eLaw - Family Law Update | January 2019 - No. 91

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Family Law Update January 2019 
In This Issue
Cultural Heritage of Children Not Underemphasized: MBCA
Proportionality Concerns Underlie Decision to Proceed: MBCA
No Entitlement to Accounting by a Master: MBCA
Other Cases
Legislative Update
Proposed Regulatory Amendments
Amendments to the Court of Queen’s Bench Rules
Notices and Practice Directions
Recommended Reading
Winter CPD: LSM
Annual Joint Family Law Program
Mid-Winter Conference: MBA

Cultural Heritage of Children Not Underemphasized: MBCA

In Dakota Ojibway Child and Family Services v KRF et al, 2018 MBCA 104, the Court of Appeal considers, among other things, whether the trial judge who granted permanent orders of guardianship over five children whom the Agency planned to leave in three separate non-Indigenous foster placements, erred by failing to place sufficient weight on the importance of the children’s Indigenous identity as a factor in determining which plan would be in their best interests. While acknowledging that “the disproportionate representation of Indigenous children in the child welfare system is disturbing, if not tragic” and that “(t)he preservation of Manitoba’s diverse and rich Indigenous culture is vital for the health of our Indigenous communities and their children and it enriches our society as a whole,” the court ultimately found that, on these facts, the trial judge had not erred in giving primary consideration to the safety and security of the children.

Proportionality Concerns Underlie Decision to Proceed: MBCA

The overriding issue in Sawatzky v Sawatzky, 2018 MBCA 102, a multi-faceted appeal of a child support variation order, was whether the motion judge should have ordered either a viva voce hearing instead of proceeding on affidavit evidence, or adjourned the child support motion to permit the father to file further evidence. By refusing to allow unnecessary adjournments, expert evidence, or splitting of the case, the judge was engaging the principle of proportionality, said the court and, while a different judge may have decided differently or a full trial may have changed some of the information, any difference in outcome would not have justified the likely cost of the additional proceedings. The father was also unsuccessful in arguing that he should have received more assistance from the motion judge given his then self-represented status.

No Entitlement to Accounting by a Master: MBCA

A second wife who was left nothing but a life interest in her late husband’s share of their condominium was unsuccessful in appealing the dismissal of her claim for a Family Property Act accounting and equalization and other relief in Ball v Sizeland et al, 2018 MBCA 85. She argued that she was entitled as of right to an accounting before a master, but the Court of Appeal found that the application judge (who heard her application concerning improper gifts and misappropriation of assets by the husband’s children) had already done an accounting and determined there was no merit to her claims. On the issue of whether the almost $45,000 worth of gifts the husband made (under a power of attorney) to his children and grandchildren in the last years of his life fell under the dissipation or excessive gifts provisions of the Act, the court found that the excessive gifts analysis is contextual, having regard to the nature and extent of the gifts in question as well as the overall financial situation of the family. The court saw no reason to interfere with the application judge’s conclusion that, while on a prima facie basis the gifts were done with the intent to deprive the wife of her share of the value of the family asset, they were made as part of the husband’s financial planning and desire to make gifts to his grandchildren for their education and to his son and daughter to equalize the payments made for the benefit of the wife and her daughter during his lifetime.

Other Cases

Conde v Conde, 2018 MBCA 135 – the court dismissed the self-represented father’s fresh evidence motion and appeal of an interim order of custody and care and control of the parties’ 5-year-old daughter finding that the information he wished to present to the court was not new and that the motion judge’s decision was discretionary and subject to deference.

Onichuk v. Toews, 2018 MBQB 191 – this is a decision respecting the quantum and duration of spousal support in a case involving “a number of unusual factors.” Among other things, the court considers issues of compensatory, non-compensatory, and contractual entitlement; retroactive increases; compensation for lost investment opportunities; exceptions to the SSAG; voluntary contributions; and occupation rent.
 
