Posted by Darryl Aarbo — filed in Family Law
Two of our lawyers from Aarbo Fuldauer LLP attended the Legal Education Society of Alberta seminar on Advanced Matrimonial Property. It was an excellent collection of topics for the family law lawyer and divorce lawyer in Calgary.
The four topics included:
1. Family Trusts
2. The Farm and Ranch Divorce
3. Grappling with out of province assets
4. Enforceability of Domestic Contracts
Trusts and family law create an incredibly complicated legal regime. The complex tax rules of family trusts, which are changing again soon or have changed already, combined with matrimonial property legislation mix to create a difficult area for even the most seasoned lawyer. Basically the situation here is a case-by-case review of the circumstances with a heavy reliance on tax advice.
The Farm and Ranch Divorce
I come from a history with a rich farm and ranch background. My grandparents operated a farm and ranch while I was growing up. I spent many a weekend working and playing on the family farm. It is a unique way of life and land generally passes through the generations over many generations. As with trusts, there are complicated tax rules unique to this way of life. The family law lawyer and divorce lawyer in this context need to understand the way of life for the farm and ranch family, as well as the unique legal issues.
This was one of the most interesting topics of the day. It was explained how the Courts can deal with an Alberta divorce when there is property outside of Alberta. Canada is a federation and our Courts are province specific which creates its own set of complexities. There is no question that people in Calgary own a lot of recreational property in British Columbia and other parts of the world. The Courts can look at these assets as part of the division, but when it comes to actually dealing with the assets directly then it can become difficult. Generally the Courts can only make orders that bind the person, as opposed to the land outside of the province.
Enforceability of Domestic Contracts
This was one of those topics where you sit in your seat uncomfortably listening to the advice from the front of the room. There appears to be a trend in Alberta Family Law dealing with prenuptial contracts, cohabitation contracts and marriage contracts that is unsettling in the writer’s opinion. The Courts seem to be more and more inclined to upset the contracts entered into, even when legal advice is obtained from a family law lawyer. The Supreme Court of Canada has dealt with this issue in Miglin yet the lower Courts seem to be eroding the principles established in this case. Not every client can go to the Supreme Court of Canada to get justice so it is unsettling when we see lower courts interfering with well-established law. If a contract is in writing and there is legal advice for each of the parties then the parties should be free to enter into a contract regarding their property.
By Darryl Aarbo of Aarbo Fuldauer LLP
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
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