Practical Law Archives - LawNow Magazine

Going it alone? Resources for Self-Represented Litigants

June 30, 2015 By Marilyn Doyle

Increasingly, people are finding themselves in court without a lawyer to represent them. They are known as “self-represented litigants” (SRLs for short). The National Self-Represented Litigants Research Study conducted by Dr. Julie Macfarlane revealed that, generally, this is not because individuals have decided that lawyers are unnecessary. In fact, “[b]y far the most consistently cited reason for self-representation was the inability to afford to retain, or to continue to retain, legal counsel.” The study had much more to say about the nature of SRLs and their experience, issues of access to justice, and recommendations on ways to address the consequences of the growing number of people representing themselves. It is a worthwhile read for anyone interested in this topic. (Also, for another discussion of this report see the LawNow article What Self Represented Litigants (Actually) Want [link this])

The process of going to court is complex and time-consuming and SRLs need a great deal of information and support. The report affirms that although online resources have their limitations, they are certainly an important piece of the puzzle.

General Resources

The National Self-Represented Litigants Project (NSRLP) is building on the above mentioned research study by continuing to advocate for changes in the justice system and by creating resources that address some of the identified needs. Coping With the Courtroom: Essential Information and Tips for SRLs is a primer for preparing both emotionally and technically for court. It is packed with information and practical self-help tips. Recognizing that court is not necessarily the best way to deal with a legal conflict, Settlement Smarts for Self-represented Litigants: How to Use Settlement Processes Knowledgeably and Effectively is another “how to” primer. It aims to enable SRLs to make effective, strategic and empowered use of settlement processes – settlement conferences with a judge, mediation, and negotiations and Offers to Settle. It examines purpose and structure, how to prepare, and consequences (what to do if you get an agreement and what if you do not) for each process. One of the freely available tools for legal research is the database of case law and legislation provided by the Canadian Legal Information Institute (CanLII). The CanLll Primer: Legal Research Principles and CanLII Navigation for Self-Represented Litigants can help SRLs understand how to use it.

Family Court

The above mentioned study reports that “[f]igures provided by the provincial ministries of justice show that the proportion of litigants appearing pro se in provincial family court is consistently at or above 40%, and in some cases far higher.” In Alberta, a section of the Alberta Courts website provides Self-help for Family Law with information about family justice services, court procedures and court forms. In four provinces, recognition of this situation has led to the development of specific websites dedicated to helping individuals navigate the family court system: British Columbia, Saskatchewan, Nova Scotia and New Brunswick (bilingual). These websites include topic-driven legal information, explanations of court procedures and access to court forms.

In Alberta, a section of the Alberta Courts website provides Self-help for Family Law with information about family justice services, court procedures and court forms. Navigate by following prompts on each page or from a topic menu on the left side of the page. Also, the Centre for Public Legal Education Alberta provides an introductory booklet, Representing Yourself in Family Court.

Manitoba Justice provides family law publications including the Family Law Public Information Booklet (2014, 122 p.) which covers all aspects of family law but no court forms. For forms and court procedures visit the Manitoba Courts website.

In Ontario, a place to start is the family law section of the Ministry of the Attorney General. It deals with various family law topics as well as providing extensive resource lists. Included here is a nine-part Guide to Procedures in Family Court. Note that this is a bilingual site.

The Community Legal Information Association of P.E.I. provides a wide range of family law publications including Family Court Procedures and Resolving Conflict out of Court.

Civil Court

Again, from the referenced SRL study: “The same trend is spreading to civil courts, with some lower level civil courts reporting more than 70% of litigants as self represented.”

Pro Bono Law Alberta has tackled this by leading a project to create four videos related to civil claims: two are general – Courtroom Etiquette: What to do in Court and Civil Matters: What to do in Court – and two are for specific matters – Landlord & Tenant: What to do in Court and Foreclosure Matters: What to do in Court. Further, they provide a Civil Claims Resource Bank with cheat sheets, reference material and a Resource Manual.

An instructional video from the Canadian Bar Association Alberta Branch, A Successful Day in Court, demonstrates the basics of procedure in civil court for non-lawyers. It is about 25 minutes in length, and uses common types of courtroom disputes to explain the kinds of evidence you may need for your case as well as how to organize and present that evidence to the judge.

For SRLs elsewhere in Canada, check this list of provincial public legal education organizations. Most offer a variety of support materials about dealing with civil claims.

Small Claims Court: A Venue Made for Self-Represented Litigants

June 30, 2015 By Peter Bowal and Jacqueline Bowal

Introduction

A few years ago, while stopped on a major road in congested Calgary commuter traffic, our vehicle was struck from behind by another vehicle. We were hit with such force that our car was pushed into the car in front of us. The road and visibility were excellent and we all knew the cause of the collision when the clueless driver from behind alighted with cell phone firmly planted in her hand. She offered no other explanation for her inattention.

