Polyamory: the Blind Spot of Family Law

Family lawyers are increasingly encountering a certain category of relationships that appear to be unaccounted for in law. Polyamory is a relationship which is not confined to two partners, but rather can vary in terms of scope, commitment, and permanence. The number of possible arrangements are numerous, and can range from a simple, closed triangle of three partners, to a complex, fluid web of relationships that shift and vary in seriousness. While many engaged in polyamorous relationships tend not to bother putting it on the legal books, interesting challenges can arise when partners to such an arrangement decide to seek legal officiality. Matters can also be complicated if one or more children result from a polyamorous relationship. Although little data exists, it is estimated that roughly 1 in 500 in the United States identify as polyamorous, but this contrasts with the number of family lawyers that have encountered polyamory in their professional field: between one third and a quarter, which may indicate that demand for legal services in this unique field are particularly high.

The Gap in Legal Coverage

If both of these aforementioned figures are accurate, then this discrepancy indicates that a shortage of legal services exist specializing in the kind of family law that would meet the needs of this demographic engaged in a diverse range of relationships. This unmet legal need runs the risk of allowing Canadians to fall through the cracks of family law. Despite being few in number currently, approximately four-fifths of Canadians recognize that this number is growing, and a similar proportion agree that polyamory is becoming more publicly acceptable, which means that this service gap will only grow wider as time goes on unless more family lawyers begin to recognize the business opportunity it represents.

Above: several common kinds of polyamorous relationship configurations.

The Intricacies of Polyamory in Family Law

The complexities of polyamorous legal needs are dizzying. Imagine, for example, an open ‘triad’ type relationship where at the centre lie three partners all committed to each other, though each is free to pursue other relationships of varying seriousness. In such an arrangement, how are benefits to be determined? How is annual income tax to be calculated? In the writing of wills, how will an executor be agreed upon? If a child is born to the triad, as was the case in C.C. (Re) 2018 NLSC 71, who can be considered its parents? In many provinces, the possibility of a child having more than two parents is not considered at all. Lastly, if a separation occurs, how much and to whom shall child support be paid, if applicable? Not to mention the tangle of determining what percentage of custody each parent bears. The ability of the legal profession to answer these questions undoubtedly will rely on no small degree of creativity and fresh interpretations of old laws. Regardless of what enfolds in the Canadian court context in this niche field, it is bound to be interesting.

 

If you or someone you know is in need of assistance navigating family, estate, or another kind of law in Edmonton (or if you’re a lawyer with experience in these fields), don’t hesitate; register today with Right Legal!

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Changes Coming for Common-Law Couples in Alberta

Changes may soon be coming to Alberta’s legal framework surrounding common-law couples and how their assets are divided during separation, according to a new piece of tabled legislation titled the Family Statutes Amendment Act, 2018, which was first revealed on November 21st this year. The piece of legislation seeks to fill a gap in family law, chiefly how property division is to be handled following the breakdown of a common-law relationship. We last covered changes of separation laws in September, when the introduction of the Divorce Act (Bill C-78) shifted the focus of divorce proceedings to the well-being of any children caught in the middle and challenged ‘custody’ as a blanket term.

Common-Law Under the Current Framework

Whether a non-marital adult relationship is considered common-law or not depends on the province in question. In Alberta, a relationship becomes common-law under three circumstances, under which adult partners:

• Live together for three years
• Live together and have a child
• Decide to enter into an interdependent relationship

 

Under the current legal framework, while there are automatic property division mechanism for formally married couples seeking divorce, these provisions are not automatic for common law separations. While there is nothing legally preventing either party from seeking some form of asset division in court, finances are often tight during a separation. This is true for both married and common-law couples. Additionally, child-support ends automatically once a dependent turns 18 years of age, even if the dependent is disabled either mentally or physically in a manner that renders them reliant on their primary caregiver. Extending support for dependents in this situation cannot be done and any division of assets must be performed expensively through independent litigation. Although the rights enjoyed by married and common-law couples are similar, they are not the same in these regards, leaving common-law couples at a disadvantage.

