Erin Barvir

January 7, 2022September 26, 2022

LAWYER | MEDIATION & ARBITRATION SPECIALIST

Erin was called to the Bar in 2007, having obtained her Bachelor of Arts Degree and her Law Degree close to home, at the University of Calgary.

A highly experienced lawyer, Erin is able to adapt to the individual needs of each and every client, whether you need a strong litigator or a reasoned and rational voice out of court.

Erin also has a passion for mediation and arbitration and has completed extensive training in both. She is able to be the neutral, 3rd party to assist opposing parties in reaching an amicable resolution, with or without lawyer assistance.

January 7, 2022September 26, 2022

Candace Wray

LAWYER

Candace achieved her Juris Doctor at the University of Saskatchewan, having completed her last semester abroad at the University of Hawaii at Manoa, William S. Richardson School of Law. She was called to both the Saskatchewan and Alberta bar in 2014 and has already gained significant experience both in and out of the courtroom.

A confident and accomplished litigator when required, Candace believes that the future of family law is in negotiated settlements where possible, thus saving the expense and delay of a full court process.

Candace is an active volunteer in Cochrane and enjoys spending free time helping to enrich the local community.

June 28, 2019June 28, 2019

Guardianship of Children of Unmarried Parents

The answer to the question “who is a guardian of a child?” can be an easy one. If you are the birth mother or biological father of a child, and currently married to or in a relationship with the other parent of the child, then you are a guardian. If there is a Court Order that says you are a parent (in cases of surrogacy or adoption) or guardian, then you are a guardian. Likewise, if there is a Court Order that says you are not a parent or guardian, then you are not a guardian.

If you gave birth to the child, and there is no Court Order saying you are not the child’s parent, then you are also their guardian.

What about when you didn’t give birth to the child and there is no Court Order in place? Well, then you have to look a little deeper to discover your status.

When you are not married to or in a relationship with the other parent, you didn’t give birth to the child, and there is no Court Order with respect to guardianship, there are a number of factors that should be considered. They are:

Were you married to the other parent when the child was born, even if you are not married to them now?
Were you in an Adult Interdependent Relationship (“AIR”) with the other parent when the child was born (more on that below)?
Did you marry or have an Adult Interdependent Relationship with the other parent within one year after the child was born?
Were you married to the other parent before the child was born, but divorced less than 300 days before the child was born?
Did you live with the other parent for at least 12 consecutive months during the period the child was born?
Have you made any voluntary payments of support for the child, within one year of finding out the child was born?

If you answered “yes” to any of the above, then you are likely a guardian of the child.

There are a few other categories where you may be a guardian as well. They are:

Is there any written agreement where you agreed to be the guardian of the child?
Did you voluntarily give or offer any financial support to the birth mother, either during or after the pregnancy?
Did you voluntary give or offer any financial or non-financial support for the child, within one year after finding out about the birth of the child?
Have you in any other way demonstrated an intention to assume the responsibilities of a guardian within a year of finding out about the birth of the child?

If you answered “yes” to any of those questions, it might be worth consulting a lawyer to discuss the specifics of your situation and to get some advice on your possible guardianship responsibilities.

Turning back to the AIR status from above, you will be classed as being in an AIR when:

You are living with someone, sharing in one another’s life, functioning as an economic and domestic unit and emotionally committed to one another, and either:
- You are related by blood, both at least 18 years old, and have signed an Adult Interdependent Agreement; or
- You are not related by blood but:
  - have lived together and have a child together;
  - have lived together continuously for 3 years but have no child together; or
  - have signed an Adult Independent Agreement.

If you need any advice on your possible status as a guardian, assistance navigating the checklist of guardianship factors above, or information on your rights and responsibilities once it is established that you are a guardian, we would be happy to help. Call us on (403) 981-0700 to set up an appointment with one of our lawyers and to discuss your specific situation.

Disclaimer:

Although we are a law firm, this blog post does not constitute legal advice. It is for informational or entertainment purposes only and shouldn’t be seen as financial or legal advice of any kind. You should consult with a lawyer before relying on any of the information contained in this blog post. We can be contacted at (403) 981 0700 to set up a consultation with one of our lawyers who can review the specific circumstances of your matter and provide you with personalized legal advice.

June 1, 2019June 1, 2019

Why get a Will?

Do you have a Will? Is it something you have thought of doing? There are many statistics floating around out there, and they all show a surprising number of people who do not have Wills, or if they do, they acknowledge that they are out of date.

