Travelling With Your Children After Separation

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As the summer nears many parents are beginning to plan summer vacations with their school aged children. If you are a parent who is separated from your child’s other parent and you are planning to travel with your child outside of Canada some additional planning (and documentation) is required before you leave on vacation.

Foreign Affairs Canada strongly recommends that children travelling abroad carry a notarized Travel Consent Letter from every person who has the legal right to make major decisions on a minor child’s behalf if one or more of those persons is not accompanying the child on the trip. For example, if a minor child is travelling abroad by themselves, with only one parent, or with a group or club under another adult’s supervision a notarized Travel Consent Letter is highly recommended.

Without a notarized Travel Consent Letter your child may be prevented by customs and border officials from leaving Canada or from entering a foreign country.

If you are a parent who will be travelling alone with your minor child outside of Canada it is important you plan ahead. Sample Travel Consent Letters are available from Foreign Affairs Canada and can be easily completed by a child’s legal guardians and parents. It is also important that your child’s Travel Consent Letter be notarized by a lawyer or notary public.

Should you require assistance the Walsh LLP Family Law Group is able to assist parents with the notarization of Travel Consent Letters and has extensive experience advising individuals on a wide range of family law matters that arise upon separation and divorce.

Planning For Marriage: Do I Need a Pre-Nuptial Agreement?

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As the date of your wedding nears there are likely many things on your mind – venues, dresses, the cake, the band – but it is also important during this busy time to consider whether you and your partner need to discuss and make plans concerning your individual or joint assets and debts before you marry.

Pre-Nuptial Agreements are becoming increasingly common as parties recognize that a Pre-Nuptial Agreement can be a flexible planning document that can achieve many purposes and provide certainty and security to both parties. A Pre-Nuptial Agreement can do many thing such as:

• Establish each party’s property, assets and debts before the marriage
• Outline how the parties intend to share their assets and property during the marriage
• Provide for dependants and children of previous relationships
• Protect corporate and company assets
• Set out how property division and support matters will be addressed in the event of separation or divorce

As a Pre-Nuptial Agreement sets out each person’s entitlement to and responsibility for assets accumulated and debts incurred during the marriage it is important that each person receive legal advice from a lawyer before entering into a Pre-Nuptial Agreement. This ensures that each person fully understands their legal rights and responsibilities and the effect of the Pre-Nuptial Agreement they are entering into, as well as ensuring that the Agreement is legally enforceable.

If you and your partner are considering entering into a Pre-Nuptial Agreement we would encourage you to speak with a member of Walsh LLP’s Family Law Group whom have extensive experience advising individuals on a wide range of topics and important considerations that arise prior to and upon marriage.

Mandatory Retirement and Employment: Must I Retire At 65?

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There is no law in Canada that says you must retire at the age of 65. Why? Because courts and Human Rights Tribunals have adopted the position that to permit employers to impose mandatory retirement, which is solely based on age, is discrimination.

Pursuant to the Alberta Human Rights Act, it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation. These are known as the enumerated grounds of discrimination. Age explicitly being one of them. As such, the Alberta Human Rights Act further states that no employer shall refuse to employ or refuse to continue to employee any person based on age or any other enumerated ground. Mandatory retirement at the age of 65 is considered to be a refusal to employ an employee based on age. Age discrimination may also apply to other aspects of ones conditions of employment such as, but not limited to, salary, duties, training or opportunity for promotions.

However, as is the case with many legal issues, there is an exception to this rule. The Alberta Human Rights Act states that a breach of one’s human rights shall be deemed not to have occurred if the breach was reasonable and justifiable in the circumstances. Courts have found that mandatory retirement is justifiable if mandatory retirement is based on a bona fide occupational requirement. The bona fide occupational requirement test is a threefold test, which is generally justified in positions that are safety sensitive, such as firefighters, police officers and bus drivers.

Whether or not a mandatory retirement policy is discriminatory or justified (from either the perspective of an employee or employer), must be determined on a case by case basis taking into account the merits and unique circumstances of each independent matter.

For assistance or additional information on mandatory retirement and its applicability to your specific circumstances, please contact Joshua D. Sutherland and Walsh LLP directly at 403-267-8400, via our toll free number 800-304-3574, or by e-mail (ac.walhslaw@dnalrehtusj).

Former Executive Sues AHS for Breach of Employment Contract

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Statement of claim alleges AHS and health minister conspired against executive

A former health executive is suing the Minister of Health Fred Horne and Alberta Health Services for breach of employment contract, defamation and loss of income, according to the Edmonton Journal. The executive is seeking damages of more than $5.5 million, claiming the health minister and AHS conspired to make the executive a scapegoat for other government expense scandals that were occurring at the time.

