The court took the extraordinary step of ordering costs personally against counsel in two recent cases: In Maruca v. Yarema, 2016 MBQB 200, a lawyer who failed to respond with reasonable promptness to sign a child support order was ordered to pay $500.00 costs and taxes as a sanction for stonewalling the lawyer on the other side for seven weeks about why he wasn’t signing the draft order and for insisting on a verbatim reproduction of the judge’s spoken words. The court found that the lawyer, although not “deliberately misleading,” had not met the minimum professional standard lawyers are subject to in their competing duties to be both zealous advocates for their clients and to act in good faith as officers of the court, and concluded that he must accept some personal responsibility for the unnecessary costs that resulted from this conduct. “(T)he threshold to trigger personal responsibility of a lawyer for costs is not that high,” according to the court at para. 26. “As officers of the court, lawyers have a duty to ensure that court orders are reduced to writing and submitted for signature by the judge with reasonable promptness. By necessity, this will require meaningful and timely responses to opposing counsel who draft orders.” In Dunford v. Dunford, 2016 MBQB 196, “reprehensible conduct” by the lawyer, both in and out of court, justified costs at an elevated level. The court ordered the lawyer to pay costs of $10,000 personally for failing to discharge his duties to the court and for causing costs to be incurred without reason.

Two recent Family Division cases consider the awarding of enhanced costs in contentious and complex proceedings: A father’s “reprehensible and outrageous conduct,” in entering into a consent order allowing him limited periods of care and control specifically for the purpose of violating it (by taking the child to Hawaii and refusing to return him), justified an order of costs on a full indemnity basis, according to the court in Singh v. Pierpont, 2016 MBQB 183. The court awarded costs exceeding $80,000, including tariff costs of $10,550 plus disbursements regarding The Child Custody Enforcement Act proceedings; $50,000 to address the mother’s costs resulting from the abduction; and travel costs of $16,350.15. The mother’s wage/pension loss claims and her claim for attorney fees in Hawaii were denied. In Prince v. Soenen, 2016 MBQB 173, the husband’s reprehensible conduct (over the course of the 16-year separation he mislead the court as to his income; thwarted effort’s to obtain disclosure; lied about the property division; and generated needless cost consequences for the wife) resulted in an award of partial solicitor and client costs in favour of the wife totalling $57,456.63. The court declined to order costs personally against the husband’s lawyer for failing to rectify an incorrectly drafted ISO order.

In Evans v. Evans, 2016 MBQB 168, the court dismissed a motion brought by the executrices of the estate of a farm wife who sought leave to amend their mother’s Family Property Act petition (filed prior to death and seeking an accounting and “equal” sharing of assets) to allow an application for an “unequal” division of assets pursuant to s. 14(2) of the FPA. The action came about, said the court, as a result of “a profound and fundamental disagreement” between the deceased and her husband, “as to how their “combined” estates should be left to the next generation.” The wife favoured an “equal” entitlement to the farm property amongst their 11 children, but the husband felt that a larger portion should be left to the three sons who were actively engaged in the farming operations. After reviewing the Part IV provisions and the policy behind them, the court found it was very clear that an appropriate assessment of the equities cannot be made unless both sides of the story can be heard, thus the discretion to vary is lost on the death of a spouse.

Bill 8, The Protecting Children (Information Sharing) Act, introduced in June, passed second reading October 11, 2016 and was amended by Legislative Affairs on October 26, 2016. As detailed in the explanatory note, the Bill authorizes those who provide services to at-risk and vulnerable children to collect, use and disclose limited personal information or personal health information about them and their parents if disclosure is in the child's best interests and only for the purpose of providing the child with services or benefits.

The BC Family Justice Innovation Lab, a platform for nurturing initiatives designed to improve resilience and well-being of families and their children who are experiencing transition, including separation and divorce, was formally launched on September 20, 2016. It aims to make the family justice system more accessible and effective by taking a new and active approach to family justice reform. Four initiatives are already underway, and a blog was launched on the same day as the website.

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.