Author Archives: Kyle Gardiner

About Kyle Gardiner

Kyle Gardiner, J.D. (Calgary), is a lawyer in the Litigation and Dispute Resolution Group at Lawson Lundell LLP in Calgary. During his law degree, Kyle was a recipient of the Shea Nerland Calnan Research Fellowship in tax law, the Dean Michael Wylie Social Responsibility Award, and the Hon. Cecilia Johnstone Equality Award.

The Discoverability Principle Applies—No Seriously, For Real This Time—to Contract Claims in Alberta

By: Kyle Gardiner

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Case Commented On: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII)

Last month, the Alberta Court of Appeal delivered its long-awaited decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII) (Weir-Jones). The decision has been much anticipated largely because it clarified the correct standard of proof for summary judgment applications in Alberta (a balance of probabilities). As a bonus, the decision also provided clarification on another topic in which confusing and contradictory lines of authority had emerged in Alberta: the question of whether the discoverability principle applies when determining limitation periods applicable to breaches of contract in Alberta. Does a plaintiff’s limitation period for a breach of contract claim commence when the breach occurred, or when the plaintiff ought to have discovered that it had a claim?

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The Cost of Cohabitation Agreements: Considering Property Division Laws for Unmarried Cohabitants

By: Kyle Gardiner

PDF Version: The Cost of Cohabitation Agreements: Considering Property Division Laws for Unmarried Cohabitants

Report Commented On: Alberta Law Reform Institute, Property Division: Living Together Before Marriage, Report for Discussion No. 31

 On September 29, 2017, the Alberta Law Reform Institute (ALRI) released Property Division: Common Law Couples and Adult Interdependent Partners, Report for Discussion No. 30, addressing Alberta’s lack of statutory law dealing with property division for unmarried cohabitants. That report recommended that property division rules should apply to adult interdependent partners as defined in the Adult Interdependent Relationships Act, SA 2002, c A-4.5 (AIRA) (i.e. “common-law partners”), and that those rules should be based on the Matrimonial Property Act, RSA 2000, c M-8 (MPA) — the statute that governs property division upon marriage breakdown in Alberta. This recommendation necessitated a further question answered by ALRI’s Report for Discussion 31: how should laws of property division deal with couples who first cohabit and later marry? Continue reading →

How the Canada Child Benefit Affects Separated Parents: The Post-relationship Breakdown Family Unit of Taxation

By: Kyle Gardiner

PDF Version: How the Canada Child Benefit Affects Separated Parents: The Post-relationship Breakdown Family Unit of Taxation

Matter Commented On: The Liberal Government’s Fall Economic Update, Indexing Canada Child Benefit Payments to Inflation

In its fall economic update last Tuesday, the Liberals announced that beginning in July 2018, Canada Child Benefit (CCB) payments will be increased amidst a smaller-than-expected deficit (of $18.4 billion this year, down from the spring projection of $25.5 billion), and a generally favourable economic outlook. This increase of $5.6 billion over five years is significant because it addresses what was the primary criticism of the CCB when it first came into place – that the benefit amounts were not indexed to inflation. The Liberals previously committed to indexing the amount to inflation if they were re-elected in 2019, and this upward adjustment represents a realization of that promise.

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Legal Innovation, Access to Justice, and the University of Calgary’s Family Law Incubator

By: Kyle Gardiner

PDF Version: Legal Innovation, Access to Justice, and the University of Calgary’s Family Law Incubator

Matter Commented on: The University of Calgary’s Family Law Incubator

Family law litigants are increasingly experiencing difficulty with access to justice that compounds the nature of their legal problems. This post reviews the potential of the University of Calgary’s Family Law Incubator to meet the growing demand for legal services from Canadian families, and considers some regulatory issues surrounding its operation. Before discussing the specific contours of family law practice that would benefit most from this kind of legal innovation, I must first describe the problem that the Incubator is properly aimed at addressing. That problem is the lack of access to justice for family law litigants, as illustrated by the increasing frequency of self-represented litigants in family law matters at all levels of court in Alberta. Continue reading →

Flipping DBS: Finding Limits on Retroactive Child Support Variation

By: Kyle Gardiner

PDF Version: Flipping DBS: Finding Limits on Retroactive Child Support Variation

Case Commented On: CLW v SVW, 2016 ABQB 546, appeal filed.

In 2006, the Supreme Court of Canada released its decision in the case of DBS v SRG, 2 SCR 231, 2006 SCC 37 (CanLII), which addressed the nuances of retroactive child support. A retroactive order for child support is one that has a start date prior to the date the order was made – for example, an order made in October for child support payments deemed to be payable as of August. In DBS v SRG, the Court reiterated that child support is the right of the child, and that this right survives the child’s parents’ marriage breakdown (at para 38). I have previously blogged on the pre-existing nature of this right to support (see here). The Court also stressed that courts are not precluded from considering retroactive awards just because the current child support regime is application based. The Court in DBS v SRG also held that the presumptive start date for a retroactive child support order should be the date the recipient gave notice to the payor that child support was needed, or “broaches the subject” as Justice Bastarache J (for the majority) puts it (at para 125). The majority held that child support may be sought retroactively to a maximum of three years from the date of the recipient’s application to court. However, if the payor has been found to have engaged in blameworthy conduct or misconduct of some sort, this three-year time limit would not apply (at para 5). The Court was silent with respect to time limits on retroactive variation orders like that sought in CLW v SVW, the case that is the subject of this post. Continue reading →