Executive accused of misusing expense account

The executive, who was hired as the chief financial officer of the AHS in May 2012 saw his employment terminated on August 1 of that same year. The termination came about just as information was coming to light about his time as an executive with the Capital Health Authority in 2005-08.

That information showed that the executive claimed approximately $350,000 in expenses while with the Capital Health Authority. The expenses, which included expensive meals, car upgrades, and car washes, created a controversy in the media at the time.

The executive claims that the AHS initially told him that they would continue to support him in his role as chief financial officer and that the two parties were working on a public relations plan to combat the negative publicity. However, according to the executive, the AHS was conspiring with Horne to fire him in order to make him a scapegoat for other government scandals.

Lawsuit claims irreparable harm

The executive claims that ever since the termination of his contract his reputation has suffered irreparable harm and that the prospects of him being re-employed at a senior executive level in Canada have been extremely damaged. The executive is also seeking to overturn AHS’s previous decision to withhold his severance pay.

The executive has always claimed that the expense claims were legitimate and followed the rules set down at the time by Capital Health. Furthermore, a legal opinion previously submitted to Horne said that the AHS would be unlikely to succeed if it sued the executive to get back the expenses that were claimed.

Horne and the AHS refused to comment on the lawsuit and a statement of defence has yet to be submitted.

Dealing with employment disputes

The above case shows just how important it is for businesses and corporations to deal with employment disputes quickly and effectively. Any company accused of breach of employment contract, or a company that is dealing with other legal matters surrounding business and corporate law, needs to make sure they have qualified legal counsel on hand at all times. A business and corporate law firm can provide the expertise a company needs when dealing with complicated legal issues and will work closely with the company to make sure that any outstanding concerns are resolved satisfactorily.

Human Rights Case Involving Discriminatory Employment Conduct Nears End

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The Court of Appeal of Alberta recently issued a judgment in a human rights case, Walsh v. Mobil Oil Canada, involving gender-based discrimination in employment. The legal dispute, which has resulted in several judgments of courts and a Tribunal over the past 22 years, is finally nearing its conclusion.

In its judgment, the court expressed full agreement with the lower court’s findings of discriminatory and retaliatory conduct by a large oil company against a female employee. In addition to ruling on the employment-related issues, the judges also indicated concern about the delays in the processing of the complaint by the Alberta Human Rights Commission.

Human rights complaint pits female employee against oil company

The female employee’s original human rights complaint in 1991 involved her allegation that the company was treating her differently because of her gender. The Court of Appeal’s case judgment indicates that she received several promotions and eventually achieved her objective of becoming a “land representative,” but states that she was treated differently than the men occupying the same position. The judges assert that “she was underpaid, under recognized and overly criticized as a result of gender bias.”

However, four years after receiving the employee’s discrimination complaint, the Alberta Human Rights Commission (known as the “Tribunal”) dismissed it. After the oil company terminated the woman’s employment, she filed another human rights complaint, alleging that the company had retaliated against her because of her original complaint. Ten years later, the Tribunal dismissed that complaint also.

Ultimately both the Alberta Court of Queen’s Bench and the Court of Appeal “vindicated” the female employee by overturning the Tribunal’s decisions. The issues before the Court of Appeal in the most recent judgment concerned the size of the former female employee’s monetary awards.

Parties in the case and legal observers frustrated by the tardiness of the legal process

A blog authored by the Faculty of Law at the University of Calgary expresses frustration at the slowness of the legal process in this matter. The author also comments negatively on the performance of the Alberta Human Rights Commission, calling the case “an extreme example of some of the criticisms of Alberta’s human rights system.”

Despite the recently concluded appeal to the Court of Appeal, the judges indicate that both parties in the case want the legal process to end. The only issues remaining involve legal costs.

This case illustrates – in an extreme fashion – the special difficulties presented by human rights complaints involving corporate conduct. Any company that is notified of such a complaint should engage counsel with extensive experience in the relevant area of law. This expertise can prove invaluable in the handling of cases stemming from human rights law.

What Effect Does Marriage Have on a Will and Inheritance?

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Alberta law generally affords surviving spouses extra rights as beneficiaries

When a spouse passes away, the pain endured by a surviving spouse or common-law partner can be immense. The last thing on most surviving spouses’ minds is inheritance, but it is nonetheless important for spouses to understand what rights they have as beneficiaries. Alberta’s Wills and Succession Act (WSA) came into force three years ago and significantly strengthens the rights of surviving spouses as beneficiaries.

The WSA grants a surviving spouse who is not a registered owner of the matrimonial home possession of the home for a period of 90 days. This period can be shortened or lengthened upon application to the Court.

