2023 MBKB 27, 2023 MBKB 27

Date: 20230310 Docket: FD 21-11-03395 (Morden Centre) Indexed as: Geirnaert v. Geirnaert Cited as: 2023 MBKB 27 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: RACHEL MAE GEIRNAERT ) ) Renée G. Lemieux Howard Stéphanie Bauch petitioner, ) ) for the petitioner - and - ) ) daniel ceasar Joseph geirnaert respondent. ) ) ) Loren Braul for the respondent ) ) Judgment Delivered: ) March 10, 2023 Corrected judgment: An Erratum was issued on March 24, 2023. The text of the original judgment is reproduced here with corrections, and the Erratum is appended at the end of the Corrected Judgment. antonio J.

INTRODUCTION [ 1 ] This is a decision resulting from a trial heard in October and November 2022, which concluded with the Court directing counsel to file written argument with respect to all child support issues. Counsel shall file supplementary written argument once this decision on child support is released to the parties, in respect to Mr. Geirnaert’s request for spousal support, and thereafter the Court will make its decision on that remaining issue. [ 2 ] The primary issue in this case is when Ryan, the parties’ 20-year-old son, ceased to be a child of the marriage. Also at issue is what contribution Mr.

Geirnaert should make to the special and extraordinary expenses relating to the four children. [ 3 ] Ms. Geirnaert submits that Ryan remained a child of the marriage following his high school graduation in June 2020 until September 30, 2022. Ryan attended university from fall 2020 until he withdrew in January 2022, then he worked part-time starting in April 2022 until starting full-time employment in October 2022. [ 4 ] Mr. Geirnaert submits that Ryan ceased to be a child of the marriage as of May 2021. He argues that the evidence reasonably establishes that Ryan was “able to withdraw from the charge” of Ms.

Geirnaert by that date. He submits it was a poor decision that Ryan re-enrolled in university in the fall of 2021. He relies on Ryan’s poor academic performance, and claims that Ryan and Ms. Geirnaert failed to keep him informed about Ryan’s grades or the cost of the university program. [ 5 ] Ms. Geirnaert submits that in the worst case, Ryan remained a child of the marriage until at least March 31, 2022. She submits, however, that the Court should find that Ryan continued to be under her charge and financially dependent upon her long beyond that date and child support should continue for him until October 2022.

She says it is very clear that Ryan was unable to achieve financial independence in the spring of 2022, when he found his seasonal part-time job in lawn care maintenance. [ 6 ] Having considered the evidence concerning the discussions between Ryan and each of his parents about his plans to attend university, the costs of the program compared with other options in Manitoba, Ryan’s plans and goals and his mental health, this Court agrees with Ms. Geirnaert. Ryan remained a child of the marriage until September 30, 2022.

[ 7 ] Also in dispute is the question of Mr. Geirnaert’s income. Ms. Geirnaert asks the Court to impute Mr. Geirnaert’s income to $58,917.20 based on his income from his former employment. He voluntarily left his long-standing employment in Altona, Manitoba and moved to Thunder Bay, Ontario, where he now works a seasonal job. [ 8 ] Mr. Geirnaert asks the Court to accept his evidence that he was socially isolated and harassed while living in Altona and he had to leave.

He says he found work in a new industry that makes him happy and asks the Court to accept that it was reasonable for him to move to a job that earned him $32,000 with no benefits. He asks the Court to fix his income at no more than $48,000, based upon his new wage ($32,000), and adjusted upwards to impute him for the four months that he was laid off. [ 9 ] The Court considered the circumstances under which Mr.

Geirnaert says he felt he needed to seek employment elsewhere, the new position he chose to take, his skill and experience, the work available to him in Manitoba and the evidence around what occurred in Altona that made it uncomfortable for Mr. Geirnaert to remain living there. It is neither reasonable nor fair to fix Mr. Geirnaert’s income at $48,000. Had Mr. Geirnaert remained in Manitoba, in the industry where he worked since before the parties’ separation, the evidence suggests that he would earn an income greater than $50,000 (not including income from umpiring baseball). The Court accepts Ms.

Geirnaert’s analysis and fixes Mr. Geirnaert’s income, for purposes of calculating child and spousal support, at $58,000. [ 10 ] In dispute between the parties was a significant claim by Ms. Geirnaert for retroactive and ongoing special and extraordinary expenses (section 7 expenses). The Court reviewed the expenses claimed for the children and finds that they were necessary and reasonable, taking into account a decade-long pattern of spending by the family, the financial resources of the parties, and the best interests of the children. [ 11 ] The Court allows Ms. Geirnaert’s claim for retroactive amounts for

section 7 expenses, totaling $43,358.41 for the four children dating back to June 2021. ISSUES [ 12 ] The Court made orders with respect to the following issues: 1. What is the income of Mr. Geirnaert? 2. When did Ryan cease to be a child of the marriage and what is the appropriate amount of child support for Ryan after he turned 18? 3. What retroactive child support, if any, is owed by Mr. Geirnaert? 4. What is the amount of Mr. Geirnaert’s obligation to contribute to

section 7 expenses retroactively? 5. What is Mr. Geirnaert’s obligation to pay ongoing child support and contribute to ongoing

section 7 expenses? ISSUE #1 - What is the income of Mr. Geirnaert? [ 13 ] The imputation request of Ms. Geirnaert of $58,917.20 is based upon the following: 1. $55,342.20 agreed to at a June 1, 2021 case conference; plus 2. $3,575 from umpiring baseball games. [ 14 ] Mr. Geirnaert says that in 2022 he will earn $32,000 from his employment with All Seasons Siding and Renovation (All Seasons), plus income from employment insurance, for a total annual income of $40,000.

He argues that the Court should not impute income to him except for a small amount during his lay-off period, to adjust as though he was able to earn a steady income throughout the lay-off period. He says that $48,000 would be fair imputed income also considering his five-year historical average with his former employer, Alliance Pulse Processing/AGT Foods (AGT Foods). The Court rejects this position of Mr. Geirnaert. FACTS [ 15 ] Mr. Geirnaert worked with AGT Foods during the relationship and quit that position on August 20, 2021.

