Rémillard v. Rémillard, 2015 MBCA 42

• Judge: Hamilton, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 02, 2014
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 42;(2015), 319 Man.R.(2d) 94 (CA)

Rémillard v. Rémillard (2015), 319 Man.R.(2d) 94 (CA);

      638 W.A.C. 94

MLB headnote and full text

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

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

(AF 13-30-08019; 2015 MBCA 42)

Indexed As: Rémillard v. Rémillard

Manitoba Court of Appeal

Hamilton, Beard and Monnin, JJ.A.

May 4, 2015.

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, in a decision reported at (2014), 310 Man.R.(2d) 204; 618 W.A.C. 204, allowed the mother's appeal on issues (1) and (2), and dismissed the father's cross-appeal. Given the outcome of the appeals, the parties were provided with an opportunity to make further written submissions respecting the mother's appeal of the costs award. The father moved for a rehearing of the appeal.

The Manitoba Court of Appeal dismissed the father's motion and allowed the mother's appeal of the costs award.

Family Law - Topic 2416

Maintenance of spouses and children - Practice - Costs - [See Family Law - Topic 4175 ].

Family Law - Topic 4175

Divorce - Corollary relief - Practice - Costs - General (incl. considerations) - A mother successfully appealed the decision of a trial judge which (1) capped child support payable by the father at the table income for income of $150,000, and (2) awarded her time-limited step-down spousal support - Consequently, the mother also appealed the trial judge's decision to award the father double costs of approximately $86,000 - Notwithstanding the mother's success, the father asserted that his offers to settle and the mother's conduct disentitled her to costs and entitled him to double costs under Queen's Bench Rule 49 - The Manitoba Court of Appeal allowed the mother's appeal from costs - The father could not rely on rule 49 because (1) he did not obtain a judgment "as favourable as or more favourable than the terms of the offer to settle" (rule 49.10(1)(d)); and (2) the offer to settle was not served at least seven days before the proceedings began - Given the mother's success, the father was not entitled to double costs or any costs at all - However, the mother was also disentitled to costs because of the reasonableness of one of the father's offers to settle, and because of the trial judge's findings of misconduct which were entitled to deference - Each party was ordered to bear their own costs of trial - See paragraphs 45 to 71.

Family Law - Topic 4188

Divorce - Corollary relief - Practice - Costs - Appeals from costs order - [See Family Law - Topic 4175 ].

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - [See Family Law - Topic 4175 ].

Practice - Topic 5419

Judgments and orders - General - Entry of judgments and orders - [See Practice - Topic 9137 ].

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct - [See Family Law - Topic 4175 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double or substantial indemnity costs - [See Family Law - Topic 4175 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Family Law - Topic 4175 ].

Practice - Topic 8301

Costs - Appeals - Appeals from order granting or denying costs - Variation of order of trial court - [See Family Law - Topic 4175 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - The parties separated in 2010 - In 2013, the trial judge awarded the wife spousal support, including a lump sum retroactive spousal support payment of $20,800 - The husband's appeal from the retroactive component of the spousal support award was dismissed - He moved for a rehearing of the appeal, asserting that the court failed to take into account the income tax ramifications of that award - In particular, he argued that he would not be able to receive an income tax deduction for the monthly amounts attributed to the years 2010 to 2012 because they were not made in the year the order was made or the preceding year - The Manitoba Court of Appeal dismissed the motion due to the absence of exceptional circumstances - First, the husband failed to identify a patent error on a material point - Second, the tax deductibility of spousal support payments was not an issue that the husband addressed at the appeal, even though it was reasonably foreseeable and could have been dealt with - Third, even if there was an error because the issue was overlooked, it was neither significant in nature nor did it result in a consequential risk of a miscarriage of justice - The retroactive spousal support award was neither perverse nor fundamentally wrong - See paragraphs 15 to 25.

