Delichte v. Rogers, 2015 MBQB 74

• Judge: Little, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 07, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 74;(2015), 317 Man.R.(2d) 186 (QBFD)

Delichte v. Rogers (2015), 317 Man.R.(2d) 186 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.024

Karyn Lynne Delichte (petitioner) v. Brendan Noel Rogers (respondent)

(FD 04-01-73022; 2015 MBQB 74)

Indexed As: Delichte v. Rogers

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Little, J.

May 7, 2015.

Summary:

Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control. The father was required to pay private school tuition of $20,545 and to pay his proportionate share of the cost of the children's extracurricular activities as an extraordinary expense under s. 7 of the Federal Child Support Guidelines. The daughter (born 1997) attended private school from age 4 and the son (born 2001) attended private school from age 5. In 2011, the mother was allowed to relocate with the children to California, where she enrolled them in a private school. A motion judge was asked to determine what the extraordinary expenses were from July 2011 and what the father's continuing contribution should be. The motion judge terminated the payment of any private school tuition fees, effective July 2011, and terminated all contribution by the father to the payment of extracurricular expenses. The mother appealed.

The Manitoba Court of Appeal, in a decision reported at (2013), 299 Man.R.(2d) 269; 590 W.A.C. 269, allowed the mother's appeal in part, ordering the father to continue to pay the amount previously ordered ($20,545) for private school tuition, effective July 2011. With the reinstatement, the court found that the accumulated arrears were $49,651.19. The father was ordered to pay those at the rate of $500 per month. After the appeal hearing, but before judgment was rendered, the mother brought a motion (the first motion), seeking, inter alia, to vary the amount of income imputed to her; to vary the finding of the father's income and with that the applicable Guidelines amount of support for the years 2007, 2008 and 2009; to vary s. 7 expenses retroactively; to vary the 85/15 apportionment of s. 7 expenses; and to order the father to pay ongoing s. 7 expenses in lump sum amounts. After the appeal judgment was rendered, the mother brought a second motion seeking to accelerate the rate at which the father was to pay the accumulated arrears of the children's private school tuition.

The Manitoba Court of Queen's Bench, Family Division, denied the mother's first motion, except for one variation, and granted the mother's second motion. The full balance of the accumulated arrears of private school tuition was ordered payable forthwith. The father was ordered to pay costs of an abandoned motion of $2,500. The mother was ordered to pay costs of the first motion of $3,500. The father was ordered to pay costs of the second motion of $2,500.

Editor's Note: For related decisions regarding these parties, see (2008), 227 Man.R.(2d) 118; (2008), 234 Man.R.(2d) 72; (2011), 268 Man.R.(2d) 77; 520 W.A.C. 77; and (2013), 290 Man.R.(2d) 210.

Bankruptcy - Topic 427.2

Property of bankrupt - Particular property - Judgments - [See Family Law - Topic 4185.1 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See first Family Law - Topic 4045.4 ].

