News

 Principals, Recruiters and Mentors

Question of the Month

This feature presents some of the interesting queries we receive, and highlights how we can direct you towards the appropriate resources.

Q: When did a court rule come into effect?

Tracking the changes in any legislation can be difficult but we do have a helpful guide that explains how to use online and library resources to track changes. Regulations, and things like rules or codes can be extra difficult as their changes weren’t always published or as easy to access.

Luckily we have a few resources in the library for special regulations such as the rules of court, including consolidated King’s Bench rules from 1875 to present. Without these we would have to track the long legislative history of the rules which were enacted as statutes, regulations, and orders throughout its history.

Our 1875 version isn`t the first version of the rules however. The King’s Bench was enacted in 1871 (named the Superior court then) and must have had some rules in place. Fortunately we have a former librarian’s assistance in the form of a hand-written note on one of the texts (an early example of “noting up”!). A note sends us to an article in the Manitoba Bar News called Practice Rules Prior to 1895″ which helps explain the early rules.

As an interesting side note, it also mentions a compilation of the rules in the library under the title “A”. While we now use a more standard call numbering system, I was able to find a small leather bound book with an inked “A” on the front. There is also a “B” with additional rules.

These compendiums represent the services early libraries offered by gathering changes manually and compiling them along with hand written notes in the margins or on extra pages. You can also see this in early texts or acts which mention amendments, repeals, or citing cases. Today we don’t write in the books, but we do track changes in legislation and save them in guides, blog posts, or newsletters.

Reviewing these compendiums and the other texts we can see that the early court rules weren’t as standard or fleshed out as today`s. They have undergone a number of changes throughout the years due to changing of the Courts, such as merging the equity court in 1895, creating the court of appeal in 1906, or merging the county courts in 1984. Changes also occurred with revisions that consolidated rules or amended them, often basing them off Ontario rules. The preface for the 1939 mention this, as well as it being the first major revision since 1895. Other changes came in 1986 which added the surrogate court rules, and amended the county court rules. This change would bring the rules to 1982. It would change soon after that with a large revision and change to the numbering of the rules in 1988 to the more familiar rules we see today. Current rules are easier to track and see changes as they are available online, but for earlier legislation, cases, or topics, the library has a font of knowledge available.

Latest Current Awareness

Journals

We also have access to a number of legal journals in print and digital. See below for the latest issues. Members can request copies of articles under fair dealing guidelines by emailing library@lawsociety.mb.ca

Intellectual Property Journal

• “Stimulating Creative Endeavour – How Well Does Intellectual Property Do It?” 36 I.P.J. 125 Ejan Mackaay.
• “Patent Law’s Implied Licence Fiction: Calling Time on an Exhausted Idea” 36 I.P.J. 215 David Vaver.
• “Reframing Copyright’s Key Exclusive Rights in the Age of Access” 36 I.P.J. 135 Cheryl Foong.

University of British Columbia Law Review

• “Canada Stands Alone: A Comparative Analysis of the Extraterritorial Reach of State Human Rights Obligations” (2022) 55:3 UBC L Rev 845 – 900 Leah West.
• “Interest, Insolvency, and Prairie Farm Debt: An Historical Analysis of Reference as to the Validity of Section 6 of the Farm Security Act, 1944 (Saskatchewan)” (2022) 55:3 UBC L Rev 803 – 844 Virginia Torrie.
• “Corporations on the Couch: Is Therapeutic Disclosure a Kind of Madness?” (2022) 55:3 UBC L Rev 745 – 802 Bryce C Tingle, KC.
• ““The Next 10 Years”: Keynote Address on the 10th Anniversary of the Federation of Asian Canadian Lawyers” (2022) 55:3 UBC L Rev 901 – 912 Carol Liao.
• “Regulation of Health-Related Artificial Intelligence in Medical Devices: The Canadian Story” (2022) 55:3 UBC L Rev 635 – 682 Michael Da Silva, Colleen M. Flood & Matthew Herder.
• “Directors’ Liability in Canadian Tax Law: Critically Analyzing the Due Diligence Standard” (2022) 55:3 UBC L Rev 713 – 744 Samuel Singer & Monica Cheng.
• “The Major Project of Reconciliation: Locating an Indigenous Consent Standard Within the BC Environmental Assessment Act 2018” (2022) 55:3 UBC L Rev 683 – 712 Josh Friedman.