We can’t tell you how many people come into our offices who have been putting off getting their Wills drafted for years, if not decades. You may be asking yourself if you really do need a Will, or if it is important given your current circumstances. “Need” may be a strong word, as it is not a legal requirement to have a Will, but yes, you should have one, and yes, you should ensure that it stays current and reflects your personal circumstances. Any person, regardless of the size of their estate, and whether or not they have a partner or children would benefit from having a Will.

So why should you have a Will? There are many reasons to have a Will, and we will focus on a few of the most common ones.

Clarity

You get to choose how your estate will be divided (though there is a legal requirement to ensure your dependents are taken care of). You don’t have to wonder what will happen to your loved ones in the event of your death as you have specifically written out your instructions. You are the person who is best equipped to make the decisions regarding your estate.

If you die without a Will, your assets will be distributed in accordance with the Wills and Succession Act, and neither you nor your loved ones will have control over what happens.

Ensuring loved ones are taken care of

If you die without a Will and have minor children, who will take care of them? Especially if you are a single parent or if you and your partner die in a joint accident. Family members would have to step in to determine who should become guardian of those children, and people may not agree on who is the best choice. A Will puts that choice in your control and you can make certain you choose the people who share your values, will provide a safe an loving home, and are willing to take on that responsibility.

Saving money

A Will can help to ensure that you use tax rollovers to named beneficiaries to the best advantage possible. This could save your estate a significant sum in taxes, ensuring that your beneficiaries reap those benefits.

Another reason that having a Will could save you money is that you may be able to avoid the requirement of getting a Grant of Administration. In certain circumstances, in order to deal with the assets (or debts) of a loved one, you are required either to have a Will or a Grant of Administration, which is a lengthy and sometimes costly process through the courts. Something as simple as getting rid of a vehicle in the name of a decease may not be possible for months without a Will.

If you currently have a Will, please ensure you review it every couple of years and after any significant event in your life (marriage, births, separation, death in the family) to ensure it still reflects your wishes.

While Wills are the most well-known estate planning documents, and deal with your matter in the event of your death, we would also encourage you to consider other estate planning documents, designed to protect yourself and your assets in case of incapacity. These are Personal Directives and Enduring Powers of Attorney. We will cover those more in depth in a future blog post, so stayed tuned!

Disclaimer :

April 30, 2019May 2, 2019

Getting Judgy

It’s easy to criticise the judiciary when a result doesn’t go your way in Court, but being a Judge may be a little harder than it first appears.

It’s necessary to weigh, often numerous, competing positions before coming to a reasoned decision. So this month we thought we’d try something a little different and put you in the hot seat as the Judge.

Have a read through the facts below. If you can believe it, this is actually based on a true case from Newfoundland. It’s been turned into a work of fiction, and all names have been changed of course, but the basic story is still there.

Comment below with how you’d handle this situation if you were the Judge and we’ll let you know the actual verdict in 48 hours time.

Disclaimer :

The Verdict:

“It’s valid” the Judge said. “Milos’ intent was to support the larger cause of his Greek Orthodox religion, not to punish Athena. If the condition had been that Athena not marry at all, that would have been unlawful. But reasonable restrictions on marriage are valid.

What do you think about that verdict? Adding conditions to an inheritance can bring with it some challenges. If you have something similar in mind, we’d be happy to discuss the merits with you at a will intake appointment.

March 29, 2019March 27, 2019

Alternatives to Litigation

In family law, many people assume that if parties cannot come to an agreement on their own, their only option is to resort to litigation. This can be a daunting prospect. The courtroom is intimidating, and the processes, paperwork, deadlines and procedural rules involved can be complicated to navigate.

There is good news though, as parties have more options now than ever before to minimize the need to go to court or opt out of that process entirely. While coming to a full agreement with your former partner is ideal, and sometimes the only assistance needed is to get paperwork drafted to make an agreement binding, obviously that doesn’t work for everyone. Even in high conflict matters, options are available to you.

Dispute Resolution Officers

Many jurisdictions encourage resolution prior to going to court. In Alberta one of the programs available to people is called a “DRO”. As part of the court process, if you are making an application for child support in the Court of Queen’s Bench, you are first required to attend with a DRO, or a “Dispute Resolution Officer”. It is a one-hour appointment at the courthouse that is free of charge to you where you and your former partner attend before an experienced family law lawyer in an attempt to resolve the issue of child support. While a court date may be booked, be sure to make use of this session to try to come to an amicable resolution out of court.

2. Mediation

Mediation is available through a variety of programs. In Alberta, the courts have a family mediation program through Resolution and Court Administration Services that is free for parties where one party has a gross income of less than $40,000 annually. They can help with issues around parenting, support and property.

