Discretionary Support Order Affirmed: MBCA

In keeping with its clear position that it won't interfere with discretionary support orders unless the reasons disclose an error in principle or a significant misapprehension of the evidence, or the award is clearly wrong or unjust, the appeal court in Diment v. Diment, 2014 MBCA 37 dismissed the father's appeal from the motion judge's order requiring him to pay tuition and dental expenses for an adult daughter attending a practical nursing program. The judge did not err in concluding that the daughter was a child of the marriage while enrolled in the nursing program, nor in deciding to grant the expenses on a proportional basis instead of on the 50 percent sharing basis originally ordered. "While it would have been preferable that (the judge) make a specific finding of changed circumstances, it is easily discerned from the significant change in relative incomes of the couple," said the court.

Bona Fide Purchaser Has Priority Over Family Property Act Preservation Order: MBCA

In Kim v. Kim, 2014 MBCA 34, the Court of Appeal set aside a s.21 Family Property Act preservation order granted on an ex parte interim basis to protect the interests of a separated wife in commercial property owned by her husband. The court found that the husband had entered into a bona fide purchase and sale agreement prior to the issuance of the preservation order and, although the transfer of land had not been registered and was thus not complete for the purposes of well-known real estate conveyancing principles in Manitoba, the transaction was complete for the purposes of s.21 of the FPA. The full purchase price had been paid and closing documents provided prior to the issuance of the preservation order, and the husband had already received the sale proceeds. These are circumstances that fall within the exception articulated in Gale that s. 21 of the FPA does not apply to "transactions that have already been completed," according to the court at para. 48. The court also pointed out that the wife had no equitable or proprietary interest in the property prior to it being listed for sale or afterward and that, as explained by the SCC in Schreyer, "the FPA provides an equalization model for the valuation and division of family assets and not proprietary interests." In addition, both equity and s. 10(1) of The Judgments Act give priority to a bona fide purchaser over a judgment creditor.

Leave Granted to Amend Pleadings After Trial Judgment Delivered: MBQB

In Horch v. Horch, 2014 MBQB 89, the court granted leave to a wife to amend her pleadings after trial to claim an unequal division of family property pursuant to s.14(2) of The Family Property Act. The wife had been unsuccessful in her original claim based on unjust enrichment to share equally the value of the shares that included appreciation following the date of separation. On the issue of allowing an amendment post trial under Rules 26.01 and 1.04(1), the court said:

The proposed amendment permits a just determination of the rights of the husband and the wife that is based on the merits of the case. There is no better reason for an amendment of a pleading. Taking into account that the shares which were the subject of the litigation were acquired as a result of a joint venture by the husband and the wife, "justice lies" in the wife having the opportunity to claim that she is entitled to share equally with the husband the value of the shares which includes their appreciation following the date of separation. (para. 22)

The court declined to order costs in favour of the wife, however, given that the husband had suggested the amendment at trial to no avail, and the wife's late application to amend could have the effect of setting aside his success at trial.

Long-term Spousal Support Entitlement to End: MBQB

The court set an end date for the husband's spousal support obligations in Cleven v. Cleven, 2014 MBQB 86, a case that has "been in litigation more often than not" in the 14 plus years since the parties separated. The 65-year-old husband argued for a $6500 reduction in his support obligations given the drastic drop in his income post retirement, and asked the court to terminate support entirely in 2015 when the wife would be eligible for OAS. Instead the court set out a schedule of gradually reduced payments ending completely in 2017, 18 years after the parties separated. "At that point," said the court, "given the length of the relationship, the duration over which support has been paid, the amount of that support, and the other peculiar facts and circumstances of this case, including Ms. Cleven's past financial management of her resources,...entitlement will be at an end. At that point in time, if Ms. Cleven has unmet needs, I would not regard those as something Mr. Cleven has a continuing obligation to meet." (para. 135)

Mitigation Standard in Spousal Support Cases Not Perfection : MBQB 

In Durston v Durston, 2014 MBQB 68, the court makes an interim spousal support order for an 83-year-old wife who was asked on short notice to leave the family farm (owned by her husband) after 42 years of marriage. The court rejected the husband's argument that the wife engaged in a "wealth transfer" when she used her Family Property Act advance to purchase a jointly owned home with the help of her children from her first marriage. Recognizing that "there was no way the wife could have purchased a home without her children jointly taking title with her and all of the joint owners signing a mortgage," the court said:

