Hanson v. Hanson et al., (2009) 457 A.R. 77 (CA)

• Judge: Hunt, Ritter and Martin, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 09, 2009
• Citations: (2009), 457 A.R. 77 (CA);2009 ABCA 222

Hanson v. Hanson (2009), 457 A.R. 77 (CA);

      457 W.A.C. 77

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.064

Harris Nathan Hanson (appellant/defendant) v. Gary Hanson and Gary Hanson Professional Corporation (respondent/third parties) and Shelley Anne Hanson (not a party to the appeal/plaintiff)

(0801-0286-AC; 2009 ABCA 222)

Indexed As: Hanson v. Hanson et al.

Alberta Court of Appeal

Hunt, Ritter and Martin, JJ.A.

June 15, 2009.

Summary :

Following the breakdown of their marriage, a wife commenced Matrimonial Property Act (MPA) proceedings against her husband. The husband filed a defence, pleading the existence of a prenuptial agreement pursuant to ss. 37 and 38 of the MPA. Those provisions provided that the parties could avoid the application of the MPA by agreement, so long as each spouse signed the necessary acknowledgment apart from the other party and before an independent lawyer. An issue arose as to whether the agreement was enforceable. The husband issued a third party notice against the lawyer who advised the wife and who oversaw her acknowledgment, denying that the wife had any interest in the property. The lawyer applied to strike the third party notice. A master allowed the application and struck the notice on the basis that the lawyer did not owe a duty to the husband. The husband appealed.

The Alberta Court of Queen's Bench, per Hart, J., in a decision filed on October 20, 2008, following a de novo hearing, upheld the master's order and dismissed the appeal. The husband appealed again.

The Alberta Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 4448

Relations with third parties (incl. opposite parties) - Duty to third parties or opposite parties - Re independent legal advice - [See Family Law - Topic 851 ].

Family Law - Topic 851

Husband and wife - Marital property - Distribution orders - Contracting out - General - A wife commenced Matrimonial Property Act (MPA) proceedings - The husband defended, pleading the existence of a prenuptial agreement (MPA, ss. 37 and 38) - Those provisions provided that the parties could avoid the application of the MPA by agreement, so long as each spouse signed the necessary acknowledgment apart from the other party and before an independent lawyer - An issue arose as to whether the agreement was enforceable - The husband also issued a third party notice against the lawyer who advised the wife and who oversaw her acknowledgment, denying that the wife had any interest in the property - The lawyer applied to strike the third party notice - A master allowed the application and struck the notice on the basis that the lawyer did not owe a duty to the husband - The husband's appeal to the Queen's Bench was unsuccessful - The husband appealed again - The Alberta Court of Appeal dismissed the appeal - The court stated that absent an error of law, the exercise of the discretion of a judge as to whether to strike a pleading was reviewable on the palpable and overriding error standard - Here, the court agreed that on the facts there was no possible duty arising between the lawyer and the husband - The lawyer's duty was to the wife, not the husband - His claim was bound to fail.

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - [See Family Law - Topic 851 ].

Cases Noticed:

Prefontaine v. Veale et al. (2003), 339 A.R. 340; 312 W.A.C. 340; 2003 ABCA 367, refd to. [para. 9].

Corbeil v. Bebris (1993), 141 A.R. 215; 46 W.A.C. 215; 105 D.L.R.(4th) 759 (C.A.), refd to. [para. 12].

Radhakrishnan v. University of Calgary Faculty Association et al. (2002), 312 A.R. 143; 281 W.A.C. 143; 2002 ABCA 182, refd to. [para. 12].

Hearn v. Hearn (2004), 352 A.R. 260; 2004 ABQB 75, refd to. [para. 12].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 13].

White et al. v. Jones et al., [1995] 2 A.C. 207; 179 N.R. 197 (H.L.), refd to. [para. 15].

Martel v. Spitz et al., [2005] A.R. Uned. 22; 40 Alta. L.R.(4th) 199; 2005 ABCA 63, refd to. [para. 15].

McPhail's Equipment Co. v. Ship Roxanne III et al. (1995), 56 B.C.A.C. 217; 92 W.A.C. 217; 2 B.C.L.R.(3d) 393 (C.A.), refd to. [para. 15].

Kamahap Enterprises Ltd. v. Chu's Central Market Ltd. (1989), 40 B.C.L.R.(2d) 288; 64 D.L.R.(4th) 167 (C.A.), refd to. [para. 15].

McAteer et al. v. Devoncroft Developments Ltd. et al. (2001), 307 A.R. 1; 2001 ABQB 917, refd to. [para. 15].

Mastalerz v. Mastalerz (2007), 419 A.R. 323; 2007 ABQB 416, refd to. [para. 18].

Tardif v. Campbell, [2009] A.R. Uned. 738; [2009] A.W.L.D. 860; 2008 ABQB 776, refd to. [para. 18].

Counsel:

R.V.T. Boyden, Q.C., for the appellant;

V.A. Engel, Q.C., for the respondent.

This appeal was heard on May 9, 2009, before Hunt, Ritter and Martin, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved were delivered for the court by Hunt, J.A., on June 15, 2009.