Thursday, 12 December 2013

Same Sex Divorce and Civil Marriage Act - Family Law

Review of the The Civil Marriage Act, S.C. 2005, c. 33

by Darryl Aarbo

I have had the opportunity to review the federal  Civil Marriage Act in force since June 26, 2013.  It carries the citation of 2005, but was not formally proclaimed until 2013.
As far as I am aware I am preparing the first divorce under this legislation in Alberta.  I have contacted the Clerk and this information has been confirmed to me.

I will not bore you with the technicalities of how to proceed with the divorce under the Civil Marriage Act, as opposed to the Divorce Act, because it is essentially the same procedure as a divorce using slightly modified Court forms.  Of particular note, however, is that the parties do not seem to be able to  seek corollary relief upon the divorce.  This means that they cannot seek spousal support, child support or deal with custody and access.  The legislation only deals with obtaining a divorce.
The reason this legislation came into its existence is because Canada allows same sex marriage.  What has happened is that couples have married in Canada then moved abroad.  If these couples find themselves in a jurisdiction that does not recognize same sex marriage then they cannot get divorced.  If a country does not recognize same sex marriage then they are not going to recognize same sex divorce.  This has put a number of couples throughout the world in an extremely difficult position.  They cannot get divorced.

The reason they cannot get divorced in Canada is because our Divorce Act requires them to be a resident for at least one year.  One cannot be a resident in Alberta and some other country at the same time.  The two are mutually exclusive.
What is particularly interesting about the legislation is that Part 2 of the legislation deals with the dissolution of marriage for non-resident spouses.  It is a fairly straight forward and technical legislation that allows people caught in this conundrum to obtain a divorce in Canada even if they live abroad.

What is also of particular note about the legislation is Part 1.  Part 1 of the legislation deals with the solemnization of marriage.  Why this is unusual is because this is the exclusive jurisdiction of the provinces.  Nevertheless, s. 3 of the legislation states that: “It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.”
Section 3.1 states and goes on to explain that the reason for this section is to reserve a freedom of conscience and religion guaranteed under the Charter.  It seems to be a twisted logic that the Charter of Rights and Freedoms is itself used to justify another breach of the Charter of Rights and Freedoms.  Normally the Courts engage in a balancing of rights, as opposed to using one right to override another right. 
In any event, it is this writer’s opinion that those sections ultra vires the federal government.  In other words, these sections would violate the Constitution Act, 1867.  The Constitution Act, 1867 divides up the powers between the provinces and federal government.  The solemnization of marriage is a provincial responsibility and it would appear that the federal government is trying to legislate within this realm. 

Darryl Aarbo

Wednesday, 4 December 2013

Estate Planning Law -- Dealing with Land of Deceased

Land Interests of a Deceased in Alberta

When can they be Transferred and/or Sold?

By Courtney Aarbo Fuldauer LLP,  Barristers & Solicitors

In many cases the majority of a deceased’s estate value is made up of  land interests (house, condo,farm land). Their efficient transfer to ‘survivors’ and ‘beneficiaries’ is very important.
A first step for an Executor of a deceased is to determine what land interests in fact come into the Estate on a death.

If a deceased owned a land interest ‘jointly with right of survivorship’, then the land interest is not technically part of the estate, and does not become an asset under the will for the Executor to administer. Instead the land interest of the deceased transfers automatically on death, to be owned 100% by the ‘survivor’ on title. This method of ownership is typical of spouses and common law partners, meaning the surviving spouse/ partner will automatically become sole owner. What the survivor on title needs to do is file at the Land Titles Office the necessary ‘ Survivorship Declaration’, together with proof of the death.

All other forms of land titles ownership by a deceased will in fact fall into the deceased’s estate and be dealt with under the term’s of the will, or if no will, pursuant to the Wills and Succession Act of Alberta (for an intestacy).

A land ownership coming into the estate cannot have its title altered, be it to the name of a beneficiary, or to a new purchaser if being sold, until a Probate Order or Order for Administration is granted by a Justice of the Alberta Court of Queen’s Bench. The Land Titles Office by law cannot alter the title until there is a Court Order in place.

The obtaining of a Court Order will occur only after the Executor under the will, or the person applying to administer an estate, brings the necessary ‘Probate Application’, or ‘Application for Appointment of Administrator’ to the Courts. The procedure involves the filing of about a 10 to 15 page application touching on various aspects of the deceased, the beneficiaries, the will, and the estate value. At present the Court is taking about 2 months to approve an application once it is filed in the correct form.

Until the ‘Probate Order’ or ‘Order of Administration’ is granted by the Court, the Executor and Administrator have no ability to legally sign contracts listing or selling land, let alone signing a transfer to a beneficiary or purchaser. Once the Court Order is obtained it is filed at Land Titles and the land interest will be placed into the name of the Executor/Administrator. Only then can the Executor/Administrator sell or transfer the title.

It is not only essential for the Executor or Administrator of an Estate to understand the above procedure and timing for dealing with land interest in estates for sale or transfer purposes, it is also essential for all necessary steps to be taken to secure, insure, and safeguard the property while the process unfolds.

At Courtney Aarbo Barristers & Solicitors we are happy to assist you with any estate issues or concerns that might occur, including applying for Probate and Administration Orders, and transferring land interests.

For more information contact Courtney Aarbo Barristers & Solicitors at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or or phone 403-571-5120.

Courtney Aarbo Barristers & Solicitors

- The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.