Winstanley v. Winstanley, 2016 MBCA 17

• Judge: Beard, Monnin and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 03, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 17;(2016), 326 Man.R.(2d) 92 (CA)

Winstanley v. Winstanley (2016), 326 Man.R.(2d) 92 (CA);

      664 W.A.C. 92

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.025

Sherrie Louise Winstanley (petitioner/respondent) v. Douglas Gilbert Winstanley (respondent/appellant)

(AF 14-30-08313; 2016 MBCA 17)

Indexed As: Winstanley v. Winstanley

Manitoba Court of Appeal

Beard, Monnin and Pfuetzner, JJ.A.

February 3, 2016.

Summary:

A father appealed the quantum of child support and extraordinary expenses required to be paid under a variation order for his adult son, who was attending university.

The Manitoba Court of Appeal allowed the appeal to the limited extent that the trial judge erred in failing to reduce the son's post-secondary education fees by $2,000, being the grant portion of the son's student aid which did not need to be repaid.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - A father appealed the quantum of child support and extraordinary expenses he was required to pay under a variation order for his adult son, who was attending university - The father argued that the trial judge erred in: (1) failing to consider the son's unilateral decision to terminate the father/son relationship; (2) finding that the son's educational plan to complete his degree in five years rather than three was reasonable; (3) ordering child support under s. 3(2)(a) of the Federal Child Support Guidelines (amount payable as if child under age of majority) rather than under s. 3(2)(b) for a child over the age of majority; and (4) failing to reduce his share of extraordinary expenses by what the son could contribute by way of income and the portion of student aid the son received that was a non-repayable grant - The Manitoba Court of Appeal held that where the father agreed that his son was entitled to child support, the unilateral termination of the father/son relationship was irrelevant to determining the amount payable under s. 3(2)(a) - The trial judge made no palpable and overriding error in determining that the son's educational plan was reasonable or in awarding support under s. 3(2)(a) rather than s. 3(2)(b) - However, the trial judge did err in failing to deduct from extraordinary expenses (educational costs) the grant portion of the student aid received ($2,000) - Unlike the student loan portion (repayable), the grant portion did not have to be repaid - Accordingly, the post-secondary education fees to which the father had to contribute were reduced by $2,000 - See paragraphs 15 to 41.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - [See Family Law - Topic 4045.4 ].

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. 7].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 8].

How v. How (2010), 251 Man.R.(2d) 117; 478 W.A.C. 117; 2010 MBCA 11, refd to. [para. 8].

Diment v. Diment (2014), 306 Man.R.(2d) 6; 604 W.A.C. 6; 2014 MBCA 37, refd to. [para. 8].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 9].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 9].

Starr v. Starr (2008), 234 Man.R.(2d) 130; 2008 MBQB 305 (Fam. Div.), refd to. [para. 19].

M.A.B.A. v. F.A. (2015), 318 Man.R.(2d) 128; 2015 MBQB 97, refd to. [para. 19].

Counsel:

G.R. Champagne, for the appellant;

K.D.A. Soul, for the respondent.

This appeal was heard on January 12, 2016, before Beard, Monnin and Pfuetzner, JJ.A., of the Manitoba Court of Appeal.

On February 3, 2016, Beard, J.A., delivered the following judgment for the Court of Appeal.