Mehling v. Mehling,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Hamilton and Chartier, JJ.A.
• Neutral Citation: 2008 MBCA 66
• Citation: 2008 MBCA 66,(2008), 228 Man.R.(2d) 145 (CA),293 DLR (4th) 493,[2008] 8 WWR 52,62 RFL (6th) 25,[2008] MJ No 172 (QL),228 Man R (2d) 145,293 D.L.R. (4th) 493,228 ManR(2d) 145,[2008] M.J. No 172 (QL),228 Man.R.(2d) 145,(2008), 228 ManR(2d) 145 (CA)
• Date: 27 November 2007
• Court: Court of Appeal (Manitoba)

Mehling v. Mehling (2008), 228 Man.R.(2d) 145 (CA);

      427 W.A.C. 145

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. MY.023

Karen Lee-Anne Mehling (petitioner/respondent) v. Bradley Keith Mehling (respondent/appellant)

(AF 07-30-06703; 2008 MBCA 66)

Indexed As: Mehling v. Mehling

Manitoba Court of Appeal

Scott, C.J.M., Hamilton and Chartier, JJ.A.

May 14, 2008.

Summary:

Under a final consent order, the parties shared custody of two children. No child support was payable. The father moved to vary the order, seeking, inter alia, primary care and control and child support payable by the mother. The mother brought a corresponding cross-motion to vary. The motions judge found that the mother had care and control of the children not less than 40% of the time (as required by s. 9 of the Manitoba Child Support Guidelines Regulation) and ordered the father to pay child support of $493 per month (the set-off amount) to the mother. The father appealed.

The Manitoba Court of Appeal dismissed the appeal.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Under a final consent order, the parties shared custody of two children - No child support was payable - The father moved to vary the order, seeking, inter alia, primary care and control and child support payable by the mother - The mother brought a corresponding cross-motion to vary - The motions judge found that the mother had care and control of the children not less than 40% of the time (as required by s. 9 of the Manitoba Child Support Guidelines Regulation) and ordered the father to pay child support of $493 per month (the set-off amount) to the mother - The father appealed - At issue was the method of determining whether the 40% threshold had been met - The mother asserted that the judge correctly based the calculation on the number of days that she had the children - The father argued for a calculation based on hours, not days - The Manitoba Court of Appeal dismissed the appeal - While an assessment based on hours was not categorically ruled out, an assessment of the time that a parent is with or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, was more realistic than an hourly accounting - The approach to be used was within the judge's discretion, but had to remain flexible to account for the varied circumstances of different families - This was in keeping with s. 9's equitable goals - Here, the father failed to demonstrate that the motions judge erred in principle, misapprehended the evidence or was clearly wrong - See paragraphs 20 to 58.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The Manitoba Court of Appeal discussed approaches for determining whether a parent had met the threshold of having care and control of a child for not less than 40% of the time as required in order to trigger the shared custody provisions of s. 9 of the Manitoba Child Support Guidelines Regulation - Whether an hours or days calculation was used was within the court's discretion - When more was required than merely an assessment of time, a number of factors were appropriate for consideration - These included how the shared parenting evolved, any contractual agreements, the quality of time spent with each parent, the desirability of flexible custody and access schedules, any stated desires of the children regarding time with the parent seeking to meet the threshold, who was responsible for the children while they were in school or daycare, who was responsible for meal preparation, summer vacation and holiday arrangements and whether access was in fact exercised in accordance with the governing agreement or order - See paragraphs 30 to 51.

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. 18].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 18].

Giene v. Giene (1998), 234 A.R. 355; 1998 ABQB 961, refd to. [para. 22].

Lussier v. Lussier, [2001] O.J. No. 169 (C.J.), refd to. [para. 22].

Lavoie v. Wills (2000), 280 A.R. 16; 13 R.F.L.(5th) 93; 2000 ABQB 1014, refd to. [para. 22].

L.D.C. v. J.S. (2001), 282 A.R. 240; 16 R.F.L.(5th) 47; 2001 ABQB 16, refd to. [para. 22].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 24].

Cabot v. Mikkelson (2004), 187 Man.R.(2d) 104; 330 W.A.C. 104; 2004 MBCA 107, refd to. [para. 25].

Stewart v. Stewart (2007), 214 Man.R.(2d) 199; 395 W.A.C. 199; 2007 MBCA 66, refd to. [para. 25].

Green v. Green (2000), 138 B.C.A.C. 121; 226 W.A.C. 121; 2000 BCCA 310, refd to. [para. 31].

Berry v. Hart, [2004] 3 W.W.R. 311; 190 B.C.A.C. 108; 311 W.A.C. 108; 233 D.L.R.(4th) 1; 21 B.C.L.R.(4th) 142; 48 R.F.L.(5th) 1; 2003 CarswellBC 2990; 2003 BCCA 659, refd to. [para. 32].

L.C. v. R.O.C., [2007] A.R. Uned. 50; 2007 ABCA 158, refd to. [para. 34].

Ryba v. Schoenroth (1999), 180 Sask.R. 121; 205 W.A.C. 121 (C.A.), refd to. [para. 35].

Gieni v. Gieni, [2002] Sask.R. Uned. 115; 29 R.F.L.(5th) 60; 2002 SKCA 87, refd to. [para. 36].

Dorey v. Golden, [2002] O.J. No. 743 (Sup. Ct.), refd to. [para. 37].

Froom v. Froom (2005), 194 O.A.C. 227; 11 R.F.L.(6th) 254 (C.A.), refd to. [para. 37].

Fletcher v. Keilty (2004), 269 N.B.R.(2d) 302; 707 A.P.R. 302; 49 R.F.L.(5th) 29; 2004 NBCA 34, refd to. [para. 41].

Nitsopoulos v. Alousis, [2000] O.T.C. Uned. 249; 5 R.F.L.(5th) 430 (Sup. Ct.), refd to. [para. 47].

Authors and Works Noticed:

Hainsworth, Terry W., Child Support Guidelines Service (2007 Looseleaf Ed.), para. 3:10.03 [para. 45].

Counsel:

D.E. Johnston, for the appellant;

E.G. Strell, for the respondent.

This appeal was heard on November 27, 2007, by Scott, C.J.M., Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following judgment for the court on May 14, 2008.