Bar Exam Past Paper PDF - Legislative & Regulatory Systems

LEGISLATIVE AND REGULATORY SYSTEMS Understand core legal concepts applicable to the legislative and regulatory system A. Summarize the sources of Canadian law (common law and civil law traditions, statutory law, constitutional law, inte...

LEGISLATIVE AND REGULATORY SYSTEMS Understand core legal concepts applicable to the legislative and regulatory system A. Summarize the sources of Canadian law (common law and civil law traditions, statutory law, constitutional law, international law) Common Law: the law structured out of a series of cases. The common law is an English invention; it is judge-made law, developed through the common law courts. Initially it did not include any written laws but was simply a collection of court decisions. - Judges do not make the law, only declare it - All relevant past decisions are considered as evidence of the law and judges infer from these precedents what is the true law in a given situation. This keeps the scale of justice even and steady and not subject to opinion - Stare Decisis: term to describe how the common law relies on precedent Questions: What is Stare Decisis? What is the Common Law? Civil Law: Quebec inherited a different tradition – the civil law. France was divided into provinces, each having its own law- making parliament. This custom was codified law which was introduced in Quebec to become the Civil Code of Lower CND. What makes this system different from Common Law is that the Civil Law is not based on cases but on established laws, generally written as broad legal principles. It also includes doctrinal writings and interpretations by scholars (as opposed to the common law judge-centered approach to an application of facts to uncover legal rules) - In civil law countries (including QUE) legislation is seen as the primary source of law; judgements rely on the provisions of codes and statutes to derive solutions - In common law countries even where statutory sources of law are present, there will be reasoning from cases relied on in order to fill in the gaps Bijurialism: this is an expression of the coexistence and integration of two legal traditions; civil and common law. Canada is a mixed law jurisdiction with common law applicable to all matters of private law except in Quebec where private law is based on the Civil law tradition. And Canadian Federal Law derives from the Common Law. Statutory Law: Many areas of law (think contract, tort) develop almost exclusively through the common law however Parliament and Provincial legislatures are free to enact new statutes to displace the common law; they are also free to develop policy in entirely new directions by enacting statutes in undeveloped areas - Hierarchically statutory law is above common law Constitutional Law: At the pinnacle of domestic Canadian law is Constitutional law which comes in both written and unwritten forms. Written is the entrenched legislation incapable of amendment without special procedures and given pre-eminence over conflicting statutory law. Unwritten constitutional law also has this primacy but is the product of judicial decision making - Rule of Law: all exercises of legitimate public power must have a source in the law and every state actor is subject to constraint of the law - Constitutional Supremacy: the Constitution is the Supreme law of the society and any ordinary law that is inconsistent with the constitution is of no force and effect - Parliamentary Supremacy: Subject to the constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute of law and delegate any powers it deems fit - Federalism: parliamentary supremacy in CND is subject to the division of law making powers between a national parliament and the legislatures of the provinces - Separation of Powers: public power is exercised through 3 branches at the federal and provincial level – the legislature, the executive and the judiciary – each with its own function - Judicial Independence: the judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional functions What are all the aspects of Constitutional Law? RCPFSJ International Law: The two most significant sources of international law are treaties and “customary international law”. The executive branch negotiates international law on behalf of Cnd. (1) Treaties: law making contracts between states – there are thousands of treaties between varying number of states binding the world. Treaties are binding on the states that are party to them and no others a. Once a treaty is signed and ratified CND is bound and must comply & the government must DO ITS BEST TO ensure that domestic law does not run contrary to it. However, domestic law is paramount to international law. (2) Customary International Law: these bind all states (binding norm) with the exception only of those who are persistent in its rejection. Customary Law is considered unofficial laws where a certain legal practise is observed and all of the actors involved with it consider it to be law (opinio juris). It is formed by general and universal state practice undertaken by states with a sense of legal obligation - Ex. Universal Declaration of Human Rights What are the two significant sources of international law? B. Describe the role and functions of each branch of government (1) Judiciary resolves disputes according to law – including disputes about how legislative and executive powers are exercised. (2) Legislature (Parliament/Legislature) has the power to make, alter and repeal laws. (3) Executive branch (in particular, the prime minister and ministers, the public service, as well as a variety of agencies, boards, and commissions) is responsible for administering and enforcing the laws. C. Describe the role and functions of the legislative branch of government The main function of the legislative branch is to make laws and to exercise control over government actions. o House of Commons + Senate o HOC responsible for introducing, voting on and adopting laws o Senate – sober second thought – examine legislation before it becomes law The 49 members of the Legislative Assembly of New Brunswick are elected to represent the 55 constituencies of the province and they form the working arm of the legislative branch. Members must fulfill many roles: o They represent their constituents; o They serve as ombudsmen and law-makers; o They act as watchdogs on the government and the bureaucracy. The Legislative Assembly is responsible for approving all provincial statutes, expenditures and taxation measures. D. Describe the role and functions of the executive branch of government Decision making branch (Monarch (Governor General)+ Prime Minister) wrt matters concerning the countries governance The Executive Branch of government is responsible for delivering programs and services to the population within the framework of laws, expenditures, and tax measures approved by Legislature. At the apex of the Executive Branch is the Executive Council (or Cabinet), composed of Ministers appointed from elected Members of the Legislative Assembly of the political party in power. Each Minister (or Member of the Executive Council) is responsible for one or more departments and agencies. Each department has at least one Deputy Minister. Ministers provide political and policy leadership, whereas Deputies provide policy advice and administrative leadership (DMs run the department and the Minister provides direction from central – PO) The Executive Branch directs and oversees day-to-day operations of government. In New Brunswick, the provincial government is composed of four parts: Government Departments and Agencies (Part I), the School System (Part II), the Hospital System (Part III), and Crown Corporations (Part IV). What are the four parts? Describe the role of the executive branch? E. Describe the role and functions of the judicial branch of government Judicial branch interprets and applies the laws – includes judges and the courts and operates independently from the other branches of government. Formally known as the “Queen on the Bench” The judicial branch is composed of both federal and provincial courts. Federal courts include the SCC, the FCC (Trial and Appellate Division), and the Tax Court. o The federal government appoints and pays judges for the superior courts (including CA) in each province (s. 96 Courts of inherent jurisdiction), federal courts and the Supreme Court o Federal courts generally hear matters regarding taxation, administrative agencies, IP, competition law and national security. Provincial courts include the Court of Appeal of NB, the Court of Queen’s Bench of New Brunswick (Trial Division and Family Division), the Probate Court, the Small Claims Court, and the Provincial Court. o The provinces [by virtue of s. 92(14)] are responsible for providing everything the courts under their jurisdiction need, from building and maintaining the courthouses, to providing staff and resources, such as interpreters, court reporters to prepare transcripts, sheriffs, and registry services, to paying provincial court judges. [province responsible for the constitution, maintenance and organization of provincial courts] Justices of the Court of Queen’s Bench and the Court of Appeal are appointed by the Governor General in Council. Judges of the Provincial Court are appointed by the Lieutenant-Governor in Council. Adjudicators (senior lawyers) appointed by the Lieutenant-Governor in Council preside over matters in the Small Claims Court. What courts are federal and what courts are provincial? Under what sections of the Constitution? Judicial Independence: guarantee’s judges will make decisions free of influence and based only on fact and law (1) Security of Tenure: Once appointed, a judge is eligible to serve on the bench until retirement (age 75 for federally appointed judges, age 70 in some provincial/territorial jurisdictions). Judges can be removed by a joint address of Parliament or a provincial legislature, only after an independent and impartial investigation shows that there is good reason (How can they be removed?)  (2) Financial Security: Judges must be guaranteed sufficient compensation (including salary and pension) so they are not subject to pressure for financial considerations. (3) Administrative Independence: No one can interfere with how court manage the legal process and exercise their judicial functions F. Recognize the significance of Official Languages in New Brunswick including relevant legislation and related case law Statute Official Languages Act, SNB 2002, c O-0.5 Section 1.1 – The purpose of this Act is the following: a) To ensure respect for English and French as the official languages of New Brunswick; b) To ensure that English and French have equality of status and equal rights and privileges as to their use in all institutions of the Province; and c) To set out the powers and duties of the institutions of the Province with respect to the two official languages. Constitution of Canada provides that English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the Legislature and Government of New Brunswick Constitution of Canada confers upon the public, in New Brunswick, the right to use English or French in the Legislature and in the courts of New Brunswick, as well as to have access to the laws of New Brunswick in both official languages Bills shall be simultaneously introduced in both official languages before the Legislative Assembly and shall be simultaneously adopted and assented to in both official languages English and French are the official language of the courts; every person has the right to her choice and will not be disadvantaged based on this choice What is the purpose of the official languages act? G. Recognize the significance of Treaties and Aboriginal rights, Aboriginal-Crown relations in the context of the legal system, and relevant legislation and related case law. Initially, during the British North America Act, there was explicit recognition of AB and non-AB legal systems operating concurrently but over time AB laws and governance systems began to be eroded which led to the Crown adjusting (or ignoring or not enforcing) the treaty process to compel AB relocation and assimilation which pushed the communities into small reserved lands. Today there has been shift and the current idea is that the Crown should be held to their word. Section 35: in 1982 the rights of AB people were entrenched in the Constitution Act. S. 35 recognizes and affirms the existing aboriginal and treaty rights of the AB people of CND - “35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” – includes “aboriginal rights” + “treaty rights” - Aboriginal Rights (Van Der Peet + Sparrow): a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one’s own culture, and to establish treaties o Definition of Rights found in Van Der Peet test o These rights cannot be infringed without justification. This is because the Crown owes AB a fiduciary duty o See Sparrow for test with respect to infringement of AB Rights – the government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1) Further, section 25 of the Constitution Act, 1982 protects the Aboriginal and treaty rights that are recognized in section 35 and ensures that no other provision of the Charter can take away or supersede those rights. What does section 35 do? - Existing Rights: ie applies to rights in existence when the Constitution Act 1982 came in to effect so it does not revive extinguished rights prior to that time. - S. 35 falls outside the Charter in that it begins in Part II and therefor is exempt from the “notwithstanding clause” which means the government cannot override Aboriginal Rights Aboriginal Title (Tsilhqot’in Nation): When settlers came, the Indians were there, organized in societies and occupying the land therefore once Aboriginal Title is established, it is presumed to continue until the contrary is proven (ie surrender to the crown). But there continues to be questions as to who has the right to make decisions about land that is claimed by AB people; are there pre-existing and continuing rights? Aboriginal title holders have an exclusive right to occupy the lands, decide how to use the lands, and to the economic benefits of those uses. It is the communal right held for the benefit of all present and future members so that any contemplated uses must not substantially deprive future generations of the benefit conferred by the title. See Tsilhqot’in Nation wrt test for proving aboriginal title, the rights associated with that title and how law applies in situations of proven and claimed aboriginal title What do aboriginal title holders have? How does a claim work? Duty to Consult? Claim: At the claims stage, prior to establishment of Aboriginal title, the Crown owes a duty of good faith to consult with the group concerned and, if appropriate, accommodate its interests.  o As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong – for example, shortly before a court declaration of title – appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim. Duty to Consult: Government and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group. o once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s.35 of the Constitution Act, 1982. Cases R v. Sparrow, 1 SCR 1075 Justification of Infringement of Aboriginal Right First decision with respect to s. 35. Sparrow was charged with violating provincial fishing regulations, he argued that he was exercising his right to fish under section 35(1). The Court held that Aboriginal rights, such as fishing, that were in existence in 1982 are protected under the Constitution of Canada and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada. - Sparrow Test used to determine whether a state action is rendered unconstitutional as a result of unjustifiably infringing on s. 35 right - There’s an existing right what hasn’t been extinguished – it’s been infringed – Crown must justify the infringement The Test wrt an INFRINGEMENT OF ABORIGINAL RIGHT: 1. Existence: Is the practice, custom, or tradition an existing aboriginal right? If there is an aboriginal right, has it been extinguished? (onus on Crown) Does the legal regulation demonstrate a "clear and plain" intention to extinguish the right? 2. Infringement: If the aboriginal right has not been extinguished, and is established, can the claimant show a prima facie infringement of that right? (onus on claimant to show there has been an interference) Is the limitation unreasonable? Does it pose undue hardship? Does the regulation deny rights holders the preferred means of exercising their right? 3. Justification: Can the government justify the infringement? (onus on Crown) – The Sparrow Test 1. Is there a valid objective on the part of the Crown? Compelling and substantial objective, such as a need to conserve the resource. 2. Is the government employing means which are consistent with their fiduciary duty to the aboriginal nation at issue? Was the infringement as minimal as possible? Were their claims given priority over other groups? Was the effected aboriginal group consulted? If there was expropriation, was there fair compensation? What is the 3-step test in Sparrow? The fact that s. 35(1) is not subject to s. 1 of the Charter does not mean that any law or regulation affecting aboriginal rights will automatically be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1). R v. Van Der Peet, 2 SCR 507 Created the “Integral to the Distinctive Culture Test” for Aboriginal Rights Aboriginal Rights given further definition in Van Der Peet – test for identifying whether Aboriginal rights are present “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right”. SCC looked at whether the right to fish extended to commercial fishing – no it does not. Four-step process for a court to follow when dealing with a section 35 claim: 1. Identify the precise nature of the First Nation's claim to an Aboriginal right based on the pleadings. If necessary, in light of the evidence, refine the characterization of the right. 2. Based on the evidence, determine if the First Nation has proved: (a) the existence of the pre-contact practice advanced in the pleadings, and that (b) this practice was integral to the distinctive pre-contact Aboriginal society.  3. Determine if the claimed modern right has a "reasonable degree of continuity with" or is "demonstrably connected to" or is "reasonably regarded as a continuation of" the integral pre-contact practice. This step should be approached in a "generous though realistic" manner, and the modern right must engage the essential elements of the pre- contact practice. 4. If an Aboriginal right to trade commercially is found, that right should be delineated with consideration to the objectives of the pursuit of economic and regional fairness, and the historical reliance and participation in the fishery by non-Aboriginal groups (citing Gladstone and Marshall). What is the process for dealing with a section 35 claim? The Court developed an "Integral to a Distinctive Culture Test" to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The Test has ten main parts: 1. Courts must take into account the perspective of Aboriginal peoples themselves 2. Courts must identify precisely the nature of the claim being made in determining whether an Aboriginal claimant has demonstrated the existence of an Aboriginal right 3. In order to be integral a practice, custom or tradition must be of central significance to the Aboriginal society in question 4. The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact 5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims 6. Claims to Aboriginal rights must be adjudicated on a specific rather than general basis 7. For a practice, custom or tradition to constitute an Aboriginal right it must be of independent significance to the Aboriginal culture in which it exists 8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct 9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence. 10. Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples The scope of s. 35(1) is determined by a purposive approach in light of the general principles which apply to the legal relationship between the Crown and aboriginal people. The fiduciary relationship existing between those parties requires s. 35(1) to be given a generous and liberal interpretation in which any ambiguity or doubt must be resolved in favour of aboriginal people. In order for an aboriginal right to be protected under s. 35(1), an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. The right to fish is different than the right to sell fish. Mitchell v. M.N.R., 2001 SCC 33 Clarification of Step 1 of Van Der Peet The first step in evaluating a claimed Aboriginal right is to assess the true nature of that right without artificially expanding or restricting its scope. This requires three separate analyses in itself. 