We exchanged personal information and were on our way. As it turned out, this collision left us with a few minor whiplashes, a $300 mechanics bill and scratches on our car. When we tried a few days later to follow up with the distracted driver who had slammed into us, she feigned complete ignorance and indignation. …there is a consumer, or layperson, form of litigation, generally known as small claims procedure, where technicality, expense and time for the parties is reduced. She pretended not to have the haziest idea what we were talking about. Out of fear or panic, or discernment, she hung up. We knew we would never receive an apology, much less modest compensation.

Obtaining financial compensation from other individuals or companies is always a challenge, even when liability for it is clear. The obstacles to recovering compensation are considerable: including launching, winning and then collecting from a lawsuit. It is an expensive, technical and time-consuming process and (because it is a human process) the outcome is never certain. For these reasons, voluntary, non-litigation alternatives to recovering compensation, such as negotiation, mediation and arbitration, are much touted.

However, litigation provides one major advantage, which is to force the other side to deal with the issue. The other good news about litigation is that there is a consumer, or layperson, form of litigation, generally known as small claims procedure, where technicality, expense and time for the parties is reduced. This article describes that procedure in Alberta. The other provinces and territories have very similar procedures.

Preparation

Occasionally, an agency or department of government may be able to help. A claim and remedy may be pursued by the Human Rights Commission, the department of Occupational Health and Safety, the Employment Standards Branch (if you are owed wages) and Service Alberta, which assists with some consumer problems.

At the minimum, you can:

try a form of alternate dispute resolution (ADR);
attempt to talk about the problem with the other side and try to settle it directly; or
send a demand letter. It sets out the facts, and full basis for the claims for compensation that are being made. Usually a deadline for payment or other satisfactory response is inserted. The defendant is advised the matter may proceed to court which will increase costs. [Editor’s note: to learn more about demand letters see this blog post from CPLEA, plus this follow-up post]

Small Claims Court

If these methods don’t work you can sue for and collect up to $50,000 in Alberta small claims court (technically called “Provincial Court of Alberta, Civil Division”). You can hire a lawyer to help you if you wish but you can also do it on your own. Anyone can support and assist your presentation of your case as your agent. Most parties do not hire lawyers in this court and the judges try to make parties feel comfortable without one.

The few matters you cannot sue for in small claims court include:

land ownership;
wills and estates;
malicious prosecution;
false imprisonment;
defamation; and
governmental disputes.

Generally, you must start the lawsuit within two years from the time the matter (default on debt or accident, etc.) arose. There are a few exceptions to this. The small claims process is very well explained on the Provincial Court’s website. If you are suing for a small amount of money – perhaps something under $1500 – the time and effort will probably not be worth it and it may be better to simply write the claim off. There is far more detail there than we can include in this article. This website is an excellent resource and any party contemplating or engaged in a small claims action should read this information.

You have to name all the correct parties to the lawsuit. For example, tenants recovering damage deposits must correctly identify the landlord and not just the property manager. If you cannot locate the defendant, you will not be able to serve him with the lawsuit papers.

If you are suing for a small amount of money – perhaps something under $1500 – the time and effort will probably not be worth it and it may be better to simply write the claim off. This is especially true if you do not expect the defendant to pay the judgment. Collection on a money judgment can be expensive and frustrating. If you are paying for a lawyer to run your case, the financial risk of “throwing good money after bad money” is even higher. There are also non-economic costs of suing such as adverse publicity, stress and mental anguish, uncertainty, time to prepare and prosecute the case, and destruction of relationships. We think you should not sue unless it is for a relatively large amount of money and you have a good chance of getting paid if successful.

Launching the Lawsuit

For most people, especially the first time you start a lawsuit, it feels intimidating and adversarial. It is not an activity that most people do and many find it stressful and overwhelming. If the stakes are high enough and the matter important enough as described above, you may rest assured that the small claims process will be as accessible, fair and comfortable as you will find anywhere in our whole legal system. Most parties appear for themselves, unrepresented by lawyers, and this is precisely what this court is designed for. The staff in the court clerk’s office and the judges are used to explaining and shepherding the parties and witnesses through the small claims process.

The court website contains all the forms and accompanying instructions. The suing party (plaintiff) can complete the initiating form, the Civil Claim, online. For most people, especially the first time you start a lawsuit, it feels intimidating and adversarial. It is not an activity that most people do and many find it stressful and overwhelming. It is printed out, then taken and filed in the courthouse, where the matter arose, which is generally where the other party (defendant) resides. The required court filing fee ($100 or $200, depending on the amount being sued for) is paid at that time.

A copy of that filed Civil Claim must be delivered to (“served”) on the defendant(s), along with a blank form called a Dispute Note that the defendant can fill in and file in the same courthouse. In the Civil Claim, you must state what is called a “legal cause of action.” That means you cannot just complain or write rambling hostile comments. Rather, you must allege facts that give rise to and support an acknowledged legal claim. For example, a claim may be based on a contractual debt that was not repaid, or allege that the defendant was negligent when driving, which caused you injury by a collision.