The WSA also contains provisions that allow a surviving spouse (in addition to other family members) to make an application for further maintenance and support if adequate provision is not made in the Will.

Divorce and ex-spouses

Changes from the WSA include the effects of divorce or marriage on a preexisting will. An important change under the WSA is that getting married does not revoke the pre-existing will.

Conversely, under the WSA, when certain conditions are met, divorce or separation from a common-law spouse revokes gifts made by the deceased to an ex-spouse if the individual dies without updating their will. It should be noted, however, that the WSA does not remove ex-spouses as beneficiaries from some insurance policies, financial accounts or investments.

These changes underscore the importance of updating your will when significant changes occur in your life, including marriage or divorce.

Dying without a will

An important concern for surviving spouses is when a husband or wife passes away without having a valid will (otherwise called “intestacy”).

Under the WSA, the surviving spouse receives the entire estate if the deceased leaves no descendants or if all surviving descendants are the children of both the deceased and the surviving spouse. If the deceased has descendants who are children from a previous relationship, then the surviving spouse receives either $150,000 or 50% of the estate, whichever amount is greater. The remainder of the estate is divided among the deceased’s descendants (ie: children, grandchildren, and great-grandchildren).

Help with wills and estate issues

Dealing with complicated and sensitive issues raised by an inheritance can be difficult for many people, especially for those who are grieving for the loss of a loved one. As experienced wills and estates lawyers, we can help surviving spouses and other potential beneficiaries understand their rights and thus provide guidance and expert advice during this otherwise difficult time.

Planning Ahead For Your Winter Vacation: Wills & Estates Edition

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The air is chilly, the snow is falling, and Calgarians are planning their winter getaways.

Impending trips and plane rides are natural catalysts that get clients thinking about Estate Planning.

What is Estate Planning? Among other things, it includes preparing documents that set out your wishes in matters relating to health care and financial decisions, in the event you are unable to make decisions on your own, as well as your wishes regarding the distribution of your property when you pass away.

The Personal Directive (a document relating to your health care decisions) and the Enduring Power of Attorney (a document relating to your financial decisions) take effect while you are still alive but are unable to make your own decisions. If you are going to live abroad for a period of time and want to allow someone else to take care of your finances while you are away, you can also prepare an Immediate Power of Attorney, appointing your spouse, parents or siblings to pay your bills for the specific situations/periods of time set out in that document.

A Will sets out your final wishes relating to the distribution of your property, which is especially important if you have dependants (such as a spouse or minor children), want to make specific bequests, or own your own business and require succession planning. A Will ensures that your final wishes are spelled out and administered accordingly.

While Estate Planning documents are a good ‘to do’ on your vacation planning checklist, don’t wait until you’re counting the days to your departure – on top of all other vacation arrangements you’ll be making, you’ll be in a rush to get the documents in order and may miss some important ‘big picture’ planning. You’ll also be looking at increased legal costs for expediting your documents. Rather, set some time aside and go through the ‘what if’ questions with your spouse and other family members, without the pressure of a departure date looming.

Our Wills & Estates Questionnaires can help to serve as a springboard for discussions and our Wills & Estates Group can assist you with understanding the new Wills & Succession Act and the preparation of these documents. Contact our Wills & Estates Group for further information or to book an appointment to discuss your Estate Planning needs.

Arbitration in Construction Disputes

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There is rarely a construction project that is free from some type of dispute, whether it is workmanship issues, deficiencies, delay claims or simply getting paid for the work that is done. Traditionally, when parties are unable to sort through these items, the recourse has been to the courts. While courts are good at resolving disputes generally and have all the tools at its disposal to move parties along to an eventual trial, the court process can also be cumbersome, time consuming and costly. Judges understand the law, but they don’t always understand the intricacies of a construction project or have the expertise and background to come to the best decision. For these reasons, parties involved in construction projects are resorting more and more to arbitration. Arbitration clauses are common in construction industry contracts (such as CCDC 2) and are often incorporated into sub-contracts through reference to the head contract.

Arbitration is essentially private court with the arbitrator being the decision maker instead of a judge. Arbitration can have many advantages. Given that the arbitration is between parties, it is more private in nature. There is no open court and company documents and pleadings are not made public as they are in the court process. Depending on how detailed the arbitration clause in the contract is the parties have a lot of flexibility in determining how the arbitration will run, what rules will apply and how the arbitrator will be appointed. The process is limited only by the overarching requirement that the parties must be treated fairly and have a fair opportunity to present their case. When a contract doesn’t specify the number of arbitrators, the default position is that there will be one arbitrator. The parties can select an arbitrator who has the requisite expertise in handling the issues of the dispute. If the parties cannot agree on an arbitrator there are also methods to have an arbitrator appointed.

