| The Law Society of Manitoba Professional Education and Competence |
 |
| eLaw Family Law Update | March 2018 |
| In This Issue |
| Applying the Right Legal Test for Summary Judgment: MBCA Appellate Correction of Interim Variation Order Warranted: MBCA Unprofessional Procedural Breaches Can Attract Costs Sanctions: MBCA Parental Alienation Decision Upheld: MBCA Post-Pronouncement Conduct Relevant in Awarding Costs: MBQB Homestead Rights, Life Estates, and Partition and Sale: MBQB Other Recent Decisions Legislative Update Pension Benefits Act Reform Recommended Reading Spring CPD: LSM |
Applying the Right Legal Test for Summary Judgment: MBCA
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Much has been said
regarding delays in the court system and the attendant financial and
emotional costs of having family and civil disputes resolved.
Unfortunately, the problem of systemic delay is exacerbated by cases
like this where a summary judgment motion has been properly brought and
a judge refuses to adjudicate it on its merits. On a summary
judgment motion, a judge has the duty to take “a hard look” at the
merits of a claim. (para. 33)
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Appellate Correction of Interim Variation Order Warranted: MBCA
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Unprofessional Procedural Breaches Can Attract Costs Sanctions: MBCA
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Parental Alienation Decision Upheld: MBCA
| In G(JD) v G(SL),
2017 MBCA 117, a case described as “a devastating and destructive
war,” the Court of Appeal upheld the trial judge’s decision to grant
primary care and control of the parties’ two children to the father and
supervised access to the mother (who the court found had conducted a
destructive campaign of parental alienation). The mother’s argument
that the judge erred in refusing to admit video-recorded statements of
the children to police regarding alleged sexual abuse by the father
(under the principled exception to the hearsay rule) was dismissed, as
was her bid to introduce fresh evidence concerning the reliability of
the statements. The court also upheld the trial judge’s decision to
impute income to the mother; the finding that she was in contempt; and
the $95,000 elevated costs order; but deferred immediate setoff of
costs against spousal support for a period of six months. |
Post-Pronouncement Conduct Relevant in Awarding Costs: MBQB
| “Conduct
of parties post-pronouncement…with respect to settling/executing the
court order are relevant factors for the court to consider when
awarding costs in connection with the substantive hearing,” according
to the court in T.Q.D.D. v. L.J.D.,
2018 MBQB 14. The court also stressed that “counsel have a professional
obligation to properly draft and execute court orders and ensure their
timely entry onto the court registry” and this did not happen in this
case, where there was significant delay in settling the terms of the
order attributable to the actions of respondent’s counsel. The court
noted that before attending an appointment for settling the terms of an
order, counsel should order a transcript and provide detailed briefs
outlining the nature of the dispute (with reference to the parts of the
transcript where the terms are discussed). In addition, an appointment
to settle the terms of an order is not an opportunity to re-argue the
case, and parties should not be raising issues not adjudicated or
taking an opportunity to soften language to the extent that the
substantive nature of the order is altered. (para. 27) Although
the respondent should have been entitled to a small award of costs from
the hearing, the post-pronouncement conduct compelled the court to
re-evaluate and award $3000 costs in favour of the petitioner. |
Homestead Rights, Life Estates, and Partition and Sale: MBQB
| In Siwak v. Siwak,
2018 MBQB 9, the court addresses the complex and rarely considered
issues of whether homestead rights continue after the untimely death of
one of two separated spouses (who clearly intended their property to be
divided equally) and whether and how a partition and sale application
by the estate of the deceased should be conducted. Although the
surviving husband was successful in arguing that the homestead rights
he had at the time of his wife’s death devolved into a life estate in
the home which survived the change of title from joint tenancy to
tenancy in common, the court found that he had not met the high
