Category: Family Page 13 of 18

By: John-Paul Boyd

PDF Version: Unified Family Courts: An Established Mechanism for Improving Access to Justice

Lawyers practicing in jurisdictions with multiple trial courts and no unified family court will be aware of the challenges facing litigants without counsel. First there’s choosing the right law, because of the overlapping federal and provincial legislative jurisdiction in family law matters. Then there’s choosing the right court, because of the trial courts’ simultaneous but asymmetric subject matter jurisdiction. And then there’s the question of the courts’ relative degrees of complexity, expense and accessibility, and the extent to which corollary social and legal support services are or are not embedded in the court process.

One obvious solution might lie in amalgamating the trial courts to provide litigants with one court, with easy to understand rules and processes that are proportionate to the nature of the dispute and specific to family law, that is integrated with the relevant social services. This is more or less the approach taken in parts of Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Ontario and Saskatchewan, where there is a single court for the resolution of family law disputes, but it seems to be off the menu in Alberta and British Columbia for reasons that escape me.

How Lawyers Resolve Family Law Disputes

By John-Paul Boyd

On October 24, 2014

In Access to Justice, Family

By: John-Paul Boyd

PDF Version: How lawyers resolve family law disputes

This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.

In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us:

The Vicious Spiral of Self-Representation in Family Law Proceedings

By John-Paul Boyd

On September 10, 2014

In Access to Justice, Family

Written by: John-Paul Boyd

PDF Version: The Vicious Spiral of Self-Representation in Family Law Proceedings

A lot of good research on litigants without counsel has been published in the last three years, most notably, in my view, Julie Macfarlane‘s Identifying and Meeting the Needs of Self-represented Litigants, a trio of papers published by the Canadian Research Institute on Law and the Family on the views of Alberta judges and family law lawyers, and a report by the Canadian Research Institute on Law and the Family with professors Nicholas Bala and Rachel Birnbaum (in press) on the results of a national survey of judges and lawyers. Although this research doesn’t necessarily label it as such, I’ve noticed that there’s a bit of a slippery slope effect to litigating without counsel, in which the decision to self-represent, whether a choice was involved or not, seems to trigger a cascade of adverse effects that ultimately result in litigants without counsel achieving worse results in every major area of family law than would have been achieved with counsel.

Deference, Discretion, and Adjudicative Substitution

By Camille Sehn

On September 3, 2014

In Family

By: Camille Sehn

PDF Version: Deference, Discretion, and Adjudicative Substitution

Case Commented On: E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 237

Editor’s Note: The University of Calgary Faculty of Law runs a fantastic legal clinic, Student Legal Assistance (SLA), that employs several students during the summer. This year’s crop of students was encouraged by SLA’s Executive Director, Michelle Christopher, to submit posts to ABlawg in the criminal and family law areas. This is the second post in the series; the first is available here and there will be more to come.

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In a recent decision from the Court of Appeal of Alberta, the Honorable Mr. Justice Jack Watson engages in a discussion around judicial discretion in an often nuanced and complex area of the law. At trial, the Director of Child and Family Services (“the Director”) applied for a Permanent Guardianship Order (“PGO”) of two twin boys; both parents contested the PGO. After 16 days of evidence at trial in Provincial Court, the Honorable Judge L.T.L. Cook-Stanhope concluded that there was gross abuse of the twins based on evidence of a pattern of maltreatment and poor attitudes towards parenting. Judge Cook-Stanhope found that the parents presented a substantial risk of further physical and emotional harm, and relied on the testimony of several witnesses to support this apprehension of substantial risk if the twins were to be returned to their parents. She granted the PGO on this basis. (E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2013 ABPC 311 at para 224)

What is the Legal Effect of an Unenforceable Agreement in an Unjust Enrichment Claim?

By Jonnette Watson Hamilton

On March 4, 2014

In Family, Property

By: Jonnette Watson Hamilton

PDF Version: What is the Legal Effect of an Unenforceable Agreement in an Unjust Enrichment Claim?

Case commented on: Lemoine v Griffith, 2014 ABCA 46

The recent decision of the Alberta Court of Appeal in Lemoine v Griffith is interesting for what it tells us, in the context of a claim of unjust enrichment, about the legal effects of a prenuptial agreement that was both found and admitted to be unenforceable because of undue influence and a lack of independent legal advice. According to the majority, Justices Ronald Berger and Clifton O’Brien, once the trial judge found the agreement unenforceable for those reasons — and the appellant abandoned his challenge to that finding — the prenuptial agreement was not a factor in either supplying a juristic reason for any enrichment or evidence of the parties’ intentions. However, despite the fact that the unenforceability of the prenuptial agreement was not an issue, in his dissent Justice Frans Slatter would have overturned the finding of undue influence, holding (at para 103) that the “trial judgment cannot stand.” While that is not the only point of disagreement between the majority and the dissent, it is the point that I will focus on in this comment.

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