On August 25, 2021, approximately, he moved to Thunder Bay, Ontario and started work at All Seasons. He earns $23.50 per hour with All Seasons, the same rate of pay as with AGT Foods; however, in his new job there is an extended lay-off period each year, approximately five months last year. [ 16 ] Mr. Geirnaert chose to leave his employment in Manitoba he says, in part, because he wanted to do siding work for a long time. He testified that when he took the job with All Seasons, he did not know it was a seasonal job only and would be laid off.

He testified that he no longer has any opportunity to work overtime, no medical and dental benefits for the children, no life insurance, no short-term or long-term disability benefits, nor any RRSP program. [ 17 ] The imputed amount sought by Ms. Geirnaert is in part based upon the income set out for Mr. Geirnaert in the Consent Interim Order of the Honourable Madam Justice Everett, pronounced on April 18, 2022 (Interim Order). In the Interim Order, the parties agreed to fix Mr. Geirnaert’s income from AGT Foods at a rate of $55,342.20 per annum. The additional $3,575, as suggested by Ms.

Geirnaert, uses the average income for Mr. Geirnaert from umpiring 55–100 baseball games per year in Manitoba. [ 18 ] Mr. Geirnaert pointed out that the Interim Order fixed his income before his 2020 tax return was available and that he ended up only earning $50,207. [ 19 ] Mr. Geirnaert testified that, prior to the Covid-19 pandemic, he earned a few thousand dollars from umpiring per year, earning somewhere between $1,650 and $5,500 per year. On cross-examination, he confirmed the ability to earn approximately $30 – $55 per

game and to attend 55–100 games per year when living in Altona. Mr. Geirnaert testified that he did not take any umpiring jobs in 2022. [ 20 ] Mr. Geirnaert testified that he has not yet umpired in any baseball games in Thunder Bay, Ontario and mentioned generally that he had something wrong with his eye. He did not provide medical opinion evidence at the trial, or any particulars of treatment, a prognosis or what this meant for his ability to umpire in Ontario. He did confirm that he was qualified and eligible to umpire baseball games in Ontario. [ 21 ] Mr.

Geirnaert testified that his mental health was deteriorating while living in Altona due to the social isolation he was experiencing from harassment and mistreatment in the community, and gossip about his domestic court matter. LAW [ 22 ] This Court has considered section 19 (1) of the Federal Child Support Guidelines , SOR/97-175 , ( CSG ), allowing the Court to impute such amounts of income “as it considers appropriate in the circumstances”, taking into account nine defined circumstances. Ms. Geirnaert pleads and relies upon section 19(1) (

a) which states the following: Imputing income 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 23 ] Ms. Geirnaert cited paragraphs 16 and 21 of the oft-cited decision in Donovan v. Donovan , 2000 MBCA 80 : [16] … The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning.

The parent required to pay is intentionally unemployed if he or she chooses not to work when capable of earning an income. ( citations omitted ) … [21] … As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. ANALYSIS [ 24 ] The Court finds that it is fair to impute Mr. Geirnaert’s income to $58,000. He is capable of earning wages in Manitoba at the level suggested by Ms. Geirnaert. The Court finds that Mr.

Geirnaert’s decision was voluntary, out of preference for his enjoyment of his job and to the detriment of his obligation to support the children; therefore, his income should be imputed under section 19(1) of the CSG . [ 25 ] The Court accepts the argument that Mr. Geirnaert’s decision to leave his job has a significant financial impact on the expense sharing for the children’s health-related costs, especially for Ryan who has regular medical costs relating to diabetes.

He made this choice not to avail himself of income available to him to the detriment of the children’s financial well-being. [ 26 ] The Court considered the following: 1. Mr. Geirnaert was laid off by All Seasons for approximately five months and only received employment and income assistance payments; 2. Mr. Geirnaert did not look for work during his 2022 layoff; 3. There was nothing requiring Mr. Geirnaert to quit his job with AGT Foods, although the Court accepts his discomfort with continuing to live in Altona; 4. Mr.

Geirnaert testified that he would be unable to get overtime with AGT Foods if he stayed, however, the evidence is that the suspension on overtime was anticipated to end; 5. The Court accepts evidence that the reduction in overtime hours occurred in the past and was not permanent, but was a cyclical occurrence, as is demonstrated by the fluctuations in Mr. Geirnaert’s income shown on his tax returns; 6. While Mr.

Geirnaert’s employment with All Seasons compared with AGT Foods, involves the same hourly rate of pay, he is not eligible for overtime with All Seasons and his lay-off last year continued for approximately five months; and Mr. Geirnaert was cross-examined about his testimony that he was being socially isolated from others in Altona, and his relationship with the children continued to suffer. He acknowledged the following: (

a) he was accused of stealing money from the Altona Minor Hockey Association (AMH), which led to AMH board members and the police dealing with the incident; and (

b) he told his mother about the domestic proceeding going to court.

[ 27 ] The Court accepts Mr. Geirnaert’s evidence as genuine, that he had an interest for a long time in doing siding work, which he was able to do at All Seasons. His desire to avoid the rude behavior of others towards him is understandable; however, not a justification for setting his income at $48,000 per year. Mr. Geirnaert’s own mishandling of funds with the AMH led to the involvement of the police and AMH board, and possibly the communication amongst the greater community, which led to Mr. Geirnaert feeling less than welcome there. Mr.

Geirnaert testified that he did not keep information about the domestic court proceeding to himself, therefore any impact to him of others knowing about court may well have stemmed from the information originating with him. [ 28 ] Mr. Geirnaert had a stable, long-term position with AGT Foods, which carried significant benefits, but a temporary suspension on overtime.

He left that position to move seven hours away for his own personal reasons, and while he may have felt great discomfort residing in Altona, his children are entitled to the benefit of his ability to provide for their support, taking into account available work, his experience, and qualifications. If he did not wish to reside in Altona any longer, it was still not a reasonable decision to relocate seven hours away and take a job that netted him work only seven to eight months of the year, with no overtime or benefits. [ 29 ] Regarding umpiring baseball games, Mr.

