2023 MBKB 171, 2023 MBKB 171

Date: 20231129 Docket: FD 10-01-95450 (Winnipeg Centre) Indexed as: M.L.O. v. D.G.O. Cited as: 2023 MBKB 171 COURT OF KING’S BENCH OF MANITOBA FAMILY DIVISION B E T W E E N: M.L.O., ) John D. Ramsay ) for the petitioner petitioner, ) ) - and - ) Marcia L. Knight ) for the respondent D.G.O., ) ) respondent. ) Judgment Delivered: ) November 29, 2023 MacPhail J. Introduction [ 1 ] This trial involved consideration of Notices of Motion to Vary brought by each party.

The respondent sought to terminate his child support obligations, and to vary or terminate his spousal support obligations, effective certain dates and repayment of any overpayments of child and spousal support. He also sought to have the petitioner found in contempt of her financial disclosure obligations and certain penalties/sanctions imposed. The petitioner sought a retroactive increase of spousal support. [ 2 ] The relief sought by each party was impacted by agreements reached prior to trial and positions taken at various points during trial, including in final argument.

Background and Litigation History [ 3 ] The parties commenced cohabiting with one another in September of 1993 and were married in August of 1997. There were two children of their marriage; M., born in September of 2000 and L., born in May of 2002. Both children were born prematurely and M. had a number of significant health issues, including a heart condition and a permanent hearing disability. The petitioner took periods of maternity leave after the birth of each child, and was their primary caregiver.

She was the children’s exclusive caregiver during a six- month period of time when the respondent was stationed outside of Canada with the military. [ 4 ] After almost seventeen years of cohabitation, the parties separated in June of 2010 although they continued to reside in the same home for a few months thereafter. Court proceedings were initiated and in the fall of 2010 the parties ceased to reside in the same home.

The children were in the petitioner’s primary care. [ 5 ] On December 20, 2011 Thomson J. pronounced a consent Interim Order that granted the petitioner primary care of the children and addressed other parenting issues, as well as child support payments by the respondent to the petitioner that commenced in November of 2011. [ 6 ] On December 18, 2012 a further consent Interim Order was granted by Doyle J. that:

a) declared the respondent had paid the petitioner spousal support in the amount of $506.50 per month for each month in 2011, and $402.08 for each of the months of January through to and including October of 2012;

b) indicated the respondent’s income was agreed to be $85,721, without determination by the Court;

c) varied the December 20, 2011 Interim Order of Thomson J. to reduce the respondent’s monthly child support payments to the

petitioner from $1,350 to $1,176 commencing in January of 2013;

d) required the respondent to pay $98 per month to the petitioner as his proportionate share of the children’s daycare expenses, commencing in January of 2013; and

e) required the respondent to pay spousal support to the petitioner in the amount of $726 per month commencing in January of 2013. [ 7 ] The December 2012 Interim Order did not provide for any spousal support payments for the months of November and December 2012. It did provide that its terms were “without prejudice” to each party’s ability to argue that support should have been set in different amounts. [ 8 ] The parties were divorced by a Divorce Judgment pronounced by Goldberg J. on July 15, 2013, and amended on August 28, 2013. The consent Final Order pronounced the same day as the Divorce Judgment provided:

a) the parties have joint custody of their two children, with the petitioner having primary care and control and the respondent having specified periods of care and control;

b) the respondent’s annual income “for the purposes of child support” was set at $85,658;

c) the respondent pay the petitioner Manitoba Table child support for the two children in the net amount of $1,141 per month ($1,176 less the petitioner’s $35 share of orthodontia payments) commencing in May of 2013;

d) the petitioner’s annual income from August 1, 2012 until June 30, 2014 was imputed at $22,000, with the respondent to pay her spousal support in the amount of $1,592 per month from June to September of 2013, and $759 per month from October of 2013 to June of 2014;

e) the petitioner’s annual income from July 1, 2014 was imputed at $28,000, with the respondent to pay her spousal support in the amount of $609 per month from that date, until further order of the Court; and

f) all retroactive claims for child and spousal support for the period up to and including April 30, 2013 were resolved. [ 9 ] Except for the $35 reduction in monthly child support for the petitioner’s contribution to orthodontia payments, the Final Order did not provide for any contributions by the respondent to special or extraordinary expenses for the children. [ 10 ] The Final Order provided that spousal support was reviewable on certain conditions.