Mediation is also available privately. Many law firms have lawyers who are specially trained in mediating family law disputes. In such cases, the lawyer would be hired by both parties to be a neutral third party to try to assist parties in coming to an amicable resolution. In some cases, parties may agree to both attend at the mediation without having their own lawyer, or without those lawyers being present. In other cases, called “lawyer-assisted mediation”, parties may attend with the mediator and their lawyers to try and get a resolution.

The rate of resolution during mediated sessions is remarkably high, and while more than one appointment may be necessary, if both parties are committed to the process, resolution can occur without the delays and uncertainty of litigation. The best thing about coming to a mediated resolution is that you had your say in the outcome. If going in front of a judge, you never know what Order you might end up with.

3. Mediation/Arbitration

This is a process that begins with mediation but has certainty that if the parties are unable to come to a resolution, a decision will be made. This process can again be done either with or without lawyers for each party. Some law firms also have some lawyers who have additional training in arbitration and can offer their services as Mediators and Arbitrators. While arbitration can be done without the mediation phase, typically mediation is attempted first in the family law context.

Parties would sign a contract with the third-party Mediator/Arbitrator that would give the Arbitrator the authority to decide for them if it became necessary. They would essentially replace the role of a judge in a court process. The Arbitration Act allows for this and the decision of the Arbitrator is as binding and determinative as a court ruling. If parties try mediation but are not successful in resolving their difficulties, the process would move to the “arbitration” phase. Here they would present all the evidence necessary and put forth their argument to the Arbitrator. The process, timelines, rules of evidence and format of the arbitration are all customizable to the parties. Once the process is over, the Arbitrator would issue a formal Arbitration Award to the parties giving the decision.

Arbitration has many benefits. It allows parties to refine the process to meet their needs and does not have the same procedural requirements that would be encountered in a court process.

While it sometimes seems more expensive up front because parties must hire an Arbitrator privately, it often ends up saving money, particularly if the other option is going to court, which often requires multiple court visits and if a trial is necessary, booking years in advance due to an overburdened court system.

Please feel free to contact our firm if you have any questions regarding alternative forms of dispute resolution. All our lawyers are well versed in the practices, and we do have a Mediator and Arbitrator on staff as well.

Disclaimer :

February 28, 2019February 28, 2019

When can I get divorced?

For many people, the thought of having to go through a divorce is a traumatic and sad occasion. For others the relationship is so clearly over that the first question we get asked is ‘when can I get divorced already?’

The answer, in typical lawyer fashion, is “it depends.” In all likelihood, after one year of separation.

Before a court will grant a divorce it has to satisfy itself of two factors. That 1) there has been no collusion between the parties and, 2) that reasonable arrangements have been made for the support of any children of the marriage.

Ideally property division would also be addressed but if we are talking about the fastest time to get divorced, those are the two required elements.

Therefore, provided there has been no collusion between the married couple AND arrangements for any children have been made, the couple are able to divorce as soon as one of the grounds for divorce are established. Those grounds are:

That the parties have lived separate and apart for at least one year; or
One party has committed adultery; or
One party has treated the other spouse with physical or mental cruelty.

If adultery or physical/mental cruelty are established, the divorce could be completed as soon as arrangements for any children have been made. If there are no children of the marriage, the divorce could be granted immediately.

There is one difficulty with this approach, and it’s the reason that I say that in most cases the earliest the divorce can be granted is after one year of separation: the other party has to admit the adultery or their physical or mental cruelty.

Although it is a valid ground for a divorce, in the absence of an admission by the party who committed adultery, or subjected the other to physical or mental cruelty, the person bringing the divorce still has to prove their allegation. That may require a lengthy and costly court hearing that is unlikely to be concluded within a year.

Unless there are very good reasons why it’s important to have the divorce granted on the basis of adultery or physical/mental cruelty, in all likelihood, waiting for the one-year separation mark will still be the quickest option.

The divorce proceedings can still be commenced much sooner though. It’s just the application for the final divorce judgment that has to wait on that one-year mark. In fact, there are often many advantages to commencing the proceedings well in advance of one-year’s separation. It can take time to finalise issues of support and property division, and important discussions to try to finalise those matters can therefore take place in the meantime.

If you are looking to assess your options and discuss the possibility of starting separation proceedings, we can help you get some clarity.