The plaintiff can take up to a year to serve the claim on the defendant but the defendant has only a few weeks to file the completed Dispute Note. A Civil Claim should never be ignored because the plaintiff may return to the court and obtain default judgment when the defendant has not responded within the prescribed time, which is 20 or 30 days. Even if the defendant wishes to negotiate with the plaintiff, he should first ensure a Dispute Note is filed on time to prevent this from happening. The defendant may also make his own fresh claims, if they can be proven, by completing, filing with the court clerk and serving on the plaintiff a Counterclaim when the Dispute Note is filed. Research has shown that intervention by skilled neutral third parties can substantially assist the litigants to reach a settlement of their own. Serving these kinds of legal documents on people can be unpleasant and confrontational, so you can hire process servers to do that instead, although that will increase your costs.

After the Dispute Note has been filed, the court clerk will set the time, date and place for mediation, pre-trial conference or trial. The court clerk will notify all parties of this by sending out a Notice to that effect.

Court-Based ADR

It was common in the past that the parties would show up to the small claims trial without ever having even spoken with each other. The commencement of the lawsuit had driven them farther apart. Research has shown that intervention by skilled neutral third parties can substantially assist the litigants to reach a settlement of their own. Often there were assumptions and misunderstandings, hurt feelings, distrust, anger or miscommunication between the parties that could be addressed and reduced through expert informal guiding by a mediator. The parties are treated as equals who can explain and be respectfully heard and understood. Many times the failure to hear and understand the other side is what precipitates and drives the lawsuit.

Instead of mediation, a pre-trial conference may be scheduled. The parties meet informally with a judge, set out their positions and try to reach a settlement. If this is not successful, the matter will be scheduled for trial before a different judge.

The Trial

If negotiations, mediation and pre-trial conferencing do not lead to resolution, a trial is the final option. While it is a stressful event, it is important to remain civil and fair. A common mistake is for parties to descend into argumentation about every point throughout the trial. You can tell your story, with your evidence, when you are on the stand and through your witnesses. Do not try to just reinforce your version of events by repeating your own evidence. You can bring out weaknesses in the other side’s case by questions when he gives his evidence. A common mistake is for parties to descend into argumentation about every point throughout the trial. Then you can put it all together in your final summation to the judge. It helps if all parties know and respect these various distinct stages of the process.

Decision and Its Enforcement

After the parties have finished presenting their evidence and summarizing their cases, the judge makes a decision. Most often this is announced in the courtroom within a few minutes of the summations.

The parties will be sent a Certificate of Judgment. That decision or judgment may be paid upon demand. If it is not paid, you may move to seize the defendant’s property or garnishee money that is owed to him, such as wages. Interestingly, if the judgment is related to a motor vehicle accident, you can contact the provincial motor vehicles department and ask that the driver’s licence of the defendant be suspended.

Appeal

Any party can appeal the small claims decision to the Court of Queen’s Bench within 30 days. You complete and file the prescribed Notice of Appeal form at the office of the small claims court clerk. A transcript of the trial must be ordered and filed. The transcript can be expensive. When the matter comes up for hearing, a Queen’s Bench judge will hear submissions as to why you think the small claims judge was in error, as well as the other side. This is the one and only appeal available. The Queen’s Bench decision is final.

Denouement

So, what did we do about the distracted driver who drove into our car during rush hour? Given the small amount of money and minor nature of the injury involved, and the challenges we expected to encounter in litigation, we decided not to pursue any legal action against her. Life is short. Time is precious. We have to carefully choose the battles we fight and this one was too inconsequential even for the rigours and uncertainties of an accessible, layperson-friendly small claims court. Sometimes it just makes the most sense to accept what happens in life and move on.

Resources for Termination of Employment

May 11, 2015 By Marilyn Doyle

The Edmonton Journal recently reported layoff notices way up in 2015: “Between Jan. 1 and Feb. 10, 18 Alberta employers disclosed plans to terminate a total of 4,544 workers.” Further, “Statistics Canada figures show the province gained 13,700 jobs in January, but lost 1,000 in the natural resources sector (it includes oil and gas, mining and forestry) and another 3,700 in the “professional, scientific and technical” jobs category, which includes geologists and engineers working in the energy sector.

If you are laid off, your first question may be whether you were given appropriate notice or termination pay. If you belong to a union, the collective agreement will spell out the requirements as well as a grievance process. Otherwise, you will want to determine whether Alberta’s employment standards apply to you. The Government of Alberta provides a fact sheet on Termination of Employment and Temporary Layoff that outlines the rules. If you residing elsewhere in Canada, you can find the contact information for your employment standards department on this webpage: Labour standards in Canada

The Government of Canada has pulled together a full set of resources to address the concerns that arise when you have lost your job. From this page you can access resources to:

See if you qualify for Employment Insurance ( temporary financial assistance to unemployed Canadians who have lost their job)
Use a checklist about things to do if you lose your job to help you cope financially through these difficult times.
Check out tools to help you find a job, create a résumé, choose a career, and assess your skills.
Explore education and training opportunities, public and private sector job opportunities and hiring programs.
Learn more about education, training, financial assistance and the skills needed to find and keep a job.