The following provisions set out those review conditions, as well as the changes in the petitioner’s income that would not constitute a material change in circumstances and the income to be imputed to the petitioner “for purpose of any [spousal support] variation application” [1] : 5.22 Spousal support is reviewable as follows: 5.22.1 In any event on May 1, 2015 without any change in circumstance; 5.22.2 Until June 30, 2013 upon increase in [the petitioner’s] income from $22,000.00 annually; 5.22.3 After July 1, 2014 upon increase in [the petitioner’s] income from $28,000.00 annually; 5.22.4 In any event on May 1, 2015 without any change in circumstance 5.22.5 For the purpose of any review application the income of [the petitioner] shall be set based on an imputed income of the following: 5.22.5.1 $22,000.00 or her line 150 income as set out on her income tax return, if same is higher until June 30, 2013; 5.22.5.2 Commencing July 1, 2014 $28,000.000 or her line 150 income as set out on her income tax return, if same is higher 5.22.6 There will be no material change of circumstance in the income of [the petitioner] unless [the petitioner’s] income from employment increases in excess of the imputed amount of: 5.22.6.1 $22,000.00 or her line 150 income as set out on her income tax return, if same is higher until June 30, 2013; 5.22.6.2 Commencing July 1, 2014 $28,000.000 or her line 150 income as set out on her income tax return, if same is higher 5.23 For the purpose of any variation application with regard to the issue of spousal support the income of [the petitioner] shall be set based on an imputed income as follows: 5.23.1 $22,000 or her line 150 income as set out on her income tax return, if same is higher until June 30, 2013 5.23.2 Commencing July 1, 2014 $28,000.000 or her line 150 income as set out on her income tax return, if same is higher [ 11 ] Neither party sought a review of the spousal support provisions of the Final Order.

They both sought to vary same. Paragraphs 5.22.6 and 5.23 of the Final Order were relevant to the parties’ Notices of Motion to Vary. [ 12 ] The respondent filed two Notices of Motion to Vary the Final Order, the first on November 2, 2020 and the second on December

4, 2020. The second Notice of Motion to Vary essentially repeated the claims made in the first, but added claims relating to the petitioner’s alleged contempt.

The petitioner filed a Notice of Opposition to Variation on December 23, 2020. [ 13 ] The matter proceeded to a triage conference where certain disclosure was directed by the Court and the parties agreed that the respondent’s obligation to pay child support for L. would be terminated effective April 30, 2020. [ 14 ] Well after trial dates were set, the petitioner filed a Notice of Motion to Vary the Final Order seeking a retroactive increase of spousal support from May 1, 2020.

Despite the respondent’s objections, at the final trial readiness case conference, the Court directed that the claims in that pleading be heard at the trial scheduled for determination of the respondent’s Notices of Motion to Vary, given his claims relating to termination and variation of his spousal support obligations and taking the principle of proportionality into account.

As the respondent objected to the relief sought by the petitioner, he was directed to forthwith file a Notice of Opposition to Variation, which he did. [ 15 ] Leave was granted at the trial readiness case conference for a portion of the parties’ direct evidence to be provided through various affidavits already on file.

Counsel were reminded that only the affidavit evidence that complied with the Court Rules applicable to affidavit evidence at trial would be considered, and that the evidence with respect to L.’s circumstances would be considered in light of the parties’ agreement that the respondent’s child support obligation for L. would cease effective April 30, 2020. [ 16 ] At the trial readiness case conference the parties agreed to a Variation Order that the respondent’s obligation to pay child support for M. would be terminated effective June 30, 2022.

The Order was stated to be without prejudice to each party’s ability to make certain arguments at trial; the respondent that child support for M. should have terminated on an earlier date and the petitioner that the Table child support amount should have been greater for certain periods of time given the respondent’s income. The consent Variation Order was signed on November 2, 2022.

Contempt [ 17 ] In his second Notice of Motion to Vary filed December 4, 2020, the respondent sought an order finding the petitioner in contempt of her financial disclosure obligations pursuant to the Final Order. [ 18 ] The respondent sought the imposition of various penalties and sanctions for the petitioner’s alleged contempt, including that the petitioner be imprisoned, be imprisoned upon failure to comply with the order, pay a fine and be prohibited from taking any Court actions, including defending against any actions or claims brought by the respondent.

He also sought to have the petitioner pay a penalty to him “in an amount equivalent to [his] monthly quantum of spousal support from May 30, 2015 … to date” or from “a date to be determined by [the] Court”. [ 19 ] The respondent sought such sanctions despite the fact that, although he did provide certain income tax materials annually, he did not fully comply with his own financial disclosure obligations under the Final Order or with his obligation to forward certain health benefit insurance payments to the petitioner as and when he should have. [ 20 ] The petitioner did subsequently provide the financial disclosure required pursuant to the Final Order, most shortly after she obtained counsel and well before the triage conference. [ 21 ] Despite the disclosure made by the petitioner, considerable trial time was devoted to the financial disclosure issue and the petitioner’s alleged contempt.

It was only at the conclusion of the trial that counsel for the respondent indicated her client was no longer seeking a finding that the petitioner was in contempt of the financial disclosure provisions of the Final Order or imposition of any of the significant penalties or sanctions sought in his pleading. His counsel did, however, take the position that the petitioner’s behaviour was contemptuous of the spirit of the Court’s financial disclosure order, notwithstanding the fact that she may have purged her contempt through the provision of financial disclosure prior to the date of the trial.

Child Support [ 22 ] In his Notices of Motion to Vary the respondent sought to terminate his child support obligations for L. “effective on or about May 2020” and for M. “effective August 1, 2020”. [ 23 ] The respondent also sought an Order specifying the amount of any overpayment of child support by him “from the date of any variation/termination of child support determination by this Court and to the date of the pronouncement of the Order and continuing” and “a … methodology for the repayment of the overpayment of child and spousal support paid … to the [petitioner] …”. [ 24 ] Neither party sought a variation of the quantum of child support. [ 25 ] The Divorce Act , R.S.C., 1985 c. 3 (2nd Supp .), provides the following with respect to variations of child support: Variation, Rescission or Suspension of Orders 17

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, (

a) a support order or any provision of one, on application by either or both former spouses; . . . Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of

circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variationorder made in respect of that order. . . . Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. [26] As both parties are Manitoba residents, pursuant to ss. 2(1) and (5) of the Divorce Act, the “applicable guidelines” are those setout in the Manitoba Child Support Guidelines Regulation, Man. Reg. 52/2023[2], to The Family Law Act, C.C.S.M. c. F20.

