Category Archives: Family

Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

By: Rudiger Tscherning

PDF Version: Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

Case Commented On: Thompson v Thompson, 2017 ABCA 299 (CanLII)

On November 9, 2017, the Supreme Court of Canada (SCC) will hear an appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts here and here.

The appeal in Balev involves the key issue of whether the habitual residence of a child can change for purposes of the Hague Convention during the period of a father’s time-limited consent (which permitted the children to attend school in Canada). If so, the mother in that case would not have wrongfully retained the children in Ontario within the Hague Convention’s prompt return mechanism. The appeal is likely to engage questions around how best to determine the habitual residence of a child. Should it be through a “child-centered” approach, a “parental intentions only” approach, or both? Continue reading →

The Effect of Well Abandonment and Reclamation Obligations for the Valuation of Matrimonial Property

By: Nigel Bankes

PDF Version: The Effect of Well Abandonment and Reclamation Obligations for the Valuation of Matrimonial Property

Case Commented On: Walker v Walker, 2017 SKQB 195 (CanLII)

Judicial decisions on the legal nature of abandonment and reclamation obligations may arise in the strangest of ways. Take this matrimonial property case, for example, in which Mr. Walker (Darcy) was seeking to argue that his assets should be discounted on the basis that a small oil and gas company (Outback) that he controlled had net abandonment and reclamation liabilities. Part of the challenge that he faced in making this argument was of course that the liabilities in question were the liabilities of the corporation. While a director or controlling mind of a corporation might ordinarily take some comfort from this state of affairs, in this case counsel for Darcy tried to suggest that his client would inevitably face personal liability under the terms of Saskatchewan’s The Environmental Management and Protection Act, 2010, SS 2010, c E-10.22 [EMPA] and The Oil and Gas Conservation Act, RSS 1978, c O-2 [OGCA] and s 59 of The Oil and Gas Conservation Regulations, 2012, RRS c O-2 Reg 6 [OGCR]. Actually the argument was even stranger insofar as Mrs. Walker (Becky) was also a director of the company (Outback) and thus might face the same liability should Darcy be correct. Continue reading →

CRILF Reviews Federal Divorce Data for Alberta

By: John-Paul Boyd

PDF Version: CRILF Reviews Federal Divorce Data for Alberta

Report Commented On: Analysis of Data from the Federal Justice Divorce File Review Study: Report on Findings for Alberta, 2011

The Department of Justice undertook the Federal Justice Divorce File Review Study in 2003, a project which wound up gathering enormous amounts of information about families going through divorce from courts across Canada. Three waves of data were collected, in 2005, 2008 and 2011. In 2015, the Canadian Research Institute for Law and the Family (CRILF) was granted access to the third tranche of data collected from the Calgary registry of the Alberta Court of Queen’s Bench.

The Institute has now released its report on that data, focusing on the timelines between separation and key events in the divorce process, parenting orders and child support orders, and analyzing the data by gender and the mention of family violence. Although the Institute’s findings are interesting, the data collected are not representative of divorce files in Canada, nor of divorce files in Alberta, for two main reasons. First, it appears that many of the 328 court files reviewed for the Study were uncontested desk order divorce applications; 75.9% of cases only had one order in the court file and 95.7% of those orders were final orders. Second, the coders who gathered the data were instructed to ensure that every third or fourth file they reviewed was “thicker,” thus oversampling files expected to have a higher degree of complexity. Continue reading →

Recent Developments in Domestic Violence Law and Policy in Alberta

By: Jennifer Koshan

PDF Version: Recent Developments in Domestic Violence Law and Policy in Alberta

Legislation and Report Commented On: Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence; Family Violence Death Review Committee Annual Report 2015-2016

Statistics Canada’s most recent report on family violence indicates that although the rate of family violence reported to the police was stable across the country overall from 2014 to 2015, Alberta experienced a 2% increase in the rate of family violence during this period (Family violence in Canada: A statistical profile, 2015 at 37). Shelters in Alberta also report an increase in the number of calls to their crisis lines and for shelter space since 2014. At the same time, results from Canada’s 2014 General Social Survey showed that 7/10 self-reported victims of spousal violence did not report the violence to police, often because they viewed the abuse as a “private matter” (Family violence in Canada: A statistical profile, 2014 at 10).

Within this context, two recent developments in Alberta merit discussion. Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, removes the limitation period that would otherwise restrict the time within which civil claims for damages can be commenced in domestic violence and sexual assault cases, and the Family Violence Death Review Committee’s 2015-2016 Annual Report makes several recommendations for changes to Alberta law and policy to better deal with family violence issues. Continue reading →

Capacity to Make and Revoke an Enduring Power of Attorney

By: Jonnette Watson Hamilton

PDF Version: Capacity to Make and Revoke an Enduring Power of Attorney

Case Commented On: Pirie v Pirie, 2017 ABQB 104 (CanLII)

The issue in this case was whether the applicant had the mental capacity in July 2016 to revoke his 2008 Enduring Power of Attorney and to create a new Enduring Power of Attorney. His 2008 Enduring Power of Attorney appointed his three children and his wife jointly as his attorneys and became effective if and when he became mentally incapable of understanding the nature and effect of that instrument. His 2016 Enduring Power of Attorney appointed his brother, and in the alternative, his long-term assistant, and in the further alternative, his sister-in-law, immediately upon its execution.

In some ways, this was an easy decision for Justice Robert Hall. If the applicant lacked the mental capacity to revoke the 2008 instrument, then three children who owed the applicant money and his now-estranged wife would be his attorneys. If the applicant had the mental capacity to revoke the 2008 instrument and create the 2016 instrument, then his businessman brother would be looking out for his financial interests, no doubt under the watchful eye of the three children and the now-estranged wife. Nevertheless, the case is noteworthy because it involved a challenge to the widely-accepted test for assessing mental capacity to create and revoke a power of attorney. That challenge argued for the inclusion of an evaluation of the rationality and reasonableness of the applicant’s reasons for making the changes. Although Justice Hall stated he did not accept the challenge to the existing test, he did assess the applicant’s reasons and found that the applicant had ample reason to make the changes. By doing so, he might have introduced some uncertainty into this area of the law.   Continue reading →