Gunn v. Gunn, (1994) 100 Man.R.(2d) 6 (CA)

• Judge: Huband, Twaddle and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 23, 1994
• Jurisdiction: Manitoba
• Citations: (1994), 100 Man.R.(2d) 6 (CA)

Gunn v. Gunn (1994), 100 Man.R.(2d) 6 (CA);

    91 W.A.C. 6

MLB headnote and full text

Marguerite Alma Gunn (petitioner/respondent) v. Robert Todd Gunn (respondent/appellant)

(Suit No. AI 94-30-01905)

Indexed As: Gunn v. Gunn

Manitoba Court of Appeal

Huband, Twaddle and Kroft, JJ.A.

December 23, 1994.

Summary:

A mother was granted custody of her three children and the father was given access and ordered to pay $750 monthly child support with monthly summer payments of $500. The court suspended payment of arrears provided that the father paid the mother $100 per month until the arrears were retired. The father appealed.

The Manitoba Court of Appeal affirmed the granting of custody to the mother, but reduced the monthly child support to $600 with monthly summer payments of $300. The court continued the suspension of enforcement of arrears, but with no require­ment to pay. The court limited the duration of the access order to June 30, 1995.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare of child - Paramount - A trial judge identified the issue in a custody suit as the best interest of the children and concluded that there was no evidence to disentitle the mother from continuing to exercise primary care and control of the children - The Manitoba Court of Appeal concluded that the trial judge erred in approaching the issue from the perspective of the mother's entitlement - The sole question to be determined was the best interests of the children - The court affirmed the trial judge's conclusion where it was in the best interest of the children for the mother to have custody - See paragraphs 1 to 8.

Family Law - Topic 1991

Custody and access - Access - Consider­ations in awarding access - Welfare of child - A mother was granted custody of her three children, ages six, four and three - The father was granted access every third weekend - The access arrangements involved the children having two 4.5 hour car journeys - The Manitoba Court of Appeal expressed doubt that it was in the best interest of the children to travel for a total of nine hours in the space of two days on such a regular basis - The court concluded that the access order should be reviewed and imposed a limitation on the order's duration - See paragraphs 16 to 20.

Family Law - Topic 2012

Custody and access - Access - Access awards - Where husband and wife reside in different cities - [See Family Law - Topic 1991 ].

Family Law - Topic 2354

Maintenance of wives and children - Maintenance of children - Effect of spouse's subsequent relationships - [See first Family Law - Topic 2357 ].

Family Law - Topic 2357

Maintenance of wives and children - Maintenance of children - Considerations - A father appealed from an order requir­ing him to pay monthly support for his three children - He included in his list of expenses the full cost of accommodations, which were occupied by himself, his new partner and her three children, plus other costs of supporting the partner and her children - The Manitoba Court of Appeal stated that the father's first obligation was to his own children and that child support should not be reduced to enable him to support others.

Family Law - Topic 2357

Maintenance of wives and children - Maintenance of children - Considerations - [See Family Law - Topic 2360.1 ].

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award - A mother sought support for her three children - The father earned $1,700 monthly - To exercise access every third weekend, he drove two nine hour trips - The Manitoba Court of Appeal reduced the monthly child support payments to $600 with summer payments of $300 - The court suspended the enforcement of arrears - See paragraphs 9 to 14 - The court stated that access costs "... cannot be totally disregarded, but I think caution must be exercised in reducing the support obligation on account of them. Generous access, like shared custody, is an arrange­ment which is only made if it is beneficial to the children. It should not be an excuse for making it impossible for the other parent to provide adequately for the children" - See paragraph 12.

Cases Noticed:

Oldham v. King (1986), 44 Man.R.(2d) 90; 5 R.F.L.(3d) 220 (C.A.), refd to. [para. 12].

Statutes Noticed:

Court of Appeal Act, R.S.M. 1987, c. C-240; C.C.S.M., c. C-240, sect. 26(1), sect. 26(4) [para. 20].

Counsel:

L.A. Kroeker, for the appellant;

D.H. Stevenson, for the respondent.

This appeal was heard on December 15, 1994, before Huband, Twaddle and Kroft, JJ.A., of the Manitoba Court of Appeal.

On December 23, 1994, Twaddle, J.A., delivered the judgment for the Court of Appeal.