If you are carrying significant debt, a job loss can leave you wondering how to manage your payments. Money Mentors provides services across Alberta, while the Credit Counselling Society has locations in BC, Alberta, Saskatchewan, Manitoba & Ontario and toll-free phone service to the Yukon, Northwest Territories & Nunavut. These organizations can provide credit counselling, orderly repayment of debts program, and education and tools for managing your money. They have phone, in-person and online chat services; their websites include a variety of tip sheets and tools such as financial calculators

Finally, as you go through this transition it can be challenging to stay positive and motivated. Many people find inspiration in Ted Talks. Here are four that may fit the bill:

What happens when you lose everything (David Hoffmann)
A kinder, gentler philosophy of success (Alain de Botton)
How to find and do work you love (Scott Dinsmore)
Measuring what makes Life Worthwhile (Chip Conley)

And for some specific tips for moving forward, check out this blog post: Reinvent Yourself – 37 Ways to Stay Marketable.

New website from CPLEA: Laws for Landlords and Tenants in Alberta

March 3, 2015 By Amelia Martin

The Centre for Public Legal Education Alberta (CPLEA) is excited to announce the launch of our newly redesigned Laws for Landlords and Tenants in Alberta website. The new Laws for Landlords and Tenants website reflects the feedback CPLEA received from landlords and tenants across Alberta. It features a modern, streamlined design with enhanced search capability along with the same excellent plain language content that Alberta tenants and landlords have come to expect from CPLEA.

CPLEA has a long history of providing accessible and responsive legal information in plain language to tenants and landlords in Alberta. The new Laws for Landlords and Tenants website will continue to grow and evolve over time to address the changing needs of Albertans. CPLEA’s Laws for Landlords and Tenants in Alberta program, including the redevelopment of the website, is generously supported by the Alberta Real Estate Foundation.

The new website also features CPLEA’s brand new tip sheet for tenants who have lost their jobs due to the economic downturn and dropping oil prices. If your Employment Ends… Laws for Tenants in Alberta explains what options tenants have if they can no longer afford their rent and want to move out early.

If your Employment Ends… Laws for Tenants in Alberta

March 2, 2015 By Amelia Martin

With oil prices dropping significantly and Target closing its doors, thousands of Albertans have lost their jobs. Many thousands more are worried everyday that they could lose their job.

The Centre for Public Legal Education (CPLEA) has created a new tip sheet for Alberta tenants who are having trouble keeping up with their rent due to the economic downturn. If your Employment Ends… Laws for Tenants in Alberta, explains what options tenants have if they want to move out early.

For Albertans who own their homes and are thinking of finding a tenant to supplement their income, CPLEA’s free booklet Renting out a Room in your Home provides key information on the laws surrounding such living arrangements.

You can find more information from CPLEA about renting in Alberta at www.landlordandtenant.org/resources.

CPLEA’s Laws for Landlords and Tenants in Alberta program is generously supported by the Alberta Real Estate Foundation.

Considering Jurisdiction in Interprovincial Custody Applications

November 5, 2014 By Sarah Dargatz

Canadians are mobile and it is not uncommon for families to move between provinces. It is also not uncommon for parents to live in different provinces after a separation. So, if they need to go to court to settle a parenting dispute, which province should make this decision? This is a question of which court has “jurisdiction” over the matter. (For more detail about jurisdiction see the family law column: What, Why and Where: Untangling Jurisdiction in Family Law)

It may be tempting for a parent to simply apply to the court closest to them. Across Canada the laws regarding children are very similar: the “best interests of the child” is the primary consideration. Choosing the most appropriate jurisdiction from the start, even if it is inconvenient to one parent, can set the family on the path to getting the best and quickest decision about their children. Therefore, arguing about jurisdiction can sometimes be a distraction from the true issue: what is the best parenting regime?

Take, for example, a case I witnessed last month. The children had lived with Mom since birth in B.C. After the parents separated, Dad moved to Alberta. The children visited Dad for the summer holiday and he believed that the children should continue to live with him for the whole year. He brought an application for custody in Alberta in late July. When the matter was heard in court in mid-September, Mom’s lawyer argued successfully that Alberta was not the proper jurisdiction so Dad’s application failed. The parents had to start the court process all over again in B.C. Had Dad simply brought his application in B.C., a decision about where the children should live might have already been well on its way to a resolution. This also created instability for the children: they started the school year off in Alberta, were then sent back to B.C., and are likely still waiting for an outcome. Choosing the most appropriate jurisdiction from the start, even if it is inconvenient to one parent, can set the family on the path to getting the best and quickest decision about their children.