threshold to resist an order for partition and sale. The court ordered
that the property be sold and referred the matter to the master for a
valuation of the life interest. |
Other Recent Decisions
| Rummerfield v Rummerfield,
2018 MBCA 3 – the court found that Rule 70.20(7) provides no authority
for an assessment officer to order costs for an abandoned motion and
allowed the wife’s appeal of the motion judge’s decision to dismiss her
motion to extend time, since the assessment itself was a nullity. Pritchard v. Pritchard, 2018 MBQB 26 – despite filing a 66-page affidavit, a self-represented applicant failed to discharge his evidentiary onus to demonstrate that an ex parte protection order against him should be set aside. The court did vary the order, however, to allow both parties to attend their children’s activities (subject to communication and distance restrictions), and to provide for third party assistance to facilitate required changes to the care and control schedule. Armstrong v Armstrong, 2018 MBQB 18 – the master considers three issues in this FPA accounting reference: whether a gift from a paternal grandparent was intended to benefit only the husband (yes); whether the husband’s parents intended to benefit only the husband when they conveyed the remainder interest in their jointly held property to him (no); and whether an auctioneer’s overall valuation of business assets constituted an “appraisal” (yes). Isaac v Isaac, 2018 MBQB 16 – the master dealt with this motion to compel answers to undertakings made by the now self-represented wife by ordering her to provide written authorizations allowing the husband’s lawyer to request the outstanding documentation. Simpson v. Unrau, 2018 MBQB 15 – the court declined to order a change in the custody of a 6-year-old girl from a “good enough” mother (who had been the primary parent since birth, but had moved several times without notice to the father and had done little to facilitate the father/daughter relationship) to a “fairly uninvolved” father (who had no concrete plan to parent and had never paid child support). The court also declined to order the mother to return to Manitoba in order to facilitate contact with the father, but did reduce the father’s Table support by $200 to account for the undue hardship of unusually high access costs. Wright v. Simonson, 2018 MBQB 3 - the court found that the parties had reached a settlement agreement of their family property issues and granted summary judgment in favour of the wife with respect to issues of equal division of family property and common-law partner support. The overriding issue in the case was the ability of counsel to bind a client to a settlement agreement, since the husband argued that he had not instructed his former counsel to accept the proposed offer and had not signed the separation agreement. J.A.P. v. M.J.P., 2018 MBQB 1 – the court described its detailed order setting out complex terms for timesharing and decision-making authority over the children as a “test” for the two warring parties who, though both good parents, were “entirely dysfunctional in their interactions with one another.” (para. 18) Both parents were found to have breached an earlier order and the court dealt with their contempt by requiring them to retake the For the Sake of the Children program, to complete an on-online anger management course, and to retain the services of a qualified parenting coach to assist them with their communication issues. As a final note, the court cautioned both counsel concerning the referencing of “evidence” in their written arguments that was not called at trial. J.J.A. v. T.W.T., 2017 MBQB 208 – this variation order reverses custody of two young boys to their father due to concerns that they might be in need of protection from their mother. The mother refused to engage in the court process; exhibited utter contempt of authority; flaunted her “extremely disturbing” disdain for the father, CFS workers, police officers and the court on social media; and disregarded the best interests of her children. The court directed the Winnipeg Police Services to attend at the mother’s home immediately to remove the children from her care. |
Legislative Update
| The Advocate for Children and Youth Act, S.M. 2017, c. 8, was proclaimed
in force effective March 15, 2018 (whole Act except s. 1, insofar as it
enacts clauses (b) to (e) of the definition "reviewable service" and s.
