M.A.B.A. v. F.A., (2016) 326 Man.R.(2d) 193 (CA)

• Judge: Cameron, Mainella and leMaistre, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 18, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 326 Man.R.(2d) 193 (CA);2016 MBCA 33

M.A.B.A. v. F.A. (2016), 326 Man.R.(2d) 193 (CA);

      664 W.A.C. 193

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MR.026

M.A.B.A. (petitioner/appellant) v. F.A. (respondent/respondent)

(AF 15-30-08420; 2016 MBCA 33)

Indexed As: M.A.B.A. v. F.A.

Manitoba Court of Appeal

Cameron, Mainella and leMaistre, JJ.A.

March 18, 2016.

Summary:

Spouses married in 1987, separated in 2004 and divorced in 2007. The husband paid spousal and child support. The two children of the marriage were 23 and 19 years of age. The husband applied for termination or variation of child support and a review of spousal support. At trial, the husband no longer sought to terminate child support for the youngest child, but maintained that the oldest child, who obtained a four year undergraduate degree in five years and was accepted to law school in England, was no longer a child of the marriage.

The Manitoba Court of Queen's Bench, Family Division, in a judgment reported at (2011), 272 Man.R.(2d) 1, held that the oldest child remained a child of the marriage entitled to child support (Guidelines amount), but that the husband was not obligated to fund his full proportionate share of the $30,000-$40,000 annual cost of the child's education at law school in England. Any financial shortfall was to be funded partially by a Family Trust for the child's education, the child's own summer earnings and by applying for student loans or other third party financing. Child support would terminate (absent exceptional circumstances) in 2013 when the program was scheduled to be completed or earlier, if the child left the program. The wife remained entitled to spousal support, which the court fixed at $5,000 per month. She had not made reasonable efforts to become financially self-sufficient, so income of $18,000 per year was imputed to her. Spousal support would be reviewable in two years, with the expectation that the wife would have upgraded her skills to obtain full-time employment. In March 2013, the husband moved to terminate or reduce his spousal support obligation. The wife moved for an increase in spousal support, the fixing of child support as of June 1, 2013, and an order for the payment of child support arrears.

The Manitoba Court of Queen's Bench, Family Division, in a judgment reported at (2015), 318 Man.R.(2d) 128, fixed the amount of child support and arrears. Child support was to terminate on June 1, 2015, but if the child applied for and was accepted for post-graduate study, a further child support application could be made. Spousal support was fixed at $4,000 per month, to terminate on September 8, 2019. The wife appealed.

The Manitoba Court of Appeal, except for one amendment to the order appealed from, dismissed the appeal, as the trial judge achieved a reasonable outcome without reversible error.

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 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4022.1 ].

