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eLaw - Family Law Update
September 2014 - No. 69ISSN 1916-3916
In This Issue
Parens Patriae Jurisdiction Ousted in Hague Convention Case: MBCA
Parens Parent's Right to Appeal Cannot be Disregarded: MBCA
Financial Need an Exception to Principle Against Double Recovery: MBCA
Due Process for Foster Parents: MBCA
Proportionality in Family Law Litigation: MBQB
Other Family Division Cases
Legislative Update
Recommended Reading
Pitblado Lectures
Fall CPD: LSM
Parens Patriae Jurisdiction Ousted in Hague Convention Case: MBCA

In Garcia Perez v. Polet, 2014 MBCA 82, the Court of Appeal refused the mother's motion for a stay of a lower court order that the child of the marriage be returned to her habitual residence in Hawaii and to the residence of her father pursuant to the provisions of the Hague Convention. The child's maternal grandparents had taken the child from Hawaii to Winnipeg in 2013, and the mother, who had primary care, followed. The mother's current immigration status did not allow her to return with the child to Hawaii. She argued that refusing to stay the return order would cause the child irreparable harm by separating her from her primary caregiver. The court disagreed, finding that the lower court's decision not to rescind the return order was "well supported by the law and facts, and (did) not raise an arguable case that has a reasonable chance of success." The court also noted that parens patriae jurisdiction does not give the court power to override existing legislation like the Hague Convention.
Parent's Right to Appeal Cannot be Disregarded: MBCA

A formerly self-represented mother who missed the factum filing deadline in her child custody appeal was granted an extension of time to perfect the appeal in Boryskiewich v. Stuart, 2014 MBCA 77. Only two of the four criteria governing extensions of time in child custody proceedings were at play: arguable grounds and possible prejudice. The court accepted the mother's position that arguable grounds existed in that the trial judge may have focussed only on problematic issues surrounding the mother's life without showing the same attentiveness with respect to the father's life and may not have properly considered options other than a change in primary care and control. Although expeditious resolution of child custody proceedings and finality are in a child's best interest, said the court, in this case it was "right and just in all the circumstances" to allow the mother a short period of time to perfect her appeal.
Financial Need an Exception to Principle Against Double Recovery: MBCA

The Boston principle against double recovery (where spousal support is paid from pension income) is not an automatic exclusion according to the Court of Appeal in Senek v. Senek, 2014 MBCA 67, but arises when compensatory spousal support is awarded as opposed to spousal support based on need. In this case, the husband moved to terminate his spousal support obligations when he retired, arguing that to make him pay spousal support out of his pension would constitute double recovery. The appeal court agreed with the motion judge's decision that, given the wife's continuing need, this was an appropriate case in which to apply the exception to the rule against double recovery.
Due Process for Foster Parents: MBCA

The right of foster parents to an independent appeal under s. 51 of The Child and Family Services Act applies even when the children have been removed from the care of the foster parents in order to return them to their natural parents for family reunification according to the Court of Appeal in First Nations of Northern Manitoba Child and Family Services Authority v. Manitoba (Minister of Family Services and Housing) et al., 2014 MBCA 42. The court found that the appeal provisions have a dual purpose, to ensure that a timely and expedited decision be taken that allows for both due process for the foster parents and the best interests of the child. (para. 95)  Although in this case the matter was moot because the children were no longer in need of protection, the court chose to hear the appeal because the issue was relevant to many but had never been litigated.
Proportionality in Family Law Litigation: MBQB

An emerging theme in many Family Division cases is the need for the courts to bear in mind the increasing costs of family law litigation and to craft decisions which create certainty and encourage the parties to reach non-litigious settlements of issues in the future. Coady v. Coady, 2014 MBQB 182, a decision involving a retroactive review of a separation agreement voluntarily entered into by the parties, is a recent example of such a case. The husband sought to terminate or vary his spousal support obligations due to a downturn in the economic fortunes of his company and his stated desire to retire, a triggering event specifically contemplated in the agreement. The court was asked to pierce the corporate veil to find hidden corporate benefits and to impute additional income to the husband, but in the end found that the "means/needs" analysis reflected a continuing significant difference between the parties' standards of living. The court declined to terminate support, but ordered the husband to pay a reduced amount of support for a further four years, at which time the obligations would cease. By setting an end date the court hoped to enable the parties to go forward with certainty and to avoid future litigation.
Other Family Division Cases 
  • Westman v. Gyselinck, 2014 MBQB 174 - in another case referencing access to justice issues the court pronounced a nunc pro tunc order rectifying an irregular reference order to include a direction that the determination of the issues of shareability of assets and liabilities be delegated to the Master. The court found at paras. 37-39 that the pronouncement of such an order did not contradict (but rather complemented) the governing legislation and allowed the court to "do justice between the parties."
     
  • Griffin v. Eros, 2014 MBQB 165 - a father who ignored clear and unambiguous financial disclosure obligations respecting his business and personal affairs for years was found in contempt of court and ordered to pay child support based on specified imputed income.
     
