Alberta Law Reform Institute Report on Alteration and Revocation of Electronic Wills

The Alberta Law Reform Institute (ALRI) has published its final report on the Alteration and Revocation of Electronic Wills.

This comes as a companion to the ALRI's 2023 report on the Creation of Electronic Wills.

"ALRI recommends that the alteration and revocation of electronic wills should be governed largely by the same rules currently found in Alberta’s Wills and Succession Act (“WSA”), with additional witness requirements for certain acts of revocation (...)"

"What is the problem?
Testators should be able to change or alter their electronic will after it has been created. Similarly, testators should be able to revoke an electronic will. However, electronic wills present a unique challenge. Unlike a pen mark on a paper will, it is harder to identify when an electronic will has been altered or revoked by a key stroke. It is also harder to identify whether or not the person making the changes actually intended them to alter or revoke their electronic will. To ensure the law properly supports people changing or revoking electronic wills, these issues must be adequately addressed. Additionally, the rules surrounding electronic wills should reflect the expectations of testators to ensure that the probate system continues to function justly and efficiently."

"Legal Research
ALRI conducted in-depth legal research for this project. That research included a review of the current wills law in Alberta, and comparative research with other jurisdictions. The review of Alberta law provided ALRI with a background on the formalities required to alter or revoke a paper will under the WSA, and the purposes those formalities serve. ALRI’s comparative research provided insight into how other jurisdictions have adopted formalities for the alteration or revocation of electronic wills that continue to serve these same four purposes. In both circumstances, the formalities for the alteration or revocation of a will are intended to:

• protect testators and their estates,
• provide evidence of testamentary intention,
• channel estates through probate justly and efficiently, and
• provide a sense of ritual to highlight the importance of changing or revoking a will."

Alberta Law Reform Institute Report on Electronic Wills

The Alberta Law Reform Institute (ALRI) has published its final report on the Creation of Electronic Wills:

"ALRI conducted extensive consultations with the public and estate planning professionals to assess what people expected from the law when making their will. ALRI heard from over 400 members of the public and held in-depth roundtable consultations with trusted estate planning practitioners from across the province. Our consultation results confirm that people want to be able to create wills using electronic tools."

"ALRI recommends that electronic wills should be permitted in Alberta. The formalities for electronic wills should mirror the formalities for paper wills, but they should be accomplished in electronic form. In other words, electronic wills should be:

• Readable as electronic text,
• Signed by the testator, using an electronic signature, and,
• Signed by two witnesses, who are both present at the same time, using an electronic signature."

"Final Report 119 also makes recommendations regarding remote witnessing, electronic holograph wills, video formats and the dispensing power. These recommendations aim to bring certainty, predictability, and accessibility to the law, while embracing technological advancements and maintaining the integrity and security of the testamentary process."

Alberta Law Reform Institute Report on Family Maintenance and Support from the Estate of a Person Who Stood in the Place of a Parent

 The Alberta Law Reform Institute recently released a report on Family Maintenance and Support from the Estate of a Person Who Stood in the Place of a Parent:

"Family Maintenance and Support from the Estate of a Person Who Stood in the Place of a Parent, Final Report 117 recommends that the Wills and Succession Act be reformed to allow a child to apply for family maintenance and support from the estate of a person who stood in the place of a parent (...)"

"This recommendation would close a gap in the law about child support. A child may apply for support from a person standing in the place of a parent while the person is alive, but not after the person’s death. ALRI has concluded that children should be able to apply for support in both situations. ALRI recommendations are based on widespread consultation including three online surveys targeted at the general public ..."

"ALRI’s recommendations would make the Wills and Succession Act consistent with other provincial legislation that provides benefits to a child with a person standing in the place of a parent, like the Family Law Act, the Fatal Accidents Act, and the Workers’ Compensation Act."

Alberta Law Reform Institute Report on Personal Property Security Act

The Alberta Law Reform Institute (ALRI) has published its final report on Personal Property Security Law:

"In this Report, ALRI recommends that Alberta amend the Personal Property Security Act [PPSA] through the implementation of recommendations proposed by the Canadian Conference on Personal Property Security Law [CCPPSL] in its 2017 Report (...)"

