eLaw

eLaw - Family Law Update | September 2018 - No. 90

The Law Society of Manitoba
Professional Education and Competence

eLaw Family Law Update

September 2018

In This Issue

SCC Adopts Multi‑factored Hybrid Approach to Hague Convention Analysis
Limiting “Death by a Thousand Cuts of Litigation”: MBCA
Timely Decisions Essential in Child Welfare Cases: MBCA
Judges Have a Duty to Take a Hard Look
at the Merits of Summary Judgment Claims: MBCA
Taking a Cautious Approach
to Expanding the Categories of Undue Hardship: MBQB
“There Has to be a Better Way”: MBQB
Other Decisions
Legislative Update
Court Notices
Review of Manitoba’s Child Welfare Legislation - Final Report
Report on Modernizing the Family Law System
New Model for Scheduling and Case Flow Management
Recommended Reading
2018 Isaac Pitblado Lectures
Fall CPD: LSM
CPD Program: MBA

SCC Adopts Multi‑factored Hybrid Approach to Hague Convention Analysis

A 6-3 majority of the Supreme Court adopted a new way (the hybrid approach) to determine habitual residence under Article 3 of the Hague Convention and a non-technical approach to considering the child’s objection under Article 13(2) in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, a moot appeal from an Ontario Court of Appeal ruling that two children, who had moved to Canada with their mother on a time-limited consent by the father, were habitually resident in and must be returned to Germany. The court outlined three possible approaches to determining a child’s habitual residence (the parental intention approach, common in Canadian jurisprudence; the child-centred approach; and the hybrid approach) and concluded at para. 48 that:

(t)he hybrid approach should be adopted in Canada for the following reasons: (1) the principle of harmonization supports the hybrid approach; and (2) the hybrid approach best conforms to the text, structure, and purpose of the Hague Convention.

These articles comment on the decision and its implications:

"Habitual Residence": SCC Revamps Hague Convention Analysis With Hybrid Approach – Gowling
The new approach to Hague Convention Cases – Law Times

Limiting “Death by a Thousand Cuts of Litigation”: MBCA

In JDG v SLG, 2018 MBCA 51, a high conflict family matter, the Court of Appeal dismissed the wife’s appeal of a variation order reducing the spousal support payable by the husband from $1,600 per month to $150 per month as a result of her incarceration in June 2016 for child abduction. A misapprehension by the judge as to the length of paid support and her treatment of compensatory support were not significant in the overall balancing of factors in an award of spousal support, according to the court, and were not material to the decision.

Timely Decisions Essential in Child Welfare Cases: MBCA

A trial judge’s decision to further delay a child protection hearing by ordering a parental capacity assessment created an unacceptable delay and was contrary to the principles of fundamental justice according to the Court of Appeal in The Director of Child and Family Services v GMH, 2018 MBCA 35. The case concerned an application for a six-month temporary order of a very young child whose custody had been up in the air for over 18 months (para. 46). The court set aside the trial decision and ordered an expedited trial, commenting at para. 20 that:

This is not a question of expediency for expediency’s sake. Delay in child protection proceedings has significant implications to the child, the child’s parents, the parent-child relationship and society generally. While we accept that the issues at stake are too serious to promote expediency for its own sake, it is clearly unacceptable to countenance delay in circumstances where timely decisions are essential.

In supplementary reasons, Justice Steel lays out the factors that must be balanced in order to determine whether, in any particular case, the length of time between apprehension and hearing violates the parents’ s. 7 Charter rights.

Judges Have a Duty to Take a Hard Look at the Merits of Summary Judgment Claims: MBCA

The problem of systemic delay is exacerbated where a judge refuses to adjudicate a properly brought summary judgment motion on its merits, according to the Court of Appeal in Knee v Knee, 2018 MBCA 20 (para. 33). After finding that the motion judge had erred in law by not engaging in the required two-step summary judgment analysis, the court went on to take the unusual step of deciding the motion on its merits, including final custody determinations.

