| The Law Society of Manitoba Professional Education and Competence |  |
| eLaw Family Law Update | June 2017 |
| In This Issue |
| Psychological Theories
Must be Tested in the Evidence: MBCA Trial Required to Resolve Core Issues Turning on Credibility: MBCA Undue Delay in Child Protection Matters Unacceptable: MBCA Too Late to Order Meaningful Remediation: MBQB Agencies Must be Held Accountable For Their Conduct: MBQB “Fair or Not, the Law Must be Applied”: MBQB Other Family Court Decisions Legislative Update Child Rights Toolkit Recommended Reading Summer CPD Replays: LSM MBA Program |
Psychological Theories
Must be Tested in the Evidence: MBCA
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Trial Required to
Resolve Core Issues Turning on Credibility: MBCA
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Undue Delay in Child Protection Matters Unacceptable: MBCA
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Too Late to Order Meaningful Remediation: MBQB
| In Skulason
v. Crackle, 2017 MBQB 103, a case described as “a cautionary tale
of sorts for family law litigants and counsel,” the court found it was
“all too late” to attempt to remediate the father’s broken relationship
with the teenage children he had not seen in seven years due, he
argued, to the mother’s campaign of parental alienation. The mother
countered that the father had been abusive and that the children were
unwilling to have contact with him. The court found that by failing to
act on expert recommendations immediately and by fixating on conducting
assessments and attributing blame, the parties shared responsibility
for the sad situation that the long term best interests of the children
had been failed. The court made an order of joint custody, but found it
was not in the children’s best interests to grant the father’s request
for an order for periods of care and control. |
Agencies Must be Held Accountable For Their Conduct: MBQB
| In West
Region CFS v. L.A.H. et al. and M.H. et al., 2017 MBQB 82, the
court awarded costs against the Agency with respect to their
inappropriate behaviour in opposing a guardianship application (post
permanent order) from the parents who had fostered the 6-year-old child
almost since birth. The court rejected the Agency’s suggestion that it
should take judicial notice of the fact that child protection agencies
are underfunded or that the provincial government lacks the funds or
wherewithal to provide the child welfare services required of it and
that this should be a factor against ordering costs payable by an
agency. Agencies in cases such as
this must be held accountable for their conduct, said the court, and
when findings of fact are made against them, as in this case, it would
be inappropriate and a dangerous precedent for the concepts of
deference or reluctance to be applied (para.19). |
“Fair or Not, the Law Must be Applied”: MBQB
| In Gorrie
Estate v. Gorrie, 2017 MBQB 74, the court found there were no
equitable arguments to be made by a self-represented litigant seeking
to protect her substantial pension (accumulated during an almost
30-year marriage) from the claims of her late husband’s estate. The
husband had filed a petition for divorce and executed a new will prior
to his death 15 months post-separation. Among other things, the wife
argued for an unequal division of family property (even if the court
had jurisdiction to make such an order after death the pension would
still be divided, said the court); an order of lump sum spousal support
equivalent to the pension entitlement (unless secured against an
estate, support claims end on death); and an order that the parties
intended to reconcile (the court found no evidence to support this
claim). |
Other Family Court
Decisions
| Bishop v. Bishop, 2017 MBQB 97
– the court imputed income to the father (in an amount triple to what
he claimed to have earned) based on his failure to provide adequate
disclosure of his business earnings, a finding of underemployment,
lifestyle evidence, and allegations of undisclosed income. Metis Child, Family and Community Services v. B.A.F., 2017 MBQB 77 – the court declined to grant the permanent order of guardianship sought by the Agency, preferring instead to continue the current temporary placement given the significant strides made by the mother to deal with her addiction issues and the ultimate goal of reunification. In the last section of the decision the court identifies considerations for counsel providing evidence in affidavit form in child protection proceedings, with the stated goal of encouraging trial efficiencies while maintaining the quality and integrity of the process. |
Legislative Update
| Federal Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), passed third reading in the senate with an amendment and had first reading in the House of Commons on June 2, 2017. 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 legislative summary or the CBA Aboriginal Law section submission Bill S -3 – Indian Act amendments (elimination of sex-based inequities in registration). Provincial Bill 9 - The Advocate for Children and Youth Act, received royal assent June 2, 2017 and will come into force on proclamation. 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. |
Child Rights Toolkit
| The CBA launched
its new Child
Rights Toolkit on May 11, 2017. The toolkit is an educational and
practice tool meant to help lawyers and others advocate more
effectively for children. It was inspired by the need to improve
children’s access to justice in Canada. |
Recommended Reading
| Burning
Down (Or Perhaps Just Lightly Scorching) the House - in this
Slaw post John-Paul Boyd imagines a new family justice system that is
intuitive and more closely attuned to the reality of those who use it
(especially self-represented litigants). Relationship Lies – this Torkin Manes article discusses two recent Canadian cases considering when a romantic partner can be sued for deception. Debate heats up on paralegals in family law – this Law Times article explores the Law Society of Upper Canada’s efforts to move forward on the Bonkalo report recommendations concerning the participation of paralegals in family law. Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction – the author of this ABlawg post notes that the upcoming appeal of Balev v Bagott, 2016 ONCA 680, is an important opportunity for the SCC to reiterate Canada’s obligations under the Hague Convention mechanism. |
Summer CPD Replays: LSM
| The CPD
Summer Replay schedule is now posted on the LSM website. There are
several programs of interest to family law lawyers, including the 2017
Annual Joint Family Law program, Hot
Issues in Spousal Support: Revised User’s Guide to the SSAG, and
three sessions on Manitoba’s New
Child Protection Model. If you missed attending any of these
popular programs the first time around, replays are a cost effective
way to catch up on your CPD hours during the slower paced summer
months. Find a program and date that works for you, with a wide variety
of programming topics offered from July 10 to 28, 2017. Don't see a time that fits your schedule? These programs are also available for purchase on DVD or can be accessed through cpdonline and viewed at your own convenience. |
MBA Program
| Welcome
to Family Law - What they didn't teach you at law school –
presenters at this primer session, intended for articling students and
young lawyers, will address practical issues such as the different
courts in our family law system, what happens at the Tuesday motion
list, the must know QB Rules, and practice management. The program
takes place on June 14, 2017, from noon to 1:30 pm in the Law Society
classroom. |
ISSN 1916-3916