Rebenchuk v. Rebenchuk,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Twaddle and Freedman, JJ.A.
• Neutral Citation: 2007 MBCA 22
• Citation: (2007), 212 Man.R.(2d) 261 (CA),2007 MBCA 22,279 DLR (4th) 448,[2007] 5 WWR 87,35 RFL (6th) 239,[2007] CarswellMan 59,[2007] MJ No 130 (QL),212 Man R (2d) 261,389 WAC 261,389 W.A.C. 261,279 D.L.R. (4th) 448,(2007), 212 ManR(2d) 261 (CA),[2007] M.J. No 130 (QL),212 ManR(2d) 261,212 Man.R.(2d) 261
• Date: 14 September 2006
• Court: Court of Appeal (Manitoba)

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261 (CA);

      389 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. FE.050

Constance Erica Rebenchuk (petitioner/respondent) v. Theodore Michael Rebenchuk (also known as Theodore Mitchel Rebenchuk) (respondent/appellant)

(AF 04-30-05934; AF 05-30-06271; 2007 MBCA 22)

Indexed As: Rebenchuk v. Rebenchuk

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Freedman, JJ.A.

February 23, 2007.

Summary:

Spouses divorced. At issue was the child support payable for the three adult children of the marriage (Kristy, Stacey and Tara) for their university education at the undergraduate level. In 2000, the divorce judgment ordered the father to pay monthly support of $500.58 for Stacey and Tara. The father also agreed to pay s. 7 expenses for Stacey's university. The mother was to confirm the cost of tuition and books for the following years by the 10th of September and January respectively. There was no reference to the consequences, if any, should the mother fail to comply with this provision. In response to a motion to vary child support, a motions judge ordered the father to pay support for all three children for the months of September and October 2002, and for Stacey and Tara only for the months of November and December 2002. The motions judge concluded that Kristy ceased to be a child of the marriage when she moved out of the mother's residence in November 2002. After making further adjustments for the year 2003, it was ordered that no further child support would be payable by the father after August 2003 unless the child returned to post-secondary education. The father was ordered to pay a proportionate share of the post-secondary expenses for Stacey and some of the tuition for Kristy. In the result, the father was to pay $3,331.05 to the mother. In the event that child support was sought, the mother was to provide notice to the father in August or December, failing which there was "no obligation to make support payments" (the 2003 order). Another motion for variation of child support was brought. The father challenged the constitutionality of the requirement that he was required to pay support for his adult children.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at 194 Man.R.(2d) 275, dismissed the father's constitutional challenge. After fixing the income of the father and mother for the purposes of s. 7 of the Guidelines, the father was ordered to pay table support for Tara and his proportionate share of her annual tuition and textbook expenses, the latter to be paid "forthwith". The father was ordered to pay double costs (the 2005 order). The father appealed the 2003 order and the mother cross-appealed with respect to the finding that Kristy was not a child of the marriage from November 2002 to June 2003 because she had moved out of the home. The father appealed the 2005 order as well, but abandoned his constitutional challenge.

The Manitoba Court of Appeal dismissed the appeals and allowed the cross-appeal.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4014 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards - To children and children defined - The Manitoba Court of Appeal discussed a non-custodial parent's obligation to pay child support for adult children of the marriage who were attending university at the undergraduate level - See paragraphs 16 to 62.

Family Law - Topic 4045.2

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Financial disclosure - Spouses divorced - At issue was the child support payable for the three adult children of the marriage (Kristy, Stacey and Tara) for their university education at the undergraduate level - The 2001 divorce judgment determined the payable child support - The mother was to confirm the cost of tuition and books for the following years by the 10th of September and January respectively - There was no reference to the consequences, if any, should the mother fail to comply with this provision - The mother failed to provide the required information - The Manitoba Court of Appeal held that the father's remedy for the mother's failure to provide adequate or timely disclosure was not to peremptorily cease payment for the support of his children, but rather serve a formal demand on the mother and then apply for one of the remedies set forth in the Federal Child Support Guidelines or rule 70.09(4) of the Rules of Court and/or substantial costs - See paragraphs 67 to 81.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - [See Family Law - Topic 4045.2 ].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - [See Family Law - Topic 4014 ].

Cases Noticed:

Jackson v. Jackson, [1973] S.C.R. 205, refd to. [para. 16].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 22].

Wesemann v. Wesemann (1999), 13 B.C.T.C. 233 (S.C.), refd to. [para. 22].

W.P.N. v. B.J.N. (2005), 207 B.C.A.C. 76; 341 W.A.C. 76; 2005 BCCA 7, refd to. [para. 22].

Thompson v. Ducharme (2004), 184 Man.R.(2d) 119; 318 W.A.C. 119; 2004 MBCA 42, refd to. [para. 25].

Olson v. Olson (2003), 320 A.R. 379; 288 W.A.C. 379; 2003 ABCA 56, refd to. [para. 26].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116; 2003 NSCA 9, refd to. [para. 26].

Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134 (C.A.), refd to. [para. 27].

Lewi v. Lewi (2006), 209 O.A.C. 344 (C.A.), refd to. [para. 28].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 28].

Arnold v. Washburn, [2001] O.T.C. Uned. 45 (Sup. Ct.), refd to. [para. 29].

Chapple v. Campbell (2005), 198 Man.R.(2d) 49; 2005 MBQB 199 (Fam. Div.), refd to. [para. 29].

