Question of the Month

Legal research is a big part of the services we provide here at the Manitoba Law Library. This new section will present some of the interesting queries we receive, and highlight how we can point you towards helpful resources, or suggest answers for difficult questions.

Q:How is an intestate estate divided when there is not only a surviving spouse and children, but also children from a previous marriage?

If we look at the Intestate Succession Act s. 2(3) we can see that the surviving spouse gets a preferential share and then a one-half remainder but nothing is mentioned about children of a previous marriage. We can look at the CED for some confirmation.

CED Devolution of Estates (Western) § 44

“Under the Manitoba Intestate Succession Act, if an intestate dies leaving a surviving spouse or common-law partner and issue, and all of the issue are also issue of the surviving spouse or common-law partner, the entire intestate estate goes to the surviving spouse or common-law partner. If one or more of the issue are not also issue of the surviving spouse or common-law partner, the share of the surviving spouse or common-law partner is $50,000 or half of the intestate estate, whichever is greater, and half of the remainder of the intestate estate.”

Again nothing specific to the issue of a previous spouse. Searching more for distribution on intestacy we find these special instructions.

Manitoba – Estate Administration. Special Instructions 33 – Distribution on Intestacy

“If the amount received under the will exceeds $50,000 and the deceased is survived by a spouse or common law partner and issue that is not the issue of the surviving spouse or common law partner, the spouse or surviving common law partner receives $50,000 plus half of the remainder of the intestate estate and the remaining half is divided among the issue as outlined below.”

“As between themselves, the estate goes to the issue of the intestate to be distributed per capita at each generation. The estate or the part of the estate which is to be distributed to the issue is divided into as many shares as there are surviving issue in the nearest degree of kinship to the intestate which contains any surviving issue and deceased persons in the same degree who left issue surviving the intestate.”

So we can interpret that the surviving spouses receives a preferential share and one-half of the remainder, with the other half of the remainder being distributed among all issue.

While there is no case law found on this exact matter, there is similar issue in Estate of Gordon Austin Wittick, 2009 MBQB 140, where the deceased left a will which disposed of the residue of his estate to his two surviving sisters and a Codicil which left his estate to be divided, “according to the law all my brothers and sisters to share”. The problem was how to distribute that residue between the living siblings and children of the predeceased siblings. In that case the residue was not distributed by the normal intestacy rules but was split into four parts; one for each of the surviving siblings and one for each predeceased sibling to then be split among their children.

Court Notices & Practice Directions

Court of Appeal

• June 12, 2023 New Chief Justice of Manitoba

Court of King’s Bench

• June 25, 2023 – Filing of Application or Motion for a Publication Ban or Sealing Order
• June 25, 2023 – Cases involving Statutory Interpretation
• June 25, 2023 – Tracking of Related Files
• June 25, 2023 – Use of Artificial Intelligence in Court Submissions 

Provincial Court

• June 28, 2023 – Amendments to the Provincial Court Family Rules and Forms

New Library Resources

New Online Titles

New eBook online platform for Emond’s Criminal Law Series

Emond’s popular series on criminal law has moved to a new platform in our Online Library Resources Section.

This new eBook format allows for an easier user interface, new features for making notes and annotations, and offline reading using the  VitalSource App.

 In addition to the online versions, we also have a number of print versions available for loan. See the Catalog for a full list of titles.

The Immigration Law Series is a new addition to our print collection.
This series “offers clear, concise guidance on the practical and procedural aspects of Canadian immigration and refugee law. Ideally suited for lawyers, immigration consultants, and paralegals, this collection covers discrete areas of immigration practice, anchored by the expertise of General Editors Cathryn Sawicki and Chantal Desloges.” – from publisher.

• Family Class Sponsorship in Canadian Immigration Law
• Inadmissibility and Remedies
• Canadian Refugee Protection Law Guide
• Canadian Immigration and Refugee Law for Legal Professionals, 5th Edition

Book Reviews

Review taken from the Canadian Law Library Review, vol 48 no 1

Power to the People: Constitutionalism in the Age of Populism. By Mark Tushnet & Bojan Bugarič. Oxford: Oxford University Press, 2021. vii, 285 p. Includes footnotes and index. ISBN 978-0-19760-671-1 (hardcover) US$39.95; ISBN 978-0-19760-674-2 US$89.89.