Court Notices & Practice Directions

Court of King’s Bench

Notices

• • • • April 30, 2024 – Hearing of Civil Motions During Summer Court Sessions

Provincial Court

Notices

• • • • April 22, 2024 – St. Martin (Dauphin Centre)

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 49 Issue 1

Public Health Crisis Management and Criminal Liability of Governments: A Comparative Study of the COVID-19 Pandemic. Edited by Michael Bohlander,
Gerhard Kemp & Mark Webster. New York: Bloomsbury, 2023. xii, 368 p. Includes preface, list of contributors, abbreviations, and index. ISBN 9781509946310 (hardcover) $180.95; ISBN 9781509946327 (ePUB) $162.85; ISBN 9781509946334 (PDF) $162.85.

Reviewed By
Danielle Noonan
MLIS Graduate
University of Western Ontario

“Public Health Crisis Management and Criminal Liability of Governments opens with Jean Edmond Cyrus Rostand’s famous quotation from his 1938 book Thoughts of a Biologist: “Kill one man, and you are a murderer. Kill millions of men, and you are a conqueror. Kill them all, and you are a God.” This quotation is ultimately about power and privilege, and Public Health Crisis Management and Criminal Liability of Governments examines the ways in which various governments possessed and exercised their powers and privileges in the context of the COVID-19 pandemic. While an ordinary person faced penalties if they breached COVID-19 restrictions, this book asks the question of what penalties or sanctions governments might face.

…

Ultimately, legal practitioners or researchers may wish to consult this book for the abundance of information and resources cited. As the only text of its kind, Public Health Crisis Management and Criminal Liability of Governments serves as an introductory global comparative law treatise on COVID-19 responses and the criminal liability of governments.”

Click here for the full review

Events

Upcoming Events

Substantive Law

Civil Litigation

Romana v. Canadian Broadcasting Corporation, 2024 MBCA 30: Motion for extension of time to perfect appeal, under Rule 42 of the Court of Appeal Rules, as well as a motion under Rule 17(2) restricting the evidence to be transcribed. Plaintiff sued the defendant in defamation over a 2014 investigative report that was published on television, radio and the internet. Rule 16(1) requires the appellant to file a transcript of evidence, unless a judge orders otherwise. Cost of a transcript is in the range of $20,000 which is more than the plaintiff can afford. Turner, J. found that a full transcript was necessary since the appellant had over 30 grounds of appeal. Review of factors to consider when determining if there has been a continuous intention to appeal, as set out by Mainella, J. in Penner v. Montcalm, (Rural Municipality), 2020 MBCA 97. Motion for extension of time allowed, and order requiring submission of electronic transcripts only to perfect the appeal.

Polischuk v. The City of Winnipeg, 2024 MBKB 60: Plaintiff sues for loss of income based on misfeasance in public office, causing loss by unlawful means, and breach of a common-law duty of procedural fairness. Plaintiff, a subcontractor to the City, was banned from performing any City work due to an untrue allegation. Leading decision is Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 30. Martin, J. found that this misfeasance claim failed on three distinct and essential elements (para. 52). As the matter is bound in private contract law, there are no public law duties. No claims for liability pled apply, so matter dismissed. Provisional damages are assessed.

Peters v. Kalvandi et al., 2024 MBKB 58: Applicant seeks leave to commence an action against respondents in relation to the performance of a root canal. Application was begun under s.14(1) of The Limitations of Actions Act. Limitation period is found at s. 44 of The Dental Association Act, both since repealed. Applicant is successful at demonstrating that knowledge of the facts was within the limitation period, but did not present evidence of a prima facie case. Application dismissed.

