Rémillard v. Rémillard, (2014) 310 Man.R.(2d) 204 (CA)

• Judge: Hamilton, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 02, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 310 Man.R.(2d) 204 (CA);2014 MBCA 101

Rémillard v. Rémillard (2014), 310 Man.R.(2d) 204 (CA);

      618 W.A.C. 204

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. NO.010

Paul Victor Joseph Rémillard (petitioner/respondent) v. Candace Adele Rémillard (respondent/appellant)

(AF 13-30-08019; 2014 MBCA 101)

Indexed As: Rémillard v. Rémillard

Manitoba Court of Appeal

Hamilton, Beard and Monnin, JJ.A.

November 6, 2014.

Summary:

The parties were married in 1999 and separated in 2010. They had one child, born in 2002, who was severely disabled. The wife resided in the family home with her new partner. The husband's income was over $150,000. He had voluntarily paid child support since the separation. The wife sought retroactive and ongoing child support and spousal support.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2013), 290 Man.R.(2d) 141, ordered the father to pay ongoing child support at the table amount for $150,000. The child support he had already paid more than covered his legal obligations for retroactive support. The court ordered a lump sum retroactive spousal support payment of $20,800. Ongoing spousal support was set at $1,500/month. Using a step-down approach, spousal support was to decrease each year until 2018 when it would terminate. Double costs were awarded against the mother in the amount of approximately $86,000. The mother appealed (1) the order which capped child support at the table amount for income of $150,000; (2) the time-limited step-down spousal support order; and (3) the costs award. The father cross-appealed respecting the retroactive component of the spousal support award.

The Manitoba Court of Appeal allowed the mother's appeal and dismissed the father's cross-appeal.

Family Law - Topic 2328

Maintenance of spouses and children - Maintenance of spouses - Effect of spouse's ability to work - [See Family Law - Topic 3997 ].

Family Law - Topic 2355

Maintenance of spouses and children - Maintenance of children - Effect of benefits from third parties - The Manitoba Court of Appeal stated that "Nothing in the Guidelines permits a reduction from the table amount due to disability payments from third parties. Therefore, such payments may only be considered in the context of s. 4 of the Guidelines [where income over $150,000] for children under the age of majority and s. 3(2)(b) for adult disabled children." - See paragraph 64.

Family Law - Topic 2355

Maintenance of spouses and children - Maintenance of children - Effect of benefits from third parties - [See second Family Law - Topic 4045.12 ].

Family Law - Topic 2357.1

Maintenance of spouses and children - Maintenance of children - Considerations - Support tables - [See first and second Family Law - Topic 4045.12 ].

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - The parties were married in 1999 and separated in 2010 - The husband's income was $180,285 - The wife was a bank teller until 2002, when the parties' daughter (Elle) was born - Elle was severely disabled - The wife remained at home as her primary caregiver - The wife was now living with her new partner - The wife sought spousal support - The trial judge imputed income of $25,000 to the wife and ordered the husband to pay spousal support of $1,500/month - Using a step-down approach, spousal support was to decrease by $300 each year until 2018 when it would terminate - The Manitoba Court of Appeal allowed the wife's appeal - The trial judge erred by (1) misapprehending the evidence concerning the availability of government homecare services for Elle, which was critical to her conclusion that the wife had the ability to return to work; (2) overemphasizing the goal of achieving self-sufficiency; and (3) treating "excess" child support as de facto spousal support - Self-sufficiency was not a realistic goal at the time - No income could be imputed to the wife - In these circumstances, the Spousal Support Advisory Guidelines called for monthly spousal support between $3,868 and $4,879 - The court concluded that the mother was entitled to $4,000/month from the date of separation until she began living with her new partner, and $3,000/month thereafter - Since this was a relatively long-term marriage that involved a child who would never gain independence, spousal support would continue indefinitely - See paragraphs 79 to 117 and 127 to 144.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - In 2013, a trial judge ordered a husband to pay spousal support of $1,500/month - Using a step-down approach, spousal support was to decrease each year until 2018 when it would terminate - This was contrary to the amount called for by the Spousal Support Advisory Guidelines (SSAG), which would have been between $3,017 and $4,019/month for at least seven years - The wife appealed - The Manitoba Court of Appeal, in discussing the role to be played by the SSAG, stated "The time-limited step-down spousal support awarded by the trial judge is drastically less than the suggested SSAG range with respect to quantum and duration, even at the low end of the payment range. For the purpose of appellate review and the use of the SSAG as a litmus test of reasonableness, this disparity signals that the trial judge may have erred." - See paragraphs 81 to 91.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - [See Family Law - Topic 3997 ].

