Category Archives: Family

The Vicious Spiral of Self-Representation in Family Law Proceedings

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. Continue reading →

Deference, Discretion, and Adjudicative Substitution

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)

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

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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Court of Appeal Reaffirms Gay, Non-bio Dad’s Status as Legal Parent

PDF version: Court of Appeal Reaffirms Gay, Non-bio Dad’s Status as Legal Parent

Case commented on: DWH v DJR, 2013 ABCA 240.

This case began to wind its way through the courts when Mr. H. and Mr. R. split up. Mr. H. and Mr. R. had been living together as partners and they had arranged to have a baby through a friend, Ms. D, using Mr. R.’s sperm. In exchange they agreed to give Ms. D. sperm for her to have a second baby that she and her partner would raise. Ms. D. gave birth to baby S. and for a short period of time Ms. D. lived with the two men and baby S. Baby S. lived with Mr. H. and Mr. R. for three years until, in June 2006, the couple split up. S. called Mr. H. and Mr. R. “Papa” and “Daddy” respectively. After they split up S. lived with Mr. R.

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Intersection Between Different Legal Areas

PDF version: Intersection Between Different Legal Areas

Case commented on: Basha v Lofca, 2013 ABQB 159.

Introduction

It is quite common for certain legal areas to intersect with others in cases that come before the courts. In the recent Alberta Court of Queen’s Bench case of Basha v Lofca, this intersection arose within the areas of immigration and family law.

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