Estoppel - Topic 394

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In family law cases - [See first Family Law - Topic 4045.4 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control - In 2013, the mother sought to vary the finding of the father's income and with that the applicable Guidelines amount of support for the years 2007, 2008 and 2009 - The father assigned into bankruptcy in 2009 - The mother asserted that she had not been provided with annual financial disclosure for the years 2007 to 2009 until a 2010 relocation trial - The father asserted that the delay in bringing the motion was not explained and that, barring any blameworthy conduct, retroactivity could not be considered for a period greater than the three years prior to the effective notice - The Manitoba Court of Queen's Bench, Family Division, rejected the father's position - The mother had first moved for retroactive child support for the period in question in April 2011 - Less formal notice had likely been given earlier - Undue delay was not a basis for denying the motion - Not all of the delay was the mother's fault - Further, there was blameworthy conduct by the father in addition to a misrepresentation made to the court - See paragraphs 64 to 88.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control - By agreement, the father's income was set at $280,000, resulting in child support payable of $3,442 per month - The father assigned into bankruptcy in 2009 - In 2013, the mother sought to vary the finding of the father's income and with that the applicable Guidelines amount of support for the years 2007, 2008 and 2009 - The mother asserted that she had not been provided with annual financial disclosure for the years 2007 to 2009 until a 2010 relocation trial - The Manitoba Court of Queen's Bench, Family Division, denied the claim for retroactive child support - On an examination of the father's income available for child support, based on his line 150 income from his yearly tax returns, there had been a notional overpayment of support of $7,400 - See paragraphs 89 to 107.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation of - Jurisdiction - [See third Family Law - Topic 4045.4 and Family Law - Topic 4045.5 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control - The father was required to pay for hockey and dance lessons and private school tuition of $20,545 as extraordinary expenses under s. 7 of the Federal Child Support Guidelines - In 2011, the mother was allowed to relocate with the children to California, where she enrolled them in a private school - A motion judge terminated the payment of any private school tuition fees, effective July 2011 - The Court of Appeal allowed the mother's appeal, ordering the father to continue to pay the tuition amount previously ordered ($20,545) - The mother sought to retroactively vary s. 7 expenses to 2007 based on expenses actually incurred, including for items such as school uniforms, voice lessons, orthodontics, school trips, etc. - The Manitoba Court of Queen's Bench, Family Division, denied the motion - The motion was an abuse of process to the extent that it sought a review for the period since July 2011, which was the period covered by the Court of Appeal reasons - Issue estoppel applied - The court had not imposed an obligation on the father to contribute proportionately to the actual tuition fees or to contribute to other expenses (e.g., hockey and dance) or otherwise - Further, there had also been delay and blameworthy conduct - Finally, to the extent that these expenses were being incurred when the 2007 order was consented to, the mother would have to establish a change in circumstances - See paragraphs 108 to 128.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control - The father was required to pay for hockey and dance lessons and private school tuition of $20,545 as extraordinary expenses under s. 7 of the Federal Child Support Guidelines - In 2011, the mother was allowed to relocate with the children to California, where she enrolled them in a private school - A motion judge terminated the payment of any private school tuition fees, effective July 2011 - The Court of Appeal allowed the mother's appeal, ordering the father to continue to pay the tuition amount previously ordered ($20,545) - The mother sought an order requiring the father to pay ongoing s. 7 expenses in lump sum amounts - The Manitoba Court of Queen's Bench, Family Division, denied the motion - The father's s. 7 expense contribution was capped at a reasonable amount and was limited to tuition only - This was because of the high cost of that single expense - Any application for future expenses had to not just be reasonable from an objective standpoint and be in the child's best interests, but also had to show the reasonableness of the expense and its necessity in relation to the means of the parties and of the child - See paragraphs 134 to 137.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control - The father was required to pay for private school tuition of $20,545 as an extraordinary expense under s. 7 of the Federal Child Support Guidelines - In 2011, the mother was allowed to relocate with the children to California, where she enrolled them in a private school - A motion judge terminated the payment of any private school tuition fees, effective July 2011 - The Court of Appeal allowed the mother's appeal, ordering the father to continue to pay the tuition amount previously ordered ($20,545) - With the reinstatement, the court found that the accumulated arrears were $49,651.19 - The father was ordered to pay those at the rate of $500 per month - The mother sought to accelerate the rate at which the father was to pay the accumulated arrears - The Manitoba Court of Queen's Bench, Family Division, granted the motion - The evidence suggested that the time afforded to the father to pay the arrears was no longer fit and just - If a change in circumstances was required, that was found in the father's discharge from bankruptcy in 2014 on making the required $25,000 lump sum payment - There were other changes as well - The mother was in significant arrears of the children's tuition and her own university fees - The father had added $143,000 to his pension and RRSPs since his bankruptcy - It was not fit and just that a person could enhance his retirement without meeting higher priorities to his children - The full balance of the arrears was ordered payable forthwith - See paragraphs 138 to 167.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines - Calculation or attribution of income - Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control - By agreement, the father's income was set at $280,000, resulting in child support payable of $3,442 per month - The mother's income was imputed to be $40,000 per year - At the time, she was enrolled in university with plans to attend graduate school - In two of the three years preceding the agreement, she had earned $42,000 to $43,000 - Subsequently, the mother relocated to California, where she continued her studies - She was in the U.S. on a student visa, which restricted her ability to earn income - The mother sought to vary, including retroactively, the amount of income imputed to her - The Manitoba Court of Queen's Bench, Family Division, denied the motion - The mother's greater financial need since her relocation did not constitute a relevant material change in circumstances, warranting a variation - It was the logical and foreseeable result of the decisions that she had made, including relocating to a jurisdiction where she could not earn an income - See paragraphs 46 to 63.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Changed circumstances - [See third Family Law - Topic 4045.4 and Family Law - Topic 4045.5 ].