Geirnaert did not provide any evidence upon which to satisfy this Court that this income was no longer available to him. In fact, the evidence allows this Court to conclude the opposite. The evidence is that he would have had the same opportunities for umpiring in Manitoba had he not moved away, and in any event is qualified to continue umpiring in Ontario. The Court imputes umpiring income of $3,000 as suggested by Ms. Geirnaert, over and above his base income set at $55,000. ISSUE #2 - When did Ryan cease to be a child of the marriage?

What is the appropriate amount of child support for Ryan after he turned 18? [ 30 ] Ms. Geirnaert asks the Court to find that Ryan remained a child of the marriage, until he began working full-time in October 2022, that it was reasonable for Ryan to return to school in 2021 – 2022, and that the period beginning in January 2022, when he did not return to university, to October 2022, was a reasonable transition period during which time he remained a child of the marriage. Ms.

Geirnaert asks the Court to take into account various factors experienced by Ryan during the time he was enrolled in university, Ryan’s decision to coach hockey for a period of time, his efforts to earn some income on a part-time basis from April 2022, and his commitment to working full-time by the fall of 2022. The Court heard testimony directly from Ryan and received documents from Child and Family Services. The Court considered the context of Ryan being abused as a factor for how much time the Court should allow Ryan to withdraw from the charge of his mother. [ 31 ] Mr.

Geirnaert argues that Ryan should never have attended Dordt University due to the high expense involved, and should never have continued at Dordt University once his academic performance became an issue. [ 32 ] The Court agrees with Ms. Geirnaert that Ryan, for various reasons, was unable to withdraw from the charge of Ms. Geirnaert until September 30, 2022. The Court expects that, based upon the evidence surrounding Ms. Geirnaert’s household financial circumstances, Ryan likely continued to be dependent on her beyond October 2022.

In the circumstances, Ryan’s actions around enrolling in university in the fall of 2021, and the time it took before he found some independence through full-time employment in October 2022, were reasonable. FACTS [ 33 ] There are four children of the marriage, aged 12, 13, 17, and 20 (Ryan), as of when the trial concluded. [ 34 ] Ryan graduated high school with honours in June 2020, and was an honour student throughout all four years of high school. After graduation, he attended three terms of university in the state of Iowa, starting full-time in August 2020, on a hockey scholarship.

While at university, he returned home to live with Ms. Geirnaert in Altona, Manitoba for all school breaks. [ 35 ] By January 2022, he could no longer attend university, as he was placed on academic probation. He lost his hockey scholarship and could not afford tuition, even with Ms. Geirnaert’s assistance. His mental health was also suffering by this point. He returned home to live with Ms. Geirnaert, coached local U18 hockey and worked a part-time seasonal job starting in April 2022. In October 2022, he started a full-time job working as an educational assistant, and has continued living with Ms.

Geirnaert. [ 36 ] The Court accepts Ryan’s evidence that he consulted with both of his parents about the possibility of attending Dordt University, and that he shared with Mr. Geirnaert the tuition costs of his program. The Court accepts the uncontroverted evidence that Mr. Geirnaert told Ryan that he would contribute to the cost of Dordt University. [ 37 ] Ryan felt that Mr. Geirnaert was supportive of his attending Dordt University, at least in terms of his promise to provide support to Ryan and to encourage him. Mr.

Geirnaert posted on Facebook his congratulations to “my son… on getting accepted at University of Dordt to play hockey for the Dordt Defenders and also to go to school to become a teacher. We are very proud of you Ryan. Lots of hard work and dedication and to never ever give up!!...” [ 38 ] Later, Mr. Geirnaert publicly celebrated Ryan’s hockey success by posting a photo of Ryan in his goalie uniform on his Instagram account with the caption: “I would like to congratulate Ryan on his first university win with Dordt last night. Keep up the awesome work Ryan.

Love you lots!!”. [ 39 ] As time went on, Ryan’s grades fell and he did not share his transcripts with Mr. Geirnaert; nor did Mr. Geirnaert ask Ryan for this information. [ 40 ] Mr. Geirnaert acknowledged that Child and Family Services and a Family Conciliation Assessment Report noted that Mr. Geirnaert’s abuse of the children during the relationship had an impact on the children’s health, in particular that the children did not feel

safe in his presence. [ 41 ] Ryan’s unchallenged testimony was that Mr. Geirnaert had been physically and verbally abusive to him, that his father was a trigger for him and at some point, he deposed that his father blocked him several times on his Facebook and Instagram accounts throughout 2020 and 2021. Ryan deposed that he would ask Mr. Geirnaert questions about lies that Ryan believed he told him, and that following this, Mr. Geirnaert would block Ryan on social media.

Ryan’s evidence was that he and his father had very few conversations in December 2020, and that the last text communication was in August 2021. [ 42 ] The Court received evidence of Ryan’s university tuition expenses of approximately $16,000 for the fall 2020, spring 2021, and fall 2021 terms. Room and board costs for 2020 and 2021 totaled approximately $8,100.

These costs exclude books, travel expenses and day-to-day living expenses. [ 43 ] The Court received evidence of Ryan’s scholarships for Dordt University totaling $10,500. [ 44 ] Ryan filed copies of documents showing he received $20,930 in Canada Student Loans and approximately $5,300 in Manitoba Student Loans. LAW [ 45 ] The Court considered section 3(2) of the CSG as follows: Child the age of majority or over 3

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [ 46 ] The Court also considered section 2(1) (

b) of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.), as follows:

Definitions 2

(1) In this Act, child of the marriage means a child of two spouses or former spouses who, at the material time, … (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [ 47 ] Ms. Geirnaert points out that in law “other cause” is not limited to illness or disability, but that provided the child is still dependent on his parent(s), he can still be a child of the marriage and entitled to support. She relies upon the decision in Gamache v .

Gamache , 1999 ABQB 313 ( Gamache ) . [ 48 ] The Honourable Madam Justice Trussler stated the following in Gamache : [3] All of the above cases suggest that a parent does not have an indefinite obligation to support a child who is attending school or is unemployed or underemployed. Instead, a parent has an obligation to assist the parent on whom the child is dependent through a reasonable transition period. What is a reasonable transition period is a question to be determined on the facts of each case. In all the cases, the emphasis is placed on the inability of the child to support him or herself.