"Although the PPSA produced a significant improvement in the law, experience with the legislation over the course of the last three decades has revealed several instances where improvements or clarifications are desirable. In some cases, the need for reform is driven by technological advances. When the PPSA was first enacted, electronic banking and electronic commerce were in their infancy. The CCPPSL recommendations facilitate the move to paperless transactions. In some cases, judicial decisions have revealed ambiguities in the legislation that have produced uncertainty. The recommendations would correct these deficiencies. In other cases, the statute simply did not anticipate the kinds of controversies that would be litigated in the future, and therefore did not provide rules for the resolution of these types of disputes."

"The major areas of reform are summarized below:

• The choice of law rules are revised, and the method for determining the location of the debtor is changed so as to align with the new approach adopted in British Columbia, Saskatchewan and Ontario. This produces greater certainty in the law and avoids the deleterious effects of forum shopping that will inevitably arise if provinces and territories employ different choice of law rules.
• The rules that govern purchase-money security interests are clarified and expanded to provide greater guidance on this crucial form of financing. The changes enhance the ability of secured parties to claim purchase-money security interests in inventory, and preserve purchase-money security interest status in a refinancing.
• The rules governing the transfer of collateral to buyers and others are rationalized and improved.
• A number of uncertainties in the rules that determine priorities between secured parties and other competing claimants are clarified so as to produce greater certainty and predictability.
• The registration provisions are improved to better achieve the underlying goals of the registry system, namely the publication of information in a manner that will allow effective risk-assessment by affected parties.
• The concept of electronic chattel paper is introduced to facilitate paperless transactions where this form of property is sold or used as collateral.
• Secured financing is facilitated through amendments that clarify that valuable assets such as licences may be used as collateral, that eliminate red tape requirements that unnecessarily increase the administrative costs of secured finance, and that improve the ability of secured parties to take steps to protect their interest."

The Alberta Law Reform Institute was established on November 15, 1967 by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes, among others, of conducting legal research and recommending reforms in the law. Funding for ALRI’s operations is provided by the Government of Alberta, the University of Alberta and the Alberta Law Foundation.

Alberta Law Reform Institute Report for Discussion on Personal Property Security Act

Last month, the Alberta Law Reform Institute (ALRI) published a Report for Discussion on the Personal Property Security Act.

The report offers a number of suggestions for public discussion with the goal of updating the province's Personal Property Security Act in keeping with recommendations made by the Canadian Conference on Personal Property Security Law (CCPPSL):

"Every Canadian province and territory, except for Quebec, has enacted a Personal Property Security Act [PPSA]. Although there are minor variations across jurisdictions, these statutes are substantially uniform. Alberta’s current Personal Property Security Act came into force on October 1, 1990. The enactment of the PPSA transformed secured transactions law in Alberta by sweeping away many of the restrictions and limitations that impeded the use of secured credit. It replaced the piecemeal approach that formerly governed with a comprehensive and rational system that fostered certainty, transparency and flexibility (...)"

"Although the PPSA produced a significant improvement in the law, experience with the legislation over the course of the last three decades has revealed several instances where improvements or clarifications are desirable. In some cases, the need for reform is driven by technological advances. When the PPSA was first enacted, electronic banking and electronic commerce were in their infancy (...)"

"The CCPPSL is an organization of provincial and territorial government officials and academics. It has played a leading role in the design of the PPSA model that is used in Alberta. The CCPPSL Report of June 2017 made proposals for changes to the PPSA. These recommendations were fully implemented in Saskatchewan, which proclaimed the amendments into force on June 22, 2020. The proposals have been partially implemented in British Columbia and Ontario. We expect that other provinces will be similarly guided by the CCPPSL Report, and we propose that Alberta update its PPSA through the implementation of the CCPPSL recommendations."

The ALRI was established in 1967 by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes of conducting legal research and recommending reforms in the law. Funding for ALRI’s operations is provided by the Government of Alberta, the University of Alberta and the Alberta Law Foundation.

Alberta Law Reform Institute Final Report on Adverse Possession

The Alberta Law Reform Institute (ALRI) recently published its final report on Adverse Possession and Lasting Improvements to Wrong Land.

Adverse possession  refers to a situation where someone who has occupied a strip of another private owner's land for at least 10 years, in the case of Alberta, can potentially claim ownership of that land. This can lead to loss of land for the registered owner. Alberta is one of the last places in Canada where adverse possession still exists.

The ALRI report recommends that the provincial government abolish the law of adverse possession.

In the case of claims of lasting improvements made to property by occupiers who mistakenly believed they rightfully owned it, the report suggests that allowing the occupier to retain the land while compensating the legal owner might be the best remedy.

The Appendix includes a "Cross-Jurisdictional Comparison of Adverse Possession in Canada".

