eLaw - Family Law Update | November 2017 - No. 87

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Family Law Update November  2017
In This Issue
“There Has to be a Better Way”: MBCA
Concerns About Agency the Responsibility of Statutory Overseers: MBCA
 Unjust Enrichment and Constructive Trust Not Alternatives to FPA Claim: MBCA
 Balancing Privacy Expectations and the Need to Protect Children: MBCA
Cost Awards in Child Protection Proceedings Rare: MBCA
Proper Analysis Impeded by Delay and Dissent: MBQB
 Other Child Protection Cases
Federal Child Support Table Amendments
Family Law System Reform
Legislative Update
Continuing Professional Development: LSM
Winter Replays: LSM
MBA Programs

“There Has to be a Better Way”: MBCA

The court expresses its frustration with the current family law system in the first paragraph of Dunford v Birnboim, 2017 MBCA 100, as follows:

This case highlights everything that is wrong with our family law court system: an adversarial system, where one member of the family is pitted against the other, where lawyers advocate what they perceive to be best for their respective client, not necessarily the family unit, and where the cooperation necessary to deal with the issues is weakened by the inherently combative and potentially lengthy nature of a court proceeding.

The court decried the parties’ needless court filings and delay tactics and reiterated that “the court system, with its overtaxed and limited resources, is not intended to be the preserve of the wealthy who choose not to practically and efficiently resolve their disputes.” (para. 3)

The court found no merit to either the appeal of former counsel for the wife (concerning a $10,000 cost award against him personally) or the cross appeal of the husband (who argued he should have been awarded costs on a solicitor and client basis). Both claims were dismissed.

Concerns About Agency the Responsibility of Statutory Overseers: MBCA

A trial judge who was concerned with the manner in which AOCFS dealt with children in its care did not have the statutory authority to appoint a different child welfare agency (which had neither applied for nor consented to guardianship) as a permanent guardian, according to the Court of Appeal in AOCFS v VN et al, 2017 MBCA 95. Sections 38(1) and 42 of The Child and Family Services Act  make it clear that judges can appoint only agencies that apply for guardianship or consent to being appointed, and there is no gap in the legislation permitting the court to exercise its parens patriae jurisdiction in these circumstances. Although AOCFS was successful in its appeal, the court made it clear that the trial judge’s concerns about the agency should be heard in a review by the Minister of Families and the Children’s Advocate.

Unjust Enrichment and Constructive Trust Not Alternatives to FPA Claim: MBCA

Horch v Horch, 2017 MBCA 97, a must-read decision concerning the equalization of family property, deals with issues relating to the interplay between the law of unjust enrichment, the equitable remedy of constructive trust and The Family Property Act. At issue in both appeals was the wife’s entitlement to the post-separation appreciation and monthly income from a jointly purchased share investment. Each party questioned the judge’s findings that the investment  was a joint family venture resulting in an unjust enrichment to the sole owner husband and that the wife was entitled to a statutory remedy (s.14(2) of the FPA) in the form of an unequal division of the value. The husband questioned whether an unequal division could occur in relation to only one asset and argued that the judge erred in making a monetary award based on the law of unjust enrichment and restitution. The wife argued that she should have received the equitable remedy of a constructive trust in the shares to address the post-separation appreciation. After a lengthy review of the interplay between statutory and equitable law (starting at para. 51), the court dismissed both appeals, upholding the judge’s decision to order an unequal division (due to a compelling inequity in valuing the shares as of the date of separation); his finding that the husband was unjustly enriched by retaining all of the monthly income from the shares after a certain date; and his choice not to apply the equitable remedy of constructive trust to address the post-separation appreciation. The court stressed that unjust enrichment claims are to be used only in those rare circumstances where relief under the FPA is either not available or not adequate, and that it is an error of law to impose a constructive trust without a determination that monetary compensation (the FPA remedy) is inadequate. In addition, while considering the unaddressed issue of resulting trust, the claim for retroactive child support, and the order of costs, the court underscored the importance of having a clear litigation strategy and properly drafted pleadings in complex cases.

Balancing Privacy Expectations and the Need to Protect Children: MBCA

In ANCR v Shaw Communications Inc, 2017 MBCA 92, the court considers whether a child protection agency can obtain customer information from an internet service provider in order to conduct a child protection investigation of a suspected sex offender from the UK, who it was alleged had Skype contact with a child in Winnipeg some years earlier. ANCR appealed the dismissal of their application to compel Shaw to produce the customer’s subscriber name and contact information. The Court of Appeal found that, while ANCR had jurisdiction to request the relief sought by way of a finding of contempt or an injunction, there was no such application before either court, and the relief could not be granted in the absence of relevant evidence and submissions. The court also declined to exercise its jurisdiction to grant a declaration given the inadequate evidence.

Cost Awards in Child Protection Proceedings Rare: MBCA

In Child and Family Services of Western Manitoba v CLC, 2017 MBCA 89, the Court of Appeal declined to order costs against an agency who waited until the hearing date to discontinue its appeal of the supervision order. According to the court, “(c)ost awards in child protection proceedings should be awarded only in exceptional circumstances of improper or overbearing action on the part of the agency, regardless of the ultimate result of the litigation. The goal of the agency is the protection of the child and they should not be deflected from their duty by fear of a costs award.” (para. 4) In this case, while the agency could have confirmed matters earlier, its conduct in taking the time to determine whether the situation with the mother had stabilized was not so exceptional as to warrant an award of costs.

