Law Times

PAGE 12 FOCUS June 20, 2011 • Law Times NEW EDITION CONSOLIDATED ALBERTA FAMILY LAW STATUTES 2011 CONSULTING EDITOR: LAURIE ALLEN Find all of the pertinent legislation for Alberta family law in one resource, conveniently organized to help you find information quickly. The new edition of the Consolidated Alberta Family Law Statutes is now available. Updated annually, this is a valuable resource for all family law practitioners in Alberta New in this edition • Alberta Court Rules (Part 12 – Family Law Rules, and Forms), Alta. Reg. 124/2010 • Amendments introduced by the Wills and Succession Act, S.A. 2010, c. W-12.2, and the Family Law Statutes Amendment Act, S.A. 2010, c. 16 • Updated Practice Notes Couples may avoid merging their affairs Continued from page 9 Th us, in considering whether there is a joint family venture, the actual intentions of the par- ties must be given considerable weight. Th ose intentions may have been expressed by the par- ties or may be inferred from their conduct." Th e fi nal branch of relevant evidence under the new test is "priority of the family." "A relevant question is ORDER # 983529-60609 $109 Softcover May 2011 780 pages Annual volumes supplied on standing order subscription 978-0-7798-3529-4 Multiple copy discounts available AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family," the court said. Johnson believes the top court responded well to the need to revamp the way the doctrine works. "You still need to have un- Untitled-3 1 6/14/11 11:49:29 AM just enrichment, and the com- mon law spouses still need to go through a very lengthy process in my view to establish their rights," he says. "It hasn't been made a whole lot easier in the process, but the thinking and the development of these rules will help people settle these matters out of court, which I think is the larger benefi t." Burnaby, B.C., lawyer Ar- mand Petronio, who repre- sented Kerr, believes the new approach will force closer in- vestigation of the relationship between parties. He suggests individuals may opt to avoid merging their economic aff airs and live independently despite doing so in a common law set- ting. Th at type of arrangement would make it hard for either 'You still need to have unjust enrichment, and the common law spouses still need to go through a very lengthy process in my view to establish their rights,' says John Johnson. side to argue successfully for anything close to a 50-50 divi- sion of assets, he says. "A real microscope has to be taken to the evidence to prove the type of things that are im- portant," he says. "You can live independent fi nancial lives as common law couples but you will have a much more diffi cult time advancing a claim. You almost have to merge into the relationship." For Kerr's other lawyer, Geoff rey Gomery of Na- thanson Schachter & Th omp- son LLP in Vancouver, there are concerns that some individuals may misread the judgment. He fears a superfi cial interpreta- tion concluding that the court is simply saying that, in such cases, it's looking for evidence of a joint family venture. "Th at's not what the case says," he tells Law Times. "Th e case introduces the joint family venture in the spe- cifi c context of deciding what the remedy should be and whether the remedy should be a sharing of assets as opposed to a quantum meruit. You don't get to remedy until you've de- termined whether there's a right. And you get to right in determining A, enrichment, B, deprivation, and C, juristic reason." Moreover, Gomery says the court has affi rmed the ana- lytical framework set out in Garland v. Consumers' Gas Co. Th at analysis is at times diffi - cult to apply, however. It calls for the elimination of a series of possible juristic reasons. Th e defendant may also propose a new category of juristic rea- son that fi ts the case, Gomery notes. "Th en you get into analysis based on reasonable expecta- tions," he says. "Th at's all a little unwieldy, and people will tend to take a shortcut through it. I was just glancing at cases, and they're already taking a short- cut through it. In most cases, that will be reasonable but may give rise to people thinking the case stands for propositions it doesn't really stand for." Untitled-2 1 www.lawtimesnews.com 6/14/11 11:37:28 AM

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