Sinclair v. McAuley, (2012) 284 Man.R.(2d) 25 (CA)

• Judge: Steel, Hamilton and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 13, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 284 Man.R.(2d) 25 (CA);2012 MBCA 86

Sinclair v. McAuley (2012), 284 Man.R.(2d) 25 (CA);

      555 W.A.C. 25

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. OC.024

Lori Ellen Sinclair (petitioner) v. Todd Henry McAuley (respondent) (by original action)

And Between:

Craig Genaille as the Executor of the Estate of Lori Ellen Sinclair (petitioner/respondent) v. Todd Henry McAuley (respondent/appellant) (by order dated May 4, 2012)

(AF 12-30-07760; 2012 MBCA 86)

Indexed As: Sinclair v. McAuley

Manitoba Court of Appeal

Steel, Hamilton and Monnin, JJ.A.

September 13, 2012.

Summary:

A father appealed an order dealing generally with child support. The mother had been diagnosed with a terminal brain tumour. The father sought an order preserving the benefits accruing from two policies of life insurance on the mother's life pending hearing of the appeal. The order below had not been finalized or entered yet.

The Manitoba Court of Appeal, per Monnin, J.A., in a decision reported at (2012), 280 Man.R.(2d) 41; 548 W.A.C. 41, dismissed the application. There were significant changes in circumstances. The father brought a similar application.

The Manitoba Court of Appeal, per Chartier, J.A., in a decision reported at 280 Man.R.(2d) 219; 548 W.A.C. 219, allowed the application. The appeal proceeded.

The Manitoba Court of Appeal dismissed the appeal.

Family Law - Topic 2229

Maintenance of wives and children - Interim relief - Appeals - Unmarried parents were engaged in a child support dispute - The mother had been diagnosed with a terminal brain tumour - A motions judge ordered the mother to pay monthly child support and that the assets of both parties be preserved until the completion of the family equalization proceeding - However, the motions judge refused to make an order binding the estate to make those child support payments or make an order that the proceeds of the life insurance policies be held - The mother passed away - The father appealed respecting the motions judge's refusal to order that the proceeds of two life insurance policies be held until a trial of the issue - The Manitoba Court of Appeal dismissed the appeal - This was an interim discretionary order - Courts had repeatedly stated that successful appeals from interim orders would be rare and that such appeals were to be discouraged - There were no grounds to interfere with the motions judge's discretion in this case - There was no misapprehension of fact or error in law - The decision was not unjust - The motions judge considered the overall legislative scheme available upon death to allow for support for the child and declined to make the order requested on an interim basis.

Family Law - Topic 2354.3

Maintenance of wives and children - Children - Effect of death of spouse - [See Family Law - Topic 2229 ].

Family Law - Topic 2359.1

Maintenance of wives and children - Children - Life insurance - [See Family Law - Topic 2229 ].

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. 6].

Martin v. Orris (2010), 255 Man.R.(2d) 126; 486 W.A.C. 126; 2010 MBCA 59, refd to. [para. 6].

Dutkowski v. Dutkowski (2007), 45 R.F.L.(6th) 433; 2007 BCSC 1558, refd to. [para. 7].

Counsel:

C.B. Paul, for the appellant;

J.E. Crane and T.M. Keller, for the respondent.

This appeal was heard on September, 13, 2012, before Steel, Hamilton and Monnin, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., pronounced the following oral decision for the court on that date.