Category Archives: Family

The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case

PDF version: The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case

Case Commented on: Meads v Meads, 2012 ABQB 571

 This decision by Associate Chief Justice John D. Rooke was the subject of much media attention when it was released. That attention was well deserved. The lengthy and well-researched decision fills a gap in the jurisprudence and scholarship on vexatious litigants by shining a spotlight on and systematically examining a category of litigants for whom Justice Rooke coined the collective term “Organized Pseudolegal Commercial Argument” (OPCA) litigants. These litigants are distinguishable from the more usual types of vexatious litigants because they use a collection of techniques and arguments sold by people Justice Rooke called “gurus.”  His decision is valuable for several reasons: it collects all of the reported Canadian decisions dealing with OPCA litigants, it describes the indicia by which OPCA litigants can be recognized, it describes the concepts they have relied upon and the arguments they have made and why those arguments have all failed in every Canadian court, and it discusses what judges, lawyers, and litigants can do when faced with OPCA litigants.

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The Pleasures and Perils of Holograph Wills

PDF version: The Pleasures and Perils of Holograph Wills

Case Considered: Lubberts Estate, 2012 ABQB 506

 This Court of Queen’s Bench decision interprets a provision in a holograph will.  The case is an example of the not-uncommon human tendency to try to use property to control family members’ behaviour, both before death by way of gift and after death by way of inheritance.  Like many such efforts, this deceased’s handwritten codicils to her lawyer-drawn will and her subsequent holograph will did not do what she wanted them to do.  Instead of the deceased determining who would inherit her property and on what conditions, her family members inherited under generic, unconditional intestate laws.  It is ironic; the more control the deceased tried to exert over what happened to her property on her death, the less say she had in the disposition of her property in the end.

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Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF version: Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

Case Commented On: Dares v Newman, 2012 ABQB 328

A father died in a motor vehicle accident. For his grief and the loss of his father’s guidance, care and companionship, his biological child received $45,000 in bereavement damages from the at-fault driver’s insurance company under section 8(2)(c) of the Fatal Accidents Act, RSA 2000, c F-8. His two adopted children, who had not spoken to him for twenty years, also received $45,000 each under the same provision. His two stepchildren, to whom he had stood in the place of a parent for twenty years – and who had received his guidance, care and companionship over two decades and who suffered grief on his death – received nothing. This case raises the issue of the extent to which government is entitled to deny benefits to certain claimants for the purpose of restricting legal action against private parties for tortious conduct causing death. Continue reading →

Dower Consent Teasers

Case considered: Karafiat v Webb, 2012 ABCA 115 and Webb (Re), 2011 ABQB 89.

PDF: Dower Consent Teasers

This case shows that the Dower Act, RSA 2000, c D-15 can still throw up intellectual teasers 55 years after this version of the statute was first enacted (Dower Act, 1948 (Alta), c 7). The case highlights the distinction between the consent required by section 4 of the Act (the normal case), and the consent required under section 25(2). Section 25(2) deals with the situation where the homestead property is co-owned by the spouses. The issue is whether a request by both spouses to the holder of a charge to postpone that charge is a consent to a disposition (i.e. the charge) for the purposes of section 4 or section 25(2). The majority responds in the negative.

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British Columbia Supreme Court Releases Reference Decision on Polygamy – One Alberta Connection

By: Linda McKay-Panos

PDF Version: British Columbia Supreme Court Releases Reference Decision on Polygamy – One Alberta Connection

Case Commented On: Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588

In 2005, Brian Seaman, Melissa Luhtanen and I, on behalf of the Alberta Civil Liberties Research Centre (ACLRC), were engaged by Status of Women Canada to research and comment on specific issues with regard to Criminal Code section 293 (anti-polygamy provision). Our conclusions may have been surprising to some people because it appeared that we erred on the side of equality at the expense of civil liberties. However, the recent British Columbia Supreme Court (BCSC) decision, at least temporarily, as it may be overruled on appeal, seems to have vindicated our position. Looking at the list of intervenors (11 of them) and the length of the judgment itself, it seems that the Court dealt with the issues in a comprehensive manner.

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