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I am about to move in with someone and we want to enter into a Cohabitation Agreement in case things don’t work out. Can we do that before we move in together?

The answer is“yes”, as long as you do it before December 31,2019. Under new legislation, the Family Property Act which takes effect January 1, 2020, you will have to be married to each other or partners as defined under the Adult Interdependent Relationships Act. Under that Act, you either have to have lived with the […]

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Is a do-it-yourself Will valid? Does it need witnesses?

There seem to be two common types of do-it-yourself wills out there and both require the maker, or testator, to sign the document. The first is created using a will kit and contains a template. This one requires two witnesses to sign the will, in the testator’s presence, after the testator has signed it. The […]

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What’s the difference between a Prenuptial Agreement and a Cohabitation Agreement?

A Prenuptial Agreement is an agreement made before marriage usually to resolve issues of support and property division if the marriage ends in divorce or death. It can be entered into in contemplation of marriage but it is unenforceable until after the marriage. A Cohabitation Agreement is an agreement outlining the property and financial arrangements […]

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When I’m acting as a personal representative (executor), do I need to be in contact with the beneficiaries?

While clear and regular communication with beneficiaries is always a good idea, it is also a requirement. At minimum, you are required to notify the beneficiaries of the following information: the name of the deceased person, your name and contact information, the gift the beneficiary will receive from the estate, and that gifts are subject […]

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Do spousal support obligations continue after the recipient dies?

If the Divorce Judgment or separation agreement provides for the termination of spousal support after the death of the recipient, then the spousal support may end. But where the spousal support agreement provides that payments are to a specified date, are unreviewable and enure to the benefit of one’s estate, then the payor may be […]

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How is property divided in a divorce?

There is a presumption that all property accumulated during a marriage, whether in sole or joint names, is divisible on divorce.  However, as is so often the case, there are exceptions, including for property owned before marriage or received by gift or inheritance during the relationship. When property that is otherwise exempt from division is […]

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I would like to add one of my children to the title of my home as a joint tenant so that she receives it when I die. Is this a good idea?

There are at least 3 things you should think about. Consider that once you’ve done that, you can longer sell the home or borrow against the home without your daughter’s consent. This limits your independence.  Further, there may be an unintended tax consequence if your daughter already owns a primary residence. Finally you may be […]

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What is the difference between polyamory and polygamy?

As perceptions of the traditional family change and our definition of family broadens, new legal considerations arise, as these social changes often happen more quickly than legislative changes. The term polyamory, for example, generally describes a relationship structure where people engage in multiple relationships with multiple people at the same time, with full knowledge and […]

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My partner and I are not married and each of us had assets before we moved in together. How do I protect them?

With a new year dawning, thoughts often turn to organization. One of the things that should be on your to do list is entering into a Cohabitation Agreement. The law in Alberta right now treats married and unmarried couples differently. This document allows you and your partner to set out your understanding about what should […]

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We are taking our children to see their grandparents. I must return home to St. Albert before my wife and kids return. Do I need to sign a Travel Consent Letter?

For international travel, Canada Border Services Agency recommends that the non-travelling individual with guardianship rights, whether married or not, sign the letter in front of a notary public.  So, yes, it is recommended that you sign a Travel Consent Letter to permit your wife to re-enter Canada with your children. She may or may not […]

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How does independent legal advice (“ILA”) work and what does it cost?

ILA is more than a lawyer witnessing your signature; it’s necessary to meet the legal requirements for a valid agreement when couples are separating, divorcing, or starting out. Your lawyer will review your agreement and your situation with you, ask how the agreement was negotiated, and review what financial information was exchanged. Your lawyer will […]

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I live in a condo and my toilet overflowed, causing water damage to several units below me. The condominium insurance policy paid the claims, but the Board wants me to pay the $10,000.00 deductible. Do I have to pay?

It depends on what the condo bylaws say. If the bylaws are silent regarding deductibles, it is likely that you do not have to pay. If the bylaws impose liability on the owner in all circumstances, you are likely going to have to pay. If the bylaws say you pay only if you were negligent, […]

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What can I expect at an initial consultation with a lawyer?

This first meeting with a lawyer is an opportunity to do several things.  It allows you to: assess whether you and the lawyer are compatible to work together; learn about the different options and resources available to you to address your legal matter; obtain general legal advice; and create a plan for moving forward. A […]

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I’m buying an acreage and I want to make sure that the current owner removes their items and garbage, as discussed – what can I do to make that happen?

