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Family law

Apr 02
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Talking about private guardianships

By Family law

If you have found yourself in a position where you wish to take over the care of a child that is not
biologically your own, you may be wondering what does this mean for me, how do I protect the child,
and how do I legally establish my role as their guardian? The answer to that is often a private guardianship.

Private guardianship occurs when a non-biological parent, such as an aunt/uncle, grandparent, or close
family friend applies to the court for an Order of Guardianship of a minor child. This may occur for
numerous reasons, but some common reasons may be because the child has been apprehended from
their parents, the death of a parent, or perhaps a parent has expressed their inability to care for a child.
In these cases, a family member or friend may either be named as the appropriate guardian, or
someone may decide that they are willing and financially able to step up to this role.
Guardianship is unlike adoption as it does not legally terminate the biological parents’ rights over a
child, nor is it necessarily a permanent measure. Guardianship orders, unlike an adoption, can be set
aside in the future if circumstances change.

If you are anticipating becoming, or already are, the caregiver of a child, a guardianship application is an
important step, as it makes your role clear to others, creates certainty for your family and for the child,
and provides a legal basis for your position as the caregiver of the child. Taking this step may be required
by certain organizations, for instances Child and Family Services may request this if the child was
apprehended. Or, you may find that you need this document as evidence of your role in the child’s life,
for instance when traveling, attending medical appointments, enrolling the child in school, etc.
Although, the ultimate Order of Guardianship is not an overly complicated document, unfortunately the
steps to obtaining this Order can be somewhat confusing for the lay person, as it requires numerous
court documents and affidavits to be filed, service on multiple individuals and sometimes organizations
that have been involved with the child, and often at least one court appearance.

If you have found yourself in a position where you are considering guardianship, you may already be in
situation where you feel somewhat overwhelmed and uncertain about the circumstances. To help add a
bit more predictability in your life, Wolseley Law is now offering a flat rate for uncontested
guardianships.

Book your consult to learn more about this process and how we can help you.

Oct 23
Love0

Can you sue over shared nude photos?

By Family law, Litigation
The distribution of nude photos, legally known as intimate images, without consent is a distressing and violating experience. If you’re currently facing this situation, it’s only natural to feel betrayed, devastated, and uncertain about what steps to take to protect your privacy. So, can you sue for the nonconsensual distribution of intimate images in Canada? The clear and comforting answer is, absolutely, yes.


Consent Is Key


In the context of privacy laws, consent is paramount. Everyone has a right to control how, when, and where their personal information, including intimate images, is shared. Spreading intimate images without consent is not only ethically reprehensible, it’s also illegal in Canada. This form of so-called ‘revenge porn’ can have severe emotional, psychological, and social impacts on victims.

The Criminal Part


In 2014, Canada enacted Bill C-13, otherwise known as the Protecting Canadians from Online Crime Act. This bill criminalized the non-consensual distribution of intimate images. Punishable under the Canadian Criminal Code, individuals found guilty could face up to five years in prison.While criminal charges can give a sense of justice to victims, they may not address the emotional damage and personal trauma inflicted by such violations. Here is where the Canadian civil law can step in, allowing victims to seek damages—both compensatory and punitive—to help mitigate the aftermath of the nonconsensual distribution of intimate images. The Government’s page on it can be found here.

Constructing a Civil Case


In the civil context, the tort of ‘Intrusion Upon Seclusion,’ confirmed by the Ontario Court of Appeal in Jones v. Tsige (2012), plays a critical role. Although this case didn’t involve intimate images, it set a precedent by recognizing the claim for damages under instances of invasion of privacy. More recently, the Ontario Superior Court extended this tort to create a new one: ‘Public Disclosure of Embarrassing Private Facts.’ In Doe 464533 v. N.D. (2016), the claimant sought and was initially awarded damages in total of $141,708.03 after a default judgment for the nonconsensual distribution of intimate images, when the defendant refused to participate in the Court process (the default judgment was subsequently set aside after a motion by the defendant). Manitoba has passed specific legislation called The Intimate Image Protection Act that lays out specifically some of the supports available to people who have had their intimate images shared. It also sets out how those people can sue the ones who distributed them.
You don’t need to prove that there was any damage and it’s important to remember that you do not lose the right to sue just because you consented to the images being made at the time. 