  • The court reviews the law and the social science on relocation in Morrill v Morrill, 2014 MBQB 161 and concludes that it would be contrary to the best interests of the children to allow their mother to relocate to California with them.
     
  • Callicutt v. Callicutt, 2014 MBQB 144 - this case canvasses the interpretation of the Hague Convention on Civil Aspects of International Child Abduction in respect to its purposes, its procedures, the exceptions to the return of children, and whether evidence of domestic and family violence is sufficient to trigger the grave risk exception. On the latter issue the court found that in light of the well-established history of domestic violence, granting the father's application to return the children to their habitual residence in Guam, even subject to undertakings, would expose them to a grave risk of physical or psychological harm and place them in an intolerable situation.

  • Benjamin v. Snyder, 2014 MBQB 136 - this is another case illustrating how the judicial role in family cases has been altered by the proliferation of self-represented litigants and the culture shift (identified in Hryniak) required to promote affordable access to the civil justice system. In this case the judge became an active problem solver in helping the parties (one of whom was self-represented) to work out new care and control arrangements in the face of conflicting work schedules and previous difficulties with access.
Legislative Update

Bill 59, The Adoption Amendment and Vital Statistics Amendment Act (Opening Birth and Adoption Records), received royal assent June 12, 2014 and will come into force upon proclamation. As detailed in the explanatory note, it makes significant changes to The Adoption Act and The Vital Statistics Act to allow for more openness with respect to adoption records and pre-adoption birth records, subject to certain privacy rights. The Manitoba legislation is unique in the way it balances openness and the right to know one's history with competing privacy interests. Adoption records will be open, but both parents and adoptees can file "contact preferences" to constrain the kind of information that is shared. The new legislation also facilitates record searching for those born in Manitoba but adopted out of province.
Recommended Reading 
  • The Law on Relocation of Children after Marital Breakdown - the author of this blog post from The Court argues that new rules are needed to clarify the law on relocation given the excessive unpredictability and inconsistency in the case law on this issue.
     
  • Bar Talk - the June 2014 edition of the CBA's BC branch newsletter contains several articles on surrogacy, including one written from a BC lawyer's personal perspective on commercial surrogacy in India. 
     
  • A new beacon in stormy waters - this Lawyers Weekly article sets out Legal Aid Ontario's strategy to ease the number of self-represented litigants in family courtrooms and encourage the use of consensual dispute resolution.
     
  • Tactic putting lawyers in tough spot - family law lawyers need to have strategies in place to prevent and deal with conflict of interest scenarios, particularly when it is becoming more common for litigants to deliberately "lock up" the lawyers who might otherwise represent their spouse, according to those quoted in this Lawyers Weekly article.
     
  • Challenging the predatory marriage - this Lawyers Weekly article highlights two New York cases which suggest new ways to challenge predatory marriages given the failure of the common law doctrine of capacity to keep pace with the rapid development of property rights now attached to marriage.
     
  • Useful Questions to Help Assess Process Options - this Practice Points article lists suggested questions that family law practitioners, mediators, and arbitrators will find useful when assessing for family violence.
Pitblado Lectures

The 2014 Isaac Pitblado Lectures, Accessing Justice: Beyond Barriers, will take place November 28-29, 2014 at the Fort Garry Hotel. Presenters will examine how access to justice demands may affect legal education, professional practice, regulation, and ethics; and make the business case for law firms to participate in access initiatives. Register by October 17 for the early bird registration rate.
Fall CPD: LSM
There are many programming options to choose from this fall at the Law Society:

Family Law Programs

Grace Under Pressure: Taking the "I" out of Family Law - Acting Associate Chief Justice Marianne Rivoalen, Marta Smith and Greg Evans will discuss the lack of civility and decorum in family law practice and offer tips and strategies to develop and maintain professional composure at all stages of your family law files at this September 24, 2014 lunch program.
 
Assisted Reproduction: Legal Parentage & Birth Registration - Learn about the options for reforming Manitoba's statutory framework for parentage and birth registration to account for assisted human reproductive technologies and evolving social attitudes and family structures at this lunch program on November 4, 2014. Register to attend in person or by tele-presentation.

Practice Management and Ethics Programs

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C. and save money as you learn what you need to know to practise responsibly.

Making Great and Lasting First Impressions - this September 23, 2014 webinar will help you to improve the impressions you make on the people you meet professionally.

Limited Scope Retainers: Tips and Traps (Webinar) - Law Society staff will tell you what you need to know to ensure you are acting safely and ethically when using limited scope retainers in your practice in this lunch hour webinar on September 30, 2014.  Discounts apply for group registrations.

Perfecting the Twenty-First Century Law Practice - join practice management guru Jim Calloway as he provides guidance on such topical issues as the future of law practice, techno-ethics, and alternatives to the billable hour. The all-day program on October 3, 2014 will conclude with the popular 60 hot tips in 60 minutes, a fast-paced review of tips and ideas you will put to immediate use in the office.

The Approximately 11th Annual Accommodation in the Workplace - don't miss the 11th installment of this popular program co-presented by the MBA and the LSM on October 24, 2014. Presenters will review such recent developments in accommodation law as accommodating family status and choosing the right forum for complaints.
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