Reviewed by Sarah Gibbs, Library and Knowledge Management Specialist McLennan Ross LLP

“Mark Tushnet and Bojan Bugarič’s Power to the People: Constitutionalism in the Age of Populism appears to be the book for our time. Politicians who attribute social and economic problems to the influence of “elites” acting against the “people” have gained prominence in nations around the world. In the United States, appeals to constitutional originalism have unseated some rights—for instance, the right to an abortion, as enshrined in Roe v Wade—and threatened others. Closer to home, governments in several provinces pre-emptively invoke the Charter of Rights and Freedoms’s notwithstanding clause in an effort to insulate unconstitutional legislation from legal challenges. “

Click here for the full review

Substantive Law

Administrative Law

Société Radio-Canada v. Canada (Attorney General), 2023 FCA 131: Appeal by Société Radio-Canada (SRC) against a decision by the CRTC that found SRC in violation of Canadian broadcasting policy objectives. AG (Canada) joined appeal, arguing that the CRTC exceeded its jurisdiction and erred in law by ignoring the applicable legal framework and the values of the Charter, specifically freedom of expression. The complainant requested to have their name removed from the case due to negative consequences and legal costs. The CRTC sought to intervene in the appeal but was denied on the grounds of impartiality and finality of administrative decisions. The Court appointed an amicus curiae (Prof. Paul Daly) to advance arguments on behalf of the CRTC. Standard of review is correctness. Attorney General argued that the CRTC erred in relying solely on the broadcasting policy objectives to impose sanctions for inappropriate content, without invoking or applying jurisdiction-conferring provisions of the Act. Additional issue is whether the CRTC conducted the proportionate balancing exercise required by the Charter as set out in Doré, Loyola, and Trinity Western University (para 57). The Court ultimately granted the Attorney General’s motion for judgment on consent, allowed the appeal of SRC, and set aside the decision of the CRTC. The matter is returned to the CRTC for re-determination based on the rules of conduct and the impact on SRC’s freedom of expression.

 Chatoorgoon v. Manitoba Ombudsman, 2023 MBKB 100: Application for judicial review of Ombudsman’s decision to refuse to investigate a complaint under FIPPA. Applicant had requested the names of interviewers of medical school applicants at the University of Manitoba between 2000 and 2015. Applicant’s husband had been denied entrance to med school in 2007. In 2020, he filed a complaint with the Ombudsman, the Ombudsman investigated and issued a report finding the University was justified in withholding the records. He had 30 days to appeal it to this court. Applicant filed a FIPPA request for the same information, was refused for the same reasons, and made a complaint to the Ombudsman. Ombudsman refused to investigate, stating they had already investigated. Discussion of issue of standing, since applicant is not party to the information requested; privative clause (s.39) in FIPPA limiting the right to review decisions. If Ombudsman decides not to investigate, there can be no review of that decision by any court. Application dismissed.

Agnew v. The Manitoba Dental Association, 2023 MBKB 98: Application for orders of certiorari regarding certain decisions of the Board of the Manitoba Dental Association which led to removing him from the Board for failing to sign the MDA’s Code of Conduct. The MDA is the regulator of the dental profession, whose mandate includes governance of the MDA, education, and establishing standards of practice and upholding the public trust. In response to a comment from the new dean of the College of Dentistry, the applicant sent an email to some members with a link to a video featuring a person described as an American white supremacist. The information was contrary to the Board’s commitment to participate in the Truth and Reconciliation Commission’s Calls to Action Nos. 18-24. The Board realized it had no mechanism to remove a board member whose behaviour was detrimental to the operation of the Board. They amended their Code of Conduct, and asked all current members to sign it; applicant refused. He claims the code is a “new” code, and not required when he became a member. Respondent says it is an “amended” code. Standard of review is reasonableness (Vavilov). Application dismissed.

 Ian Burns. Decision “highly consequential” for Broadcasting Regulation in Canada, Legal Scholar Says. Law360 Canada, 16 Jun 2023, viewed 16 June 2023. Comment on Société Radio-Canada v. Canada (Attorney General), above.

