The Court of Appeal dismissed the husband’s motion for a rehearing in Rémillard v. Rémillard, 2015 MBCA 42, finding that he had not demonstrated the exceptional circumstances necessary to overcome the fundamental principle of finality of litigation. He argued that the court failed to take into account the income tax ramifications of awarding retroactive spousal support on appeal, and sought to have the court revise its decision by grossing up the credit for the third-party payments he had made or lowering the spousal support award for the relevant years. The court declined to do so, finding that “more than an alleged error is necessary for…a rehearing,” and that awarding retroactive spousal support was neither perverse nor fundamentally wrong, as required to connote a miscarriage of justice.

In Singh v. Pierpont, 2015 MBCA 31, a protracted custody dispute being fought in both Hawaii and Winnipeg, the court declined to hear the father’s appeal of a discretionary interim order under s. 6(c) of The Child Custody Enforcement Act requiring him to return the parties’ four year old son to his mother in Winnipeg pending resolution of the matter. The father argued that the application judge erred in finding that the son did not have a real and substantial connection to Hawaii, since the mother’s participation in the ongoing proceedings there created a presumptive connecting factor. The Court of Appeal found it would be premature for them to address the father’s argument given that one of the possible outcomes of the Manitoba proceedings might be to confirm the Hawaii order, rendering the father’s argument moot.

Two recent Manitoba decisions have considered the issue of when it is appropriate to order security for costs in a family law case. In Zimmerman v. Buss, 2015 MBCA 40, the court found it would not be just to order the husband to pay security for costs given the significant inroads he had made in paying the amounts owing under the separation agreement; his connections to Manitoba, including employment here; and the acknowledgment that his appeal was not without merit. In J.D.S. v. M.D.S., 2015 MBQB 58, a “highly litigious proceeding,” both parties requested security for costs on the self-represented husband’s motion to vary. The court dismissed the husband’s motion on the basis that under Rule 56.01 the person applying for security for costs must be the person responding to an action or application brought against them, i.e. a defendant or respondent. The court noted “the lack of apparent merit respecting the relief sought by the husband,” his failure to pay previous costs and child support, and his demonstrated defiance, but acknowledged the unique nature of access to justice in family proceedings. The husband was ordered to post security for costs of $5,000 before proceeding on any issue other than access and child support.

In Self v. Rusak, 2015 MBQB 65, the court “sent a message” by awarding Class 3 costs to a father concerning his application to set aside a without notice protection order the mother had misused to prevent him from having a relationship with their child. The court found at para. 37 that the mother’s application for the protection order “totally lacked in merit,” that she did not provide the requisite full and frank disclosure to the JP, and that “a message must be sent to those who use these serious orders for mischievous or improper purposes.”

A father’s complete and utter disregard for court orders requiring him to pay child support and provide financial disclosure, and the fact that he mislead the court and made no effort to purge his contempt, left the court no option but to impose a significant penalty in Griffin v. Eros, 2015 MBQB 64. The court ordered that he be incarcerated for 21 days and pay both a $5,000 penalty and solicitor-client costs.

The court sorted out a care and control tug of war in Bomhoff v. Bomhoff, 2015 MBQB 52 by crafting a schedule that maximized both parents’ time with the children, respected their contrary concerns about the need for daycare, and limited the frequent and unnecessary tense interactions that occurred when the father made the unilateral decision to have his new stay-at-home partner remove the children from the daycare early on the mother’s days. Noting at paras. 63-64 that s.16 (10) of the Divorce Act requires that a custody or access order should maximize the time for the parents taking into account the child’s best interests, but does not direct the court to maximize time for family members, the court ordered that the father or his designate could remove the children from daycare early only on the days on which he had care and control. The new schedule bumped the father’s time over the 40% threshold and triggered a s. 9 analysis for child support purposes and a re-examination of the parties’ income and expenses. The court added back to the father’s income certain expenses which, while legitimate for income tax purposes, were not reasonable when assessing income for child support purposes. In the court’s view, “the privilege of deducting particular expenses from income under the Income Tax Act for tax purposes, is trumped by the duty on a parent to pay child support commensurate with their actual income. The Guidelines safeguard the rights of children to receive child support based on their parent’s genuine income.” (para. 111)