Mathias Colomb Cree Nation v. Saskatchewan Power Corporation et al, 2024 MBKB 54: Motion by defendant to dismiss for delay, similar to 2024 MBKB 53. Claim seeks damages from the alleged ongoing flooding of traditional lands of the plaintiff. Statement of claim filed on February 22, 2018. No action on file since plaintiff agreed to extend the time for SPC to file its defence in March 2018. Motion dismissed.

Mathias Colomb Cree Nation et al v. Saskatchewan Power Corporation et al, 2024 MBKB 53: Motion by defendant to dismiss for delay pursuant to King’s Bench rules 24.01 and 24.02 (similar motion released concurrently as 2024 MBKB 54). Original statement of claim was filed in 1992. Formal settlement discussions began in 1994, with an agreement in writing to hold the matter in abeyance during the discussions. Review of timeline of activities on the file. Senior Associate Judge Clearwater first considers Rule 24.02, the long delay rule. Leading authority is Buhr v. Buhr, 2021 MBCA 63. Action should consider under Rule 24.02. Next analysis is Rule 24.01, which is discretionary. Leading case is The Workers Compensation Board v. Ali, 2020 MBCA 122, fuForther summarized in Forsythe v. Castelane, 2023 MBKB 18. Motion dismissed in respect to both rules.

Frontline Freight Systems v. Manitoba (Director of Companies Office), 2024 MBKB 49: Judicial review of a decision of the Director of the Companies’ Office regarding the corporate name registration of Frontline Logistics Limited. Both companies serve similar customers, in the same geographical area, and are located in the same geographical area. Key issue is whether the process the Director employed violates the principle of procedural fairness and if the decision is patently reasonable. Counsel cite instances where customers billed one company for services rendered to the other company. Review of caselaw considering similar-named companies. Lanchbery, J. found the decision of the Director was unreasonable.

Mitchell Rose. Ontario’s court rules arbitrator not free to ignore contract law, judge’s instructions. Law360 Canada, 7 May 2024, viewed 9 May 2024. Comment re Eyelet Investment Corp. (c.o.b. Treasure Hill Homes) v. Song, 2024 ONSC 2340.

The decision describes a multiyear saga of a domestic commercial arbitration “gone wrong” after an arbitrator applied his own legal principles and then disregarded a lower court ruling overturning one of his awards. It is essential reading for litigators and arbitrators.

R. v. Edwards, 2024 SCC 15: Challenge to the statutory requirement that the military judges presiding over a courts martial be officers, alleging that it violates the right to a hearing by an independent and impartial tribunal under s.11(3) of the Charter. Appeals dismissed, Karakatsanis J. dissenting. Per Wagner C.J. and Côté, Rowe, Kasirer, Jamal and O’Bonsawin JJ.:

 [4] Charged with service offences under military law, the appellants allege that the statutory requirement that the judges presiding over their courts martial be officers violates s. 11(d). Their divided loyalties as judge and officer are said to deflect military judges from a proper exercise of their judicial duties and leaves them vulnerable to pressure from the chain of command. The appellants say that there is no practical rationale for the requirement that military judges be officers. They argue that the law as it stands is unconstitutional in that it deprives the accused of their right to a trial before a truly independent and impartial judge. Insofar as ss. 165.21 and 165.24(2) of the NDA require military judges to be military officers, the appellants call on the Court to declare those provisions of no force or effect under s. 52 the Constitution Act, 1982.