Doig v. Stubson (2006), 206 Man.R.(2d) 215; 2006 MBQB 189 (Fam. Div.), refd to. [para. 29].

Park v. Thompson (2005), 197 O.A.C. 158; 13 R.F.L.(6th) 415 (C.A.), refd to. [para. 31].

Perfanick v. Panciera (2001), 160 Man.R.(2d) 287; 262 W.A.C. 287; 22 R.F.L.(5th) 178; 2001 MBCA 200, refd to. [para. 37].

Dupuis v. Gladu (2002), 170 Man.R.(2d) 276; 285 W.A.C. 276; 35 R.F.L.(5th) 59; 2002 MBCA 174, refd to. [para. 38].

Newman v. Thompson (1997), 118 Man.R.(2d) 177; 149 W.A.C. 177 (C.A.), refd to. [para. 39].

Trottier v. Bradley (1999), 138 Man.R.(2d) 106; 202 W.A.C. 106 (C.A.), refd to. [para. 40].

Waite v. Waite, [1996] M.J. No. 361 (C.A.), refd to. [para. 40].

Guillemette v. Horne (1993), 88 Man.R.(2d) 15; 51 W.A.C. 15 (C.A.), refd to. [para. 40].

Pink v. Pink (1991), 71 Man.R.(2d) 48 (C.A.), refd to. [para. 40].

Farden v. Farden (1993), 48 R.F.L.(3d) 60 (B.C.S.C.), refd to. [para. 42].

Schellenberg v. Peterson (1996), 149 Sask.R. 292 (Q.B.), refd to. [para. 46].

S.A.F. v. R.L.G., [2005] Sask.R. Uned. 199; 2005 SKQB 519 (Fam. Div.), refd to. [para. 46].

Martell v. Height (1994), 130 N.S.R.(2d) 318; 367 A.P.R. 318 (C.A.), refd to. [para. 48].

Gobeil v. Gobeil (2007), 212 Man.R.(2d) 140; 389 W.A.C. 140; 2007 MBCA 4, refd to. [para. 51].

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. 51].

Mabey v. Mabey (2005), 230 N.S.R.(2d) 272; 729 A.P.R. 272; 12 R.F.L.(6th) 403; 2005 NSCA 35, refd to. [para. 53].

Pepin v. Jung, [2003] O.T.C. 401 (Sup. Ct.), refd to. [para. 56].

MacDonald v. Rasmussen (2000), 198 Sask.R. 1; 2000 SKQB 494 (Fam. Div.), refd to. [para. 57].

Harwood v. Harwood, [1999] B.C.T.C. Uned. 120 (S.C.), refd to. [para. 57].

Zaba v. Bradley (1996), 137 Sask.R. 295; 107 W.A.C. 295; 18 R.F.L.(4th) 1 (C.A.), refd to. [para. 62].

Walsh v. Walsh (2004), 183 O.A.C. 179; 69 O.R.(3d) 577 (C.A.), refd to. [para. 76].

M.A.O. v. R.S., [2006] Sask.R. Uned. 161; 2006 SKQB 432 (Fam. Div.), refd to. [para. 81].

Cunningham v. Lefebvre, [2006] O.T.C. 190; 26 R.F.L.(6th) 445 (Sup. Ct.), refd to. [para. 81].

L.M.B. v. I.J.B. et al. (2004), 346 A.R. 372; 320 W.A.C. 372; 2004 ABCA 72, refd to. [para. 81].

Dickie v. Dickie (2007), 357 N.R. 196; 221 O.A.C. 394; 2007 SCC 8, refd to. [para. 81].

Hamonic v. Gronvold, [2003] Sask.R. Uned. 306; 1 R.F.L.(6th) 246; 2003 SKQB 544 (Fam. Div.), refd to. [para. 84].

Beutler v. Maki (2005), 273 Sask.R. 198; 2005 SKQB 393 (Fam. Div.), refd to. [para. 84].

Hiemstra v. Hiemstra, [2005] A.R. Uned. 253; 2005 ABQB 192, refd to. [para. 84].

Andries v. Andries (1998), 126 Man.R.(2d) 189; 167 W.A.C. 189 (C.A.), refd to. [para. 91].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 92].

T.A.R. v. L.J.W. - see D.B.S. v. S.R.G.

Henry v. Henry - see D.B.S. v. S.R.G.

Hiemstra v. Hiemstra - see D.B.S. v. S.R.G.

Authors and Works Noticed:

Canada, Department of Justice, Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines (2002), vol. 2, p. 41 [para. 67].

Joseph, Gary S., Adult Children? An Oxymoron, a Difficult Legal Issue, Money & Family Law (2005), p. 29 [para. 24].

MacDonald, James C., and Wilton, Ann C., Child Support Guidelines: Law and Practice (2nd Ed. 1998) (2004 Looseleaf Update), vol. 1, pp. 3-11, 3-12 [para. 30]; 3-23 [paras. 34, 60].

McLeod, James G., Annotation to Mabey v. Mabey (2005), 12 R.F.L.(6th) 403, p. 407 [para. 53].

Counsel:

W.C. Rose, for the appellant;

T.P. Beley, for the respondent.

This appeal and cross-appeal were heard on September 14, 2006, by Scott, C.J.M., Twaddle and Freedman, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Scott, C.J.M., on February 23, 2007.