Bankruptcy Law

Royal Bank of Canada v. Borne et al., 2023 MBKB 90: Applicant Royal Bank applies for an order that Deloitte Restructuring Inc. be appointed receiver of the assets of the respondents’ property used in connection with their business, other than real property. Several other interested parties oppose the appointment of a receiver over proceeds of sales from an auction of cattle in the possession or control of the respondents. Parties agree RBC is entitled to appoint a receiver; however, some parties oppose appointment of a receiver over the auction proceeds because of the related expense. Perlmutter, A.C.J. determined that one party, JGL, effectively acted as a receiver in locating, preserving, securing and realizing the assets (cattle) and should thus be reimbursed from the auction proceeds for its legal work. Application dismissed.

Civil Litigation

Springfield Taxpayers Rights Corp. v. Rural Municipality of Springfield and Berger Peat Moss Ltd., 2023 MBCA 57: Appeal by applicant of an order striking their application for either abuse of process or dismissing it for delay pursuant to Rule 38.12(1). CA found that did not have to decide if the motion judge erred on the abuse of process motion, since they found no error in his alternative finding that it could be dismissed pursuant to Rule 38.12(1). Review of the caselaw on dismissal for delay under this rule. Appeal dismissed.

 Viceversa Developments Inc. v. The City of Winnipeg, 2023 MBCA 52: Appeal by plaintiff over dismissal of claim alleging that the defendant was negligent in not completing certain steps necessary to bring into force amendments to a city by-law. Trial judge held that although city was negligent, plaintiff would not have signed the required agreements, therefore city’s negligence did not cause legal compensable damages. CA found no palpable or overriding error in trial judge’s reasons. Appeal dismissed.

 Robson v. Richlu Manufacturing, 2023 MBKB 99: Motion for dismissal for delay on a claim alleging wrongful dismissal, pursuant to Rule 24.02. Plaintiff’s affidavit of documents was served on defendant’s counsel three years and seven days after statement of defence was filed. Defendant brought motion to dismiss for long delay, but didn’t serve their affidavit of documents. Issue to be addressed is whether this failure to serve should preclude the dismissal for delay. Discussion and judicial consideration of Manitoba’s Rule 24 and Ontario’s Rule 24 and whether the court has a remedial discretion to dismiss the motion. Action dismissed.

 People Corporation v. Mansbridge et al, 2023 MBKB 94: Motion by plaintiff for an order under KB Rule 30 to perform a “limited forensic examination” of the home desktop computer of the individual defendant. Both defendants oppose. Defendant Mansbridge, a senior sales employee, downloaded documents from his employer with sales information just over a year before he gave notice. Plaintiff’s argue that he breached the confidentiality clause in his contract. Defendant argues the documents are not confidential, as determined by the Court of Appeal in an earlier decision, and even if they were, there must be “exceptional circumstances” for the court to order such an intrusive measure. Motion dismissed.

 Teresa Scassa. Regulating AI in Canada: A Critical Look at the Proposed Artificial Intelligence and Data Act, (2023) 101-1 C.B.R. 1.

Canada’s Bill C-27, The Digital Charter Implementation Act, includes a proposed Artificial Intelligence and Data Act (AIDA). If passed, the AIDA would establish a series of obligations regarding the use of anonymized data in AI systems; the design, development and making available for use of AI systems generally; and the design, development and making available for use of high-impact AI systems. The bill is challenging to fully understand, as many of these obligations are left to be fleshed out in regulations, including even the definition of the “high impact” AI, to which the AIDA will apply.  

 Erika Chamberlain. Case Annotation: Hansman v. Neufeld. (2023) 90 C.C.L.T. (4^th) 301 (WLC – LSM members can request a copy.

In Hansman v Neufeld, the Supreme Court of Canada had its second chance to weigh in on the process for deciding so-called anti-SLAPP motions. These motions, created by statute in Ontario, Quebec, and British Columbia, allow courts to dismiss claims that are strategically brought to discourage defendants from making expressions on matters of public interest. While the majority decision purported to follow the framework set out by the Supreme Court in 1704604 Ontario Ltd v Pointes Protection Association, it departed from that framework in both form and substance. Most notably, in weighing the potential harm to the plaintiff against the public interest in protecting the defendant’s freedom of expression, the majority was heavily influenced by its support for the defendant’s cause, i.e., protecting the interests of transgender youth. Justice Côté, in dissent, argued that it is inappropriate for a court to weigh in on the relative value of the parties’ expressions, and that those who express controversial, or minority opinions should not thereby forfeit the right to have their defamation claims tried on their merits. [footnotes omitted]

