eLaw - Family Law Update

November 2014 - No. 70

ISSN 1916-3916

In This Issue

Support and Disabled Children: MBCA

Pension Waivers and Penalty Clauses in Prenuptial Agreements: MBCA

Abuse Registry Hearing a Pure Civil Proceeding Despite Stigma: MBQB

Father's Contempt Raises Court's Ire: MBQB

Failing to Recognize the Child's Best Interests: MBQB

Recommended Reading

2015 Annual Joint Family Law Program

Continuing Professional Development: LSM

Upcoming MBA Programs

Support and Disabled Children: MBCA

The Court of Appeal addresses several difficult issues in the child and spousal support appeal in RÈmillard v. RÈmillard., 2014 MBCA 101, including support of disabled children and how support awards in these circumstances are affected by the availability of government subsidies and assistance, a payor income over $150,000, the child support guidelines, the primary caregiver's obligation to become self-sufficient, and the SSAGs. Among other things, the court found that the trial judge erred in capping child support at the table amount for $150,000 without requiring the father to rebut the presumption that the table amount was "inappropriate;" and in focusing primarily on the mother's needs and her obligation to become self-sufficient when calculating the time-limited, step-down spousal support award. Using the SSAG as a litmus test of reasonableness, the court found a drastic disparity between the suggested SSAG range and the amount ordered by the judge. On the issue of the obligation to become self-sufficient, the court said:

Several recent appellate cases underscore that the realistic attainability of self-sufficiency must be addressed in the context of the facts of the case and the standard of living enjoyed during the marriage. These cases demonstrate that appellate intervention is appropriate when a trial judge overemphasizes the goal of achieving self-sufficiency, particularly in the context of longer-term relationships that have involved one party (usually the wife) staying home to raise the children and look after the household. (para.108)

In this case, the court found that self-sufficiency was not a realistic option given the daily demands the child's needs placed on the mother, nor was it in keeping with the child care approach during the long term marriage. The court increased both the child and spousal support awards and dismissed the father's cross-appeal concerning an order of retroactive support.

Pension Waivers and Penalty Clauses in Prenuptial Agreements: MBCA

In Dundas v. Schafer, 2014 MBCA 92, an appellant who waived entitlement to share equally in her partner's provincially regulated pension in a prenuptial agreement was unsuccessful in her bid to have the agreement declared void on the grounds that opting out of the mandatory provisions of The Pension Benefits Act, a public policy statute, can only be done in a fresh agreement after separation. While the appeal court agreed that pension legislation serves a salutary public purpose (protecting individuals from bad bargains made in the chaos of separation), prenuptial agreements are executed outside the primary marital property regime creating the entitlement and "that which never vested cannot be divided," according to the court at para.35. The appellant was successful, however, in establishing that the clause in the pre-nuptial agreement obliging her to pay $20,000 if she challenged the agreement, was a penalty clause and as such, unenforceable. The court dismissed the respondent's cross appeal regarding costs, finding that "it was not an error in principle for the trial judge to conclude that she retained a discretion which was not displaced by the indemnification clause in the agreement," nor in concluding that Rule 49.10(1) was not engaged" In addition, said the court, "the conduct of the petitioner and the handling of th(e) litigation, while at times aggressive and bordering on the extreme, did not necessarily lead the trial judge to find that it was of a nature warranting solicitor-client costs."

Abuse Registry Hearing a Pure Civil Proceeding Despite Stigma: MBQB

In D. L. v. Child and Family All Nations Coordinated Response Network, 2014 MBCA 86, the agency successfully appealed the dismissal of its motion for production of electronic communications in the possession of the respondent for use in a hearing to enter the respondent's name on the Child Abuse Registry. The appeal court found that the judge misdirected himself on the law in refusing the agency's request: first, by likening the abuse registry hearing to a criminal prosecution; and second, by mischaracterizing the agency's motion and finding that the respondent had no positive duty to disclose. While such hearings are stigmatizing, "(a)ny analogy to criminal law and procedure for such proceedings is an error in principle" according to the court at para.14.