1. one must examine the nature of the current action which is being performed supposedly in the furtherance of an Aboriginal right; 2. the conflict between that right as asserted and the state action which allegedly infringes that right must be examined, including an analysis of the purpose and scope of the impugned state action; and 3. evidence must be adduced which links the current action to an historical, pre-European Aboriginal practice, custom or tradition. How do you assess the true nature of a right? Evidentiary rules should be relaxed or applied with flexibility in Aboriginal rights cases. In particular, oral histories may be invaluable forms of proof where an Aboriginal society did not routinely generate written records or where those records are for whatever reason unavailable. These histories are generally admissible where their necessity and reliability can be shown, subject to a trial judge's overarching discretion to admit or exclude evidence. Nevertheless, as in any civil action, Aboriginal rights claims must be established by persuasive evidence and proved on a balance of probabilities. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73  Consultation + Accommodation and the Honour of the Crown The honour of the Crown requires that the Government consult on relevant issues with indicant bands when their assertion of aboriginal rights is sufficiently strong. In appropriate circumstances, a duty to accommodate may also arise. The fact that the rights claimed had not yet been proven did not negate the duty to consult. Knowledge of a credible but unproven claim is sufficient to trigger the duty to consult and possibly accommodate. The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the band’s claim that a right is present, and the potentially adverse effects of the impugned activity on the aboriginal title. The duty does not rest exclusively with the federal Government but extends to the provincial Government as well. What is the general rule coming out of this case? The Crown, and Crown alone, has a legal duty to consult with aboriginals when making decisions that could infringe upon their rights or lands. The extent of the duty varies with the strength of the claims. If the claim is strong, then the Crown has to accommodate the aboriginals and allow them to participate in the decision-making process, but weak claims require only notification. Tsilhqot’in Nation v.British Columbia, 2014 SCC 44 Aboriginal Title The SCC decision overturns the Court of Appeal’s narrow view of Aboriginal title being limited to instances of intensive, site- specific occupation and restores the trial judge’s view that Aboriginal Title exists on a territorial basis. Aboriginal title is a beneficial interest in land, being the right to use and manage it, enjoy it, occupy it, possess it, and profit from its economic development Test. The test for Aboriginal title is based on sufficient, continuous and exclusive occupation by a First Nation prior to European sovereignty and does not bar nomadic and semi-nomadic people from proving an Aboriginal title claim. A court should emphasize integration of Canadian common law and Aboriginal perspectives in applying this test. Territorial Scope. The SCC confirmed that Aboriginal title is not necessarily confined to specific settlement sites, but may extend to tracts of land that Aboriginal peoples regularly used prior to European sovereignty. Duty to Consult. The SCC also confirmed that where Aboriginal title is asserted, but not yet confirmed by court declaration or by agreement, the Crown still owes the duty to consult with the First Nations. Control of Land. The SCC decided that once a First Nation has established Aboriginal title, the title holders have "the right to determine, subject to the inherent limit of group title held for future generations, the uses to which land is put and to enjoy its economic fruits" – in effect that the government must seek consent of the title-holding Aboriginal group to proceed with developments on that land. Governments must also ensure that they apply or update any legislation, regulations and policies that may affect that land so they don't unjustifiably infringe the Aboriginal title. Infringement on Aboriginal Title – Right conferred by Aboriginal title mean that governments and other parties seeking to use the land must obtain the title-holding group’s consent. If the Aboriginal group does not consent, the government may justify the proposed incursion on the land under s.35 of the Constitution Act, 1982. the Crown must have carried out consultation and accommodation; the Crown's actions must have been supported by a compelling and substantial objective; and the Crown's action must have been consistent with its fiduciary obligation to the Aboriginal body in question Even where the Crown consults about, and has a compelling, substantive objective with respect to, the encroachment or incursion on Aboriginal title, it still has to show that such incursion is consistent with the Crown’s fiduciary duty such that the future generations of the Aboriginal groups are not substantially deprived of the benefits of the land Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42 Language Right The appellants in the case – the Conseil scolaire francophone de la Colombie‑Britannique, the Fédération des parents francophones de Colombie‑Britannique, and three parents who are rights holders – alleged that British Columbia had infringed the minority language educational rights guaranteed by s. 23 of the Charter by underfunding the French-language education system. The appellants claimed that the school board had not received an annual grant for school maintenance and funding, nor funding for improvements of existing schools. The province maintained it could not provide all the services the school board requested, at a cost of over $300 million, and that there were an insufficient number of children to justify the expense. In conducting the analysis under s. 23, a court must bear in mind that the section has three purposes – preventive, remedial, and unifying in nature – which are “intended not only to prevent the erosion of official language communities, but also to redress past injustices and promote the development of those communities,” Chief Justice Wagner wrote. The unifying purpose is to allow citizens to “move anywhere in the country without fearing that they will have to abandon their language and culture.” Additionally, each of the provinces has the power under the Constitution to make laws governing the language that is used in its courts. This power comes from the provinces' jurisdiction over the administration of justice (see section above). The British Columbia legislature exercised this power and required civil proceedings, including exhibits attached to affidavits filed as part of those proceedings, to be in English (this was from a 1731 English Act that was received into BC Law). This is apparently totally fine. French Language School Board ask this Court to hold that the British Columbia courts retain a residual discretion to admit documents in languages other than English without an English translation (they want to file affidavits in French only). The Court held that no such discretion exists. The British Columbia legislature has ousted the inherent jurisdiction of the courts and has required that court proceedings in the province be conducted in English. The B.C. legislature has exercised its power to regulate the language to be used in court proceedings in that province. In doing so, the legislature has ousted the inherent jurisdiction of the courts and, therefore, no residual discretion exists to admit documents in other languages without an English translation. The Charter does not require any province, except for New Brunswick, to provide for court proceedings in both official languages. Although the Charter reflects the importance of language rights, it also reflects the importance of respect for the constitutional powers of the provinces; federalism is one of Canada’s underlying constitutional principles. It would be open to the B.C. legislature to enact legislation to authorize civil proceedings in French, which would no doubt further the values embodied in the language rights provisions of the Charter. However, in the absence of such an initiative, one cannot be imposed by the Court. What does this case stand for? R v. Beaulac, 1 SCR 768 Absolute substantive rights to trial in official language of choice – Criminal Beaulac had been denied this right to be heard in French, since one judge found Beaulac's skills in English were adequate though not perfect. — Accused appealed with leave to Supreme Court of Canada — Appeal allowed — Section 530, Criminal Code, creates absolute substantive right to trial in official language of choice — New trial required to give effect to nature of constitutionally protected minority official language rights. Court gave liberal and purposive approach to interpretation of language rights in the Charter. - It is incumbent upon courts to avoid a restrictive interpretation of legislative and constitutional provisions dealing with language rights. Ie. Beaulac guards against a restrictive interpretation of provisions dealing with language rights - S. 530 of CC allows accused to be heard in court in his language if it is one of the official languages of CND What does s.530 of the CC do? Fraser v. P.S.S.R.B., 2 SCR 455 The leading case in Canada on the duty of loyalty in the federal public sector **Pre-Charter case** CRA employee publicly and loudly criticized the Government’s policies (introducing the metric system and the Charter). There must be a balance between (1) the right of an individual to speak freely on important public issues and (2) the duty as a public servant to fulfill his function as an employee of the Government Public servants owe a duty of loyalty to their employer, the Government of Canada. This duty derives from the essential mission of the public service to help the duly elected government, under law, to serve the public interest. The duty of loyalty reflects the importance and necessity of an impartial and effective public service to achieve this mission. Some speech by public servants concerning public issues is permissible; however, free speech or expression is not an absolute, unqualified right. There are 3 situations in which the balancing of the duty of loyalty with freedom of expression will likely result in an exception being made to the duty of loyalty: 1. The Government is engaged in illegal acts; 2. Government policies jeopardize life, health or safety; or 3. The public servant’s criticism has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. What are the three reasons weighed that override the duty of loyalty?  