Difficult Litigant Co-Author of Her Present Misfortune: MBQB

The court criticized several aspects of a self-represented litigant`s efforts to oppose confirmation of a master`s report assessing her lawyer`s bill in Stoik v. Knight, 2013 MBQB 298, and made the following comments on her lack of compliance with the court rules:

The choice or necessity of self-representation does not mean every non-compliance can or will be overlooked. At times, self-representation will have undesirable consequences. It is not a talisman. (para. 10) 

The court confirmed the report except for a small adjustment on a calculation not raised before the master.

Ability to Obtain Financial Information Not Encumbered by Formalities: MBQB

Sections 8(1) and (2) of The Family Maintenance Act are stand alone provisions and thus not dependent upon a formal variation motion or application being commenced according to the master in Hagan v. Currie, 2013 MBQB 296. The court granted the respondent mother's application for an order of financial disclosure from the father despite the fact that the parties had consented to a court order terminating the father's support obligations in 2009 and the mother had brought neither a variation nor a new application to lay the foundation for the disclosure request.

Extra-Judicial Conferencing Guidelines Have Broad Application: MBQB

Family lawyers representing clients who are litigating inter-jurisdictional custody issues will want to read Justice Diamond's decision in Cohen v. Cohen (Winnipeg Centre), 2013 MBQB 292, which discusses how courts should proceed in light of concurrent proceedings and sets out guidelines for extra-judicial conferencing. Judicial communication guidelines developed by the Canadian Network of Contact Judges are not restricted to situations involving conflicting custody orders, said the court, but "contemplate a much wider application" including "discussing questions on law and procedures with a judge in a foreign jurisdiction where a case is pending." In this case, the Manitoba and Florida judges, the parties, their lawyers in both jurisdictions, and a representative of the Manitoba Central Authority met by telephone conference, organised on an expedited basis by the Manitoba judge. The father's Hague Convention application for return of the children to Florida was deferred pending the Florida court's determination on whether it had subject matter jurisdiction.

Interim Equalization Payment Motions Risky: MBQB

Lawyers should be mindful of the risks of bringing motions for interim equalization payment for the purposes of securing the payment of their legal fees, according to the court in Robinson v. Kubas, 2013 MBQB 288. "Those risks must be fully disclosed and explained to clients before they decide whether to embark on such motions." (para. 26). The court dismissed the petitioner's motion for a $20,000 interim equalization payment (to be used to pay legal fees associated with the property accounting), and concluded with the following admonition:

A lawyer who takes on the responsibility of representing a client with limited income or liquid resources with which to pay fees over the course of protracted litigation should not assume that judges will exercise their discretion to lessen the burden of carrying a file to its conclusion. The interests of the unpaid lawyer, who essentially bears the risk and burden of financing the file, must be balanced against the interests of the party opposing the interim equalization payment. Seldom will the interests of the lawyer, who has a choice whether or not to represent the financially strapped client, prevail over the interests of the opposing party. That is especially so, as here, where the opposing party herself has insufficient resources to make an interim equalization payment and who would face the prospect of having to re-finance her affairs in order to accelerate the payment of the moving party's lawyer (para.28)

Bravado is not a Substitute for Evidence: MBQB

The decision in Meleck v. Meleck, 2013 MBQB 282 illustrates the difficulties of adjudicating interim relief applications where the evidence is "less than precise" and both parties lack candour. The judge identifies several instances where incomplete or unreliable evidence compromised his ability to make an informed decision and made his interim determination of the financial issues more "art than science." His detailed explanation as to how he arrived at his findings (a record for the future trial judge), is also instructive reading for lawyers asking courts for interim relief.

Assertive Clients and Challenging Courtroom Environments: MBQB

Family lawyers should pay heed to the candid comments of Justice Rivoalen in Skinner v. Skinner, 2013 MBQB 276, concerning the "serious lack of professionalism" at the "Family Uncontested Motions melee," and her reminder that lawyers must serve as their own gatekeepers of professional conduct rather than blindly following client instructions. In this case, the court ordered costs against a party who unsuccessfully opposed the adjournment of a motion which had been set down for argument unilaterally despite a previous agreement to adjourn. For the WFP take on the case see the article Fixing "the zoo" - one judge's perspective.

Other Family Division Cases

Hamelin v. Carlisle, 2013 MBQB 270 - the court reduced spousal support (by imputing income to the wife at a full-time minimum wage) as a result of the wife's failure to take all reasonable steps to become self-sufficient. She had a plan to open a toy store, but presented no corroborating documentation.

Burczynski v. Burczynski, 2013 MBQB 257 - among other things, the court found on this interim motion that it had jurisdiction to order severance on its own motion and direct a trial on the issue of date of separation. The court also considered the divergent law on when it is appropriate to make an order of retroactive spousal support on an interim basis.

Belot v. Connelly, 2013 MBQB 239 - the court ordered double costs for portions of a custody dispute where the mother refused to compromise and follow an expert's recommendations concerning equal parenting. The court warned that the "spectre of cost awards should be factored into any analysis of likely trial outcomes" since the "reason costs exist is to encourage compromise and avoid litigation."

McKay v. Adams, 2013 MBQB 236 - the court dismissed a husband's bid to terminate spousal support in light of his reduced income due to early retirement. The disabled wife's clear and pressing need, her inability to access pension investments for 10 years, the fact that only a small part of her pension was equalized, and the husband's choice to retire and bring the variation application just before he became eligible for CPP or Old Age Security benefits, were all factors in the decision.

Legislative Update

Sections 1-11 and 53 of the Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20, came into force on December 16, 2013. Further information about the Act can be found in the legislative summary and in this article from the April edition of The Family Way.

Court of Queen's Bench Notice

The court notice titled New Family Division Protection Order Hearings List (Winnipeg Centre) describes the new procedure to set down applications to set aside, vary, or revoke protection orders.

Recommended Reading

Cool down time - Mediated disputes can benefit from delaying final settlement - the practice of using cooling off periods for mediated family settlements deserves a higher profile according to the author of this Lawyers Weekly article, who identifies several benefits of the practice.

Should the State Get Out of Marriage? - recent decisions from the state of Utah (dealing with polygamous marriage and same sex marriage) have the author of this Slaw post wondering whether it would it would be better for the state to withdraw from the business of regulating marriage.

2014 Annual Joint Family Law Program

Early bird registration for the 2014 Annual Joint Program on Family Law ends February 14, 2014, so act now to take advantage of the discounted rate. The program, ChequeMate: The Challenges of Spousal Support, will be held March 21, 2014, from 9:00 a.m. to 4:30 p.m. at Fort Garry Place.

2014 MBA Mid-Winter Conference

The Manitoba Bar Association's Mid-Winter Conference will be held January 23-25, 2014, at the Fairmont Hotel. Continuing professional development sessions are scheduled all day Thursday and Friday, and include the following programs which may interest family lawyers: Aaron on the Side of Caution - A Critical View of the Past Year's Leading Family Law Cases; Pre-Trial Case Conferences: Tips for Success from the Civil Litigation and Family Bench and Bar; Roadmap for Statutory Interpretation; Lawyers in the Media: Sound-bytes and Pitfalls; Own the Podium: Achieving Ethical Excellence in Your Practice; and Changing Legislative Landscape: Aboriginal People and Rights.