Articles, links and resources

Articles Posted Include:

Civil Responses to Inter-Jurisdictional Custody and Access Breaches – Madam Justice Joan MacPhail

In cases where custody or access is denied, there are a number of civil responses and enforcement options available for clients. This paper focuses on the law in Manitoba, what is available, what is required for each option and when options can apply to specific children and specific situations. The paper also touches on the Hague Convention on the Civil Aspects of International Child Abduction, remedies and resources in abduction cases and Child Custody Enforcement Legislation.  

The Alienated Child – Dr. Rosalyn Golfman

This paper on alienated children in divorce cases was presented as a CLE at the

November 28, 2007 meeting of the Family Law section.  Dr. Golfman begins by providing a definition of an alienated child.  She then provides a continuum that can be used to conceptualize a child’s relationship with each parent from positive to negative.  She begins with a list of factors that play a key role in the development of a feeling of alienation for a child.  She then provides a list of factors that can intensify or moderate these feelings of alienation.  She proceeds to a list of points concerning severe parental alienation cases and how they should be properly handled. Finally she provides a point form description of a multiple intervention model in moderate to severe parental alienation cases.

2007 Mid-Winter CLE - The 15 Minute Family Lawyer: Everything You Wanted to Know About Family Law but Were too Afraid to Ask
 
A Halloween Expungement Overview – The Good, The Bad, & The Ugly – Lawrence Pinsky

This article dealing with expungements in a family law setting was presented as a CLE at a meeting of the Family Law Section on October 29, 2007. Mr. Pinsky begins with a brief overview of the development of expungement rules by the court as a way to ensure that affidavits met a reasonable standard. Mr. Pinsky then move on to a discussion of the basics of expungements. He points to the case of Ridout v. Ridout as a leading decision in the area of appropriate affidavit use. He states that this case is important for making clear that where a new aspect of an existing issue is raised in an Affidavit, a party is entitled to respond. Mr. Pinky then points to the case of Snell v. Snell as making the point that a variation does not open the door to re-arguing the original case. He finishes his discussion on the basics by pointing out that expert opinions must be attached to the experts’ own affidavit. Next, Mr. Pinsky turns to a discussion of cost awards against counsel. He points to the case of Eblie v. Yankoski as an important case dealing with the award of costs in an expungement case. The decision in this case was based on the ruling in Mueller v. Mueller. Mueller, he argues, stood for the principle that where a Judge considers an affidavit and make a decision based upon it the court does not have jurisdiction to order any expungement. He states that Eblie clarified this by stating a) the Judge read and considered the affidavit sought to be expunged, and; b) the Jude must have made a substantive Order based on the evidence. Mr. Pinsky sights Yard J to make the point that for part b to of the Mueller test to have been met some part of the relief sought must have been granted, so an order refusing relief did not meet the test. Mr. Pinsky then provides a list of cases in which costs had been awarded against counsel personally based on the Eblie decision. He states that Yard J found that if the counsel was “responsible for drafting or presenting affidavit material, irrespective of intent” and thus causing costs be incurred without reasonable cause under Rule 57.01(1) they would be personally responsible for costs. He further provides a litmus test from the Eblie decision for when costs will be awarded against counsel. Next, Mr. Pinsky turns to a discussion of responding to allegations. He points to the case of Reis v. Reis, to make the argument that you must specifically reply to each and every allegation, and not use general denials. In Reis the lack of a direct denial led the court to find the arguments of the other party strengthened. Mr. Pinsky next considered the issue of filing affidavits to support an expungement. He cites the cases of Shearer v. Hood, as showing that affidavits should not be filed in support of expungements however costs were not awarded against counsel since affidavits are discouraged not prohibited. Mr. Pinsky then explains that replies to the Response on an Expungement motion and that this can lead to disadvantages for the moving party. The next issue that Mr. Pinsky considers is expungements related to privileged communications. He states that privileged communication is a troubling area for the expungement process as it currently stands. He argues that counsel is placed in a difficult spot where it is trying to prove the true nature of correspondence without evidence available. Mr. Pinsky next points out that a long delay on an expungement motion has been found to defeat the motions, furthermore he points out that the court has found that the expungement process is not available to a third party. Mr. Pinsky argues that old rules concerning disregarding evidence that breaches the law of evidence and/or the Rules are still alive and well and should not be discounted, despite the very specific rules governing the expungement process in the family area. Mr. Pinsky then points to the decision in Porteus v. Porteus, to show that it is possible to source hearsay in the family law section and to establish the point that the court can use its logic in dealing with sourced hearsay. He then discusses the point arising from Wazney v. Wazney that it is not possible for a motion to be filed post-fact to make the material relevant. Furthermore, the Master in that case also stated that expungement motions ought not be used for relevancy unless the material is highly prejudicial, very thin, of questionable relevance, or plainly irrelevant. Wazney also supports the fact that a sloppy affidavit could lead to it being expunged completely and thus should be avoided. Mr. Pinsky next argues the point that although it has been allowed in the past at least once, multiple filings should be discouraged and avoided. Mr. Pinsky then turns to the matter of expungements and The Privacy Act. He argued that evidence that was obtained in contravention of the Act should be excluded before it is ever put before the judge hearing the case. Finally, Mr. Pinsky finishes by pointing to the case of Shore-Kalo v. Kalo, to support the fact that expungements rules apply to the self-represented in the same way that they apply to everyone else.

Recent Developments in Family Law, by Michael Williams

This update on recent developments in family law was presented at the 2007 MBA Mid Winter Conference by Michael J. Williams. Mr. Williams started by noting that family law in Manitoba is an ever-changing field. He then directed the lawyer to the core resource guides. Mr. Williams discussed child custody and access general principles, parenting arrangements, hot topics in custody and access such as mobility of children, grandparents’ access, and Family Conciliation services. He talked about child support guidelines, income determination, table amounts, departure from table amounts, special or extraordinary expenses, tools for calculating child support, shared custody (s.9), retroactive child support cases and changing child support. The spousal support statutory regime, a concise history of spousal support, and spousal support advisory guidelines (SSAG) were looked at as well. Mr. Williams examined the Court processes of case management, financial disclosure, procedure, auto orders and costs. He commented upon alternative dispute resolution and listed additional resources. Mr. Williams concluded that information on family law was readily available but constantly changing.

The Family Property Act, by Sharon Kravetsky

This outline of the Family Property Act (formerly The Marital Property Act) was presented at the 2007 MBA Mid Winter Conference by Sharon Kravetsky. Ms Kravetsky discussed the Family Property Act and changes incorporated therein when the Marital Property Act was amended to include rights for common law partners.