Practice - Topic 9137

Appeals - Hearing of appeal - Rehearing - Application for - Jurisdiction - In November 2014, a court of appeal dismissed a husband's appeal from an order which required him to pay retroactive spousal support - The father filed a motion for a rehearing of the appeal on December 23, 2014 - A certificate of decision was signed and entered on December 24, 2014 - Relying on rules 46.2(2) and 46.2(4) of the Court of Appeal Rules, the wife questioned whether the court had jurisdiction to hear the father's motion because the certificate of decision had been signed and entered - The Manitoba Court of Appeal stated "I am satisfied that it is appropriate for this panel to consider the father's motion for two reasons. First, the notice of motion was filed one day prior to the signing and entry of the certificate of decision. Second, the certificate of decision granted leave to the father to bring the motion for a rehearing." - See paragraph 14.

Cases Noticed:

Tsaoussis v. Baetz (1998), 112 O.A.C. 78 (C.A.), leave to appeal refused (1999), 236 N.R. 189 (S.C.C.), refd to. [para. 7].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 7].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 7].

Loewen v. Manitoba Teachers' Society (2015), 315 Man.R.(2d) 123; 630 W.A.C. 123; 2015 MBCA 13, refd to. [para. 7].

Willman v. Ducks Unlimited (Canada) (2005), 192 Man.R.(2d) 39; 340 W.A.C. 39; 2005 MBCA 13, refd to. [para. 7].

Child and Family Services of Winnipeg v. J.A. et al. (2005), 192 Man.R.(2d) 76; 340 W.A.C. 76; 2005 MBCA 26, refd to. [para. 8].

Robins v. National Trust Co. Ltd., [1927] All E.R. Rep. 73, refd to. [para. 20].

Lin v. Tang et al. (1997), 93 B.C.A.C. 57; 151 W.A.C. 57; 37 B.C.L.R.(3d) 325 (C.A.), refd to. [para. 21].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 45].

Sun Indalex Finance, LLC v. United Steelworkers - see Indalex Ltd. et al., Re.

Indalex Ltd. et al., Re, [2013] 1 S.C.R. 271; 439 N.R. 235; 301 O.A.C. 1; 2013 SCC 6, refd to. [para. 45].

Ducharme v. Borden (2014), 303 Man.R.(2d) 81; 600 W.A.C. 81; 2014 MBCA 5, refd to. [para. 45].

Judges of the Provincial Court (Man.) v. Manitoba et al. (2013), 294 Man.R.(2d) 273; 581 W.A.C. 273; 2013 MBCA 74, refd to. [para. 45].

Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83 (C.A.), refd to. [para. 48].

Williams v. Downey-Waterbury (1995), 100 Man.R.(2d) 194; 91 W.A.C. 194 (C.A.), leave to appeal refused [1995] S.C.C.A. No. 217, refd to. [para. 48].

Stewart v. Stewart (2007), 214 Man.R.(2d) 199; 395 W.A.C. 199; 2007 MBCA 66, refd to. [para. 48].

Mellway v. Mellway (2004), 187 Man.R.(2d) 247; 330 W.A.C. 247; 2004 MBCA 119, refd to. [para. 53].

Andrews v. Andrews (1999), 124 O.A.C. 259 (C.A.), refd to. [para. 54].

Serra v. Serra, [2009] O.A.C. Uned. 256; 66 R.F.L.(6th) 40; 2009 ONCA 395, refd to. [para. 67].

Goulding v. Keck (2014), 580 A.R. 352; 620 W.A.C. 352; 2014 ABCA 293, refd to. [para. 72].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 49 [para. 30].

Authors and Works Noticed:

Maur, Mary Jo, Bala, Nicholas, and Adams, Graeme, Re-thinking Costs in Ontario Family Cases: Encouraging Parties to "Move Forward" (2014), 33 C.F.L.Q. 173, pp. 174, 175, 197 [para. 65].

Orkin, Mark M., The Law of Costs (2nd Ed. 2014) (Looseleaf), §§ 214.1 [para. 64]; 214.6 [para. 54].

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2012), p. 579 [para. 26].

Counsel:

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

A.L. Bennet, for the respondent.

This motion and appeal were heard on June 2, 2014, before Hamilton, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. The judgment of the court was delivered on November 6, 2014, and the following supplemental reasons for judgment were delivered by Hamilton, J.A., on May 4, 2015.