ABLawg - - Page 189

By: Kyle Gardiner

PDF Version: Flipping DBS: Finding Limits on Retroactive Child Support Variation

Case Commented On: CLW v SVW, 2016 ABQB 546, appeal filed.

In 2006, the Supreme Court of Canada released its decision in the case of DBS v SRG, 2 SCR 231, 2006 SCC 37 (CanLII), which addressed the nuances of retroactive child support. A retroactive order for child support is one that has a start date prior to the date the order was made – for example, an order made in October for child support payments deemed to be payable as of August. In DBS v SRG, the Court reiterated that child support is the right of the child, and that this right survives the child’s parents’ marriage breakdown (at para 38). I have previously blogged on the pre-existing nature of this right to support (see here). The Court also stressed that courts are not precluded from considering retroactive awards just because the current child support regime is application based. The Court in DBS v SRG also held that the presumptive start date for a retroactive child support order should be the date the recipient gave notice to the payor that child support was needed, or “broaches the subject” as Justice Bastarache J (for the majority) puts it (at para 125). The majority held that child support may be sought retroactively to a maximum of three years from the date of the recipient’s application to court. However, if the payor has been found to have engaged in blameworthy conduct or misconduct of some sort, this three-year time limit would not apply (at para 5). The Court was silent with respect to time limits on retroactive variation orders like that sought in CLW v SVW, the case that is the subject of this post.

Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission

By Nigel Bankes

On October 27, 2016

In Law of the Sea

By: Nigel Bankes

PDF Version: Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission

Decision commented on: Conciliation Commission, Between the Democratic Republic of Timor-Leste and the Commonwealth of Australia: Decision on Australia’s Objections to Competence, 19 September 2016 (Registry, the Permanent Court of Arbitration)

Background

Part XV of the Law of the Sea Convention (LOSC or Convention) provides, inter alia, for “compulsory conciliation” with respect to disputes concerning the interpretation or application of the Convention in a number of instances. This particular dispute concerns Articles 74, 83 and 298 of the Convention. Articles 74 and 83 are the well-known provisions dealing with the delimitation of the exclusive economic zone and the continental shelf where there are overlapping entitlements as between adjacent or opposite states. Timor-Leste and Australia are opposite states separated by the Timor Sea which is approximately 300 NM wide. On the same day that Timor-Leste regained its independence (20 May 2002) the two states concluded the Timor Sea Treaty which established a Joint Petroleum Development Area pending delimitation of the boundary. Further negotiations between the two states led to the adoption (2006) of the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In separate arbitral proceedings Timor-Leste is contesting the validity of CMATS. The two states have yet to agree on a permanent maritime boundary.

The Appointment of Justice Rowe

By Drew Yewchuk

On October 26, 2016

In Supreme Court of Canada

By: Drew Yewchuk

PDF Version: The Appointment of Justice Rowe

Event Commented On: Nomination of the Honourable Malcolm Rowe for Appointment to the Supreme Court of Canada

On October 17, 2016 Prime Minister Trudeau nominated Justice Malcolm Rowe for appointment to the Supreme Court of Canada. Justice Rowe was a trial judge in Newfoundland and Labrador for two years before being appointed to the Court of Appeal of Newfoundland and Labrador in 2001.

The first section of this post describes the recent changes to the Supreme Court appointment process, as Justice Rowe is the first nomination under the new process. The second section of this post reviews Justice Rowe’s application for the position. The third discusses the public hearing, which I attended in Ottawa on 25 October 2016.

R v Anthony-Cook and the Community’s Sense of Justice

By Lisa Silver

On October 25, 2016

In Criminal, Supreme Court of Canada

By: Lisa Silver

PDF Version: R v Anthony-Cook and the Community’s Sense of Justice

Case Commented On: R v Anthony-Cook, 2016 SCC 43 (CanLII)

In R v Anthony-Cook, 2016 SCC 43 (CanLII), Justice Moldaver, on behalf of the full court, clarifies the test to be applied by a sentencing judge when departing from a joint submission on sentence and then gives clear step-by-step instructions to judges on how to properly apply the appropriate test. The joint sentence recommendation in this case arose out of a tragic set of circumstances in which the 28-year-old offender, who suffered from addiction and mental health issues, assaulted a fellow attendee at a local addiction and counselling organization. The assault resulted in death, and Mr. Anthony-Cook, after his lawyer negotiated a plea resolution with the Crown prosecutor (including an agreement on sentence), entered a plea of guilty to the charge of manslaughter. At the sentencing hearing, the defence and Crown prosecutor offered a joint submission on sentence, recommending the offender receive a further 18-months incarceration (he had already been in custody for a total of 11 months) without any period of probation.

The sentencing judge declined to accede to the joint recommendation as the proposed sentence did “not give adequate weight to the principles of denunciation, deterrence, and protection of the public” (R v Anthony-Cook, 2014 BCSC 1503 (CanLII), Ehrcke J at para 68) and instead imposed a sentence of two years less a day to be followed by 3 years of probation. (at paras 54 to 63) In the sentencing judge’s view, the sentence proposed was unfit and therefore he was not bound by the joint submission. As a result, he departed “to some extent” from the negotiated sentence recommendation. (at para 67) The British Columbia Court of Appeal agreed with the sentencing judge’s assessment that the proposed sentence was unfit and not in the public interest and found no error in his sentencing decision. The matter was further appealed to the Supreme Court of Canada (SCC) to clarify the test to be used by a sentencing judge in departing from a joint submission on sentence. Appellate courts across Canada were not ad idem on the issue, using four different tests for departure: the fitness test, the demonstrably unfit test, the public interest test, and a test which viewed the issues of fitness and public interest as the same. The SCC was asked to clarify which test was the controlling one, with the Court unanimously approving the public interest test. As the sentencing judge erred by applying the incorrect test, Anthony-Cook’s negotiated sentence was imposed by the Court.

Putting the Negative in Restrictive Covenants

By Jonnette Watson Hamilton

On October 24, 2016

In Property

By: Jonnette Watson Hamilton

PDF Version: Putting the Negative in Restrictive Covenants

Case Commented On: Russell v Ryan, 2016 ABQB 526 (CanLII)

This is a restrictive covenant case involving a planned golf course and an adjacent residential subdivision. It does not offer any new law on the requirements for a valid restrictive covenant in equity or on the specific requirement that a restrictive covenant must be negative in substance. Nevertheless, by distinguishing the wording of the restrictive covenant in this case from the wording of the restrictive covenant in Aquadel Golf Course Limited v Lindell Beach Holiday Resort Ltd, 2009 BCCA 5 (CanLII), reversing 2008 BCSC 284 (CanLII), it usefully contributes to an understanding of when a covenant will be considered negative in substance. Russell v Ryan also raises the issue of whether covenants in a development agreement are severable from one another for the purposes of determining if one of them, or a portion of one of them, is negative in substance but, unlike the BC Court of Appeal decision in Aquadel, Alberta Court of Queens Bench Justice Joanne Goss does not decide this issue.

Flipping DBS: Finding Limits on Retroactive Child Support Variation

Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission

The Appointment of Justice Rowe

R v Anthony-Cook and the Community’s Sense of Justice

Putting the Negative in Restrictive Covenants