…

[14] Within the bounds of the Constitution, Parliament is of course free to enact another system for military justice, but that policy choice does not fall to the courts. There may indeed be different or even better models for judging offences in the military than what is currently set forth in the NDA that also rest on a proper disciplinary rationale and also meet the strictures of s. 11(d). That is not the question before us and, it is fair to say, is not a question that this Court is institutionally designed to answer. Replacing Canada’s system of military justice with a model used in other countries as the appellants propose would require close study to determine the extent to which foreign approaches could serve as a model for Canada. Courts are not equipped to do that work, nor is it their proper constitutional role. Instead, this Court is called upon to decide whether the regime that existed at the relevant times is constitutionally compliant. I conclude that it is.

[15] In sum, s. 11(d) of the Charter does not dictate a particular model of military justice nor does it require that only civilian judges preside over trials for service offences such as the offences relevant to these appeals. The Constitution allows Parliament a measure of choice in the design of justice before courts martial and does not require that military justice be exactly identical to its civilian counterpart. In my respectful view, the requirement that military judges be officers pursuant to ss. 165.21 and 165.24(2) of the NDA does not fall afoul of s. 11(d). I propose that the appeals be dismissed.

Shot Both Sides v. Canada, 2024 SCC 12: Treaty No. 7 established the Blood Tribe Reserve No. 148 in 1877. Blood Tribe First Nation has long claimed that the size of the reserve did not respect the treaty land entitlement formula (TLE). In 1971 a researcher confirmed the correct size of the reserve. The Blood Tribe formally sought to negotiate with the Minister of Indian Affairs, who rejected its claim. Court action was brought in 1980, but was dismissed except for the TLE, concluding that the conduct of the Crown was unconscionable. Although the claim was discoverable in 1971, the enactment of s.35 of the Constitiution Act created a new cause of action for treaties. FCA allowed Crown’s appeal and held that the TLE was statute-barred. SCC: Appeal should be held in part and a declaration issued. Wagner C.J. and Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ:

 [1] Treaties between the Crown and Indigenous peoples are fundamental to Canada’s history and constitutional landscape. The promises and obligations enshrined in these fundamental agreements reflect a lasting commitment to maintaining a just relationship between the Crown and Indigenous peoples and were intended to be honoured by the Crown “so long as the sun rises and the river flows” (Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship (1996), at pp. 18-19, citing R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118 (C.A.), at p. 124, per Lord Denning).

…

[4] This appeal concerns whether the Blood Tribe’s TLE claim is barred by the six-year limitation period in Alberta’s Limitation of Actions Act. This inquiry turns on a narrow question: whether the breach of the TLE was actionable in Canadian courts prior to the coming into force of s. 35(1) of the Constitution Act, 1982. The Blood Tribe argues that their claim cannot be statute-barred under Alberta’s Limitation of Actions Act and the Federal Courts Act prior to there being a recognized action in law, which they allege was not the case for breach of treaty claims until the coming into force of s. 35(1). The constitutional applicability and operability of Alberta’s Limitation of Actions Act, as incorporated into federal law by s. 39(1) of the Federal Courts Act, is not at issue.

[5]  For the reasons that follow, I would allow the appeal in part. The Federal Court of Appeal correctly held that the coming into force of s. 35(1) of the Constitution Act, 1982 did not alter the commencement of the limitation period applicable to the Blood Tribe’s TLE claim. Treaty rights flow from the treaty, not the Constitution. It is well established in Canadian caselaw that treaties are enforceable upon execution and give rise to actionable duties under the common law. As the Federal Court of Appeal concluded, the Blood Tribe’s claim is thus statute-barred. However, I find that declaratory relief is warranted given the longevity and magnitude of the Crown’s dishonourable conduct towards the Blood Tribe. Declaratory relief in this context will promote reconciliation and help to restore the nation-to-nation relationship between the Blood Tribe and the Crown.