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - A father sought to terminate, or reduce, child support for his estranged 23 year old son, who would soon graduate with an undergraduate degree - Since the son had yet to apply for admission to law school, the earliest he could start, if accepted, would be September 2016 - The trial judge held that had the spouses remained married, they would "likely have provided some additional support [after graduation from the undergraduate degree]" - The son's estrangement was not unilateral - Neither the father nor the son was more responsible - Estrangement, while not determinative, "is an important factor to be considered when deciding whether a support obligation should cease" - There was limited or no information as to the son's income/earnings in 2011, 2012 and 2014, his anticipated earnings in 2015, his living expenses, his current education or career plans, or his eligibility for student loans and financial assistance - It was not possible to determine whether the son would return to university in 2015, whether his career plans were reasonable and whether further child support was warranted - Accordingly, child support would terminate when the son completed his current degree - If the child applied for and was accepted for post-graduate study, a further child support application could be made - If such an application was brought, the court noted that the son should provide direct evidence to address the identified deficiencies - The mother appealed, arguing, inter alia, that child support should be continued for a grace period after graduation to allow the son to find employment - The Manitoba Court of Appeal dismissed the appeal - The court stated that "I have not been convinced that the motion judge's decision to immediately terminate child support in relation to [the son] without a grace period was arrived at by reversible error, or is clearly wrong" - See paragraphs 27 to 34.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 3998 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - Spouses married in 1987, separated in 2004 and divorced in 2007 - In 2011, the wife had only recently returned to work part-time - She claimed to have been too depressed by the marriage breakup to seek full-time employment, yet did not seek treatment or counselling for the last 4.5 years - The husband was a Provincial Court judge earning about $274,000 per year - He had remarried - The wife had not - During the marriage, the wife remained home with their two children, now 19 and 23 - Both spouses sought a review of spousal support - The husband conceded that the wife needed spousal support, but sought a reduction with the goal of termination of support by December 2015 - The trial judge held that in the seven years since separation, the wife had not made reasonable or adequate efforts to become self-sufficient - Accordingly, income of $18,000 per year (full-time minimum wage job) was imputed to the wife - The Spousal Support Advisory Guidelines suggested a $5,500 to $6,800 per month range of spousal support - Spousal support was fixed at $5,000 per month for two years, at which time support was to be reviewed with the expectation that the wife would have upgraded her skills to obtain full-time employment - The husband (now 63 and a judge of the Court of Queen's Bench, Family Division) sought to terminate spousal support payable to the wife (now 55) - The wife sought an increase in support - She claimed that self-sufficiency was not practicable within a reasonable time - She sought indefinite support - Since 2011, her income doubled to $36,000 - The trial judge held that the wife still had not made reasonable or adequate efforts to become self-sufficient - Her standard of living remained equivalent to what she enjoyed 11 years earlier when the spouses separated - Her net worth was $382,000 to $618,000 - The husband's net worth (apart from his judicial pension) was negative $112,400 - The court reduced spousal support to $4,000 per month, to terminate on September 8, 2019 - At that time, the wife would have received 15 years of spousal support after 17 years of marriage - The Manitoba Court of Appeal dismissed the wife's appeal - The court stated that "The motions judge's reasons for ending spousal support on a compensatory basis after nearly 11 years, and all spousal support after 15 years, cannot be said to be 'conclusory' or based on a failure to take into consideration the relevant factors and objectives set out in the Act ... I see no basis to interfere with his conclusion that the basis for compensatory spousal support had been 'fully satisfied' by 2015. ...  This is a difficult case because it is a 17-year traditional marriage such that there is, at least to me, a range of reasonable outcomes that could have been ordered, one of which was what the motion judge ordered." - See paragraphs 35 to 103.

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance awards - Spousal support - Suspension or termination of - [See Family Law - Topic 4022.1 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 26].

Ireland v. David Lloyd Leisure Ltd., [2013] EWCA Civ. 665, refd to. [para. 27].

Gregorchuk v. Gregorchuk, [2006] Man.R.(2d) Uned. 6; 2006 MBCA 13, refd to. [para. 27].

Canadian National Railway Co. v. Lewis, [1930] 4 D.L.R. 537 (Ex. Ct.), refd to. [para. 27].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 29].

Cassidy v. McNeil (2010), 266 O.A.C. 62; 2010 ONCA 218, refd to. [para. 29].

Horvath v. Horvath (2000), 150 Man.R.(2d) 299; 230 W.A.C. 299; 2000 MBCA 93, refd to. [para. 32].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 34].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 36].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 36].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 37].

Spencer v. Spencer (2002), 169 B.C.A.C. 215; 276 W.A.C. 215; 2002 BCCA 265, refd to. [para. 44].

Gray v. Gray (2014), 325 O.A.C. 117; 2014 ONCA 659, refd to. [para. 45].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 47].

Frank v. Linn (2014), 442 Sask.R. 126; 616 W.A.C. 126; 2014 SKCA 87, refd to. [para. 49].

Sawatzky v. Sawatzky (2008), 440 A.R. 267; 438 W.A.C. 267; 2008 ABCA 355, refd to. [para. 49].

Kloos v. Kloos (1996), 110 Man.R.(2d) 129; 118 W.A.C. 129 (C.A.), refd to. [para. 51].

Fisher v. Fisher (2009), 456 A.R. 363; 2009 ABQB 85, refd to. [para. 51].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 52].

Cadigan v. Cadigan (2007), 212 Man.R.(2d) 291; 389 W.A.C. 291; 2007 MBCA 28, refd to. [para. 55].

Hickey v. Princ (2015), 340 O.A.C. 136; 2015 ONSC 5596 (Div. Ct.), refd to. [para. 56].

Knapp v. Knapp, [2014] O.T.C. Uned. 1631; 2014 ONSC 1631, refd to. [para. 56].

Schaldach v. Schaldach, 2015 ONSC 1574, refd to. [para. 56].

Allaire v. Allaire (2003), 170 O.A.C. 72 (C.A.), refd to. [para. 56].

Morigeau v. Moorey (2015), 370 B.C.A.C. 259; 635 W.A.C. 259; 2015 BCCA 160, refd to. [para. 56].

Tedham v. Tedham (2005), 217 B.C.A.C. 250; 358 W.A.C. 250; 2005 BCCA 502, refd to. [para. 56].

