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My daughter has been in rehab. I have been taking care of her children for over a year. She now says that she will take the children and I have no rights to the children. Is that true?

Caregivers often have to make day-to-day decisions for the child. Despite this fact, the caregivers are not the guardians of the child. They are not legally responsible for taking care of the child.

This is an important difference, as not being a guardian means that the caregiver has no right to continue taking care of the child. At any time, the child’s legal guardian can refuse to continue letting the caregiver care for the child. Depending on the situation, this can be harmful to both the child and the caregiver.

As a result, a person who has been the primary caregiver for a child may want to take steps to ensure their relationship to the child is recognized by law. There are 3 options for caregivers who want to do this:

  • kinship care;
  • foster care; or
  • becoming the guardian of the child.
Last Reviewed: November 2016
Can we change our agreement in the future?

An agreement can be changed (or “amended”) if all of the people who signed the agreement agree to that change. If the parties cannot agree about changing the agreement, they may need to go back to the dispute resolution process that resulted in the first agreement (for example: mediation) in order to reach a new agreement.

If the original agreement was filed in court, the changed agreement can be filed in court as well (this is called an “amending agreement”). The amending agreement should specify which particular parts of the original agreement have been changed and then set out the new agreement.

Last Reviewed: October 2015
Can I just write my Will in my own handwriting?

Yes. This is also called a “holograph” Will. In Alberta, holograph Wills are permitted. This is not true in all provinces or territories. If you have property in other provinces or territories that you want to leave to someone in your Will, be sure you find out the requirements for Wills in that other province or territory.

Last Reviewed: April 2016
My ex-spouse and I were separated for several months, then got back together for a month before separating again. Does that mean that our year of living “separate and apart” has to start over from our second breakup?

No. You and your spouse can get back together for up to 90 days without having to start counting the one-year separation period again.

If you get back together for longer than 90 days, you would have to start counting the one-year separation period over again, and you would have to wait another 12 months from the start date of the last separation before being granted a divorce.

Last Reviewed: October 2015
My partner and I lived “common-law.” Do we need to get a divorce to end our relationship?

No. Unless you were married, you do not need to get a divorce to end your relationship. 

If you were considered Adult Interdependent Partners, you can end the partnership by agreement, or by living apart for one year. You do not need to apply to the court.

Last Reviewed: October 2015
How do I prove adultery to get a divorce?

Usually, the person who committed adultery will sign an Affidavit (a sworn statement) saying that he or she did so. That is enough proof for the court.

On the other hand, if your spouse is not willing to sign such an Affidavit, you will have to prove the adultery. You will do this in an Affidavit of your own, which is a public court record. As you can imagine, this is not easy to do. Also, dealing with this topic can make an already difficult situation even worse. This is one of the reasons why people sometimes choose the one-year separation option as their “grounds for divorce” instead of adultery.

Last Reviewed: October 2015
Is alternative dispute resolution (ADR) private?

Yes, ADR is private, which is much different than the public nature of the courthouse. This means that decisions are not available to the public, unlike the decisions made in court.

Typically, all ADR professionals will also need the parties to sign a “participation agreement” before or at the start of their first ADR session. These agreements generally contain all of the rules that both parties agree to. They often also include “confidentiality clauses,” which state that the discussions will be confidential and “without prejudice.”

When something is confidential, it means that it is private. This means you cannot discuss what happens during the ADR session with parties who are not involved.

When something is said “without prejudice,” it means that the statement cannot be brought up in court at a future date. For example, if you and the other party sign a confidentiality agreement for mediation and the other party tentatively agrees to something during the session, but then the mediation breaks down, you cannot later say in court “But he/she was willing to agree to it in mediation, why won’t he/she agree now?” 

Last Reviewed: October 2015
My 90-year old aunt has been diagnosed with Alzheimer’s disease and wants to sign a Personal Directive, Power of Attorney, and a Will. Can she still do that?

It depends on whether or not she still has capacity.

A loss of capacity may be clear and sudden. For example, if someone was in an accident and is now in a coma. In such a case, it is clear that that person cannot make decisions for themselves. However, a loss of capacity will often be less clear and more gradual. For example, in the case of Alzheimer’s. With some conditions, capacity can vary or come and go. In other words, a person can flip back and forth between having capacity and not having capacity. This is especially true with older adults, due to factors such as:

  • the effect of medications and/or forgetting to take them;
  • diabetes and fluctuating blood sugar levels;
  • exhaustion;
  • time of day; and
  • alcohol or drug use (especially when combined with illness and/or medication).

Capacity is about understanding. It is not about vulnerability, which is being at risk or in need of care. Nor is capacity about labels such as: “old,” “disabled,” or “mentally ill.” It is very important to understand this difference. Just because your aunt is 90 does not mean that she does not have capacity. Similarly, just because she has been diagnosed with Alzheimer’s does not mean that she has lost capacity yet.

Last Reviewed: April 2016
What is the difference between gestational surrogacy and traditional surrogacy?

A gestational surrogate is a surrogate who has no genetic connection to the child. This means that the surrogate did not provide the eggs to create the embryo. With gestational surrogacy, an embryo is placed in the surrogate’s uterus.

