Many people have (or should have) a Will dealing with their property and affairs after they pass away, but people may not give enough consideration to how their affairs would be managed if they were unable to manage their affairs while they are alive.
Unforeseen accidents and medical conditions can leave a person incapable of managing their own affairs. Alzheimer’s, comas, and other unfortunate events can befall anyone.
If you become unable to manage your own affairs, you will need someone to do it for you.
To ensure you can control who you want to manage your affairs and what they can do, it is best to have the proper documents put in place before the unfortunate happens.
These documents are typically known as an Enduring Power of Attorney and a Personal Directive.
An Enduring Power of Attorney allows you to appoint someone as your “Attorney” to handle your financial affairs should you become incapacitated.
While an Enduring Power of Attorney deals with making decisions for you of a financial nature, a Personal Directive allows you to appoint an “Agent” to make personal decisions for you of a non-financial nature such as where you live or healthcare.
You can determine who you wish to make a determination that you are incapable or unable to make decisions, however, typically this is psychologist or medical professional, or two.
While no one likes to think something unfortunate can happen to them, having these documents in place can make matters simpler if something does happen, and allow you to choose who you wish to manage your affairs as opposed to someone applying to the Courts, which may result in someone you do not wish ending up managing your affairs, in addition to the process becoming more complex.
Chris is an Associate with Rowanoak Law Office.
A very recent decision by the Supreme Court of Canada is important for those who run hotels, motels, or perhaps even paid storage facilities and insurance companies for those businesses.
A Quebec hotel operator owned a "park and fly" hotel where invited guests could stay over in its rooms, then leave their vehicles in its parking lot while travelling and use its shuttle service to get to the airport. In winter months those guests who left their vehicles in the hotel's parking lot were required to hand over keys to those vehicles at the front desk to enable vehicles to be moved for snow removal purposes.
During the winters of 2005 and 2006 two guests had their cars stolen from that parking lot, and their owners were compensated by their respective auto insurers. However, after paying the car owners the insurers sued the hotel owners as well as the hotel owner's insurance company to recover their payouts on the basis that the required key arrangement made the hotel owners liable for the theft of each car.
At Trial, the judge held that the hotel operator's liability insurance policy, which excluded coverage for property damage (loss of use or physical injury) to "personal property in the care, custody or control of the insured" did not apply in the case of these 2 cars, despite the fact that the keys to guests' cars were required to be left at the hotel's front desk.
Although different levels of Court in Quebec did overturn or vary the Trial Judge's decision, final appeal to the Supreme Court decided that the Trial Judge did not make any critical error reviewable on appeal, that the exclusion clause for the hotel did not apply because the vehicles had not been placed in the "custody and control" of the hotel to the degree necessary to make it liable for damages resulting from the thefts.
3091-5177 Quebec Inc. v Lombard General Insurance Co of Canada, 2018 SCC 43 (37421)(27422)
Jim is a Partner with Rowanoak Law Office LLP.
It’s getting close to that time of year again, the holidays and winter break. Many people don’t think about the Holiday season in October, but it’s on most family law lawyers minds as it can be one of our busiest times of year. The Holidays happen each year but each year there are last minute applications to get some time with the children over Christmas.
Here are a few tips regarding the Holiday season and your family law matter:
Write something about yourself. No need to be fancy, just an overview.
Without Prejudice” settlement communications can be relied to enforce settlement as set out in leading Alberta Court of Appeal case, Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10:
Exceptions to Settlement Privilege
 As with most forms of privilege, there are exceptions to the rule. Some are universally accepted, while others are more controversial. Among the generally recognized exceptions are the following:
(a) to prevent double recovery: Dos Santos (Committee of) v Sun Life Assurance Co of Canada, 2005 BCCA 4 (CanLII), 207 BCAC 54;
(b) where the communications are unlawful, containing for example, threats or fraud;
(c) to prove that a settlement (an accord and satisfaction) was reached, or to determine the exact terms of the settlement: Comrie v Comrie,2001 SKCA 33 (CanLII), 203 Sask R 164;
(d) it is possible that the settlement posture of the parties can be relevant to costs. That is clearly the case with offers made under the Rules of Court, but also with respect to informal offers: Mahe v Boulianne, 2010 ABCA 74 (CanLII) at paras 8 ‑ 10, 21 Alta LR (5th) 277; Calderbank v Calderbank,  3 All ER 333 (CA).
Jenna is an Associate with Rowanoak Law Office LLP.
"In the recent Supreme Court of Canada case Sobeys West Inc. v. Alberta College of Pharmacists the propriety of Sobeys, awarding Air Miles rewards on purchases of pharmaceutical products was challenged by the Alberta College of Pharmacists, a professional governing body which regulates conduct of pharmacists and pharmacies.
The Alberta Court of Queen's Bench had allowed an application by Sobeys, which also owns and operates Safeway, to apply the reward program to the purchase of pharmacy products.
The College successfully appealed to the Alberta Court of Appeal to on the basis that amendments to the Code of Ethics and Standards of Practice for Pharmacists that prohibited inducements which were conditional on a patient obtaining a drug or professional service from a pharmacy.
That Court of Appeal decision overturned the lower Court of Queen's Bench decision upon judicial review which held that the College's amendments were ultra vires the College and therefore it could not deny rewards to a purchaser of pharmaceutical products under Sobeys' loyalty program.
The Court of Appeal determined that the judge hearing the review had erred in using the wrong standard in finding the amendments to be ultra vires and therefore used the standard of "reasonableness" to substitute its own findings and prohibit Sobeys applying Air Miles to purchases of pharmaceutical drugs and services.
Sobeys application to appeal to the Supreme Court of Canada was dismissed."