Taking a Cautious Approach to Expanding the Categories of Undue Hardship: MBQB

The court sheds light on the rare claim of undue hardship by a custodial parent in Eckert v. Eckert, 2018 MBQB 117, a child support motion in which the mother sought an increase beyond the s.3 guideline amount to account for a reduction in her income directly related to the medical needs of the parties’ daughter. The court found that, while she suffered some hardship in being the primary custodial parent responsible for the child’s extreme health needs in the past, her privation was of short duration and did not ever rise to the level of being “undue” or “exceptional” as required for a finding under s. 10 of the Guidelines. The court noted, however, that had the privation continued until the time of trial, “the mother’s case in proving undue hardship would have been considered with much more favour.” (para. 62)

“There Has to be a Better Way”: MBQB

In yet another lengthy decision in Delichte v. Rogers, 2018 MBQB 75, a long-running and high conflict family dispute, the court decries the propensity of the two now self-represented litigants to use “visceral subjective analysis rather than relevant persuasive argument” and notes that self-representation creates challenges for both the parties and the court system. On the issue of how far the court should go to assist such parties, the court comments at paras. 8 and 9:

While there may be a higher obligation for the court to ensure a reasonable opportunity to self-represented litigants to put necessary evidence before the court, there has to be a limit on this obligation, too….Opportunities given to improve or supply evidence that is wanting do not always result in its provision and it will often instead result in a deterioration in the relevance or importance of supplementary documentation that is actually provided. Meanwhile, time passes and the volume of material increases in a way disproportionate to its actual utility. To a large extent, that is what has happened here.

Of particular concern in this case were the “voluminous and intersecting affidavits and briefs” which, according to the court, created an evidentiary free-for-all and made undertaking piecemeal expungements “a sheer impossibility.” Despite the poor evidence, the judge dealt with issues of custody, spousal and child support, and other miscellaneous issues. He concluded by noting that, after carrying components of this case for 11½ years he was exhausted and would not hear “ANY future motions.” (para. 351)

Other Decisions

Dolynchuk v D’Saint, 2018 MBCA 56 – unsuccessful appeal by a woman who was ordered to pay $50,000 to her ex-common-law spouse for unjust enrichment. The appeal court found that the trial judge did not err in finding that the repairs he had done to the house they lived in, which she inherited from her father, increased its value beyond normal market appreciation. Allegations of bias were also rejected and the self-represented appellant was ordered to pay costs on a Tariff B basis.

Faurschou v Faurschou, 2018 MBCA 44 - the husband was unsuccessful in challenging the trial judge’s conclusion that the appreciation in value of shares he held in a family farm corporation was shareable, given his failure to prove that the shares were a gift. The husband’s allegation that the trial judge had erred was without merit, according to the court.

Rempel v. Rempel, 2018 MBQB 129 - unusual facts (including a long term marriage with compensatory and non-compensatory claims, the wife’s mental health issues, delay and a claim for retroactive spousal support) complicated the court’s spousal support determination in this case.

Sekhon v. Sekhon, 2018 MBQB 103 – a husband who failed in his fiduciary duty to secure and preserve the wife’s share of his taxi cab licence was denied his request for an unequal division of the commercial asset and ordered to sell the licence to satisfy the family property equalization payment and court costs.

McMillan v. McMillan, 2018 MBQB 96 – the court examines the factors at play in determining a date of separation where the parties are two years apart on their proposed last cohabitation dates.

Friedman v. Friedman, 2018 MBQB 91 – in a case involving corporate financial disclosure, the court declined to order the more intrusive disclosure format sought by the wife at such a preliminary stage in the proceedings and without any form of discovery having been undertaken.

Klassen v. Wowk-Litwin, 2018 MBQB 84 – a seven year difference in the dates asserted by the parties as to when cohabitation began led the court to consider the “often challenging issue of when a close, romantic relationship has transitioned to cohabitation in a conjugal relationship and the clock begins to tick to meet the period of cohabitation needed to establish a “common-law relationship.’” (para. 5) The petitioner owned a house in Steinbach and worked on an adjacent family farm. The respondent was completing a medical residency in Winnipeg and lived part of the time in an apartment there and some of the time at the house in Steinbach. After hearing evidence on all the indicia of a conjugal relationship and making credibility findings, the court ultimately decided that the parties commenced cohabiting when they bought a cottage together as joint tenants a year and a half after meeting.