Finding your new home in less than stellar condition does not happen often, but when it does, it’s a difficult thing to deal with. The best approach is to be proactive when you are placing your offer to purchase. Include in the terms of sale that all refuse and items not specifically included in the […]

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We want to sell our house here in St. Albert which is held jointly with my husband. My husband has lost his mental capacity but he appointed me as his attorney to act on his behalf. The power of attorney was made and signed when we lived in Newfoundland. Can we complete the sale here?

As long as the power of attorney meets the requirements of a power of attorney in Newfoundland, states that it survives mental incapacity, meets the normal registration requirements here, references the sale of real property, and a lawyer writes a letter stating that it meets the above criteria, you may sign on behalf your husband […]

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What’s the difference between an Enduring Power of Attorney and a Personal Directive? If my spouse loses his/her mental capacity, won’t I be able to take care of everything?

Both documents work together to allow you to appoint a decision-maker when and if you become mentally incapable. A Personal Directive sets out your wishes regarding medical decisions, end of life care, and consent for placement in long-term care, among other things. Without it, a friend or family member may have to make an application […]

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My divorce is simple. Can I do it by myself?

If you and your spouse have equal incomes, no children and no property to divide, with some time and patience you can do it yourself. If otherwise, there are most likely issues that are legally and financially complicated. There will be issues that you didn’t even know you have to resolve. As the saying goes […]

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My spouse and I have separated and are in agreement on how we will deal with our assets and cash flow. Should I go ahead and put an offer on a new home?

We often receive calls from people in a time crunch: they have separated, agreed on a resolution, and placed an offer on a new home – only to learn from their bank that a new mortgage is not possible until a formal separation agreement is in place. Even if you and your ex-spouse agree on […]

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I’m buying a home. I am talking to my lender and my lawyer about my down payment but they aren’t talking about the same thing. What’s up?

When you made your offer to purchase, you gave your Realtor a cash deposit and perhaps a second deposit when you removed your conditions.  In addition, there will be a cash shortfall requested by your lawyer. The cash shortfall is the total required to complete the purchase which will include tax and condo fee adjustments, […]

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My spouse and I have made a Separation Agreement. Do we need to file the written agreement with the Court for it to be binding?

No. An agreement is binding provided that it was entered into voluntarily, with a full exchange of financial information and with independent legal advice. Having said that, agreements often contain clauses dealing with matters that must be put before the Court in order to finalize a divorce, such as matters dealing with the support and […]

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My child’s other parent lives in another province. Which table do I use when calculating child support?

The Federal Child Support Guidelines (pursuant to the Divorce Act, Canada) set out tables for each province and territory. These tables show monthly amounts to be paid for a child’s basic and everyday needs, including things like food and clothes and often (though not always) things like school supplies.  When parents live in different provinces, […]

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While going to court may resolve the outcome of a legal issue, it is often not the way to resolve family conflict.

While sometimes necessary and unavoidable, going to court often creates fear around possible outcomes and polarizes family members, particularly when a relationship with children will be affected. In the lead up to going to court, negative feelings and perceptions can escalate and children witness that animosity and fear. Rather than heading down that road, choose […]

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What’s the difference between a Prenuptial Agreement and a Cohabitation Agreement?

A Prenuptial Agreement is an agreement made before marriage usually to resolve issues of support and property division if the marriage ends in divorce or death. It can be entered into in contemplation of marriage but it is unenforceable until after the marriage. A Cohabitation Agreement is an agreement outlining the property and financial arrangements […]

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If one of our appliances is listed in the real estate purchase contract as being sold with our home, can we replace that appliance with a different one before closing?

The answer is no. There is an expectation that the buyer will receive the same appliance as was in the home when the offer was made, unless otherwise specified in the real estate purchase contract. The contract also provides that the appliance will be in good working order on the day of closing. If problems […]

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What is a Real Property Report (RPR) and why do I need one?

A Real Property Report, drawn by a qualified surveyor, shows the location of all buildings and improvements on your property. You need this to get a letter or stamp of compliance from the City. And you will need to provide both of these things to the buyer if you are planning on selling your property, […]

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How is calculating spousal support different than calculating child support?

Unlike the tables for child support, which are law pursuant to the Divorce Act, the Spousal Support Advisory Guidelines have never been enacted and are an informational tool only. The danger in relying on just these tables is that only some crucial considerations are addressed. The first question – what factors affect entitlement to support […]

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I have purchased a home and I will take possession next month. I drove by the house yesterday and I noticed that shingles have blown off the roof. Can I withhold money from the purchase price until the roof has been repaired?