Changes Under Proposed Legislation

The Family Statutes Amendment Act, would repeal and replace the nearly hundred-year-old Married Woman’s Act, which was passed in 1922. This antique law was the original Act which enabled women to sign contracts and own property, provisions which have since been made redundant by newer laws. The intent of the introduced legislation is to ameliorate the gap between the rights extended to married and common-law couples, which it seeks to improve by applying the same property rules to both types of separation and permitting caregivers to apply for support for adult dependents with illnesses or disabilities. In the case of dividing assets, provisions contained within the Matrimonial Property Act pertaining to the division of property would be extended equally to common-law partners undergoing separation. More specifically, this means that property gained during the relationship would be divided equally. This does not apply to property owned or acquired prior to becoming common-law. If passed, these changes are to take effect January 1st, 2020, to allow Albertans time to acquaint themselves with the legal changes.

If you or someone you know are in need of legal representation for a divorce, or is simply in need of independent legal advice for family law, don’t hesitate, contact Right Legal today to find the right lawyer for you.

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Cannabis is now legal in Canada! What’s still illegal? (Part IV)

Things that are still criminal after the legalization of cannabis in Canada

As of October 17th, 2019, Bill C-45 (Also known as the Cannabis Act) came into effect, legalizing the recreation sale and use of cannabis products in Canada. Indeed, Canada is now the largest legal marketplace for cannabis in the world! That being said, there are still plenty of things surrounding cannabis use in Canada that are still illegal.

From our article last week, we continue to explore things related to cannabis that are still illegal in Canada:

Sale of cannabis products without a licence.

Not just anyone can sell cannabis products – only those with authorization in the form of a provincial/territorial licence may do so. These are not easy to obtain and are tightly regulated. That being said, it’s perfectly legal to share your cannabis products free of charge. You’re allowed to give away up to 30 grams of dried cannabis at a time to another adult. The interpretation of this restriction gets a little fuzzy though when it comes to delineating ‘selling’ and ‘distributing’. Say you’re at a legal cannabis store and want to buy some cannabis for a friend – you’re certainly allowed to give it to that friend free of charge (so long as they are an adult and the total amount of dried cannabis is under 30 grams), but are they allowed to pay you back for it? Even though you are not making a profit from the transaction, the law is unclear on this.

Distributing cannabis through the mail.

If you’d like to legally give away some cannabis to a friend, make sure to do it in person. It’s currently illegal to send cannabis by mail without a special permit to do so.

Distributing cannabis to an organization.

While you can certainly give away cannabis to individuals (within legal limits), organizations may not purchase or possess cannabis without a licence.

*If you’re in need of a Criminal Lawyer in Edmonton, click here.

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Cannabis is now legal in Canada! What’s still illegal? (Part III)

Things that are still criminal after the legalization of cannabis in Canada

As of October 17th, 2019, Bill C-45 (Also known as the Cannabis Act) came into effect, legalizing the recreation sale and use of cannabis products in Canada. Indeed, Canada is now the largest legal marketplace for cannabis in the world! That being said, there are still plenty of things surrounding cannabis use in Canada that are still illegal.

Continuing from our previous article, we explore several things related to cannabis that are still illegal in Canada:

Distribution of Cannabis to minors.

Careful who you pass that joint to! It is still illegal to provide cannabis products to those under the provincial/territorial age of majority (18 in Alberta and Quebec, 19 in all other provinces and territories. Note that this says ‘provide’ and not ‘sell’. If you’re of the minimum age of majority and share cannabis products with a younger friends, you could face criminal charges punishable by up to 14 years in prison! Minors found carrying less than 5 grams of dried cannabis will not be criminally charged, but will be subject to seizure of the cannabis, notification of their parents/guardians, and could face penalties similar to underage possession of alcohol or tobacco.

Driving with a blood THC content greater than 2ng/ml

You may have seen signs posted recently that read “drunk or, same rules apply” That’s because, much like restrictions on alcohol consumption while operating a vehicle in an effort to stop drunk driving, there are new laws specifically addressing blood THC content restrictions to curb those that might be driving while high. If you’re caught driving with a blood THC content greater than 2ng/ml, you could be charged with impaired driving – now considered a ‘serious criminal offense’ in Canada with the passing of Bill C-46. Click here to read more about these new laws regarding cannabis use and driving in one of our earlier series of articles.

*If you’re in need of a Criminal Lawyer in Edmonton, click here.

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Using cannabis and driving? Learn more about Bill C-46 (Part III)

Where there’s smoke there’s uncertainty: Details of Bill C-46

Today, as a continuation of our last article, we conclude our series on the legislation introduced by Bill C-46 with a discussion on the currently approved testing equipment.