These recent cases illustrate the factors courts take into account when conducting a mobility analysis: Couling v Couling, 2015 MBQB 50 – the court rejected a mother’s bid to move from Winkler to her parents’ home in North Dakota, noting that she was a restrictive, not facilitative, gatekeeper and had minimized the role of the father in the children’s lives, and that her plan focused on her own needs over those of the children. Monaghan v. Bobinski, 2015 MBQB 48 – a mother who crafted a thoughtful proposal that made sure that the father’s time was enhanced and who undertook responsibility for all transportation of the child was permitted to relocate to a town two hours away. S.A.C. v. S.E.C., 2015 MBQB 61 – the foundational issue in this case appeared to be mobility, but the court declined to even consider relocation and focused instead on crafting a disposition which would protect the four children from both of their parents. The father, a convicted and untreated sexual predator, continued to have his parental role severely circumscribed under a supervised access order. The mother was granted an order of sole custody, subject to stringent requirements to cooperate with Winnipeg Child and Family Services interventions. Her relocation request was denied given the heightened risk of harm to the children.

The Supreme Court dismissed the application for leave to appeal from Dundas v. Schafer, 2014 MBCA 92, ending the parties’ protracted dispute as to whether the waiver of pension entitlements in a prenuptial agreement can deprive a former spouse of equal sharing of a member’s pension under The Pension Benefits Act.

How family disputes are really settled – this Lawyers Weekly article reports on the preliminary findings of a research study on the experiences of Ontario family justice professionals with the realities of dispute resolution. Drafting clauses to facilitate the enforcement of special or extraordinary expenses – authors from the Federal Justice Department offer tips on how to craft clear special or extraordinary expense clauses in orders and agreements. New toolkit to advance access to justice for children - The CBA’s United Nations Convention on the Rights of the Child subcommittee of the Children's Law Committee has approval to develop an innovative and comprehensive child rights toolkit to help lawyers, judges and other legal professionals advocate more effectively for children. Those interested in collaborating on the project are invited to contact the subcommittee chair or members. Improving coordination of the family and criminal systems in cases of family violence – this article discusses a report identifying the challenges that arise when family violence is a factor in a relationship breakdown, and details how some jurisdictions are dealing with them. It also links to the following resources on this topic: Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Criminal, family, child protection) A Family Law, Domestic Violence Perspective Best Practices where there is Family Violence (Criminal Law Perspective)

FASD and other Cognitive Challenges: What Lawyers Need to Know - Join our expert panel  chaired by Judge Mary Kate Harvie as they discuss how to effectively communicate with a client, accused, witness or complainant with an FASD diagnosis at this at this afternoon session on June 15, 2015. On November 13, 2015, The Law Society of Manitoba, the Court of Queen’s Bench Judges & the Provincial Court Judges will jointly present The Inaugural Child Protection Program at the Fort Garry Hotel. Notable speakers will include an Ontario Court Justice, Court of Queen's Bench Justice, Provincial Court Judges, a representative from the Office of the Children’s Advocate, an experienced practitioner and a renowned academic. Register before September 25th to take advantage of early bird pricing. Both of the above listed programs include a Special 50% Off Student Discount. Mark your calendar to attend one of the continuing professional development sessions on the Family Division Case Management Changes, offered next fall in the Law Society classroom. Registration and program information will be announced soon.

Family Law and the Court of Appeal – A Practice Guide for the Perplexed - The Hon. Madam Justice Freda Steel and Lawrence Pinsky will address questions arising from the intersection of family law and the Court of Appeal at this lunch session on May 19, 2015, from noon to 1:30 pm at the Law Society classroom. May is bring a buddy month at the Manitoba Bar Association, so consider inviting a non-member friend to a section meeting.

The Federation of Law Societies’ National Family Law Program has issued a Call for Papers for their 2016 National Family Law conference, to be held July 11-14, 2016, in St. John’s, Newfoundland & Labrador. The deadline for submission of proposals for papers or presentations is May 30, 2015.