Counsel both reproduced the appropriate three-step process for determining whether an adult child remains a child of the marriage as that term is intended pursuant to section 2(1) of the Divorce Act . Rebenchuk v. Rebenchuk , 2007 MBCA 22 ( Rebenchuk ), set out the three-step process that needs to be addressed by this Court as follows (at para. 23): Step 1: Is the person for whom support is sought a “child of the marriage”? Step 2: Is the table amount in the Guidelines “inappropriate”? If not, then the Guidelines amount should be awarded.

Step 3: If the answer to Step 2 is “yes”, what level of support is “appropriate”. Step 1 of Rebenchuk [ 49 ] The question of whether Ryan remained a child of the marriage may be answered by looking at the non-exhaustive list of factors set out in Rebenchuk and discussed in the decision of Swerid v. Swerid , 2022 MBQB 94 ( Swerid ) . Of those factors, the ones relevant to

the case at bar are the following: 1. The applicant bears the onus of proving that the child is still a “child of the marriage” (Rebenchuk, at para. 26); 2. Where the recipient parent relies on ongoing enrollment in school, she is expected to provide the Court with documentaryevidence corroborating the expenses she paid on the child’s behalf (Swerid, at para. 71(a)); 3.

Failure by the recipient parent to provide timely and material information to the payor parent, including withdrawal of the childfrom post-secondary school, may result in an inference that the recipient parent knew these disclosures would undermine, or eradicate, aclaim for support of an adult child (Swerid, at para. 80); 4. The pursuit of education has generally been recognized as an “other cause” that would prevent a child from withdrawing fromthe care of their parents within the definition of the Divorce Act (Rebenchuk, at para. 25); 5.

The Court may also consider whether the child had unilaterally terminated, without justification, his relationship with the payorparent (Rebenchuk, at paras. 40 and 56). Where a child over the age of majority has done so, “termination of support will result”(Swerid, at para. 69); 6. There is an expectation that a child over the age of majority will keep the payor parent informed about his progress at schooland engage in ongoing discussions of his education plans (Swerid, at para. 68); 7.

Courts may require custodial parents to provide transcripts and/or proof of expenses as a condition of ongoing support(Rebenchuk, at para. 67); and 8. When determining whether a child remains a child of the marriage beyond the age of majority, the Court has a discretion to dowhat it thinks is “just and fit … in all the circumstances of the particular case at issue” (Rebenchuk, at para. 18, citing Jackson v.Jackson, (SCC), [1973] SCR 205).

Step 2 of Rebenchuk (How much child support?) [50] Assuming the Court determines that Ryan is a child of the marriage, Step 2 asks the question – is the table amount of supportinappropriate. Mr. Geirnaert must show that the presumptive table amount is not appropriate for Ryan (Rebenchuk). [51] In determining whether the table amount of child support is inappropriate, the Court must consider the circumstances that wouldapply to a minor child.

This would include, but is not limited to, whether the child still lives at home, whether the child earns enoughincome to support himself, the level of financial dependency of the child on his parents, and other factors that relate to a child’sdependency on his parents. [52] The Court must consider facts that show how closely the circumstances of the particular child mirror those of a minor child. Itshall ultimately determine if the comparison is similar enough to defeat the request to find that the table amount is inappropriate.

Step 3 - Rebenchuk (How much child support?) [53] Step 3 looks at the appropriate amount of support payable if the Court finds that the table amount is inappropriate. [54] The Court thanks counsel for authority with respect to Step 3, however, the Court finds that the table amount of support is notinappropriate in the case at bar and so did not engage in the Step 3 analysis for child support. ANALYSIS Step 1 [55] Ryan attended Dordt University after discussions with both his parents. According to Ryan, Mr. Geirnaert told him that he couldassist him financially with the costs of Dordt University. Though Mr.

Geirnaert says he did not know the costs of Dordt University, thisCourt believes that Ryan made Mr. Geirnaert aware of the costs. Despite all of this, Mr.

Geirnaert contributed nothing to Ryan’suniversity costs. [56] As noted above, Dordt University cost approximately $16,000 in 2020 and approximately $33,200 in 2021 before scholarshipsand loans. [57] The Court received evidence that if Ryan had attended University of Manitoba or University of Winnipeg, as suggested by Mr.Geirnaert at the trial, his room and board costs and tuition costs would have still been high, though less than those to attend DordtUniversity. Ms.

Geirnaert submits that had Ryan attended University in Winnipeg, the drive from Altona to school would not have beensustainable for Ryan and he would have costs over and above $7,000 per year in tuition for other costs not delineated in the exhibits filedwith the Court. Those costs would include expenses for room and board, and costs for books/supplies in varying amounts, depending onwhether he attended University of Manitoba or University of Winnipeg.

Regardless, Ryan could not have afforded either of those schoolswithout support from his parents. [58] Ryan addressed the Court in his testimony in a calm, honest, and believable manner. He did not wish to take breaks whenoffered, instead preferring to remain focused and engaged in answering all questions as best he could. He provided the Court withexamples of relevant incidents in a clear, concise way only on the subjects offered to him.

He did not appear to have any particularagenda or motive, but seemed focused on giving information asked of him. [59] Ryan clearly continued to suffer the consequences of depression and anxiety while at Dordt University. He explained to the Courtthat he saw a psychologist through Sioux Centre Health in Iowa who prescribed him anti-depressants and he employed his earlier coping

strategies to deal with his anxiety. The Court found his explanation thoughtful and insightful, particularly how he has coped with the stress and anxiety of university and the impact on him of an ongoing fear that his father may one day unexpectedly attend Dordt University to watch him play hockey. Ryan did not continue with therapy while at Dordt University.