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - [See third Family Law - Topic 4045.4 ].

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - Under a 2007 final order, the parties shared joint custody of their two children with the mother having primary care and control - The mother filed a number of motions - In April 2011, the father had moved for security for costs - In 2014, the motion was unilaterally abandoned before the hearing date - The mother sought costs of the abandoned motion - The Manitoba Court of Queen's Bench, Family Division, awarded the mother costs of $2,500 - Tactical motions had to have merit - When they lacked merit, they should be abandoned - This motion had been the subject of multiple adjournments, case conferences and expungement proceedings - The father properly, if belatedly, abandoned it - See paragraphs 168 to 176.

Family Law - Topic 4185.1

Divorce - Practice - Costs - Bankruptcy - The parties had engaged in extensive family litigation - The father assigned into bankruptcy in June 2009 and was discharged in March 2014 - Total costs awarded to the mother out of the litigation were $18,699.51 - All of those orders post-dated the father's bankruptcy and remained outstanding - The Manitoba Court of Queen's Bench, Family Division, indicated that, because judgments held by a bankrupt had been held to vest in the trustee, all costs orders made in favour of the father before his March 2014 discharge were no longer owed by the mother to the father, although they might be owed to the trustee - The mother owed the father $6,850 for costs orders made following his discharge - The difference was $11,849.51 in the mother's favour - The orders in favour of the father prior to his discharge were stayed - The stay order also bound the father's trustee in bankruptcy - See paragraphs 181 to 201.

Family Law - Topic 4195

Divorce - Practice - Judgments and orders - Variation of - [See third Family Law - Topic 4045.4 and Family Law - Topic 4045.5 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Family Law - Topic 4176 ].

Cases Noticed:

Chambers v. Chambers (2004), 188 Man.R.(2d) 283 (Q.B. Fam. Div.), refd to. [para. 8].

Dupuis v. Gladu (2002), 170 Man.R.(2d) 276; 285 W.A.C. 276; 2002 MBCA 174, refd to. [para. 8].

Kuzmicki v. Kuzmicki, [2007] Man.R.(2d) Uned. 3; 2007 MBCA 13, refd to. [para. 8].

Waters v. Waters (1986), 44 Man.R.(2d) 109 (C.A.), refd to. [para. 8].

Pelisek v. Pelisek (2003), 180 Man.R.(2d) 211; 310 W.A.C. 211; 2003 MBCA 145, refd to. [para. 19].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 21].

Felbel v. Felbel (2007), 217 Man.R.(2d) 158; 2007 MBQB 150 (Fam. Div.), refd to. [para. 21].

Donovan v. Donovan (2000), 150 Man.R.(2d) 116; 23 W.A.C. 116; 2000 MBCA 80, refd to. [para. 47].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 70].

Fillion v. Degen (2005), 195 Man.R.(2d) 2; 351 W.A.C. 2; 2005 MBCA 58, refd to. [para. 112].

Ritenburg v. Crown Trust Co. (1961), 33 D.L.R.(2d) 498 (Alta. T.D.), refd to. [para. 192].

Counsel:

K.L. Delichte, appearing on her own behalf;

Kelly Miller, for the respondent.

These motions were heard by Little, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on May 7, 2015.