Donovan v. Donovan, (2000) 150 Man.R.(2d) 116 (CA)

• Judge: Helper, Kroft and Steel, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 22, 2000
• Jurisdiction: Manitoba
• Citations: (2000), 150 Man.R.(2d) 116 (CA);[2000] 10 WWR 214;[2000] MJ No 407 (QL);190 DLR (4th) 696;9 RFL (5th) 306;230 WAC 116;150 Man R (2d) 116;2000 MBCA 80

Donovan v. Donovan (2000), 150 Man.R.(2d) 116 (CA);

    230 W.A.C. 116

MLB headnote and full text

Temp. Cite: [2000] Man.R.(2d) TBEd. SE.010

Richard Joseph William Donovan (petitioner/appellant) v. Judy Rose Donovan (Lee) (respondent/respondent)

(AF 00-30-04487; 2000 MBCA 80)

Indexed As: Donovan v. Donovan

Manitoba Court of Appeal

Helper, Kroft and Steel, JJ.A.

June 22, 2000.

Summary:

A father was ordered to pay $200/month support for his child. The father elected early retirement from the police force and began pursuing a writing career. The father applied to vary the support order.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at 141 Man.R.(2d) 313, imputed income to the father and ordered him to pay $249/month child support. The father appealed.

The Manitoba Court of Appeal dismissed the appeal.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - The Manitoba Court of Appeal reviewed the law respecting imputing income under s. 19(1) of the Federal Child Support Guidelines and set out considerations relevant to determining whether to impute income - See paragraphs 13 to 21.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - Parents had joint custody of their child with equal time sharing - The father, a police officer, retired early because of "burn out" and to pursue scriptwriting - Scriptwriting had not yielded income - The father applied to reduce child support of $200/month - The motions judge held that regardless of a legitimate reason for retiring, there was no evidence that the father could not work at a different career - The judge imputed employment income of $36,400, for a total income of $63,682, and ordered the father to pay $249/month (the difference between the amounts under the Manitoba Guidelines that he and the mother would have to pay) - The Manitoba Court of Appeal affirmed the order - The father had to prove that his income reduction was reasonable - Given his obligation to earn according to his capacity, he could have provided evidence of either the likelihood of income resulting from screenwriting within a reasonable time or the possibility of alternative employment and remuner­ation - Given the lack of alternative evi­dence, it was appropriate to consider edu­cation, job history, skills, etc. and impute income accordingly.

Cases Noticed:

Strand v. Strand (1999), 246 A.R. 79; 50 R.F.L.(4th) 174 (Q.B.), refd to. [para. 16].

Martel v. Martel (2000), 193 Sask.R. 225 (F.L.D.), refd to. [para. 16].

Hanson v. Hanson, [1999] B.C.T.C. Uned. 688 (S.C.), refd to. [para. 17].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200; 166 D.L.R.(4th) 528 (C.A.), refd to. [para. 21].

Quintal v. Quintal (1997), 38 O.T.C. 68 (Gen. Div.), refd to. [para. 34].

Statutes Noticed:

Divorce Act Regulations, Federal Child Support Guidelines, SOR/97-175, sect. 19(1) [para. 14].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Authors and Works Noticed:

McLeod, J.G., Annotation to A. (D.L.) v. A. (J.T.) (1999), 45 R.F.L.(4th) 2, p. 5 [para. 13].

Payne, Julien D., Child Support in Canada (1999), generally [paras. 21, 28].

Counsel:

P.R. Girdlestone, for the appellant;

The respondent appeared in person.

Helper, Kroft and Steel, JJ.A., of the Manitoba Court of Appeal, heard and decided this appeal on June 22, 2000. Steel, J.A., delivered the following written reasons for the court on September 1, 2000.