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61986.03This paper provides an outline of the most significant privacy-related aspects in the Supreme Court of Canada decision, R v Vu, 2013 SCC 60, which expanded the notion of “privacy” with respect to computer devices and digital contents. In addition, subsequent decisions in the realm of computer privacy are identified and discussed. This paper also highlights, from a more practical perspective, some of the challenges faced by legal counsel dealing with these evolving technological issues within a criminal trial, including a brief discussion on the duty of searching officers to take detailed notes during personal computer device searches.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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61986.02This paper discusses delays in access to counsel, contrary to the s 10 Charter right to timely contact with a lawyer, during the search warrant process. The boundaries of the “exceptional circumstances” justifying delayed access to counsel are reviewed in consideration of the case law, which include the prevention of imminent harm to police or public, preservation against imminent loss of evidence, and real and present danger of jeopardizing an ongoing investigation. In addition, detailed tables summarizing case law relevant to each exceptional circumstance are included in the appendices.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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61986.01After a search warrant is granted, an accused may bring an application before the court for judicial review to determine whether or not the search warrant should have been issued. This type of judicial review, commonly referred to as a Garofoli hearing, is explained in detail in this paper, which discusses how the courts have approached the various procedural aspects of a Garofoli hearing. A brief background on the standard of review and types of review (e.g., whether the warrant’s facial validity or sub-facial validity is challenged) is provided, and principles and procedures related to cross-examination, excision, and amplification are discussed. This paper also considers issues relevant to assessing the affiant’s evidence, as well as the process for dealing with a heavily redacted affidavit. In addition, an alternative to the Garofoli hearing to set aside a search warrant is briefly highlighted.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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61985.05This paper discusses the Federal Child Support Guidelines [Guidelines], with an emphasis on understanding common misapplications of the Guidelines. In particular, the author focuses on sections 4 (high incomes), 7 (special or extraordinary expenses), 9 (shared parenting), and 10 (undue hardship) of the Guidelines, providing a detailed discussion of these sections and a comprehensive review of Alberta’s judicial interpretation and application of these sections in the relevant case law. In addition, practical suggestions and tips regarding best practices are included, with a view to developing creative solutions as an alternative to litigation and/or options for the court if litigation proceeds. Finally, the issue of using life insurance coverage as security for child support obligations is also briefly examined.This paper is part of a collection presented at LESA’s Advanced Child Support program in Edmonton on February 10, 2016 and in Calgary on February 23, 2016.
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61985.04This paper reviews section 7 of the Federal Child Support Guidelines and the Alberta Child Support Guidelines, which allow parents to seek additional reimbursement for special or extraordinary expenses over and above the regular child support amount. In particular, this paper considers the following: calculating income for the purposes of section 7 expenses; determining whether an expense falls under section 7, and if it is necessary and reasonable; determining the onus and evidence needed; and determining extraordinary expenses. In addition, this paper includes a discussion of court discretion, fairness, and consent, and a review of the Alberta Maintenance Enforcement Program in the context of section 7 expenses.This paper is part of a collection presented at LESA’s Advanced Child Support program in Edmonton on February 10, 2016 and in Calgary on February 23, 2016.
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61985.03This paper outlines the information that lawyers need in order to effectively and efficiently deal with post-secondary child support. A brief background discussion on the ABC’s of child support for adult children in post-secondary school is provided, as well as an outline of factors and arguments to consider when determining if a child qualifies for continued support, and if so, what that quantum of support should be. Additionally, the paper provides a legal summary of 12 common issues for counsel to consider when dealing with post-secondary child support, and reviews recent judicial decisions relevant to each issue. An outline of information that counsel should obtain from the child and parent when determining post-secondary child support is also included in the paper’s appendices.This paper is part of a collection presented at LESA’s Advanced Child Support program in Edmonton on February 10, 2016 and in Calgary on February 23, 2016.