Poirier v. Poirier, 2018 MBQB 189 – the court dismissed a farm wife’s application to set aside a cohabitation agreement executed to fulfil the financing requirements imposed when the husband bought out his brother’s interest in their dairy operation prior to the marriage. The court acknowledged that, while the “2000 cohabitation agreement may have appeared unwise or one-sided in 2018,” there were compelling reasons for both parties to enter into it and neither duress, unconscionability nor inadequate financial disclosure were proven.

CFS WESTERN MANITOBA v. A.J.A., 2018 MBQB 187 – although the court found the warrantless search of a home by a CFS worker (resulting in the apprehension of two children due to evidence of meth use) breached the mother’s Charter protected right to be free from unreasonable search and seizure, it declined to grant the mother’s summary judgment motion for immediate return of the children to her given the other evidence and the prima facie case put forward by the Agency.

Hammond v. Hammond, 2018 MBQB 185 – a farm wife who was solely responsible for the family’s support (while her husband lost money farming land originally rented from his parents but inherited by him post-separation) was unsuccessful in seeking an unequal division of family property. She was successful in her custody, child support and spousal support claims, however, and in her request for imputation of her husband’s income.

Mbuyi v. Ngalula, 2018 MBQB 176 – the court granted the father’s request for return of the parties’ two infant children to Iowa given the mother’s admission that she had wrongfully retained them in Canada contrary to Article 3 of the Hague Convention and her failure to establish an exception within the meaning of Article 13(a). The mother argued that the father had acquiesced in the children remaining in Canada and that, in light of alleged domestic violence, returning the children would expose them to physical or psychological harm. After consultation with an Iowa judge, the court found that, while the events described by the mother were serious, the Iowa Court and law enforcement agencies could be trusted to take measures to protect the children.

Hill v. Moss, 2018 MBQB 164 – the court rejected the husband’s claim for interim spousal support and an equalization payment, finding insufficient evidence that he had suffered an economic disadvantage as a consequence of the breakdown of the second marriage (despite the income disparity between the parties) and no clarity as to his entitlement to an equalization payment (given certain evidence supporting the wife’s allegation that they had an oral agreement to keep their finances separate and to not seek support from one another should the marriage break down).

Bellido v. Bellido, 2018 MBQB 161 – as a result of concerns about the father’s parenting judgment (arising, in part, from his lack of forthrightness concerning the extent to which he had exposed the vulnerable six-year-old child to his extreme religious practices) the court declined to change the terms of a consent interim custody order to increase the father’s time with the child.

Legislative Update   

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 – the Standing Committee on Justice and Human Rights reported this bill with amendments on December 7, 2018. The bill amends the Divorce Act to, among other things, change the terminology of custody and access to parenting terminology; establish best interests’ criteria; encourage the use of dispute resolution processes; address family violence; and simplify processes. It also amends other family law related statutes and is the most substantial update of federal family law in 20 years. For further details see the legislative summary, background documents, and the Miller Thomson article Highlights Of The Proposed Amendments To Canada's Divorce Act.

S-249, An Act respecting the development of a national strategy for the prevention of domestic violence, had second reading in the Senate on November 29, 2018 and was referred to committee.

Proposed Regulatory Amendments

The federal government published the following proposed regulatory amendments related to family law issues in the Canada Gazette, Part I, Volume 152, Number 43:

Regulations Amending the Family Support Orders and Agreements Garnishment Regulations – these amendments are intended to improve the administration of the Family Orders and Agreements Enforcement Assistance Act and provide a better balance between recovering costs related to support order enforcement and reducing the financial burden on certain support debtors.

Regulations Amending the Assisted Human Reproduction (Section 8 Consent) Regulations; Regulations on the Administration and Enforcement of the Assisted Human Reproduction Act; Reimbursement Related to Assisted Human Reproduction Regulations; and Safety of Sperm and Ova Regulations – these amendments strengthen the federal regulatory framework governing assisted human reproduction in Canada.