The recently passed Bill C-46 amends laws in the Canadian Criminal Code pertaining to impaired driving offenses, in response to the upcoming legalization of Cannabis in a few weeks. The federal laws Bill C-46 amends will come into effect this December, but many lawyers have raised concerns that this overhaul of impaired driving laws may in fact be unconstitutional in that it opens up a real possibility of criminal charges being laid on sober drivers.

In this series of articles, we explored some of the issues Bill C-46 creates that you ought to be aware of.

Problems with actually measuring THC roadside.

Unlike testing for a driver’s blood alcohol content by using a breathalyzer roadside, driver’s blood THC levels will be measured with a saliva sample via a mouth swab. The most recent device for analyzing saliva samples that has been approved is the “Drager DrugTest 5000”. This equipment will be made available to local authorities all over the country, but local police forces will ultimately decide on what equipment they wish to use.

Although these saliva-screening devices have proven to be accurate and effective in the lab, they do have a fairly large problem when used roadside: they are likely to register false-positives when they get cold.

The optimal working temperature range for the Drager DrugTest 5000 is 4-40°C. While this isn’t a huge concern in more temperate parts of the country, this could prove to be an issue during our famously long and cold Canadian winters – especially in the prairie provinces and territories. This opens up the possibility that sober drivers who have never consumed cannabis products could face criminal charges if testing temperature conditions fall outside this range.

Furthermore, as we mentioned in our first article of this series, there is no scientifically agreed upon blood THC level to definitively indicate impairment. As such, these devices only quantify a certain metabolite produced by the body’s breakdown of THC to accurately estimate  blood THC levels – not actual impairment. In a statement released with the draft of the legislation Bill C-46 introduces, Ottawa indicated that the low level offense of having a THC blood concentration of 2-4ng/mL, was not created as a means to link a driver to impairment, but rather as a “precautionary or crime prevention approach”.

*If you’re looking for a criminal lawyer in Edmonton, click here.

*If you’ve been charged with a DUI and need a lawyer in Edmonton, click here.

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Using cannabis and driving? Learn more about Bill C-46 (Part II)

Where there’s smoke there’s uncertainty: Details of Bill C-46

In our last article, we started exploring certain issues with the recently passed Bill C-46, which makes amendments to laws in the Canadian Criminal Code pertaining to impaired driving offenses, in response to the upcoming legalization of Cannabis in a few weeks.

The federal laws Bill C-46 outlines will come into effect this December, but many lawyers are now raising concerns that its amendments may be unconstitutional. Furthermore, many are worried that Bill C-46 opens up the real possibility of criminal charges being laid on sober drivers.

In this series of articles, we explore issues Bill C-46 creates that you ought to be aware of.

Increased powers for police.

Beyond just addressing specific concerns regarding cannabis use and impaired driving, amendments within Bill C-46 provide a blanket increase to police powers. As the law currently stands, police may stop any driver to ensure they are sober. If police have ‘reasonable suspicion’ that a driver is impaired, they may demand a driver submit to a roadside breathalyzer test to determine approximate blood alcohol content. The standard for ‘reasonable suspicion’ is fairly low and may be met with any of the following:

• Erratic or unsafe driving
• Open alcohol containers within the vehicle
• Detection of the odour of alcohol on a driver’s breath
• Bloodshot eyes
• Slurring of speech and other altered behaviors
• A driver’s admission to drinking alcohol

These indications are fairly easy to spot – even by a lay-person, let alone a trained and experienced police officer. Bill C-46 expands these police powers in that ‘reasonable suspicion’ is no longer required. As of December 18th, 2018, police officers across Canada will be able to stop any driver and demand they submit to roadside testing for impairment.

Lawyers are now questioning the implications of this increase in unrestricted police power. Many argue that the current ‘reasonable suspicion’ standard is flexible and effective. Allowing police to demand samples from anyone without any cause for suspicion opens doors for discrimination (such as racial profiling).

Furthermore, protection from ‘unreasonable search and seizure’ is outlined in the Canadian Charter of Rights and Freedoms. As such, some are now arguing that the amendments in Bill C-46 that remove this ‘reasonable suspicion’ standard (effectively granting police powers to compel a sample from anyone for no reason whatsoever) are outright unconstitutional. In essence, Bill C-46 removes the right to refuse to comply to a police demand that a person produce a sample of either their breath or saliva. Frustrated or rushed sober drivers ignorant of this could, as a result, face criminal charges.

*If you’re looking for a criminal lawyer in Edmonton, click here.

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