Keown v. Mainer, (2015) 320 Man.R.(2d) 115 (QBFD)

• Judge: Johnston, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 05, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 320 Man.R.(2d) 115 (QBFD);2015 MBQB 133

Keown v. Mainer (2015), 320 Man.R.(2d) 115 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AU.008

Sage Lyndsey Keown (petitioner) v. Kenneth John Mainer (respondent)

(FD 05-01-76938; 2015 MBQB 133)

Indexed As: Keown v. Mainer

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Johnston, J.

August 5, 2015.

Summary:

At issue between the parties was the father's motion to terminate child support for the parties' younger child and the mother's motion for a retroactive recalculation of child support payable.

The Manitoba Court of Queen's Bench, Family Division, granted the father's motion and denied the mother's motion.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See both Family Law - Topic 2353 ].

Family Law - Topic 2351

Maintenance of wives and children - Maintenance of children - Termination of obligation - Age - The parties' younger child turned 18 in June 2014 - The father sought to terminate child support for the child as of June 30, 2014, when he was to have finished high school - The mother asserted that the child remained a child of the marriage due to certain medical conditions and that the earliest date of termination should be at his actual high school graduation date in April 2015 - The Manitoba Court of Queen's Bench, Family Division, granted the father's motion, effective April 2015 - There was no presumption that child support terminated automatically when a child reached the age of majority or when the child, having attained the age of majority, ought to have completed high school - The law was purely fact driven - The onus was on the recipient of child support to prove that an adult remained unable to remove himself or herself as a financial charge for a valid reason - Further, case law suggested that a young adult might be entitled to a "grace period" while contemplating the completion of secondary education or pursuing post-secondary education - As well, a young adult could regain child status later - Here, the younger child remained a child for support purposes until April 2015 - See paragraphs 16 to 21.

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - Under an April 2007 final order, the father paid child support for two children - The award was subject to recalculation on an annual basis by the Child Support Recalculation Service - In June 2007, counsel were notified that the award could not be recalculated without an amendment to the final order - No amendment was secured until June 2015 - The father was current in his payments on the terms of the final order - In December 2014, the mother sought a retroactive recalculation of child support from 2007 to May 2013 (when the older child reached the age of majority) for both children and from May 2013 to the present for the younger child - The Manitoba Court of Queen's Bench, Family Division, declined to consider the motion for the older child as that child was already an adult when the mother brought her motion - The father's child support obligation for the younger child was terminated as of April 2015 - The mother's motion was timely regarding the younger child - The court could consider a retroactive order regarding that child from the date of the final order to April 2015 - See paragraphs 22 to 32.

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - Under an April 2007 final order, the father paid child support for two children - The award was subject to recalculation on an annual basis by the Child Support Recalculation Service - In June 2007, counsel were notified that the award could not be recalculated without an amendment to the final order - No amendment was secured until June 2015 - The father was current in his payments on the terms of the final order - The mother sought a retroactive recalculation of child support from 2007 to May 2013 for both children and from May 2013 to the present for the younger child - The mother calculated the shortfall at $17,000 - The Manitoba Court of Queen's Bench, Family Division, denied the mother's motion - The mother's delay was largely unexplained - While there was no dispute that the father had failed in his legal obligation to provide timely financial disclosure, the mother was in a similar breach - There was blameworthy conduct on both sides - There was no evidence that the children had been wanting either in the past or presently - The factors weighed against making a retroactive award - See paragraphs 33 to 55.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - [See Family Law - Topic 2351 ].

Family Law - Topic 4045.21

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Mechanism for regular recalculation - [See second Family Law - Topic 2353 ].

Cases Noticed:

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. 1].

S.P.D. v. L.S.J., 2015 BCPC 121, refd to. [para. 2].

Hartshorne v. Hartshorne (2010), 289 B.C.A.C. 244; 489 W.A.C. 244; 2010 BCCA 327, refd to. [para. 20].

Jensen v. Bryson (2014), 308 Man.R.(2d) 24; 2014 MBQB 137 (Fam. Div.), refd to. [para. 20].

Counsel:

Marcia L. Knight, for the petitioner;

Mark G. Mercier, for the respondent.

These motions were heard by Johnston, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on August 5, 2015.