Alberta appeal court denies permission to appeal based on incapacity to agree to property division

In a proposed appeal of a consent property judgment between former spouses, the Alberta Court of Appeal refused permission to appeal on the grounds of the ex-wife’s incapacity to understand and accept the terms and/or ineffective assistance of counsel. 

Due to three traumatic brain injuries, the applicant in Burns v Moore, 2026 ABCA 129, has post-acute concussion syndrome, which affects her executive function, and has been on long-term disability from work since July 2017. 

The applicant married the respondent on Aug. 20, 2022, and separated from him in June or August 2024. 

Last Jan. 23, the applicant, her counsel, and the respondent’s counsel appeared in chambers to resolve a divorce and property division dispute. After stepping away to discuss, the parties’ counsel returned and requested a property order by consent. 

The chambers judge asked if the clients were present. The applicant’s counsel replied that the applicant was there, while the respondent’s counsel relayed that the respondent had agreed to the order’s terms, though he was absent. 

The chambers judge confirmed the following terms, for inclusion in the final property judgment by consent: 

• The applicant would return a cranberry glass pitcher to the respondent 
• The parties were fully and finally settling the action, without further property division 
• They would be responsible for their own debts 
• The applicant would get $40,000 – $10,000 within 30 days and $30,000 within 90 days

The final consent property judgment, signed by both counsel, failed to include the term regarding the pitcher and added multiple “boiler-plate” terms to the preamble. 

As agreed, the respondent paid the applicant $10,000 within 30 days. The applicant indicated that she accepted the money and spent some or all of it for her daily living demands.

To apply for permission to appeal the consent judgment, the applicant submitted materials on Feb. 24, a day after the applicable deadline. She asked for an extension of time. 

In her proposed appeal, the applicant argued that she: 

• did not subjectively agree to the consent order because she lacked the capacity to truly comprehend and accept the terms at that time 
• faced undue pressure due to her disability and the aggravating circumstances surrounding counsel’s last-minute “hallway negotiations” 
• never expressly confirmed the final terms with her counsel 
• never instructed her lawyer to agree to the terms read into the record 

Permission to appeal denied

The Court of Appeal of Alberta granted an extension of time but refused permission for the applicant to appeal the final consent property judgment. 

Based on the transcript of proceedings, the appeal court noted that the applicant was present when the respondent’s lawyer and the chambers judge put the consent order’s terms on the record. 

The appeal court acknowledged that the applicant did not squarely raise ineffective assistance of counsel, a ground of appeal limited to “rare” cases in the civil context. 

However, the appeal court found aspects of her argument and evidence that implied this issue. The appeal court explained that a civil action for the tort of negligence could normally remediate civil complaints about the legal representation’s quality 

The appeal court saw no evidence and thus no indication that her counsel, the respondent’s lawyer, or the chambers judge should have known or suspected that: 

• The applicant did not agree to the terms 
• She could not agree because she lacked the capacity to consent that day 
• Her lawyer had no instructions to proceed with the settlement agreement 

The appeal court accepted that a party could theoretically obtain permission to appeal based on incapacity and/or ineffective assistance of counsel. 

However, the appeal court ruled that the applicant could not do so here, without evidence of waiver or an affidavit from the lawyers who negotiated the settlement agreement. 

The appeal court held that the ultimate legal question – whether the settlement was enforceable – was not a question of precedent or of general importance. The appeal court also denied permission to appeal because: 

• The proposed appeal lacked reasonable prospects of success 
• Allowing the appeal would mean remitting the entire dispute to the trial court for a resolution on the merits and would rewind any benefit received by the applicant, rather than resolving anything between the parties