Seeking Legal Help

If you find yourself in this heartrending situation, please know that you’re not alone. The emotional toll from these events can be overwhelming, and having an advocate to lean on during this time can be incredibly comforting. Most importantly, they will help ensure the legal process serves your best interest.Remember, laws are there to protect you. With your lawyer’s help, you can fight for your right to privacy, seek the justice you deserve, and take important steps toward healing.

Final Thoughts

In the face of such intimate violation, you might feel vulnerable and powerless. But rest assured, Canadian and Manitoba laws give you the right to fight back against the nonconsensual distribution of private images. This issue, and the harm it brings, is taken very seriously. With the right legal guidance, you can bring this to the court, seeking compensation for your suffering and, more importantly, reclaiming your sense of control and dignity.In closing, please remember two important facts – you are not alone, and you are not powerless. You have the law on your side, and we are here and willing to help you find your way through this challenging time.

May 26
Love0

Your Family Pet in Separation or Divorce: What about Rover?!

By Family law, Pets

Pets are part of the family! If you have a family pet, you can appreciate just how important they are in your life and your children’s lives. If you’re going through separation or divorce, then it’s likely that you’ll need to consider what will happen to your pet(s). In this article we’ll look at how we deal with the family pet in separation or divorce, and steps that you can take to ensure that your wishes regarding your pet are fulfilled.

Ownership

Canadian law views pets as property – just like an armchair, a vehicle, or a computer. This means they are subject to the same rules of property division upon a relationship breakdown. Therefore, The key issue to be determined by a judge is to identify which spouse owns the pet. This means considering who paid for the pet, and who pays for the majority of expenses. Or, if the pet was acquired before the relationship, this will be strong evidence to show that the pet will be excluded from family property and should remain with the spouse who originally purchased the pet.  It is also possible for a court to decide that a pet is jointly owned. This may mean that the court will order that one party buys the other party out, or if there are multiple pets, an order that each party keeps a pet.

However, the treatment of pets in the law does not appreciate the deep bonds that people build with their pets, and a property ownership approach leaves many pet owners feeling unsatisfied. In recent years, some provinces have shifted towards more holistic considerations, especially given that Covid-19 saw an upward shift in pet ownership. For instance, in British Columbia, judges are increasingly likely to consider what is in the best interest of the pet, such as who can dedicate more time to the pet, and whether the pet is bonded with another animal or human. There have also been proposed amendments to the British Columbia Family Law Act, that would consider more of the “relational aspects” of animals in the family. In Ontario, case law has also evolved, with judges looking at who has spent more time with the pet, including who takes the dog for walks, cares for the pet, buys the food, and accompanies the pet on vet visits. In some cases, Judges in Ontario have also considered the children’s attachment to a pet, and determined the pet schedule around where the kids are, whether that means the pet stays in one household, or changes households with the custody schedule. Decisions from other provinces can be persuasive considerations for judges here in Manitoba.

How can I protect my rights regarding the family pet?

While the law is shifting in a paw-sitive direction,  it remains that pets are property. Therefore, keeping documentation that can prove ownership and ongoing payments towards the pet’s care is very important. This includes things like the ownership papers, information on the pet license, vet bills, and bank statements.

It is also worth considering creating a “pet-nup”, detailing what contributions have been made for the pet and what will happen with the pet upon a relationship breakdown. These details can be included in a written cohabitation or prenuptial agreement.

If there is no cohabitation or prenuptial agreement already in place prior to separation, one of the simplest, and most common ways to ensure your interests are protected is through a written separation agreement. This will also help to avoid lengthy and costly court battles over the family pet in the future. These agreements will typically include things like visitation schedules, rules outlining how costs will be shared, and obligations regarding nutrition and health decisions.