R v. Losier, 2011 NBCA 102 Right to use French or English in dealings with or within the public service or institutions, etc. – Police. [NB] Right to communicate with a peace officer in the official language of his choice Charged w. impaired driving but claimed the charge was inadmissible as it was obtained in violation of the accused’s language rights [s. 20(2)]. The court agreed and found that where evidence is obtained in a manner than infringes or denies any rights or freedoms guaranteed by the Charter, the evidence is excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Therefore this will not always be the outcome Ratio: any Canadian has the right to communicate with and receive services from any office of any institution of the Parliament or Government of Canada in English or French. The public in New Brunswick has the same rights as set out above in their dealings with any officer of an institution of the legislature or Government of New Brunswick. Reference RE Manitoba Language Rights, 1 SCR 721 Reference made to verify validity of statutes under s. 133 of the Constitution and section 23 of the Manitoba, both required laws to be in French and English. The Court found that yes, all laws needed to be in both French and English, and those that weren’t held no force and effect. The court however, deemed all current laws to be temporarily valid until translation could be done. This was the first time the court used the remedy of a delayed declaration of invalidity. Legal vacuum resulting from invalidity offending rule of law — Court deeming laws temporarily valid and effective to give province time to translate, re-enact, print and publish invalid enactments. This was done in order to avoid a legal vacuum in Manitoba and to ensure the continuity of the rule of law. This reference was the first time that the courts in Canada had used the remedy of a delayed declaration of invalidity. Despite its exceptional origins, this remedy has grown to become a preferred one in Canadian of public law Palmer v. The Queen, 1 SCR 759 The Criminal Code and the rules of court confer discretion on appellate courts to re-open a trial and admit fresh evidence. The primary consideration is whether admitting additional evidence would be in the interests of justice, and the courts generally utilize four criteria to make this assessment: 1. the evidence should generally not be admitted if by due diligence it could have been adduced at trial; 2. the evidence must bear upon a decisive or potentially decisive issue; 3. the evidence must be credible in the sense that it is reasonably capable of belief, and; 4. it must be such that if believed it could reasonably be expected to have affected the result when taken with other evidence adduced at trial. What are the four criteria? R v. B. (K.G.), 1 SCR 740 Admissibility of prior inconsistent Statements Leading SCC case on Hearsay: Prior inconsistent statements as proof of truth of their contents. There is also a good analysis of Stare Decisis in the decision. This is more likely why the NB Law Society included this case in the legislative component of the review material. Prior to this case, prior inconsistent statements are only admissible only to impeach the credibility of a witness, and not as evidence of the truth of their contents. SCC held that evidence of prior inconsistent statements of a witness other than an accused should be substantively admissible on a principled basis, which must pass the reliability and necessity threshold. Test for Admission of Prior Inconsistent Statement: This is to ensure when using the statement it is reliable (i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allow the jury to make substantive use of the statement. Alternatively, in certain cases, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires. What is the test for admission of prior inconsistent statements? Stare Decisis: Respondent argued that the SCC can’t overrule the prior rule and that any changes to the rule is for parliament to make not the court - this is a common law created rule, the judiciary can overrule themselves - Rules of Evidence are primarily judge made and judges have a duty to review common law rules as they are best situated to assess the operation and possible deficiencies of CL rules - Still, changes will only be small and incremental not major and far-reaching - The court is willing and able, where there are compelling reasons to do so, to overturn its own previous decisions and this is to be done in accordance with these guidelines o Whether the rule must be varied to avoid charter breach o Whether the rule has been undermined by other decisions o Whether the rule has become unnecessarily complex and technical o Whether the proposed change is one which is unfavourable to the position of the accused R v. Comeau, 2018 SCC 15 Stare Decisis Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis. Without this foundation, the law would be ever in flux — subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo. There is a VERY narrow exception where Bedford allows that a legal precedent "may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate": What is the general principle of stare decisis? R v. Gladue, 1 SCR 688 Aboriginal Sentencing Native accused convicted serious manslaughter — Sentencing judge did not consider Criminal Code s. 718.2(e) concerning sentencing of aboriginal offenders, and sentenced accused to three-year term of imprisonment — Failure to consider s. 718.2(e) constitutes error in principle — Provisions enacted to remedy chronic overrepresentation of aboriginal persons in penitentiary population — Accused's aboriginal status properly considered on case-by-case basis as element of overall determination of sentence. The provision is intended as a direction to sentencing judges to take an offender's aboriginal status into account in determining a sentence which is fit and proper in a particular case. The Court must take into consideration the historical background of Canada's aboriginal people, such as colonialism, displacement, and residential schools, and how it continues to translate into all manner of societal impoverishment such as on the educational front, income and employment disadvantages, and higher rates of substance abuse, suicide, and higher levels of incarceration. In the present case, the sentencing judge fell into error by confining the application of s. 718.2(e) to aboriginal persons residing on reserve: the provision speaks of no such limitation and none should be read in. Determining the appropriate sentencing is based on the model of "restorative justice" emphasized in many aboriginal cultures and as an element of Part XXIII of the Criminal Code, which is grounded in a need for offenders to take personal responsibility for their actions and by a desire to heal the victim, offender and community from the damage caused by antisocial behaviour. Rizzo & Rizzo Shoes Ltd. (Re), 1 SCR 27 Statutory Interpretation The employees of Rizzo & Rizzo Shoes Ltd. lost their jobs when the company went bankrupt. All wages, salaries, commissions and vacation pay were paid to the date of the receiving order. The province's Ministry of Labour audited the firm's records to determine if any outstanding termination or severance pay was owing to former employees under the Employment Standards Act and delivered a proof of claim to the Trustee. The Trustee disallowed the claims on the ground that the bankruptcy of an employer does not constitute dismissal from employment and accordingly, creates no entitlement to severance, termination or vacation pay under the Act. The Supreme Court allowed the employees' appeal holding that they were entitled to the payments. While the plain language of the Act seemed to suggest that termination pay and severance pay were payable only when the employer terminates the employment, the Court held that the words of an Act must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament How must words of an Act be read? Valente v. The Queen, 2 SCR 673 Protection of Judicial Independence s. 11(d) of Charter Civil liberties — Independent and impartial tribunal — Judge of Provincial Court (Criminal Division) of Ontario being independent tribunal under s. 11(d) of Canadian Charter of Rights and Freedoms having regard to essential conditions of security of tenure, financial security and institutional independence concerning judicial administration. The Court held that provincial court judges had sufficient independence. The Court stated that a judge needs to be impartial and independent. Impartiality is "a state of mind" while independence is the quality of the relationship the judge has with the executive. The Court went on to say that even if a court acts as if it is independent, if its "objective status" does not match that of an independent court section 11(d) is triggered. Thus, section 11(d) can be considered through a test in which one asks whether it seems reasonable to believe a court is independent. This thus ensures the court has "respect and acceptance." The Court gave three requirements for judicial independence within the meaning of section 11(d) of the Charter. There must be 1) security of tenure, 2) financial security, and 3) institutional independence in administrative matters relevant to the functioning of the judge. SUBSTANTIVE LAW Understand core legal concepts applicable to the practice of family law A. Recognize the significance of relevant family law legislation and related case law All relevance is listed below but on a general point worth noting that is there are three forms of contracts in relationships (1) Marriage contracts – Actual marriage contract (2) Domestic contracts – court may disregard provisions where the spouse challenging it entered the agreement w.o receiving independent legal advise (ie separate from any legal advisor of the other spouse) a. Used to set out their respective rights and obligations during or at the end of their marriage or their cohabitation, or at death. Domestic contracts are legally binding written agreements. Marriage contracts, cohabitation agreements and separation agreements are all domestic contracts. b. In a domestic contract it is possible to change or give up rights and interests under the Marital Property Act (3) Separation Agreements – only here may parties contract as to the right to custody and access (with reasonable terms otherwise court will not enforce) What are the three forms of contracts governing familial relationships? B. Explain the significance of, and progress for obtaining, a divorce in Canada Jurisdiction: NB has jurisdiction if either spouse has been ordinarily resident in the province for at least one year - Applicable only to married couples; common law must resort to Family Services Act upon separation When