| The Law Society of Manitoba Professional Education and Competence |  |
| eLaw Family Law Update | September 2017 |
| In This Issue |
| Appeal in Parental Abduction Case to Proceed Without Delay: MBCA Laying the Foundation to Argue Restrictive Gatekeeping: MBCA Woeful Failure to Establish Need for Variation: MBQB Bringing an End to “Ugly and Bitter” Financial Dispute: MBQB This Experiment Has Failed”: MBQB “Intensely Hostile Family Litigation Marathon” Continues: MBQB Assessors' Reports on Care and Control: MBQB Legislative Update Canadian Research Institute for Law and the Family Reports Recommended Reading 2017 Isaac Pitblado Lectures Fall CPD: LSM |
Appeal in Parental Abduction Case to Proceed Without Delay: MBCA
|
|
Laying the Foundation to Argue Restrictive Gatekeeping: MBCA
|
|
Woeful Failure to Establish Need for Variation: MBQB
|
|
Bringing an End to “Ugly and Bitter” Financial Dispute: MBQB
| The court’s focus in the 248-paragraph Leslie v. Leslie,
2017 MBQB 130 decision is to bring an end to the litigants’ 16 year
financial battle, “an enormous (task) given the passage of time between
the date of separation and the date of the trial.” According to the
court at para. 21, delay in the resolution of the proceedings was
caused by the actions of both parties “who liberally resorted to
unnecessary litigation tactics that served only to delay and aggravate
any potential resolution of their matters.” The court began by describing the (currently self-represented) parties as follows: Proportionality does not
register in their vocabulary. Issues that should have been small
have become big, due to the passage of time. No stone has been
left unturned in their quest for victory over the other. No issue
has been allowed to pass without the need to seek financial sanction or
punishment through the liberal use of court resources.
Not surprisingly, no clear winner emerged in the “agonizing dispute.” |
"This Experiment Has Failed”: MBQB
| In Stevens v. Haley,
2017 MBQB 124, the court found it was not in the best interests of a
19-month-old child to continue a care and control schedule set out in a
year-old interim order which permitted the mother to relocate to
Saskatchewan to pursue a pharmacy degree at the expense of limiting the
father’s contact with the child. The parents were never in a
relationship, but the father had actively co-parented the child since
birth and he argued that his bond with her would diminish if the mother
were allowed to permanently relocate. The court found that the mother’s
proposal was not in the child’s best interests for a number of reasons:
the mother’s inability to articulate or facilitate a future care plan
that involved the father; the mother's abdication of a portion of her
custodial role to her very-involved parents; the need to maximize
contact with both parents and other involved family members given the child’s
young age; and the fact that the child was beginning to show signs of
stress as she endured the frequent travel required under the interim
order. The court made an order of shared custody, with the child to
reside in Manitoba with the father, who would have final
decision-making authority. |
“Intensely Hostile Family Litigation Marathon” Continues: MBQB
| In Delichte v. Rogers,
2017 MBQB 117, the court imposed a 60-day suspended jail sentence on a
mother for her “reprehensible, scandalous and outrageous” contemptuous
conduct in repeatedly breaching a final order allowing her to relocate
to California with the parties’ children but requiring her to consult
with the father on all major decisions relating to the children. The
father did not request that the mother be imprisoned (despite the fact
that a similar sentence had been imposed but suspended in an earlier
contempt proceeding involving the parties), but the court noted that a
period of imprisonment was required to take into account the public and
the private aspects of civil contempt and the fact that compliance with
any court order is fundamental to the rule of law. The court also
awarded the father net costs on a solicitor-client basis in the amount
of $13,000. |
Assessors' Reports on Care and Control: MBQB
| In
two recent decisions involving requests to change care and control
arrangements the court treated the assessors’ recommendations
differently: In Culleton v. Giller, 2017 MBQB 135, the court made significant changes to the care and control schedule of a 12-year-old child to grant the father primary care and control as recommended by the assessor. Concerns about the child’s school attendance; conflict between the parties, and the stability of the environment in the mother’s care were all issues informing the court’s decision. In James v. Welechenko, 2017 MBQB 127, the court declined to follow an assessor’s recommendation to change the care and control arrangements for the parties’ two daughters, finding that the weight of the evidence the court received at trial displaced the assessor’s endorsement for radical change and any alteration in the current care arrangements would not be in the best interests of the children. The court did impose additional terms and conditions on the parents, however, including that neither party should utilize any form of physical discipline with the children, or allow disparaging comments to be made about the other parent in front of the children. |