If you are facing an immediate dilemma regarding the removal of your beloved pet from your care, there may also be other immediate relief available to you as well, such as an interim order of possession or a legal or equitable claim of ownership.

Whether you are simply looking to protect yourself in case of a future breakup, or are in the process of a separation, our family team is here to help you ensure that your beloved pet stays a part of your life!

A cat and dog snuggling at home
May 18
Love0

New Article: Relocation in the Context of Family Violence: A.J.K. v. J.P.B., 2022 MBQB 43

By Family law, Research Articles

One of our lawyers, Heidi Dyck, was asked to write an article for May 2023 bulletin of the Research and Education for Solutions to Violence and Abuse (RESOLVE) research network on relocation in the context of family violence.

 

Her article can be found here:

https://www.umanitoba.ca/sites/resolve/files/2023-05/RESOLVE%20Case%20Bulletin%20English%20Version%20May%202023.pdf

May 17
Love0

Legal Agreements Are Not Just For Separation: Cohabs, Prenups, Spousal Agreements

By Family law

If you’re in a relationship,  there’s a good chance that you’ve at least thought about getting a prenup or cohabitation agreement. After all, if you’ve made it to the point where you’re thinking about moving in together or getting married, then it’s likely that your future together is important to both of you. And while some couples may choose not to put their relationship on paper, having a legal agreement can make things easier if something goes wrong later on down the road. It’s also worth noting that any legal agreements between partners need not be limited solely to separation agreements and prenups—there are plenty of other types of agreements out there!

Cohabitation agreements are a way to protect your rights in the event of a breakup if you and your partner are living together. Cohabitation agreements can cover a range of issues, including property, debt and support. In Manitoba, you are considered common-law if you have been living together for three years or one year if you have a child together. In Manitoba, if a common-law couple separates, each partner is entitled to half of the family property, if there is not an agreement saying otherwise.

If you’re in a relationship and plan to get married, prenups can be an excellent way to protect your assets. A prenup is not just for the rich and famous!

If one partner has more money than another, or if one partner brings more property into the marriage than another does (such as an inheritance), then having this information written down before tying the knot may help avoid future misunderstandings or disagreements over who owns what if you get divorced. It can also help avoid a contentious legal battle if divorce occurs, because you’ve already agreed to certain things.

If you aren’t sure if an agreement of this kind is right for you, or you’re not sure what you would include, it’s always best to speak to a lawyer who is experienced in these issues. At Wolseley Law, we offer flat rates for these types of agreements. To get more information, or to schedule a consult with one of our lawyers to discuss it, please contact our office.

Oct 28
Love0

International Divorce Law under the Hague Convention

By Family law

Service is one of the important first steps in any legal matter and this is especially true in international divorce. When you commence a court proceeding, you are required to serve the opposing party to ensure that they receive the information about the case and have the opportunity to respond. Because of this, if you commence family court proceedings, your ex-spouse needs to be served. This applies even if you are only seeking a divorce and/or do not anticipate your ex-spouse to contest the proceedings.

So, how do you manage an international divorce if your ex-spouse lives in another country?

If the opposing party lives abroad, the manner of service will depend on a couple of factors.

For instance:
– What country does your ex-spouse live in?
– Do you know the address of your ex-spouse?

Depending on the country your ex-spouse lives in, they may have to be served through a special process outlined in the Hague Service Convention (the Convention). Countries that are party to the Convention must follow specific rules for service.

At present, there are 79 contracting countries to the Hague Convention in various countries all over the world, including:

  • Philippines
  • India
  • China
  • United States
  • Most of Europe
  • Others can be found here

Each contracting country designates a central authority to receive documents for service from other contracting countries. One of the requirements of the Convention is that a competent authority or judicial officer of that country forward the documents using special prescribed application forms. A lawyer is considered a competent authority for this process. As such, a non-lawyer cannot typically send these forms themselves.