(Thanks to the Supreme Advocacy and Eugene Meehan, Q.C.)
Jim is a Partner with Rowanoak Law Office LLP
Tis better to have loved and lost than never to have loved at all. – Alfred, Lord Tennyson
While Tennyson may not have pictured his words being applicable to the problems and costs that can arise in divorce proceedings, these problems and costs may cause some to think that it would have been better to never have loved at all.
Fortunately, a prenuptial agreement may be able to help with some of the costs and problems that can otherwise arise after marriage.
A prenuptial agreement is essentially a contract between two people who plan to marry. This agreement will generally contain terms that will help determine property and debt during marriage or in the case of separation or divorce. There can also be other terms depending on each particular circumstances.
If there is no enforceable agreement and the parties cannot amicably resolve matters, the Court will be required to resolve matters for the parties. This can become more expensive than an initial outlay for an agreement, or even the cost of changing the agreement as matters change over time.
There are also postnuptial agreements for people who have already been married as well as cohabitation agreements for non-married couples.
There are certain requirements required for prenuptial agreements, as well as other agreements, including matters such as each party have independent legal advice, and it is best to talk to a family law lawyer about specific requirements, your circumstances, and whether it is best for you to have a prenuptial or other agreement.
By doing so, and if problems arise, you may be in a position of having loved and lost, but those losses including future losses that can arise from a contested matter, may be able to be mitigated.
Chris is an Associate with Rowanoak Law Office LLP.
If you or your children have been a victim of assault, contact your local police or RCMP detachment immediately. The priority in a situation of this nature is to ensure your safety and the safety of your children. Once you are safe, and the police have been contacted, you may want to proceed with applying for a protection order. Several protection orders are available, but which one is appropriate for you will depend on the facts of your situation. Listed below are a few options you may consider.
Emergency Protection Order.
You may apply for and be granted an Emergency Protection Order (“EPO”) if violence or a threat of violence is occurring between family members. You will need to be able to establish with evidence that immediate protection is necessary, and that family violence may resume or continue.
If the EPO is granted by the Courts, it is enforceable by the police. Failing to comply with the Order will result in criminal sanctions against the respondent. The EPO will direct that the respondent shall have no contact either direct or indirect with you or any individuals listed. Such an order will only be granted in the case of family violence.
A Restraining Order may be granted in situations where individuals fear another individual through their actions. If an individual is threatening, harassing, intimidating, damaging property, or other actions which reasonably cause an individual to fear for their safety or property, you may be granted a restraining order. The restraining order may restrain the individual from contacting you directly or indirectly, harassing, following, attending your residence, or attending your place of work. An Application will need to be filed, and the Respondent shall have an opportunity to respond.
Queen’s Bench Protection Order
A Queen’s Bench Protection Order (“QBPO”) is similar to an EPO and is granted when an individual is experiencing family violence. The key difference between the two is that the application for a QBPO must be served on the family member you are applying against, and the situation does not have to be as dire. Violence which would warrant the granting of a QBPO include; violence causing injury or damage to property, threats that cause reasonable fear of injury or intimidation, stalking, harassing, as well as repeated and unwanted contacted. The family violence must be committed by a member of your family which includes ex-spouses.
Many options are available to protect individuals experiencing family violence. The first priority is to ensure you and your children are safe. If you or your children are experiencing family violence, contact the RCMP or local police detachment immediately. Once you are safe, you can contact legal counsel or attend the local courthouse to consider legal options to ensure your continued safety.
Craig is the Student-at-Law at Rowanoak Law Office LLP.
In any type of law but especially family law, emails, texts and Facebooks posts and messages get attached to Affidavits as evidence of things said and the tone between two parties. Remember before you hit send to review what you said and how you said it to ensure you would be comfortable with the court reading it.
There are programs like Our Family Wizard that not only keep great logs of communications, but for an extra fee can monitor the tone of your messages to make you aware of some phrases or words that can increase conflict. There are also high conflict communication experts who can be hired to reword and rewrite emails to ensure no inflammatory language is included and therefore allowing the parties to deal with the issues about their children and not the language used.
If you ever have a question as to whether or not an email should be sent, err on the side of caution and consult your lawyer.
Allison is an Associate Lawyer with Rowanoak Law Office.
On February 6, 2015, the Supreme Court of Canada made a significant decision in Carter v. Canada that changed the prohibition against medically assisted death. It was illegal for someone to assist in your death if that was your choice. The Court held that the Criminal Code violated the constitutional rights of certain grievously and irremediably ill adult individuals.
After the decision, both the federal government and the provincial governments worked at implementing the new law to what we have today. A person who meets specific criteria can now have their death assisted by a physician or nurse practitioner.
The new law and processes to support it may not be perfect. It may be controversial to some people. It has support by others. It has objections by others. Regardless of where you fall on the spectrum being informed is the best approach. To learn more, check out some of the resources below.
For more detailed information, check out the Government of Canada’s website at https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html
For more information, forms and resources check out the Provincial Governments website at http://www.health.alberta.ca/health-info/medical-assistance-dying.html
For contact sources check out the Alberta Health Services website at https://www.albertahealthservices.ca/info/Page13497.aspx
Kelly is a Partner at Rowanoak Law Office.
Step-parents may be obligated to pay child support to step-children they had during the relationship, depending on the extent of their involvement with the child(ren) during the relationship, and the extent of child support being paid by the biological parent.
The following two cases outline the factors that will be assessed by the court in determining this:
For a quick review, begin reading at paragraph 21 of Omeltchenko and paragraph 6 of Gilchrist.
Jenna is an Associate with Rowanoak Law Office LLP