does NB have jurisdiction to hear a divorce proceeding? Governed by the Divorce Act of Canada Section 8(1) - A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage. o Breakdown of marriage is the only ground for divorce in CND Section 8(2) – Breakdown of a marriage is established only if (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or o Lived apart + intention; clock will run even if incapacity only stops if you reconcile and cohabitate 90+ days (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, (i) committed adultery, or (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. Section 11(1) court will not grant divorce where a) Collusion in relation to application b) No reasonable arrangement for support of children c) Divorce is wrt adultery but spouse condoned it When will a divorce be granted? Section 9(1) of the Divorce Act requires lawyers to discuss with their client the chances of reconciliation and to inform the spouse of marriage counselling or guidance facilities know to him or her that might be able to assist the spouses to achieve reconciliation. Must also advise them to negotiate matters wrt support and custody. A divorce is final when a Certificate of Divorce is received. C. Summarize the intention behind, and process for determining, custody, access, parenting, and guardianship. Custody (parenting time): refers to the right and responsibilities of a parent to make major decisions for his or her child. There are two distinct parts to custody *major decisions do not include access* all day to day decisions are made by the parent who is caring for the child at the time (1) Physical custody – where does the child live - the child will either have a a. primary residence with one parent (custodial parent) and access with the other parent, or i. Access refers to the time the non-custodial parent has the child in their care ii. Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child. b. shared custody – 40% of their time in any year in both homes. i. This is typically the case; court will order it if evidence shows each parent did significant amount of parenting during the marriage (2) Legal custody – who makes major decisions for the child - there will either be a. Sole custody: one parents makes all major decisions for the minor child or b. Joint custody: where both parents make major decisions for the minor child jointly. i. Typically the case unless never co-habited or long time since separation Divorce Act gives non-custodial parent the right to make inquiries wt the child and be given info wrt health, education and welfare. But the FSA does not grant this as a right, it must be written into the order or agreement What are the types of custody and what do they imply? Jurisdiction: Custody/Access is governed by the Divorce Act and the Family Services Act in New Brunswick. The Divorce Act applies to married spouses seeking a divorce or if a divorce as already been granted and the Family Services Act only deals with non-married parents or those not seeking a divorce. (1) Divorce Act: Parenting Time or Access claims can be started where either party has resided for at least 1 year prior to the proceedings, but if the child of the marriage is most substantially connected to another province, the proceedings may be transferred on application. (2) Family Law Act, the court has jurisdiction is the child habitually resides in the province or if the child is physically present at the time of the application or it is deemed to be the best interest of the child, there is no application pending before an extra-provincial tribunal, the child has a real and substantial connection to the province and the NB is the appropriate jurisdiction. (3) Family Services Act, the court has jurisdiction if the child habitually resides in the province or if the child is physically present at the time of the application or it is deemed to be the best interest of the child. The Hague Convention is an Appendix to the New Brunswick Rules of Court. It provides that custody and access determinations occur in the jurisdiction in which a child is habitually resident and court will return them there unless danger. Courts resolves parenting time applications only the basis of what is in the best interests of the child (detailed def’n in FLA and in the DA). This test applies to both Acts. The application of this test is fact-driven and focuses on the child’s needs rather than the parent’s rights. A main principle [maximum contact principle] is that a child should have as much contact with each parents as his or her best interests require. A parent’s conduct or misconduct is only relevant to custody or access if it affects the child or that parent’s ability to care appropriately for the child (ex. drug use). The court may disregard any term of an agreement wrt custody or access if it finds that to do so is in the best interest of the child. Criteria from the Family Law Act: (a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage, (b) the child’s needs, including the need for stability, given the child’s age and stage of development, (c) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life, (d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, (e) the history of care of the child, (f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained, (g) any plans for the child’s care, (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child, (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. As lawyers we should encourage parents to negotiate a parenting plan. This alleviates conflict and lets them determine the best schedule for the child(ren) rather than the courts. Mediators can be used to help negotiate a parenting plan. The Parties may also hire a parenting coordinator to assist them on an ongoing basis in implementing their parenting plan and prescribed circumstances, in arbitrating disputes that arise. If Mediation does not work, then the parties will have to litigate. Once the court determines custody/access it is still subject to change if a material change of circumstances has occurred. On a motion for a variation, a court will vary an existing final order only if the applicant can demonstrate (a) that a material change of circumstances has occurred which was not reasonably foreseeable at the time of the original order; and (b) that a change in the custody or access provisions is in the child’s best interests. Breach of a temporary or final order for custody or access constitutes contempt. The court may impose a fine or imprison a party found in contempt. Contempt proceedings are quasi-criminal in nature. To establish contempt, the applicant must demonstrate beyond a reasonable doubt the breach of the order and that the breach was a result of a deliberate act or failure to act. D. Summarize the intention behind, and process for determining, child support Under section 12 of the Family Law Act, for children under the age of majority the support to be provided is to be determined in accordance with the Federal Child Support Guidelines. For children above 19, use the guidelines as well, and the court will consider whether that amount is appropriate. There is wiggle room for the judge to vary the amount, provided they give reasons. The Federal and Provincial Child Support Guidelines are regulations which prescribe the quantum of child support based on the number of children (under 19) and payer’s income. Objectives of Guidelines are: consistency, efficiency, objectivity, fairness a) To set a fair standard of support so that children benefit from the parents’ financial means after separation; b) To reduce conflict between parents by making the calculation of child support more objective; c) To improve efficiency and encourage settlement by giving courts and parents guidance in establishing child support; d) To ensure consistency in treatment of parents and children in similar circumstances To determine the income the court uses the “Total income” displayed on the T1 General form. If court feels this income is not a fair determination of income they court may have regard to the spouses income over the last 3 years. Where spouse is shareholder/ director or officer of a corporation the court may use pre-tax income of corporation as basis of income. If the court feels a spouse is intentionally diverting income or is intentionally un/under-employed they may impute income to the party. Applicant spouse must provide prior 3 years of tax returns; notice of assessments. The guidelines apply both to divorced parties as well as separating and unmarried parents – all have obligation to their children. Split Parenting Time If there are two or more children, and each spouse has the majority of parenting time with one or more of those children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses. Shared Parenting Time If a child resides primarily in one parent’s home for more than 60 percent of the time, the other parent must pay child support based on the Child Support Tables. Where there is shared custody the court has discretion to depart from the Table amount, pursuant to s.9 of the Guidelines. The court’s discretion is determined by three statutory factors outlined in s.9, which are: The set off between the amount each parent would pay applying the Table amount; The increased costs of the parenting arrangement; and The condition, means, needs, and circumstances of each parent and child If custody of the children is divided, with one or more residing primarily in each parent’s home, child support is calculated as the set off between the amount each parent would pay for the child or children in the other parent’s care apply the Table. Additionally, the court has discretion to depart from the presumptive Table amount for eligible children over the age of majority if the court finds that amount inappropriate, having consideration to the financial means, needs, and conditions of the child and the parents. How does shared parenting time work? Special or extraordinary Expenses S. (7) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:  a) Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; b) that portion of the medical and dental insurance premiums attributable to the child; c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; e) expenses for post-secondary education; and f) extraordinary expenses for extracurricular activities. Where extraordinary expenses are those to which are above that which the requesting spouse can cover or (1) the nature and number of educational/extracurricular activities; special needs or talents of the child; overall cost of the activities What are extraordinary