Often, legislation will set out when a court can take jurisdiction, but not always. Regarding parenting of children, married parents would usually apply under the Divorce Act. Sections 4 and 5 of the Divorce Act allows a court to hear and determine custody and access applications (also called “corollary relief”) if either parent is ordinarily resident in the province at the commencement of the proceedings, or if both parents accept the jurisdiction of the court. If each parent brings an application, the first application will go ahead. However, s. 6 of the Divorce Act allows a parent to make an application to transfer the issue of custody and access to a court in another province if the child of the marriage is most substantially connected with that other province.

Unmarried parents in Alberta usually apply for parenting orders under the Family Law Act. However, the Family Law Act does not state when a court has jurisdiction over the parenting of children. Therefore, the common law rules regarding forum non conviens (a Latin term meaning “the forum which is not convenient”) apply. The family legislation of other provinces, such as Ontario, allow a court to take jurisdiction where the child is habitually resident in that province.

Whether the test is habitual residence, real and substantial connection, or forum non conviens, the factors are very similar. Generally, if a child was removed from a province without the consent of the other parent, the court will not allow that parent the benefit of taking jurisdiction over the matter. When jurisdiction is challenged in parenting matters, the court will consider the following:

where the child was born;
where the child has spent most of his or her life;
where the child last lived with both parents;
where the child has lived since the separation with the agreement of both parents;
where the child’s extended family lives;
where the child has the strongest bonds;
where the child has connections to school, health care providers, and other members of the community;
where the parents have established a life by setting up a home, finding employment, and engaging in a social life;
where there are other court orders already in place;
whether there is a difference between court processes that will affect how quickly and inexpensively the issue can be resolved; and
whether there is a difference between the laws that will affect the welfare of the child.

Many of these points come down to the basic question: where is the best evidence located?

Another important consideration is whether or not a child was unilaterally removed from one place to the other. Generally, if a child was removed from a province without the consent of the other parent, the court will not allow that parent the benefit of taking jurisdiction over the matter. However, in cases where a child may experience harm if returned to a particular place, such as in situations of family violence, the court may make concessions to address these concerns.

When confronted with interprovincial parenting disputes one parent is sure to be inconvenienced. However, in the long run, there will likely be a better outcome, reached more quickly and inexpensively, if applicants turns their minds to which place has the best evidence and bring an application there.

What, Why and Where: Untangling Jurisdiction in Family Law

October 6, 2014 By John-Paul Boyd

It can be a real challenge to figure out which court to go to when a family law problem needs to be resolved by a judge. You may need to go to a court where you live, or a court somewhere else. If you are going to a court where you live, you’ll have to decide which of the three levels of court you should be going to.

The answer depends:

partly on which legal issues you’re dealing with,
partly on where everyone lives and where everything is located, and
partly on whether you are starting or replying to a claim,

and all of these issues are about jurisdiction.

“Jurisdiction” means a lot of different things but basically refers to the court’s ability to make orders resolving a particular legal dispute, and unfortunately, there are plenty of reasons why a court might or might not be able to deal with a legal problem.

First, I need to explain the structure of our court system.

There are two trial courts and one appeal court in each of Canada’s provinces. A “trial court” is a court that makes orders about legal claims, after hearing the evidence of witnesses and the legal arguments of the parties to the dispute. The two trial courts are the provincial court and the superior trial court, and the superior court has different names depending on the province. …provincial courts are often extremely busy and usually have heavier caseloads than superior courts. (In British Columbia, the superior court is the Supreme Court; in Alberta and Manitoba, it’s known as the Court of Queen’s Bench; in Ontario, it’s the Superior Court of Justice.) An “appeal court” is a court that deals with legal challenges about the outcome of a trial; these courts hear arguments but no evidence.

The provincial court is the lowest level of court and is established by the government of each province. Its jurisdiction is limited because it can only deal with the legal problems that are assigned to it by legislation. However, provincial courts are often extremely busy and usually have heavier caseloads than superior courts.

The superior trial court is a higher level of court and is established by section 96 of the Constitution Act, 1867. The federal government is responsible for appointing superior court judges, and for paying their salaries. This court has “inherent jurisdiction,” which means that it can deal with all legal problems and can make whatever orders are necessary and just, whether there’s a specific law that says they can make those orders or not. In addition to dealing with trials, the superior trial court also hears appeals from the provincial court.

The court of appeal is the highest level of court in each province. It too is a superior court Above the courts of appeal is the Supreme Court of Canada, an appeal court shared by all of Canada. that is established by the Constitution, staffed by the federal government and has inherent jurisdiction. The court of appeal only hears appeals, usually just from the superior trial court.

Above the courts of appeal is the Supreme Court of Canada, an appeal court shared by all of Canada. The Supreme Court hears appeals and references from the federal government. (A “reference” is a legal question that the government needs answered; the last reference involved the terms on which Quebec can leave Canada.) Although the Supreme Court must hear appeals in certain kinds of criminal cases, other cases must get permission to go to that court; appeals in family law cases are rarely heard by the Supreme Court.