He had a long history of learning what coping strategies worked best for him, as he had been dealing with depression and anxiety before going to Dordt University. [ 60 ] The Court accepts that at first, Ryan attended Dordt University on a hockey scholarship, with both of his parents verbally acknowledging their support of him, and Mr. Geirnaert posting on social media his pride over Ryan playing hockey for Dordt University, but only Ms. Geirnaert helped him with the costs. [ 61 ] The Court agrees with Mr. Geirnaert that Ryan or, notwithstanding the difficult relationship between Ryan and Mr. Geirnaert, Ms.

Geirnaert should have provided copies of Ryan’s transcripts to Mr. Geirnaert and updates with respect to his academic probation. Generally, payors should not be left in the dark about the child’s grades and especially any academic challenges. That being said, in the circumstances of the relationship between Ryan and his father, Mr. Geirnaert expressing no interest in Ryan’s progress at school and having blocked Ryan from communication, the failure to provide transcripts is not a bar to Ms.

Geirnaert’s claim for child support for Ryan. [ 62 ] In terms of after Ryan’s grades fell, the Court accepts that Ryan needed a period of time to determine if he could return to Dordt University or pursue another option. This Court accepts Ryan’s testimony about his need to return living at home, work part-time and coach hockey, while he dealt with not being able to remain at Dordt University.

The Court accepts that Ryan was struggling in part due to his own mental health, being away from home and trying to get off academic probation. [ 63 ] The Court does not criticize Ryan for trying to stay the course at Dordt University, improve his academics and regain his footing in a program. Initially, he accepted an offer to be the primary goalie for the Dordt University hockey team.

Once he returned home, this Court finds that, given his mental health and that he lived primarily in Iowa for school, it was more than reasonable for Ryan to take the necessary time he did to determine whether he would return to school or enter the work force. Quite quickly, as Ryan had no ability to afford university, he determined he needed to find work, which is commendable given his mental health.

He remained in a part-time position for only six months before he found full-time work as an educational assistant. [ 64 ] The combination of Ryan’s evidence about his wage and his expenses, his plans and mental health, and Ms. Geirnaert’s oral and documentary evidence, clearly establish that Ryan was not financially independent and was unable to withdraw from the charge of Ms.

Geirnaert until September 30, 2022, due to “other cause”. [ 65 ] The Court accepts that Ryan is a mature, self-aware individual who needed time during university, and following, to determine his own limits and abilities with respect to the pace of school, hockey and work, all this taken in the context of Ryan’s unique struggles relating back to the abuse he suffered by Mr. Geirnaert. [ 66 ] Ryan acted resourcefully and showed resilience in the difficult situation he found himself in.

The transition period for Ryan to October 2022 was reasonable in the circumstances. [ 67 ] Ryan’s testimony, that he plans to return to university and find the best program for himself, taking into account his goal of teaching and considering the costs involved, is accepted as a genuine and reasonable approach. Ryan has no ability to return to Dordt University without financial support from both parents, and his decision to find a different program, closer to home, is wise. Step 2 of Rebenchuk (How much child support?) [ 68 ] The Court must now turn to the consideration of quantum of child support.

Is table amount of support inappropriate? As discussed in Rebenchuk , Mr. Geirnaert has the onus of showing that the presumptive table amount is not appropriate for Ryan. The table amount of child support for four children is $1,378.66, whereas support for three children is $1,168.36. [ 69 ] Mr. Geirnaert asserts the following in support of his argument that Ryan’s circumstances do not closely mirror the realities of a minor child: 1. While living at home, Ryan had a part-time job in April 2022, which allowed him to defray his personal and entertainment costs, and he could presumably have worked more; and 2.

The Court should consider Ryan’s earnings of $6,000 in 2020 and $5,000 in 2021, which he earned during the periods he was on breaks from school. He says that Ryan should not have returned to school after May 2021, and had he remained at home, he would have been able to earn sufficient income to support himself instead of relying on student loans while struggling through university. [ 70 ] Mr. Geirnaert says the Court should exercise its broad discretion and find that the table amount is too high taking into account the foregoing. [ 71 ] Ryan lived abroad for school during three terms at university.

That said his financial reality was that he relied on his mother, student loans and his scholarship(

s) to meet his expenses, and combined, those funds were insufficient. As a result, he worked a very limited part-time job on campus in Iowa just to meet some food and other personal expenses. He earned less than $1,000 from that work and had to quit because of a heavy class

schedule and his hockey schedule. [ 72 ] Ryan’s circumstances are no different from a minor, dependent child, aside from having the benefit of defraying some room and board and tuition costs with loans and scholarships. The Court finds that the facts are insufficient to defeat Ms. Geirnaert’s request to find that, during the relevant period, the table amount was appropriate for Ryan. Step 3 - Rebenchuk

[73] The Court finds that the table amount of child support is appropriate and so Step 3 of the child support analysis, outlined inRebenchuk, is unnecessary. ISSUE #3 - What retroactive child support, if any, is owed by Mr. Geirnaert? [74] Ms. Geirnaert seeks a finding that child support of $22,939 should have been paid for the period of June 1, 2021 to November 30,2022. Net of the payments made by Mr. Geirnaert, she seeks a finding that arrears are set at $12,319.62. Mr. Geirnaert seeks a findingthat the arrears be fixed at $3,519.20.

He suggests that it would be appropriate for the Court to fix arrears at $5,583.33 if his income isset at $48,000 (five-year average). [75] Ms. Geirnaert’s request takes into account payments of $10,619.38 voluntarily made by Mr. Geirnaert. The amount is calculatedusing an imputed income for Mr. Geirnaert of $58,917.20, and includes child support for all four children to September 30, 2022 ($1,368 per month) and for threechildren for October 2022 and November 2022 ($1,168 per month). She seeks payment of the arrears through the MaintenanceEnforcement Program. [76] Ms. Geirnaert argues that Mr.

Geirnaert was clearly aware of his obligation to pay support, in accordance with his income of$55,342.20 set out in the Interim Order. He breached his obligation to pay, and the children have had a significant need for this support,in addition to providing all of their day-to-day needs, which she shouldered alone. [77] Mr. Geirnaert disputes that the amounts are appropriate, as he says his income was set too high. He seeks a finding that hisincome be set at $50,207.40 for 2021, $40,000 for 2022, and in accordance with his position that Ryan ceased to be a child of themarriage after December 2021. Mr.