Article by Paul Manning

Disclaimer :

January 31, 2019January 31, 2019

Costs in Family Law Disputes

As a starting point, in all types of litigation costs are generally awarded to the successful party. The goal is to compensate the party in the “right”, possibly to penalize the losing party (depending on their conduct), discourage needless litigation, and act as an incentive for early settlement. However, in family law “success” is often not black and white.

Types of Costs

Costs are always discretionary. The Court has the power to award or not award costs, and can choose the type of costs that are awarded.

The Court may order a lump sum amount, taxed costs, taxed costs on a particular column (often called “Schedule C Costs”), “solicitor-client costs”, or assessed costs.

Lump sum amount – no reference to Schedule C of the Rules of Court. For example, the Court may say “$500 in costs awarded to the Plaintiff.”
Taxed costs – the Court will choose an amount that may be a multiple, proportion, or fraction of an amount set out in any column in Schedule C. For example, “$150 in costs awarded to the Plaintiff, being half the amount awarded under 6(1) of Column 1 in Schedule C.”
Taxed costs on a particular column – the Court will specify a column to follow, for example, “Column 1 Schedule C costs awarded to the Plaintiff.”
Solicitor-client costs – the Court will order one party to pay all of the reasonable costs of the other party. These costs can be awarded with respect to a specific issue or part of an action. These types of costs are awarded in extremely rare circumstances.
Assessed costs – the Court will order that the parties attend with an assessment officer and will have costs assessed.

Reality of a Costs Award

We often hear client’s say “and he(she) can pay all of my costs because they are the one being difficult.” The truth is, often family files do not end up in Court, and it is rare that someone will volunteer to pay the other party’s costs.

When the file does end up in Court, absent of extreme misconduct by a party, Courts will often tell the clients to bear their own costs, or will make a costs award that is severely insufficient to the actual costs that were spent preparing for and attending Court.

Lost Wages, Travel Costs, Parking,
etc.

Courts will not include losses in income due to attendance at court or extra costs paid by either party in any costs award, unless they are true and approved disbursements.

Divided Success

Most commonly in family law cases, the outcomes are divided success. This is because Courts often focus on coming to a middle ground between parties. Their number one concern, when children are involved, is the best interest of the child(ren). Using this focus, a Court will often try to put an order in place that they may see the most fitting for the child, however, not in line with either the Applicant nor the Respondent’s proposal, therefore having no clear “successful party”.

Offers to Settle

Lawyers will often present opposing parties with offers to settle, or Calderbank offers (named after the 1975 case Calderbank v. Calderbank). These are offers that are provided to the other party prior to the Court date, with a reasonable time open for acceptance. If the result of the Court’s decision is as good as or better than the offer for the person who made the offer, the Court may choose to award enhanced costs to the successful party. This is done to encourage settlement prior to trial.

While I have tried to simplify costs and provide a brief overview, they are a very
complicated part of the process. If you have further questions on costs, or are
in need of any family law assistance or advice, please feel free to contact our
office at 403-981-0700 to schedule an appointment with one of our lawyers.

Article by Candace Wray

Disclaimer :

December 21, 2018December 20, 2018

A Puppy’s Christmas

Our blog post is coming out a few days early this month as we will be closed for the holidays from Monday December 24 to Wednesday January 2.

Law school has taught us that the appropriate thing to say at this point is the following:

“Please accept without obligation, express or implied, these best wishes for an environmentally safe, socially responsible, low stress, non addictive, and gender neutral celebration of the winter solstice holiday as practiced within the most enjoyable traditions of the religious persuasion of your choice (but with respect for the religious or secular persuasions and/or traditions of others, or for their choice not to practice religious or secular traditions at all) and further for a fiscally successful, personally fulfilling, and medically uncomplicated onset of the generally accepted calendar year (including, but not limited to, the Christian calendar, but not without due respect for the calendars of choice of other cultures). The preceding wishes are extended without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform, or sexual preference of the wishee(s).”

This is Cochrane though and we do things differently at Mountain Vista Law. So we’ll just settle for saying that, from all of us to all of you, we want to wish all our clients and their families a relaxing and enjoyable holiday season, and we’ll see you all in the New Year.

We are all big dog lovers here so for any puppy parents out there, we bring you “A Puppy’s Twelve Days of Christmas” by Elise Lewis.

On the first day of Christmas my puppy gave to me
The Santa topper from the Christmas tree.

