“The importance of properly drafting affidavits cannot be overstated,” according to the court in Olson v. Olson, 2016 MBQB 152, especially in light of the past misuse of expungement motions as a strategic tool, the court’s new focus on proportionality, and the recent elimination of Queen's Bench Rule 70.21. The court expunged several sections of the mother’s affidavit in reply (drafted by her former counsel), noting that it contained material that was improperly put before the court and breached various evidentiary rules. The court summarized the art of good legal drafting as follows: Good drafting has deceptive brevity and clarity. A lawyer should never allow a client to draft her own affidavit or to dictate what goes in and what stays out of it. What the skilled draftsperson rejects is probably just as important to effectiveness as what she includes. Care and attention must always be given to the rules of court and the rules of evidence when preparing an affidavit. Lawyers who practise family law, perhaps more so than those who practise in other areas, should perfect their drafting skills. In addition to success on the expungement motion, the father was also granted primary care and control of the parties’ 5-year-old child and final decision-making authority with respect to his education, child support, and costs, including $1000 related to the expungement.

The court rejected the biological father’s argument in S.L.A.K. v. A.S.H., 2016 MBQB 141, that his ss. 7 and 15 Charter rights had been violated by the provisions relating to biological fathers in Manitoba’s adoption legislation. The case involves the “rare scenario in Manitoba of a contested adoption.” The mother (who was not married to or residing in a common-law relationship with the father) placed the child for adoption at birth after communication with the then putative father concerning their options broke down. The father (who had been served with notice) went for DNA testing after seeing the infant, but filed his petition seeking a declaration of parentage one day after the notice period expired. The adoption proceeded. He argued that the Act was unconstitutional in treating biological fathers differently than birth fathers and that the best interests test should be subordinated to his right to parent and the child’s right to live with him rather than strangers. The court found that “the importance of a child’s biological family and historical connection to that unit is only one element of any best interests evaluation... not a stand-alone consideration deserving of paramountcy over all other factors.” The Charter was not engaged, said the court, because it does not apply to disputes between private parties and because the best interests test is not a principle of fundamental justice engaging s. 7 rights. The court also comments on the danger of using social media to fight private disputes at paras. 92-94, and directs the father to remove and shut down all social media postings and sites relating to the case.

“(P)arties have a responsibility not to litigate issues…that are lacking in merit, or that are not at least rooted in fairness,” according to the court in Tait v. Barker, 2016 MBQB 148, a case involving the appropriate exercise of judicial discretion in monetary claims for retroactive relief. The court described the litigation as “one more example of an exercise in intransigence on the part of one or both parties, and the infliction of yet more financial damage on one another – all for little in the way of net gain.” (para. 3) The mother, in particular, was singled out for her “wilful disobedience” and “flagrant disregard” of the existing order, “not a good foundation upon which to build a case for fairness and a favourable exercise of discretion.” (paras. 77 and 66) Despite case law to support the proposition that retroactive support is appropriately refused in the face of breached orders, the court declined to simply stay the matter, since that would neither end the matter nor reveal the underlying lack of a merit-based claim. Instead, after reviewing the meagre financial evidence, the court dismissed the mother’s claim for retroactive and ongoing support and s. 7 expenses for the older children and her request to vary travel and relocation provisions. It also made the unusual order of setting an automatic termination date for child support for the younger children at age 18.

Systemic delay in the post-apprehension hearing process in Manitoba infringed the parties’ s.7 Charter rights and is contrary to the principals of fundamental justice according to the court in Manitoba (Director of Child and Family Services) v. H.H. and C.G., 2016 MBQB 138, a must-read decision for anyone working in the child protection field. In this case, involving a warrantless apprehension of a day-old infant from the hospital, the issues on the motion centered on the lengthy delay between apprehension and trial (the child would be in care for more than a year by the time the parents’ challenge to the 6-month supervision order was heard). Echoing comments made in other recent decisions critical of the Manitoba system, the court notes that the delay in this case totally frustrates the scheme of the Act and is neither child nor family focussed. In addition, “the fact that there is a Watson hearing available for whether there are reasonable and probable grounds for the apprehension itself does not address the constitutional requirement for a prompt and fair hearing in the circumstances of back-logged courts and long delays until trial.” (para. 102) The appropriate remedy in this case, said the court, is an interim hearing on the question of whether the child continues to be in need of protection pending trial.

The court imposes unusual care and control orders in two recent high conflict custody decisions, both involving child welfare authority investigations for what were found to be unsubstantiated allegations against the fathers: Desrochers v. Dunlop, 2016 MBQB 139 – unusual circumstances in this case (involving allegations that the mother and her parents were marginalizing the father as a parent), and a desire to minimize further high conflict interactions detrimental to the children, led the court to impose a care and control schedule different than any of the schedules proposed by the mediator/assessor which, in the view of the court, had the unintended consequence of hardening the respective and conflicting positions of the parties before and at the trial. Ulloa v. Ulloa, 2016 MBQB 132 – the court declined to order primary care in favour of either parent in this case due to concerns about the mother’s mental health issues and the father’s temper. Instead, the court found it was in the best interest of the children that the parties have joint custody and shared physical care. In addition, the mother was ordered to seek treatment and the father was ordered to attend an anger management course forthwith.

