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What does it mean to be “habitually resident” or “ordinarily resident” in Alberta?

The terms “habitual” or “ordinary” residence refer to where a person lives his or her daily life. This is different from where a person might occasionally stay, or even where a person often stays. It is where a person’s life is centred. Even if they are not always there, it is the place where they regularly return.

When deciding if a person is an “ordinary” or “habitual” resident, a court will consider different factors. These may include:

  • where a person was born;
  • where a person has spent, and continues to spend, most of his or her life; and
  • where a person has ties to family and the community.

In many cases, the issue of where a person is ordinarily resident will be clear. But sometimes it is not as easy to tell. For example: if you have 2 homes in 2 different provinces.

Last Reviewed: August 2016
Is my conversation with my lawyer private?

Yes. The communication between you and your lawyer must be kept private by your lawyer and cannot be released to outside parties without your permission.

There are a few exceptions to this, relating to crime or public safety. But generally, when you give information to your lawyer and when you receive legal advice from your lawyer, your communication is safe. This is called “solicitor-client privilege.”

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Last Reviewed: October 2015
I sponsored my former partner to come to Canada. Do I still have to support him or her now that we’re broken up?

It depends. If your partner has been a permanent resident for less than 3 years, you are still legally obligated to support him or her. As the sponsor, you agreed in writing to support your partner for 3 years. Sponsors remain financially responsible until the end of this 3-year period, whether they stay together for this whole time or not.

However, it is important to understand that this sponsorship agreement is between you and the Government of Canada. If the sponsored person becomes a burden on the government (for example: by needing income assistance or having many medical bills), then you will be held responsible for these costs.

The issue of eligibility for partner support in family law is different from the issue of support under immigration law. Your former partner may be eligible for partner support under family law (such as Alberta’s Family Law Act or the federal Divorce Act), and the sponsorship agreement can be used as evidence in an application for spousal/partner support, to show why you might need support.

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Last Reviewed: October 2015
My friend said adopting a child is too expensive. Are people allowed to charge you money to adopt a child?

It is illegal for anyone to give or receive money to get a child for adoption. The offence may be punished by a fine of up to $10,000.

However, fees are allowed for some steps in the adoption process. This may include fees for:

  • agency services, such as doing a home study or providing counselling;
  • travel expenses;
  • legal services, such as lawyers or court applications; and
  • medical services, such as doctor’s examinations or immunizations.
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Last Reviewed: November 2016
I just married someone who already has children. Do I automatically become the children’s legal guardian?

Alberta’s Family Law Act sets out who is automatically the guardian of a child. This does not include step-parents.

The guardian of a child has the right to make decisions for a child, and the responsibility to care for that child by providing the “necessaries of life,” such as food and shelter.

You can apply to the court to become the guardian of a child if you have had the care of the child for more than 6 months. A judge can set aside this requirement if it is in the best interests of the child.

Last Reviewed: August 2016
Why can’t court staff give me legal advice?

In Alberta, only lawyers can give legal advice. Court staff are not allowed to give legal advice. They can give you legal information (such as what a particular law says, or what court form to use), but they cannot tell you what to write on your forms or advise what to say in court (that is legal advice).

If court staff tell you to talk to a lawyer, it is because what you are asking for is legal advice, not legal information.

Last Reviewed: August 2016
I want to sell the matrimonial home, but my spouse does not. What can we do?

Either spouse can ask the Court to decide the issue. If the Court decides that the house should be listed for sale, the Court can also deal with other related issues, such as:

  • who will make decisions about listing the home and the sale price;
  • who will sign the documents needed for the sale (such as the listing contract and the sale contract); and
  • how the proceeds from the sale will be paid out between the spouses.

The final decision on splitting the money gained from the sale could then be made as part of a final hearing or trial on the issue (or the spouses could agree out of court).

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Last Reviewed: October 2015
If my landlord said I could have a dog, can the condo board tell me to get rid of it?

If the condo bylaws say that there are no dogs allowed in the building, the board can enforce those rules.

Both you and your landlord must follow the “condo bylaws.” Condo bylaws are rules that only apply to people who live in the building. This includes both owners and renters. This means that if the condo bylaws say that there cannot be any pets in the building, then your landlord cannot give you permission to have a pet. Condo bylaws can also cover other situations related to pets, such as noise or where pets are allowed to “do their business.” You can ask your landlord for a copy of the condo bylaws.

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Last Reviewed: August 2016
Do we need a lawyer to make a pre-nuptial or marriage agreement?

Yes, if your pre-nuptial or marriage agreement will set out the rules for how your property will be divided if your relationship fails.

In many cases, there is no legal “requirement” for legal advice (in other words, there is not a law that says you have to get legal advice). However, it is always a good idea to get legal advice, as any solution will have more of a chance of success if everyone involved knows their rights and options and makes all of their choices with these rights and options in mind. In fact, when people only find out afterward what their rights and options were, it can lead to resentment, attempts at “undoing” what was agreed upon, and an even bigger mess.

Also, if one or more of the parties did not understand their rights, any agreements that they came to can be refused or overturned by a court. If one or more parties did not get independent legal advice before signing an agreement, a court may decide that the parties did not truly understand the contract when they signed it.