21). The new legislation broadens the mandate of the Advocate
beyond the child and family services system and strengthens the
Advocate’s powers and responsibilities. It will be implemented in
stages. See the news release for further details. Bill 18, The Child and Family Services Amendment Act (Taking Care of Our Children), was introduced and had first reading March 19, 2018. As discussed in the explanatory note and in the government news release, it establishes a legislative basis to allow Indigenous communities to create care plans for children that recognize and reflect their unique customs. |
Pension Benefits Act Reform
| The Manitoba government has conducted a public consultation on the recommendations for reform
made by the Pension Commission of Manitoba following its statutory
review of the province’s pension laws. Legislation to reform the
pension system and to make it consistent with the law in other
provinces is expected to follow the consultation. For details on the
proposed revisions (including proposals to address the uncertainties
around the framework for dividing pensions on relationship breakdown)
see the consultation paper. |
Recommended Reading
| Family lawyers prefer alternative methods, but many cases will always require a courtroom – in this Canadian Lawyer
article lawyers comment on why the conclusion of a recent study that
alternative dispute settlements are a better route than litigation to
resolve family law matters isn’t valid in many cases. Cryptocurrencies, Discovery and Financial Statements – the author of this Slaw post discusses why family law lawyers need to prepare for the cryptocurrency tidal wave and its impact on valuations. Paralegals in family law – this Canadian Lawyer article discusses the decision by the LSO to create a special licence for paralegals to offer limited services in family law and the reaction from the bar. Is Non-Adversarial Dispute Resolution a Better Option in High Conflict Custody Cases Where There is a Parental Personality Disorder? and Is Secrecy Still Appropriate Or Acceptable In Gamete Donation? - these papers, available on the TDS LLP website, were written by Gerald Ashcroft as part of the coursework for a Master of Laws specializing in family law. Time for archaic Divorce Act to be updated (Law Times) and Divorce Act needs to be updated to reflect new parenting realities (CBA) – these articles address the need for an overhaul of the almost 33-year-old Divorce Act, particularly as regards terminology, relocation, and child support in shared parenting situations. Focus in parenting legislation should be on the children, not the parents – the CBA’s Family Law section argues that private member’s Bill S-202, Shared Parenting Act, should not go ahead due to its focus on the rights of parents, not children. The article links to the section’s submission on the bill. An Administrative Model of Family Law Dispute Resolution - in this Slaw post John-Paul Boyd argues that the time has come to experiment with an administrative approach to family law and proposes that an administrative family services agency be established. Outcomes From the Calgary Symposium on Children’s Participation in Justice Processes – this Slaw post summarizes the results of a two-day national symposium on children’s participation in justice processes and family law. Alienating a former spouse may come with a cost in family court – this Financial Post article looks at whether parents are obliged to pay child support when a child refuses to have a relationship. Youth Voice Initiative – Systemic Human Centred Design at Work – this Slaw article discusses the work of the BC Family Justice Innovation Lab and its initiatives to support the well-being of youth whose families have experienced separation and divorce. |
Spring CPD: LSM
| The New Civil Queen’s Bench Rules: From Principles to Practice
– presenters will focus on the practical application of the new Queen’s
Bench Rules and address questions that have arisen since their
recent implementation at this two-hour lunch program on April 13, 2018.
Register to attend via teleconference. A waitlist is being maintained for in-person registration which is now full. Valuations & Accounting Issues under The Family Property Act (FPA):What every Lawyer Needs to Know – get answers to all your questions on FPA valuations from a master, a family law practitioner and a valuator at this practical program to be held from noon to 3:00 pm, May 3, 2018 at the Law Society classroom. Registration fees include lunch and materials. Hot Topics in Tax: Considerations for Your Practice Structure, Billing Practices and Income - an experienced panel consisting of tax counsel, accountants and an actuary will cover a wide range of issues at this May 10, 2018 half-day program, including: tax changes regarding work in progress and the elimination of billed-basis accounting; GST/HST and PST on fees; individual pension plans for incorporated lawyers; new rules on income splitting; the tax effects of withdrawal from partnership; and Budget 2018 changes. Register soon to secure your spot. CLIA Cyber Liability Insurance Group Policy - LSM staff will discuss how to protect yourself from cybercrime risks and review the cyber liability coverage under CLIA’s policy at this May 17, 2018 webinar. |
ISSN 1916-3916