In Aquila v Aquila, 2016 MBCA 33, a must-read decision for family law practitioners, the Court of Appeal reviews the law on termination of child support orders (specifically the circumstances warranting continuation of support for an adult child due to a dependency for pursuit of post-secondary education and whether a grace period exists between degrees or before employment); and entitlement to continuation of spousal support orders in medium-term marriages. On the latter issue, the court notes at para. 37 that “(i)nconsistency of spousal support outcomes is a fact of life in family law,” particularly for medium-term marriages, where “(d)espite the SSAG, the case law is replete with differing outcomes on similar facts.”(para. 36)  After an extensive review of the relevant legal principles and the facts underlying the motion judge’s assessment of the parties’ circumstances, the court could find no basis for interfering in his conclusion that the compensatory aspect of spousal support was “fully satisfied” after the petitioner had received nearly 11 years of spousal support and that the continuing spousal support on a non-compensatory basis, in a reduced amount, should be for a definite term. The court also saw no basis to interfere with the motion judge’s decision to terminate child support given the vague evidence concerning the 23-year-old son’s current finances and future career plans.

In Daoust v Alberg, 2016 MBCA 24, the court upheld the motion judge’s decision that she did not have jurisdiction to retroactively vary an order of child support on a motion made when the 18-year-old child in question was not a “child” qualifying for support within the meaning of section 35.1 of The Family Maintenance Act. The court rejected the mother’s argument that the court was seized of the matter by virtue of a support order made in 2009, finding that: the FMA is an application-based regime. The jurisdiction of the court is invoked by way of application. In these circumstances, it is not invoked by the fact that the Court had made a previous support order, nor by the fact that the petitioner made an informal request for disclosure prior to the child ceasing to fall within section 35.1 of the FMA (para.5).

A husband’s attempt to acquire exclusive ownership of the parties’ jointly owned home by asserting a right of survivorship after his wife died before proceedings to sever the joint tenancy were concluded was inconsistent with each co-owner’s mutual intention as revealed by their conduct according to the court in Siwak v. Siwak, 2016 MBQB 61. The court found that the entire course of formal and informal dealings between the parties evidenced a mutual intention to sever at common law and that the wife’s estate was entitled to a one-half interest in the property.

The court granted guardianship of a 6-year-old indigenous girl to the non-indigenous couple who had fostered her almost since birth in West Region CFS v. L.A.H. et al. and M.H. et al, 2016 MBQB 48, despite opposition from the Agency, which favoured moving the girl into a culturally appropriate foster placement with her siblings, and contrary to the recommendations of the expert witness. Alluding to a “battlefield environment” created by the Agency, the judge stressed that his decision was not about general policy statements, but about a six-year-old girl and what is best for her.

As noted in the first paragraph of Bortolussi v. Cafferty, 2016 MBQB 54, this case highlights the problems that can arise when parties attempt to circumvent the mandatory Child Support Guidelines and choose to have no independent means in place to monitor their support payments. Despite signing a consent order providing for table child support, the parties agreed that the father would continue to pay a lesser amount. When he stopped paying altogether, however, the mother filed proceedings to have the support payments paid through the Maintenance Enforcement Program, which was obliged to pursue collection of the table amount. The court found it would be grossly unfair and inequitable for the father to pay the full support arrears and ordered that they be reduced to take into account the table amount that the father was obligated to pay under the guidelines, less those payments he had made to the mother. All late payment penalties and cost recovery charges assessed by the MEP were cancelled. The mother obtained an order imputing the father’s income and a contribution from the father for s.7 expenses.

In granting permanent guardianship orders respecting two children in The Director of CFS v. N.L., W.W. and N.P., 2016 MBQB 31, the judge makes an impassioned plea for a better child protection system, urging both levels of government to take appropriate steps to deal with insidious and self-proliferating systemic delay and our collective failure to protect the safety and security interests of children. “Child protection proceedings carry with them a constitutional imperative when it comes to issues of adjudication within a reasonable time,” according to the court, and “children living in high conflict conditions should not have to endure that or have their childhoods lost or compromised by untoward delay.” (paras. 162 and 163)

Campbell v. Campbell, 2016 MBQB 57 – the court reduced the child support obligations of the father due to undue hardship arising from health issues and low income. Anderson v. Karalash, 2016 MBQB 42 – credibility concerns cause the court to reject the husband’s assertions concerning his income from self-employment, past payments for child support and purchases made for the benefit of the child, and whether property acquired from his father was a gift and therefore not shareable. D. W. v. Peguis CFS, 2016 MBQB 32 – a 48-year-old man who exchanged sexual text messages with a 13-year-old girl was unsuccessful in opposing entry of his name on the Child Abuse Registry. Even if the applicant did not intend to pursue physical sexual contact with the child, he exploited her curiosity and immaturity for his own purposes. Moreover, a finding of “sexual exploitation” does not require proof that the child was harmed.

A primer on common-law marriage rights in Canada – this FindLaw article examines the rights of common-law partners to spousal support and property division in each province. He said, she said – a mere allegation of domestic violence places a cloud over a family law case that causes a trial within a trial and implicitly influences temporary and final court orders, according to the author of this Lawyers Weekly article. Feuding parents blow $500,000 on custody battle -- this FindLaw post discusses Jackson v Mayerle, 2016 ONSC 1556, an Ontario case in which the judge noted that no cost order could undo the financial ruin occasioned by the 36-day custody trial. More harm than good – the author of this Lawyers Weekly article points out the risks in following the TRC’s recommendation to repeal s. 43 of the Criminal Code, which provides a defence for the “reasonable correction” of a child by a parent or teacher. Family Law and the Treatment of Discretionary Trust Interests on Marital Breakdown – in light of recent Canadian court decisions holding that interests in discretionary trusts are divisible family property, the author of this article advises trust beneficiaries to consider domestic contracts to deal with their trust interests, including where appropriate excluding them from property division. 'A cautionary tale for inter-family advances' -- this Canadian Lawyer article discusses Barber v Magee, 2015 ONSC 8054, a “cautionary tale for inter-family advances” (para.72) in which the husband failed to prove a resulting trust over funds advanced by his father (which were used to purchase a house in the husband’s name only) due to lack of documentation of the alleged loans. The court found that the money was a gift and ordered the husband to make an equalization payment to the wife respecting the matrimonial home. DIT A2J 3: - in this Slaw post author John-Paul Boyd lauds three non-governmental groups who have made a big impact on family justice in recent years. Divorced dad asks top court to cancel spousal support after ex-wife's house spikes in value -- this FindLaw article discusses Lamont v. Johnson, 2016 BCSC 366, a BC decision in which the court rejected a husband’s bid to reduce spousal support given the increase in value of the former matrimonial home now owned by the wife pursuant to the parties’ settlement agreement.

Working with Domestic Violence Clients – learn practical strategies to enhance client safety and provide a framework for working with clients who have experienced domestic violence at this afternoon program in Brandon on May 6, 2016. Mary Lobson will also discuss the intersection between technology and domestic violence and how technology can be misused to perpetuate violence. Aboriginal Law Series – this series concludes with a unique opportunity to explore Indigenous Legal Traditions at Turtle Lodge on Sagkeeng First Nation, on May 17, 2016.

The Federation of Law Societies’ 2016 National Family Law Program will be held July 11-14, 2016 in St. John's, Newfoundland & Labrador. See the FLSC website for further details on the program topics and registration.