As if this wasn’t complicated enough, there’s also the federal court system, a system that works parallel to the provinces’ superior courts and deals with legal problems like taxes, immigration claims and claims against the federal government. Trials are heard by the Federal Court, which can be appealed to the Federal Court of Appeal, which in turn can be appealed to the Supreme Court of Canada. The federal court can hear family law cases, but only when married spouses each start a claim under the Divorce Act on the same day.

Now I need to explain about the laws the federal government can make and those that only the provincial governments can make.

In addition to setting up the superior courts, the Constitution Act, 1867 also divides the powers and responsibilities involved in running a country between the federal government and the provincial governments. Under section 91, the federal government is able to make laws about things like shipping, money, Canada’s first nations and the postal service, as well as “marriage and divorce.” Under section 92, the provinces can make laws about things like railways, taverns, hospitals and logging, as well as “property and civil rights” and “all matters of a merely local or private nature.” As a result, both levels of government can make laws about family breakdown.

Since only the federal government can make laws about divorce, we have the federal Divorce Act. Alberta’s Family Law Act and Matrimonial Property Act are a lot different than British Columbia’s Family Law Act or Saskatchewan’s Children’s Law Act and Family Property Act. This law sets out the rules for how married people get divorced, and, for married people, talks about the care of children after separation, child support and spousal support.

Since only the provincial governments can make laws about property and civil rights and “matters of a private nature,” we have provincial laws that make rules about how property is divided, the care of children before and after separation, child support and spousal support, and sometimes about parental support and the rights of family members like grandparents. However, because each province can make rules about these subjects, the rules change from province to province, sometimes quite significantly. Alberta’s Family Law Act and Matrimonial Property Act are a lot different than British Columbia’s Family Law Act or Saskatchewan’s Children’s Law Act and Family Property Act.

Making things a bit more complicated, in most provinces only the superior courts have the jurisdiction to deal with family law claims under the Divorce Act and the unwritten rules of the common law. Although both courts can deal with claims under the provincial legislation, the provincial courts generally can’t deal with claims about protecting or dividing property.

Finally, I need to explain about the geographic limits of jurisdiction.

As a general rule, the courts of one province won’t deal with legal claims involving people or things located in another province or in another country. There are, as you’d probably expect, lots of exceptions to this rule.

Under the Divorce Act, you can start a claim for divorce in the province where you normally live or in the province where your spouse normally lives, as long as you or your spouse have lived in that province for at least one year. Most provincial laws don’t have rules about jurisdiction like the Divorce Act. In general, the court will let you start a claim involving someone living outside your province as long as there is a connection between you, your relationship or the other party and your province. However, if there is a claim for custody of a child, the court can move the claim to the province where the child has the most ties.

Most provincial laws don’t have rules about jurisdiction like the Divorce Act. In general, the court will let you start a claim involving someone living outside your province as long as there is a connection between you, your relationship or the other party and your province. In other words, the court of Alberta may not want to hear a claim involving a relationship you left in New Brunswick; the court in Alberta may say that it’s better for the New Brunswick court to hear the claim. The rules about property claims are usually more specific: the court of one province can hear claims about movable property (bank accounts, cars, equipment and so on) located in another province, but usually won’t hear claims about immovable property (real estate) located in another province.

Most superior trial courts have rules about when you can start a claim against someone who lives in another province or another country; most of the time you can just go ahead and start the claim, but some courts may ask you to get permission before you serve the other person. The court will not hear your claim unless the other person has been served.

Provincial courts generally won’t let you serve someone who lives outside the province. A few courts, like the Provincial Court of British Columbia, allow service outside the province, but on certain conditions.

Now that we’ve gone through all of this, let’s go back to the question that started this article. Which court should you go to and why?

This question is really only complicated for people who are starting a new claim. If you are replying to someone’s claim, you have to go to the court in which the claim was started, although you can argue that the court shouldn’t agree to hear the case, that it should “decline jurisdiction,” later. If you’ve already been through a trial and are unhappy with the result, you need to go to the superior trial court, if your trial was heard by the provincial court, or to the court of appeal, if your trial was heard by the superior court.

If you are the person starting a claim, here are some of the things you’ll want to think about in deciding which court to go to.

Provincial courts generally charge no or very low fees. Superior courts charge fees for things like starting a claim, making an application and hearing a trial to help reduce their operating costs.
The rules and forms of the provincial courts are usually relatively short and usually written in relatively straightforward language. The rules and forms of the superior courts can be extremely complicated and difficult to understand; law schools have a course called Civil Procedure just to help students understand the rules of court!
Provincial courts are designed for people who don’t have lawyers; the judges and courts clerks expect people not to have a lawyer, try to keep things as simple as possible and will often overlook minor problems with the rules. Superior courts tend to be more rigid with their rules and have high expectations for people involved in a claim.
Only superior courts can deal with claims under the Divorce Act or relating to property, and only superior courts have the inherent jurisdiction to make orders as necessary, whether there’s a specific law that says they can make those orders or not.
There are generally a lot more locations for the provincial court than there are for the superior courts, especially in rural and remote areas of the country.

