This Week in Family Law Newsletter

Alberta May Be Joining the Section 19 Club?

For the last 20 years, Alberta has been somewhat out of step with the rest of Canada in the interpretation of "intentional un/ underemployment" in section 19 of the Child Support Guidelines. Unlike in the rest of Canada, in Hunt v. Smolis-Hunt (2001), 20 R.F.L. (5th) 409 (Alta. C.A.), the Alberta Court of Appeal decided that, to impute income under s. 19 of the Guidelines, there had to be "proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations." (para. 42) That is, in Alberta, proof or inference of specific intent to avoid support obligations was required. That has been the law in Alberta since 2001 - an odd situation given that the Child Support Guidelines are a Federal enactment and should attract uniform interpretation across the country. Recently, some Alberta courts have tried to move away from the need to show specific intention. See for example, Keating v. Keating (2017), 5 R.F.L. (8th) 126 (Alta. C.A.); MacDonald v. Brodoff (2020), 42 R.F.L. (8th) 278 (Alta. C.A.) (where the Alberta Court of Appeal recently suggested it might be time to reconsider Hunt); and Smith v. Gulka (2020), 37 R.F.L. (8th) 452 (Alta. Q.B.) (where Justice Yungwirth proposes to depart from the "specific intention" requirement and helpfully summarizes the law in other Canadian provinces).

As a general rule, leave to reconsider a binding precedent will be granted in very limited circumstances: R. v. Effert, 2010 CarswellAlta 820 (C.A.). However, in Peters v. Atchooay, 2021 CarswellAlta 1574 (C.A.), the Alberta Court of Appeal officially accepted the invitation to reconsider its decision in Hunt v. Smolis-Hunt, as part of the recipient's appeal of an order retroactively reducing the payor's child support arrears. Now, we must wait and see . . .

Right Decision - But We Pity the Court That Has to Figure Out Child Support . . .

British Columbia Birth Registration No. 2018-XX-XX581, Re (2021), 55 R.F.L. (8th) 298 (B.C. S.C.) - Wilkinson J.

Usually a "Battle of Experts" Requires More than One Expert

Abu-Shaban v. Abu-Shaban (2021), 55 R.F.L. (8th) 286 (Ont. S.C.J.) - Smith J.

You Mean We're Stuck Here???

Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.R. (2021), 52 R.F.L. (8th) 207 (Ont. C.J.) - Kukurin, J.

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