England v. Nguyen, 2015 MBQB 139
Judge | Johnston, J. |
Court | Court of Queen's Bench of Manitoba (Canada) |
Case Date | August 17, 2015 |
Jurisdiction | Manitoba |
Citations | 2015 MBQB 139;(2015), 320 Man.R.(2d) 206 (QBFD) |
England v. Nguyen (2015), 320 Man.R.(2d) 206 (QBFD)
MLB headnote and full text
Temp. Cite: [2015] Man.R.(2d) TBEd. SE.012
Donald Robert England (petitioner) v. Thi Kim Hoa Nguyen (respondent)
(FD 96-01-45356; 2015 MBQB 139)
Indexed As: England v. Nguyen
Manitoba Court of Queen's Bench
Family Division
Winnipeg Centre
Johnston, J.
August 17, 2015.
Summary:
The parties married in 1989, had two children who were born in 1990 and 1993, and separated in 1996. They had been engaged in "virtually continuous litigation" since then. Since November 2009, both children had been primarily residing with the husband and were attending post-secondary education. At issue on the husband's petition for divorce was the treatment of three debts, the return of certain items of personal property, occupation rent and the cancellation of arrears of child and spousal support.
The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2013), 295 Man.R.(2d) 208, determined the issues. The husband filed a re-amended petition for divorce. At issue was the division of family assets, pension division, directions regarding the distribution of net proceeds from the sale of the family home, costs and child support.
The Manitoba Court of Queen's Bench, Family Division, determined the issues.
Family Law - Topic 966
Husband and wife - Actions between husband and wife - Practice - Costs - [See Family Law - Topic 4175 ].
Family Law - Topic 3992
Divorce - Corollary relief - General - Delay in application - Effect of - [See Family Law - Topic 4001.1 ].
Family Law - Topic 3998
Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4001.1 ].
Family Law - Topic 4001.1
Divorce - Corollary relief - Maintenance awards - Retroactive awards - The parties were married in 1989, separated in 1996 and had been engaged in nearly continuous litigation since then - There were two children of the marriage, now ages 25 and 22 - Since November 2009, both children had resided with the father - Both were attending university - In a re-amended petition for divorce filed in February 2014, the father sought retroactive and ongoing child support - The Manitoba Court of Queen's Bench, Family Division, found that both children remained children of the marriage based on their reasonable plans for pursuing post-secondary education - While both parties had been well aware of the legal obligation to provide reasonable support for their children, the father's excuse for his delay in pursuing child support was reasonable - The mother's conduct was blameworthy - This included transferring RESPs into other forms of investments and resisting financial disclosure - The children had been significantly harmed by the mother's failure to fulfill her financial obligations - As the mother was entitled to a share of proceeds from the sale of the family home, there was no "hardship" argument - The mother was to pay retroactive support of $18,839.28 (as submitted by the father) with a cash reimbursement for the loss resulting from the transfer of the RESPs in the amount of $23,250 - In light of the children's ages, the duration of their educational pursuits, the mother's limited resources and the fact that there was no longer any relationship between the children and the mother, the mother was to have no ongoing child support obligation - See paragraphs 55 to 69.
Family Law - Topic 4006.2
Divorce - Corollary relief - Maintenance awards - Awards to children - Parent's obligation - [See Family Law - Topic 4001.1 ].
Family Law - Topic 4014
Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 4001.1 ].
Family Law - Topic 4175
Divorce - Corollary relief - Practice - Costs - General (incl. considerations) - The parties had been engaged in family litigation since 1997 - At issue in the third trial of the issues between the parties was costs - The husband asserted that he had been awarded costs in the cumulative value of $4,777 - There had been one award of $100 in favour of the wife - Accordingly, the husband sought collection of net costs of $4,677 - He also sought costs of the second trial of $4,500 and costs for two further days of trial and one interim motion - The Manitoba Court of Queen's Bench, Family Division, stated, "By way of disposition, this court accepts the accounting for previous outstanding costs awards in favour of the petitioner in the 'net' amount of $4,677. Costs normally follow success, and are ultimately discretionary for determination by the trial court. While the petitioner may have been more successful at the initial trial, the issues upon which he was unsuccessful did tend to unnecessarily lengthen and protract the proceedings. Accordingly, with respect to the second trial, it is determined that each party should bear their own costs. The petitioner is clearly entitled to his costs respecting the two additional trial days required, plus the contested interim motion for financial disclosure, in an amount to be factored into the ultimate equalization summary below" - See paragraphs 17 to 22.
Cases Noticed:
Mellway v. Mellway (2004), 187 Man.R.(2d) 247; 330 W.A.C. 247; 2004 MBCA 119, refd to. [para. 27].
Andries v. Andries (1998), 126 Man.R.(2d) 189; 167 W.A.C. 189 (C.A.), refd to. [para. 27].
D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 29].
Dickson v. Dickson (2011), 262 Man.R.(2d) 247; 507 W.A.C. 247; 2011 MBCA 26, refd to. [para. 29].
Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 35].
Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134 (C.A.), refd to. [para. 54].
Counsel:
Renée G.L. Howard, for the petitioner;
Jamie L. Turner, for the respondent.
This action was heard by Johnston, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on August 17, 2015.
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Kamer v. Ptashnik, 2019 MBQB 117
...for mortgage, taxes, utilities, insurance and upkeep pending any sale, this case has certain distinguishing facts (see England v. Nguyen, 2015 MBQB 139, 320 Man. R. (2d) 206). Firstly, the agreement to share the mortgage payments was a contractual obligation entered into after separation, a......
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England v Nguyen, 2017 MBCA 30
...(Respondent) Appellant ) February 27, 2017 On appeal from 2013 MBQB 196, 295 Man R (2d) 208; and 2015 MBQB 139, 320 ManR (2d) 206 MAINELLA JA (for the Court): [1] ......
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R.K.K. v. B.M.M., 2017 YKSC 35
...support of her proposition that C. had a proprietary interest in the RESP. Both are distinguishable. The first case is England v. Nguyen, 2015 MBQB 139 (“England”). The case has some similarities to the case at bar in that the respondent mother had withdrawn some RESPs because......
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Kamer v. Ptashnik, 2019 MBQB 117
...for mortgage, taxes, utilities, insurance and upkeep pending any sale, this case has certain distinguishing facts (see England v. Nguyen, 2015 MBQB 139, 320 Man. R. (2d) 206). Firstly, the agreement to share the mortgage payments was a contractual obligation entered into after separation, a......
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England v Nguyen, 2017 MBCA 30
...(Respondent) Appellant ) February 27, 2017 On appeal from 2013 MBQB 196, 295 Man R (2d) 208; and 2015 MBQB 139, 320 ManR (2d) 206 MAINELLA JA (for the Court): [1] ......
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R.K.K. v. B.M.M., 2017 YKSC 35
...support of her proposition that C. had a proprietary interest in the RESP. Both are distinguishable. The first case is England v. Nguyen, 2015 MBQB 139 (“England”). The case has some similarities to the case at bar in that the respondent mother had withdrawn some RESPs because......