Here’s a summary chart that shows with sorts of issues the provincial courts can deal with and which only the superior courts can handle. If you don’t need to go to the superior trial court, the provincial court may be your best bet, especially if you’re not going to hire a lawyer.

One last thing needs to be said. You can start a claim in provincial court about some of your legal problems and start a claim in the superior trial court later to deal with the rest. This is fairly common – people often run to provincial court first because of convenience and cost and later find themselves having to start a separate claim to deal with issues about property and divorce – but should be avoided if possible. If you know that you have issues that only superior trial court can deal with, it’s usually easiest to do everything all in that one place rather than having to worry about two separate court claims, two separate sets of court forms, two sets of court rules and obligations to provide information that probably overlap.

How is property divided at the end of a relationship?

September 8, 2014 By Rochelle Johannson

The property rights that you have at the end of a relationship depend on what kind of relationship you had in the first place. Are you married? Living together? If you are married, then the property rights that you have come from Alberta’s Matrimonial Property Act. If you are living together but are not married, then there is no law that sets out how to divide the property.

The Matrimonial Property Act divides property into three different categories: property that will be divided equally, property that will not be divided, and property that will be divided based on what is fair. All of the property from the relationship will fall into one of these three categories. This chart sets out some examples of the different kinds of property.

For unmarried couples, property division is not as clear because there is no law that sets out how to divide the property. Property that you own with your partner is usually divided equally, while you get to keep the assets that are in your own name, and the other person gets to keep the assets that are in their name. If it would not be fair for you to keep all of the assets that are in your name, then your ex can make an application to divide the property based on a claim for unjust enrichment. For example, if you owned the house in your name, and your ex lived with you for ten years and helped you with major renovations, yard work, and other maintenance, then it might not be fair for you to be able to walk away with the entire value of the house when your ex contributed to the value of that asset.

Here is a chart that sets out the process of property division for unmarried people.

The charts in this article are from a new series of booklets, Families and the Law, which was developed by the Centre for Public Legal Education Alberta, in partnership with the Edmonton Community Legal Centre. Each of the five booklets in the series addresses a different area of family law.

Talking to the Police

September 5, 2014 By Marilyn Doyle

The police are key players in the criminal justice system. “To prevent crime and to make sure that there is order in the community, police officers are given special powers to search, arrest and detain any individual who is committing, has committed or who is believed to have committed a criminal offence. However, these powers are limited by certain basic rights guaranteed to all Canadians in the Canadian Charter of Rights and Freedoms.” (Criminal Law and Procedure, CLEA)

There are quite a range of plain language materials available to help citizens understand their rights and responsibilities in relating to the police. Since both the Criminal Code and the Charter are federal laws, this information applies across the country, although many publications also include lists of local resources.

Resources for Adults

A good general overview of this topic is covered by the Canadian Civil Liberties Association in their 12-page booklet “Know Your Rights: A Citizen’s Guide to Rights When Dealing With Police”. It covers the questions:

What if I am stopped by the police?
What if I am stopped by the police while driving?
When can the police search me?
What are my rights if I am arrested?
What if the police come to my home?
How do I make a complaint about the police?” (This section provides resources for every province as well as a national resource for the RCMP.)

From Community Legal Education Ontario comes a similar publication, “Police Powers: Stops and Searches”, which is also available in French, Spanish, Urdu, Arabic and American Sign Language (video). In “Arrest”, the Public Legal Education Association in Saskatchewan explains that whether or not the police can question you depends on the situation. The Public Legal Education and Information Service of New Brunswick describes their bilingual booklet “The Law, The Police and You: Your Rights When Questioned, Detained or Arrested / La loi, la police et vous: vos droits pendant un interrogatoire, une détention ou une arrestation” in this way:

The purpose of this booklet is to provide a general outline of your rights and responsibilities when you come into contact with the police in public. What should you do or say – and, not do or say – when you are questioned or detained by the police? What are your rights if the police arrest you?

Another exploration of questions related to talking to the police comes from the Legal Information Society of Nova Scotia. Their publication “You and the Police/Sur la police” also addresses questions about lie detectors, photographs and fingerprints, and the powers of private security guards.

The British Columbia Civil Liberties Association offers considerable detail on the topic in “The Arrest Handbook”(62 p.). It is important to remember that criminal law deals with young people between the ages of 12 and 18 somewhat differently from adults through the Youth Criminal Justice Act. Note that some of the legislation discussed is specific to B.C. It also broadens its discussion to include citizen or private security arrests, other agency search powers, civil disobedience and anti-terrorist legislation. This publication is also available in Arabic, Spanish, and Vietnamese.

Educaloi uses its short article “Rights during a detention or arrest/ Droits d’une personne en cas d’arrestation ou de detention” to zero in on the nature of three specific rights: to know the reasons; to speak to a lawyer; and to remain silent.