Proper Analysis Impeded by Delay and Dissent: MBQB

Stewart-Schuff v. Stewart, 2017 MBQB 172, a claim for retroactive child support and s.7 expenses, starts with an aside by the judge criticizing the parties for wasting the court’s time and resources by focusing on one another’s alleged bad conduct and by failing to address their issues in a timely manner. These issues, combined with inadequate evidence and the fact that neither party followed the complicated structure for the sharing of special expenses set out in the final order from 2006, made proper analysis of the claim for retroactive support difficult. The judge declined the role of bookkeeper and offered to refer the issue of s.7 expenses to the master for an accounting. The court varied the existing order to increase the father’s base salary, but declined to change the agreed upon formula as requested by the mother. The court also dealt with the issue of whether the eldest child was still entitled to support given the fact that she was just starting a new program after five years of post-secondary education. The father was ordered to pay retroactive and ongoing support, but the court stressed it was dependent on documented attendance at university.

 Other Child Protection Cases

Metis C.F.C.S. v. B.A.M.C. and A.M., 2017 MBQB 171 – in another decision involving a late change in position by a child protection agency (from permanent to temporary order) the court was critical of both the agency’s  timing and the evidence of need of protection. In the court’s view this case was “purely about an addiction, a rehabilitation, the likelihood of relapse, and the potential negative effect that it would have on this child versus the great benefit that he receives from being back home with a sober mom.” The court ordered that the child be returned to his mother immediately, subject to a 3-month supervisory order and on certain conditions. 

CFS v. T.Z. and E.K.G., 2017 MBQB 145 – an agency seeking a permanent order of guardianship of a five-year-old who had been in care for three years was ordered to transition the child to the full care of his father. In the court’s view, a clash of wills led the agency to be overly critical of the father’s parenting skills, and the evidence was insufficient “to keep a child from the care of a parent.” In addition, the court admonished the agency for refusing to let the parents speak Amharic with the child during their visits, calling this decision to deprive the child of a connection to his culture “an abysmal failure” and a contravention of Principle 8 of the Act.

Federal Child Support Table Amendments

The Department of Justice recently announced that the Federal Child Support Tables (Schedule I of the Federal Child Support Guidelines) have been amended to reflect more recent tax rules. The amendments were registered on October 23, 2017 and published in the Canada Gazette, Part II on November 1, 2017. The updated child support amounts will come into force November 22, 2017. Until then, the 2011 tables apply. The 2017 Simplified Tables are available in pdf format. 

Family Law System Reform

The Manitoba government announced it has established an advisory committee to devise a detailed framework for a new administrative model for family law which will be used to inform proposed legislation that would be introduced next spring. For further information see the backgrounder link in the announcement.

Legislative Update

Federal

Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) – as noted in this CBC article, to end the standoff between the House of Commons and the Senate on this bill the government has proposed amendments (still under consideration) to restore full legal status to First Nations women. If passed the bill will amend 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. 

Continuing Professional Development: LSM

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 pre-recorded address and experienced judges and practitioners will discuss the new child protection model, how to conduct trials, and alternative approaches. For further information see the program agenda and registration form.

Hot Topics in Wills and Estates  - a third and final date has been added to address demand for this program. Presenters Eleanor Wiebe, Q.C. and Caroline Kiva will discuss a wide range of topics, including the recent Rule 74 amendments, estate planning issues with US vacation property, powers of attorney, and recent case law. The program will be held December 7, 2017, from 9:00 to noon in the Law Society classroom. Registrants will receive a copy of the 2d edition of Drafting Wills in Canada: A Lawyer’s Practical Guide.

The Tough Stuff: Pensions, Family Trusts and Managing High Conflict Cases – the 2018 Annual Joint Family Law Program will be held March 9, 2018 at Fort Garry Place. The program will deal with an array of requested topics presented from a variety of perspectives. Register before February 9, 2018 to take advantage of the early bird rate.

Winter Replays: LSM

For those who missed the earlier live presentations (or those who still need cpd hours), the Law Society has posted its list of winter replay offerings. Programs which may be of interest to family lawyers include: Grace Under Pressure: Taking the “I” out of Family Law (December 11, 2017); New Civil Queen’s Bench Rules: A Focus on Case Management, Proportionality and Expediency (December 12, 2017); For the Sake of the Children...For Lawyers (January 8, 2018); Anatomy of a Child Protection Matter (January 12, 2018); Land Titles eRegistration & Electronic Funds Transfer and Land Titles eForms 101 (both November 22, 2017); as well as several practice management or general interest sessions.

MBA Programs

Variation Orders in Family Proceedings – this Family Law section program on variation orders will be held from noon to 1:30 pm on November 15, 2017, in the 2nd floor conference room, 444 St. Mary Avenue.  

Delay in Child Protection Proceedings - this session will address the Constitutional requirement for a fair and prompt post-apprehension hearing, including QB reforms to address timely adjudication of child protection matters. It will be held in the 2nd floor conference room, 444 St. Mary Avenue, from noon to 1:30 pm on November 28, 2017.

Acting for Youth Clients in Child Protection and Family Division Matters - Considerations and Practical Tips - panelists at this December 13, 2017 program will discuss their experiences acting for children in child protection and Family Division matters and address practical questions such as how to present difficult information to youth clients and how best to structure meetings and interviews.  The program will take place from noon to 1:30 pm, in the 2nd floor conference room, 444 St. Mary Avenue.

 

ISSN 1916-3916

 

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