Walsh v. Walsh, [2015] A.R. TBEd. OC.072; 2015 ABQB 652, refd to. [para. 56].

Riad v. Riad (2002), 317 A.R. 201; 284 W.A.C. 201; 2002 ABCA 254, refd to. [para. 56].

Bockhold v. Bockhold, [2010] B.C.T.C. Uned. 214; 2010 BCSC 214, refd to. [para. 58].

Bennett v. Bennett (2001), 13 R.F.L.(5th) 325 (Ont. Sup. Ct.), refd to. [para. 58].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 62].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 68].

Senek v. Senek, [2014] Man.R.(2d) Uned. 21; 2014 MBCA 67, refd to. [para. 70].

Chamberlain v. Chamberlain (2003), 259 N.B.R.(2d) 309; 681 A.P.R. 309; 2003 NBCA 34, refd to. [para. 72].

Meiklejohn v. Meiklejohn (2001), 150 O.A.C. 149 (C.A.), refd to. [para. 72].

Cymbalisty v. Cymbalisty (2003), 180 Man.R.(2d) 112; 310 W.A.C. 112; 2003 MBCA 138, refd to. [para. 72].

Kynoch v. Kynoch (2013), 294 Man.R.(2d) 250; 581 W.A.C. 250; 2013 MBCA 73, refd to. [para. 78].

Chutter v. Chutter et al. (2008), 263 B.C.A.C. 109; 443 W.A.C. 109; 2008 BCCA 507, leave to appeal denied (2009), 398 N.R. 390 (S.C.C.), refd to. [para. 80].

Scott v. Scott, [2010] Man.R.(2d) Uned. 44; 2010 MBQB 139, affd. (2011), 262 Man.R.(2d) 237; 507 W.A.C. 237; 2011 MBCA 21, refd to. [para. 80].

Mason v. Mason (1995), 104 Man.R.(2d) 81 (Q.B.), affd. (1995), 102 Man.R.(2d) 239; 93 W.A.C. 239 (C.A.), refd to. [para. 80].

Fisher v. Fisher (2008), 232 O.A.C. 213; 2008 ONCA 11, refd to. [para. 87].

Rémillard v. Rémillard (2014), 310 Man.R.(2d) 204; 618 W.A.C. 204; 2014 MBCA 101, refd to. [para. 87].

McCulloch v. Bawtinheimer (2006), 423 A.R. 88; 2006 ABQB 232, refd to. [para. 90].

Holman v. Holman (2015), 336 O.A.C. 350; 2015 ONCA 552, refd to. [para. 93].

Rioux v. Rioux (2009), 252 O.A.C. 126; 2009 ONCA 569, refd to. [para. 96].

Hykle v. Hykle (2007), 219 Man.R.(2d) 198; 2007 MBQB 243 (Fam. Div.), refd to. [para. 97].

Derkach v. Derkach (1989), 60 Man.R.(2d) 278 (Fam. Div.), refd to. [para. 99].

Juvatopolos v. Juvatopolos (2005), 202 O.A.C. 1 (C.A.), refd to. [para. 99].

McEachern v. McEachern (2006), 232 B.C.A.C. 185; 385 W.A.C. 185; 2006 BCCA 508, refd to. [para. 100].

Heimsoth v. Heimsoth (2009), 457 A.R. 22; 457 W.A.C. 22; 2009 ABCA 129, refd to. [para. 100].

Hedley v. Hedley (1989), 22 R.F.L.(3d) 309 (B.C.C.A.), refd to. [para. 101].

Bildy v. Bildy (1999), 127 O.A.C. 44; 42 O.R.(3d) 737 (C.A.), refd to. [para. 101].

Walsh v. Walsh, [2007] O.A.C. Uned. 189; 36 R.F.L.(6th) 262; 2007 ONCA 218, leave to appeal denied (2007), 378 N.R. 394 (S.C.C.), refd to. [para. 102].

Werner v. Werner (2013), 325 N.S.R.(2d) 175; 1031 A.P.R. 175; 2013 NSCA 6, refd to. [para. 103].

Counsel:

T.A. Gutkin and J.A. Schofield, for the appellant;

V.E. Bargen and C.M. Purves, for the respondent.

This appeal was heard on November 25, 2015, before Cameron, Mainella and leMaistre, JJ.A., of the Manitoba Court of Appeal.

On March 18, 2016, Mainella, J.A., delivered the following judgment for the Court of Appeal.