Constitutional Law

Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17: Challenge to the Safe Third Country Agreement between Canada and the United States regarding the treatment of refugee claimants. Refugees who first land in the U.S. have been crossing the border at irregular crossings into Canada to apply for refugee status here. Kasirer J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. concurring):

 [2] The Safe Third Country Agreement is given effect in Canadian domestic law through the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), and its regulations. Under s. 101(1)(e) of the IRPA, refugee status claims are ineligible to be considered in Canada if the claimant came from a country designated by the regulations. … A designated country is thus seen as a safe third country in that it is viewed as an appropriate partner with which Canada can share responsibility for considering refugee claims. The United States is designated under s. 159.3 of the Immigration and Refugee Protection Regulations, SOR/2002‑227 (“IRPR”). It is the sole designated country in Canadian law.

[3] The appellants challenge this scheme principally on the basis that it violates the rights guaranteed by ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. They claim that the legislation results in Canadian immigration officers summarily returning claimants to the United States without considering whether the United States will respect their rights under international law, including those relating to non‑refoulement and detention.

…

[13] While I reject the appellants’ s. 7 challenge to the legislative scheme and their other arguments, I would nevertheless allow the appeal in part. I would remit the appellants’ claim that the legislation violates Charter‑guaranteed equality rights, which was not decided by either court below. The appellants’ s. 15 claim rests on grave allegations that women facing gender‑based persecution and sexual violence are often denied refugee status in the United States contrary to Article 33 of the Convention Relating to the Status of Refugees , Can. T.S. 1969 No. 6 (“Refugee Convention”). The evidentiary basis for the appellants’ s. 15 claim remains disputed and no factual findings were made in the Federal Court on which we can rely on appeal. It would be imprudent for this Court to dispose of the equality rights claim as would a court of first instance and thus leave the losing party with no avenue of appeal.

Malcolm Rowe and Manish Oza. Structural Analysis and the Canadian Constitution, (2023) 101-1 C.B.R. 205.

This article is about structural analysis in Canadian constitutional law. Structural analysis is a methodology for identifying unwritten components of the constitution and giving them effect. These unwritten components— Parliamentary privilege, Crown prerogative, constitutional conventions and underlying constitutional principles—pertain to the basic institutions of the state and the norms that govern their operations and relations. We explain how structural analysis operates and show that it is essential to discerning and applying the unwritten constitution.

Corporate and Commercial Law

Sage Creek Village North Ltd. v. Nasberg et al, 2023 MBCA 53: Commercial leasing dispute over unpaid rent in a failed restaurant development. Plaintiff was successful in summary judgment for an order of $100,000. Issues include whether the nature of the obligation for the individual defendants was an indemnity or a guarantee; was there an error on the part of the motion judge when he determined the plaintiff had provided sufficient notice; and timing of the ending of the individual defendants’ indemnity. Appeal dismissed.

 Heidi J.T. Exner. Saskatchewan Court Gives Thumbs Up to Emoji Serving as Legal Signature. Law 360 Canada, 4 July 2023, viewed 5 July 2023. Comment on South West Terminal Ltd. v. Achter Land, 2023 SKKB 116, where Keene, J. ruled that a “thumbs up” emoji constituted contractual acceptance.

Criminal Law

R. v. Basque, 2023 SCC 18: Issue over whether a sentencing judge can backdate an order for an offence with a mandatory minimum sentence. Offender had already served the mandatory driving prohibition while awaiting sentencing. Summary conviction appeal judge found the sentencing judge had erred in backdating, but it could be remedied by giving credit for the prohibition. Court of Appeal allowed the Crown’s appeal holding there was not authority for giving credit. Kasirer J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. concurring): Appeal allowed.

