Gareau v. Gareau, (1998) 127 Man.R.(2d) 311 (QBFD)

• Judge: Duncan, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 12, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 127 Man.R.(2d) 311 (QBFD)

Gareau v. Gareau (1998), 127 Man.R.(2d) 311 (QBFD)

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. JN.037

Brenda Lee Marie Gareau (petitioner) v. David Joseph Edward Gareau (respondent)

(FD 96-01-44432)

Indexed As: Gareau v. Gareau

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Duncan, J.

June 12, 1998.

Summary:

A wife sought a divorce, custody of the three children of the marriage and child support.

The Manitoba Court of Queen's Bench, Family Division, granted the divorce, directed that the wife have custody of the children and set child support in accordance with the Federal Child Support Guidelines.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - A mother sought child support in accordance with the Feder­al Child Support Guidelines - The father was self-employed - His income tax returns showed income of $7,932.34, $5,754 and $6,718.75 for 1995, 1996 and 1997 respectively - The Manito­ba Court of Queen's Bench, Family Divi­sion, imputed the husband's 1997 farm income to be $23,600 and his 1997 back­hoe business income to be $22,500, which amounted to an income of $46,100 for the purpose of determining child support - The husband had unreasonably deducted expenses from income and had also paid $5,181.63 in salary, wages and benefits to his current partner with whom he was not dealing at arm's length - See paragraphs 38 to 46.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - The Manitoba Court of Queen's Bench, Family Division, stated that an argument could be made "that the court look at imputing income where a payor appears to have virtually no Guideline income but has substantial assets where there is no evi­dence that he or she received the assets by way of gift" - See paragraph 49.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - A mother sought child support in accordance with the Federal Child Sup­port Guidelines - After counsel for the husband closed her case she sought to invoke the undue hardship provision in s. 10 of the Guidelines - The Manitoba Court of Queen's Bench, Family Division, denied the request - The pretrial confer­ence memorandum provided that if there was to be such an application, the party seeking relief would provide appropriate documen­tation and calculations necessary to provide the basis for a claim - That was not done - Further, the Rules did not provide for an application under s. 10 - At the very least, there should have been notice to the other side and counsel should be required to identify the grounds upon which the claim would be advanced and complete and submit calculations based on financial disclosure by all members of each house­hold - See paragraphs 52 to 53.

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [para. 27].

Gunn v. Gunn (1994), 100 Man.R.(2d) 6; 91 W.A.C. 6; 10 R.F.L.(4th) 197 (C.A.), refd to. [para. 27].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 10 [para. 52].

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

Counsel:

Susan E. Elenduik and Paul R. Girdle­stone, for the petitioner;

Janice M. Dewar, for the respondent.

This matter was heard before Duncan, J., of the Manitoba Court of Queen's Bench, Family Division, who delivered the follow­ing judgment on June 12, 1998.