Unless you have already negotiated a hold back in your Real Estate Contract, you cannot unilaterally withhold money from the cash required to complete the purchase. Immediately ask your lawyer to request a hold back with a specific time limit for the completion of the roof work. If the request for a hold back is […]

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Why would I pay a lawyer to assist me in drafting my Enduring Power of Attorney and Personal Directive?

There are many resources available to assist people in creating their own documents.  However, it is important to ensure that you are thorough and that all arrangements, including those in your will and those between partners or spouses, all work together. A lawyer is like any other expert, and he or she can offer some […]

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Do I need a travel consent letter to travel with my children?

If you plan to travel outside of Canada with your children and without the other parent, then we strongly recommend having the other parent sign a travel consent letter well in advance of your travel date. This recommendation applies whether you are divorced or married and anytime when your children are travelling with one one […]

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Divorced? Have you changed your will?

Recent changes to estate legislation in Alberta now cause a gift in a will to a former spouse to be revoked, unless a contrary intention can be shown. However, this new rule only applies to situations where the divorce was granted after the changes were proclaimed, which happened in February 2012. If you were divorced […]

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Ask an Expert: What happens to my online accounts upon my death?

The new Estate Administration Act requires an executor, also called a personal representative, to manage online accounts and to identify and manage digital assets. When creating an estate plan, care should be given to creating a list of all online accounts (like eBay or PayPal) and virtual property (communications like Gmail or MSN; media like […]

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Ask an Expert: My wife and I are separating and we have come to an agreement dividing all of our property. Why do we need to provide so much financial information to our lawyers to get a legal Separation Agreement drawn and signed?

Your lawyer and your wife’s lawyer must certify that they have given their clients, separate and apart from the other, independent legal advice. To do that properly, the lawyers must assess your financial situation thoroughly, much like a surgeon will not operate at your request without a complete examination prior to surgery. Like a surgeon, a lawyer can then […]

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Ask an Expert: What really are the differences between using the collaborative process rather than going to court?

There are a lot of reasons why so many people are choosing to resolve matters arising on separation outside of the court system. Some of the big ones include: 1. Confidentiality. Many personal and financial details can otherwise become part of the filed documents. 2. Creativity. Working together offers many more options regarding how to […]

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Ask an Expert: I’m getting divorced. Can I move to another province?

There are no restrictions on moving to another province. However, if you have not finalized matters and if you expect that you will need to resolve matters in court rather than through negotiation, you need to consider the residency requirements in the Divorce Act. To start a divorce action, you or your ex-spouse need to […]

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Ask an Expert: Can I be evicted from my condominium even though I own it?

Yes. The Condominium Property Act gives the Court the power to make “any other order appropriate in the circumstances,” which would an include an eviction order when an owner’s conduct has been found to be improper. However, the conduct would have to be serious and the eviction might only be ordered after the condominium corporation […]

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Ask an Expert: I’ve been separated for years. Why do I need my ex-spouse’s consent to sell the house I bought after our separation?

Dower rights give a non-owning spouse the right to live in the house following the owner’s death. Alberta law requires any landowner who is selling land in his or her own name to swear an affidavit setting out that: (a) he or she is not married; (b) an ex-spouse has released his or her dower […]

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Ask an Expert: How can I not win and still be successful in my divorce?

Ending a marriage is one of the most difficult things someone can face. It can throw a couple into turmoil, often bringing the whole family into chaos—at least for a time. Divorcing couples can be defensive, protective, and feel pressure to “best” the other spouse in negotiations, especially if entering into our adversarial court system, […]

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Ask an Expert: I think my marriage is over. I’m worried about all the debt we have together. What can I do?

Identify joint debts such as mortgages, personal loans, lines of credit, and credit cards. Joint debts will remain your responsibility even though your spouse may be willing to take them over. Your lender does not care about an agreement between you and your spouse when it comes to joint debt. The only way to get […]

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Ask an Expert: I’m getting divorced. How can I prepare myself to move forward more positively?

Research shows there are three preconditions for positive change. First, something must motivate an individual to want to change. Second, a different relationship that provides psychological safety, empathy, and attunement must exist (like with a divorce coach). Third, there must be optimal anxiety—just the right amount of discomfort in the present to want to move […]

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Ask an Expert: Focus on children at Christmas.

Recently, when discussing plans for Christmas with my family, we talked about how kids may experience the holidays when their parents have recently separated or are having relationship difficulties, which can be heightened over the holidays. With so much focus on the “business” of Christmas and on the problems parents are facing themselves, the fact […]

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Ask an Expert: My ex-spouse and I do not communicate very well right now and use email to talk about our kids, but the emails seem so nasty. What can I do?