In Shipowick v. Shipowick, 2016 MBQB 124, the court had harsh words for a lawyer father who filed “irrelevant, vexatious and extremely poor quality” materials in support of his application to vary an extra-provincial order by terminating child support for his estranged adult children and spousal support for his wife of almost 20 years. Although finding the applicant to be an individual who deserved “neither sympathy nor favour in law or equity,” the court went on to terminate his child support obligations because the mother had not discharged her onus to satisfy the court as to continuing need. The evidence was similarly sketchy with respect to spousal support but, given the length of the marriage, the court found that an indefinite continuation of the existing spousal support obligation was merited.

The Manitoba Court of Queen’s Bench issued two notices pertaining to family law proceedings on August 3, 2016: Endorsement of Orders by a Judge or Deputy Registrar - this notice reminds family law lawyers that orders in family proceedings are to be drafted in accordance with Queen's Bench Rule 70.31 and the prescribed forms. Specifically, the notice indicates that the judge or registrar’s signature line must be located on a page which includes the body or portions of the body of the order. Dismissed Applications for Protection Orders – this notice clarifies that for applications for protection orders granted and filed with the court on or after February 9, 2016, should a party file a subsequent initiating pleading, Rule 70.10 applies.

Drafting Agreements (Do I Have to Have a Lawyer?) – this BC CLE Practice Points paper considers whether courts view the validity of family law agreements differently depending on the level of legal advice involved during their formation. Although it references mainly BC law, it provides a useful summary of the issues courts consider when agreements are challenged. Gifts To Your Adult Children — Does An Ex-Spouse Get Half? - this blog post discusses a recent case in which the BC Court of Appeal found no basis to disturb the trial judge’s finding that the proceeds from the sale of a matrimonial home (paid for largely by a mortgage gifted by the husband’s parents) were not excluded property, despite evidence that the husband’s mother later treated the payments as an advance on his inheritance. The Rise of the Polyamorous Family: New Research Has Implications for Family Law in Canada – this Slaw post summarizes the findings of the Canadian Research Institute for Law and the Family study on Canadian perceptions of polyamory and explores the implications for the future of family law in Canada. Litigation in the Facebook Age: Creative Discovery through Cutting-Edge Internet Research on Parties and Witnesses – this BC CLE paper reviews how social media evidence has been used in various areas of litigation (including family law cases) and considers the privacy and ethical concerns this raises. Children hurt in divorce process – the author of this Law Times article outlines the risks in appointing counsel for children whose parents are divorcing.

The 2016 Isaac Pitblado Lectures,Pimohtéwin tati‎ mínowastánowahk (Journey to Reconciliation): Lawyers Called to Action, will examine the Calls to Action issued by the Truth and Reconciliation Commission and explore the role of lawyers in renewing relationships between Indigenous and non-Indigenous people in Canada. The lectures will be held November 4-5, 2016 at the Fort Garry Hotel. Register by September 30, 2016 to take advantage of the early bird rate. To hear from 2016 Isaac Pitblado Lecture Organizing Committee Co-Chair Bradley Regehr about why you should attend the 2016 Pitblado Lectures click here.

Deux Formations En Médiation Familiale - Cherchez-vous à améliorer vos compétences dans le domaine de a médiation familiale? La Fédération des associations de juristes d’expression française de Common Law inc. (FAJEF), en partenariat avec la Société du Barreau du Manitoba et l’École de service social de l’Université de Saint-Boniface, offre une session de formation de cinq jours (du 11 – 15 octobre 2016) en médiation familiale visant les juristes et les intervenants psychosociaux du Manitoba. Anatomy of a Child Protection Matter – this half-day program will explore the intricacies of child protection work from all perspectives and at all stages. It takes place from noon to 4:00 pm on December 2, 2016, at the Law Society classroom. New Rights, New Obligations: An Introduction to The Family Homes on Reserves and Matrimonial Interests or Rights Act – if you missed the live presentations of this course, a free, self-paced e-Course is now available on demand on the LSM Members’ Portal. It is designed to provide you with substantive and practical information about FHRMIRA and its provisional rules. To Act or Not to Act: A Conflicts Primer and Review of the New Conflicts Rules – Law Society of Manitoba counsel will discuss the fundamental principles of conflicts of interest and review the new conflicts rules at this September 20, 2016 webinar. Discounts are available for group registrations. Plain Language Communication – Learn to communicate more effectively using plain language at this lunch program to be held November 23, 2016 at the Law Society classroom. Registration discounts apply to students and teleconference participants. NEW Language Rights Rule – This program will examine ethical and professional obligations under the new Code of Professional Conduct rule on language rights and offer practical suggestions for both solicitors and litigators to meet those requirements. It will be held at the Law Society classroom on November 24, 2016. You are Not Alone: The Lawyer’s Guide to Dealing with Anxiety – learn how to recognize and manage anxiety at this highly recommended program developed specifically for Manitoba lawyers by the Anxiety Disorders Association of Manitoba. Take advantage of our reduced rate and register to attend on November 29 or 30, 2016, from noon to 1:30 pm. Hot Issues in Spousal Support – Presenter Rollie Thompson, Q.C., professor and co-author of the Revised User’s Guide to the Spousal Support Advisory Guidelines, will discuss current spousal support issues, including compensatory or non-compensatory entitlement, exceptions, income changes, “material change”, and self-sufficiency, on October 14, 2016, from 9:30 to noon at the Dalnavert Museum and Visitors’ Centre, 61 Carlton Street. Register soon to ensure your spot.

A date has been set for the popular Annual Joint Family Law program. Confusion Corner, exploring what to do when family law, criminal law, and privacy issues collide, will take place on March 10, 2017. Mark your calendars now and watch the LSM website for further details.