Scott v. Scott, 2011 MBCA 21

Citation: Scott v. Scott, 2011 MBCA 21 Date: 20110214 Docket: AF 10-30-07409 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton BETWEEN : MARY JEANNETTE SCOTT ) A. J. Widmer ) for the Appellant (Petitioner) Appellant ) ) S. D.

Abel - and - ) for the Respondent ) GEORGE CLOVIS SCOTT ) Appeal heard and ) Decision pronounced: (Respondent) Respondent ) January 19, 2011 ) ) Written reasons: ) February 14, 2011 MONNIN J.A. 1 This is an appeal from an order varying spousal support payable by the respondent to the appellant from $700 to $400 monthly. 2 The appellant argued that the motions judge erred in finding that there was a material change in circumstances that would have resulted in a different spousal support order, if the court had known about and considered these changes in the parties’ circumstances at the time the last order was made.

She further argued that the motions judge generally erred in his assessment of the respondent’s income and, more particularly, erred in not imputing income from the respondent’s corporation. In addition, the appellant alleges that the motions judge erred in failing to consider and follow the Spousal Support Advisory Guidelines (the SSAG ) in determining the amount of support he should be paying and, finally, she argued that the judge erred in failing to provide reasons for the award he made. 3 At the conclusion of the hearing the appeal was dismissed with costs and with short reasons to follow.

These are those reasons. 4 It has been long and clearly established that a court of appeal should not overturn a support order unless the reasons of the motions judge disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong. 5 The motions judge provided detailed and cogent reasons for his award, although, admittedly, he made no reference to the SSAG , and, in my view, could have provided a clearer link between his award and the reasoning for reaching it.

He did not, however, in any of his findings or ultimate decision, make an error in principle or misapprehend the evidence, nor was he clearly wrong. 6 The motions judge made a clear finding on the facts before him, as he was entitled to do, that there was a material change in circumstances from the time the last order was made and the time when the variation was sought; that change had to do with the income of the parties. Counsel for the appellant conceded that such a change in fact existed.

She further conceded that the test for finding such change did not go as far as requiring that such a change would have resulted in a different spousal support order, if the court had known about and considered these changes in the parties’ circumstances at the time the last order was made as argued in her factum and before us.

7 The motions judge provided a full and detailed analysis of his findings as to the income of the parties and why he declinedto impute income to the respondent. There is no basis for appellate intervention with respect to that ground of appeal. 8 Notwithstanding my comments with respect to a clearer link to the ultimate award, I have not been persuaded that themotions judge failed to provide adequate reasons for his award. As indicated earlier in these reasons, he provided detailed and completereasons for his findings.

The appellant’s argument is that when he settled on what he considered to be an appropriate amount, he failedto explain why he settled on that amount. His reasons state: “Taking all of the factors into account, support should be reduced to $400monthly commencing June 1, 2010” (at para. 60). 9 In determining whether reasons are sufficient, a functional approach should be taken. Reasons cannot, and should not beread on a piece meal basis, but as a whole. This is what the motions judge is referring to in the above-quoted paragraph when he refersto “[t]aking all of the factors into account” (ibid.).

It includes his findings as to income and his consideration of the law. In particular,his reasons go far in explaining his ultimate award (at para. 50): Thus the husband’s income remains about $18,000.00 to $20,000.00 more than the wife each year. In 2006, the year the current sum of$700.00 commenced, the differential was $35,000.00. 10 As indicated earlier in these reasons, it would have been helpful if the motions judge had more clearly linked his award to hisotherwise well-considered analysis, but that is a far cry from accepting the argument that he failed to provide adequate reasons for hisaward.

There is no merit to that ground of appeal. 11 I deal lastly with the motions judge’s failure to refer to the SSAG. Although it might be useful, in certain cases, to refer to theSSAG, one must not forget that they are not legislated guidelines, they are not binding on courts and, as of yet, they have not replaced theinherent discretion of a judge to determine what he or she considers an appropriate quantum to be awarded. 12 I am aware that in some jurisdictions it has been decreed that heavy reliance is to be placed on the SSAG. I prefer theapproach taken by the Ontario Court of Appeal in Fisher v.

Fisher, 2008 ONCA 11, 288 D.L.R. (4th) 513, where Lang J.A., writing forthe court, stated (at paras. 94-98): The Guidelines were drafted under the aegis of the federal Department of Justice by the highly-regarded family law professors, CarolRogerson and Rollie Thompson. The objective of the Guidelines is to bring certainty and predictability to spousal support awards underthe Divorce Act. For this purpose, they employ an income-sharing model of support, that if proven viable, will reduce the need to rely onthe labour-intensive, and thus expensive, budget-based evidence employed in a typical case.

In this way, in a manner quite different fromthe Federal Child Support Guidelines, SOR/97 (CSGs), the Guidelines aspire to reduce the expense of litigation of spousal support bypromoting resolution for the average case. In the seminal case of Yemchuk v. Yemchuk (2005), 2005 BCCA 406 , 16 R.F.L. (6th) 430, 257 D.L.R. (4th) 476 (B.C.C.A.), atpara. 64, Prowse J.A. aptly characterized the Guidelines as a “useful tool.” She recognized that, unlike the CSGs, the Guidelines areneither legislated nor binding; they are only advisory. The parties, their lawyers, and the courts are not required to employ them.

Aswell, the Guidelines continue to evolve; they are a “work in progress” subject to revision. Those revisions, as with the Guidelinesthemselves, will follow after broad consultation by the authors with a wide range of interested constituents. Importantly, the Guidelines do not apply in many cases. They specifically do not apply at all in certain enumerated circumstances,including where spouses earn above $350,000 or below $20,000. Furthermore, they only apply to initial orders for support and not tovariation orders. They are thus prospective in application.

They do not apply in cases where a prior agreement provides for support and,obviously, in cases where the requisite entitlement has not been established. They will not help in atypical cases. As well, there will beregional variations, as well as rural and urban variations, that may be seen to merit divergent results based on variations in cost of livingor otherwise.

Importantly, in all cases, the reasonableness of an award produced by the Guidelines must be balanced in light of thecircumstances of the individual case, including the particular financial history of the parties during the marriage and their likely futurecircumstances. Accordingly, the Guidelines cannot be used as a software tool or a formula that calculates a specific amount of support for a set period oftime. They must be considered in context and applied in their entirety, including the specific consideration of any applicable variablesand, where necessary, restructuring.

Importantly, the Guidelines do not impose a radically new approach. Instead, they suggest a range of both amount and duration ofsupport that reflects the current law. Because they purport to represent a distillation of current case law, they are comparable tocounsel’s submissions about an appropriate range of support based on applicable jurisprudence.

However, if the Guidelines suggest arange that conflicts with applicable authorities, the authorities will prevail. 13 This court is aware that the comments of Lang J.A., in the above quote, to the effect that the SSAG are not applicable tovariation orders may not be the case in all situations, nor accepted by all courts. See, for example, Beninger v. Beninger, 2007 BCCA

619 , 47 R.F.L. (6th) 11 at para. 51 . However, we need not decide that issue in this case. For our purposes, it is sufficient to say that, although given counsels’ reference to the SSAG in their submissions, it might have been useful for the motions judge to have referred to them in his reasons. His failure to do so is not an error in law justifying appellate intervention. 14 The appeal, as previously stated, is therefore dismissed with costs. __________________________ J.A. I agree: __________________________ J.A. I agree: __________________________ J.A.