Theinformation note in that Regulation states that: The Province of Manitoba has been designated under subsection 2(5) of the Divorce Act (Canada) by an order of the Governor in Councilfor the purposes of the definition “applicable guidelines” in that Act. This regulation is the law that constitutes the guidelines forManitoba. [27]

Section 14(

a) of the Manitoba Child Support Guidelines Regulation provides: Circumstances for variation 14 For the purpose of subsection 17(4) of the Divorce Act … any one of the following constitutes a change in circumstances that givesrise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change incircumstances that would result in a different child support order or any provision thereof; . . . [28] The change in circumstances must be a “material” change in circumstances (Willick v. Willick, (SCC), [1994] 3S.C.R. 670). [29] There were clearly a number of changes in circumstances after the granting of the Final Order.

The respondent’s annual incomefor child support purposes exceeded the $85,658 specified in the Final Order in the year it was pronounced and every year thereafter,impacting his child support obligations pursuant to the Manitoba Table of the child support guidelines. The orthodontic treatments forM. ceased when the child was in grade 10 (2016-2017) or 11 (2017-2018) (according to the petitioner) yet it was acknowledged that therespondent never increased his monthly child support contributions by the $35 deducted for the petitioner’s share of those treatments. Both children attained the age of majority.

M. pursued post-secondary education and worked on a part-time basis. L. went to live withthe respondent in April of 2020.

A) Termination of Child Support [30] The parties agreed that the respondent’s child support obligation for L. would terminate effective April 30, 2020. [31] The parties did not agree when the respondent’s child support obligation for M. should have terminated.

A period of less thantwo years was at issue. [32] In his Notice of Motion to Vary the respondent sought to terminate his child support obligation for M. effective August 1, 2020. (In argument he took the position the evidence supported his obligation ending much earlier, but that he was prepared to “live with” thedate in his pleading.) The petitioner argued that his obligation should have continued until the end of June 2022, the date agreed to in the“without prejudice” Variation Order. [33] The fundamental issue was whether M. remained a “child of the marriage” for support purposes between August 2020 and June2022.

If not, when did that status cease? [34] The Divorce Act defines a “child of the marriage” in the following manner:

Definitions 2

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

a) is under the age of majority and who has not withdrawn from their charge, or (

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 theircharge or to obtain the necessaries of life; (enfant à charge)

[35] As the support recipient, the petitioner bore the onus of establishing that M. remained a “child of the marriage” for supportpurposes from August of 2020. (See Rebenchuk v Rebenchuk, 2007 MBCA 22 .) [36] The respondent did not argue that the petitioner’s entitlement to child support for M. from August 2020 was impacted by thecessation of his relationship with M. or the nature of her university attendance/performance. The respondent argued that M. ceased to bea “child of the marriage” for support purposes because of the level of her income.

He further argued that the petitioner had not adducedadequate evidence confirming M.’s expenses and financial circumstances, including her total annual income in 2021 and income fromJanuary to June of 2022, thereby failing meet the onus upon her to establish child support entitlement. [37] In Rebenchuk, the Manitoba Court of Appeal stated, at paras. 54 and 55: 54 Most courts assume a child will earn income during the summer and this is usually taken into account one way or another indetermining the amount of the child’s contribution.

While the authorities are not consistent on the subject, I much prefer a simplerequirement that adult children contribute a “reasonable amount” of their total earnings to their education rather than placing a moreonerous burden upon them, leaving the precise determination to the exercise of the trial judge’s discretion. 55 Few courts expect adult children to work part-time while taking full-time studies. … [38] M. worked during the summer months and on a part-time basis for the rest of the year from the time she graduated high schooland commenced university in 2018.

She struggled in certain courses and needed assistance with notetaking and other accessibilitysupports because of her hearing disability. [39] During the almost two years in dispute, M. continued to reside with the petitioner and pursue post-secondary education (withvarying success). The petitioner provided M. with free room and board, as well as contributions to various educational expenses,including some tuition costs. M. paid for her own vehicle and transportation expenses, most of her educational expenses and herpersonal expenses.

M. moved out of the petitioner’s home in late June 2022. [40] In 2020 M. declared Line 150 income of $24,538, before union dues. A November 19, 2021 pay statement indicated she hadyear-to-date income of $21,855.77 (gross) and $16,486.02 (net, after deduction of, inter alia, union dues and income taxes). Whileevidence was not provided confirming M.’s annual income for 2021, she appeared to be on track to earn an amount comparable to thatshe earned in 2020.

There was no clear evidence given confirming M’s income in the first half of 2022. [41] Although M. had significant part-time income, I cannot conclude that her income was such that she ceased to be a “child ofthe marriage” in August of 2020 as contended by the respondent. I am satisfied that she contributed a “reasonable amount” to the costsof her post-secondary education.