Geirnaert says that arrears, net of payments made, should be fixed at $3,519.20. Mr. Geirnaertsuggests that it would be appropriate for the Court to fix arrears at $5,583.33 if the Court finds that his income should be set at $48,000(approximate five-year average). LAW [78] Ms. Geirnaert cited

section 26.1(2) of the Divorce Act, which provides that the CSG “shall be based on the principle that spouseshave a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to theperformance of that obligation”. [79] Further, she relies upon the decision of this Court in D.W.Z. v. N.U.Z., 2001 MBQB 253, where the Court, at paragraph 30, ordered a lump sum payment of child support arrears and stated the followingprinciples: 1. A lump sum retroactive support order is an exception (Hauff v.

Hauff (MB CA), (Hauff), and Andries v.Andries, (MB CA), (Andries); and 2. In Andries, Twaddle JA stated that the Hauff principle is rooted in fairness. The premise is that, generally speaking, it wouldbe quite unfair to impose an additional obligation retroactively, and should be reserved for cases where the payor was at fault either byfailing to recognize his obvious obligation or by trying to avoid it (Hauff, at paras. 48-49). ANALYSIS [80] Mr. Geirnaert knew the precise child support he was to pay. He consented to the Interim Order then chose to ignore it.

Casesinvolving a payor spouse who failed to pay the correct amounts, but was unaware of the legal obligation to contribute, or cases where norequest was made by the recipient spouse, are distinguished from the case at bar. [81] Mr. Geirnaert let himself fall into arrears; he did not attempt to pay the arrears, which continued to build as this matterprogressed. He had to have known that expenses for the four active children were mounting. Despite one child starting post-secondaryeducation, long-term medical costs for Ryan and the three younger children, all emotionally and physically dependent on Ms. Geirnaert,Mr.

Geirnaert neglected his obligation to support the children as he consented to. [82] The Court has found that Mr. Geirnaert’s income shall be imputed to $58,000, which is the same amount that Mr. Geirnaerthimself consented to in June 2021 for the Interim Order, in addition to an amount that takes into account the evidence about his incomefrom umpiring baseball games. [83] This Court orders that Mr. Geirnaert’s arrears, net of the payments voluntarily made by him, total $12,319.62. ISSUE #4 - What is Mr. Geirnaert’s obligation to contribute to retroactive

section 7 expenses? [84] Ms. Geirnaert claims additional amounts of child support from Mr. Geirnaert of $43,358, as a contribution to expenses sheincurred for the four children for the period of June 2021 to October 2022. [85] Ms. Geirnaert seeks a contribution from Mr. Geirnaert for child care expenses, medical and dental insurance premiums, health-related expenses, and expenses for extra-curricular activities for the four children, in addition to post-secondary expenses for Ryanpursuant to section 7(1)(a), (b), (c), (

e) and (

f) of the CSG. [86] The Court must determine whether, in the exercise of its discretion, all or some of the expenses claimed by Ms. Geirnaert are

reasonable. [ 87 ] Ms. Geirnaert argues that the expenses were necessary, taking into account the best interests of the children and the reasonableness of the expenses, the parties’ spending patterns for the expenses incurred for the children, and the means of the parties. [ 88 ] Ms. Geirnaert submits that what is relevant is the incomes of the parties, reliable evidence of the expenses and debts of the parties that allows the Court to look at a standard of living comparison for the households, prospects for decline or increases in the parties’ incomes, and that she has sole responsibility for the children. [ 89 ] The Court allows Ms. Geirnaert’s claim for retroactive

section 7 expenses for the below reasons. FACTS [ 90 ] The combined income of the parties is $179,000. Ms. Geirnaert is the secretary/treasurer for the Border Land School Division and earns $120,000 per year. [ 91 ] Ms. Geirnaert bears all of the responsibility for the discretionary and necessary costs for the children. She had the four children in her household (or under her charge) throughout the years in question. [ 92 ] Ms. Geirnaert filed receipts and spreadsheets, to prove the expenses for the children, which included childcare expenses required for Ms.

Geirnaert to attend work, health-related expenses, extracurricular activity expenses, and post-secondary expenses. [ 93 ] During the relationship, the children participated in extra-curricular activities. Throughout the many years of competition, they have excelled and developed special talents. Since the breakdown of the relationship, Ms. Geirnaert continued to enroll the children in the same activities following regular check-ins with them, as they got older, to ensure that they still enjoyed the activities and wanted to continue completing. [ 94 ] Ms.

Geirnaert has incurred significant debt to support the children, as well as paying legal fees to obtain the child support she is seeking. [ 95 ] Ms. Geirnaert provided the Court with accurate, corroborated statements showing her financial means and needs, including information relating to her assets and debts, which were unimpeached by cross-examination or contrary evidence. [ 96 ] Mr. Geirnaert has provided no evidence of his assets or debts since separation. It is undisputed that he had minimal debt on separation. Mr.

Geirnaert resides with a woman who he initially did not name, and provided no reliable information about his expenses or any of his financial circumstances. Mr. Geirnaert claimed that he was unable to locate his 2019 tax return. He filed a financial statement that purports to be the updated version; however, all entries for his assets and debts duplicated those contained in his financial statement filed nearly two years earlier. LAW [ 97 ] The Court assessed the expenses claimed taking into account: 1. Delichte v. Rogers , 2013 MBCA 106 , and M.L.G.C. v.

J.M.G.C , 2002 MBQB 172 ( Correia ) : whether the activity expenses were reasonable taking into account historical patterns for the children; and

Section 7 expenses are discretionary and Ms. Geirnaert’s claims under

section 7(

a) to (

f) were reasonable based upon the needs of the children, the incomes of the parties, the historical decisions made by the parties, and the asset and debt information of Ms. Geirnaert. [ 98 ] The focus of the evidence and analysis by this Court is on the extracurricular activity expenses claimed by Ms. Geirnaert. Section 7(1.1) of the CSG sets out the definition of “extraordinary expenses” which means: Definition of “extraordinary expenses” 7(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant.

