In Elefante v Elefante, 2017 MBCA 17, the court dismissed the husband’s bid to reduce the amount he was ordered to pay under a support variation order by almost $19,000, finding no palpable errors in the motion judge’s mathematical calculations on the variation.  In a final comment the court noted that “the costs of pursuing the dispute were “completely disproportionate to the amount at issue” and urged counsel to “carefully consider costs before pursuing needless litigation.” (para. 5)

In Sonley v. Koolridge Holsteins Inc. et al., 2017 MBQB 20, the court considers whether it would be just and equitable to grant an oppression remedy in the context of a marriage breakdown and accounting involving a family owned corporation and the sale of a significant corporate asset by the controlling shareholder (the husband) to the detriment of a minority shareholder (the wife). The husband argued that selling the dairy farm corporation’s milk quota was the only way he could pay the $250,000 equalization advance to the wife, and that the wife ought to have known this. The court disagreed, finding that his unilateral action in selling a significant income-generating asset caused a devaluation in the corporate shares inconsistent with the reasonable expectations of its shareholders, including the wife. The husband was ordered to purchase the wife’s shares at fair value to be determined either by agreement or at a further hearing (at which loss and damages for the oppressive conduct would also be determined).

The court was compelled to intervene to address the mother’s escalating attempts to alienate the children from their father in Wenzel v Wenzel, 2017 MBQB 14, a custody dispute involving a number of complicated issues such as when a parent’s love crosses the boundary into obsession. The court found that the shared custody regime was no longer in the children’s best interest given the mother’s harmful behaviour and the parties’ inability to co-parent. The father, despite his past inappropriate behaviour, was granted sole custody of the children with final decision-making authority in all aspects of their lives.

Variations (like appeals) of interim orders use up limited family resources and delay final resolution, and they should be granted sparingly, according to the court in Wissman v. Wissman, 2017 MBQB 13. The father was unsuccessful in “turning back the clock” to have primary care reinstated to him pending trial. He argued that because the interim order allowing for shared custody over the summer was reviewable there was no onus on him to demonstrate a material change of circumstances for it to be varied. The court disagreed and was not persuaded that the evidence was sufficient to support a variation of the interim order from shared care. Counsel were ordered to schedule trial dates forthwith.

“A party’s mental health does not create special rules or privileges regarding costs,” according to the court in Ulloa v. Ulloa, 2017 MBQB 9. The mother, who was diagnosed with a delusional disorder, argued that costs should not be used to punish a party with a mental health illness for acting in the best interests of the children (she had made unproven allegations of child sexual abuse against the father, who argued that she should be held accountable for the corresponding costs notwithstanding her mental health issues). The court found at para. 15 that the fact that a party has a mental illness diagnosis does not shield that party from costs, and that the fundamental principles in assessing costs continue to govern, including evaluating the cost consequences of conduct caused by a mental health issue. In this case, where neither party was successful in obtaining a primary care order (shared custody was ordered), but the mother had some success on her spousal support and retroactive child support claims, she was awarded approximately one-third of the tariff costs claimed.

In the context of granting a permanent order in favour of the agency in Anishinaabe C.F.S. v. D.A. et al, 2017 MBQB 7, the court considered whether it had the statutory authority under The Child and Family Services Act to impose certain conditions on the agency as part of a permanent order (such as compelling it to report back to the court on a regular basis to provide a status report on the child, even past her 18th birthday). The court found that it did not have the statutory authority to impose conditions on an agency save for those conditions specifically contemplated in the Act, which is itself a complete legislative and regulatory scheme. In addition, while a court could exercise its parens patriae jurisdiction to protect a child into adulthood in the event of a legislative gap, in this case there was no gap, since other applicable legislation (including The Vulnerable Persons Act) is in place to ensure that the rights and interests of children are protected during the transition to adulthood.

As detailed in two Court of Queen’s Bench practice directions from February 10, 2017 (Child Protection Proceedings and Rota and Scheduling Changes), a new child protection model that prioritizes child protection proceedings and addresses unacceptable delay will be implemented effective March 6, 2017. Materials from a recent cpd program provide more detail on the new model and are available for purchase from the Education and Competence Department of the Law Society.

Electronic Filing for Judicial Reviews – judicial review applications to the Court of Queen’s Bench must be filed electronically effective January 23, 2017, according to this practice direction from the court. Paper or manual applications are no longer accepted. The process and requirements for e-filing are explained in the E-Filing Technical Directions Bulletin.

The Family Law Section of the Legal Services Branch, Manitoba Justice has issued a notice concerning the procedure and new address/fax number for serving support variation documents on the Director of Assistance pursuant to QB Rule 70.06(5)(b).

Collaborative Practice Manitoba is offering its Introduction to Basic Collaborative Practice and Conflict Resolution Training for lawyers who wish to practice collaborative law on April 6, 7, 20, 21 and May 4 and 5, 2017.  For further details contact Collaborative Practice Manitoba at info@collaborativepracticemanitoba.ca.