Prince v. Soenen, 2015 MBQB 31

• Judge: Hatch, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 26, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 31;(2015), 316 Man.R.(2d) 13 (QBFD)

Prince v. Soenen (2015), 316 Man.R.(2d) 13 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.014

Tammy Lee Prince (petitioner) v. David Stancey Soenen (respondent)

(FD 98-01-52013; 2015 MBQB 31)

Indexed As: Prince v. Soenen

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Hatch, J.

February 26, 2015.

Summary:

The parties married in 1989, separated in 1998 and divorced in 2001. There were two children of the marriage, who were 23 and 21 years old at trial. At issue was retroactive and ongoing child and spousal support, including the determination of the father's income for support purposes.

The Manitoba Court of Queen's Bench, Family Division, determined the issues.

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 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4011 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The parties married in 1989, separated in 1998 and divorced in 2001 - There were two children of the marriage, W., who was 23 at trial, and M., who was 21 - The mother sought retroactive child support for W. from January 2000 to October 31, 2010, when W. ceased being a child of the marriage, and for M. from January 2000 until April 30, 2014, excluding six months in 2012, when M. was working - The Manitoba Court of Queen's Bench, Family Division, held that retroactive child support was appropriate - The father had failed in his duty to support his children - The wife's cumulative actions over the years constituted unequivocal notice to the father that she expected him to pay child support in accordance with the Federal Child Support Guidelines - M. and W. were dependent children when the mother's petitions were filed and also when agreements were entered into with the father to pay annually adjusted child support - It was appropriate to uphold the father's obligation to pay child support for those years when he had reneged on his duty to do so under the agreements - M. and W. continued to live at home - Both would benefit from their mother having additional funds - The father had the earning capacity and resources to pay the Guidelines amount - The appropriate start date was January 1, 2004, when the father reneged on his obligation under a 2003 agreement - The father was ordered to pay retroactive support for W. from January 1, 2004, to October 2010, and for M. from January 1, 2004, to April 30, 2014 - See paragraphs 152 to 189.

Family Law - Topic 4006.2

Divorce - Corollary relief - Maintenance awards - Awards to children - Parent's obligation - [See second Family Law - Topic 4001.1 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - The parties married in 1989, separated in 1998 and divorced in 2001 - There were two children of the marriage, who were 23 and 21 years old at trial - The mother sought ongoing and retroactive spousal support - The Manitoba Court of Queen's Bench, Family Division, ordered the father to pay the mother a lump sum of $15,000 as compensatory spousal support - Due to the 17 years between the parties' separation and trial and the re-partnering of both parties, it was challenging to assess the marriage and separation's effect on the mother's earning capacity - The father continued to have significant earning capacity that was developed during the marriage - The mother had experienced an economic disadvantage - Periodic spousal support payments were not appropriate as the court did not want to impair the father's ability to pay the ongoing and retroactive child support that had been ordered - Further, periodic payments might lead to more litigation - The parties needed finality and certainty - The father had sufficient means to pay $15,000 - Retroactive support was neither fair nor reasonable in the unique circumstances here - In 2003, the parties had agreed to cease spousal support - Until she set a pretrial conference in 2012, the mother had not notified the father that she intended to seek spousal support - The court was persuaded that, in 2003, the parties had agreed that spousal support would cease - See paragraphs 205 to 275.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - The parties married in 1989, separated in 1998 and divorced in 2001 - At issue was child support for the parties' 21 year old daughter, M. - The Manitoba Court of Queen's Bench, Family Division, held that M. remained a child of the marriage due to her education plans - M. deserved the opportunity to be supported by both of her parents in her nursing education plan, which, when completed, would permit her to support herself in a reasonable fashion - She genuinely needed her parents' financial assistance to succeed - It was fair, reasonable and appropriate for the father to pay ongoing child support for M. from October 2013, when the trial began and M. was a full-time student, to April 2014 - Support was suspended from May to December 2014, when M. was working and waiting to commence nursing classes - Support was to resume with the commencement of M.'s full-time classes in January 2015 - See paragraphs 78 to 107.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4011 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See both Family Law - Topic 4045.5 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - The parties married in 1989, separated in 1998 and divorced in 2001 - The father was ordered to pay ongoing child support of $1,189 per month, based on an income of $132,690, for the parties' 21 year old daughter, M., who remained a child of the marriage due to her education plans - At issue was the parties' contributions toward M.'s extraordinary expenses under s. 7 of the Federal Child Support Guidelines - The cost of M.'s two year nursing program was $4,690 - The mother's income was approximately $36,281 - The Manitoba Court of Queen's Bench, Family Division, followed the principle under s. 7(2) that the parties would share the expense in proportion to their incomes - The cost was a reasonable one in relation to the parties' circumstances, given their respective incomes and overall means - M.'s contribution was imputed at $1,000 - The father was to pay 78% ($2,878) and the mother was to pay 22% ($812) of the net cost of $3,690 - Included in the imputation of M.'s $1,000 contribution was the tax credit that M. would receive for tuition costs - See paragraphs 140 to 151.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties married in 1989, separated in 1998 and divorced in 2001 - At issue was the determination of the father's income for the purpose of child support for the parties' 21 year old daughter, M., who remained a child of the marriage due to her education plans - The Manitoba Court of Queen's Bench, Family Division, agreed with the mother that the father's income should be "grossed up" to take into account non-taxable periodic workers' compensation benefits that he received in addition to employment income - The court applied a 30% "gross up" of those benefits for the purpose of imputing income to the father - The conservative marginal tax rate of 30% was reasonable given the father's overall income earned - The father's imputed income for 2013 was $132,541 and for 2014 was $132,690 - This included tax free workers' compensation benefits of $10,167 in 2013 and $10,032 in 2014 - See paragraphs 118 to 129.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties married in 1989, separated in 1998 and divorced in 2001 - There were two children of the marriage, W., who was 23 at trial, and M., who was 21 - The father was ordered to pay retroactive support for W. from January 1, 2004, to October 2010, and for M. from January 1, 2004, to April 30, 2014 - At issue was the determination of the father's income for the purpose of the retroactive child support - The mother asserted that an income of $80,000 annually should be imputed to the father for the retroactive period because he was intentionally underemployed at the time - The Manitoba Court of Queen's Bench, Family Division, rejected the wife's argument - When the husband periodically lost his employment, it was either because the mine where he worked had shut down or due to the market - It was not a deliberate choice - It was reasonable to rely on the father's income tax documents for assessing his income for retroactive child support - See paragraphs 190 to 197.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - The parties married in 1989, separated in 1998 and divorced in 2001 - At issue was the determination of the father's child support obligation for the parties' 21 year old daughter, M., who remained a child of the marriage due to her education plans - The Federal Child Support Guidelines amount of support payable in 2013 was $1,188 per month, based on the father's income of $132,541 and, in 2014, $1,189 per month, based on the father's income of $132,690 - The Manitoba Court of Queen's Bench, Family Division, held that the Guidelines amount of support was appropriate here - Given that the mother's income was approximately $36,281 and M. had a limited ability to contribute to her expenses, a contribution from the father of at least 57.5% of M.'s total monthly expenses of $2,062 was reasonable - This still did not take into account M.'s transportation costs (one hour driving each way) - The father was ordered to pay those amounts for 2013 and 2014, included in a retroactive child support award, and ongoing support of $1,189 per month - See paragraphs 130 to 139.