The court process can have multiple steps and applications before something ever makes it to trial. In contrast, arbitrations are usually heard relatively quickly with timelines agreed to by the parties and set by the arbitrator. Since the parties pay the arbitrator directly, the arbitrator(s) will usually release their decision quickly. Arbitrators have virtually all the powers of a court and their decisions are binding on the parties. Once the decision is released, it can be filed at the Court and becomes a judgment that can be enforced in the regular fashion.

Like any dispute resolution method, arbitration can also have its downside, depending on the precise matter in dispute. The provincial court of Alberta now is able to manage disputes up to $50,000. If the likely dispute is under this amount, the provincial court may still be a more cost effective method of resolution. In addition, the court process makes it easier to involve 3^rd parties who may be liable but who may not be bound by an arbitration clause. Arbitration can also complicate builder’s liens issues or require that the lien action be stayed until the arbitration decision is reached.

In many construction disputes, arbitration is preferable to litigation. Generally, on large projects owners and general contractors have detailed dispute resolution clauses including mediation and arbitration. Sometimes as the chain of contracts moves down from contract to sub-contracts and sub-sub-contracts and suppliers those parties either do not have a contract at all or they have not turned their minds to the benefits of arbitration for resolving disputes. It behooves every party working on a construction project to turn their mind to how disputes will be resolved. Failure to do so can be costly or leave the balance of power in the hands of the party with the greater resources.

Should you wish to discuss how arbitration clauses can be of benefit to your contracts, lawyers at Walsh LLP have the expertise in drafting model dispute resolution clauses and can assist you should recourse to arbitration become necessary.

The Advantages of Incorporating Your Business

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If you are a self-employed person operating your own small business or an independent contractor, there are many advantages of incorporation, including the following:

1. Limited Liability

The primary reason that self-employed individuals choose to incorporate their business is to limit their personal liability in connection with that business to their investment. By conducting business through a corporation, a distinct legal entity, individuals are able to separate their business assets, by way of shareholdings, from their personal assets.

2. Tax Optimization

Canadian tax legislation provides a small business deduction on the taxes payable on the first $500,000 of active business income earned in Canada of a Canadian controlled private corporation. If distribution of the income to shareholders is deferred, this deduction allows the corporation to retain a greater amount to invest back into the corporation. Income can also be distributed to family members in lower tax brackets as dividends resulting in tax savings for your family.

3. Succession Planning

As a corporation is a distinct legal entity, it has a perpetual existence. Therefore, rather than ceasing to exist when the shareholders become deceased, corporations continue. For this reason a corporation is a tool used for succession planning as a practical and seamless method of passing a business from one generation to the next or from one owner to another.

4. Raising Capital

Issuing shares to investors is a convenient way to raise money for your business while maintaining control of your corporation.

5. Credibility

Individuals and corporations often prefer to do business with corporations as there is a perception that corporations are more stable than other business entities.

If you are interested in learning more about incorporating your business, the Walsh LLP Business and Corporate Group is able to provide more information, ideas on how to best structure your corporation, and general advice on operating your business.

Which Privacy Law May Apply To Your Organisation?

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Privacy is a complex area of the law with growing importance in the lives of Albertans. Determining which legislation applies to a particular organization can involve complex legal questions.

Many business organisations and small business owners are uncertain about what ‘privacy law’ involves and what they must do to comply with it. This confusion is not surprising, because there are four different privacy laws that apply in Alberta:

• The Personal Information Protection and Electronic Documents Act (PIPEDA);
• The Privacy Act;
• The Personal Information Protection Act (PIPA); and
• The Freedom of Information and Protection of Privacy Act (FOIPP).

Each of these privacy laws applies to a different category of organisations collecting or possessing information:

• PIPEDA applies to federally-regulated private organisations.
• PIPA applies to provincial private organisations.
• FOIPP applies to provincial government organisations. None of these statutes apply to private individuals gathering and using information for personal or domestic purposes.
• The Privacy Act applies to federal government organisations.

In general, private businesses are regulated by either PIPA or PIPEDA.

Both PIPA and PIPEDA regulate the collection, use, and disclosure of personal information about individuals. In most cases, the laws require consent from the person whose information is being gathered or used. In a business context, “personal information” often means information about customers or information about employees. However, these laws may govern other kinds of information, because they apply to other types of information used in connection with a business activity.

If you are unsure which law governs your business, and how those laws affect your business practices, Walsh LLP’s Business Law and Corporate Law group would be happy to assist you. If you have questions or concerns about your rights or obligations under privacy law, please contact us.