Expert Evidence Not Required to Assess Weight of Electronic Evidence: MBCA

Expert evidence is not required for a judge to assess the admissibility of electronic media evidence according to the Court of Appeal in Ducharme v. Borden, 2014 MBCA 5. While the technical details of how contemporary communications methods work may not be matters "everybody knows," s.51.2 of The Evidence Act requires only proof of evidence "capable" of supporting a finding that the electronic evidence is what it purports to be, said the court. In this case the parties agreed to the admissibility of the evidence for the purposes of s.51.2, but disputed its weight since some of the communications were said to have been fabricated. In the Court of Appeal's view, "a court is quite capable of assessing the weight to give to electronic documents, without the assistance of an expert, when the witnesses to the communications testify and for whom credibility findings can be made on allegations of fabrication, editing or deletion of communications." (para. 17) Despite these conclusions, the court dismissed the appeal of the decision to set aside the protection order, since the judge's overall conclusion that the appellant used the protection order as a "sword" as opposed to a "shield" was otherwise supported on the record. The court did overturn the elevated cost award, however, finding that the judge erred in principle in departing upward from the relevant cost award recommended by counsel without first alerting them of his inclination to do so and requesting their submissions. This Slaw article discusses the decision.

Extraordinary Expenses for Private School Tuition: MBCA

The Court of Appeal has ruled again in the Delichte v. Rogers case, this time concerning the issue of whether the variation judge erred in terminating the father's obligation to contribute to the expenses for tuition at the private school where the mother had unilaterally enrolled the children following her court-sanctioned move to California. After outlining what extraordinary expenses are, and setting out the test for whether they are to be considered necessary and reasonable, the court conducted a fact specific analysis of the extraordinary expenses claim in this case. They found that the variation judge had erred in failing to take into account the past spending pattern of the parties and in placing the onus on the mother in relation to the expenses for private school tuition. These errors justified the court in substituting its own order that the father continue to pay the amounts in respect of private school tuition specified in the 2007 final order (in which the father was required to pay for the children to attend private school in Winnipeg).  

Costs Follow the Event Absent Collateral Reasons: MBQB

The master erred in principle in not awarding costs to a petitioner who succeeded in obtaining more than $107,000 in a family property valuation and accounting according to the court in Chevalier v. Chevalier, 2014 MBQB 53. The respondent had not challenged the master's report and there was no evidence he had ever offered to settle. Since the master's discussion of and decision on costs contained no "collateral or special reasons" to justify a departure from the principle that costs follow the event, the petitioner was entitled to her costs, said the court, in this case on a Class 3 basis due to the complexity of the farm accounting and the lack of contribution by the respondent.

Equities in Wife's Favour in Setting Aside Bankruptcy Discharge Order: MBQB

In Schreyer (Re), 2014 MBQB 44, the court dismissed the husband's appeal from the Registrar's decision to set aside the 2002 bankruptcy discharge order which unfairly deprived the wife of her ability to recover an equalization payment despite the fact that the husband retained ownership of the family farm after discharge. The court was satisfied that the Registrar properly considered the equities of the situation and that he did not err in the exercise of his discretion in granting the order, even though there had been a significant delay in bringing the motion and the husband's actions could not be considered fraudulent under the BIA. The fact that there were no other unsecured creditors asserting a proprietary interest in the exempt assets was a factor in the court's decision to uphold the equitable order.

Other QB Decisions

Principles of proportionality and reasonable access to justice, as well as practicality and cost-consciousness, persuaded the judge in Woodard v. McDonald, 2014 MBQB 39 to disregard the admonitions of the Court of Appeal and proceed summarily on a contested final order variation motion to retroactively reduce and terminate child support.

The judge's reasoning in E.L.M. v. J.K.N., 2014 MBQB 36 gives a good picture of the evidence needed to change a custody regime in favour of a parent who struggles with alcohol addiction.

Rolin-Robinson v. Robinson, 2014 MBQB 9 - this case illustrates how an applicant's low candour in giving evidence on one issue can affect the court's assessment of that person's honesty in general and corroborate the other side`s allegations of controlling behaviour and secrecy in the relationship.  

Parent Child Alienation Program

Collaborative Practice Manitoba and the Manitoba Bar Association are presenting an all day program on Parent Child Alienation on April 24, 2014. Presenter Dr. Barbara Jo Fidler, a clinical developmental psychologist from Ontario, will provide an overview of the theory and practice in this area and comment on the recent research on the consequences of such alienation. The workshop will be held at the Manitoba Club, 194 Broadway. Early bird registration ends March 28, 2014.