Category: Family Page 9 of 18

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.

Capacity to Make and Revoke an Enduring Power of Attorney

By Jonnette Watson Hamilton

On May 12, 2017

In Family, Wills and Estates

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.

Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

By Rudiger Tscherning

On May 5, 2017

In Family, International Law

By: Rudiger Tscherning

PDF Version: Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

Case Commented On: Office of the Children’s Lawyer v John Paul Balev and Catherine-Rose Bagott, Supreme Court of Canada, Leave to Appeal (37250)

Background

In an earlier post, I discussed the decision of Balev v Bagott, 2016 ONCA 680 (CanLII) and concluded that the ONCA was correct in its strict application of the ‘prompt return’ mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980. This meant that a ‘time-limited’ consent by one parent to relocate a child (on the facts, from Germany to Canada) could not amount to a unilateral change of the child’s ‘habitual residence’ during the consent period. As a result, the retention of a child after the expiration of a consent period constituted a wrongful removal or retention in breach of the Convention mechanism.

Update

On April 27, 2017, the Supreme Court of Canada (SCC) granted leave to appeal from the judgment of the Ontario Court of Appeal (ONCA) without reasons. It also granted a motion to admit fresh evidence. Significantly, the SCC ordered the appeal to be expedited. It further directed the parties to advise in writing of any changes that might affect the record, in particular with respect to the current circumstances of the children and the custody proceedings in the courts in Germany.

Granting a Vexatious Litigant’s Application for Leave to Appeal

By Jonnette Watson Hamilton

On May 4, 2017

In Family, Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Granting a Vexatious Litigant’s Application for Leave to Appeal

Case Commented On: Belway v Lalande-Weber, 2017 ABCA 108 (CanLII)

In the case law on vexatious litigation, it is occasionally noted that a vexatious litigant order does not bar that litigant’s access to the courts. Instead, a vexatious litigant must apply for and obtain leave from the court before starting or continuing a proceeding. In other words, access to the courts is regulated, not prohibited. But the distinction between regulated access and no access depends to a large extent on what the test is for granting leave. This decision by Justice Sheilah Martin is a rare example of an application for leave being granted. As such, it is interesting to see how high or low it sets the bar for obtaining leave. And because the self-represented applicant in this case had vexatious litigant orders made against him under both the Family Law Act, SA 2003, c F-4.5 and the Judicature Act, RSA 2000, c J-2, it is also interesting to note the contrast between the two regimes on this issue and how Justice Martin deals with the two tests by combining them into one.

The Harsh Consequences of Ignoring the Dower Act

By Jonnette Watson Hamilton

On March 14, 2017

In Family, Property

By: Jonnette Watson Hamilton

PDF Version: The Harsh Consequences of Ignoring the Dower Act

Case Commented On: Joncas v Joncas, 2017 ABCA 50 (CanLII)

If you are a married Albertan with a piece of real property registered in your name alone, and you have resided on that property since the date of your marriage, then you cannot sell, mortgage, lease for more than three years, or otherwise dispose of that property without the written and acknowledged consent of your spouse. The Dower Act, RSA 2000, c D-15, sections 1(d), 2, 4 and 5 say the property is a “homestead” and you need consent to dispose of it. The purpose of the 100-year-old Dower Act is to provide a home for a widow/er — a right to a life estate on the death of the married person who owned the homestead (Senstad v Makus, [1978] 2 SCR 44 at 51, 1977 CanLII 201 (SCC)). And there would not necessarily be a home for the widow/er if the married person could unilaterally sell or otherwise dispose of the homestead, and so they cannot. The purpose of the Dower Act and the way it achieves its purpose was commendable one hundred years ago, when married women could not acquire land by homesteading, there was no social welfare safety net, divorce was far less common, life expectancies were much shorter, and families were far less complex. Today, however, things are different and the Dower Act can come into conflict with the Matrimonial Property Act, RSA 2000, c M-8 on the breakdown of a marriage. The Matrimonial Property Act is all about the fair distribution of matrimonial property between spouses or ex-spouses, but its fairness considerations are absent from the Dower Act. The potential for financially disastrous consequences is high when a married person with a homestead, whose marriage has broken down, is unaware of the requirements of the Dower Act and the harshness of the consequences of ignoring those requirements. Joncas v Joncas is an excellent example of the conflict and a cautionary tale.