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eLaw - Family Law Update
February 2015 - No. 71
ISSN 1916-3916
In This Issue
Underemployment Finding Upheld: MBCA
Cooperation Key to Shared Parenting: MBQB
Interest Award Sufficient to Compensate for Delayed Equalization: MBQB
Caution in Awarding Interim Spousal Support: MBQB
Losing Sight of the Real Issues: MBQB
Other Family Division Cases
Court of Queen's Bench Notices
Recommended Reading
2015 Annual Joint Family Law Program

Underemployment Finding Upheld: MBCA     


In Campbell v. Campbell, 2014 MBCA 104, the appeal court declined to interfere with the motion judge's order imputing income at 80% of minimum wage to the appellant (who claimed to be able to work only 13 hours per week due to limited work opportunities and medical issues), but did set aside an award of lump sum spousal support because there was no legal basis for it since the wife had never sought support for herself.

Cooperation Key to Shared Parenting: MBQB

 

For shared parenting to work well "(p)arental conflict needs to be at a level where parents are able to communicate, support each other's roles with the children and provide the appearance that they are parenting as a unit" according to the court in Harkness v. Debiuk, 2015 MBQB 19. The court dismissed the father's motion to vary to increase his periods of care and control and move toward shared parenting. The final order had already been varied four times in less than two years, and the court found no material change to justify a further variation: communication between the parties was still difficult, they continued to live far apart, they disagreed about the oldest child's ongoing medical challenges, and there was significant conflicting evidence in their affidavits.

Interest Award Sufficient to Compensate for Delayed Equalization: MBQB

 

Dubois v. Dubois, 2015 MBQB 13 is an interesting example of how delay in equalizing assets can complicate a final accounting. In this case, the value of the marital home (occupied by the wife and in her sole name) increased significantly in the 11 years since the parties' separation. The court rejected the husband's argument that he should share in the increase in value, either because the wife held the home in trust for both parties, or because it was an appropriate case for the court to order an unequal division under s.14(1) of The Family Property Act or on the basis of unjust enrichment. The court found no basis for a declaration of trust since the husband had put the property in his wife's name to shield it from potential creditors, and his original intent did not change just because he wanted to share in the post-separation increase in the home's value (para. 32). The court also ruled out granting an unequal division in these circumstances, finding this would "prolong litigation, increase costs, and promote uncertainty" (para.45) or "effectively disintegrate the legislative scheme and lead to delay in the resolution of family property disputes" (para. 48). The court did award interest in favour of the husband to compensate for the inequity arising from the delay in paying the equalization payment.

 

Caution in Awarding Interim Spousal Support: MBQB  

 

The court declined to award interim spousal support to a young mother in Howdle v. Betteridge, 2015 MBQB 12, despite a substantial disparity in income between her and her equally young, short-term common law partner.  Entitlement is not automatic, said the court, and "should not be ordered in the face of conflicting affidavits on crucial issues relating to spousal support entitlement" (in this case, the duration of the parties' cohabitation and the plans and agreements they made while they were together) (paras. 44 and 45).
Losing Sight of the Real Issues: MBQB

In Froese v. Froese, 2014 MBQB 239, the court granted the husband's motion for summary judgment to enforce a settlement agreement which the wife claimed the husband had repudiated by imposing additional and unacceptable conditions such as requiring her to withdraw from the MEP. After examining the many emails evidencing the settlement negotiations and terms, the court concluded that the parties had reached a binding agreement, and that the changes requested by the husband were "relatively insignificant" and did not amount to a fundamental breach entitling the wife to resile. In declining to award costs the court noted that the parties had lost sight of the real issues:

After successfully reaching an agreement on difficult and significant issues...they lost their common sense meter and allowed themselves to focus on minor issues incurring significant costs.  The tree in the forest blocked an expedited, cost efficient conclusion in this matter. (para.146)

The court also found that, while the FMA does not specifically say so, parties may agree to delete late payment penalties and cost recovery charges collected by the MEP.
Other Family Division Cases
  • LMK v. JMK, 2015 MBQB 1 - the judge admonished a father for attempting to hide behind a "lack of consultation" argument to explain why he hadn't paid his share of the children's extraordinary expenses and reluctantly restricted the terms of the court order to the $2000 ceiling and maximum three year retroactivity set out in the parties' separation agreement. The court also found it reasonable to impute income above the "taxable income" claimed by the husband, given his ability to deduct expenses from his self-employed income and his CCA deduction history.
     