expenses? Courts can also differ from the guidelines where it would cause undue hardship to the payor spouse. Ie the guideline amount, when combined with other circumstances may create undue hardship. To prove undue hardship you must show both (1) circumstances would make it hard to pay the amount or support the child on the amount you’re receiving and (2) your household’s standard of living is lower than the other parents. Examples include high debts; high costs associated with access; legal duty to support another dependent child or any other person How do you prove undue hardship? E. Summarize the intention behind, and process for determining spousal and partner support Should use the Spousal Support Advisory Guidelines (SSAG) Common Law Spouses: Under s.14 of the Family Law Act, every spouse has an obligation to provide support for themselves and their spouse to the extent they are capable of doing so. The support requirement applies to partners that have been living together for at least 3 years, during which one partner has been financially dependent on the other OR there are in a family relationship of some permanence where there is a child born of whom they are the natural parents. Married spouses – Section 15.2 of the Divorce Act. The court shall take into consideration (a) the length of time the spouses cohabited (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Spousal misconduct does not play a role in spousal support. The objective of spousal support is set out in s. 15.2(6). a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) relieve economic hardship of the spouses arising from the breakdown of the marriage; and d) promote economic self-sufficiency of each spouse within a reasonable period of time. Where both child and spousal support orders are being considered, court will give priority to child support. This may result in the spousal support order not being made or made in an amount lesser than it otherwise would have been. Therefore any variation in the child support order will constitute a “change in circumstances” for the purpose of applying for a spousal support order F. Summarize the intention behind, and process for determining, matrimonial property division Limitation Period – section 3(2) of the Marital Property Act provides that an application for marital property must be made no more than 60 days after a divorce. In the event of the death of a spouse, no application to divide marital property may be made later than four (4) months from the date of death. Marital Property: consists of family assets that a married couple acquired either before or during the married. Where family assets include property owned by one or both spouses and are ordinarily used and enjoyed by them and their children while they are living together for shelter or transportation, or for household, educational, recreational or social purposes. This includes shares in a corporation, partnership, trust etc… if the property would otherwise be considered family assets. a) Property acquired before or during marriage b) Which was ordinarily used or enjoyed for shelter, transportation, household, education, recreational, or social purposes by a. Both spouses or b. One or more of the children while spouses were cohabiting What is martial property? In New Brunswick the law recognizes that contributions of both spouses to a marriage are of equal importance and each spouse is entitled to an equal share of the marital property except in certain special circumstances. Spouses have the right to a share of the marital property and they are equally responsible for a share of the marital debts. Those are debts which you and/or your spouse acquired while you were living together. Exclusion of Family Assets: Marital property should be divided in equal shares but a court has jurisdiction to exclude specific family assets from division that were acquired before the spouses married, or by one spouse as a gift from the other spouse or as a gift, devise or bequest from any other person, if in the Courts discretion that it would be unfair and unreasonable to the owner to include the family asset in the division of marital property. Section 6 Unequal division of marital property: Courts can order unequal division of marital property if the court’s deem that division of equal shares would be inequitable (Section 7) or the spouses have agreed in a domestic contract to share unequally Division of non-marital property: The Court can make a division where a spouse has, through transfer, indebtedness, mismanagement or other means, unreasonably impoverished the marital property or the result of the divisions of marital property would be inequitable in the circumstances. Marital home owned by a corporation: a share or shares, or an interest in a share or shares, of a corporation entitling the owner to the occupation of a martial home owned by the corporation shall be deemed to be an interest in the marital home. Section 17. Exclusive possession of marital home: A court can direct that one spouse to be given exclusive possession a marital home or part of it for such period as the Court directs. The court may add conditions e.g. period payments to the other spouse etc... The Court may be made only if, in the opinion of the Court, other provisions for shelter is not adequate in the circumstances or it is in the best interests of a child to make an order. How is marital property divided? G. Identify the potential legal implications of domestic violence, including protection orders If possible domestic violence, make sure your client is safe to go back home. This includes to ensure that there isn’t a threat of abuse to occur to his or her child as well. Due to abuse mediation may not be possible. Make sure that the abuse is clear in the application to the Court. A restraining order may be required – Section 128 of the Family Services Act Client should request sole custody because joint custody probably not work well in scenarios of domestic violence. Access should also be reviewed. If the child may be harmed, perhaps there should be supervised access or in extreme cases no access. Spousal support may be effected. Spousal misconduct cannot be used to determine spousal support but if the abuse was left the victim emotionally and/or physically compromised, that should be set out in the application as a factor to be legitimately considered as relevant to the issue of support. Intimate Partner Violence Intervention Act Definitions: - Intimate Personal Relationship: relationship between two people who have been married, been in a conjugal relationship or have been dating/romantically involved, regardless of whether they have lived together - Intimate Partner Violence: violence committed by one against another who has been in an intimate personal relationship and includes – abusive, threatening or harassing or violent behaviour used as a means to psychologically, physically, sexually or financially coerce, dominate and control the other member of the relationship and deprivation of food, clothing, medical attention, shelter, transportation or other necessities of life. A respondent who encourages/solicits another person to do the act ^ is deemed to have done it personally Emergency Intervention Order: EIO - on application and without notice an order can be made if the person determined that (1) intimate partner violence has occurred or is likely to occur and (2) the seriousness and urgency of the situation warrants making the order. o This determination is made considering history of violence between the parties, nature of the violence, repetitive or escalating nature, the best interest of a child, mental health concerns, any change in circumstance of the respondent (substance abuse, employment, release from jail) o Contents: restrain respondent from interacting with person/place, provision granting temporary exclusive occupation of residence, temporary care/custody of child o Duration: EIO may be granted for a max of 180 day (6 months) and takes effect immediately upon service o The EIO prevails over any existing order under the Family Services Act and the Divorce Act o EIO will be made within 24 hours of the application having been made Application: the victim of the intimate partner violence may apply or someone on behalf of the victim and with the consent of the victim (ie. victim services coordinator, outreach worker at domestic violence program, crisis intervener at transition house, social worker) S. 8 Court Review: within 5 days of the EIO the judge will review the order and supporting documentation and either confirm the order or if believed that there is insufficient evidence the judge will direct a hearing of the matter where the evidence before the designated authority is considered evidence at the hearing. The onus is on the respondent to prove the EIO shouldn’t be confirmed Cases Age of Majority Act (NB) A person is no longer a minor in NB after turning 19 Bracklow v Bracklow, 1 SCR 420 Three Basis for Spousal Support There are three bases for spousal support in Canada (1) Compensatory – spousal support should address the economic impact of the relationship on the parties ie. what was the role you assumed in the relationship and how did this impact future income earning capacity (Moge) (2) Contractual – based on agreement (3) Non-compensatory – rare cases where there is no children but dependency and need that is not due to role undertaken in marriage – support required where there is a disparity of needs/means after the marriage even if that disparity is not caused by the marriage a. Think of marriage as a social obligation such that when partner faces hardship they should turn to eachother, not the state What are the three basis’ for spousal support? D.B.S. v. S.R.G., 2006 SCC 37 Retroactive Child Support Four factors should be taken into account when a court is asked to make a retroactive order for child support: 1. the reasons for the recipient's delay in asking for an order updating the amount of child support; 2. any misconduct on the part of the payor, such as hiding income, lying about income or pressuring the recipient not to ask for more support; 3. any hardship suffered by the children as a result of the payor's short support payments; and 4. any hardship that the payor might suffer if forced to pay a retroactive child support order. The award should generally be retroactive to the date when effective notice was given to the payor. Effective notice refers to any indication by the recipient that support should be paid or that the current amount of support needs to be renegotiated. It will usually be inappropriate to make a support award retroactive to a date more than three years before notice was given. However, blameworthy conduct by the payor moves the presumptive date of retroactivity back to the time when increased support should have been paid. Child support is the right of the child and thus it is a parent obligation to support the child in an amount commensurate with their income. Both recipient and payor have responsibility to ensure proper amount is being paid What are the four factors for making a retroactive order for child support and what are the relevant dates? Gordon v. Goertz Leading case on parental relocation and variation of custody order Mobility – custody and access – Parental relocation - Application to vary an existing access plan by a custodial parent seeking to move outside CND. Move of custodial parent allowed only where it is in the best interests of the child with onus on both parents Two-stage test: 1. Party seeking to vary the custody agreement would first have to show that the move would cause a material change in the circumstances of the child. 