In Strickland v. Canada (Attorney General), 2015 SCC 37, the Supreme Court dismissed an appeal from a FCA ruling that the Federal Court is not an appropriate forum in which to address the validity of the Federal Child Support Guidelines, given the minor role the court plays in issues under the Divorce Act and the breadth of the jurisdiction and expertise of the provincial superior courts concerning divorce and child support. The appellants sought a declaration in the Federal Court that the Guidelines are unlawful since they are not based on the “relative abilities to contribute” of both spouses and they do not reasonably calculate the amounts required “to maintain the children” as required by s. 26.1(2) of the Divorce Act. The Supreme Court found as follows at para. 33: The Court’s jurisprudence…supports the principle that the provincial superior courts, in the context of proceedings properly before them, can address the legality of the conduct of federal boards, commissions and tribunals, where doing so is a necessary step in resolving the claims asserted in those proceedings. This means that in the context of family law proceedings otherwise properly before them, the provincial superior courts can decide that the Guidelines are ultra vires and decline to apply them if doing so is a necessary step in resolving the matters before them. It follows that the appellants’ position to the contrary on this point must be rejected and that the premise underlying the decisions of the Federal Courts to decline jurisdiction was correct.

The Court of Appeal repeats its strong admonition against appeals of interim orders in two recent care and control decisions. In Magnusson v. Duguay, 2015 MBCA 65, a mother was unsuccessful in appealing the motion judge’s decision (on her own initiative) to order an assessment report and to adjourn the mother’s request for sanctions against the father for failing to provide disclosure as ordered. In Wilson v. Funk, 2015 MBCA 57, the court declined to interfere with an interim order disturbing the status quo of a shared parenting arrangement that had previously existed by agreement of the parties for over three years. The interim order was decided on the basis of disputed affidavit evidence which caused the motion judge to find that “the mother’s residence was not the “type of environment” a young child should be in and that the mother had an “issue” with alcohol and drugs.” The court concludes with the following statement at para. 7 of Wilson: The repeated message of this court is that an appeal of an interim order is not the best way to resolve a family law dispute. Parties are almost always better served to devote their efforts and resources to perfecting their case, case management and, if necessary, a trial. This is such a case. Extensive delay has occurred to bring this appeal on. Because no stay of the interim order was obtained that long delay has created a new status quo for the child that should not lightly be disturbed. Any change of the current status quo is a matter that is best left to the trial judge to decide on a proper record.

The court declined to exercise its discretion to sever corollary relief from the divorce proceedings in Dillon v Dillon, 2015 MBQB 104, finding that there must be a valid reason to do so. In this case, where there were concerns that severing might interfere with the progress made in resolving property and support issues, the court found no positive goal would be achieved by granting the application.

Family law courts are increasingly commenting on the principles of proportionality and the appropriate use of court and party resources since the Supreme Court’s decision in Hryniak v. Mauldin, 2014 SCC 7. In Pownall v. Pownall, 2015 MBQB 100, an interim motion to determine income and support, the court found that the parties (whose combined family budget totalled $67,000 per month, of which $20,000+ per month was earmarked for legal fees) had ”totally lost sight of the principles of proportionality and the principles relating to interim support.” The court deferred the more complex issues relative to the husband’s income and the wife’s duty to be self-supporting to trial and urged the parties to consider whether utilizing a judicially assisted dispute resolution process would be a better use of their legal budgets.

The court took the unusual step of imposing a new process under which case management would only occur on the direction of the motions judge in Delichte v. Rogers, 2015 MBQB 74, a protracted family law dispute the court described as “constant festering litigation.” (para. 175) In keeping with its obligations under Queen’s Bench Rule 1.04(1) to secure the most expeditious determination, the court found it had “an obligation to repel unnecessary and inconsequential process, to limit access where the history of the litigation reasonably requires it, and to flag litigation locomotives sooner rather than later.” (para. 238) It imposed a number of restrictions with respect to the parties’ future litigation, detailed at paras. 205-250. The court resolved a number of issues in the complex case and decided, among many other things, that the mother’s greater financial need (brought on by her decision to pursue studies in a jurisdiction where she cannot earn an income) did not constitute a relevant “material change in circumstance” warranting a variation of her imputed income. (para. 60)

The Adoption Amendment and Vital Statistics Amendment Act (Opening Birth and Adoption Records), SM 2014, c 25, came into force June 15, 2015, creating a scheme that allows for more openness with respect to adoption records and pre-adoption birth records, subject to certain privacy rights. Details can be found in the explanatory note to the bill and in this government news release. Bill 33, The Family Law Reform Act (Putting Children First), introduced June 3, 2015, proposes sweeping changes to Manitoba’s laws governing enforcement of child and spousal support, parentage, child custody and access. The Bill would repeal The Family Maintenance Act and replace it with two separate statutes: The Family Law Act, to address the rights and duties as between family members, and The Family Support Enforcement Act, which will govern support enforcement and the duties of the Maintenance Enforcement Program. The bill also proposes amendments to The Court of Queen’s Bench Act to lay the foundation for the summary, administrative family court process that forms part of the Simplified Family Justice pilot project. Highlights of the bill, detailed in the explanatory note, include: a comprehensive scheme to determine a child's legal parents, including where assisted reproduction has been used; new rules for relocation proposals; a right for children to seek their own child support; and new enforcement measures.

When Legal Worlds Collide: The Impact of Corporate Law on Family Law Rights & Obligations Following a Relationship Breakdown – this paper takes an in-depth look at corporate law principles and remedies that can be used to advance family law claims or to minimize the effect of corporate law on relationship breakdown. It’s Not Just Them: The Social and Economic Consequences of Family Conflict – the author of this Slaw post argues that the effects of family breakdown and family conflict extend far beyond the individual family and the court arena and have ripple effects on health care, child protection, welfare, employment insurance, human services, and the overall vigour of our economy. Slaw contributor John-Paul Boyd has posted several other articles on family law concerns in the last month, including: Access to Justice and Drafting Family Law Legislation as a Complete Code – discusses access to justice issues illuminated by recent case law decided under BC’s new family law regime. A Few Thoughts for Family Law Litigants: Why It Pays to Let Bygones Be Bygones and A Few Thoughts for Family Law Litigants, Part Two: Comments From the Bench and Others From Me – these two articles explore why revenge should never be a tactic in a family law dispute. Movement away from word ‘custody’ gathers steam – this Law Times article cites an Ontario Court of Appeal decision that may affect the language of decision-making in family law cases involving disputes over children.

Family Division Case Management Changes (Multiple Program Dates Available) – register now to attend one of the sessions (Sept 24, Oct 20 & 27) of this important program on amendments to Rule 70, coming into effect in November, 2015. The changes, relating to case management practice and procedures, will affect your day-to-day practice, and this program will provide practical tips to help you navigate the new landscape. The Inaugural Child Protection Program – this full day program, to be held November 13, 2015 at the Fort Garry Hotel, will explore the state of the child protection system in Manitoba and across Canada. Notable speakers, including Ontario Justice Carol Curtis, Professor Rollie Thompson, four Court of Queen’s Bench judges, and experienced practitioners, will cover such topics as evidentiary issues, parent capacity assessments, and a survey of what has worked (or not) in other jurisdictions. Register before September 25, 2015 to take advantage of the early bird discount. Students are eligible for a 50% discount, subject to availability.