  • Two recent high conflict custody cases illustrate the complex reasoning underlying a "best interests of the child" assessment. In both cases the court ordered joint custody with primary care and control to one parent:
Kopp v. Burke, 2014 MBQB 247 - the judge conducts a nuanced credibility assessment in this case, acknowledging that the stress of high conflict trials may lead the parties to prevaricate or act defensively out of desperation (para.66).

L.J.C. v. J.C.G., 2014 MBQB 246 - in applying the best interests test the court took into account the fact that the child had a positive, caring and stable relationship with both parents despite their conflict.
  • Carter v. Howie, 2014 MBQB 219 - the court dismissed the mother's motion to relocate to Ontario with the parties' ten year old son, finding that the diminished contact with the father which such a move would entail was not in the child's best interests.
     
  • Frigon v. Blanchard, 2014 MBQB 212 - the court considers whether and how monthly disability pension benefits from VAC should be included in income to determine child support. The court concludes at para. 47 that a case by case approach is appropriate: "There ought not to be any hard and fast rules about how to treat income of this nature for the purpose of determining the amount of child support a party must pay.  An informed decision should be made on a full set of facts, with each case turning on its own facts."
     
  • Grant v. Chester, 2014 MBQB 211 - the court found that the use of excessive text messaging to harass and intimidate contrary to the terms of a prevention order constituted contempt.
Court of Queen's Bench Notices

These recent Court of Queen's Bench notices may be of interest to family law lawyers:

Amendments to Rule 70 - this notice describes the Rule 70 amendments establishing the procedures and forms for applications under the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, S.C. 2013, c. 20, for without notice interim orders of exclusive occupation of family homes on reserves.

General Division Protection Order Hearings List - this notice describes the practice to be followed when setting matters down on the new Protection Order Hearings List. The notice reminds counsel with matters on the list to come prepared to address resolution of the matter or to engage in a meaningful discussion as to how to narrow the issues for hearing.
Recommended Reading
  • John-Paul Boyd, executive director of the Canadian Research Institute for Law and the Family, has posted several recent articles on Slaw concerning topical family law issues, including:

Family Justice 3.0: a Settlement-Oriented, Lawyer-Facilitated Hybrid Approach - outlining a radical new model of family justice where lawyers guide parties through a process aimed at finding settlement but concluding with trial if settlement can't be reached.  

We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice - explores the extent to which the complexity of family law is necessary or desirable, and the extent to which complexity is compatible with fairness and an accessible system of family justice.  

Deferred Discomfort and the Problem of Justice Reform - this controversial post discusses the access to justice "crisis" and why we are reluctant to meaningfully address it. 

2015 Annual Joint Family Law Program  

The 2015 annual joint family law program, SOS - Settlement Options and Solutions, will be held March 20, 2015 at Fort Garry Place. Out of town guest speakers and local 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 by February 13, 2015 to take advantage of the early bird rate.
Continuing Professional Development: LSM

Collaborative Practice Workshop - Catherine Connor, a California-based leader in collaborative practice (and a speaker at the annual joint family law program) is conducting this all day workshop on preparing for and running the first joint meeting on a collaborative file and on the role of the law in a client centered process. The workshop takes place from 9:00 am to 4:00 pm on March 19, 2015 at the Law Society classroom. The workshop will include a lecture, a discussion, and experiential exercises and is suitable for both novice and experienced collaborative law practitioners.

Everyday Ethics Series - There are two remaining sessions in this lecture series on ethics issues featuring Allan Fineblit, Q.C.: Mobility 101 on February 11, 2015 and Glass 1/2 Full (Little Things that Cause Big Problems) on March 11, 2015. Register now to attend in person or by tele-conference.
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