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61991.04There are numerous duties that an attorney owes to the donor in enduring powers of attorney [EPAs] and serious consequences can arise if an attorney fails to perform those duties. This paper identifies abuses of an attorney’s duties to the donor, what the outcomes for dealing with those abuses are, and the potential process for remedying abuses. To explore these issues, different examples are considered in the context of case law and legislation in Alberta. As well, a sample demand letter, sample statement of claim, and sample originating application are included as appendices to illustrate issues discussed in the paper. This paper is part of a collection presented at LESA’s Enduring Powers of Attorney and Personal Directives program in Edmonton on April 5, 2016 and in Calgary on April 12, 2016.
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61991.03Estate planning often includes preparing enduring powers of attorney [EPAs], but without careful planning and consideration, problems can result. This paper reviews common problems encountered in EPAs, both in the context of case law and the author’s personal experiences. In particular, the role of the attorney is considered, including issues surrounding the duty to account, capacity, removing an attorney, among others. As well, calculating compensation for attorneys is discussed. A basic precedent EPA is included as an appendix, along with suggested paragraphs with respect to an attorney’s duties to account. This paper is part of a collection presented at LESA’s Enduring Powers of Attorney and Personal Directives program in Edmonton on April 5, 2016 and in Calgary on April 12, 2016.
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61991.02Even when prepared by lawyers, sometimes personal directives have drafting issues. The first paper in this set, Personal Directives in a Clincal Setting, provides a practical perspective on some of the challenges that Alberta Health Services [AHS] has experienced with personal directives and the Personal Directives Act, RSA 2000, c P-6, based on experiences in AHS clinical settings. Following a background discussion of informed consent and the AHS policy on consent and personal directives, the paper outlines 8 practice tips for drafting personal directives to avoid common complications seen in the clinical setting. The second paper, Use of Personal Directives in the Context of Physician-Assisted Death, discusses the recent Supreme Court of Canada decision, Carter v Canada (Attorney General), 2015 SCC 5 [Carter], and provides an overview of post-Carter contextual information related to physician-assisted death and personal directives. In particular, additional case law, Quebec legislation, key Canadian governmental reports, and positions in other international jurisdictions are considered. The paper’s intent is to provide a starting point for lawyers asked by clients to prepare personal directives that may contemplate physician-assisted death. These papers are part of a collection presented at LESA’s Enduring Powers of Attorney and Personal Directives program in Edmonton on April 5, 2016 and in Calgary on April 12, 2016.
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61991.01The growing international mobility of clients broadens the considerations involved in estate planning. This paper examines some of the considerations that lawyers should take into account when engaging in incapacity planning for clients who own property or assets in foreign jurisdictions, reside, at least part of the calendar year, in foreign jurisdictions, or who may move to a new jurisdiction and are unwilling or unable to execute new estate planning documents in that jurisdiction. Topics discussed include using Alberta enduring powers of attorney [EPAs] and personal directives [PDs] in other jurisdictions, using multiple, separate situs EPAs and PDs, and considerations for drafting the same. As well, practical tips for solicitors preparing EPAs and PDs are provided. Various tables of concordance related to EPAs and PDs are also included, as appendices, for Canadian provinces and select United States and Commonwealth jurisdictions. This paper is part of a collection presented at LESA’s Enduring Powers of Attorney and Personal Directives program in Edmonton on April 5, 2016 and in Calgary on April 12, 2016.
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61989.01This paper examines developments in jurisprudence throughout 2015 and 2016 in the law of parenting, and within that context, discusses practice observations, practice points, and negotiation strategies. In particular, this paper considers a variety of issues relating to parenting, including the burden required to alter a parenting arrangement; steps that can be taken to uphold shared parenting arrangements; addressing relocation disputes; factors that warrant restrictions on access to children; and tips for analyzing psychological assessment reports. In addition, included in the appendices is a guide for separated parents with practical suggestions for parenting disputes. It contains advice for parents to minimize conflict and its impact on their children, assist with evidence preservation, and provide tools for achieving a positive parenting arrangement.This paper is part of a collection presented at LESA’s Family Law 25 program in Edmonton on March 3, 2016 and in Calgary on March 8, 2016.