First, take a breath! Resist the temptation to respond immediately. Take the time to consider whether you need to respond at all, and if you do, consider trying a BIFF Response. This approach, developed by the High Conflict Institute, recommends being brief, informative, friendly, and firm. Keep it short and resist getting personal. Stick to […]

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Ask an Expert: Why would I pay a lawyer to assist me in drafting my enduring power of attorney and personal directive?

While there are many resources available to assist people in creating their own documents, it is important to ensure that you are thorough and that all arrangements, including those in your will and those between partners or spouses, all work together. A lawyer is like any other expert, in that he or she can offer […]

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Ask an Expert: My mother just passed away and I am the executor or personal representative named in her will. Do I have to meet with a lawyer right away?

You are certainly welcome to meet with a lawyer to discuss your responsibilities, and whether you wish to assume that role, at any time. Having said that, so long as any urgent matters, like ensuring property is secure and that it will remain insured, have been taken care of, the rest of the estate administration […]

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Ask an Expert: My spouse and I have separated, and I have placed an offer on a new home. Do I need a separation agreement to get financing to make the purchase?

Yes. Your banker/lender will want to see a legally enforceable separation agreement so as to determine your financial obligations to your spouse or your spouse’s financial obligations to you. This may include child and spousal support payments. You will need to be patient as it may take some time for you and your spouse to […]

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Ask an Expert: When divorcing, do you really want a pit bull/barracuda lawyer?

Depending on the circumstances, a strongly aggressive approach in family matters can bring results—though you will not control the nature of those results—and there is a huge cost to families. Sometimes a perceived need to win or to see justice be done can overcome the ability to appreciate the long term effects of a court […]

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Ask an Expert: I would like to make a few minor changes to my will. Do I need to redo the current will? Can I do a codicil instead?

The answer to the first question is no, and to the second is yes. However, I would recommend the opposite! A codicil is a short document to which the same rules of execution apply as for wills and which must be attached to your original will setting out the changes. Codicils can create more problems […]

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Ask an Expert: I am separating from my wife, and we have one 12-year-old child. I have heard that he can decide with which parent to live. Is this true?

There is no magic age before 18. The wishes of children should be heard, but one must be extremely careful of creating a popularity contest between two parents. However, if there is no evidence of one parent trying to exclude the other, the older the child, the more likely the court will follow the wishes […]

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Ask an Expert: Are you the executor of an estate containing firearms?

The executor, or personal representative, is responsible to ensure that all firearms are stored legally or are properly disposed of reasonably quickly. If the firearms are unwanted, the executor may sell them to a licensed purchaser, lawfully deactivate the firearms, or surrender them to a police or firearms officer, after making arrangements to do so. […]

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Ask an Expert: How long do I have to wait after my divorce before I can remarry?

This is a common question we often hear from people who wish to finalize matters so arrangements can be made to marry again. Once your divorce judgment is granted, it becomes effective 31 days later. However, even though divorces by agreement can be relatively straightforward and can be submitted to the Court by way of desk […]

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Ask an Expert: What does probating an estate mean?

When someone dies, we often hear people referring to “getting probate.” An application for letters probate from the court refers to the process of formally proving a deceased person’s will is valid. An executor is then authorized to act on behalf of a deceased person’s estate, including distributing the net assets to beneficiaries. Once done, […]

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Ask an Expert: I am separating from my children’s other parent and was told to attend the P.A.S. seminar. What is it?

The Parenting After Separation seminar is an excellent resource available to parents who are going through a separation and have children under the age of 16. This free, six-hour seminar is required to be completed before a court will grant an order dealing with parenting or supporting children. Even if you are not litigating and […]

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Ask an Expert: I am buying a house in August. Who pays property taxes this year?

Taxes are levied  for the calendar year and are due June 30 in St. Albert. If paid in one lump sum by the seller, you will pay the seller your share of the year’s taxes though the lawyer’s Statement of Adjustments. If the sellers paid the taxes in monthly payments to the City, you will […]

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Ask an Expert: If one of our appliances is listed in the real estate purchase contract as being sold with our home, can we replace that appliance with a different one before closing?

The answer is no. There is an expectation that the buyer will receive the same appliance as was in the home when the offer was made, unless otherwise specified in the real estate purchase contract. The contract also provides that the appliance will be in good working order on the day of closing. If problems […]

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Ask an Expert: I am recently separated. My spouse and I don’t want a nasty divorce. What can I do?

