Simpson v. Lockman, 2012 MBQB 216

• Judge: Yard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 25, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBQB 216;(2012), 282 Man.R.(2d) 218 (QBFD)

Simpson v. Lockman (2012), 282 Man.R.(2d) 218 (QBFD)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. AU.005

Zinn Astorath Barbara Simpson (formerly Lockman) (applicant) v. Leonard Elia Lockman (respondent)

(FD 10-01-94542; 2012 MBQB 216)

Indexed As: Simpson v. Lockman

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Yard, J.

July 25, 2012.

Summary:

Parents divorced in South Africa in 1994. The father had not paid child support for their two children since 1996. In 2010, the mother brought a child support variation application under the Inter-jurisdictional Support Orders Act (Man.).

The Manitoba Court of Queen's Bench, Family Division, allowed the application in part.

Family Law - Topic 2342.1

Maintenance of wives and children - Maintenance of children - Dependent child - The Manitoba Court of Queen's Bench, Family Division, stated that "The language of the F.M.A. [Family Maintenance Act (Man.)] s. 35.1(b) respecting a child of '18 years of age or over and under their care and charge but is unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life', in all material respects mirrors the definition of 'child of the marriage' contained in the Divorce Act ..." - The court stated that that definition had been authoritatively judicially determined over many years and it reviewed some of the principles arising from that judicial interpretation - See paragraph 44.

Family Law - Topic 2342.1

Maintenance of wives and children - Maintenance of children - Dependent child - [See first Family Law - Topic 2353 ].

Family Law - Topic 2347

Maintenance of wives and children - Maintenance of children - Jurisdiction - [See first Family Law - Topic 2353 ].

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - Parents divorced in South Africa in 1994 - The father had not paid child support for their two children (Vincent and Stefani) since 1996 - In 2010, the mother brought a child support variation application under the Inter-jurisdictional Support Orders Act (Man.) (ISO) - When the application was made, Vincent was in the Navy - He spent several months there, having dropped out of medical school for financial reasons, then returned to university to pursue a commerce degree - The Manitoba Court of Queen's Bench, Family Division, held that Vincent did not meet the statutory definition of child under the Family Maintenance Act (Man.) when the application was made and the court was unable to enforce any unfulfilled retroactive obligation by his father to support him during earlier times - Unfulfilled in this context did not refer to the enforcement of arrears accumulated under the South African order, but rather to the amount which might be found to be owing as a result of a variation order with retroactive effect bearing in mind the principles under D.B.S. v. S.R.G. (2006 SCC) - The court held that the mother was not required to make a fresh ISO support application for Vincent given his subsequent return to fulltime university studies or his change of status effective July 2011, when he began living with his mother and was again under her care and charge - That claim was capable of being assessed and addressed on this application - The Supreme Court of Canada's comments in D.B.S. were directed to the question of making retroactive awards only - Where there was an application before the courts seeking child support and at the time of adjudication the child in question met the statutory definition of a child for support purposes, it would be perverse not to consider the support issue on its merits during any period after the application had been filed and for which ongoing support was sought - See paragraphs 51 to 55 and 72.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - Parents divorced in South Africa in 1994 - The father had not paid child support for their two children (Vincent and Stefani) since 1996 - In 2010, the mother brought a child support variation application under the Inter-jurisdictional Support Orders Act (Man.) (Act) - The father earned over $150,000 annually - His new wife also had a substantial income - They had three children of their own - The Manitoba Court of Queen's Bench, Family Division, held that any retroactive effect to a variation order should be measured from the first effective notice of the mother's variation claim, namely October 29, 2010, when the father was served with formal notice of the application - Thus, the order should not be varied with past effect for a time earlier than October 29, 2007, unless blameworthy conduct by the payor was found - There was no shortage of such conduct where the father had clearly privileged his own interests over his children's throughout - The mother had also shown blameworthy conduct by being unduly and remarkably dilatory in seeking to enforce and update the father's child support obligations - Notwithstanding the blameworthy conduct, a fair result to all was to limit a retroactive variation award to three years from the date of formal notice to the father (November 2007) - While significant, the father could well afford the retroactive award and meet his ongoing obligations to Stefani and Vincent while they concluded their studies, and also meet his second family's needs - While Stefani's education and university costs would continue to be her father's proportionate responsibility up to the time when the father was served with notice of variation, given the quantum of ongoing support for both children, their s. 7 post-secondary education expenses beginning November 2010 would be subsumed in the basic support award on an ongoing basis - This would contribute to the Table amounts continuing to be appropriate and not inappropriate (Guidelines, ss. 3 and 4) - See paragraphs 73 to 92.