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61989.06This paper addresses unjust enrichment in family law through a review of the leading jurisprudence. In particular, several key cases dealing with unjust enrichment, including Kerr v Baranow, [2011] SCC 10 and the more recent decision in Thew v Nichol, 2015 ABQB 556, are summarized, with a detailed discussion of each decision and references to other relevant case law. In addition, included as an appendix is a point-form summary highlighting key elements of each of the cases reviewed.This paper is part of a collection presented at LESA’s Family Law 25 program in Edmonton on March 3, 2016 and in Calgary on March 8, 2016.
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61989.05This paper reviews 5 important decisions from Alberta courts from 2014–2015 that impact the practice of family law in the area of matrimonial property law. The cases considered highlight such issues as the valuation date of assets, filing certificates of lis pendens, financial hardship, pensions, and the intersection of bankruptcy and matrimonial property. Further, one of the most significant recent developments in the area of matrimonial property law, the Alberta Law Reform Institute’s Matrimonial Property Act: Valuation Date, Final Report 107 (September 2015), is reviewed, and its potential impact on matrimonial property-related practice going forward is discussed.This paper is part of a collection presented at LESA’s Family Law 25 program in Edmonton on March 3, 2016 and in Calgary on March 8, 2016.
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61989.04Spousal support is often an uncertain and difficult area in which to advise clients. This paper reviews the legislative provisions related to spousal support and identifies key cases that deal with entitlement, imputing income, the means and conduct of the parties, and interim versus permanent orders. Brief summaries of those recent spousal support cases are provided as an appendix. The paper also includes a discussion of common errors to avoid when dealing with spousal support matters, and provides a list of exceptions that can affect spousal support outcomes.This paper is part of a collection presented at LESA’s Family Law 25 program in Edmonton on March 3, 2016 and in Calgary on March 8, 2016.
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61989.03This paper digests 10 of the most frequently cited judicial decisions on child support rendered by courts of appeal in Canada in the past 3 years. The decisions address aspects of the Federal Child Support Guidelines, SOR/97-175 [Guidelines], that tend to be most prone to litigation, including imputing income (ss 18–19), support for adult children (s 3), special expenses (s 7), and averaging income (s 17). Other provisions highlighted in the cases include retroactive support orders, incomes in excess of $150,000, and shared custody. In addition, a summary discussion of some of the key Guidelines-related issues is also provided.This paper is part of a collection presented at LESA’s Family Law 25 program in Edmonton on March 3, 2016 and in Calgary on March 8, 2016.
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61989.02This paper provides tax tips for family law practitioners in four broad areas, including parenting, child support, spousal support, and property issues. Tax credits, benefits, and deductions are discussed for parents claiming eligible dependants. Additionally, guideline income and potential reductions are discussed in the context of child support, and tax implications for spousal support, including arrears, are reviewed. As well, property issues, such as future tax liabilities on retirement assets and spousal RRSP’s, are considered, and future tax planning tips are provided. Throughout the paper, examples and fact scenarios are provided that help illustrate the concepts discussed.This paper is part of a collection presented at LESA’s Family Law 25 program in Edmonton on March 3, 2016 and in Calgary on March 8, 2016.
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61986.05Today, personal information is no longer kept safely hidden away in our desks and filing cabinets. Instead, in large part due to the near-ubiquity of computers and the Internet, it seems that personal information is created by almost everything and is stored almost everywhere. This paper addresses two topics related to informational privacy concerns. First, law enforcement access to third party information using Criminal Code production orders is discussed. Within this context, R v Fedossenko, 2014 ABCA 314, is used as a case study into production orders, illustrating some of the legal and constitutional issues raised by law enforcement access to third party information. Second, the new “lawful access” provisions of the Protecting Canadians from Online Crime Act, SC 2014, c 31, are summarized and discussed.This paper is part of a collection presented at LESA’s Search Warrants program in Edmonton on February 19, 2016 and in Calgary on February 26, 2016.
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61986.04This paper addresses a number of developing issues in search warrant challenges, and explores how traditional search and seizure concepts have adapted (or not) to deal with emergent social issues, with a particular emphasis on establishing a reasonable expectation of privacy and the need for a flexible approach to respond to changing social norms. Establishing a reasonable expectation of privacy to challenge any state intrusion is discussed, with practical advice for building the evidentiary foundation. As well, police reliance on illegally obtained evidence and the principles of excision and exclusion are considered. Finally, reasonable expectations of privacy in public and common areas are discussed in the context emerging and relevant judicial decisions.This paper is part of a collection presented at LESA’s Search Warrants program in Edmonton on February 19, 2016 and in Calgary on February 26, 2016.