[ 99 ] As it pertains to extracurricular activity expenses, the Correia decision looked at whether the activity was one which likely would have been supported by the parents when together, and thus considered to be in the child’s best interests. ANALYSIS [ 100 ] The Court does not believe that Mr. Geirnaert is unable to afford to contribute to the children’s support, including to their long- standing activities in high levels of sport and their health-related expenses. The Court finds that Mr. Geirnaert’s asset and debt information filed with this Court is unreliable.

He provided no explanation for not updating the financial statement as required by the Court of King’s Bench Rules, or in some other manner that would allow the Court to know his current means. [ 101 ] Ms. Geirnaert provided case law regarding the adverse inference, which may be drawn against Mr. Geirnaert for the failure to provide required financial disclosure. [ 102 ] The Court need not make a finding against Mr. Geirnaert based upon an adverse inference.

The Court has imputed his income to $58,000 and he has provided no reliable evidence on which to conclude that he has expenses or debt justifying a “break” on his obligation to contribute to reasonable expenses of the children. He is able to contribute and no evidence was filed to suggest otherwise.

CHILDREN’S ACTIVITIES [ 103 ] This Court considered this issue, taking into account the facts particular to this case, with a view to determining what is in the children’s best interests and the affordability of the expenses for the parties. [ 104 ] The children have engaged in competitive sports activities for a long period. Post-separation, Ms. Geirnaert continued on the path with children’s activities that the parties felt was best for the children while they were still together.

Historically, the parties were both involved and supportive with the activities, including driving the children to various locations and coaching. Since separation, Mr. Geirnaert has decided that his commitment to provide financial support towards these activities ended when the relationship ended. [ 105 ] The section 7(1) (

f) CSG expense claims for the children’s activities should not be borne by Ms. Geirnaert alone. The claim for Mr. Geirnaert to contribute 32.87% of $43,358.41 is allowed. This amount is calculated based upon the Childview 2022.1.2 print-outs filed by Ms. Geirnaert showing the incomes of the parties, net of personal income taxes, subsidies, benefits and credits allowed by Canada Revenue Agency, for an income for Ms. Geirnaert of $120,319 and an imputed income for Mr. Geirnaert of $58,917.20. CHILDCARE COSTS [ 106 ] The section 7(1)(

a) childcare costs claimed by Ms. Geirnaert, in the total sum of $963.63, are justified, as the expenses were required in order for her to work and it was unreasonable to expect the older children to be responsible to babysit the two younger children. HEALTH-RELATED EXPENSES [ 107 ] The section 7(1)(

b) and (

c) health-related expenses totaling $5,306.53, not covered by insurance and insurance premiums, are allowed. This includes costs that exceed insurance coverage for Ryan’s diabetes, professional counselling/social work expenses, orthodontic treatment, physiotherapy, occupational therapy, speech therapy, drug expenses, hearing aids, and glasses/contact lenses. They were required and necessary expenses for the children. [ 108 ] Mr. Geirnaert’s former group insurance plan would have covered the children for the following expenses: (a) $9,363.02 in 2019, and (b) $5,832.65 in 2020. The Court orders Mr.

Geirnaert to obtain and maintain a group insurance plan for the children that will insure the children to the same level as under his plan with Canada Life when he worked with AGT Foods. POST-SECONDARY EXPENSES [ 109 ] The section 7(1) (

e) CSG expenses for Ryan’s post-secondary education, between June 2021 and December 2021, total $22,335. These expenses include tuition of $16,505 and the balance covers room and board, registration fees, housing fees, and his meal plan. [ 110 ] Based upon the Court’s reasons above, the Court accepts Ms. Geirnaert’s argument that Ryan was justified in attending Dordt University. The parties both advised Ryan that they would financially contribute so he could attend there. [ 111 ] The Court must determine what contribution is reasonable for Mr. Geirnaert towards Ryan’s university costs. Mr.

Geirnaert shall pay $7,341.51 towards Ryan’s university costs. This represents 32.87%. Ryan applied for, and used, scholarships at Dordt University. He was disqualified to receive further scholarships once his grades fell; however, the Court has found that in the circumstances, it was not unreasonable for Ryan to continue on at Dordt University, as he did to try to work to improve his grades. ISSUE #5 - What is Mr. Geirnaert’s obligation to contribute to ongoing child support & to ongoing

section 7 expenses? ONGOING CHILD SUPPORT [ 112 ] Based upon the submissions made earlier, Ms. Geirnaert seeks ongoing child support based upon an imputed income for Mr. Geirnaert of $58,917.20. She seeks support for the three minor children, payable at a rate of $1,168 per month, commencing December 1, 2022 (Ontario Table of the CSG ). [ 113 ] Ms. Geirnaert seeks an order that, should Ryan reside with her and be re-enrolled in post-secondary education full-time, Mr. Geirnaert’s child support obligation shall increase to the table amount for four children.

[ 114 ] Ms. Geirnaert seeks an order that the obligation to pay support is a debt of Mr. Geirnaert’s Estate. [ 115 ] Ms. Geirnaert also seeks an order that for so long as support is payable by Mr. Geirnaert, that he shall maintain his life insurance policy and designate the Petitioner as the beneficiary of the life insurance. ANALYSIS [ 116 ] For the reasons noted above, this Court imputes Mr.

Geirnaert’s income to $58,917.20, and orders that child support is payable for the three minor children at a rate of $1,168 per month, commencing December 1, 2022 (Ontario Table of the CSG ). [ 117 ] This Court orders that, should Ryan commence full-time post-secondary schooling within 12 months of this decision, and continue to reside with Ms.

Geirnaert during his school holiday breaks, child support shall be payable for the four children based upon the same imputed income and in accordance with the Ontario Table of the CSG . [ 118 ] This Court orders that, for so long as child support is payable, the support obligation shall be binding on Mr. Geirnaert’s Estate. [ 119 ] This Court orders that, for so long as child support is payable, and as long as life insurance is available to Mr.

