Andries v. Andries

• Jurisdiction: Manitoba
• Judge: Twaddle, Lyon and Monnin, JJ.A.
• Citation: (1998), 126 Man.R.(2d) 189 (CA),1998 CanLII 14093 (MB CA),159 DLR (4th) 665,[1998] 7 WWR 536,36 RFL (4th) 175,[1998] MJ No 196 (QL),126 Man R (2d) 189,167 WAC 189
• Court: Court of Appeal (Manitoba)
• Date: 09 January 1998

Andries v. Andries (1998), 126 Man.R.(2d) 189 (CA);

    167 W.A.C. 189

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. MY.013

Melodie Ann Andries (petitioner/respondent) v. Roderick George Andries (respondent/appellant)

(AI 97-30-03418)

Indexed As: Andries v. Andries

Manitoba Court of Appeal

Twaddle, Lyon and Monnin, JJ.A.

April 9, 1998.

Summary:

The parties agreed that the wife should have custody of their two daughters. The wife applied for child support in accordance with the Child Support Guidelines.

The Manitoba Court of Queen's Bench, in a decision reported at 119 Man.R.(2d) 224, determined the appropriate amount of child support, including an amount for extraordi­nary expenses. The court also awarded a retroactive lump sum payment to make up the difference between what the husband had been paying prior to the effective date of the Guidelines and the amount he would have been paying if the Guidelines had been in effect. The husband appealed.

The Manitoba Court of Appeal set aside the additional monthly payment for extra­ordinary expenses and reduced the lump sum award.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - A wife had custody of two children, aged 16 and 13, and received $300 monthly child support - The wife earned around $14,000 per year and the husband earned almost $44,000 - The wife sought child support in accordance with the Support Guidelines plus additional maintenance for health related expenses and extracurricular activities - The trial judge calculated the basic level of support at $587.15 per month and added $42.34 per month for extraordinary expenses - The trial judge also awarded a retroactive lump sum payment - The Manitoba Court of Appeal reduced the lump sum award, declining to apply the Guidelines retroac­tively and declining to award support prior to the commencement of the proceedings - See paragraphs 36 to 51.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support tables - A wife had custody of two children, aged 16 and 13, and received $300 month­ly child support - The wife earned around $14,000 per year and the husband earned almost $44,000 - The wife sought child support in accord­ance with the Support Guidelines plus additional maintenance for health related expenses and extracurricular activities - The trial judge calculated the basic level of support at $587.15 per month and added $42.34 per month for extraordinary expenses - The trial judge also awarded a retroactive lump sum pay­ment - The Manitoba Court of Appeal set aside the additional monthly payment for extraordi­nary expenses and reduced the lump sum, declining to apply the Guidelines retroac­tively - See paragraphs 10 to 51.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - The Manitoba Court of Appeal discussed the meaning of special or extraordinary expenses as found in s. 7 of the Federal Child Support Guidelines, SOR/97-175 - See paragraphs 10 to 35.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A wife had custody of two children, aged 16 and 13, and received $300 month­ly child support - The wife earned around $14,000 per year and the husband earned almost $44,000 - The wife sought child support in accordance with the Support Guidelines plus additional maintenance for health related expenses and extracurricular activities - The trial judge calculated the basic level of support at $587.15 per month and added $42.34 per month for extraordinary expenses - The trial judge also awarded a retroactive lump sum pay­ment - The Manitoba Court of Appeal set aside the additional monthly payment for extraordinary expenses on the basis that the expenses were not necessary and rea­son­able - See paragraphs 10 to 35.

Cases Noticed:

Middleton v. MacPherson (1997), 204 A.R. 37; 150 D.L.R.(4th) 519 (Q.B.), refd to. [para. 15].

Rains v. Rains, [1997] O.T.C. Uned. 378 (Gen. Div.), refd to. [para. 17].

Hansvall v. Hansvall (1997), 160 Sask.R. 201 (Q.B.), refd to. [para. 20].

E.K.R. v. G.A.W. (1998), 122 Man.R.(2d) 120 (Q.B. Fam. Div.), refd to. [para. 21].

Raftus v. Raftus (1998), 166 N.S.R.(2d) 179; 498 A.P.R. 179 (C.A.), refd to. [para. 21].

Moss v. Moss (1997), 159 Nfld. & P.E.I.R. 1; 492 A.P.R. 1 (Nfld. T.D.), refd to. [para. 25].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401; 66 D.L.R.(3d) 449, refd to. [para. 37].

Elliot v. Elliot (1993), 65 O.A.C. 241 (C.A.), refd to. [para. 39].

Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83 (C.A.), refd to. [para. 41].

Kowaluk v. Kowaluk (1996), 110 Man.R.(2d) 184; 118 W.A.C. 184 (C.A.), refd to. [para. 42].

Kloos v. Kloos (1996), 110 Man.R.(2d) 129; 118 W.A.C. 129 (C.A.), refd to. [para. 44].

Ambrose v. Ambrose (1990), 24 R.F.L.(3d) 353 (Man. C.A.), refd to. [para. 46].

Donald v. Donald (1991), 103 N.S.R.(2d) 322; 282 A.P.R. 322; 33 R.F.L.(3d) 196 (C.A.), refd to. [para. 47].

Steinhuebl v. Steinhuebl, [1970] 2 O.R. 683 (C.A.), refd to. [para. 47].

Dahl v. Dahl (1995), 178 A.R. 119; 110 W.A.C. 119 (C.A.), refd to. [para. 47].

Statutes Noticed:

Divorce Act Regulations (Can.), SOR/97-175, sect. 7 [para. 6].

Counsel:

P.L. Fraser, for the appellant;

J.D. Cram, for the respondent.

This appeal was heard on January 9, 1998, before Twaddle, Lyon and Monnin, JJ.A., of the Manitoba Court of Appeal. On April 9, 1998, Twaddle, J.A., delivered the following judgment for the court.