It’s important to think about the range of options available to you right off the bat. Most people are now aware that court does not have to be where to start. Mediation is an excellent option for those wanting facilitated communication. For those who want guidance around options for settlement and legal information as they […]

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Ask an Expert: What is my lawyer’s role when helping me finalize an agreement that has been prepared by my ex-spouse and myself?

Once an agreement has been drafted and is in the appropriate legal format, each of you need to see a lawyer to review your rights, your obligations, and the terms of your agreement. Before signing the certificate of independent legal advice attached to the agreement, which helps protect the agreement from later challenges, your lawyer […]

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Ask an Expert: What is a Collaborative Divorce?

Collaborative Divorce is a respectful process for resolving conflict, with the help of specially trained lawyers and other professionals, without going to court. Each spouse is represented by his or her own lawyer from start to finish, with the additional support of helping and financial professionals as required. The spouses and professionals work cooperatively to […]

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Ask an Expert: Why do I need a personal directive, an enduring power of attorney, and a will?

With the holiday season now behind us again, thoughts often turn to getting organized and looking toward the future. While you likely do not like to think about your own demise, it is important to think about your legacy, how you wish to be cared for should you become mentally incapable, and how you wish […]

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Ask an Expert: Why can’t a lawyer help both my ex-spouse and me with our separation agreement?

Helping both parties places a lawyer in a conflict of interest. Each party has competing interests, even if the two are working together amicably. Lawyers are obligated to ensure that thorough advice is given independently of the other party, to discuss the alternatives and the risks associated with your agreement, and to assess whether one […]

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Ask an Expert: I am separating from my common-law spouse after living together for 10 years. Do I get half of the house that we bought in his name?

In Alberta, the Matrimonial Property Act applies only to married people. There is a presumption of an equal division of all property acquired during the marriage (with certain exemptions). Some provinces and territories have legislation that governs unmarried people who live together in a conjugal relationship. Alberta has chosen against that so far. There is […]

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Ask an Expert: Why take the Parenting After Separation course?

There are three very good reasons to attend this seminar. First, it is free and a great opportunity to obtain some helpful legal and practical advice early in the separation process. Second, it is typically taught by a lawyer and a psychologist or social worker, and its focus will be on how best to meet […]

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Ask an Expert: Is it a good idea to sell and buy a home on the same closing day?

While the actual moving day will be hectic, from your lawyer’s of view, it can be done. However, if for some unanticipated reason, your sale closing is delayed and the money is received late at your lawyer’s office, the money will not be available to complete your purchase. Your taking possession of the new home […]

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Ask an Expert: I am moving in with a new partner. Why should we consider a cohabitation agreement?

Traditionally, “prenups” (for married or engaged spouses) and cohabitation agreements (for unmarried partners) have had a stigma associated with them; this perception is slowly changing, and for good reason. These agreements are an excellent tool which can prevent much turmoil and conflict should the relationship break down or one spouse dies or becomes incapacitated. With […]

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Ask an Expert: I’ve been separated for years. Why do I need my ex-spouse’s consent to sell the house I bought after our separation?

Legislation requires any landowner who is selling land in his or her own name to swear an affidavit setting out that: (a) he or she is not married; (b) an ex-spouse has released his or her dower rights; or (c) neither he or she, nor his or her spouse, ever lived in the property for […]

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Ask an Expert: What does “probating an estate” mean?

When someone dies, we often hear people referring to “getting probate.” An application for letters probate from the court refers to the process of formally proving a deceased person’s will is valid. An executor is then authorized to act on behalf of a deceased person’s estate, including distributing the net assets to beneficiaries. At that […]

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Ask an Expert: Why do I need a real property report and compliance when selling or buying a home?

If you are a seller, the standard real estate contract states that these are documents that you must provide to the buyer, unless set out otherwise in the standard real estate contract. These confirm that the building location warranties given by the seller in the contract are true. If you are a buyer, you will […]

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Ask an Expert: How can the Collaborative Process work if my spouse and I don’t agree or trust each other?

Many people believe that the Collaborative Process works only for those who are amicable and who agree on almost all issues. In fact, this process is ideal for those cases where communication has broken down, where trust is low and where many issues remain to be resolved. Coming to agreement when people look at things […]

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Ask an Expert: Divorced? Have you changed your will?

Recent changes to estate legislation in Alberta will now cause a gift in a will to a former spouse to be revoked, unless a contrary intention can be shown. However, this new rule only applies to situations where the divorce was granted after the changes were proclaimed, which happened in February 2012. If you were divorced before 2012, a gift […]

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