Constitutional Forum, Vol. 32, No. 3: Entire issue is on the Notwithstanding Clause:

•  Carissima Mathen. Federalism and the Notwithstanding Clause
• Gregoire Webber. The Notwithstanding Clause and the Precedent in Ford: le dit et le non-dit
• Hoi Kong: Overturning Ford
• Eric M. Adams. Ford Focus: Constitutional Context and the Notwithstanding Clause
• Vrinda Narain, Margot Young. Notwithstanding Minority Rights: A Canadian Democratic Failure.
• Richard Mailey, Ian Peach. Weaving Section 33 into the Charter Project: Citizen-led Oversight as a Potential Way Out of the Legitimacy Conundrum.

Criminal Law

R. v. R.P.C, 2024 MBKB 59: Appeal from summary convictions of two counts of sexual assault. Accused argues trial judge erred in refusing to grant an adjournment so that the accused could submit fresh evidence, and ineffective assistance of counsel. Post-conviction and before sentencing, accused produced a screenshot of a Facebook message sent to his brother, purportedly from the complainant. The message indicated the complainant was lying. Discussion of the authenticity and admissibility of the message. Inness, J. found the evidence was not admissible; appeal dismissed.

R. v. R.N.E., 2024 MBKB 55: Application under s.278.93 of the Criminal Code for the defence to introduce evidence of the complainant’s sexual history relating to the complainant’s HIV status. Defence has satisfied the first stage of the application. Defence wishes to ask complainant when she informed the accused she was HIV positive. Accused says he didn’t know the complainant was HIV positive until he was diagnosed with HIV. Review of the criteria for admission of evidence other than relating to the activity giving rise to the charge. Application granted.

R. v. Collins, 2024 MBKB 50: Appeal by the Crown of acquittal for impaired driving. Crown appeals on grounds the trial judge erred by excluding the Certificate of Analysis; by not allowing an adjournment so the Crown could produce a copy; and by not conducting a full s. 24(2) analysis. Review of procedure Crown must follow in a s.320.32 prosecution. Deference owed to the factual finding of the trial judge; appeal dismissed.

R. v. Ramsay, 2024 MBPC 35: Decision on voir dire re whether accused’s statement was voluntary and can be admitted. Review of the actions leading up to and following accused’s arrest and detention. Carlson, P.J. found her Charter s. 10(b) rights were breached on three different occasions, as well as s.7 Charter rights. Analysis to determine if evidence should be excluded pursuant to s. 24(2), as per R. v. Grant, 2009 SCC 32. Statement excluded.

R. v. Kasprick, 2024 MBPC 31: Voir dire to determine whether an experienced police officer’s observations go from a hunch or suspicion to reasonable grounds for arrest. Officers were conducting a traffic stop in full uniform and a marked police car. They were monitoring a particular intersection. They noticed accused drive his vehicle through a stop sign so they followed him and pulled in behind him. One officer remained in their vehicle to look up the registration, and found it was uninsured. Discussion of allegations of ss. 8 and 9 Charter breaches. Motion dismissed.         

R. v. Tretiak, 2024 MBPC 30: Sentencing where accused was convicted of one count of possession of child pornography. Crown seeks imprisonment of two and a half years; defence requests a conditional sentence order of two years less a day followed by supervised probation. Offender is now 73 years old. As a result of these charges, he was forced to retired from his position at a manufacturing company. Accused applies for reduced sentence under section 24(1) of the Charter. Review of appropriate sentences available for this offence, and whether a CSO is appropriate. Accused is sentenced to two years’ less a day in a provincial institution.

R. v. Klyne, 2024 MBPC 26: Sentencing decision where accused pled guilty to one count sexual interference, by agreement that the facts relating to two attacks would be placed before the sentencing judge. Presentence Report with a Gladue component was ordered by the Court. Accused was 21 at the time of the offence; complainant was 14. Impact on complainant was severe – it aggravated her mental health issues, brought on an eating disorder and changed how she regards men. According to the PSR, the offender is considered at a high risk to reoffend. Review of caselaw on sentencing. After sentencing submissions were complete, Court of Appeal released R. v. Hiebert, 2024 MBCA 26, a Crown sentence appeal. Bayly, P.J. also considers R. v. Friesen, 2020 SCC 9 in ordering a sentence of 8 years.

