Category Archives: Family

No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

By: Jonnette Watson Hamilton

PDF Version: No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

Case Commented On: Singh v Mangat, 2016 ABQB 349 (CanLII)

The issue in Singh v Mangat was one of priority: in what order were different groups entitled to sale proceeds. There were three types of claimants to the proceeds of the sale of a husband’s interest in the matrimonial home: the wife, who had brought a matrimonial property action and registered a certificate of lis pendens on the title to those lands; those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home before the wife’s certificate of lis pendens; and those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home after the wife’s certificate of lis pendens. The relative timing of the registrations created what Master A. R. Robertson, QC, called a “CLP sandwich” (at para 2). This case appears to be the first time an issue of priority in circumstances involving a “CLP sandwich” has come before the Alberta courts. Master Robertson analyzed a complex statutory interpretation issue in order to resolve the priorities issue in this decision (handed down in June 2016 but only added to the CanLII database in October). In a result that might surprise those accustomed to priorities under a Torrens land title system, he resolved the issue in favour of all of the judgment creditors, those registered before the certificate of lis pendens and those registered after. 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 →

Polyamorous Families in Canada: Early Results of New Research from CRILF

By: John-Paul Boyd

PDF Version: Polyamorous Families in Canada: Early Results of New Research from CRILF

Report Commented On: Canadian Research Institute for Law and the Family, Perceptions of Polyamorous Relationships: Preliminary Data

On 20 June 2016, the Canadian Research Institute for Law and the Family began a study on Canadian perceptions of polyamory, advertised with the assistance of the Canadian Polyamory Advocacy Association, gathering preliminary data with a public survey. The information gathered thus far, from the 547 people who answered our survey, paints a nuanced picture of polyamorous individuals and their family arrangements.

The polyamorous families we are looking at are those created by three or more freely consenting adults, in distinction to faith-based, and often patriarchal, forms of polygamy that exist in much of Africa, the Middle East and North America, the latter of which have been popularized in shows like Big Love and Sister Wives. The polyamorous population we are studying places a high value on equality and honesty, and the rights of individuals to leave a relationship when and how they wish. Continue reading →

The Deductibility of Legal Fees Incurred in Child Support Proceedings and Section 15 of the Charter

By: Kyle Gardiner

 PDF Version:The Deductibility of Legal Fees Incurred in Child Support Proceedings and Section 15 of the Charter

Case commented on: Grenon v. Canada, 2016 FCA 4 (CanLII), leave to appeal dismissed, 2016 CanLII 41074 (SCC)

On June 30th, 2016, the Supreme Court of Canada denied leave to appeal in the case of Grenon v. Canada, 2016 FCA 4 (CanLII), which was heard in Calgary at both trial and on appeal. The Appellant Grenon was seeking to challenge certain aspects of tax law and policy under section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has only heard two previous challenges to tax law based on the equality rights guarantee in section 15 of the Charter. In Symes v. Canada, [1993] 4 SCR 695, 1993 CanLII 55, a challenge based on the inability to deduct childcare expenses as business expenses was unsuccessful. In Thibaudeau v. Canada, [1995] 2 SCR 627, 1995 CanLII 99, a provision requiring custodial parents to include child support payments in their income was also found not to violate section 15. It has been 21 years since the Supreme Court of Canada last heard an equality challenge to tax law. This post will focus on the missed opportunities resulting from the Supreme Court’s refusal to hear the Grenon appeal and some of the issues that have arisen in the past 20 years which it could have confronted. Continue reading →

Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

By: Jennifer Koshan

PDF Version: Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

Case Commented On: Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII)

The Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) allows “family members” to obtain emergency protection orders (EPOs) on an ex parte basis, in circumstances where “family violence” has occurred, the claimant “has reason to believe that the respondent will continue or resume carrying out family violence”, and “by reason of seriousness or urgency, the order should be granted to provide for the immediate protection of the claimant and other family members who reside with the claimant” (section 2). In the context of intimate relationships, “family member” is defined to mean “persons who are or have been married to one another, who are or have been adult interdependent partners of one another or who are residing or have resided together in an intimate relationship.” Family member also includes those who are “parents of one or more children, regardless of their marital status or whether they have lived together at any time” (section 1(1)(d)).

In Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII), the Alberta Court of Appeal (Justices Rowbotham, Wakeling and Schutz) made a “comprehensive consideration of the language used in the legislation, the scheme of the legislation, and its objects”, and concluded that this definition does not include persons who have been involved in an intimate relationship without residing together and do not fall within the definition of “adult interdependent partner” in the Adult Interdependent Relationships Act, SA 2002, c A-4.5” (at para 4).

Continue reading →