M.A.B.A. v. F.A., (2015) 318 Man.R.(2d) 128 (QBFD)

JudgeBurnett, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateJune 08, 2015
JurisdictionManitoba
Citations(2015), 318 Man.R.(2d) 128 (QBFD);2015 MBQB 97

M.A.B.A. v. F.A. (2015), 318 Man.R.(2d) 128 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JN.022

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

(FD 05-01-76632; 2015 MBQB 97)

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

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Burnett, J.

June 8, 2015.

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, 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.

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 Manitoba Court of Queen's Bench, Family Division, 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 - See paragraphs 16 to 26.

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 Manitoba Court of Queen's Bench, Family Division, 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 - See paragraphs 27 to 83.

Family Law - Topic 4039

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

Cases Noticed:

Starr v. Starr (2008), 234 Man.R.(2d) 130; 2008 MBQB 305 (Fam. Div.), refd to. [para. 23].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 24].

Farden v. Farden (1993), 48 R.F.L.(3d) 60 (B.C.S.C.), refd to. [para. 24].

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. 34].

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. 35].

Cleven v. Cleven (2014), 304 Man.R.(2d) 260; 2014 MBQB 86 (Q.B. Fam. Div.), refd to. [para. 46].

Kynoch v. Kynoch (2013), 294 Man.R.(2d) 250; 581 W.A.C. 250; 2013 MBCA 73, refd to. [para. 47].

Fisher v. Fisher (2008), 232 O.A.C. 213; 2008 ONCA 11, refd to. [para. 57].

Beck v. Beckett (2011), 283 O.A.C. 109; 2011 ONCA 559, refd to. [para. 57].

Hykle v. Hykle (2007), 219 Man.R.(2d) 198; 2007 MBQB 243 (Fam. Div.), refd to. [para. 61].

Berta v. Berta (2014), 122 O.R.(3d) 124; 2014 ONSC 3919, refd to. [para. 61].

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. 62].

Rémillard v. Rémillard (2014), 310 Man.R.(2d) 204; 618 W.A.C. 204; 2014 MBCA 101, refd to. [para. 69].

Gray v. Gray (2014), 325 O.A.C. 117; 2014 ONCA 659, refd to. [para. 70].

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76; 66 O.R.(3d) 40 (C.A.), refd to. [para. 70].

Hrabarchuk v. Todosey (2005), 199 Man.R.(2d) 191; 2005 MBQB 301, refd to. [para. 75].

Bosanac v. Bosanac, 2014 ONSC 7467, refd to. [para. 79].

Counsel:

Terry A. Gutkin and Jessica A. Schofield, for the petitioner;

Victor E. Bargen, for the respondent.

These motions were heard before Burnett, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on June 8, 2015.

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4 practice notes
  • Spousal Support on or After Divorce
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...3 SCR 813; Bracklow v Bracklow, [1999] 1 SCR 420; LMP v LS, [2011] 3 SCR 775 at para 49; Friesen v Friesen, 2020 ABQB 103; MABA v FA, 2015 MBQB 97; Beck v Beck, 2015 NLTD(F) 10; Phinney v Phinney, [2002] NSJ No 540 (CA); Gates v Gates, 2016 NSSC 49; Fisher v Fisher, 2008 ONCA 11; Easton v C......
  • Spousal Support on or after Divorce
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...3 SCR 813; Bracklow v Bracklow, [1999] 1 SCR 420; LMP v LS, [2011] 3 SCR 775 at para 49; Friesen v Friesen, 2020 ABQB 103; MABA v FA, 2015 MBQB 97; Canadian family law ficiency, has been attained, does not obviate the need to ascertain whether the remaining objectives have also been satisfi......
  • M.A.B.A. v. F.A., (2016) 326 Man.R.(2d) 193 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • March 18, 2016
    ...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 ......
  • Winstanley v. Winstanley, 2016 MBCA 17
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 3, 2016
    ...33, refd to. [para. 9]. Starr v. Starr (2008), 234 Man.R.(2d) 130; 2008 MBQB 305 (Fam. Div.), refd to. [para. 19]. M.A.B.A. v. F.A. (2015), 318 Man.R.(2d) 128; 2015 MBQB 97, refd to. [para. G.R. Champagne, for the appellant; K.D.A. Soul, for the respondent. This appeal was heard on January ......
2 cases
  • M.A.B.A. v. F.A., (2016) 326 Man.R.(2d) 193 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • March 18, 2016
    ...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 ......
  • Winstanley v. Winstanley, 2016 MBCA 17
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 3, 2016
    ...33, refd to. [para. 9]. Starr v. Starr (2008), 234 Man.R.(2d) 130; 2008 MBQB 305 (Fam. Div.), refd to. [para. 19]. M.A.B.A. v. F.A. (2015), 318 Man.R.(2d) 128; 2015 MBQB 97, refd to. [para. G.R. Champagne, for the appellant; K.D.A. Soul, for the respondent. This appeal was heard on January ......
2 books & journal articles
  • Spousal Support on or After Divorce
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...3 SCR 813; Bracklow v Bracklow, [1999] 1 SCR 420; LMP v LS, [2011] 3 SCR 775 at para 49; Friesen v Friesen, 2020 ABQB 103; MABA v FA, 2015 MBQB 97; Beck v Beck, 2015 NLTD(F) 10; Phinney v Phinney, [2002] NSJ No 540 (CA); Gates v Gates, 2016 NSSC 49; Fisher v Fisher, 2008 ONCA 11; Easton v C......
  • Spousal Support on or after Divorce
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...3 SCR 813; Bracklow v Bracklow, [1999] 1 SCR 420; LMP v LS, [2011] 3 SCR 775 at para 49; Friesen v Friesen, 2020 ABQB 103; MABA v FA, 2015 MBQB 97; Canadian family law ficiency, has been attained, does not obviate the need to ascertain whether the remaining objectives have also been satisfi......

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