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance and awards - Spousal support - Suspension or termination of - [See Family Law - Topic 3997 ].

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines - Where income over $150,000 - The Manitoba Court of Appeal stated that "[T]he court has some discretion under s. 4(b) of the Guidelines in circumstances when a payor parent's income exceeds $150,000 (often referred to in the case law as 'high income earners'). In that case, the amount of child support will be the table amount for the payor's income or, if the court considers that amount to be 'inappropriate', a lesser amount determined pursuant to s. 4(b) of the Guidelines. ... The word 'inappropriate' in s. 4(b) means 'unsuitable', not 'inadequate' ... The table amount can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable table amount is appropriate. The test is whether the evidence in its entirety is sufficient to raise a concern that the applicable table amount is inappropriate. There must be clear and compelling evidence for departing from the applicable table amount in the Guidelines ... A judge may find the table amount to be inappropriate only after examining all of the circumstances of a case, including the factors expressly listed in s. 4(b)(ii), i.e., 'the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent to contribute to the support of the children'" - See paragraphs 50 to 53.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines - Where income over $150,000 - The parties separated - The mother sought child support for the parties' child (Elle), who was born in 2002 and was severely disabled - The majority of Elle's expenses, such as food, personal care items, equipment and respite, were paid for by the provincial government - The father's income was $180,285 - The trial judge found that it was appropriate to cap child support at the table amount for income of $150,000, particularly given the government assistance - The Manitoba Court of Appeal allowed the mother's appeal - There was a presumption that the table amount of child support based on the father's actual income was appropriate - Therefore, the trial judge erred in first considering whether Elle's estimated expenses were already covered, or what level of child support would be "appropriate" - Instead, the trial judge should have asked whether the evidence in its entirety was sufficient to raise a concern that the applicable table amount based on the father's actual income was "inappropriate" - The father's income was not significantly above the threshold - The difference between the table amounts of support for $150,000 and $180,285 was only $194/month - This additional amount was not unsuitable to address Elle's "condition, means, needs and other circumstances" - It easily fell within appropriate discretionary spending on her behalf - Elle was entitled to child support at the table amount for the father's actual income - See paragraphs 54 to 78.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines - Where income over $150,000 - At issue on this appeal was the amount of child support payable by a father whose income was over $150,000 for a severely disabled child under the age of majority who received support from the provincial health care system - The Manitoba Court of Appeal referred to the three specific instances under Manitoba's Child Support Guidelines where the court was allowed to consider the condition, means, needs and other circumstances of the child - These exceptions were s. 4(b) (where income over $150,000), s. 3(2)(b) (adult disabled child), and s. 9(c) (shared custody) - Thus, in this case, the child's needs were "completely irrelevant" to the child support that she was entitled to respecting the first $150,000 of the father's income - Her needs were not completely irrelevant respecting that portion of the father's income over $150,000 - See paragraphs 62 and 63.

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. 44].

Kynoch v. Kynoch (2013), 294 Man.R.(2d) 250; 581 W.A.C. 250; 2013 MBCA 73, refd to. [para. 44].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, appld. [para. 50].

R. v. R. (2002), 159 O.A.C. 46; 58 O.R.(3d) 656 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 231, refd to. [para. 54].