 Amendments to the Court of Queen’s Bench Rules

Comprehensive amendments to the Court of Queen’s Bench Rules will come into effect February 1, 2019. As noted in the Practice Direction, the Court of Queen’s Bench Rules related to family proceedings have been amended to reflect and better cohere with certain approaches and practices contemplated and/or required under the New FD Model. The new rules are also meant to enhance the ability of the court to provide meaningful judicial intervention when required to assist parties in the earliest disposition of their family dispute. For further information see the 35-page Practice Direction from December 19, 2018, which highlights all the changes and the following notices and practice directions. 

Notices and Practice Directions

The Court of Queen’s Bench has issued many notices and practice directions in the last few months, many concerning changes in the Family Division:
Service Changes Effective November 13, 2018 – this notice details several service changes made by Manitoba Justice as part of its ongoing efforts to improve services and access to justice. Changes have been made to digital audio recording access and e-filing, both effective November 13, 2018. In addition, a project to improve courthouse wi-fi access is being phased in on a priority basis.

Manager Queen's Bench Trial and Motion Coordinator – this notice advises of the name and direct line of the new manager of Queen’s Bench Trial and Motion Coordination.

Recommended Reading

Designing Rules of Procedure for the Arbitration of Family Law Disputes – this Slaw article describes and links to rules (and a more accessible pick list) created by John-Paul Boyd for use in family law arbitrations.

Best interests of the child primary concern in Divorce Act changes – this CBA article gives notice of and links to a set of submissions making recommendations for changes to Bill C-78.

Proposed Changes to the Divorce Act: Do they go far enough? – this Lernx article critiques Bill 78, discussed above.

The Gloomy Future of Access to Family Justice in British Columbia: Outcomes of the Law Society’s 2018 Annual General Meeting – this Slaw article discusses recent developments in BC regarding resolutions passed at their Law Society’s AGM concerning how access to justice issues in family law should be addressed (in light of proposals to amend the Legal Profession Act to allow the Law Society to regulate non-lawyers to provide some legal services).

Winter CPD: LSM

How to Navigate The New Family Model: Processes, Rules and Prescribed Forms – attend this January 17, 2019 program to learn about the new Family Model with a focus on implementation, transition and case scenarios. Judges and masters will provide guidance on how the new model will impact their proceedings. In-person attendance is recommended for case scenario group discussions. Registration options for both webinar and in-person attendance are available for this program scheduled from noon to 2:00 pm at the Law Society classroom, 3rd Floor, 260 St. Mary Ave.

Cultural Diversity & Practising Law – this program offers a practical approach to the complex and sometimes thorny discussion of how to become more inclusive in an increasingly diverse world. Presenter Dr. Rehman Abdulrehman will share tips and strategies to help you navigate these complex and sometimes uncomfortable interactions and discuss potentially polarizing issues such as the impact of unconscious bias and privilege.  The program will be held February 12, 2019, from noon to 4:00 pm in the Law Society classroom, 3rd floor, 260 St. Mary Ave.

Procrastination and Professional Liability Insurance Claims ~ Webinar – staff from the Law Society Professional Liability Insurance Department will review the ethical and practical reasons lawyers should not procrastinate when they become aware of circumstances that may give rise to a claim and share tips on how to beat this common condition in this practical webinar scheduled to run from noon to 1:00 pm on February 13, 2019. Webinar group discounts apply where more than two people register together.

Annual Joint Family Law Program

The 2019 Annual Joint Family Law Program, The Times They are a Changin’, will take place March 15, 2019 at the Grand Ballroom, Fort Garry Place. Register by February 15, 2019 to take advantage of the early bird pricing. 

2019 Mid-Winter Conference: MBA

The Manitoba Bar Association’s 2019 Mid-Winter Conference will take place January 24-25, 2019 at the Fairmont Hotel.  Continuing professional development sessions of interest to family law lawyers include: Understanding Common Diagnoses in Youth Forensic Reports; #MeToo – What it Means for You; The Children’s Voice in Family Proceedings; Non-Consensual Distribution of Intimate Images; Family Law – A Year in Review; and Family Law - Mediation and Arbitration. For further details see the conference brochure.


ISSN 1916-3916

 

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