High Conflict Domestic Dispute Ill Suited to Blunt Blows of the Legal System: MBCA

In T.L.L.L. v. J.J.L., 2013 MBCA 27, the Court of Appeal dismissed the mother's appeal from the dismissal of her application to vary an order giving sole custody to the father and supervised access to her. Although it could have dismissed the appeal peremptorily, the court chose to review the history of the "tragic case" in view of the fact that the parties were unrepresented and the mother argued that the trial judge's order was manifestly unjust, particularly with respect to the stipulation that she undergo a psychiatric assessment.

The court allowed the appeal in Bochurka v. Bochurka, 2013 MBCA 28 in part, agreeing with the finding that the husband's shares in his parent's corporation were gifted to him, but not with the trial judge's conclusion that they were "not shareable" under The Family Property Act. The issue was not whether the shares were shareable, said the court, but

whether the shares were gifts within s. 7(1) of the Act and, therefore, excluded from the Act. While the finding that the shares were not shareable was probably a shorthand reference to a s. 7(1) exclusion, it is imprecise and does not correctly express the effect of s. 7(1). Having found that the common shares had been gifted to the husband, the trial judge should have stated that s. 7(1) applied to exclude the shares from the Act.

"Good Enough" Parenting and "One-Off" RRSP Withdrawals: MBQB

The court took into account the extreme personality differences of the parents in deciding the myriad issues in Belot v. Connelly, 2013 MBQB 98, balancing the mother's need for control over the child's health issues with the father's desire for a shared parenting arrangement. Although it imposed detailed provisions concerning the parenting schedule, the court declined to attempt to resolve the day-to-day issues, finding that "no court order can control every aspect of parenting and parental behaviour. Further, where the parents are as different as these two people are, so will be their parenting, even though each of them falls within the "good enough" spectrum of parenting behaviour. There will always be a loophole or some situation arising that is not covered." The court declined to continue a "without prejudice" protection order, but substituted a non-communication order under s.10(j) of The Family Maintenance Act. The court also dealt with the debatable issue of whether RRSPs cashed to fund the cost of the litigation should be treated as income in calculating the father's support obligations. In this case, where the RRSP income would be shared on the property accounting and the money did not go to fund the father's lifestyle, the court found it was a "one-off" event and should be excluded from the income calculation.

Solicitor-Client Costs Threshold Not Met Despite Unreasonable Conduct: MBQB

The court examines the necessary threshold for an award of solicitor-client costs in Hitchcock v. Hitchcock, 2013 MBQB 97 and concludes that "(w)hile the Petitioner's behavior in failing to meet his legal obligations, failing to bring the matter on for early resolution of his proposal for variation in accordance with the terms of the parties' agreement, and in delayed disclosure are clearly unreasonable and plainly wrong, this conduct does not in the circumstances of this case rise to the level required so as to engage the court's discretion to award solicitor-client costs."

Unilateral Termination of Child Support Inconsistent with Legislation: MBQB

"Neither the Child Support Guidelines Regulation ...nor the Divorce Act provide that a parent can unilaterally limit the amount of support payable based on his view of appropriate family values if that view is not shared by other parent" according to the court in Therrien v. Therrien, 2013 MBQB 96. The court rejected the father's view that, had the marriage remained intact, the parents would not have supported their second adult child and funded his university education since they had not done so for their older child. The father was ordered to pay his share of the expenses already paid by the mother and on an ongoing basis.

"The Courthouse is not a Restaurant": MBQB

A self-represented mother's aggressive pursuit of multiple claims against the father and her last minute no-show at a half-day hearing raised the court's ire in Delichte v Rogers, 2013 MBQB 93, resulting in an order of $3500 costs against her. Characterizing the mother's behaviour as irresponsible and inappropriate, the court noted such "customer-service" expectations at the court house "must be sanctioned by the court to protect the integrity of the court process and as a warning to the mother and other litigants that this kind of behaviour will have significant consequences." (para.36)

Update on Proposed Legislation

Federal

Provincial

Maintenance Enforcement Program Relocation

The Maintenance Enforcement Program (MEP) has relocated to 352 Donald Street effective April 27, 2013. Payments will no longer be able to be made in person at 405 Broadway and the drop box at that address is now closed. MEP's new address for service and mailing is:

Maintenance Enforcement Program

Canada Building

100 - 352 Donald Street

Winnipeg, MB R3B 2H8

For additional information contact the MEP at:

Email: manitobamepinquiries@gov.mb.ca

Phone: 204-945-7133 or 1-866-479-2717.

Access to Justice

Recommended Reading

• The ABC's of passports and travel for children - provides tips on how to minimize the risk of child abduction, how to draft specific provisions concerning mobility restrictions or consent to issuance of passports, how to register for the Passport System Lookout or ask for a border alert, and how to draft travel consent letters;

• Hearing the voice of children in the family justice process - discusses the results of a survey of Canadian judges about their meetings with children who are the subject of family proceedings and the social science literature on this still controversial practice;

• Income Tax Act related problems persist for separated and divorced couples - summarizes the results of the most recent survey on tax issues facing family law clients;  

• Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act - sets out the details of Bill S-2 which, as noted above, is likely to be passed soon; and

Spring CPD: LSM

Effective time management is a skill both lawyers and support staff strive to master and Frank Sanitate is an expert on the topic. Register now to attend either Time Mastery for Lawyers or Time Mastery for Support Staff, two full-day workshops taking place at the Law Society on June 11 and 12, 2013

Call for Papers: FLSC National Family Law Program