Robert v. Robert, 2018 MBQB 80 – the SSAG are a useful tool but do not have the force of law in Manitoba and must be considered in their entirety, according to the court in this case, which involves a spouse of 16 ½ years with an extremely strong entitlement to spousal support on both a compensatory and a non-compensatory basis. The court declined to terminate the husband’s spousal support obligations, but did reduce the amount set under a 2016 variation order which was clearly too high.

Dingle v. Dingle, 2018 MBQB 77 – a father’s bid to reduce his child support obligations based on an alleged oral agreement made when he consented to the mother’s move to pursue a new relationship was rejected, as was his argument that he should be credited for “top-up” payments made by his mother when quantifying arrears.

Boyko v. Boyko, 2018 MBQB 67 – possible intentional underemployment by the husband spoke to the merits of a “clean break,” according to the court in this case, which resolved the parties’ ongoing dispute over spousal support by awarding the wife a lump sum settlement calculated based on historical earnings, without particular regard to the future potential incomes of the parties and payable from the husband’s equity in their jointly owned home.

Legislative Update

Federal

C-78, an Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, was introduced May 22, 2018. It proposes amendments to the Divorce Act and other acts to modernize family justice, including: new custody/access terminology; a list of best interests of the child criteria; new family violence measures; simplified support mechanisms; and a framework for relocation of children.

Provincial

The Advocate for Children and Youth Act, S.M. 2017, c. 8 – section 1 (insofar as it enacts clause (e) of the definition "reviewable service") was proclaimed in force effective July 1, 2018

Bill 18, The Child and Family Services Amendment Act (Taking Care of Our Children), received royal assent on June 4, 2018 and will come into force upon proclamation. 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.

Court Notices

The courts have issued several notices in the last few months, including:

Version 5 of the Mandatory Standard Clauses for Family Division Orders – this notice, issued September 4, 2018, discusses the latest version of the standard clauses for family orders, which will be required commencing October 1, 2018.

Setting Multi-Day Matters – this Provincial Court notice advises of new restrictions on setting certain multi-day trial matters, effective September 4, 2018.

Notice - Ordering Transcript of Recording of Proceeding – this Court of Appeal notice, issued July 10, 2018, advises that effective immediately anyone can order a transcript of the recording of any Manitoba Court of Appeal proceeding that is open to the public and that took place after June 21, 2018.

Family Division - Title of Proceedings - Marriage Certificates – this notice addresses the protocol respecting divorce documents and the use of names as they appear on marriage certificates.

Setting Applications for Guardianship and Guardianship Application Checklist – these notices discuss changes to the guardianship application process in the Court of Queen’s Bench, effective May 7, 2018.

Civil Trial Scheduling Conflicts - the Court of Queen’s Bench issued this practice direction in March. It modifies the November 7, 2017 direction concerning the practice where counsel has booked more than one trial for the same period and it becomes apparent that more than one trial will proceed.

Review of Manitoba’s Child Welfare Legislation - Final Report

As announced September 19, 2018, the provincially appointed legislative review committee on child welfare has submitted its final report and recommendations to government. The report, Transforming Child Welfare Legislation in Manitoba, makes recommendations on the purpose and overarching principles of existing legislation and proposes a dramatic shift in policy and practice within the Child and Family Services system.

Report on Modernizing the Family Law System

The Family Law Reform Committee released their report on Modernizing Our Family Law System in June. The report identifies two long-standing flaws in the current Manitoba system (it needs to be more accessible and less adversarial) and recommends a three year pilot project to test an alternative model.

New Model for Scheduling and Case Flow Management

The Court of Queen's Bench Family Division will introduce a new model for scheduling and case low management in respect of non-child protection matters this fall, with publication of the changes expected in 2019. The new model seeks to achieve more expeditious resolution/ disposition of cases, while reducing the complexity and costs associated with the current model of scheduling in the Family Division.