Ewing v. Ewing (2009), 457 A.R. 238; 457 W.A.C. 238; 2009 ABCA 227, refd to. [para. 54].

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. 62].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 67].

Senos v. Karcz (2014), 321 O.A.C. 343; 120 O.R.(3d) 321; 2014 ONCA 459, refd to. [para. 67].

Ross v. Ross (2004), 195 B.C.A.C. 202; 319 W.A.C. 202; 2004 BCCA 131, refd to. [para. 67].

Lougheed v. Lougheed (2007), 245 B.C.A.C. 116; 405 W.A.C. 116; 2007 BCCA 396, refd to. [para. 67].

Steidinger v. Morrell (2013), 292 Man.R.(2d) 278; 2013 MBQB 143, refd to. [para. 67].

Dyck v. Dyck (2008), 231 Man.R.(2d) 246; 437 W.A.C. 246; 2008 MBCA 135, refd to. [para. 82].

Scott v. Scott (2011), 262 Man.R.(2d) 237; 507 W.A.C. 237; 2011 MBCA 21, refd to. [para. 82].

Thomson v. Thomson, [2011] Man.R.(2d) Uned. 23; 2011 MBCA 28, refd to. [para. 82].

J.S.G. v. M.F.G., [2013] Man.R.(2d) Uned. 41; 2013 MBCA 66, refd to. [para. 82].

Fisher v. Fisher (2008), 232 O.A.C. 213; 2008 ONCA 11, refd to. [para. 88].

Flieger v. Adams (2012), 387 N.B.R.(2d) 322; 1001 A.P.R. 322; 2012 NBCA 39, refd to. [para. 88].

Heimsoth v. Heimsoth (2009), 457 A.R. 22; 457 W.A.C. 22; 2009 ABCA 129, refd to. [para. 104].

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. 106].

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. 106].

McEachern v. McEachern (2006), 232 B.C.A.C. 185; 385 W.A.C. 185; 2006 BCCA 508, refd to. [para. 108].

Marquez v. Zapiola (2013), 344 B.C.A.C. 133; 587 W.A.C. 133; 2013 BCCA 433, refd to. [para. 108].

Shen v. Tong (2013), 347 B.C.A.C. 233; 593 W.A.C. 233; 2013 BCCA 519, refd to. [para. 108].

Lightle v. Kotar (2014), 352 B.C.A.C. 39; 601 W.A.C. 39; 2014 BCCA 69, refd to. [para. 108].

Reisman v. Reisman (2014), 315 O.A.C. 333; 2014 ONCA 109, refd to. [para. 108].

Tauber v. Tauber (2000), 133 O.A.C. 66 (C.A.), refd to. [para. 115].

Riad v. Riad (2002), 317 A.R. 201; 284 W.A.C. 201; 2002 ABCA 254, refd to. [para. 116].

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. 119].

Dickson v. Dickson (2011), 262 Man.R.(2d) 247; 507 W.A.C. 247; 2011 MBCA 26, refd to. [para. 120].

Bracklow v. Bracklow (1999), 27 B.C.T.C. 58; 181 D.L.R.(4th) 522 (S.C.), refd to. [para. 135].

Statutes Noticed:

Child Support Guidelines Regulation (Man.) - see Family Maintenance Act Regulations (Man.).

Family Maintenance Act Regulations (Man.), Child Support Guidelines Regulation, Reg. 58/98, sect. 3(1) [para. 49]; sect. 3(2) [para. 66]; sect. 4 [para. 49].

Authors and Works Noticed:

McLeod, James G., and Mamo, Alfred A., Annual Review of Family Law 2013, p. 298 [para. 54].

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada, 2012 (2012), generally [para. 65].

Counsel:

G.J. Orle, Q.C., for the appellant;

A.L. Bennet, for the respondent.

This appeal and cross-appeal were heard on June 2, 2014, before Hamilton, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following judgment for the court on November 6, 2014.