March 2009 - No. 31
ISSN 1916-3924
In this issue:
- New Landscape for Grandparent Access: QB
- Severance Displaces "Litigation Logjam"
- Disclosure Required for Support for Adult Children
- More on Rick v. Brandsema, 2009 SCC 10
- Proposals Invited: FLS
- Upcoming Congress Conference: Children Caught in Conflict
- Resources for Children Experiencing Separation or Divorce
1. New Landscape for Grandparent Access: QB
In Goldstrand v. Goldstrand, 2009 MBQB 40, the first reported case on grandparent access under s.78(1.1) of The Child and Family Services Act (amended December 2006), the court granted the paternal grandparents' application for access to their grandson (age 5) and step-grandson (age 12). The children's mother had severed contact with the applicants after the suicide of her husband, the father of the younger child. She opposed the application. The court found that the grandparents had a nurturing relationship with both children prior to their son's death and that whatever conflict existed between the parties was insufficient "to justify a shut out of the applicants from the children," whose best interests would be served by a continuing relationship. Different tests were applied for access to the grandson (best interests, s.78(4.2)) and the step-grandson (exceptional circumstances, s.78(2)). The access order specified access to both children at the same time, but the step-grandson could choose not to participate, and his doing so would not affect the applicants' access to their grandson.
2. Severance Displaces "Litigation Logjam"
In two recent decisions of the Manitoba Court of Queen's Bench, Winstanley v Winstanley, 2009 MBQB 41 and Hildebrandt v. Hildebrandt, 2009 MBQB 52, the court granted the petitioner's motion for severance of the divorce from other contentious property or support matters. In both cases the husband opposed severance in order to maintain control over other aspects of the case, resulting in protracted litigation. In Hildebrandt the court found:
The real reason Mr. Hildebrandt opposes severance, and now the divorce, is because it provides him with a veto on Ms. Hildebrandt's ability to deal with her interest in the 40 acre parcel, whether or not the joint tenancy is ultimately severed. With that veto comes an ability to restrict her capacity to secure or fund her side of the litigation costs….Given that Mr. Hildebrandt presently has access to all of the farm property and assets, it seems inequitable to put Ms. Hildebrandt in a position where Mr. Hildebrandt's veto can in effect secure a potential future judgment or prevent the erosion of equity that might be used to satisfy it, without first mustering the kind of extraordinary evidence necessary for an order for pre-judgment security. (paras.24 and 29)
3. Disclosure Required for Support for Adult Children
In Tolsma v. Tolsma, 2009 MBQB 44 Justice Thomson reviews the case law concerning child support for adult children and sets out the questions which must be answered when determining whether such support is warranted. Despite serious gaps in the petitioner's evidence, the court found that the onus to establish entitlement had been met, albeit scarcely. The petitioner's request for ongoing child support and contribution to educational expenses was granted on terms requiring proper financial and other disclosure each year.
4. More on Rick v. Brandsema, 2009 SCC 10
The following two articles, both from The Court, comment on the import of the Supreme Court of Canada decision in Rick v. Brandsema, discussed in last month's update:
- For Richer or Poorer: Duty to disclose in separation contracts by Regina Lee, posted March 2, 2009
- Separation agreements - A blessing or a curse for women? by Sona Dhawan, posted March 11, 2009
The Federation of Law Societies invites submissions for papers or presentations for the 2010 National Family Law Conference which will be held in July 2010 in Victoria, B.C. The deadline for submissions is May 30. 2009. Check the Federation website for further details.
6. Upcoming Congress Conference: Children Caught in Conflict
Halifax will host the 5th World Congress on Family Law and Children's Rights from August 23-26, 2009. This year is the 20th Anniversary of the inauguration of the United Nations Convention on the Rights on the Child (UNCROC), and the theme of the congress is Children Caught in Conflict. Register online or by registration form.
7. Resources for Children Experiencing Separation or Divorce
The Department of Justice Canada has created a 2009 calendar for children based on the booklet titled What Happens Next? The downloadable calendar encourages children whose parents are separating or divorcing to keep track of the events in their new routines.
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