Despite the inadequate evidence provided by the petitioner, it was clear that M. also receivedsignificant and indirect financial support from the petitioner, support that enabled her to pursue post-secondary education. [42] Taking all of the foregoing circumstances into account, I find that the respondent’s child support obligation for M. should havecontinued until December 31, 2021.

B) Reimbursement of Overpayment of Child Support [43] The respondent asked the Court to determine the amount of any overpayment of child support by him “from the date of anyvariation/termination of child support” and specify a repayment mechanism. [44] While no Order was submitted reflecting the parties’ agreement that the respondent’s child support obligation for L. wouldterminate effective April 30, 2020, later that year the Maintenance Enforcement Program had ceased enforcing support for L. andadjusted the respondent’s enforceable child support obligations. [45] On November 6, 2020 the Maintenance Enforcement Program wrote to the respondent to advise that they had determined L. wasno longer eligible for child support and enforcement of child support for him was discontinued as of July 1, 2020.

The Program adjustedthe respondent’s monthly enforceable child support obligation to $687 for one child, indicating that was the child support amount “forthe remaining child … based upon the child support for one child identified in your Maintenance Order dated July 15, 2013”. TheManitoba Table monthly child support obligation for one child for a payor with income of $85,658 was $721 pursuant to the 2011Manitoba Tables in effect when the Final Order was pronounced in 2013, and $735 pursuant to the current Manitoba Tables that cameinto effect on November 22, 2017.

Presumably the Program arrived at the respondent’s adjusted monthly child support obligation byusing the 2011 Manitoba Table amount, less $35 for the petitioner’s contribution to orthodontia expenses. [46] The Maintenance Enforcement Program stated the child support adjustments resulted in the respondent having a support paymentcredit of $2,231.84. The Program addressed the credit by providing for a transition to the new, reduced child support amount. Nospousal or child support payment amounts were enforced in December 2020 and a reduced support payment amount was enforced inJanuary 2021.

Enforcement of regular monthly payments of spousal support of $609 and the new child support amount of $687 resumedFebruary 1, 2021. [47] Although the Maintenance Enforcement Program ceased enforcing child support for L. effective July 1, 2020 and adjusted theirrecords and the respondent’s payment obligations to address same, the parties subsequently agreed that the respondent’s child supportobligations for L. would cease April 30, 2020.

By paying the child support specified in the Final Order, the respondent paid some $454more than the adjusted payment amount determined by the Maintenance Enforcement Program, in each of the months of May and June. [48] The Maintenance Enforcement Program collected monthly child support payments of $687 for M. until the end of August 2022.

Their account records reflected initial charges for payments in that amount in each of September and October 2022, but made subsequent credits to offset those charges, with notes that child support was terminated effective September 1, 2022. [ 49 ] Support for M. was subsequently terminated effective June 30, 2022 pursuant to the “without prejudice” Variation Order signed November 2, 2022. While the Maintenance Enforcement Program had ceased to enforce child support for M. effective September of that year, the $687 payments were collected for July and August.

Presumably, as was done previously when the Program ceased enforcing payments for L. when they determined he was no longer eligible for child support, their records and the respondent’s ongoing payment obligations were adjusted once the Program received the Variation Order. [ 50 ] Given the dates on which the respondent’s child support obligations ceased, the respondent overpaid the child support payments due pursuant to the Final Order (as adjusted by the Maintenance Enforcement Program in 2020) by some $5,030. [ 51 ] Based on his annual incomes from 2013 to 2021, however, it was clear that the respondent did not pay the appropriate amount of Manitoba Table child support from the time of the Final Order.

Calculations of retroactive underpayments of child support by the respondent were relevant not because either party sought to vary the quantum of child support but because of his claim for reimbursement of alleged overpayments of child support made after child support entitlement ceased for L. and M. [ 52 ] The respondent’s counsel provided a helpful information chart calculating the amount of child support that the respondent ought to have paid pursuant to the Manitoba Tables of the child support guidelines, given his incomes from 2014 to 2019. (See

Schedule “A” to this decision replicating those calculations.) [ 53 ] The respondent’s Manitoba Table child support obligation of $1,176 per month under the Final Order was, pursuant to that Order’s terms, reduced by $35 each month for the petitioner’s share of orthodontic treatment. While the petitioner raised the issue of whether that reduction should have continued, the manner in which the respondent’s counsel calculated the child support that should have paid made that issue moot.

In calculating the child support that would have been owing by the respondent based on his income from 2014 to 2019, his counsel used the full monthly Manitoba Table amounts for his income each year and credited the respondent with the reduced amount of child support he paid. [ 54 ] The petitioner agreed with the respondent’s calculations for the years 2014 to 2019, save and except for 2016 when she calculated that he underpaid child support by an additional $8 per month. I accept the accuracy of the respondent’s calculations for 2016.

The respondent underpaid child support by a total of $8,508 during these years. [ 55 ] The respondent’s 2020 income, net of union dues, was $97,685, resulting in a Manitoba Table child support obligation for two children for each of the months of January through April in the amount of $1,359 and for one child in the amount of $833 commencing in May. He underpaid Table child support by $2,040 that year. [ 56 ] The respondent’s 2021 income, net of union dues, was $92,831, resulting in a monthly Manitoba Table child support obligation for one child of $795.

