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
The Alberta Law Reform Institute has released a Report in regard to whether there should be legislated property division rules for common-law couples. The Report also recommends changes to the law for married couples who lived together before marriage, and for adult interdependent partners who are not common law couples.
A link to the webpage is below and there is a further link on that page to the Report.
Chris is an Associate with Rowanoak Law Office LLP.
What is the hidden cost of litigation? The vast majority of individuals who undertake legal action with counsel understand the financial burden associated. Lawyer’s charge for their time and litigation is often time-consuming. The financial costs are outlined in a retainer agreement signed prior to commencing the action. The costs which are not spoken to in any retainer agreement is the mental and psychological toll litigation takes.
I do not purport to be an expert in mental health. My observations are simply that. The purpose of this blog is two-fold. One, highlight the mental toll associated with litigation. Two, help identify way’s litigants can alleviate the anxiety associated.
For most, legal proceedings are completely foreign. Many people have never attended court nor engaged in such a process. In the context of family law, often we are left to deal with extremely sensitive issues such as separation, divorce, a division of assets, and parenting. The parties involved are often individuals who at one point in time cared deeply for each other. Often children are involved only elevating the tension and stress. Litigation is often contentious and adversarial from the beginning and throughout. Pitting the two parties against each other, in the pursuit of one side coming out the victor. Positive feeling’s, emotions, and connections are customarily severed by the end.
Often I am able to see the physical manifestation of stress and anxiety throughout the litigation process. The client will be shaking, crying, sleep deprived, and even feel physically ill. I inquire as to coping strategies they are utilizing throughout the process. Frequently I hear the same lighthearted response of having a drink. I can see the weight of the situation blanketing them. Yet, very few individuals either seek out professional help or engage in any form of mental hygiene. Being engulfed in the matter, they are unable to recognize the cost being paid in terms of their mental well-being. Leaving individuals overwhelmed and burnt out.
Engaging in mental hygiene can be as simple as exercising daily. After exercising people often feel a sense of positivity and accomplishment. Yoga and meditation have been proven to provide similar benefits. Proper diet, can be extremely important. Too often we feel overwhelmed and settle for a meal that is quick and easy but lacking the proper nutrition. Meal’s of this nature leave many feeling lethargic, or it will negatively impact their mood.
For many, a stigma still surrounds the topic of mental health. For this reason, they are unwilling to speak openly with friends, family, or professionals about their mental health. Slowly, we as a society are moving past this damaging stigma. It is perfectly fine to feel overwhelmed by the process. The issue arises when we, speaking collectively, do not address this feeling. Speak to friends, family and professional help if necessary. You are not alone and will only benefit from verbalizing these issues. Remember if you do not properly care for yourself, you cannot properly care for anyone else.
Attached is a link to a TEDx talk from Guy Winch, a psychologist. He asks the audience to take our emotional health as seriously as our physical health.
Craig Donkin is a Student-at-Law with Rowanoak Law Office LLP.
Moving is an inevitable reality that most everyone will have to contend with at some point. There are a lot of things you need to consider when you move, but a move is further complicated when are moving with children – especially if you are separated or divorced.
If you want to move with your children and this will impact the other parent’s rights with respect to the child(ren), there is a strong likelihood that the other parent will have something to say about it. Conversely, if your former partner intends to move away with your mutual child(ren), you will likely want to have a say in what happens.
While this type of issue may be resolved between the parents, seeing as moving does not leave much middle ground (you either move, or you do not), arriving at an agreement may be difficult. In the event that an agreement is not possible, the recourse for a moving parent is a “mobility” application in Court. Importantly, no move should be undertaken without consent of the non-moving parent or a Court Order permitting it.
As with most issues in parenting, the best interests of the child(ren) are of paramount importance, and any move should contemplate how the best interests of the children will be impacted. That being said, it is hardly a straight forward analysis to determine whether a move should be permitted. Indeed it can be difficult to determine what is ultimately in the best interests of the child(ren).
The leading Supreme Court case on the subject of mobility, Gordon v Goertz, lays out various factors that should be considered in any mobility application. Some of the relevant directions the Supreme Court gave in this case were that:
Dealing with relocation with the children and specifically mobility applications are very fact specific endeavors. If you have any questions with respect to potential moves with children, please contact one of our family law lawyers.
Michael Dugas is an Associate with Rowanoak Law Office LLP and practices in Family Law.