Mellway v. Mellway,

• Jurisdiction: Manitoba
• Judge: Monnin, Steel and Freedman, JJ.A.
• Neutral Citation: 2004 MBCA 119
• Citation: (2004), 187 Man.R.(2d) 247 (CA),2004 MBCA 119,241 DLR (4th) 623,[2005] 3 WWR 608,4 RFL (6th) 70,[2004] MJ No 300 (QL),187 Man R (2d) 247,[2004] M.J. No 300 (QL),187 ManR(2d) 247,187 Man.R.(2d) 247,241 D.L.R. (4th) 623,(2004), 187 ManR(2d) 247 (CA)
• Date: 23 July 2004
• Court: Court of Appeal (Manitoba)

Mellway v. Mellway (2004), 187 Man.R.(2d) 247 (CA);

    330 W.A.C. 247

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. AU.012

Glenda Joyce Mellway (petitioner/respondent) v. Richard Christopher Mellway (respondent/appellant)

(AF 02-30-05448; 2004 MBCA 119)

Indexed As: Mellway v. Mellway

Manitoba Court of Appeal

Monnin, Steel and Freedman, JJ.A.

July 23, 2004.

Summary:

Spouses separated in 1998 after 23 years' marriage and two children, now aged 17 and 19. The wife remained in the marital home with the children following separation. At issue in this divorce and marital property proceeding was the wife's claim for compensation for the cost of living in the marital home following separation. The husband claimed occupation rent. The wife also sought spousal and child support (retroactive and ongoing) and an award of costs for the delays and expenses incurred in obtaining financial disclosure from the husband.

The Manitoba Court of Queen's Bench, Family Division, in a judgment reported (2002), 162 Man.R.(2d) 104, awarded the wife retroactive and ongoing child support and, except for sharing insurance expenses respecting the marital home, dismissed the claim of occupation costs and occupation rent. The wife's claim for spousal support was dismissed. The decision on the quantum of costs was reserved pending submissions on the husband's late disclosure and the effect of any settlement offer. The wife was subsequently awarded costs. The husband appealed. The wife cross-appealed. The issues on appeal were: "(1) whether the trial judge misapprehended the evidence on the issue of the husband's lack of disclosure and erred in awarding the costs that she did against him; (2) whether the trial judge erred when she ordered that the husband was responsible to the wife for one-half of the costs of insurance on the marital home as well as one-half the cost of insuring the mortgage itself, and one-half of the $500 deductible the wife paid to have sewer backup damage repaired, and whether she erred by not including one-half of the real property taxes; (3) whether the trial judge erred in ordering that child support be paid from the date of separation rather than from the date when the petition for divorce was filed; and (4) whether the trial judge erred in not awarding the wife higher costs".

The Manitoba Court of Appeal allowed both the appeal and the cross-appeal in part. The wife was entitled to retroactive child support only from the date of the filing of the divorce petition. The court lacked jurisdiction to award retroactive support under s. 15.1 of the Divorce Act prior to that date. The wife was entitled to compensation for one-half the expenses associated with the marital home, but only up to the date of the divorce petition (2000). The court declined to interfere with the costs award.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - Spouses separated in 1998 after 23 years' marriage and two children - The husband voluntarily left and the wife remained in the marital home with the children - The wife claimed compensation for expenses relating to the home - The husband claimed occupation rent - The trial judge held that unless the wife was prepared to submit to a claim for occupation rent (which she was not), she was not entitled to reimbursement for occupation expenses - However, the wife was entitled, as a joint tenant, to be reimbursed for half the property and mortgage insurance costs and half of the insurance deductible she had to pay to have sewer backup damage repaired - She was not entitled to reimbursement for one-half of the property taxes - The Manitoba Court of Appeal held that this case was one in which the exception to the general rule that there could be no reimbursement for expenses absent submission to a claim for occupation rent applied - The wife was entitled to compensation for one-half of all expenses incurred from the date of separation (1998) to the date when the divorce petition was filed (2000) - She was not entitled to compensation after 2000, because the husband was responsible for child support and received no occupation rent - See paragraphs 38 to 45.