He underpaid Table child support by $1,296 that year. [ 57 ] In total, the respondent’s Manitoba Table child support obligations exceeded those in the Final Order (and adjusted by the Maintenance Enforcement Program) by some $11,844 to December 2021, before any consideration of the appropriate amount of child support for M. from the time she reached the age of majority. [ 58 ] Because M. turned 18 in September of 2018, a further issue arises as to whether the Manitoba Table amount was the appropriate figure for her support.

Given M.’s incomes and those of the parties for the years in question, was the full Manitoba Table amount inappropriate and some reduced amount of child support appropriate for M.? A further complication is that the respondent was paying child support for both L. and M. until April of 2020, making support for M. arguably the difference between the Table amount for L. (a child under the age of majority) and the Table amount for two children. [ 59 ] In Rebenchuk the Manitoba Court of Appeal set out a three-step approach to support for children over the age of majority.

Having determined that M. remained a “child of the marriage” until December 31, 2021 for support purposes, the remaining steps remain relevant for determining whether support was overpaid or underpaid by the respondent, as stated at para. 23: 23 … . . . 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”? [ 60 ] In considering whether the Table amount of child support would be inappropriate and the impact of a child’s earnings, the Court of Appeal stated at paras. 30, 32 and 34-35: 30 The best approach, it seems to me, and one now widely used, is summarized by James C. MacDonald, Q.C. and Ann C.

Wilton, Child Support Guidelines: Law and Practice , 2 nd ed., vol. 1 (Toronto: Carswell, 2004) (at pp. 3-11, 3-12): … The usual Guidelines approach is based on factors that normally apply to a child under the age of majority; that is the child resides with one or both parents, is not earning an income and is dependent on his or her parents. It is also based on the understanding that, though only the income of the person paying is used to calculate the amount payable, the other parent makes a significant contribution to the costs of that child’s care because the child is residing with him or her.

The closer the circumstances of the child are to those upon which the usual Guidelines approach is based, the less likely it is that the usual Guidelines calculation will be inappropriate. The

opposite is also true . Children over the age of majority may reside away from home and earn a significant income.

If a child is not residing at home, the nature of the contribution towards the child’s expenses may be quite different. … [emphasis added in the original] . . . 32 … if a child has significant earnings this tends to indicate that the table amounts are inappropriate. . . . 34 MacDonald and Wilton, Child Support Guidelines: Law and Practice, ( ibid. ) suggest the following process for an adult child living with the custodial parent (at p. 3-23): The court must determine how much the adult child needs to maintain a reasonable lifestyle, and how much the child can reasonably contribute from his or her own resources.

The shortfall can then be compared to the Guidelines amount to determine if the Guidelines are inappropriate. If inappropriate, the court can apportion the shortfall between the parties according to their respective incomes.

Where the adult children are residing with the custodial parent, and attending post-secondary educational institutions, the basic amount under the Guidelines may be awarded plus a proportional share of the educational expenses, after taking into account a reasonable contribution from the child. … 35 This hybrid approach has much to commend it in my opinion because it pays heed to the objectivity of the Guidelines while responding to the desirability of the children to contribute to their own educational expenses. … [ 61 ] M.’s annual income was $17,196 in 2018 and $23,087 in 2019.

As noted, her 2020 annual income was $24,538 before deduction of union dues, and it appeared her 2021 income would be comparable.

While the child support the respondent paid for M. from September 2018 to December 2021 was less than the Manitoba Table amount for his annual income each of those years, given the parties’ incomes, and M.’s incomes, the full Table amount appears to have been inappropriate and some lesser amount appropriate. [ 62 ] Although neither party sought to vary the quantum of child support, the issue of whether the Manitoba Table child support amount was “inappropriate” for M. given her income and that of the parties is relevant with respect to the respondent’s request for reimbursement of alleged overpayment of child support.

Taking the apparent “inappropriateness” of the Table amount of child support for M. into consideration significantly impacts the quantum of the respondent’s underpayment of Manitoba Table child support. It is also a factor I have taking into account with respect to the respondent’s spousal support obligations. [ 63 ] Given all of the foregoing, it would not be just or equitable for the petitioner to be required to repay the respondent for the amounts of child support he paid after his child support obligations for L. and M. ceased.

The additional child support payments made by the respondent after his child support obligations terminated for L. and M. were more than offset by the amount of additional child support he should have paid based on his annual incomes from 2013 to 2021. [ 64 ] Although she did not seek a variation of child support, in argument the petitioner asked that the respondent be ordered to pay her any underpayment of child support.

While I am not prepared to do so given the state of the pleadings before me, in the interests of providing finality for the parties, as indicated, I have considered the underpayment in addressing both parties’ claims respecting the respondent’s spousal support obligations.

Spousal Support [ 65 ] The Final Order pronounced at the time of the parties’ divorce contained detailed provisions with respect to the respondent’s spousal support obligations to the petitioner, as well as specifying the annual income to be imputed to the petitioner and what changes to her income would constitute a material change in circumstances. [ 66 ] The Final Order specified the respondent’s annual income “for the purposes of child support”. It did not specify a different amount, or indeed any amount, for spousal support purposes.