 [1] After being charged with a summary conviction impaired driving offence in 2017, the appellant, Jennifer Basque, was released on an undertaking not to operate a motor vehicle while awaiting trial. She remained subject to that prohibition until she was sentenced 21 months later. At the time of the offence, s. 259(1)(a) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), required the court to make an “order prohibiting the offender from operating a motor vehicle . . . during a period of . . . not less than one year”.^[1]

…

[6] The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well‑known distinction between the concepts of “punishment”, understood as a deprivation, and of “sentence”, understood as a judicial decision (in French, the distinction between “punition” and “sentence”, where the term “peine” can also be used to convey both meanings). This distinction, considered by Rosenberg J.A. in the context of credit for pre‑sentence custody in R. v. McDonald (1998), 1998 CanLII 13327 (ON CA), 40 O.R. (3d) 641 (C.A.), was taken up by Arbour J. of this Court in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at paras. 35‑37, with particular attention to the multiple meanings of the French term “peine”. From this perspective, Arbour J. explained that while the term “peine” used in the sense of “punishment” refers to the total punishment imposed on an offender, the same word when used to mean “sentence” refers to the decision rendered by the court. It bears noting that a sentence is always prospective in order to prevent the judicial practice of backdating sentences (see s. 719(1) Cr. C.).

…

[12] In light of the foregoing, and given that Ms. Basque has already been prohibited from driving for 21 months, the imposition of an additional one‑year prohibition period would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. Conscious of this fact, the sentencing judge ordered a one‑year driving prohibition but found that Ms. Basque had already satisfied this condition. However, he backdated Ms. Basque’s sentence to achieve this result. With respect, this was an error. He could quite properly have imposed the one‑year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre‑sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code.

[13] For the reasons that follow, I would allow the appeal and set aside the judgment of the New Brunswick Court of Appeal. I would restore the judgment of the summary conviction appeal court and reinstate the sentencing judge’s conclusions in part, for different reasons. I would specify that the appellant has already served the mandatory minimum prohibition provided for in s. 259(1)(a) Cr. C.

R. v. Ramirez, 2023 MBCA 54: Appeal of disposition of the Manitoba Review Board regarding the appellant’s reintegration into the community. Appellant was found criminally not responsible for the murder of his father while suffering paranoid delusions. There were two options before the Board, a direct option and a graduated option. The Board chose the graduated option despite the appellant’s treatment team suggesting the direct option. CA determined the Board’s conclusions were reasonable; appeal dismissed.

R. v. Parker, 2023 MBCA 51: Crown sentence appeal where accused received a conditional sentence order for firearms offences. Crown argues that the sentence was too lenient, and sentencing judge relied too much on rehabilitative efforts of accused. Accused is a drug addict but had been sober for almost three years at the time of sentencing. Steel, J.A. reinforces role of CA to be highly deferential to sentencing judges, and highlights acknowledgement that this sentence was on the low side. Judicial review of caselaw where accused’s rehabilitative efforts are considered in determining sentencing. Appeal allowed, but dismissed.

R. v. Jensen, 2023 MBCA 50: Accused appeals his conviction by a jury for first degree murder. Victim was the three-year-old son of his girlfriend. Issue over discretionary exclusion of otherwise admissible evidence. Crown admitted into evidence video that showed the accused assaulting the victim’s mother. Video was admitted after a voir dire hearing. Accused argues that trial judge erred in attaching probative value to the video on the issue of intoxication and in weighing the prejudicial effect on the jury. Standard of review is highly deferential to the trial judge. Appeal dismissed.

R. v. Beardy, 2023 MBKB 103: Charge of refusing to give a breath sample to enable a proper analysis by means of an approved screening device (ASD). Accused was involved in an ATV rollover where one of the passengers died. Event took place before the Supreme Court released R. v. Breault, 2023 SCC 9 which determined a peace officer must have immediate access to an ASD at the time of requesting a breath sample. Toews, J. concludes that testimony of RCMP constable establishes beyond a reasonable doubt that there were two ASDs at the time of the demand. Accused is found guilty.

R. v. D.S., 2023 MBKB 97: Sentencing decision where accused was convicted of three robberies and related offences. Victims were vulnerable women who worked in the escort business. Crown submits that the three attacks amount to three separate criminal transactions, requiring consecutive sentences. Defence argues that it amounts to a crime spree and should attract concurrent sentences. Primary principles of sentencing are deterrence and denunciation. Accused declined presentence report. Analysis of R. v. Arbuthnot, 2009 MBCA 106 for guidance on concurrent and consecutive sentences. Champagne, J. finds a consecutive sentence is appropriate, but is also mindful of the principle of totality. He orders a sentence of four years for each crime, and finds that 12 years is acceptable under the totality principle.