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 House of Commons on June 21, 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 The Protecting Children (Information Sharing) Act, S.M. 2016, c. 17, has been proclaimed effective September 15, 2017. As detailed in the explanatory note to the bill and this government news release, it 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. 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. |
Canadian Research Institute for Law and the Family Reports
| The Canadian Research Institute for Law and the Family released two reports over the summer: a report on parenting assessments in July and an analysis of (Alberta) data from the Federal Justice Divorce File Review Study
in June. The former reviews the practice and procedures in three
Canadian jurisdictions and examines the extent to which parenting
assessments are used and relied upon in courtroom decision-making and
whether there is a relationship between the cost of private assessments
and the frequency of their use. This Slaw post summarizes the findings of the first report. For an opinion piece on the June report see Problems in Family Law Are More Than Just Gender. |
Recommended Reading
Final Report of Mediate BC’s BC Family Justice Unbundled Legal Services Project Now Available – this Slaw post announces the publication of the BC Family Justice Unbundled Legal Services Project final report and independent evaluation. Collaborative practice comes into its own – this Canadian Lawyer article discusses the proposed launch of Canada’s first national inter-disciplinary collaborative law organization. A two-tier system to serve the people – the author of this Law Times article proposes a two-tiered family law system to address access to justice issues. The traumatic effect of protection orders in family law – the author of this Canadian Lawyer article discusses why ex-parte protection orders are problematic in a time of limited judicial resources and proposes an alternative system. |
2017 Isaac Pitblado Lectures
| The 2017 Isaac Pitblado Lectures, #140Down – Now What? The Future of Lawyering is Here,
will be held November 3, 2017 (the one day format is new this year) at
the Grand Ballroom, Fort Garry Place. The lectures will explore the
future of the legal profession, examining such topics as the future of
adjudication, client centred service, and the role of technology in
practice. To learn more about the importance of attending the upcoming
Pitblado Lectures hear from David Swayze, one of this year's organizing committee's co-chairs. The early bird discount ends September 29, 2017, so register soon to reserve your spot. Registrants will also receive a copy of Keynote Speaker - Jordan Furlong's 2017 book, Law is a Buyer's Market: Building a Client First Law Firm. Follow us on twitter @pitbladolecture for the most up-to-date information. |
Fall CPD: LSM
| For the Sake of the Children….For Lawyers – if you’ve ever had difficulty answering client questions concerning issues addressed in For the Sake of the Children,
this summary of the program contents by Family Conciliation Services
co-ordinator Kathy Balagus will help. The program will be held at the
Law Society classroom, between 12 noon and 1:30 pm on October 31,
2017. The 3rd Annual Child Protection CPD – this popular day long program will be held November 24, 2017, at the Fort Garry Hotel. Senator Murray Sinclair will open the program with a special address and experienced judges and practitioners will discuss the new child protection model, how to conduct trials, and alternative approaches. Register before October 20, 2017 to take advantage of the early bird discount. Hot Topics in Wills and Estates - Presenters Eleanor Wiebe, Q.C. and Caroline Kiva will address a wide range of topics at this upcoming half-day program, including the recent Rule 74 amendments, estate planning issues with US vacation property, powers of attorney, and recent case law. The first scheduled date for this program in Winnipeg on September 26 has sold out. This program is available in Brandon on October 4 (1:00 to 4:00 pm), plus a second Winnipeg date has now been added on December 7 (9:00 to noon). Registrants will receive a copy of the 2d edition of Drafting Wills in Canada: A Lawyer’s Practical Guide. Land Titles eRegistration & Electronic Funds Transfer - the new Land Titles eRegistration system will be open for use on December 17, 2017 and mandatory for all lawyers to use as of April 3, 2018. This education session will provide training on how to register documents electronically; the new Law Society Rules on electronic funds transfers; and what firms need to do to be ready to use the new system. All three half-day sessions scheduled for Winnipeg (Sept 27, Oct 2 and 5, 2017) have sold out, with a wait list now being maintained. Additionally, the Law Society does plan to offer a DVD replay of this program later this year. |
ISSN 1916-3916