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The SSAG as Litmus Test: MBCA
While the SSAG are "only advisory and do not replace judicial discretion" they "can act as a "litmus test" to determine whether the quantum of spousal support is so low as to be unjust or clearly wrong" (para.48) said the court in Kynoch v. Kynoch, 2013 MBCA 73. The court found $250 per month to be too low given the financial and emotional detriments to the wife which occurred as a result of the marriage as well as its breakdown. The court identified these factors as being relevant to its finding that the award was unjust:
- the cumulative effect of extra debt load (debts to wife's parents statute barred but debt to husband's parents enforceable);
- expenses incurred by wife for retraining and counselling (although post-separation and, therefore, not accountable under The Family Property Act, these costs were part of the consequences to the wife of the marriage breakdown and should be compensable as part of spousal support);
- eligibility for retroactive support;
- the wife's precarious physical health; and
- the fact that $250 a month is "just too low" for a traditional 30-year marriage where wife took care of kids and husband upgraded work skills and acquired a profession.
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Appeal Court Reverses Interim Joint Custody Order
The Court of Appeal took the rare step of overturning an interim joint custody order and reinstating the mother as primary caregiver in Kozub v. Burgess, 2013 MBCA 64, a highly disputed case in which the mother had also been ordered to return the children to Thompson from Alberta pending trial of the matter. Intervention was necessary, said the court, because the affidavit evidence was completely contradicted and the motion judge took no account of the serious allegations of abuse and neglect against the father, the history of the care arrangements in which the mother had been the primary caregiver, and the fact that the father worked full time and his new partner would be caring for the young children in his absence.
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Reconsidering Occupation Rent: MBQB
Seventeen years of "virtually continuous litigation" ended with the court's decision in England v. Nguyen, 2013 MBQB 196, bringing "long overdue" finality to such issues as time-barred third party debts, missing pre-acquired personal assets, support arrears, and a claim for occupation rent. On the latter issue the court found "it is time for a serious reconsideration of the application of the common-law of "occupation rent" or rather how it may be evolving," an issue not considered in Manitoba for some time. The court identified two elements of the traditional law of occupation rent which have fallen out of favour in recent times:"ouster" and the issues of conduct it raises; and the viewing of exclusive occupancy as a form of maintenance for the children. Instead the court adopted the reasoning set out at para. 48 of Casey v. Casey, 2013 SKCA 58, and found that the most important consideration in the case at hand was whether the occupying spouse had increased or decreased the selling value of the property.
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"If Only Things Were so Simple": MBQB
A husband whose spousal support obligations were terminated in a provisional order was unsuccessful in his bid to have the order confirmed in Manitoba in Ballegeer v. Ballegeer, 2013 MBQB 162, due, in part, to the deceitful manner in which the order was extracted from the Alberta court. The court also refused to remit the matter back to Alberta for further evidence, noting that this would only escalate costs by giving the husband a third opportunity to perfect a case that probably can't be perfected. The court stressed that it should be incumbent on applicants in without notice provisional order proceedings to make full, fair, and frank disclosure, because the failure to disclose leads to unnecessary expense and delay. Elevated costs were ordered.
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Additional Family Division Cases
Kamer v. Ptashnik, 2013 MBQB 183 - the court dismisses a recusal motion and claim of s.7 Charter breach brought by a disgruntled self-represented father and concerning a 5 year old, never reviewed interim order of supervised access.
Smith v. Bartlett, 2013 MBQB 173 - the court found it would not be in the best interests of the five year old child to allow her mother's proposed move to Alberta, since it would separate her from her father and extended family and really only benefit the mother and her new baby and partner.
L.O.G. v. Child and Family, 2013 MBQB 170 - the court granted a father's application opposing the entry of his name on the child abuse registry, finding that the agency had not established that he had sexually abused his daughter by commission or omission.
Christie-Webb v. Webb , 2013 MBQB 160 - the court declined to exercise its discretion to set aside a court order confirming a settlement agreement under which the wife was to pay the husband an equalization payment by a certain date. Payment was delayed 16 days due to an error by the wife's lawyer in completing the land transfer documentation for the property she was selling to fund the payment. The court found that public policy in enforcing settlement agreements outweighed the need to enforce strict compliance with time limits in this fact situation.
Haugen v. Haugen, 2013 MBQB 155 - the wife's bid for production of financial and taxation records from the husband's Alberta lawyers could not be granted because of solicitor client privilege.
Giesbrecht v. Giesbrecht, 2013 MBQB 115 - this case "illustrates the value of direct judicial communication through the Canadian Network of Contact Judges where there are jurisdiction issues involving competing custody orders" (para.1).
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Closing the Non-Residents Gap in the Civil Marriage Act
Bill C-32, An Act to amend the Civil Marriage Act, was rushed through Parliament before the summer break and received royal assent on June 26, 2013. It amends the Civil Marriage Act to "make all marriages of non-resident couples that were performed in Canada valid under Canadian law, and ... allow these couples to end their marriages if they cannot get a divorce where they live." (Department of Justice news release referred to in the legislative summary). Part 1 provisions (validating the marriages of non-residents) took effect immediately, and Part 2, concerning divorces for non-residents, came into force August 14, 2013 by order in council 2013-889. This Lawyers Weekly article discusses the implications of the new law for both same and opposite sex foreign-domiciled couples.
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Notice and Practice Direction
The Court of Queen's Bench issued a new practice direction and a new notice in June:
- Family Prceedings: Foreign Jurisdictions Marriage Certificates, a practice direction issued June 25, 2013, reminds those filing initiating proceedings in the Court of Queen's Bench (Family Division) that the names of the petitioner and respondent must be stated by first, middle and last name regardless of the order in which the names may appear on the foreign jurisdiction marriage certificate.
- Notice re Adoption Files, issued June 4, 2013, reminds practitioners that they must file an originating process to open an adoption file and notes that the practice of allowing files to be opened by notice of motion has been discontinued.
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Report on Family Law Project: LCO
The Law Commission of Ontario released the final report in its family law project, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity, on July 22, 2013. Like the reports from the Access to Justice (Family Justice group), the LCO report calls for comprehensive reform of the family law system
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Fall CPD: LSM
Register soon for these upcoming Law Society programs:
Legal technology expert and lawyer Barron Henley is teaching two programs at the Law Society this fall:
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Pitblado Lectures
The 2013 Isaac Pitblado Lectures, titled Human Rights Challenges and Achievements, will take place November 22-23, 2013, at the Fort Garry Hotel. Presenters will cover a variety of topical human rights issues including equality jurisprudence, the future of human rights tribunals and commissions, and how international human rights law impacts Manitoba practice. Register before October 11, 2013 to take advantage of the early bird discount.
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