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61985.02This paper focuses on and provides guidance for the calculation of child support for very high income earners in Canada, and contains tips for how to succeed in negotiation and litigation. The paper includes a description of relevant legislation for child support, a history of the cases leading up to Francis v Baker, [1999] 3 SCR 250 [Francis], an analysis of Francis, and a history of major cases post-Francis, divided into themes. In addition, some suggestions and thoughts on how to advise clients regarding budgets and proposals for quantum are provided, and there is a discussion of data that relates to child support amounts awarded when incomes are in excess of $1,000,000 per year. Charts that list pertinent details from very high income child support cases are included as appendices.This paper is part of a collection presented at LESA’s Advanced Child Support program in Edmonton on February 10, 2016 and in Calgary on February 23, 2016.
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61985.01This paper is intended to provide insights for family law practitioners into assessing the level of income of self-employed individuals for the purposes of determining child support. The determination of self-employed income is examined in the context of three distinct business models, which serve as case studies: that of a sole-shareholder employee that operates a company; that of a sole-shareholder employee that operates a capital intensive business; and that of an individual that holds a minority share interest in a private company. Considerations for determining self-employed income are discussed, case law is reviewed, and an analysis of each of the three case studies is provided, complete with example calculations.This paper is part of a collection presented at LESA’s Advanced Child Support program in Edmonton on February 10, 2016 and in Calgary on February 23, 2016.
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61984.05This paper considers the practical aspects of preparing court documents. First, the author discusses considerations involved when drafting pleadings, such as where to start, amendments to pleadings, and the risks associated with using precedents. Tips for drafting pleadings without precedents are also provided. Second, drafting considerations for affidavits are discussed, including avoiding arguments and capturing a client’s voice. Finally, the paper addresses interlocutory orders, and reviews the essential components of orders as well as provides tips for organization and including preambles.This paper is part of a collection presented at LESA’s Drafting Pleadings, Affidavits, and Orders: The Pleading Edge seminar Edmonton on February 9, 2016 and in Calgary on February 17, 2016.
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61984.04This paper touches on a variety of different issues relating to pleadings and affidavits from the frontline perspective of a seasoned practitioner. The author sets out the key Rules dealing with pleadings, provides commentary on stylistic elements in pleadings (such as defined terms, for example), and discusses relevant considerations in the drafting process, including factual advocacy v. arguments, exaggerations, and uses and abuses of precedents. Additionally, requests for particulars and limitation defences are reviewed. The second half of the paper focuses specifically on preparing affidavits, and includes a discussion of ethical considerations and the involvement of counsel in the production of drafts. This paper is part of a collection presented at LESA’s Drafting Pleadings, Affidavits, and Orders: The Pleading Edge seminar Edmonton on February 9, 2016 and in Calgary on February 17, 2016.
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61984.02There are two approaches to drafting pleadings: one is to be brief and general, and the other is to tell a story in the pleading. For the latter, pleadings can be an opportunity for practitioners to advocate for their clients’ causes. This paper considers this notion of pleadings as a tool of advocacy, discussing both the advantages of using a more narrative pleading, as well as the potential downsides. Example pleadings are included as appendices to help illustrate some of the items discussed in the paper.This paper is part of a collection presented at LESA’s Drafting Pleadings, Affidavits, and Orders: The Pleading Edge seminar Edmonton on February 9, 2016 and in Calgary on February 17, 2016.
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61984.01Pleadings do more than just serve as a gateway to the litigation process, and as such, serious attention should be given to the content of pleadings. Within this context, this paper considers five fundamental and interrelated principles: pleadings impact the process and outcome of a lawsuit; pleadings define the parameters of litigation; pleadings must include sufficient content to support a cause of action or defence; the content of pleadings restricts the issues which can be properly decided by the court; and pleadings can be amended at any time prior to the conclusion of trial, subject to limited exceptions. The treatment of these principles in select court decisions in Canada, and, more specifically, Alberta, is also discussed. Finally, this paper offers a brief comment on how judicial expectations regarding pleadings have been or might yet be affected by the Supreme Court of Canada’s recent call for a “culture shift” in litigation.This paper is part of a collection presented at LESA’s Drafting Pleadings, Affidavits, and Orders: The Pleading Edge seminar Edmonton on February 9, 2016 and in Calgary on February 17, 2016.