Geirnaert through his employment, he shall maintain a life insurance policy designating the children for whom child support is payable as beneficiaries, and designate the Petitioner as trustee for the children where the children remain minors. Mr. Geirnaert shall provide Ms. Geirnaert with a signed irrevocable authorization to his life insurance provider instructing and directing the life insurance provider to provide Ms. Geirnaert with information about the policy including, but not limited to, confirmation that the premiums are paid up-to-date, the policy amount, and beneficiary information.

Counsel shall provide further written argument, together with the written argument for spousal support, addressing the policy amount for the life insurance. ONGOING CONTRIBUTION TO

SECTION 7 EXPENSES [ 120 ] Ms. Geirnaert seeks an Order that the amounts payable for child support and

section 7 expenses are enforceable through the Maintenance Enforcement Program. Based upon the evidence of the parties’ incomes, and the Childview 2022.1.2. print-out noted above, Ms. Geirnaert seeks a contribution to ongoing extraordinary expenses by Mr. Geirnaert at a rate of 32.87%. ANALYSIS [ 121 ] The Court orders that Mr. Geirnaert pay $1,168 per month support for the three minor children, commencing December 1, 2022 (Ontario Table of the CSG ). He shall contribute additional amounts of child support towards the

section 7 expenses as claimed by Ms. Geirnaert at a rate of 32.87%. These expenses continue to be justified for the same reasons as set out above under the retroactive support issues, which shall be enforced through the Maintenance Enforcement Program. [ 122 ] Mr. Geirnaert shall contribute $5,719.38 per year as additional child support, as a 32.87% contribution to fixed estimated ongoing expenses claimed of $17,400. ISSUE #6 - Universal travel authorization [ 123 ] Ms.

Geirnaert submits that the Court should grant her a “universal travel authorization” permitting her to travel with the children outside of Canada without the requirement to obtain the consent of Mr. Geirnaert. LAW [ 124 ] This Court has considered the decision of the Honourable Mr. Justice Little (as he then was), in Rolin-Robinson v.

Robinson , 2014 MBQB 9 , where both parties sought a universal travel authorization, allowing each to travel without requiring consent of the other or on limited terms. [ 125 ] The Court may exercise its discretion to allow a party a universal travel authorization where it is in the child’s best interests, and usually with notice of the upcoming travel, itinerary and contact information where the travelling parent may be reached in the event of an emergency.

Little J. considered various factors, including whether consent was unreasonably withheld by a parent seeking to travel, the communication between the parties, the parenting

schedule in place, and whether reasonable travel terms could be put in place without ordering a universal travel authorization. ANALYSIS [ 126 ] Communication between the parties has been difficult. Mr. Geirnaert has chosen to reside in another province in part, he says, because his relationship with the children has become non-existent. [ 127 ] Ms. Geirnaert seeks to travel with the children for extra-curricular activities, and otherwise. [ 128 ] Given that Mr.

Geirnaert does not currently have a relationship with periods of care of the children, and he resides more than 600 kilometers from the children, it is reasonable in the circumstances for Ms. Geirnaert to travel with the children without requiring the consent of Mr. Geirnaert. If she plans to travel with the children outside of Canada, she shall provide Mr. Geirnaert with notice by email of the itinerary, including departure and arrival dates and destinations, and emergency contact information for where she may be reached while travelling. QUICKLIST OF DECISIONS

[ 129 ] This Court ’s decision in respect of all issues is as follows: 1. Mr. Geirnaert’s income is imputed to $58,917.20; 2. Ryan ceased to be a child of the marriage on October 1, 2022; 3. Mr. Geirnaert shall pay retroactive child support in the amount of $12,319.62 ; 4. Mr. Geirnaert shall pay $14,251.91 as an additional amount of child support, which is his 32.87% contribution to retroactive

section 7 expenses as follows: (a) $4,849.39 (extracurricular activity expenses); (b) $316.75 (childcare expenses); (c) $1,744.26 (health expenses/premiums); and (d) $7,341.51 (post-secondary expenses for Ryan); 5. For so long as child support is payable for the children, the obligation shall be binding on Mr. Geirnaert’s Estate, and he shall maintain a life insurance policy for the children and in so doing, shall name Ms. Geirnaert the beneficiary of the policy. Mr. Geirnaert shall provide an authorization for information to Ms. Geirnaert for use with the life insurance provider; 6.

Commencing December 1, 2022, Mr. Geirnaert shall pay Ms. Geirnaert $1,168 per month in ongoing child support for the three minor children; 7. If Ryan returns to school full-time within 12 months of the date of this decision, Mr. Geirnaert shall pay Ms. Geirnaert $1,378 per month in ongoing child support for the four children; 8. Mr. Geirnaert shall contribute 32.87% of the ongoing

section 7 expenses of the children in the amount of $5,719.38 per year ($476.62 per month); and 9. All child support amounts ordered herein shall be enforced through the Maintenance Enforcement Program. CONCLUSION [ 130 ] Counsel are directed to file written argument respecting Mr. Geirnaert’s claim for spousal support; Mr. Braul, counsel for Mr. Geirnaert, by no later than three weeks from the date of this decision, and Ms. Lemieux Howard, counsel for Ms. Geirnaert, three weeks after the filing of Mr. Braul’s written argument.

The argument shall address the issue of the life insurance policy amount as noted above. [ 131 ] C osts are adjourned until after the Court has determined the balance of issues for this proceeding. _________________________ J. Date: 20230310 Docket: FD 21-11-03395 (Morden Centre) Indexed as: Geirnaert v. Geirnaert Cited as: 2023 MBKB 27 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION)

B E T W E E N: RACHEL MAE GEIRNAERT ) ) Renée G. Lemieux Howard Stéphanie Bauch petitioner, ) ) for the petitioner - and - ) ) daniel ceasar Joseph geirnaert respondent. ) ) ) Loren Braul for the respondent ) ) Judgment Delivered: ) March 10, 2023 ANTONIO J. E R R A T U M For purposes of clarity, the following amendments have been made to p. 35 of the above noted judgment: (

i) the words " Mr. Geirnaert’s income is imputed to $58,000 ” now reads: “ Mr. Geirnaert’s income is imputed to $58,917.20” Please replace the existing p. 35 with the attached revised p. 35. DATED this 24 th day of March 2023. _____________________________ J.