At trial, the respondent’s counsel (who represented him at the time the parties agreed to the terms of the Final Order) confirmed that the same amount had been used for the respondent’s annual income for both child and spousal support determination purposes. [ 67 ] Unfortunately, as is often the case when parties reach an agreement and submit a consent Final Order for spousal support, no details were included respecting the basis of the petitioner’s entitlement to spousal support.

Not having that information makes determination of a variation application more challenging. [ 68 ] Although the Final Order contemplated the possibility of a review of the respondent’s spousal support obligations to the petitioner, and set out various circumstances applicable to same, this proceeding was not commenced as a review application, but rather as a variation proceeding. [ 69 ] In the circumstances, the following provisions of the Divorce Act apply: Variation order 17

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, (

a) a support order or any provision of one, on application by either or both former spouses;

. . . Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in thecondition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or thelast variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. . . . Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should (

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [70] I refer to the Spousal Support Advisory Guidelines (“SSAG”), the Spousal Support Advisory Guidelines: The Revised User’sGuide (the “SSAG Revised User’s Guide”) and the SSAG ranges and formulas at various times hereafter. [71] In his Notices of Motion to Vary, the respondent sought to terminate or vary his spousal support obligations as of July 1, 2020.

In her Notice of Motion to Vary, the petitioner sought to increase her spousal support payments effective May 1, 2020. [72] In final argument, the respondent conceded that as of November 2022 any underpayments and overpayments of child and spousalsupport essentially offset each other. He argued his spousal support obligations should terminate. The petitioner requested a paymentfor retroactive child support (despite no pleading seeking same) and sought increased spousal support from November 2022 (rather thanMay 2020) and that payments continue until November of 2027.

As a result of these positions, the issues remaining for determinationwere whether the respondent continued to have a spousal support payment obligation to the petitioner from November 2022, and, if so,for how long and in what amount? [73] The SSAG Revised User’s Guide describes the principles of spousal support entitlement in the following way in

Chapter 3(Entitlement (SSAG

Chapter 4)): (

a) The principles of entitlement • Compensatory claims are based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during themarriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation. • Common markers of compensatory claims include: being home with children full-time or part-time, being a “secondaryearner”, having primary care of children after separation, moving for the payor’s career, supporting the payor’s education or training … • Non-compensatory claims involve claims based on need. “Need” can mean an inability to meet basic needs, but it has alsogenerally been interpreted to cover a significant decline in standard of living from the marital standard.

Non-compensatory supportreflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance andexpectation, summed up in the phrase “merger over time”. [Emphasis in original] [74]

Chapter 7 (The Without Child Support Formula (SSAG

Chapter 7)) of the SSAG Revised User’s Guide states: In longer marriages the basis for entitlement will vary depending upon the facts; it may be primarily non-compensatory (marriageswithout children), or a mix of compensatory and non-compensatory (marriages with grown children and crossover cases). [75] The parties cohabited for a period of almost 17 years, a period of time that our Manitoba Court of Appeal in Rémillard v.Rémillard, 2014 MBCA 101 , concluded is “… close to what the case law describes as a long-term relationship” (at para. 79). [76] The respondent has paid spousal support to the petitioner since the beginning of January 2011. Pursuant to the December 18,

2012 Interim Order of Doyle J., there was a declaration that he paid spousal support in the amount of $506.50 per month for each monthin 2011, and $402.08 for each of the months of January through to October of 2012. That Order stated that the respondent’s income wasthen agreed to be $85,721, and required him to pay spousal support to the petitioner in the amount of $726 per month commencing inJanuary of 2013.

The Interim Order made no mention of any spousal support payments being made for the months of November andDecember of 2012. [77] The consent Final Order granted on July 15, 2013, based on the respondent’s annual income of $85,658 and the petitioner’simputed annual income of $22,000, provided that the respondent pay monthly spousal support of $1,592 from June to September of 2013,and $759 from October 2013 to June 2014. It provided for monthly spousal support of $609 commencing in July 2014, when thepetitioner’s imputed annual income increased to $28,000.

The respondent’s spousal support obligation has not changed. [78] As noted previously, the respondent was ordered to pay Manitoba Table child support for the parties’ two children.

There wasno provision for an ongoing (or any) contribution by him to the children’s special or extraordinary expenses. [79] Undoubtedly the spousal support arrangements in the consent Final Order took into account the respondent’s significant childsupport obligations to the petitioner; $1,350 per month from November 2011 until the end of 2012 and $1,176 per month thereafter(before a $35 reduction for the petitioner’s contribution to certain orthodontia expenses). [80] Given that income was imputed to the petitioner in the Final Order for various periods, her actual income would presumably havebeen less than the imputed amounts.

Taking into consideration the evidence of the roles played during the marriage, the duration of theparties’ cohabitation, the primary care arrangements for the children, the income imputed to the petitioner and the stated incomeof the respondent for these periods, clearly the petitioner would have had spousal support entitlement on a non-compensatory (needs)basis.

As argued by her counsel, I agree that, on a balance of probabilities, the support payments involved a compensatory componentgiven the roles played by the parties during their relationship and in the years leading up to, and after, their separation. [81] Variation of spousal support does not simply rest on the Court finding that the incomes of the parties have changed.

