| The Law Society of Manitoba Professional Education and Competence |
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| eLaw Family Law Update | April 2017 |
| In This Issue |
| Meaningful Analysis Missing: MBCA It “Never Should Have Come to This”: MBCA Failure to Appeal Severance Order Made Granting of Divorce Inevitable: MBCA Court Denounces Needless Litigation: MBCA New Practices and Procedures Required in Child Protection Proceedings: MBCA Applying the SSAG Formulas in a Crossover Case: MBQB Discretionary Extension Granted in “Unique” Case: MBQB Legislative Update Recommended Reading Continuing Professional Development: LSM 2018 National Family Law Program Call for Papers: FLSC |
Meaningful Analysis Missing: MBCA
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It “Never Should Have Come to This”: MBCA
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Failure to Appeal Severance Order Made Granting of Divorce Virtually Inevitable: MBCA
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Court Denounces Needless Litigation: MBCA
| Proportionality was also a concern in Elefante v Elefante, 2017 MBCA 17, an appeal about mathematical calculations in an order varying child and spousal support. The parties had made multiple appearances in all levels of court resulting, ultimately, in the Court of Appeal dismissing both motions respecting the judge’s calculations as to the amount of child support owed. 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.” |
New Practices and Procedures Required in Child Protection Proceedings: MBCA
| The
Court of Appeal issued two decisions dealing with delay in child
protection proceedings in the last month, both involving what the court
described as “issues of public importance”: In Manitoba (Director of Child and Family Services) v HH and CG, 2017 MBCA 33, the court outlines the appropriate remedy for delay in conducting a hearing to determine whether a warrantless apprehension of a child at birth was justified. The court agreed with the lower court judge that the parents’ right to security of the person had been infringed by the 13 month delay of the child protection proceedings, contrary to s.7 of the Charter, but found that she erred in her choice of remedy under s. 24(1) of the Charter by ordering an interim hearing to determine whether the child continued to be in need of protection pending the trial. In the Court of Appeal’s view, an expedited hearing on the merits was the appropriate and just remedy under the circumstances. The court outlines its observations on the hearing process contemplated by Part III of the Act at para. 88. In The Director of Child and Family Services v JG and KB, 2017 MBCA 27, the court provides guidance as to the use of discretion in adjournments in child protection proceedings. In this case, the children had been in care for 30 months without a decision, due to the granting of adjournments requested by the father, who was in the middle of a criminal trial concerning offences related to the death of the mother. The court found that the trial judge erred in finding that delay of the child protection hearing was necessary to ensure procedural fairness and went on to clarify the law as to how concurrent child protection and criminal proceedings should be conducted. In such cases, the relevant inquiry for a
court, in exercising its discretion as to whether there are exceptional
or extraordinary circumstances to stay or adjourn a civil proceeding,
relates to whether there is specific prejudice to the fair-trial rights
of the applicant on the criminal charge that cannot adequately be
addressed by the rules governing the civil proceeding or a remedy
available to an accused in the criminal process. The threshold to
justify the granting of a stay or adjournment of a civil proceeding in
favour of a criminal proceeding is a “high one” (para. 18).