R. v. Parikh, 2024 MBPC 25: Accused is on trial for sexual offences relating to two teenage girls. No issue with identify; accused’s defence is that he thought they were 18 and 19 when they were actually 13 and 14, and that all the sexual activity was consensual. Complainants were living in a group home at the time of the offence. Complainants asked the accused to buy them liquor; he thought he was buying them liquor and expecting to have sex with one of them. Accused testified; consideration of the factors in W.(D). Legal age for consent to sexual activity is 16; consent is not a legal defence for those under this age. Devine, P.J. found no air of reality that the accused could have believed the complainants were 18 and 19, and he did not take steps to ascertain their true age. Accused is convicted of two counts of sexual assault, two counts of sexual interference, one count of invitation to sexual touching and one count of luring, as well as giving liquor to a person under 18.

R. v. QT, 2024 MBPC 24: Accused is charged as a youth with sexual assault and incest for incidents involving his sister. She will be called as a witness. The Crown is asking the Court to allow her to testify via closed circuit television (CCTV) from another room in the courthouse, rather than behind a screen in the same courtroom as the accused. Defence opposes the motion. Complainant struggles with her mental health, and Crown is concerned she may not testify or testify fully if she has to give evidence in a room full of people. Hewitt-Michta, P.J. found that there is an evidentiary foundation to warrant allowing the complainant to testify via CCTV.

R. v. Williams, 2024 MBPC 23: Sentence after conviction by trial of various offences, including car-jacking, robbery with an imitation firearm, and violating curfew. Crown is seeking three years, less remand custody; defence requests two and a half years, less remand custody and further reduced by presentence custody. Issue of extremely harsh conditions accused faced by spending his time in remand at a high-security unit in Milner Ridge Correctional Centre. Devine, P.J. gave a detailed review of the Impact of Race and Culture Assessment (IRCA) report prepared for the accused as well as the effect of being detained in a unit for violent offenders. Discussion of challenges facing Corrections in placing offenders. Victim was highly affected by the offence, as he was unaware the firearm wasn’t real. Mitigating and aggravating factors led to a sentence of 25 months for robbery with an imitation firearm, and all other sentences concurrent, as well as credit for remand custody.

Taylor Tallent. A Judicially Nourished Provision: Has Section 96 Once Again become a Barrier to Justice? (2024) 29 Appeal 63.

 The law recognizes through section 16 of the Criminal Code that, in exceptional circumstances, a person may be incapable of possessing the knowledge or intent of wrongdoing necessary to ground criminal liability by reason of mental disorder. For three decades, the Supreme Court of Canada’s decision in R. v. Oommen has been the leading case on when the section 16 defence applies, such that an accused may be deemed not criminally responsible on account of mental disorder. This article examines a recently emerging divide in the application of section 16 and Oommen among Canadian courts that narrows the class of accuseds who may succeed in raising the defence. 

Cristin Schmitz. SCC Clarifies Judges’ Duty to Inform Accused of Right to Trial in Accused’s Chosen Official Language. Law360 Canada, 3 May 2024, viewed 9 May 2024.

Family Law

Delichte v. Rogers, 2024 MBCA 31: Appeal re elevated costs order for breaching conditions of a previous contempt order. This is a high-conflict, twenty year long family proceeding. Contempt order resulted from the petitioner (appellant) refusing to provide information to the respondent concerning their children. The order also directed the petitioner to pay solicitor and client costs to the respondent, which are still unpaid. This appeal arises from a 2022 order, made in response by the respondent to enforce the contempt order. Judge’s order reflected the finding that grounds for incarceration existed and signalled the Court’s disapproval of the petitioner’s disrespect for the institution. Judge also considered whether the issue was moot, as the child had reached adulthood by this time. Appeal dismissed.