R. v. Hikoalok, 2023 MBKB 95: Application by the Crown to have the accused found to be a dangerous offender and receive an indeterminate sentence, pursuant to s.753 of the Criminal Code. Accused is self-represented; Toews, J. appointed an amicus to assist the Court. Review of the caselaw for s.753. R. v. Boutilier, 2017 SCC 64 is the most recent leading decision. Review of the accused’s criminal record in considering whether there is a high likelihood of recidivism. Toews, J. found that the accused meets the criteria of a dangerous offender. Second part of analysis is whether an indeterminate sentence is the appropriate measure to protect the public. Accused has re-offended within a few days after releases from custody. Crown has met onus of proving beyond a reasonable doubt that accused is a dangerous offender, and an indeterminate term of custody is necessary.

R. v. Daher and Brightnose-Baker, 2023 MBKB 91: Sentencing decision were accused were convicted of second-degree murder. Issue under consideration is whether the ten-year minimum period of parole ineligibility should be raised for either or both offenders. Both offenders have undergone a pre-sentence report and Gladue report. No migitating factors and several aggravating factors to consider. Crown is asking for parole ineligibility to be increased to 20 years for Daher and 18 years for Brightnose-Baker. Defence argues parole ineligibility for Daher should be set at 14 years, and remain at the ten-year minimum for Brightnose-Baker. Champagne, J. found Daher is committed to a life of serious violent crime, and sets period of parole ineligibility at 20 years. Brightnose-Baker is equally responsible for this murder under the law, but his moral culpability is different. His parole ineligibility is set at 14 years.

R. v. Tron Gamblin, 2023 MBKB 86: Sentencing decision for contempt of court. Accused left threatening messages on Facebook involving witnesses at his son’s murder trial, after specifically being ordered not to identify those witnesses. Review of caselaw in contempt cases; most occur when a witness won’t testify. Review of R. v. Asselin, 2019 MBCA 94, a recent decision on contempt. Keyser, J. sentences the accused to three years, minus time served, and asks the Crown to ensure WPS adds it to his criminal record.

R. v. Kamyar, 2023 MBPC 28: Dispute over the level of drug dealing the accused was operating at. Accused pled guilty to possessing fentanyl for the purpose of trafficking. Parties entered into a “Gardiner” (R. v. Gardiner, [1982] 2 S.C.R. 368) hearing in order for the Crown to prove beyond a reasonable doubt that he was operating at a high level. Practice of courts in Manitoba is follow the direction of the Court of Appeal in R. v. Rocha, 2009 MBCA 26. Devine, P.J. was not satisfied beyond a reasonable doubt that the accused is a high-level drug trafficker, and finds he was operating at the high end of mid-level dealing.

R. v. J.C., 2023 MBPC 26: Accused is charged with aggravated assault, assault with a weapon and other offences, against his former domestic partner. Issue at trial is the credibility of the complainant; accused did not testify. Two other witnesses, a bystander not related to the complainant, and a police constable, corroborated portions of her testimony. Analysis of photographic evidence, testimony, and witnesses proved enough for Frederickson, P.J. to find the accused guilty.

Don Stuart. Uncertainty on Charter Section 24(2) Remedy of Exclusion of Evidence. (2023) 86 C.R. (7^th) 255. (WLC – LSM members can request a copy.

The clear recent trend in Supreme Court of Canada decisions is not to exclude evidence obtained in violation of the Charter under s. 24(2). The majority was 6-3 in R. v. Stairs, 6-1 in R. v. Tim, 5-4 in R. v. Beaver and 8-0 in R. v. McColman (reported above at p. 229).

Justices Moldaver and Jamal wrote the majority judgment in Stairs and Justice Jamal wrote very long and detailed judgments for the majorities in Tim and Beaver. Beaver is now the leading case on most s. 24(2) issues. However, this is not entirely clear as earlier s. 24(2) majority judgments of the Supreme Court excluding under s. 24(2) in R. v. Paterson and R. v. Le are still being widely referred to and have not been expressly overruled.

There are also some important questions raised by the unanimous judgment in McColman by Chief Justice Wagner and Justice O’Bonsawin. Justice Brown, long a leading proponent of a strong exclusion remedy, is currently suspended from the Court in a disciplinary matter and did not participate in this judgment.

