J.C.K. v. P.G.B., 2014 MBQB 247

• Judge: Thomson, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 16, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBQB 247;(2014), 312 Man.R.(2d) 214 (QBFD)

J.C.K. v. P.G.B. (2014), 312 Man.R.(2d) 214 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JA.025

J.C.K. (petitioner) v. P.G.B. (respondent)

(FD 13-01-04829; 2014 MBQB 247)

Indexed As: J.C.K. v. P.G.B.

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Thomson, J.

December 16, 2014.

Summary:

Married parents of a 2.5 year old son separated in April 2013 after an incident that resulted in both being charged with assault. The mother remained in the family home with the child. In a proceeding under the Family Maintenance Act, the mother sought sole custody of the child or, alternatively, joint custody with primary care and control with the father having access or care and control only on a supervised basis at least until a parental capacity assessment was conducted. The mother also sought the imputation of income to the father for child support purposes. The father sought joint custody with shared parenting and a non-removal order.

The Manitoba Court of Queen's Bench, Family Division, ordered that the parties were to share joint custody with the mother having primary care and control. The court specified the father's unsupervised periods of care and control. The court declined to impute income to the father except for the period between June 2014 and November 2014. The mother's request for a parental assessment was dismissed. The father's request for a non-removal order was granted.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2023

Custody and access - Access - Supervised access - [See Family Law - Topic 2072 ].

Family Law - Topic 2035

Custody and access - Supplementary orders - Non-removal orders - [See Family Law - Topic 2072 ].

Family Law - Topic 2073

Custody and access - Joint custody - Considerations - [See Family Law - Topic 2072 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - Married parents of a 2.5 year old son separated in April 2013 after an incident that resulted in both being charged with assault - The mother remained in the family home with the child - In a proceeding under the Family Maintenance Act, the mother sought sole custody of the child or, alternatively, joint custody with primary care and control with the father having access or care and control only on a supervised basis at least until a parental capacity assessment was conducted - The father sought joint custody with shared parenting and a non-removal order - The Manitoba Court of Queen's Bench, Family Division, ordered that the parties were to share joint custody with the mother having primary care and control - The conflict between the parties was "not so fierce" as to preclude a joint custody order - The court specified the father's unsupervised periods of care and control - The father was no danger to the child - However, the child was still very young and well settled in the mother's care and the child had not spent a great deal of time with the father - These circumstances militated against a shared parenting regime - The mother had final decision-making authority, subject to meaningful consultation with the father - The mother's request for a parental assessment was dismissed - The mother's assertion that the father tended toward violence was not borne out by the facts - The father's request for a non-removal order was granted - See paragraphs 69 to 100 and 117 to 121.

Family Law - Topic 2076

Custody and access - Joint custody - Principal home - [See Family Law - Topic 2072 ].

Family Law - Topic 2079

Custody and access - Joint custody - Final decision-making authority - [See Family Law - Topic 2072 ].

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - [See Family Law - Topic 2072 ].

Family Law - Topic 2194

Custody and access - Practice - Order for physical or mental assessment of parent - [See Family Law - Topic 2072 ].

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - In May 2011, the father was suspended without pay from his position with the Department of National Defence (DND) after an incident with another employee - The parties separated in April 2013 - The father was officially dismissed from his position in January 2014 - His termination grievance was pending - At issue was whether an income equal to what the father had earned at the DND should be imputed to the father for child support purposes - The Manitoba Court of Queen's Bench, Family Division, declined to impute an income to the father based on his employment at the DND - Further, the court declined to impute an income to the father based on his securing a lower-paying position between May 2013 and April 2014, when he left that position - His decision to secure that job was eminently reasonable, given the circumstances - However, the court did impute income to the father for the period between June 2014 and his commencement of a new position in November 2014 - The purported shortage of work with the prior employer and the father's resulting unemployment in that period was not supported by any independent evidence - The fact that the father did obtain a new position in November 2014 did not persuade the court to overlook the gap in employment - See paragraphs 101 to 114.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See Family Law - Topic 2210 ].

Cases Noticed:

Best v. Revere (Paul) Life Insurance Co. (2000), 150 Man.R.(2d) 105; 230 W.A.C. 105; 2000 MBCA 81, refd to. [para. 54].

Baillie v. Middleton, [2012] O.T.C. Uned. 3728; 2012 ONSC 3728, refd to. [para. 56].

Authors and Works Noticed:

Payne, Julien D. and Payne, Marilyn A., Canadian Family Law (4th Ed. 2011), pp. 179, 180 [para. 48]; 475, 476 [para. 46].

Counsel:

Marcia L. Knight, for the petitioner;

Carla B. Paul, for the respondent.

This petition was heard by Thomson, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on December 16, 2014.