On the second day of Christmas my puppy gave to me
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the third day of Christmas my puppy gave to me
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the fourth day of Christmas my puppy gave to me
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the fifth day of Christmas my puppy gave to me
Five chewed-up stockings
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the sixth day of Christmas my puppy gave to me
Six yards of soggy ribbon
Five chewed-up stockings
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the seventh day of Christmas my puppy gave to me
Seven scraps of wrapping paper
Six yards of soggy ribbon
Five chewed-up stockings
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the eighth day of Christmas my puppy gave to me
Eight tiny reindeer fragments
Seven scraps of wrapping paper
Six yards of soggy ribbon
Five chewed-up stockings
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the ninth day of Christmas my puppy gave to me
My wreath in nine pieces
Eight tiny reindeer fragments
Seven scraps of wrapping paper
Six yards of soggy ribbon
Five chewed-up stockings
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the tenth day of Christmas my puppy gave to me
Ten Christmas cards I shoulda mailed
My wreath in nine pieces
Eight tiny reindeer fragments
Seven scraps of wrapping paper
Six yards of soggy ribbon
Five chewed-up stockings
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the eleventh day of Christmas my puppy gave to me
Eleven unwrapped presents
Ten Christmas cards I shoulda mailed
My wreath in nine pieces
Eight tiny reindeer fragments
Seven scraps of wrapping paper
Six yards of soggy ribbon
Five chewed-up stockings
Four broken window candles
Three punctured ornaments
Two leaking bubble lights
And the Santa topper from the Christmas tree.

On the twelfth day of Christmas my puppy gave to me
A dozen puppy kisses

And I forgot about the other eleven days.

We’re sure all dog lovers can relate!

Disclaimer :

December 14, 2018December 13, 2018

Keeping sane during separation

It is common knowledge that the process of divorce and separation can be emotionally and mentally taxing on everyone involved, and that engaging in litigation can increase that stress and frustration exponentially. Taking steps to manage your mental health and well being during the legal process can help you remain level-headed and clear minded when negotiating with your ex-spouse, and can give you a head start on establishing new routines and positive habits once the litigation is over.

There are, however, a variety of mental health professionals offering services that may benefit you, and which type of service you choose may depend on the specific circumstances of your divorce or separation.

Life/Divorce Coaching

Despite maintaining a somewhat “bohemian” reputation, life coaching or divorce coaching is gaining traction as a method of working through the mundane mental and emotional exhaustion that comes with the process of divorce and separation. The theory of coaching is that, regardless of what your current life circumstances are, the day you begin coaching will be considered “Ground Zero” and you will only work on moving forward.

Given the lack of regulation over the coaching industry, individuals should be cautious and do thorough research before hiring a coach. However, if you are able to find a coach that you trust and connect with, this process may be beneficial for those who are not otherwise suffering from any mental health concerns, but who are just looking to make a fresh start after a divorce or separation, or who are seeking support and guidance through the legal process.

Counselling/Therapy

With more training than coaches, counsellors and other therapists are more suited to assisting a broader range of individuals and issues. The Canadian Counselling and Psychotherapy Association notes that counselling is principally concerned with helping individuals “resolve specific problems, make decisions, cope with crises, develop personal insights and knowledge, work through feelings of inner conflict, or improve relationships with others.”

Whether you attend with a licensed counsellor, psychotherapist, or psychologist, therapy may be beneficial for those who are struggling with depression, anxiety, or other emotional burdens, such as betrayal or anger, that you believe may be clouding your ability to effectively negotiate with your former spouse. Depending on the age of your children, parents may also benefit from attending at family counselling in order to ease the mental and emotional burden on all members of the family.

Risk Assessment

Conducted by a registered psychologist or psychiatrist with specialized training, a Risk Assessment is a formal process generally ordered by the courts for individuals that present one or more risk factors with respect to parenting. These risk factors can include, but are not limited to, drug and alcohol addiction, criminal convictions involving violence, a history of domestic violence (often articulated through Emergency Protection Orders or other No Contact Orders), mental health concerns, and other concerns, including issues related to sexual abuse or violence.

If any of these concerns have arisen in the course of your divorce or separation proceedings, you do not need to wait until a court orders you to undergo a Risk Assessment before seeking the professional advice or assistance of a psychologist or psychiatrist. Formal assessments are often only ordered in severe cases, but those who are struggling with addictions, mental health crises, or who have a history of violent behaviour may benefit (both personally and in court) from taking proactive steps to improve their mental health and wellbeing.

If you are confused about which style of services may be the best for you, your lawyer may be able to provide you with a recommendation or even a referral. Although some clients are concerned about the stigma associated with seeking out mental health resources, being clear-minded and having the proper support systems in place will enable you to provide your lawyer with better instructions and to traverse the legal process with greater clarity and less emotional stress.

Article by Staci Smith

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