S.A.C. v. S.E.C., (2015) 316 Man.R.(2d) 277 (QBFD)

• Judge: Thomson, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 07, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 316 Man.R.(2d) 277 (QBFD);2015 MBQB 61

S.A.C. v. S.E.C. (2015), 316 Man.R.(2d) 277 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.028

S.A.C. (petitioner) v. S.E.C. (respondent)

(FD 10-01-96535; 2015 MBQB 61)

Indexed As: S.A.C. v. S.E.C.

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Thomson, J.

April 7, 2015.

Summary:

The parties separated after 10 years of marriage. They had four children between the ages of six and 12. Following separation, the father was charged with historical sexual offences against other related children and the mother was the subject of an investigation by Child and Family Services (CFS). At issue in these divorce proceedings was custody of the children, the mother's request to move with the children to the United States, and child support.

The Manitoba Court of Queen's Bench, Family Division, granted the mother sole custody on the condition that she fully cooperate and comply with recommendations made by CFS. The mother's request to relocate was denied. The father was granted supervised access and ordered to continue paying child support as set out in an interim order.

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 1891

Custody and access - Considerations in awarding custody - Conduct of parents - The parties separated in 2011 - The father rarely saw the parties' four children (aged 6, 8, 10 and 12) for over two years - Any contact that he did have was supervised because he had recently been charged with historical sexual offences against three children (his niece, his half-sister, and the mother's cousin) - He was presently serving a one year conditional sentence and three years of supervised probation and would not be eligible for anything except supervised access until at least mid-2016 when he completed a sex offender treatment program - The mother had been investigated by Child and Family Services (CFS) following allegations of abuse - It was determined that she had used inappropriate physical discipline - All four children displayed emotional and behavioural problems - The father sought an order for joint custody - The mother sought an order allowing her to relocate with the children to the United States - The Manitoba Court of Queen's Bench, Family Division, held that the father was a danger to children generally and that his parental role should continue to be severely circumscribed (i.e., only supervised access) - The mother was granted sole custody on the condition that she fully cooperate with CFS and adhere to any recommendations that CFS might make regarding assessment, treatment, counselling and/or remedial programming for her and the children - The mother's request to relocate was denied because such a move could expose the children to a heightened risk of harm - See paragraphs 53 to 104.

Family Law - Topic 1895

Custody and access - Considerations in awarding custody - Changing child's residence - [See Family Law - Topic 1891 ].

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See Family Law - Topic 1891 ].

Family Law - Topic 1901

Custody and access - Considerations in awarding custody - Risk of future harm - [See Family Law - Topic 1891 ].

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - [See Family Law - Topic 1891 ].

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - [See Family Law - Topic 4045.5 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines - Calculation or attribution of income - The parties separated in 2011 - The mother was granted sole custody of the parties' four children - She sought child support - In 2014, the father was terminated from his employment after being charged with a sexual offence against his niece that occurred in 2004 or 2005 - The father argued that income should not be imputed to him because (1) he could not reasonably anticipate or foresee in 2004 or 2005 that his criminal conduct would result in a reduction of his income and ability to pay child support; and (2) his income "is what it is", and imputing income would simply cause the accumulation of arrears which had no chance of being satisfied - The Manitoba Court of Queen's Bench, Family Division, rejected both submissions, stating "The Guidelines' objectives are about fairness, conflict reduction, efficiency and consistency. The receipt of child support ought not to be contingent upon a judicial enquiry into the vagaries of the obligor's objective or subjective state of mind, in relation to his engagement in criminal conduct of the sort in this case. ... [E]ven if such an enquiry were undertaken, ... it would have been reasonably foreseeable that the current circumstances might well in future unfold for the [father] ... In any event, there is a causal connection between the loss of his employment in 2014 ... and his criminal conduct. In my view, that permits the court to exercise its discretion to impute income to him. As regards the accrual of arrears if income is imputed to him, that potential, or eventuality, hardly distinguishes this case from others." - See paragraphs 122 to 133.

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 45].

Courchesne v. Courchesne, [2004] O.T.C. Uned. 57; 128 A.C.W.S.(3d) 544 (Sup. Ct.), refd to. [para. 121].

Hutchison v. Gretzinger, [2007] O.T.C. Uned. P71; 48 R.F.L.(6th) 167; 162 A.C.W.S.(3d) 1000 (Sup. Ct.), refd to. [para. 121].

Van Dusen v. Van Dusen, [2010] O.T.C. Uned. 220; 2010 ONSC 220, refd to. [para. 121].

Donovan v. Donovan (2000), 150 Man.R.(2d) 116; 23 W.A.C. 116; 2000 MBCA 80, refd to. [para. 127].

Delichte v. Rogers (2013), 299 Man.R.(2d) 269; 590 W.A.C. 269; 2013 MBCA 106, refd to. [para. 134].

Counsel:

Lyndsey A. Amott, for the petitioner;

Debra L. Takeuchi, for the respondent.

This matter was heard before Thomson, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on April 7, 2015.