Family Law - Topic 631.2

Husband and wife - Marital property - Matrimonial home - Costs associated with - [See Family Law - Topic 627 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Spouses separated in 1998 - The wife did not apply for child support until the divorce petition in 2000, but sought a retroactive award from the date of separation - The trial judge held that a retroactive award (from the date of separation) was appropriate where the husband tried to avoid his obvious obligation by dragging out financial disclosure, which made it impossible to assess the proper amount of child support and delayed disclosure of his greatly increased income - The Manitoba Court of Appeal held that given the husband's knowledge of his financial responsibilities and deliberate avoidance of full financial disclosure, it was not unfair to award retroactive support from the date of the divorce petition (2000) to the date of trial (2002) - However, the court had no jurisdiction under s. 15.1(1) of the Divorce Act to award retroactive support prior to the date the divorce petition was filed - The court was bound by its previous decision resolving this issue (Andries v. Andries), notwithstanding there existed contrary decisions in other provincial courts of appeal - See paragraphs 8 to 30.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - Spouses divorced after 23 years' marriage and two children - The husband was ordered to pay retroactive and ongoing child support - The retroactive order was from the date of separation (1998) to the date of trial (2002) - The trial judge made an alternate order providing for lump sum spousal support under s. 15.2(6)(b) of the Divorce Act (apportionment of financial consequences of child care) if the retroactive child support award was set aside on appeal - The Manitoba Court of Appeal set aside that portion of the retroactive child support award predating the filing of the divorce petition (2000) - There was no jurisdiction to award support retroactive to a date preceding the filing of the petition - The court struck the alternate order for lump sum spousal support - The trial judge did not consider all of the factors required by s. 15.2(6) - The alternate order was an attempt by the trial judge to do indirectly what the court lacked jurisdiction to do directly - See paragraphs 30 to 37.

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. 5].

Andries v. Andries (1998), 126 Man.R.(2d) 189; 167 W.A.C. 189 (C.A.), refd to. [para. 10].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 50 R.F.L.(4th) 302; 1999 BCCA 393, leave to appeal refused (1999), 252 N.R. 194; 135 B.C.A.C. 160; 221 W.A.C. (S.C.C.), appld. [para. 11].

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76; 38 R.F.L.(5th) 307 (C.A.), refd to. [para. 11].

Young v. Young (2000), 225 N.B.R.(2d) 272; 578 A.P.R. 272; 7 R.F.L.(5th) 228; 2000 NBCA 16, refd to. [para. 14].

Waterman v. Waterman (1995), 133 Nfld. & P.E.I.R. 310; 413 A.P.R. 310; 16 R.F.L.(4th) 10 (Nfld. C.A.), refd to. [para. 16].

Hunt v. Smolis-Hunt (2001), 286 A.R. 248; 253 W.A.C. 248; 20 R.F.L.(5th) 409; 2001 ABCA 229, appld. [para. 17].

Zacks v. Zacks, [1973] S.C.R. 891, refd to. [para. 18].

Ambrose v. Ambrose (1990), 24 R.F.L.(3d) 353 (Man. C.A.), refd to. [para. 20].

Sauso v. Berard (1991), 73 Man.R.(2d) 147 (C.A.), refd to. [para. 20].

Walsh v. Walsh (2004), 183 O.A.C. 179; 46 R.F.L.(5th) 455 (C.A.), refd to. [para. 21].

R. v. Beaudry (M.J.) (2000), 271 A.R. 219; 234 W.A.C. 219; 100 Alta. L.R.(3d) 259; 2000 ABCA 243, refd to. [para. 26].

Chartier v. Chartier (1997), 118 Man.R.(2d) 152; 149 W.A.C. 152 (C.A.), revd., [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19, refd to. [para. 27].

Carignan v. Carignan (1989), 61 Man.R.(2d) 66 (C.A.), refd to. [para. 28].

Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83 (C.A.), refd to. [para. 32].

Elliot v. Elliot (1993), 65 O.A.C. 241; 48 R.F.L.(3d) 237 (C.A.), refd to. [para. 32].

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. 33].

Brockie v. Brockie (1987), 46 Man.R.(2d) 33; 5 R.F.L.(3d) 440 (Q.B. Fam. Div.), refd to. [para. 34].

Zelezniak v. Senkiw, [1978] 5 W.W.R. 187 (Man. Q.B.), refd to. [para. 42].

Balzar v. Balzar (1990), 67 Man.R.(2d) 196 (Q.B.), refd to. [para. 42].

Counsel:

T.P. Beley, for the appellant;

E. Hirsch, for the respondent.

This appeal was heard on March 29, 2004, before Monnin, Steel and Freedman, JJ.A., of the Manitoba Court of Appeal.

On July 23, 2004, Monnin, J.A., delivered the following judgment for the Court of Appeal.