What does the application include?

The application forms include a letter of request, a list and description of the documents to be served and a certificate of service for the foreign court to complete and return. Each country also has specific other requirements as well. For example, there may be a fee associated with the service or translation requirements. The Convention does not apply when the address of the person to be served is not known. However, there are other steps that a lawyer can assist you with, such as applying to the court for an order of subservice or the dispensing of the service requirement.

Once your court documents have been filed and served you can then proceed to finalize your family matter.

If you are looking to start a family proceeding against someone in another country; whether you have already filed your paperwork, and just need assistance with service, or are looking for a lawyer to help you complete the whole process, one of our family lawyers are here to help. Please contact us at 204-977-1706 to schedule a consult and learn more about the process and our fees or click here for more information.

 

Heidi Dyck is an associate at Wolseley Law LLP

May 15
Love0

Unbundled Services – A New Approach to an Old Problem

By Family law, Unbundled

Unbundled Legal Services – A New Approach to an Old Problem

By Katie Brownell

 

Over the last decade, more and more Manitobans have started representing themselves in their legal disputes. While this has typically been the case for small claims matters, self-representation is now approaching the 50% mark for family law matters, according to statistics collected by the Department of Justice and legal unbundled services is something that people are turning to for help.

You might choose to represent yourself for a number of reasons: you feel that you cannot afford a lawyer or you do not qualify for legal aid; you cannot find a lawyer; you have been unhappy with previous experiences; you do not trust the legal system or you believe that you can do the work yourself.

The most common reason motivating people to self-represent is that hiring a lawyer is too expensive. This is something that lawyers can help fix by offering services that the majority of people can afford. Instead of the traditional billable-hour model, where legal fees are charged on an hourly rate and the lawyer handles all aspects of the case, we are starting to offer unbundled, or limited scope, services. This is where you and your legal team make an agreement to limit the scope of the lawyer’s work on the file to specific, pre-agreed tasks. It is an option that falls between no representation and full representation.

According to the National Self-Represented Litigants Project, many self-represented clients find the process of handling their own legal matter to be overwhelming and uncertain. The unbundled model gives you access to a lawyer who can help alleviate your concerns without requiring you to provide a large retainer up front.

While the unbundled services don’t make sense for all matters or all people, it can be particularly helpful when you are representing yourself in a civil or family matter where there are many specific procedures and court rules that must be followed. The big challenge for most people isn’t the actual law, it is the procedure involved. Having a good argument or a worthwhile claim doesn’t mean much if you are not able to put it into a form the courts will accept.

The impact of family litigation can be lifelong; it can affect what kind of a relationship you will have with your children and how much money you will have to support them and yourself. Making a mistake at an early stage in the process can be difficult to fix later and fixing it can cost much more than doing the right thing in the first place.

In February of 2019, the court implemented a new model for family law matters that has resulted in changes to court forms and procedure. Under the new model, there is an emphasis on exchanging materials and information at an early stage so that families can attempt to negotiate or settle as many issues as possible without the involvement of the court. Given these recent changes, it is important to make sure that the initial documents you submit to the court and exchange with the other person are in the proper form and set out the issues you are hoping to have resolved.

Hiring a lawyer on an unbundled basis is a great way to set yourself up for success. Instead of providing a lawyer with a retainer and having them control the entire file, you can seek the lawyer’s advice or assistance on particular tasks such as preparing, filing and serving a Petition for Divorce or a Statement of Claim. You can also get legal advice on one specific issue or have a lawyer look over materials you receive from the opposing party. You and your lawyer can decide on a plan that best suits your case and your budget. Once you’ve gone to a lawyer for unbundled services, you can make an appointment to go back and get further advice as problems or questions arise, which can be helpful because that lawyer is already familiar with your file.

Hiring a lawyer may not always be necessary and sometimes may not be possible. Unbundled services are an affordable and accessible alternative to help you navigate the legal system during what can be a tough or confusing time.

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