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. 2].

Horvath v. Horvath (2000), 150 Man.R.(2d) 299; 230 W.A.C. 299; 2000 MBCA 93, refd to. [para. 107].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 117].

C.P. v. L.H. (2006), 279 Sask.R. 94; 372 W.A.C. 94; 270 D.L.R.(4th) 450; 2006 SKCA 61, refd to. [para. 121].

Dahlgren v. Hodgson (1998), 228 A.R. 332; 188 W.A.C. 332; 1999 ABCA 23, refd to. [para. 123].

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [para. 139].

Delichte v. Rogers (2013), 299 Man.R.(2d) 269; 590 W.A.C. 269; 2013 MBCA 106, refd to. [para. 142].

Durso v. Mascherin, 2013 ONSC 6522, refd to. [para. 149].

Lewis v. Correia, [2014] A.R. Uned. 346; 2014 ABQB 314, refd to. [para. 149].

Donovan v. Donovan (2000), 150 Man.R.(2d) 116; 23 W.A.C. 116; 190 D.L.R.(4th) 696; 2000 MBCA 80, refd to. [para. 194].

Semancik v. Saunders (2011), 307 B.C.A.C. 45; 519 W.A.C. 45; 19 B.C.L.R.(5th) 219; 2011 BCCA 264, refd to. [para. 199].

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. 215].

Rémillard v. Rémillard (2014), 310 Man.R.(2d) 204; 618 W.A.C. 204; 2014 MBCA 101, refd to. [para. 245].

Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83; 5 R.F.L.(4th) 419 (C.A.), refd to. [para. 256].

Gallant v. Gallant (1998), 131 Man.R.(2d) 15; 187 W.A.C. 15; 166 D.L.R.(4th) 79 (C.A.), refd to. [para. 257].

Davis v. Crawford (2011), 277 O.A.C. 200; 106 O.R.(3d) 201; 2011 ONCA 294, refd to. [para. 260].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 264].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 269].

Counsel:

Marcia Knight, for the petitioner;

Murielle A. Matthews, for the respondent.

This application was heard by Hatch, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on February 26, 2015.