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New Rules of Court Interpreted: Rule 12.48 and Summary Judgment in Divorce Proceedings

Case commented on: Maykowski v. Maykowski, 2011 ABQB 31

This case is described by Justice D.C. Read as “high-conflict divorce proceedings” commenced by the husband in combination with a claim for matrimonial property division, and in which the wife counterclaimed for divorce and distribution of matrimonial property. The wife sought summary judgment based on an alleged settlement agreement between the parties concerning the divorce and matrimonial property. Justice Read held that summary judgment was not available, based on an interpretation of Rule 12.48 of the new Alberta Rules of Court, Alta. Reg. 124/2010. According to Justice Read, “It is patently clear from R. 12.48 that summary judgment is not available in any action under the Divorce Act. Although summary judgment is available in proceedings under the Matrimonial Property Act, if the action was commenced as a combined proceeding with the Divorce Act, because of R. 12.48(b), a summary judgment application under the Matrimonial Property Act can be made only after that action has been severed from the Divorce Act proceedings.” (at para. 16). Because the alleged settlement agreement dealt with claims made under the Divorce Act related to child custody, child and spousal support in addition to matrimonial property claims, summary judgment was not available (at para. 19). Justice Read noted that this would also have been the outcome under the old Alberta Rules of Court, Alta. Reg. 390/1968, Rule 159, but noted that the exclusion has been outlined in more detail in the New Rules (at para. 15). Justice Read ordered the parties to proceed immediately to alternative dispute resolution, and if unsuccessful there, to trial (at para. 31).

The world wide web and the honour of the Crown

PDF version: The world wide web and the honour of the Crown 

Cases considered: Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29, and Lameman v Alberta, 2011 ABQB 40

The Court of Appeal (Justices Ritter, Bielby and Read) has denied the appeal by the Athabasca Chipewyan First Nation (ACFN) against the judgement at trial (2009 ABQB 576) which I blogged here. In that decision, Justice D.R.G. Thomas held that ACFN had commenced its application more than six months after the relevant decision, and therefore out of time within the meaning of Rule 753.11 of the old Alberta Rules of Court, Alta. Reg. 390/1968. In doing so I think that the Court of Appeal has ignored the constitutional foundation of the duty to consult and as a result has failed to interpret the Rules of Court through that lens.

New Rules of Court Interpreted: Rule 7.1(1)(a) and the Test for Severance

Case commented on: Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 29

This case involved an application by the City of Edmonton to sever a question from a judicial review of the City’s decision to reject a petition by Envision, which demanded that the Edmonton City Centre Airport remain open and that the City actively promote the use of the airport. The petition was rejected by the City Clerk on the basis that it was filed outside of the time limits established in the Municipal Government Act, R.S.A. 2000, c. M-26, and that the required number of electors did not sign the petition. Envision sought mandamus to require the City to introduce a bylaw on the matter and to fix an election date to vote on the bylaw. The City sought to have the question regarding the time limit severed and heard first on the grounds that the second question (compliance with the Municipal Government Act) would require significant expense that could be avoided based on the outcome of the first question.

ABlawg turns 3

This month we are celebrating the third anniversary of the launch of ABlawg. In response to our call for new subscribers, we have tripled the number of people receiving notice by email and RSS feed of new ABlawg posts. Readers may have noticed that we have started to include shorter posts on things like leave to appeal decisions and appeal hearings in addition to our longer comments on developments in Alberta case law, legislation and policy. On Friday, we will be launching a new feature on ABlawg called “New Rules of Court Interpreted”. This feature will briefly highlight judicial interpretations of the new Alberta Rules of Court, Alta. Reg. 124/2010. We are always open to new ideas from our readers, so please let us know if you have suggestions for other features on ABlawg. Thanks for reading.

Violence Against Aboriginal Women – Is Anyone Listening?

PDF version: Violence Against Aboriginal Women – Is Anyone Listening? 

Commented upon: The House of Commons Standing Committee on the Status of Women, Study on Violence Against Aboriginal Women (Standing Order 108(2))

In March 2010, the House of Commons Standing Committee on the Status of Women (FEWO) undertook a study on violence against Aboriginal Women. It held meetings in Ottawa in April 2010, and travelled to various communities across Canada in 2010 and early 2011 to hold hearings and meet with interested individuals and organizations. The Committee wrapped up its tour with a visit to Edmonton on January 21, 2011, where I was called as a witness. Sadly, and in spite of receiving a news release related to this and earlier hearings, no one from the media was present in Edmonton, a situation we were told was replicated in the Committee’s other hearings. Although one of the Committee members, Conservative MP Nina Grewal, stated repeatedly during the hearing that violence against Aboriginal women is a “top priority” of the government, the issue does not appear to be getting much attention.

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