Cases considered: L.L.S. v. W.M.C., 2009 ABQB 527

PDF version: What Counts as “Sexual Abuse” under the Protection Against Family Violence Act?

Justice Donald Lee has written another decision dealing with a definitional issue under the Protection Against Family Violence Act, R.S.A. 2000, c.P-27 (PAFVA). In L.L.S. v. W.M.C., 2009 ABQB 527, Justice Lee had to consider whether to confirm an Emergency Protection Order (EPO) constraining a father’s access to his children because the father was watching pornography and openly engaging in sexual behaviours in the presence of his children. Unfortunately, Justice Lee concluded that this behaviour did not amount to “sexual abuse” without endeavouring to define the term. Further, the case highlights concerns about the interplay between child welfare legislation, custody and access laws and the PAFVA.

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Cases Considered: D.W.H. v. D.J.R., 2009 ABQB 438

PDF Version: Gay fathers not seen as a parental unit under the Family Law Act

The law is still unclear when dealing with gay and lesbian parental units. These families slip through the gaps in legislation and under the Family Law Act, S.A. 2003, c. F-4.5. This case demonstrates some of the legal gaps that affect children and their gay, lesbian and bisexual parents.

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Cases Considered:  J.S. v. D.J.K., 2009 ABQB 426.

PDV Version: A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Justice Donald Lee is a prolific author of judgments posted to the Alberta Courts website, and one of the only Alberta judges to post decisions made under the Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) (see my earlier post Family Violence Cases in Alberta: A Snapshot). In one of his recent decisions, Justice Lee helpfully clarifies the evidentiary requirements for hearings to confirm emergency protection orders made under the PAFVA.

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Cases considered: Alberta (Child, Youth and Family Enhancement, Director) v. Q.F., 2008 ABQB
PDF Version:  Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

It is always interesting to see a court sending a message to the government about the difficulties presented by a particular piece of legislation. In constitutional law, the dialogue metaphor has been used (and some would say overused) to describe this process of back and forth between the courts and legislatures (see Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75). Outside the constitutional law context, however, legislatures are not forced to listen and respond, as the remedial implications of striking down a piece of legislation, or severing certain sections as unconstitutional, are absent. Courts might thus need to repeat themselves before the legislature takes notice of non-constitutional problems with a statute, as we see in a recent child welfare case in Alberta.

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Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 188

PDF Version: Disinterment of RCMP Officer may proceed despite parents’ wishes

In a previous post, I reviewed a number of decisions of the Alberta courts relating to the disinterment of Constable Leo Johnston, one of four RCMP officers killed near Mayerthorpe, Alberta in March 2005. The Johnston case involves a public death, and an ensuing private dispute now playing itself out in a very public way.

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Cases Considered: Nielson v. Paumier Estate, 2008 ABCA 159

PDF Version:  Do Common-Law Spouses have Dower Rights?

Strictly speaking, Mr. Justice Jack Watson’s decision in Nielsen v. Paumier Estate is simply a decision denying an application to restore an appeal to the Court of Appeal’s hearing list. However, the factual and legal context of the application is both tragic and complex. It includes at least twelve court orders since 2003 dealing with the sale of one house in Edmonton. The real legal issue in the last few judgments, including this one by Mr. Justice Watson, was said to be whether or not Paul Nielsen’s consent to the sale of the house owned by Michele Paumier could be dispensed with under the provisions of the Dower Act, R.S.A. 2000, c. D-15. However, given that Nielsen is described as Paumier’s “common-law spouse,” is it not questionable whether Nielsen even has dower rights?

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Cases Considered: Toliver v. Koepke, 2008 ABQB 37

PDF Version: Counsel Shall Not Bear Witness: Clarifying the Obligation of Counsel to Withdraw When Required to be a Witness

During divorce litigation the Plaintiff and Defendant disputed the existence of a settlement respecting distribution of matrimonial property. The dispute was directed for trial by Justice Moreau of the Alberta Court of Queen’s Bench, at which point counsel for the Defendant (who was newly appointed and therefore had not been involved in discussions related to the settlement) brought an application to remove counsel for the Plaintiff. The application was brought on the grounds that Plaintiff’s counsel was a potential witness at the trial of the settlement issue. Justice Eric Macklin of the Court of Queen’s Bench granted the application.

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Cases Considered: Flock v. Flock, 2007 ABCA 287, Flock v. Flock, 2007 ABQB 307

Keywords: arbitration, matrimonial property division, leave to appeal

PDF Version: Private Justice Delayed

In September 2007, Mr. Justice Peter Martin denied leave to appeal of a May 2007 decision by Madam Justice K.M. Horner setting aside an arbitrator’s award dividing matrimonial property. The couple embroiled in this dispute had married in 1982, separated in 1994 and divorced in 1999. The couple had a considerable amount of real property and thorny issues related to property owned prior to the marriage and the value of those properties that should be exempted from the matrimonial property regime. A 6-day arbitration hearing was held before one arbitrator, Alan Beattie, Q.,C., in Calgary in 2003 and he rendered an award 33 months later, in July 2006. Article IX of the arbitration agreement between the couple and Mr. Beattie required the arbitrator to communicate his award to the parties within 60 days of the end of the hearing. The past year of litigation has been devoted to the husband’s application to set aside the July 2006 award.

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