Category Archives: Family

A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Cases Considered:  J.S. v. D.J.K., 2009 ABQB 426.

PDV Version: A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Justice Donald Lee is a prolific author of judgments posted to the Alberta Courts website, and one of the only Alberta judges to post decisions made under the Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) (see my earlier post Family Violence Cases in Alberta: A Snapshot). In one of his recent decisions, Justice Lee helpfully clarifies the evidentiary requirements for hearings to confirm emergency protection orders made under the PAFVA.

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Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

Cases considered: Alberta (Child, Youth and Family Enhancement, Director) v. Q.F., 2008 ABQB
PDF Version:  Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

It is always interesting to see a court sending a message to the government about the difficulties presented by a particular piece of legislation. In constitutional law, the dialogue metaphor has been used (and some would say overused) to describe this process of back and forth between the courts and legislatures (see Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75). Outside the constitutional law context, however, legislatures are not forced to listen and respond, as the remedial implications of striking down a piece of legislation, or severing certain sections as unconstitutional, are absent. Courts might thus need to repeat themselves before the legislature takes notice of non-constitutional problems with a statute, as we see in a recent child welfare case in Alberta.

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Disinterment of RCMP Officer may proceed despite parents’ wishes

Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 188

PDF Version: Disinterment of RCMP Officer may proceed despite parents’ wishes

In a previous post, I reviewed a number of decisions of the Alberta courts relating to the disinterment of Constable Leo Johnston, one of four RCMP officers killed near Mayerthorpe, Alberta in March 2005. The Johnston case involves a public death, and an ensuing private dispute now playing itself out in a very public way.

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Do Common-Law Spouses have Dower Rights?

Cases Considered: Nielson v. Paumier Estate, 2008 ABCA 159

PDF Version:  Do Common-Law Spouses have Dower Rights?

Strictly speaking, Mr. Justice Jack Watson’s decision in Nielsen v. Paumier Estate is simply a decision denying an application to restore an appeal to the Court of Appeal’s hearing list. However, the factual and legal context of the application is both tragic and complex. It includes at least twelve court orders since 2003 dealing with the sale of one house in Edmonton. The real legal issue in the last few judgments, including this one by Mr. Justice Watson, was said to be whether or not Paul Nielsen’s consent to the sale of the house owned by Michele Paumier could be dispensed with under the provisions of the Dower Act, R.S.A. 2000, c. D-15. However, given that Nielsen is described as Paumier’s “common-law spouse,” is it not questionable whether Nielsen even has dower rights?

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Counsel Shall Not Bear Witness: Clarifying the Obligation of Counsel to Withdraw When Required to be a Witness

Cases Considered: Toliver v. Koepke, 2008 ABQB 37

PDF Version: Counsel Shall Not Bear Witness: Clarifying the Obligation of Counsel to Withdraw When Required to be a Witness

During divorce litigation the Plaintiff and Defendant disputed the existence of a settlement respecting distribution of matrimonial property. The dispute was directed for trial by Justice Moreau of the Alberta Court of Queen’s Bench, at which point counsel for the Defendant (who was newly appointed and therefore had not been involved in discussions related to the settlement) brought an application to remove counsel for the Plaintiff. The application was brought on the grounds that Plaintiff’s counsel was a potential witness at the trial of the settlement issue. Justice Eric Macklin of the Court of Queen’s Bench granted the application.

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