Alberta Law Reform Institute Paper on Police Record Checks

The Alberta Law Reform Institute (ALRI( has published a paper on police record checks in the province:

"To assess their suitability for opportunities, employers and volunteer organizations seek background information on their applicants. One way of obtaining such information is through police record checks. That being so, many employers and volunteer organizations require applicants to request, and share the results of, a police record check. Other organizations, including governments, professional regulatory bodies, post-secondary institutions, and even landlords, also use police record checks as a screening tool."

"Determining what information should be disclosed in the results of a police record check involves balancing public safety interests with an applicant’s privacy and human rights. Across Canada, police services do this balancing in different ways, with little legislative direction."

ALRI conducted some preliminary research to determine whether it should undertake a police record check law reform project. As part of its research, ALRI compared Ontario’s police record check legislation with the procedures from the Alberta Association of Chiefs of Police (AACP).

ALRI determined that the AACP procedures could be improved, but recognized that they are relatively new and that the AACP is open to revising them. As time may tell whether Alberta needs specific legislation to regulate police record checks, ALRI decided not to proceed with a police record check law reform project now.

ALRI’s paper contains its preliminary research findings. Its publication is intended to promote discussion about police record check practices in Alberta.

Annual Statutes of Alberta Added to CanLII

The CanLII website (Canadian Legal Information Institute) has been rapidly expanding its digital collections of Canadian legislation.

Today, it announced that it has added the annual statutes for the Province of Alberta from 1906 to today:

"This latest digitization project builds on similar initiatives on CanLII.org to increase access to important troves of legal history and decision-making. The Saskatchewan annual statutes dating to 1978 were scanned and added to CanLII last year with funding from the Saskatchewan Law Foundation. Last year we also added the New Brunswick annual statutes back to 2000 with funding from the New Brunswick Law Foundation, with more coming. These joined the Federal annual statutes to 2001 and Quebec annual statutes to 1996, which were added in 2016 with funding from CAIJ."

"Annual statutes – laws as passed by Canada’s parliamentary bodies – are an important addition to CanLII’s primary law collections. Without access to these documents, it can be difficult to navigate legislation over time."

CanLII is a portal funded by Canada’s provincial and territorial law societies to make legal information content (court judgments, tribunal decisions, statutes and regulations, commentary) available to Canadians free of charge.

Alberta Law Reform Institute Discussion Paper on Adverse Possession

The Alberta Law Reform Institute (ALRI) has published a report for discussion on Adverse Possession and Lasting Improvements to Wrong Land.

Adverse possession allows a person who has occupied another’s land for at least 10 years to potentially claim ownership of that land. Adverse possession is commonly, but mistakenly, referred to as squatter’s rights.

"ALRI is recommending that the law of adverse possession be abolished in Alberta. This change would prevent new claims from being brought in the future, but would not affect claims that have been resolved or filed with the court before the change comes into effect."

"This change would mean that a registered owner of land could recover possession at any time and would not have to act within the 10-year limitation period that currently applies."

"If adverse possession is abolished, claims regarding lasting improvements to wrong land under section 69 of the Law of Property Act would have a more prominent role in resolving disputes concerning possession of land. To facilitate equitable resolution of disputes, ALRI recommends that an assign of the lasting improvement should not have to prove whether the person who made the improvement believed it was their land. This change would make section 69 consistent with how courts have applied it. ALRI also recommends that section 69 claims can be brought at any time."

Alberta Law Reform Institute Report on International Commercial Arbitration

The Alberta Law Reform Institute recently released its report on Uniform International Commercial Arbitration in which it recommends ways to bring Alberta’s international commercial arbitration law up-to-date with current international standards:

"Alberta’s current International Commercial Arbitration Act is based on uniform legislation developed in 1986. The Alberta Act has fallen behind the advances that are being made internationally and in other provinces. By updating its legislation, Alberta will catch up to those jurisdictions that have already implemented the changes. Uniformity of international commercial arbitration law is important to ensure consistency for foreign users who may be unfamiliar with Canada’s federal system of government. Uniformity will also ensure that Canada can remain competitive as a host jurisdiction for these types of arbitrations."

Alberta Law Reform Institute Report on Property Division Rules for Common-law Couples

The Alberta Law Reform Institute (ALRI) has published a report on Property Division: Common-law Couples and Adult Interdependent Partners:

"Couples should be free to make their own agreements regarding ownership and division of property. ALRI recommends that legislation should allow common law couples to make their own agreements. ALRI further recommends that agreements should be subject to specific requirements in order to be enforceable. Those requirements, which include independent legal advice, are intended to make sure that each common law partner is aware of their potential claims to property and the nature and effect of the agreement, and that each partner is entering the agreement freely and voluntarily."