Father's Contempt Raises Court's Ire: MBQB

A father's deliberate and successful plan to destroy the relationship between the parties' child and her mother warranted incarceration said the court in Johnson v. Mayer, 2014 MBQB 197, but to spare the child from the potential for further damage the father was instead fined $2000 for his contempt and ordered to pay almost $45,000 in costs. He also lost his bid to have the mother pay interim support for the three year period during which the child was exclusively in his de facto care and control, since he had repeatedly and wilfully breached the parties' interim joint custody order during this time. The court found that the father had manipulated both his daughter and the court system to achieve his goal of having the daughter completely reject her mother and found him in contempt. The mother agreed to pay child support from the date she voluntarily relinquished custody and she was ordered to pay $4000 for certain s.7 expenses incurred by the father while he had de facto custody.

Failing to Recognize the Child's Best Interests: MBQB

A mother who had made unsubstantiated child abuse allegations against the father concerning their four year old daughter and who subsequently took the daughter to Nunavut without notice, was denied both sole and joint custody in T.D.B. v. M.T.T., 2014 MBQB 194. The mother had previously been convicted of abusing her older son and there were other factors that the court found concerning, including the "inexplicably irrational" actions of the ANCR in apparently facilitating the mother's departure with the child to Nunavut. The father was awarded sole custody and he agreed to a generous access order.

Recommended Reading

Rethinking Marriage: Beta marriages, renewable-term marriages and other interesting ideas - JP Boyd speculates on how relationships may look in the future, including term limited and polyamorous arrangements, and how these changes may affect the practice of family law.
Children's Affidavits: Procedures, Cautions and Concerns - this blog post discusses the perils of involving children in their parents' conflict and offers strategies for obtaining and drafting children's affidavits.
Arguing child placement - the author of this Lawyers Weekly article stresses the importance of preparing for the first appearance in a child welfare apprehension given the negative consequences of adjourning. She also offers practical tips on how to prepare persuasive and compelling responding material at the last minute.
What keeps you up at night? Self-represented parties - this Slaw post contains an excerpt from an archived edition of Lawpro magazine which addresses the inherent challenges in facing a self-represented opponent.

2015 Annual Joint Family Law Program

The 2015 annual joint family law program, SOS- Settlement Options and Solutions, will take place March 20, 2015 at Fort Garry Place. Keynote speaker Dr. Julie Macfarlane and other presenters will discuss a variety of court and non-court based settlement options and processes, and a panel of QB judges will review the new case management rules. Register soon to take advantage of the early bird rate.

Continuing Professional Development: LSM

Can't We all Just Get Along: Using Estate Planning Agreements to Address Family Issues - With remarriages on the rise, estate planning for second families is becoming much more common. Register now to attend this lunch hour program in person or by tele-presentation on December 8, 2014.

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. Upcoming sessions include Money 101 (Billing, Accounting, Borrowing and Lending) on December 3, 2014, and Privilege and Confidentiality on January 9, 2015.

Expert Opinion Evidence - counsel of all experience levels encounter challenges when working with expert witnesses. Experienced litigators Steve Vincent and Jeff Baigrie will walk you through what you need to know about expert opinion evidence at this lunch hour program on February 20, 2015. Register now to attend either in person or by tele-presentation.

Upcoming MBA Programs

First Choice Service - Everything you need to know - Lorraine Mocarski, Supervisor, Family Conciliation, will answer questions and address common misconceptions about the First Choice service at this Family Law section program on November 19, 2014. The program takes place from noon - 1:30 pm in the 2nd floor boardroom, 444 St. Mary Avenue.

Occupation Rent - The Hon. Mr. Justice William Johnston of the Court of Queen's Bench will speak on the topic of occupation rent at this lunch hour program on December 1, 2014. The program will be held in the 2nd floor boardroom, 444 St. Mary Ave.

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