Whilechanges in income can be a significant factor with respect to a non-compensatory entitlement to spousal support, that can be less so forwhere there is entitlement on a compensatory basis. [82] The respondent felt that any entitlement that the petitioner had to spousal support, whether on a compensatory or non-compensatory basis, had long since been satisfied and that she had achieved self-sufficiency and his support obligation should end. [83] Clearly the petitioner’s annual income had significantly increased since the time of the Final Order.

Her financial disclosureestablished that since 2016 her annual income exceeded her imputed income. While the parties’ counsel did not always agree on thepetitioner’s precise annual income for each of the years from 2016 to 2022, the differences were not terribly significant.

Where theparties did not agree on the petitioner’s income, I have accepted the respondent’s figures as the same as or more consistent with theprovided financial disclosure. [84] The petitioner’s annual income was $34,816 in 2016, $41,457 in 2017, $43,252 in 2018, $44,966 in 2019, $48,102 in 2020,$40,656 in 2021, $41,144 for the first half of 2022 and $48,000 thereafter. The petitioner also had a pending grievance with her formeremployee that may or may not have resulted, or will result, in her receiving additional retroactive income.

Clearly there has been amaterial change in circumstances. [85] McLachlin J. (as she then was) stated in Moge v. Moge, (SCC), [1992] 3 SCR 813 (at pp. 881-82): … Arguments that an ex-spouse should be doing more for herself must be considered in light of her background and abilities, physicaland psychological. … Sometimes the breakdown of the marriage may have left the woman with feelings of inadequacy or depressionwhich make it difficult for her to do more.

In short, the whole context of her conduct must be considered. … One must look at the actualsocial and personal reality of the situation in which she finds herself and judge the matter fairly from that perspective. [86] As was made clear in Moge, all four of the objectives in ss. 15.2(6) of the Divorce Act are relevant to the determination ofspousal support. Achievement of self-sufficiency is but one of the objectives of spousal support (Leskun v.

Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920). [87] While the evidence established that for many years the petitioner has not needed non-compensatory support, the issue is whetherher entitlement to compensatory spousal support has been satisfied.

In determining that it has not, I have taken into account the amountsof spousal support paid by the petitioner, the impact his child support obligations had on those payments and his underpayment of childsupport. [88] The respondent had significant child support obligations that affected the spousal support amounts generated pursuant to theSSAG “with child support” formula. [89] The following portions of ss. 15.3 of the Divorce Act are applicable: Priority to child support 15.3(1) Where a court is considering an application for a child support order and an application for a spousal support order, the courtshall give priority to child support in determining the applications.

. . . Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be. [ 90 ] Given my conclusion that the petitioner had entitlement to spousal support on a compensatory basis, if there were no children of the relationship, the respondent’s spousal support obligations would have been higher than most of the amounts in the Orders in this proceeding (as is shown by application of the SSAG “without child support” formula to the parties’ incomes). [ 91 ]

Chapter 12 (Exceptions (SSAG

Chapter 12)) of the SSAG Revised User’s Guide provides: (

m) Section 15.3: inadequate compensation (SSAG 12.11) . . .

Section 15.3 of the Divorce Act requires that child support be given priority over spousal support, which can mean little or no spousal support, even in cases where there is a strong claim for compensatory support . . .

Section 15.3 goes on to recognize that as child support is reduced or terminated there will be increased ability to pay and thus an ability to satisfy unmet claims for spousal support which have been held in abeyance or only partially met while child support was being paid. . . .

This exception recognizes that after child support ends there may still be unmet compensatory claims and that duration under the SSAG may need to be extended to provide adequate compensation to the recipient. . . . [W]here the marriage is under 20 years in length, the time limits under this formula will become applicable, with the maximum duration being the length of the marriage.

For these cases, the effect of the exception will be to extend the duration of spousal support beyond the upper limit of the length of the marriage. [Emphasis in original] [ 92 ] Given the end of the respondent’s child support obligations, this is a crossover case between the “with child support” and the “without child support” SSAG formulas. [ 93 ]

Chapter 14 (Crossovers Between Formulas When Child Support Ends (SSAG 14.5)) of the SSAG Revised User’s Guide states: Crossover cases may require a redetermination of amount, or a determination of duration, or both. The two formulas are driven by different underlying factors, even though they overlap considerably in longer marriages. . . . In the medium-length to long marriages where there will be room for crossover, the duration of support will be driven by length of marriage and so will be the same under both formulas.

For marriages under 20 years in length there will be time-limits which, while not applied in an initial application under the with child support formula , may now be imposed. . . . In a crossover situation, the amount of spousal support may go up or down or stay the same. . . . In these cases s. 15.3 of the Divorce Act and the Advisory Guidelines exception for inadequate compensation under the with child support formula may also be relevant.

If the amount of spousal support was inadequate in the past because of the statutory priority to child support, spousal support may have to continue beyond the maximum time limits generated by the formula in order to adequately satisfy the recipient’s compensatory claims. [Emphasis in original] [ 94 ] Given the impact that the respondent’s child support payments had on his ability to pay spousal support, and his underpayment of child support, I cannot conclude that he had satisfied the petitioner’s compensatory spousal support claim by August of 2020 or even November of 2022.