This case was not exceptional merely because the related facts gave rise to parallel proceedings, said the court, and the “highly unreasonable” delay was not otherwise in the best interests of the children. |
Applying the SSAG Formulas in a Crossover Case: MBQB
| In Dupuis v. Dupuis, 2017 MBQB 57, the court recalculates the child and spousal support provisions of a final order of divorce granted in 2014, due to changes in both custody arrangements (one child was no longer a dependent and both children began residing with the payor father) and the parties’ respective incomes. The father argued that his “post-separation” increases to income should not be considered in determining whether there had been a material change in circumstances, but the court disagreed, finding that the wife clearly had spousal support entitlement on both a compensatory and a non-compensatory basis given her role in enabling the husband to pursue his successful career and her other contributions to the family unit. After taking into account the underlying factors driving the application of the SSAG formulas in crossover cases and acknowledging the overpayment of child support by the husband to the benefit of the wife, the court ordered that the husband continue to pay the same spousal support for a further four years. A termination date was set as a “wake-up call” to the wife to plan for her future and “in the interests of proportionality and the need for finality in family proceedings.” |
Discretionary Extension Granted in “Unique” Case: MBQB
| In Almendral v. Tan, 2017 MBQB 54, the court granted an extension of time under s. 19.1(4) of The Family Property Act to permit the “husband” in an alleged common-law relationship of 16 years to proceed with his request for an accounting and equalization of assets (in particular, division of the wife’s pension). It was beyond the husband’s control to file on time, according to the court, given the wife’s actions in obtaining an enjoining order preventing him from filing a petition until a determination as to whether the parties were in a common-law relationship. In addition, conflicting testimony and lack of independent legal advice with respect to the execution of an alleged separation agreement and pension waiver was a matter for trial, said the court. Reconciling the conflicting statutory limitations in the FPA (where the court can extend the three year limitation period) and The Pension Benefits Act (which requires strict compliance) was a collateral issue in the case. On this issue the court found no conflict between the different limitation periods given the tenor and spirit behind the broader FPA provisions. |
Legislative Update
| Federal Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), passed second reading and is before the Standing Senate Committee on Aboriginal Peoples. It amends the Indian Act to address historic inequities in how men and women acquire and transmit Indian status by providing new entitlements to registration in the Indian Register in response to the decision in Descheneaux c. Canada (Procureur général). For further information see the government news release or the CBA Aboriginal Law section submission Bill S -3 – Indian Act amendments (elimination of sex-based inequities in registration). Bill S-202, An Act to amend the Divorce Act (shared parenting plans), a private member’s bill proposing amendments to the Divorce Act to provide for the use of parenting plans, passed second reading in the Senate and is now before committee. Provincial Bill 9,The Advocate for Children and Youth Act, was introduced March 2 and received second reading on March 21, 2017. As detailed in the explanatory note, the bill broadens the mandate of the Children's Advocate to act on behalf of previously ineligible children and young adults, to review and investigate deaths and serious injuries, and to expand public reporting. |
Recommended Reading
The Family Legal Services Review
report (otherwise known as the Bonkalo Report) has generated a lot of
discussion in legal circles lately, mostly concerning its
recommendations as to the scope of family law paralegal work in
Ontario. The following articles give a taste of the commentary:
Top 5 Most Ridiculous Divorce Cases – this list from The Court blog identifies what are arguably Canada’s most absurd family law disputes from the last year. Unbundling for the underserved family law client – this article discusses how limited retainers and unbundled legal services facilitate access to justice and are an untapped market for family lawyers. |
Continuing Professional Development: LSM
| Dealing with Pre-Acquired, Inherited and Gifted Assets in Family Property Accounting
– this half-day program in Brandon on May 17, 2017, will look at the
intricacies of gifts, inheritances and pre-acquired assets in the Family Property Act
accounting and reference process, including a discussion of the
legislation, case law, and court documentation. Students are eligible
for a 50% reduction in the registration fee. Women Thriving in the Law with a Grit and Growth Mindset (May 15, 2017, half-day) and Getting and Growing Grit: The Secret to Success (May 16, 2017, lunch session) – these programs, presented jointly with the MBA’s Women Lawyers’ Forum, will help attendees to develop and apply a “grit and growth” mindset to the challenges of legal practice. New Civil Queen’s Bench Rules: A Focus on Case Management, Proportionality and Expediency - join Chief Justice Glenn Joyal, Associate Chief Justice Shane Perlmutter, and Michael Weinstein for an overview of extensive changes being proposed to the QB Rules and the resulting practice changes. This lunch session takes place on May 24, 2017, from noon to 1:30 pm in the Law Society classroom. Webinar: Avoiding Cyber Dangers – the Law Society is replaying this very practical webinar on June 13, 2017, with a live question period at the end with Law Society staff. Legal technology and risk management guru Dan Pinnington will teach you how to protect yourself and your firm from hacked emails, malware, phishing scams, and other cybercrime vulnerabilities. Group registrants are eligible for discounts. Most Often Asked Questions of a Supreme Court Justice - the Honourable Justices Moldaver and Côté will share answers to the questions they are most frequently asked and attendees will be able to ask their own questions at this jointly sponsored lunch program at the Provencher Room, Hotel Fort Garry. The program takes place from noon to 1:30 pm on June 5, 2017. Final registration numbers must be in by May 25. |
2018 National Family Law Program Call for Papers: FLSC
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The Federation of Law Societies’ National Family Law Program has issued a call for papers
for next year’s conference, to be held July 8 to 13, 2018 in Vancouver,
BC. Written submissions of proposals for presentations or papers must
be received no later than May 30, 2017. |
ISSN 1916-3916