eLaw - Family Law Update | January 2018 - No. 88

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Family Law Update January 2018
In This Issue
Decision Dismissing Variation Motion Upheld: MBCA
Awarding Sole Custody Without Pleading a Procedural Error: MBCA
Recent Care and Control Cases: MBQB
Adversarial System Not Serving the Best Interests of Children: MBQB
$10,000 Security for Costs Ordered in High Conflict Support Variation Case: MBQB
Legislative Update
Review of Manitoba’s Child Welfare Legislation 
Recommended Reading
Annual Joint Family Law Program
2018 Mid-Winter Conference: MBA
Collaborative Practice Manitoba Spring Offerings

Decision Dismissing Variation Motion Upheld: MBCA

In Wilson v Wilson, 2017 MBCA 114, a husband was unsuccessful in appealing the dismissal of his motion to vary his spousal support obligation to his disabled wife due to a material change of circumstance occasioned by his decision to retire from his wholly owned business at age 65. The husband argued that his post-retirement income would be restricted to a small pension, but the motion judge found that he had access to $155,000 retained earnings in his corporation. Although the Court of Appeal was concerned about the level of financial disclosure by each party (and noted its expectation that in future proceedings “complete financial disclosure be made without the need for procedures to compel same”), it found that the motion judge had not erred in finding that the decision to retire did not constitute a material change in circumstances and that it would be neither fit nor just to vary the spousal support amount due to the parties’ relative financial circumstances and the wife’s disability.

Awarding Sole Custody Without Pleading a Procedural Error: MBCA

A trial judge made a procedural, not jurisdictional, error in awarding sole custody to a father in the absence of a pleading seeking such an order (contrary to r 70.31(3)) and without giving the parties any opportunity to respond to this new parenting plan, according to the Court of Appeal in Wenzel v Wenzel, 2017 MBCA 113. The trial judge’s conclusion that the best interests of the children required a parenting plan giving the father full decision-making authority and limiting the mother’s role until her obsessive behaviour changes, was supported by the evidence and entitled to deference, said the court. The mother’s appeal was allowed only to the limited extent of addressing the procedural error by replacing the sole custody award with an order of joint custody, with the father having primary care and control of the children and final decision-making authority on all matters and the mother having supervised care and control consistent with the access order made by the trial judge.

Recent Care and Control Cases: MBQB

Rees v. Fortin, 2017 MBQB 212 – a mother who moved a 2-year-old child away from the child’s father and grandparents (jeopardizing a working shared care arrangement) and whose negative testimony demonstrated animosity toward the father, was unsuccessful in her application for primary care. The court found that, unlike the mother, the father “placed the child’s interests first.”  The father was granted primary care and control and the mother was ordered to pay child support and to share daycare costs.

Skolnik v. St. Germain, 2017 MBQB 211 – although there was much common ground between the parties on joint custody and mutual praise of each other’s parenting abilities, the court noted that certain “highly troubling” evidence cast doubt on the safety of the nine-year-old child, “much less her best interests.” In the end, however, the court accepted the recommendations of Family Conciliation and the two Agencies who had been involved with and investigated the parties, and ordered joint custody with primary care and control to the mother.

Adversarial System Not Serving the Best Interests of Children: MBQB

These cases illustrate the complexities of child protection proceedings and the difficulties inherent in using an adversarial system to serve the best interests of children:

CFS v M.R.L. et al, 2017 MBQB 195 – the court comments on the failure of all parties and the adversarial system itself to properly serve the child in the final paragraphs of this decision. Of particular concern to the court were: the 23 month delay between apprehension and contested hearing; the time spent hearing evidence which should have been admitted and how this contributed to delay; the paucity of evidence that the Agency was prepared to work with the grandmother/guardianship applicant to encourage meaningful interaction with the child once the decision had been made to seek a permanent order; and an allegation that the parents were advised not to co-operate with the mental health worker assigned to assist them. Although the court had no hesitation in coming to the conclusion that the child was in need of protection from the parents, it declined to make the permanent order sought by the Agency and instead appointed the grandmother as guardian. The court also declined the Agency’s request for a s. 77 (1.2) review order.

