Category Archives: Family

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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Private Justice Delayed

Cases Considered: Flock v. Flock, 2007 ABCA 287, Flock v. Flock, 2007 ABQB 307

Keywords: arbitration, matrimonial property division, leave to appeal

PDF Version: Private Justice Delayed

In September 2007, Mr. Justice Peter Martin denied leave to appeal of a May 2007 decision by Madam Justice K.M. Horner setting aside an arbitrator’s award dividing matrimonial property. The couple embroiled in this dispute had married in 1982, separated in 1994 and divorced in 1999. The couple had a considerable amount of real property and thorny issues related to property owned prior to the marriage and the value of those properties that should be exempted from the matrimonial property regime. A 6-day arbitration hearing was held before one arbitrator, Alan Beattie, Q.,C., in Calgary in 2003 and he rendered an award 33 months later, in July 2006. Article IX of the arbitration agreement between the couple and Mr. Beattie required the arbitrator to communicate his award to the parties within 60 days of the end of the hearing. The past year of litigation has been devoted to the husband’s application to set aside the July 2006 award.

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