2. Once this had been established, the judge would embark on a fresh inquiry regarding the best interests of the child. There was to be no presumption in favor of the custodial parent, but his or her views would be entitled to great respect. BI of Child: existing arrangement, relationship, disruption in school/friends etc What is the two stage test for varying an existing access plan? Kerr v. Baranow, 2011 SCC 10 First Main Point from the Decision: In Kerr, the court held that the considerations in D.B.S. also apply to claims for retroactive spousal support, with two modifications. First, the reasons for the recipient's delay are more important in claims for spousal support than in claims for child support. Second, the sort of misconduct that is relevant is misconduct relating to the support application itself. Second Main Point from the Decision: To demonstrate a joint family venture, the complainant must adduce evidence of: ▪ mutual effort of the parties ▪ their actual intent during the relationship ▪ the prioritization of the family unit in decision-making If a joint family venture can be proven, then if the applicant can demonstrate a link between their contributions and that a monetary award would be insufficient, they are entitled to a share of the assets proportionate to their contributions. ▪ In order for a remedy for unjust enrichment, the court must show both ▪ that a joint family venture exists, and ▪ that there is a link between his/her contributions to it and the accumulation of assets/wealth. How does this build on DBS? What is needed to make out a joint family venture, and what is granted if proven? T.M. v. J.B., 2019 NBCA 28 The "modern approach" to statutory interpretation: 1) words not included in the text should not be read in; 2) in New Brunswick, both official language versions of the text are equally authoritative; and 3) when interpreting regulatory provisions, the scheme and purpose of the enabling legislation is critical Van de Perre v. Edwards, 2001 SCC 60 Race is only one factor to determine best interest of a child when dealing with custody. Young v. Young, 4 SCR 3 A custodial parent may require the child to observe a faith until the age of discretion. But there is no "right" to limit the access parent's ability to share his or her religious views with the child, unless that is shown not to be in the child's best interests. Expert evidence on that issue is not required in all cases. The risk of harm need not be established in every case to justify limitations on access. Conflict between the parents is not a sufficient basis for assuming that the child's best interests will not be served. While the possible deterioration of the husband's relationship with his children was unfortunate, the alternative, which would be to prevent them from knowing him as he really was, was also undesirable. This was not a case where the best interests of the children required that the husband's religious expressions be curtailed further than he had already agreed to. Moge v Moge The wife had been a housewife for the duration of the couple’s marriage and had a hard time finding work after they separated. The husband paid spousal support, and submitted an application to have spousal support cut off. The CA held that the husband would be required to provided financial support until she could become financially independent, and he appealed. At the SCC, the court held that marriage is a joint venture and there should be equitable distribution of the disadvantages, including financial, upon the breakdown of the marriage. The SCC lays out the four objectives of s. 17(7) of the Divorce Act: 1) Economic disadvantage 2) Apportionment of financial consequences of care of the children 3) Economic hardship resulting from the breakdown of the marriage 4) Promotion of self-sufficiency of the parties within a reasonable timeframe following the breakdown of the marriage. Self-sufficiency is not attained simply by a finding full-time employment at minimum wage; the recipient’s employment and earnings must be at least somewhat related to the marital standard of living and that enjoyed by the payor’s spouse What are the objectives under s.17(7) of the Divorce Act? Understand core legal concepts applicable to the practice of corporate and commercial law A. Recognize the significance of relevant corporate and commercial law legislation 1) New Brunswick Partnership Act 2) New Brunswick Business Corporation Act 3) Canada Business Corporation Act B. Describe methods of carrying on business (e.g. sole proprietorships, partnerships, limited partnerships, corporations, joint ventures), including advantages and disadvantages of each. 1. Sole Proprietorship – an individual carrying on business on his or her own & with the goal of turning a profit; no legal separation between owner and the business. If you don’t use your own name it has to be registered. o Pros: (1) Easy to start, change, or end (2) Less regulatory, compliance and administrative costs (inexpensive) o Cons: (1) Unlimited liability, the sole proprietor is personally responsible for all the obligations of the business (2) more difficult to raise debt and equity financing (3) Tax disadvantages - typically higher taxes (compared with corporate tax) The money gets included in your personal income compared to if the income was earned through a corporation (3) lack of perpetuity (wrt sol-prop’s death the business dies with it ) 1. Partnerships- A relationship that subsists between persons carrying on a business in common with a view to profit; the partnership does not have a separate legal identity it is a relationship. The Partnership Agreement outlines the nature  and characteristics if specific partnership but the Provincial Partnership Act (NBPA) provides default rules to govern relations that have not otherwise been addressed (ie standard form) : 2 Types General: each partner is liable for the debts and other obligations of all partners to an unlimited degree Limited: a partnership in which there are one or more general partners who are liable for the debts & obligations of the other partners to an unlimited degree and one or more limited partner whose liability is limited to the amount that such limited partner has contributed to the business. You can only lose what you put in. Limited Liability: a partnership in which each partner is jointly and severally liable for all the debts and obligations of the partnership except for liabilities arising from professional negligence, which remain those of the partner whose acts or omissions resulted in the professional liability. Silent partner is the limited partner. o This is what many lawyers & other professionals do What are the different types of partnerships? Explain Pros: (1) easy to start and end (2) shared costs (3) some tax benefits (can off-set with personal income) Cons: (1) The retirement or death or bankruptcy of a partner may result in the dissolution of the partnership itself unless the partners have otherwise agreed as one of the terms of the partnership agreement (2) Contingent on the partnership agreement, a person is typically not allowed to assign or transfer their interest in the partnership without the consent of the remaining partners (3) the act of one partner, if within the scope of his ostensible authority, may be binding on the other partners and affect the partnership property (4) There is no separate existence, a partner may neither contract with nor sue the partnership. What are the pros and cons of a general partnership? 2. Limited Partnerships: a partnership in which each partner is jointly and severally liable for all the debts and obligations of the partnership except for liabilities arising from professional negligence, which remain those of the partner whose acts or omissions resulted in the professional liability. If there is a surname in the name of the partnership, it must be the surname of the general partner or a distinctive part of the corporate name of one of the general partners. If the limited partner uses their surname or a distinctive part of the corporate name of a limited partnership, the limited partner is liable as a general partner to any creditor of the limited partnership who has extended credit without actual knowledge that the limited partnership is not a general partner. A limited partner may contribute money and other property to the limited partnership, but not services. A limited partner’s interest in the limited partnership is personal property. A limited partner is not liable for the obligations of the limited partnership except in respect of the value of money and other property he contributes or agrees to contribute to the limited partnership. The limited partner has the same right as a general partner to inspect and makes copies of or take extracts from the limited partnership books at all times. A limited partner also has a right to a share of the profits or other compensation by way of income and to have his contribution to the limited partnership returned. ALTHOUGH the limited partner can only receive money from the partnership if by doing so it would reduce the assets of the limited partnership to an amount insufficient to discharge the liabilities of the limited partnership to persons who are not general or limited partners. The limited partner may also sue the partnership and conduct other business with the limited partnership. A limited partner has the right to demand and receive the return of his contribution: (a) upon the dissolution of the limited partnership (b) when the time specified in the partnership agreement for the return of the contribution occurs (c) after he has given six months’ notice in writing to all other partners, if no time is specified in the partnership agreement for the return of the contribution or for the dissolution of the limited partnership; or (d) when all the partners consent to the return of the contribution. BUT all liabilities of the limited partnership have to be paid first. Also if the partnership agreement says otherwise, then the limited partners would have contracted out of this section of the partnership agreement. A general partner in a limited partnership has all the rights and powers and is subject to all the restrictions and liabilities of a partner in a partnership without limited partners except that, without the written consent to or ratification of the specific act by all the limited partners, a general has no authority to a) Do any act in contravention of the partnership agreement; b) Do any act that makes it impossible to carry on the ordinary business of the limited partnership; c) Consent to a judgment against the limited partnership d) Possess limited partnership property, or assign any rights in specific partnership property, for other than a partnership purpose, e) Admit a person has a general partner f) Admit a person as a limited partner, or g) Continue the business of the limited partnership on the death, retirement or mental incompetence of a general partner or dissolution of a corporate general partner  The limited partnership is dissolved upon the retirement, death or mental incompetence of a general partner or dissolution of a corporate general partner dissolves a limited partnership unless the business is continued by the remaining general partners (a) pursuant to a right to do so contained in the partnership agreement, and (b) with the consent of all the remaining partners. What are the rights of a limited partner vs. a general partner? 3. Corporations: an entity with a separate legal identity from those who own, control and manage it which is brought into existence by filing the articles of incorporation; can be created federally or provincially Pros: (1) Limited liability of shareholders – the corporation, not its shareholders, owns the undertaking and assets of the corporation and carries on the business. Additionally, the corporate liabilities are those of the corporation; they are not the liabilities of the shareholders (2) Perpetual Existence – continues on until articles of discontinuance or legislatively deemed to be dissolved e.g. failing to file annual returns (3) Transferability of Shares – subject to any restrictions imposed by the articles of incorporation or shareholders’ agreement (4) Corporation not liable for acts of shareholders – the management of the corporation is bested in the board of directors, subject to a USA, a shareholder has no power or authority to deal with the assets of the corporation and cannot make commitments which may be binding on the corporation (5) Financing of Business – easier to access debt and equity financing (6) Income Tax Act – advantages that sole proprietorships and partnerships may not be able to receive ex. corporate tax rate Disadvantages: (1) Costly to incorporate. The corporation pays taxes and then you as a shareholder will have to pay taxes if the corporate entity issues dividends. (2) Heavier regulatory and tax compliance - regulatory requirement that can be burdensome (e.g. securities law). What are the pros and cons of corporations? 4. Joint Ventures: Commercial business activity carried on by two or more parties for a common purpose – usually created for a specific purpose or time period to share resources, profits and losses. 2 types 1. Equity Joint Venture: A separate legal entity pursuant to a contribution of capital by the parties- ex;s include a corporation (shareholder agreement) or partnership (partnership agreement) 2. Contractual Joint Venture: strategic alliances, franchising systems a. How to distinguish a contractual joint venture from a partnership i. Establish degree of separation among the JV of the interests in and ownership of the property of the JV ii. Determine the restrictions on the ability of a co-venture to dispose of its own property iii. Establish that decisions taken by members of the joint venture are unanimous iv. Determine how gross revenues and expenses are allocated to each of the co- ventures as opposed to the calculation of profit or loss at the venture level What is a joint venture and what are some examples? C. Summarize the steps to create and maintain a partnership 1. Partnerships- A relationship that subsists between persons carrying on a business in common with a view to profit 2. File a declaration of limited partnership (Form 1). The declaration includes (section 3(2)) a) The firm name under which the limited partnership is to be conducted a. Registering the name of your partnership: same procedure as sole prop – where the same as the people there is no registration required BUT if you add terms beyond the names you must register. b) The general nature of the business c) The names of the general partners and, for each general partner, i. The surname of the partner ii. The first or other given name by which the partner is commonly known, iii. The first letters of the other given names, if any, of the partner, and iv. The residence address or address for service of the partner, including the street name and number, if any; d) The principal place of business in New Brunswick of the limited partnership and the address, giving street name and number, if any, where the principal place of business is located; e) Such other information as is required by the regulations 3. The declaration filed expires five years after its date of filing unless the declaration is cancelled by filing a declaration of dissolution or the declaration is replaced by filing a new declaration before the expiry date (section 3(3)). A limited partnership is not dissolved if a declaration expires, but an additional fee is an amount prescribed by regulation is payable for the subsequent filing of a new declaration. (Section 3(4)). When a declaration is filed under this Act, a certificate is not required to be registered under the Partnerships and Business Names Registration Act (section 4). D. Summarize the steps to incorporate and maintain a separate legal entity  (1) Either incorporate Federally – Canada Business Corporations Act or provincially - New Brunswick Business Corporations Act a. Provincially: if a corporation's activities are to be confined to one province i. Name protected within province only; must register in every province you carry on business in; required to file annual return in every province it operates in; 1-51% of directors must be CND residents ii. Corporation is required to maintain a registered office in the province specified in its articles of corporation – ie NB b. Federally: if the corporation proposed to carry on business in a number of provinces or in foreign countries, incorporation should be sought under the CBCA. There is however no difference between powers of a federally or provincially incorporated corporation. i. Name protected across CND; must register in every province and file a return in every province (that they carry on business in) + federally; 25% of directors must be CND residents (2) Satisfy Incorporation requirements under applicable statute 1. Verify capacity to incorporate: incorporate (a) at least 19 years of age b) of sound mind, and c) cannot have the status of bankrupt. 2. Reserve the corporate name by doing a NUANS search: the goal is to prohibit the incorporation of a name that is either identical or deceptively similar to a name already on record in NB. Corporate names contain 3 elements a. Distinctive: the identifier (ex. Black’s) b. Descriptive: describes the nature and the principle business of the company (Clothing Store) c. Legal: indicates the status of the company as an incorporated body (Limited, Inc. , ltd.) d. The word or expression “limited, limitee, incorporated, incorporee, corporation or socite par actions de regime federal or the corresponding abbreviation ltd, ltee, inc, corp or SARF shall be part of the name of every corporation 3. To complete incorporation –all are in prescribed form: a. Articles of Incorporation i. Name of incorporation that complies with Section 8 of the NBBCA. ii. Share Structure iii. Share Restrictions iv. Number (or minimum and maximum number) of Directors v. Retractions if any on the business that the Corporation may carry on. vi. Other Provisions b. Notice of Registered Office i. The full address in New Brunswick of the registered office must be stated including the postal code. If the office is changed a notice of change of Registered Office must be filed within 15 days of change. c. Notice of Directors i. When preparing the notice of Directors, the full name, address including postal code, occupation and telephone number must be clearly stated. (3) File articles of incorporation: a Corporation comes into existence on the date shown in the certificate of incorporation (4) File articles of amendment (following shareholder approval) if there are any changes (5) Minute Book: After receiving the Certificate of Incorporation, the next step is to organize the Corporation and prepare a minute book which contains such things as a. Articles; by-laws; resolutions; directors, shareholders and transfer register, shareholders’ ledger, minutes of shareholders and directors, share certificates and forms filed b. Enactment of By laws: the enactment of the by-laws of the corporation by a directors’ resolution and the subsequent affirmation by a resolution of the shareholders. c. Resolution to fix the numbers of directors d. Share Register: Section 48 of the NBBCA requires that a Corporation maintain a share register where it is required to include the names, alphabetically arranged, and the latest known address of each person who is or has been a shareholder, the number of shares held by each shareholder and the date and particulars of the issue and transfer of each share E. Summarize the roles, responsibilities, and rights of directors, officers, and shareholders The corporation is a separate person s. 15(1) but it needs other persons (individuals) to function. This includes 1. Members/Shareholders: They can elect or remove directors & vote at shareholder meetings a. 3 Rights: vote at any meeting of the shareholder, right to receive any declared dividends; right to receive remaining property upon dissolution b. Incidental Rights: a