"An agreement that does not satisfy these safeguards is not enforceable but may be considered by the Court in an application by one or both partners to divide property."

"If a couple does not make their own agreement or their agreement is not enforceable, ALRI recommends that there should be default rules to govern the division of property."

"Legislated default rules for property division should apply to couples who are adult interdependent partners under the Adult Interdependent Relationships Act. The criteria in the Act consider whether the couple are interdependent economically, domestically and socially. Couples also have to live together for a specified qualifying period, although they may shorten or eliminate the qualifying period by making a written agreement. Short term or casual relationships would not trigger the property division rules."

Alberta Law Reform Institute Report on Inter-provincial Recognition of Substitute Decision-Making Documents

In December 2017, the Alberta Law Reform Institute (ALRI) released a report for discussion on Inter-provincial Recognition of Substitute Decision-Making Documents.

Substitute decision-making documents (also called powers of attorney, proxies, personal directives, etc...) delegate authority to one person to act on behalf of another with respect to financial, property or legal affairs and/or personal or health care matters. But legal requirements can often differ in different jurisdictions so that documents may not be recognized outside the province in which it was made, a situation that can create problems for people who own assets in more than one jurisdiction.

In 2016, the Uniform Law Conference of Canada approved the Uniform Interjurisdictional Recognition of Substitute Decision-Making Documents Act. The Uniform Act is intended to provide harmonized rules that may be implemented across Canada.

The ALRI report reviews the Uniform Act and considers whether it is suitable for implementation in Alberta. ALRI proposes that the Uniform Act should be implemented in Alberta, with some minor adjustments.

Alberta Law Reform Institute Paper on Property Division for Common-law Couples

The Alberta Law Reform Institute (ALRI) published a discussion paper in September 2017 on Property Division: Common Law Couples and Adult Interdependent Partners.

The ALRI is now seeking feedback on its preliminary recommendations, before it makes final recommendations to the government of Alberta:

"In recent decades, the number of common-law relationships has been growing faster than the number of marriages. In Alberta, however, there are no legislated rules for property division upon the breakdown of a common-law relationship. The Matrimonial Property Act applies only to married spouses. Property division for common-law partners is based on legal ownership and the law of unjust enrichment, which is judge-made law. When common-law partners separate, there are no presumptions or formulas about how they should divide property. If they cannot agree, they face litigation which can be time-consuming, expensive, and risky."

Alberta Law Reform Institute Report Recommends Abolition of Perpetuities Law

The Alberta Law Reform Institute has published a report that recommends the abolition of perpetuities law in Alberta :

"The Alberta Law Reform Institute (ALRI) recommends the abolition of perpetuities law in Alberta. Abolition has already occurred in Manitoba, Saskatchewan and Nova Scotia. Canada-wide abolition has been recommended by the Uniform Law Conference of Canada."

"The common law rule against perpetuities (RAP) originated in England in the 17th century as a way to prevent landowners from using future or contingent interests to tie up property for generations. RAP creates a perpetuity period for such interests based on the length of a life or lives in being in existence at the creation of the interest, plus 21 years. At common law, a contingent interest is void if there is any uncertainty at the outset whether it will vest within the perpetuity period. Over the centuries the courts expanded the common law RAP to apply to virtually all future or contingent interests in property, regardless of whether the interest is real, personal, legal or equitable."

"In 1972, Alberta enacted the Perpetuities Act (the Alberta Act) to reform the worst complexities and excesses of the common law RAP, based on recommendations from ALRI (...)"

"With court variation statutes governing trusts and non-trust interests available to address perpetuities issues, ALRI believes it is time to abolish the common law RAP and repeal the Alberta Act which reforms it. Other Canadian provinces have abolished perpetuities law without any apparent major problems resulting from that decision. ALRI’s consultation feedback, coming largely from the legal profession, judiciary and trusts and estates professionals, indicates majority support for abolition. While these results are not scientific, they do at least anecdotally suggest that many professionals working in the area are now comfortable with the idea of doing away with specialized perpetuities law."

The report discusses the situation in Alberta as well as the practices adopted in Manitoba, Nova Scotia, England and New Zealand.