As is noted in the SSAG Revised User’s Guide: … s. 15.3 of the Divorce Act and the Advisory Guidelines exception for inadequate compensation under the with child support formula [are] relevant. If the amount of spousal support was inadequate in the past because of the statutory priority to child support, spousal support may have to continue beyond the maximum time limits generated by the formula in order to adequately satisfy the

recipient’s compensatory claims. [ 95 ] Both counsel submitted SSAG calculation print-outs respecting the respondent’s potential spousal support obligations from 2016, the first year the petitioner’s income exceeded the $28,000 imputed to her from July 2014 in the Final Order. [ 96 ] The respondent’s counsel submitted various calculations of his adjusted spousal support payments to reflect the changes to the parties’ incomes and to child support entitlement for L. and M. [ 97 ] The respondent’s counsel prepared a number of detailed charts calculating the respondent’s view of his overpayments and underpayments of spousal support for various years, based on three ranges generated by the applicable SSAG formula; low-range, mid- range and $17 more than the average of the low-range and the mid-range.

She argued that the last category should be considered because the $609 spousal support payments in the 2013 Final Order, were some $17 more than the difference between the low-end and medium-end support amounts generated by the SSAG “with child support” formula, based on the respondent’s 2012 income and the petitioner’s $22,000 imputed income.

The Final Order did not, however, base the respondent’s $609 monthly spousal support obligation on that income for the petitioner. [ 98 ] The Final Order set the respondent’s annual income at $85,658, imputed the petitioner’s annual income at $22,000 from August 2012 until June 2014, and provided for spousal support of $1,592 per month from June to September of 2013 and $759 per month from October 2013 to June 2014.

The initial spousal support amount significantly exceeded the high-end support generated by the SSAG, presumably as a resolution of then-existing issues (including, possibly, spousal support for the months missing in the Interim Order).

The monthly payments that began in October 2013 were $5 more than the mid-range pursuant to the SSAG, not $17 more than the average of the low-end and medium-end support amounts pursuant to the SSAG “with child support” formula. [ 99 ] The current monthly spousal support payments of $609 did not commence until July of 2014, when the petitioner’s annual income was, by agreement, imputed to be $28,000. [ 100 ] The respondent’s calculations showed that based on the various ranges, there may have been overpayments of spousal support in some years and underpayments in others.

The petitioner seemed to agree with many of the respondent’s calculations. [ 101 ] The SSAG provide considerable flexibility with respect to means of addressing spousal support claims, including restructuring to provide that lower payments be ordered for longer durations. This recognizes the discretion involved in determining quantum and duration in spousal support cases, cases that often turn on their unique facts.

The fact that spousal support may have been set at the mid- range of the SSAG by agreement in the 2013 Final Order, does not mean that ongoing spousal support should be set based in that range. [ 102 ] The calculations submitted by the petitioner, based on the parties’ 2022 incomes, show ranges of spousal support pursuant to the “without child support” formula from $970 at the low end to $1,132 at the medium end. [ 103 ] In reaching this decision, I have also considered that the petitioner did not file her Notice of Motion to Vary spousal support for a considerable period of time after the respondent filed his Notices of Motion to Vary, and that she wholly failed to comply with her financial disclosure obligations pursuant to the Final Order until the respondent initiated these proceedings, affecting his ability to consider whether to seek a variation at an earlier time. [ 104 ] In the circumstances, given all of the factors I have previously noted, I am ordering that the monthly spousal support payments to the petitioner should continue at their current level of $609 until, and including, the payment due December 1, 2024, and terminate thereafter. [ 105 ] The duration of spousal support I have ordered means that the respondent will pay spousal support to the petitioner for a period of 14 years, somewhat over the mid-way point of the suggested 8.5 to 17 year range in the SSAG for relationships of the duration of that of the parties.

The result is that spousal support will be payable four and one-half years longer than the respondent originally sought, just over two years longer than the respondent argued would be the point when any underpayment of child support would be offset by his spousal support payments, and three years less than sought by the petitioner. [ 106 ] The Variation Order is to state that there are no overpayments of child or spousal support due by the petitioner and, barring any support arrears that may currently exist, no underpayments of child or spousal support due by the respondent.

Costs [ 107 ] Costs may be spoken to in the event the parties are unable to agree. _________________________J.

Schedule “A” Year Respondent’s Income Child Support Owing Child Support Paid ($1,176 less $35 re orthodontia) Shortfall Owing (Monthly) Annual Shortfall Owing

2014 $86,595.14 $87,456.23 less union dues of $861.09 $1,187/month ($14,244/year) $1,141/month $46 $552 2015 $91,815.35 $92,700.95 less union dues of $885.60 $1,251/month ($15,012/year) $1,141/month $110 $1,320 2016 $90,287 $91,184.15 less union dues of $896.28 $1,232/month ($14,784/year) $1,141/month $91 $1,092 2017 $89,143 $90,287 less union dues of $896.28 $1,253/month ($15,036/year) $1,141/month $112 $1,344 2018 $95,856 $96,669.88 less union dues of $813.65 $1,336/month ($16,032/year) $1,141/month $195 $2,340 2019 $92,559 $93,367.21 less union dues of $808.21 $1,296/month ($15,552/year) $1,141/month $155 $1,860 Total $8,508