An Alberta law firm, Pringle Chivers Sparks Tesky, takes a bit different approach in their information sheet “What You Need to Know if the Police Want to Speak With You” including looking at such issues as what you might want to know if you think the police are investigating you; whether there is such a thing as an “off the record” conversation with the police; and whether asking to speak with a lawyer might make you “look guilty”.

People’s Law School has a two page fact sheet “Talking to the Police” from which you can learn the basics about criminal law and the role of the police, reporting a crime and being a witness in court, being arrested, and going to court.

Community workers may find themselves struggling to support clients facing criminal charges. They could find help in a recorded webinar from Legal Aid Ontario. “Helping Clients Deal with Criminal Arrest” covers legal rights, the criminal charge cycle and bail process, and what services and supports are available to clients, especially with regard to helping vulnerable clients.

Resources for Youth

It is important to remember that criminal law deals with young people between the ages of 12 and 18 somewhat differently from adults through the Youth Criminal Justice Act. The B.C. branch of the Canadian Bar Association offers a short script, “Young People and Criminal Law”, which discusses the rights of young people if stopped and questioned by the police, if arrested, or if charged with an offence. This is also available in Chinese (simplified; PDF), Punjabi (PDF) and Mandarin (audio/podcast).

Meanwhile, the Public Legal Education Association in Saskatchewan provides “Busted” with information about the Youth Criminal Justice Act, rights on arrest, being charged and detained or released.

Community Legal Education Ontario has created the Youth Criminal Law website specifically for young people accused of committing a crime. It includes a section on “Talking to the Police” and has a parallel site in French that can be accessed with the “Français button” in the top right of the page.

A community group from Toronto has reached out to youth with its video “Know Your Rights” which provides information about their rights when dealing with police, an understanding of powers of arrest, detention, and search, strategies to deal with situations relating to police contact, and an understanding of what recourse is available when someone experiences an abuse of police power.

Conclusion

We need the police to have the authority to address crime. We also need to have protections against indiscriminate use of that authority. Public legal education resources can help us understand the balance between the necessary powers of the police and the necessary rights of citizens.

Can a landlord charge a tenant for renovations?

July 7, 2014 By Rochelle Johannson

I just got a question from a tenant. The landlord replaced all the windows in the rental property, and then gave the tenant a bill for half the cost of the renovations. Seriously.

The tenant doesn’t have to pay the landlord the money. There are some costs that are simply the costs of doing business, and maintaining the property by replacing windows is just one of many costs this landlord is going to run into.

If the tenant had broken a window because, I don’t know, there was an intense game of indoor baseball going on, then yes, for sure, the landlord could charge the tenant for the repair and replacement of the window. Or the landlord could charge the tenant when the tenant moved, and keep some of the security deposit to cover the cost.

The Alberta Residential Tenancies Act doesn’t actually set out who is responsible for repairs and that’s why sometimes, there is confusion about what repairs the landlord can charge the tenant for, and what repairs the landlord can’t. The common sense approach is that any “big” repairs are the landlord’s responsibility and “teeny tiny” repairs are the tenant’s responsibility. So, while the tenant can change the lightbulb, it’s the landlord that installs the new light fixtures when the old ones break.

There are also the Minimum Housing and Health Standards that can help us to decide who should pay for repairs. One of the landlord’s responsibilities is to make sure that the rental property meets these standards. The standards set out that the windows must be in good repair, free of cracks and weatherproof. So, if the windows in the property do not meet this standard, then it’s the landlord’s job to make sure that the windows get repaired or replaced. If the property is not being maintained, then the tenant can call Environmental Public Health and talk to an inspector about the problem that they’re having with the rental.

What should the tenant do? The tenant should tell the landlord, in writing, that he or she is not going to pay for the windows. The tenant could put in reasons why she isn’t paying (and while it might be tempting to write that you aren’t paying because the charge is ridiculous, it’s probably better to refrain). Hopefully the landlord will just go away at this point. If the landlord still insists on being paid, then there are three ways the landlord may react.

The landlord could sue the tenant for half of the cost of the renovation. The landlord is going to have to convince a judge that the tenant should have to pay for the windows, which seems unlikely.
The landlord could keep the security deposit when the tenant moves out. If the tenant doesn’t agree with a charge made against the security deposit, then the tenant can bring an application in Provincial Court or through the Residential Tenancy Dispute Resolution Service for return of the security deposit.
The landlord could pass the bill to a collection agency. If the tenant is contacted by a collection agency, then the tenant can inform the agency in writing that the tenant is disputing the debt, and ask that the landlord prove the debt in court. If the tenant does that, then the collection agency cannot contact the tenant any longer. Service Alberta has a tipsheet about dealing with collection agencies.

In the meantime, the tenant might want to think about moving. If the landlord thinks that the tenant should pay for the windows, what else does he think the tenant should pay for?

Note: Laws about renting are different in each province and territory. Here is a list of places where you can find out about the law in your province.

This article was originally published on the Centre for Public Legal Education blog, Blogosaurus Lex, on Sep. 26, 2012.

This column was produced with the generous support of the Alberta Real Estate Foundation.