Hedley v. Konecny, 2024 MBKB 57: Reasons for decision relating to a motion brought by the respondent for various relief. These reasons deal solely with respondent’s parenting time pending trial in December 2024. Petitioner lives in Manitoba; respondent lives in Ontario. He requests more time with the child than the petitioner has been willing to agree to. The parties have two particular aspects of the current parenting arrangement that they cannot agree on. Thomson, J. considers best interest of the child in adjudicating these points.

Hudson v. Hudson, 2024 MBKB 52: Family Property Act reference. Most significant issue to be determined is the appreciation in value of farmland pre-acquired by the respondent. Report does not reflect a comprehensive accounting of all assets and liabilities nor does it reflect an equalization payment.

V.J.H., also known as V.J.P. v. L.J.H., 2024 MBKB 51: Trial under the Divorce Act relating to parenting arrangements and retrospective and prospective child support. Petitioner sought majority of parenting time and final decision-making authority; respondent wanted to relocate the children to his community and have the majority of parenting time and final decision-making authority, unless the petitioner moved her residence closer to his (parties reside a couple of hours away from each other). Consideration of decision of MIrwaldt, J. in D.A. v. C.C., 2024 MBKB 37 at para. 74 regarding considering relocation first. MacPhail, J. found the respondent subjected the petitioner to family violence as defined in the Divorce Act. She sets out a detailed parenting order in the decision. Petitioner is a salaried employee, so her income is readily determined. Respondent has farming income as well as other income from the sale of real property. Petitioner asks the court to impute income to determine child support. Child support ordered.

Kristy Warren, Roslyn M. Tsao. A Roadmap for Unjust Enrichment and Resulting Trust Claims (Yes, They are Different). (2024) 42 C.F.L.Q. 247. (Available on Westlaw Canada; LSM members may request a copy.)

In Ontario, the Family Law Act, R.S.O. 1990, c. F.3, sets out the framework for the division of property between married spouses on the breakdown of marriage. For unmarried spouses, the common law remains the only option for the division of property, and the main legal mechanisms available to parties and courts are unjust enrichment and resulting trust claims.

While these claims are available to married spouses as well, they are more likely to arise and, at least with respect to unjust enrichment claims, more likely to succeed in cases involving unmarried spouses.

Wanda Wiegers. The Intersection of Child Protection and Family Law Systems in Cases of Domestic Violence. (2023) 35-1 C.J.F.L. 183.

Both the child protection and the family law systems are intended to promote the best interests of children, and both can profoundly affect the relationships between children and their parents or caregivers. Over the past two decades, both systems have also accorded more weight in the assessment of best interests to how exposure to domestic violence can harm or place children at risk. However, these systems have evolved differently, are governed by different statutes, and are administered in different ways. Child protection proceedings purport to have primarily a protective function and invariably involve a public agency, while family law proceedings, under the Divorce Act and similar provincial and territorial statutes, typically involve disputes between private litigants. In this article, I compare the impact of the two systems in cases involving allegations of domestic violence, highlighting the challenges within each, the differences between them in their identification and response to domestic violence, as well as the problematic ways in which the systems interact and generate contradictory pressures for survivors, most often mothers.

Wills, Trusts, and Estates

Black-Donaldson et al. v. The Estate of Helen Small, 2024 MBKB 56: Issue of poor will drafting. Applicants challenge executor over distribution of deceased’s estate. Deceased was widowed, had not children of her own but several nieces and nephews and their children. Long time family friend (executor) received the bulk of her over $2,000,000 estate. Rempel, J. found lawyers who drafted her will did not take adequate notes or make sufficient enquires of her estate. Will and codicil declared invalid and application for rectification dismissed.

Joel Nitikman. What is the Remedy for Rescission of a Sale of Property: Constructive Trust? Resulting Trust? No Trust? 43-2 ETPJ 169. (LSM members may request a copy.)

Legislation

Federal

Recent Votes

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Provincial

Current Bills    |    Bill Status

New Regulations