, tax and real estate matters if you become incapacitated.

Do you have children? Have you been separated or divorced? Have you considered who you want to take care of your children if you become incapacitated or if you pass away? We can help you to carefully draft wording in your will, personal directive and enduring power of attorney to give you the best chance of having your wishes carried out regarding your children.

The cost of getting these documents in place is relatively minor, when you consider the consequences of not having a will, personal directive or power of attorney. By having a well considered, well drafted legal document in place and legally and properly executed, you can help your family members or friends avoid costly, lengthy and often emotional court proceedings.

During the current Covid-19 pandemic, we can assure you that we have protocols and plans in place to discuss your estate planning with you remotely, and to arrange for proper, legal execution of your important estate documents.

Consider calling for a free consultation with one of our LETOURNEAU LLP Lawyers at 403-329-4311 to discuss having your estate planning documents in place. Our flat fees for these services are posted here . See you soon.

This article does not constitute legal advice.