Alberta Law Reform Institute Report on New Trustee Act

 The Alberta Law Reform Institute recently released its final report on A New Trustee Act for Alberta:

"In 2007, the Uniform Law Conference of Canada (ULCC) undertook a project on trustee legislation reform. The goal of the project was to develop a modern trust statute that would be suitable for enactment across Canada."

"This Report recommends that the Uniform Trustee Act, 2012 [Uniform Act] be adopted in in Alberta. However, certain aspects must be enhanced, tailored and clarified to reflect Alberta’s particular needs (...)"

Alberta Law Reform Institute Report for Discussion Perpetuities Law: Abolish or Reform?

The Alberta Law Reform Institute has published a report for discussion entitled Perpetuities Law: Abolish or Reform?

"The rule against perpetuities (RAP) was developed by English courts in the 17th century as a way to prevent landowners from using future and contingent interests to tie up property for generation after generation. RAP seeks to control the creation of future, contingent interests in property which may vest outside of the specified perpetuity period. The perpetuity period is measured with reference to any life or lives in being that are in existence at the creation of the interest, plus 21 years. If, at the date that the disposition takes effect, it is not certain that the contingent interest will vest within the perpetuity period, then the interest will be considered void at the outset. RAP was received law from England and became part of the law of Alberta."

"Over the centuries the courts expanded RAP with the result that it now applies to virtually all future or contingent interests in property, regardless of whether the interest is real, personal, legal or equitable. RAP and its expansion have resulted in a complex and virtually incomprehensible body of law that is often misapplied and misunderstood (...)"

"Does perpetuities law serve any valid legal or social purpose in today’s society? It seems to be well accepted that the historical purpose of preventing wealthy landowners from creating successive family estates is not relevant in Canada. However, many view the modern purpose of perpetuities law as creating a balance between past and present, so that a settlor or testator may dictate the disposition of his or her property, but may not control it so far into the future that the beneficiaries cannot appropriately respond to changed times and circumstances. Similarly, restricting how far into the future a settlor or testator can control his or her property may benefit society by ensuring that property is used to meet contemporary needs, rather than outdated ones (...)"

"Choosing to retain perpetuities law does not necessarily mean that the Perpetuities Act should continue to govern in its current form. Three potential reform models are presented and discussed:

• Perpetuities law should allow a choice between RAP’s perpetuity period calculated by reference to lives in being and a fixed perpetuity period for vesting, but should retain the wait and see principle.
• RAP should be codified, the concept of lives in being should be eliminated, a fixed perpetuity period for vesting should be implemented, and the wait and see principle should be retained.
• RAP, lives in being, vesting and the wait and see principle should be completely replaced with a legislated, fixed duration period for trusts."

The report discusses the situation in Alberta as well as the practices adopted in Manitoba, Nova Scotia, Saskatchewan, England and New Zealand.

This is a discussion paper. The deadline for submitting comments is June 30, 2016.

Alberta Law Reform Institute Report on Reviewable Transactions

The Alberta Law Reform Institute (ALRI) has published a report on Reviewable Transactions that proposes major updates to the province's laws on fraudulent preference and conveyances:

"The law of fraudulent conveyances and fraudulent preferences is part of the broader commercial law of creditors’ remedies.  Provincial fraudulent conveyances and fraudulent preferences law supports the civil enforcement regime by offering a remedy to creditors whose rights are subverted as a result of transactions that remove property of their debtors from the reach of judgment enforcement law. Corresponding provisions in the federal Bankruptcy and Insolvency Act allow a trustee in bankruptcy to recover property lost to creditors who are entitled to share in a distribution under the rules of that Act once bankruptcy proceedings are invoked. While those provisions are designed to serve the same purpose as that served by provincial law, the conditions under which a transaction may be set aside under the Bankruptcy and Insolvency Act differ from those that apply under provincial law. A trustee may rely on either regime but, outside of bankruptcy, creditors are restricted to provincial law. "

"Alberta law in this area, like the law in other Canadian common law provinces and territories, is seriously dated, lacks a clear policy foundation and produces anomalous and uncertain results. The widely acknowledged need for reform prompted the Uniform Law Conference of Canada [ULCC] to undertake a comprehensive project culminating in 2012 with its approval of the Uniform Reviewable Transactions Act [URTA], recommended by the Conference for adoption across the country. The Act is accompanied by a detailed commentary explaining the meaning and operation of its provisions. The central recommendation of this report is that the URTA be enacted in Alberta, with such minor revisions as may be appropriate to interface with other legislation and generally meet local legal requirements. The ancillary recommendations deal with those revisions. "

According to the ALRI, among the changes the adoption of URTA would bring are the following:

• Balancing creditors’ rights to recover what they are owed against a transferee’s right to be free from unsuspected claims to property or value received from a person who has creditors;
• Focusing on the effect of a transaction (did it impede or defeat creditors’ rights of recovery?) rather than the intention of its participants;
• Considering whether the transferee was in a position to recognise that the transaction was vulnerable because its terms were too good to be true or the transferee knew of and facilitated the debtor’s intention to obstruct creditors.