People who use a gestational surrogate may:

  • use their own sperm and eggs to make an embryo;
  • use donated sperm and eggs to make the embryo; or
  • use a donated embryo.

A traditional surrogate is a surrogate who is genetically connected to the child. This means that the surrogate provided the eggs to create the embryo.

This can happen in 2 ways:

  • the surrogate can be artificially inseminated with sperm; or
  • the surrogate can have eggs removed from her body for in vitro fertilization. Then the in vitro embryo would be placed in her uterus.

The sperm used to make a baby may be from a donor or from the intended father. However, you cannot inseminate a surrogate by having sex. You must use some form of assisted reproduction.

Be Aware

Because a traditional surrogate is related to the child, this option may be riskier for the intended parents. The law is unsettled in this area. However, it is more likely that a court will allow a surrogate to have some rights as a parent if she is genetically related to the child.

Last Reviewed: March 2017
What are contingency fees?

A contingency fee arrangement is one of the ways a lawyer can get paid. Instead of paying a lawyer a retainer (in other words, a fee for the lawyer’s services), the lawyer simply gets a percentage of what the client gets from other party at the end of a legal matter.

For example, if the client gets $10,000 from the other party and the contingency rate is 20%, then the lawyer would get $2,000 and the client would keep the remaining $8,000. This type of arrangement is more common in personal injury cases where an insurance company might make a “one-time” payout to a client who was injured. 

Related Information Pages:
Last Reviewed: October 2015
My partner support is about to end but I can’t afford to live without it. Can I apply for an extension of the support?

It is possible to apply, but you may not get an extension.

Once a partner support order is given, if the situation changes, either former partner can apply to change the order. However, in order to change a partner support order, there must be a significant change in one or both of the former partner’s:

  • condition (for example: an illness or disability),
  • means (for example: an increase or decrease in income),
  • needs (for example: becoming unemployed), or
  • other circumstances (for example: an increase in household income due to a new partner).

In addition, if the order that you are trying to change originally had a specific end date to the support, it may be even more challenging to get an extension. Additional factors that a court might consider include:

  • the change is needed to relieve financial hardship;
  • this financial hardship arose from the change in circumstances;
  • the financial hardship and/or the change in circumstances are in some way related to the former relationship; and
  • if, at the time the order or agreement was made, the former partners had known that the change in circumstances would occur, that order or agreement would have been different from what it was.
Last Reviewed: October 2015
Can a child consent to come away with me without notifying the other parent?

No. It does not matter if the child goes with you willingly. If you go without the consent of the other parent, you may still be charged with abduction. Regardless of whether or not a child “agrees,” if a parent removes and hides a child under the age of 14 from the other parent, without the other parent’s consent, it is a crime. This is called “parental abduction.” This could lead to many more problems down the line, including being criminally charged. If the child is over 14, the situation is a bit more complicated, but you could still be charged.

Last Reviewed: October 2015
What is a “unified family court”?

In some provinces, there is one court that deals with all family law matters. This includes everything under the federal Divorce Act, and any provincial family laws.

There is no unified family court in Alberta. Because of this, when you have family law issues, you will need to figure out which court has the jurisdiction to deal with your legal issues. If both courts have the jurisdiction to deal with your legal issue, then you will need to choose which court you want to go to.

Last Reviewed: October 2016
What is the difference between “access” and “parenting time”?

The word “access” is the term used in the Divorce Act to describe time spent with a child. Access only gives a person the right to spend time with the child, and to ask for and receive information about the child. Access does not give a person the right to make any decisions about the child. Under the Divorce Act, decision-making is done by people with “custody.” 

The word “access” is used to refer to the time that the child spends with a parent who does not have “primary residency.” For example: a child spends most of his or her time with the mother, and only every second weekend with the father. The time the father spends with the child is called “access.” The Divorce Act does not have a term for the time that the child spends with a parent who does have “primary residency.”

In Alberta, the separation of non-married parents is governed the provincial Family Law Act (and that law can also apply to parents who were married but choose not to divorce). The Family Law Act uses the term "parenting time" to describe the time a child spends with each parent: it does not use the term “access” at all. In the above example, both the time with the mother and the time with the father is called “parenting time” under the Family Law Act.

Recently, lawyers, courts, and legal information materials have started to use the word “parenting” to describe situations under the Divorce Act, even though “parenting time” is a term used in Alberta’s Family Law Act (not the Divorce Act). Also, “parenting time” may be used to refer to all of the time spent with the child, regardless of which parent it is and who the child lives with. This is especially true in cases where the time is split more equally between the parents: when this is the case, neither parent can really be considered to have “access” as described above. 

Last Reviewed: January 2017
What is the difference between kinship care, foster care, and guardianship of a child?

“Guardianship” describes the legal decision-making powers, rights, and responsibilities that adults have about a child. In other words, a “guardian” of a child is an adult who is legally responsible for taking care of the child.

Kinship Care is a program of the Alberta government. Through this program, children who have already come into the care of Child and Family Services are placed with extended family members. For example: children may be placed with grandparents, or a family member that the child already knows.

Foster Care is a program of the Alberta government. Through this program, children who have come into the care of Child and Family Services are placed in temporary homes with people they do not know. Children may stay in a foster home for only a few days, or many years.

Last Reviewed: November 2016