...given that the husband remains in a spacious home on the family farm and controls all of the income producing farm assets (save for a partial advance on the Family Property Act equalization) it lies ill in his mouth to say the wife's only appropriate response was to rent accommodation or move into a senior's housing facility. The husband's argument is similar to that of a tortfeasor who complains about the imperfect efforts of a tort victim to mitigate his or her loss. The mitigation standard in tort law is not perfection and in my opinion this should also be the law in spousal support cases where a dependent spouse has to make a decision about finding new accommodations on short notice. (para. 26) 

The court then went on to consider the many factors involved in establishing the income of a farmer, including calculating income in the year of separation (e.g. valuing unrealised "farm commodities"); and the inclusion rate of CCA (particularly on equipment and vehicles) and business risk management/disaster assistance payments into income. In the end the court concluded that "(t)he best way to establish income...is to use a three year average based on income in the three tax years prior to separation. A three year average prior to separation provides a fair picture as to what the average income and lifestyle of the family was prior to the separation and what the means of the husband are, until such time as the Family Property Act equalization payment is established and the needs of the wife can be fully assessed at trial." (para.53)

Assisted Reproduction: MLRC

The Manitoba Law Reform Commission released an issue paper titled Assisted Reproduction: Legal Parentage and Birth Registration in April 2014. The Commission does not offer formal recommendations in the paper, but analyzes a variety of approaches to the legal problems raised by the interaction of assisted reproduction technology and legal parentage rules. The paper identifies a need for reform of the legal parentage and birth registration rules in Manitoba legislation, a topic to be discussed by the Commission counsel at the Northern Bar Association annual CPD session on June 6, 2014.

Tax Matters Toolkit

The CBA National Family Law section, in collaboration with Justice Canada, Finance Canada, and the CRA, has developed a new resource to help family law lawyers and their clients understand and navigate the complex tax rules applying upon separation and divorce. Separate toolkits can be downloaded for lawyers and their clients.

Juristat Case Statistics

The current issue of the Statistics Canada periodical Juristat contains an article on Family law cases in the civil courts, 2012/2013. The report examines family law cases in the overall context of civil court systems, looking at how much court activity they involve and how they progress over time. Highlights of the report are summarised here.

Recommended Reading

The risks of reconciliation - this Lawyers Weekly article highlights the need for family law lawyers to ensure that clients fully understand the legal effects of reconciliation and the possible financial pitfalls that may occur as a result.

The case against having default shared custody - BC lawyer John-Paul Boyd argues that private member Bill C-560, which would require shared custody in all but a few cases, is misguided. The Law Times article, Time for Canada to embrace equal shared parenting, sets out the opposing viewpoint.

The Family Law Process: Highway To Hell Or Road To Resolution? - the author of this Miller Thomson paper outlines the alternatives to the adversarial court process for those seeking a more peaceful resolution to family law disputes.

Spring CPD: LSM

May and June are busy months for CPD at the Law Society. Here's what's available:

• Presenting With Confidence - The final session of the Leadership Skills series will be held May 29, 2014 from 9:00 a.m. to noon at the Law Society classroom. This interactive presentation will help you to hone your presentation skills and communicate more effectively.

• Paul Unger of Affinity Consulting Group will present three back-to-back technology programs on June 12, 2014 at the Law Society classroom. Register for one or more sessions to learn what you need to know about iPad for Legal Professionals, Managing your Technology, and Acrobat for Legal Professionals.

• Canada's Anti-Spam Law: What Your Clients Need to Know - presenters Brian Bowman and Andrew Buck will review how Canada's new Anti-Spam law is about to fundamentally alter online marketing activities in Canada at this lunch hour webinar on June 17, 2014. Register as a group and receive a discount.

Both Northern and Central bars will be presenting cpd sessions on family law topics:

• Assisted Reproduction: Legal Parentage & Birth Registration - this Northern Bar Association CPD will take place from 9:00 to 10:30 a.m. on June 6, 2014, in The Pas, Manitoba.

• The Impact of Family Law on Estate Matters - this session takes place from 9:30 a.m. to noon on August 22, 2014, in Portage la Prairie, Manitoba.

Upcoming MBA Sessions

The Family Law section of the Manitoba Bar Association is hosting two meetings in June:

• Welcome to Family Law - What they didn't teach you at law school - this program is a primer on family law for articling students or new lawyers. Speakers will address such practical issues as what happens on the motions list, the must know QB rules, and family law practice management. The program takes place on June 4, 2014, from noon to 1:30 p.m. in the Law Society classroom.

• Annual BBQ - the Family Law section annual BBQ will be held June 12, 2014 at the Blackstone Lounge, Taylor McCaffrey.

2014 National Family Law Program: FLSC

The Federation of Law Societies' 2014 National Family Law Program will be held July 14-17, 2014 in Whistler, British Columbia. See the FLSC website for the preliminary program, list of topics, and registration form.