Alberta Law Reform Institute Report For Discussion on A New Trustee Act for Alberta

The Alberta Law Reform Institute (ALRI) has published a report for discussion on the topic of a New Trustee Act for Alberta.

From the description on the ALRI website:

In 2012, the Uniform Law Conference of Canada published the Uniform Trustee Act and recommended it be adopted by the common law provinces. ALRI representatives participated in the creation of the Uniform Trustee Act. ALRI's Report For Discussion #28, A New Trustee Act for Alberta, consists of recommendations for implementing the Uniform Trustee Act in Alberta. Using the Uniform Trustee Act as a starting point, ALRI has enhanced, tailored and clarified the Uniform Trustee Act to ensure Alberta's trustee legislation reflects Alberta's law and practice and meets the needs of Albertans.

Alberta Law Reform Institute Final Report on Matrimonial Property Valuation

The Alberta Law Reform Institute has issued its final report on Matrimonial Property Act: Valuation Date.

The Matrimonial Property Act (MPA) in Alberta sets out the default rules that govern the division of spouses’ matrimonial property after separation and divorce. The term valuation date refers to the date matrimonial property is valued for division. Valuation of matrimonial property is an important part of the division process; but, the MPA does not specify a valuation date.

In recent years, the valuation date in Alberta has been the date of the trial which can be uncertain. Many other Canadian provinces use the date the spouses separate as the valuation date.

The report makes a number of recommendations including:

• The MPA should expressly provide that spouses may agree on a valuation date. An agreement will reduce cost and delay, and allow the spouses to pinpoint the end of their economic partnership.
• If spouses cannot agree on a valuation date, matrimonial property should be valued at the date of separation. It fits better with the Divorce Act and other family law statutes which already use the date of separation to mark the end of the relationship. Further, using separation as the default valuation date should facilitate settlement, reduce cost and delay, and allow decisions to be made on the basis of more accurate information.
• Flexibility to respond to changes in the value of matrimonial property that happen after valuation but before division can best be achieved by using section 8 of the MPA.
• To reflect separation as the default valuation date, the list of factors in section 8 should include post-separation changes in the value of matrimonial property and the circumstances of the change.

Alberta Law Reform Institute Discussion Report on Witness Competency

The Alberta Law Reform Institute (ALRI) has issued a Report for Discussion on Competence and Communication in the Alberta Evidence Act (AEA):

"On occasion, a court must determine whether a proposed witness is competent to give evidence. The question arises with child witnesses and may also arise for adults with cognitive impairment. Alberta legislation about competence has not kept pace with modern knowledge about children’s abilities, and fails to address adults with cognitive impairment. It also has a gap affecting witnesses who use alternative means of communication. This Report for Discussion contains preliminary recommendations for updating Alberta legislation to address these issues (...)"

"Significant reform surrounding the admissibility of children’s evidence has occurred both federally and in other provinces. Multiple law reform agencies (including ALRI) have recommended changes to the approach to children’s evidence, and substantial reform has also taken place in other common law jurisdictions. Despite this, the AEA provisions governing children’s evidence have remained essentially unchanged since 1910."

"The AEA approach to children’s evidence is based on the notion that children are inherently unreliable witnesses. However, modern psychological research has undermined these traditional assumptions. It is now widely accepted that many children are capable of providing appropriate and helpful information to a court, particularly if the court and counsel are aware of children’s linguistic and cognitive development and treat them appropriately."

"In contrast, and despite the express regulation of children’s competence, the AEA does not contain provisions regarding competence of adult witnesses. Adult witnesses are presumed competent unless their competence is challenged. If a competency inquiry is required with respect to an adult witness, the common law applies. If an adult is shown to be incapable of understanding the nature of an oath, the adult will be barred from giving evidence. It would be preferable to have a comprehensive set of rules regarding competence of all witnesses in order to promote consistency and avoid arbitrary distinctions between children and adults."