Family Law - Topic 2522

Maintenance of wives and children - Enforcement - Orders - Jurisdiction - [See first Family Law - Topic 2353 ].

Family Law - Topic 2543

Maintenance of wives and children - Enforcement - Foreign orders - Jurisdiction - [See first Family Law - Topic 2353 ].

Family Law - Topic 2547

Maintenance of wives and children - Enforcement - Foreign orders - Variation - Parents divorced in South Africa in 1994 - The father had not paid child support for their two children since 1996 - In 2010, the mother brought a child support variation application under the Inter-jurisdictional Support Orders Act (Man.) (Act) - The Manitoba Court of Queen's Bench, Family Division, stated that, as provided for in s. 31 of the Act, the applicable law was Manitoba law both as to child support rights and obligations and as to quantification - As the parties were divorced outside of Canada the provisions of the Divorce Act did not apply - Thus, the case fell to be determined under the principles set out in the Family Maintenance Act (Man.) - See paragraphs 36 and 37.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - [See second Family Law - Topic 2353 and Family Law - Topic 4045.11 ].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - At issue was whether the Table amount of Child support under the Family Maintenance Act (Man.) was "appropriate" where the two children were over the age of majority and the father earned over $150,000 a year - With the exception of the son's brief stint in the Navy in 2010, they had both been fulltime students, had not been employed or married or otherwise been able to withdraw from their mother's care - They had no independent resources and were entirely dependent upon her for their support - The Manitoba Court of Queen's Bench, Family Division, considered that there was no indication of affluence or excess in the mother's lifestyle and the father and his new wife both had substantial incomes - The court held that Table support was not "inappropriate" or "unsuitable" - Further, the father had been able to afford to contribute to the children's s. 7 post-secondary education costs and there was no reason why he should not do so - The costs were necessary relative to each child's best interests and reasonable relative to the parents' means - See paragraphs 55 to 70.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Where income over $150,000 - [See second Family Law - Topic 2353 and Family Law - Topic 4045.11 ].

Cases Noticed:

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, appld. [para. 42].

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, appld. [para. 42].

Thompson v. Ducharme (2004), 184 Man.R.(2d) 119; 318 W.A.C. 119; 2004 MBCA 42, refd to. [para. 43].

Jackson v. Jackson, [1973] S.C.R. 205, refd to. [para. 44].

Ruttan v. Ruttan, [1982] 1 S.C.R. 690; 42 N.R. 91, refd to. [para. 44].

Swidzinsky v. Swidzinsky and Swiss (1985), 33 Man.R.(2d) 305 (C.A.), refd to. [para. 44].

Wahl v. Wahl (2000), 257 A.R. 212; 2000 ABQB 10, refd to. [para. 44].

Tapson v. Tapson, [1970] 1 O.R. 521 (C.A.), refd to. [para. 44].

Martin v. Martin (1988), 26 B.C.L.R.(2d) 390 (C.A.), refd to. [para. 44].

Grini v. Grini (1969), 5 D.L.R.(3d) 640 (Q.B.), refd to. [para. 44].

Budyk v. Sol - see Budyk v. Budyk.

Budyk v. Budyk (1998), 126 Man.R.(2d) 305; 167 W.A.C. 305; 40 R.F.L.(4th) 348 (C.A.), refd to. [para. 44].

Oswald v. Oswald (2001), 152 Man.R.(2d) 252; 2001 MBQB 47, refd to. [para. 44].

Janzen v. Janzen (1981), 28 B.C.L.R. 63 (C.A.), refd to. [para. 44].

Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134; 32 R.F.L.(4th) 406 (C.A.), refd to. [para. 44].

Gray v. Gray (1992), 80 Man.R.(2d) 161; 39 R.F.L.(3d) 127 (Q.B. Fam. Div.), refd to. [para. 44].

Bain v. Bain (1994), 7 R.F.L.(4th) 451 (Man. Q.B.), refd to. [para. 44].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 56].

Dickson v. Dickson (2009), 247 Man.R.(2d) 56; 2009 MBQB 274 (Fam. Div.), refd to. [para. 61].

Statutes Noticed:

Family Maintenance Act, R.S.M. 1987, c. F-20; C.C.S.M., c. F-20, sect. 35.1(b) [para. 36].

Counsel:

No counsel, for the applicant;

Jessica L. Dillon, for the respondent;

Coral D. Lang, for Manitoba Designated Authority.

This case was heard by Yard, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following decision on July 25, 2012.