Metis Child and Family Services v. P.F. et al., 2017 MBQB 193 – although the court found the three children were in need of protection, it declined to make a permanent order due to concerns about the Agency’s plan (with respect to involving the grandmother, who the court was not convinced was committed to safety planning around her husband, a convicted sex offender). To avoid putting the children beyond future judicial oversight, the court made a six month temporary order, giving the Agency time to develop an appropriate plan and risk assessment.

$10,000 Security for Costs Ordered in High Conflict Support Variation Case: MBQB

The court is not precluded from exercising its discretionary authority to vary support whether or not a non-variation support clause in a consent order is founded on a written agreement, according to the court in Anderson v. Bernhard, 2017 MBQB 191. The required analysis under s. 17(1)(a) of the Divorce Act is identical, and the court must determine whether there has been a material change in circumstances since the previous order regardless of whether the consent order contains a non-variation clause.  If the change is one that was contemplated by the parties, it will not be sufficient to permit a variation. In this case, however, the court found that it was unable to assess whether there had been a significant change in the husband’s circumstances which would justify a variation of the spousal support provisions, given the contradictory and incomplete affidavit evidence put forward on the motion concerning the husband’s state of health, his employment ability, his actual income, his income potential, and the circumstances and intentions of the parties at the time of the variation order. The matter was adjourned to trial, with the husband ordered to provide $10,000 as security for costs.

Legislative Update

Federal

Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), received royal assent December 12, 2017 and came into force (other than ss. 2.1, 3.1, 3.2 and 10.1) on December 22, 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, the CBA Aboriginal Law section submission Bill S -3 – Indian Act amendments  (elimination of sex-based inequities in registration), and the report of the Parliamentary Budget Officer estimating the financial cost of the proposed changes (requested by a Senator and an MP (both from Manitoba) and specifically addressing the financial costs associated with amendments made by the Senate and the House of Commons.

 Review of Manitoba’s Child Welfare Legislation 

The government announced it has established a committee to review Manitoba’s child welfare legislation and invites feedback from community members, service providers, individuals involved with the child welfare system, experts, and others by February 1, 2018. An online discussion guide and survey are provided for those who wish to participate. 

Recommended Reading

Divorce Act Amendments – this CBA Family Law section submission urges the federal government to make changes to the Divorce Act in three areas: relocation; child support in shared parenting situation; and in the Act’s terminology.

Seeing (And Feeling) the Family Justice System Through the Eyes of the Therapy Dog – this Slaw post relates a poignant story from the BC Pathfinder initiative, a collective of those seeking to improve the family justice system.

Expanding the Role of Law School Clinics: Bonkalo and the House of Commons – this Slaw post discusses the Bonkalo Report recommendation for expanded student legal clinics to address access to justice issues in family law.

Annual Joint Family Law Program

The 2018 Annual Joint Family Law program, The Tough Stuff , will be held March 9, 2018, at Fort Garry Place, Winnipeg. As the program title suggests, it will focus on the difficult areas in famiy practice, including pensions and early retirement, family trusts, professional and family corporations, the Hague Service Convention, and high conflict cases. For further information on the program content see the session descriptions. Register before February 9, 2017 to take advantage of the early bird fee discount.

2018 Mid-Winter Conference: MBA

The Manitoba Bar Association’s 2018 Mid-Winter Conference will take place January 18-19, 2018 at the Fairmont Hotel. Continuing professional development sessions of interest to family law lawyers include: Effective Cross-Examination of Experts; This Changes Everything (a working lunch on trends that are changing the way consumers interact with products and services and the implications that these trends will have on the legal sector); Family Matters: Using Child Specialists, Parenting Coaches, Mediation and Arbitration; Family Law – A Year in Review; and Current Issues in Tax Law.

Collaborative Practice Manitoba Spring Offerings

Collaborative Practice Manitoba is offering its six-day  Introduction to Basic Collaborative Practice and Conflict Resolution Training course in April (5, 6, 19, 20) and May (10 and 11), 2018. For further information contact info@collaborativepractice or see the registration form. 

Save the date for the next CPM conference, Navigating the Minefield of Collaborative Law, which will be held May 4, 2018.

 

ISSN 1916-3916

 

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