However, if your agreement deals with dividing up matrimonial property, you will have to see a lawyer: the Matrimonial Property Act requires that you get independent legal advice, including signing the agreement in front of your lawyer. This means that you must each have your own lawyer. When you sign the agreement, the lawyer will complete a document called a “Certificate of Independent Legal Advice.”

Last Reviewed: October 2015
Does our agreement have to be in English to be valid in Alberta?

No, it does not have to be in English to be valid. However, keep in mind that you may need to get your agreement formally translated (in other words, translated by a certified legal translator) if you are asking for legal advice, if the agreement goes before a court for any reason, or if it needs to be read or interpreted in any way by any organization that does not read the language (for example: a bank or a pension administrator).

Last Reviewed: October 2015
I’m the one who always took care of our animals. Can I get “custody” of our pets?

Many people consider their pets to be members of their family. In fact, many people use the term “custody” when discussing who will take care of the pets after a marriage breaks down. Judges have even been known to grant orders that have the care of pets being shared by the two former spouses. 

The law, however, does not view pets a family members. Legally speaking, pets are property. That is why courts do not use the term “custody”—that term is for children. 

That said, pets are not treated in quite the same way as other property—after all, not many separating couples share the care of the TV or the couch. Specifically, courts might value the pets and/or assign that value to one spouse or the other. 

In deciding who will get the pets, courts have been known to consider things such as:

  • which spouse bought the pet, and did the pet belong to one of the spouses prior to the marriage;
  • if the pet a gift from one spouse to the other;
  • if there was any agreement or understanding between the spouses about who would take care of the pet (whether it was written down or not);
  • which spouse has been more of a caregiver for the pet during the marriage;
  • who has had the care of the pet in the time since the separation;
  • who is a more capable caregiver for the pet; and
  • if there are children involved, what pet arrangements would be in the best interests of the children.

Given the unique nature of pets, it can be better for everyone if the issues can be resolved by agreement. Without a court involved, the spouses can get much more creative with solutions, as they are not bound by the rules that say that pets are property.

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Last Reviewed: October 2015
What is probate?

Probate is a court process which confirms that:

  • a Will is authentic (for example: not fake or forged);
  • a Will is legally sound (for example: it was not signed by a person who lacked the capacity to sign a Will); and
  • the person named in the Will as the Personal Representative has the authority to administer the Testator’s estate according to the terms of the Will (for example: the person who was named as Personal Representative still has capacity, and there is no other legal reason to not allow that person to be the Personal Representative).

To get probate, special forms must be submitted to the Alberta Court of Queen’s Bench Surrogate office.

A common misconception is that the probate process will cost the deceased’s family thousands of dollars. In Alberta, this is not the case. There is a range of court fees charged for probate: the larger the estate, the higher the fee. However, the highest fees (for estates over $250,000) are still less than $600.

Not all Wills have to be probated. Whether or not a Will has to be probated depends on various factors, such as:

  • the value and nature of assets,
  • the complexity of the estate,
  • the number of beneficiaries,
  • the types of beneficiaries (for example: beneficiaries may be capable adults, dependants, or corporations), and
  • the policies of the agencies or financial institutions that hold the particular assets.
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Last Reviewed: April 2016
If my child has a disability, does that affect how long I can collect child support?

That depends on the law being used.

If the child support is being asked for using the Divorce Act (that could only happen if the parents were married to each other), child support can continue past the age of majority if the child is still financially dependent on you because of illness or disability. There is no age limit mentioned for when that child support will end.

On the other hand, the Family Law Act says nothing about disability or illness. Also, in all circumstances, child support granted under the Family Law Act ends completely once the child turns 22.

Last Reviewed: October 2015
Do children need to take the last name of either the mom or the dad?

No. The parents have several choices for a child’s last name, including:

  • the mother’s maiden name or currently used last name
  • the other registered parent’s last name
  • the two parents’ last names combined in either order, and using either a space, no space, or a hyphen (for example: Lee Wong, LeeWong, Lee-Wong, Wong Lee, WongLee, or Wong-Lee)
  • a name chosen in a way that fits with the parents’ cultural or ethnic heritage.

Both parents must agree on the last name for their child. If they cannot agree and both parents sign the Registration of Birth, the last name of the child will be shown as the last name of each parent joined with a hyphen in alphabetical order.

Last Reviewed: February 2017
I can't afford a lawyer. What are my options?

If you cannot afford a lawyer, there are still community resources that may be able to assist you with your legal issues. They can provide you with information about the law, or more hands-on help such as seeing a lawyer for legal advice, help with filling out forms, or finding someone to go with you to court or teach you how the court process works. Usually, to access these community resources, your income will have to be below a certain amount.

Try contacting these organizations:

  • Legal Aid Alberta
  • The Lawyer Referral service of the Law Society of Alberta
  • Resolution and Court Administration Services at the courthouse
  • Your local community legal clinic

You also have the option of getting “unbundled legal services” from a lawyer rather than “full representation.” “Unbundled legal services” (also called “limited scope retainers”) is an arrangement where a lawyer is hired to do only some of the legal work required by a client. This is a modern way to provide legal services and helps people who may not be able to afford a lawyer for their whole case to get some legal advice throughout the process. The client will have to be more involved in their case in this type of arrangement. You must be willing and able to perform some legal tasks.

Last Reviewed: September 2016