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When asked to make a parenting order, courts will consider family violence as a factor relating to the child’s circumstances and, ultimately, their best interests. But what if the evidence is controverted?
One consideration is credibility. In assessing the appropriate parenting arrangements for a child, credibility of the witnesses is measured. The Nova Scotia Family Court, in H.L. v Z.L., 2018 NSFC 5, helpfully sets out the following factors to consider when making credibility determinations:
While the above factors are an excellent guide to assessing credibility, the Saskatchewan Court of Queen’s bench has acknowledged that, at the end of the day, the focus is on the best interests of the child. The question is how to safely structure parenting in view of the allegations of family violence, as opposed to whether certain, or any, events did or did not occur. Refer to Juraville v Armstrong, 2021 SKQB 73.
So, while there may be conflicting evidence between parties, particularly as it relates to family violence, it remains possible to fashion a parenting plan for the child that will compliment their best interests and safeguard their mental, emotional, physical and spiritual wellbeing.
Contacting a Lawyer on this Subject
The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. Contact Kelsey Dixon at 1-306-933-1359 or k.dixon@rslaw.com to learn more.
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In a session geared especially for owners, Misty Alexander and Jared Epp offer a webinar with a focus on the incoming prompt payment legislation and its impact on infrastructure owners, the design community, and contractors. Register here.
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In a session geared especially for contractors, Misty Alexandre and Jared Epp presented to the Saskatchewan Construction Association on the incoming prompt payment legislation.
The session focused on how the new Builder’s Lien (Prompt Payment) Amendment Act will impact infrastructure owners, the design community, and contractors.
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Of course, a complainant may be unhappy with the outcome of an investigation, particularly if the matter does not proceed to a discipline hearing. It has though been quite rare that a complainant takes steps to appeal the decision of the investigative body.
In a new decision, Cameron v APEGS, 2021 SKQB 318, the court considered an application for judicial review (which is somewhat like an appeal) by a complainant of a decision of an investigative body to not refer a matter to a disciplinary committee. The complainant raised several issues, including that the investigative body’s reasons were insufficient. The complainant sought disclosure of the evidence compiled during the investigation.
The court dismissed the request for judicial review by the complainant. The court found that a complainant had a very limited right to seek judicial review. A complainant has a right to “procedural fairness” to be heard and for an investigation to be conducted.
The complainant though has no right to challenge the reasonableness of the decision of the investigative body. Further, the court indicated that an investigative body is not required to give reasons for its decision. A complainant is not entitled to receive a copy of the evidence compiled by the investigative body.
Essentially, a professional regulator’s investigation is akin to a police complaint. Ultimately, the Crown or police must determine whether charges will be laid. A complainant cannot force charges to be laid.
This decision supports the rights of regulators to control their own processes and conduct investigations as they deem appropriate.
The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. Contact Sean Sinclair at 1-306-933-1367 or s.sinclair@rslaw.com to learn more.
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I practise in the area of estate litigation and am often reminded of the importance of having a clearly drafted Will.
A good recent example comes from the decision in Poole v Dailey, 2020 SKQB 226.
The deceased had left his estate between his two children, Brian and Patricia, on the below terms:
Further, provided that my said daughter takes physical possession of the said residential property within three months from the date of my death and occupies that property as her residence, then I direct that the said residential property and all contents shall be transferred to my said daughter, to be hers absolutely, subject only to any mortgage which may be registered against the property at the date of my death.
The issue before the Court in Poole was thus: Had Patricia taken physical possession of the Regina Beach home, within 3 months of Earl’s death on August 1, 2015?
Regrettably, the Will did not define in black and white terms, what would trigger a finding of “occupancy” or “residency”.
A trial was held. The parties each called evidence to support their own position. Brian argued that Patricia had not resided in the home within 3 months. He relied on:
However, the Court did not find that Brian had qualified himself as an expert witness, for the purpose of introducing expert testimony.
Patricia in turn argued that she had in fact resided in the home within 3 months. She relied on the below:
Ultimately, the Court, therefore, found that Patricia had in fact occupied the Regina Beach home, as prescribed by the will. As such, Patricia Dailey was entitled to absolute title of the property.
Poole offers a practical lesson on the importance of having a carefully defined Will. Here, the costly proceeding could perhaps have been avoided had the Will defined what exact criteria would constitute “occupancy” or “residency”.
The Court’s ruling on costs:
Interestingly, the Court in Poole did not award Patricia her legal costs out of the Estate. The Court held that the proceeding was intended to advance Patricia’s personal interests in the estate. As such, Patricia’s legal fees should not be borne by the estate.
This finding may attract comment. Traditionally, in estate matters, legal fees for successful parties have often been awarded out of the estate. Moreover, they are often paid on the “solicitor client” scale (meaning dollar for dollar costs). The reasoning has traditionally been that the estate should bear the cost of any proceeding aimed at determining the true intention of the deceased, or, of any proceeding caused by an ambiguity for which the deceased was responsible. Such traditional reasoning would have appeared to apply equally in Poole.
It is too early to tell if the costs aspect of Poole may be an outlier decision, or, if it signals a broader departure in Saskatchewan from the prior approach to legal costs in estate matters.
Contacting a Lawyer on this Subject
James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.
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