Importantly the Court makes it clear that it is still committed to the general Grant discretionary approach requiring three levels of inquiry rather than a bright line. [footnotes omitted]

Family Law

G.P.J.K. v. C.A.K., 2023 MBCA 55: Appeal by respondent (mother) of decision in a lengthy trial which resulted in variation of existing parenting arrangements and reduced child support. Parties separated in 2014, and an interim custody order was made giving the mother primary care and control and the father, access a few hours one weekday and overnights every other weekend. Father voluntarily paid significant child support. Comment made concerning the fact that the decision was lengthy and oral immediately following the conclusion of the 10 day trial. Mother made motion to admit new evidence at the appeal; after Palmer analysis, motion dismissed. Appeal arguments revolved on whether the trial judge made errors by reading the discovery transcript of the father; did not fully appreciate the evidence of the mother’s expert witness, the children’s psychologist; and did not complete a proper “best interests” analysis. CA found no reason to interfere in any of the trial judge’s reasons; appeal dismissed.

 Ali v. Ali, 2023 MBKB 89: Master’s report on Family Property Act accounting. Reference order issued by MacPhail, J. on November 9, 2021. Separation date noted in the reference order is January 1, 2015. Both parties were self-represented, which raised difficulties in receiving documentary evidence on valuation of their properties. Master Berthaudin produced a report based on the limited evidence available.

 Duncan v. Magnusson, 2023 MBKB 87: Parties separated in 2009 after almost 16 years of marriage/cohabitation. They were divorced by Divorce Judgment pronounced in 2017. Remaining issues are property matters. Some have been settled; remaining issues include equal division of family assets including pension division and determination of equalization payment, account for net sale of proceeds of property, accounting for joint line of credit and partition or sale of two other properties. Detailed analysis of the valuation of assets and quantification of amounts owed.

 J.D.R. v. A.N.R., 2023 MBKB 81: Petitioner/Respondent seeks to set aside a protection order obtained by the Respondent/Applicant. Applicant was under the obligation to make full, fair and complete disclosure, including any pending or recent family proceedings; and that the JJP consider any information available at the hearing from registry. . Thomson, J. found that neither of these obligations were met. Application to set aside the protection order is granted.

 Michaela Keet and Jeff Edgar. Mediator Discretion in Cases Involving Intimate Partner Violence. [2023] 35-1 Can. J. Fam. L. 131.

Mediation is a centerpiece in the ‘agreement culture’ around family law litigation. It is recognized by the courts as offering inherent protections to deal with challenging cases such as those involving intimate partner violence. To learn more about how mediators invoke and view the process’s protections, we conducted a series of interviews with senior mediators, trainers, and policymakers in the field. This article synthesizes current views within the mediation field about how to identify and screen for IPV, and implications for process management. At the heart of these interviews was the theme of mediator discretion: mediators describe and value discretion as endemic to the assessment of a person’s capacity and agency–to the assessment of contextual factors which may affect decision-making, engagement, and outcome. This article summarizes interview data around practical issues, such as how to navigate screening conversations, and also broader tensions surrounding the mediator’s work, such as the need to balance impartiality with capacity-building inside a process designed to help parties prepare for the future.

 Claire Houston. Spousal Support for Men: An Analysis of Reported Canadian Decisions. (2023) 42 C.F.L.Q. 1. (WLC – LSM members can request a copy.)

Spousal support claims by men represent a small, but steadily increasing, number of total spousal support claims. Gender-neutral entitlement to spousal support was introduced in the Divorce Act of 1968; before then, only women could claim what was then called alimony. Today, approximately 3% of reported spousal support decisions involve claims by men. Changes to family income patterns suggest that spousal support for men (SSFM) claims will continue to increase: women’s proportion of earned family income is rising, and there are more female primary household earners (“breadwinners”) than ever before, especially among younger couples. Yet we know little about SSFM claims or how they are adjudicated. There have been claims of gender bias in SSFM cases, and it has been suggested that men receive fewer awards, smaller awards, and shorter awards than women. More fundamentally, it is not clear how SSFM cases fit within a legal framework that has developed around predominantly female claimants. [footnotes omitted]

Legislation

Federal

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Provincial

The House adjourned on June 1, 2023  and will reconvene on October 4, 2023.

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