Sinclair v. McAuley, 2012 MBCA 29

Citation: Sinclair v. McAuley, 2012 MBCA 29 Date: 20120326 Docket: AF 12-30-07760 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : LORI ELLEN SINCLAIR ) C. B. Paul ) for the Applicant (Petitioner) Respondent ) ) M. L. Karpiak ) for the Respondent - and - ) ) Chambers motion heard: ) March 15, 2012 TODD HENRY McAULEY ) ) Decision pronounced: (Respondent) Applicant ) March 26, 2012 MICHEL A.

MONNIN J.A. 1 This is an application seeking an order preserving the benefits accruing from two policies of life insurance on the respondent’s life pending hearing of the applicant’s appeal from an order of a judge of the Court of Queen’s Bench, Family Division, dealing generally with child support. 2 My description of the order being appealed is purposefully vague because, at the time this application was filed with the court and at the time the application was heard before me, the order in question had yet to be finalized and taken out.

This is so, the applicant advances, because the judge hearing the matter in motions court has requested that the parties appear before him to deal with further matters that arose from their initial appearance before him. 3 The applicant and the respondent were in a common-law relationship for 12 years. There is one child of that relationship, born December 19, 2001, and the respondent has an adult child from a prior relationship. The parties separated in May of 2011.

Shortly after the separation, the respondent was diagnosed with a terminal brain tumour. 4 The events and time-lines leading to the application before me are set out in the applicant’s affidavit in support of his application as follows: This litigation has proceeded on an expedited litigation

schedule as follows:

a) By motion dated August 19, 2011, the matter was set down directly for a contested hearing on August 26, 2011.

b) The terms of the above order were settled September 26, 2011;

c) My counsel brought motions for additional relief including, financial disclosure, preservation of assets, sharing of pension benefits, security of child support against life insurance, determination of life insurance beneficiary to secure same until this matter can be determined on a final basis. This motion was heard November 8, 2012 [ sic ];

d) Justice Yard granted an order preserving assets and

summary judgment respecting the sharing of pension benefits, but dismissed the request to specifically secure the life insurance policies through the designation of an alternate beneficiary. ….

e) Before the Order was signed, by letter dated November 18, [ sic ] 2011, Mr. Justice Yard requested further argument respecting the sharing of pension benefits. That hearing took place February 24, 2012.

I am informed by my counsel and do verily believe that at the hearing of that matter, judgment was reserved and no decision has issued. …. 5 In oral reasons delivered November 8, 2011, the motions judge, in dealing with the issues that are pertinent to this application, wrote: We have already dealt with the question of interim support for the single child of this union, Todd, Jr., and counsel have agreed and, accordingly, the consent order is that income determination for present purposes, on an interim basis, is $85,600 per annum, yielding a child support order on the Manitoba table for one child of $725 per month, next payment due December 1st, 2011 by the program, continuing monthly thereafter. . . . . .

The motion dealing with substantive relief on preservation of assets under The Family Property Act, the order will go in the usual language as contained in the auto order clauses and will bind both parties. There is a request that the joint Sun Life insurance policy which the parties have maintained over a number of years to a face value of $100,000 and I think a cash surrender value of net eight hundred and change, as contained in the policy attached to the material, is a request that the court order a re-designation of the beneficiaries. This is a policy over which each of the parties has input and control.

They chose to designate two individuals as equal beneficiaries, effective June 3rd, 2011, based on the evidence before me. They both signed off on that. I do not have any clear evidence about what the beneficiary scenario was prior to that date, but as of June 3rd they made that decision and the future was before them on June 3rd. They both had a reasonable amount of information about the health status of Ms. Sinclair. I am not prepared to interfere in the designation that they made at that time. Ms. Sinclair has two children. They are named as specified.

This was done with the concurrence of her husband who has had second thoughts. I will not interfere. There is another policy of life insurance arising through her employment. I am told that it has a face value of approximately $429,000 and there is a series of beneficiaries, one of whom is Todd, Jr., 35 percent of face value, and counsel tell me that the math on that is about three hundred, or pardon me, a hundred and fifty thousand dollars and change. Again, this is a, it is not an asset today. It is a contingent asset, I suppose a contingent liability of whoever the insurer is.

I am not prepared to interfere in that designation either. 6 On November 17, 2011, the judge wrote to the parties and stated: I have recently reviewed and released the November 8, 2011, oral reasons for judgment in this matter. Doing so has left me in some doubt as to whether my disposition as it relates to the petitioner’s CCSF pension was correct.

Accordingly, I am not prepared to sign an order regarding that pension until the matter has been re-argued and further considered. 7 The applicant had argued that the 35 per cent benefit payment that the child is to receive from the respondent’s work- related policy of insurance is insufficient to adequately address the s. 7 benefits the child might be entitled to receive under the provisions of The Family Maintenance Act , C.C.S.M., c. F20 .

With respect to the Sun Life policy, the applicant agrees that he consented to a variation of that policy, but now argues that abandoning his rights to a one-half share was an unconscionable variation of a spousal agreement. 8 Before me, the applicant argues that the court’s failure to secure the proceeds of the life insurance policies works as a prejudice against him and will prevent a full hearing and a final resolution of the issues should the respondent die and the proceeds of the policies be paid out prior to the hearing of his appeal before a panel of this court. 9 I have not been persuaded to grant the applicant the relief he seeks without first having an executed and entered order before me.

I do not accept the applicant’s submissions that it was not possible to obtain an order from the motions judge dealing with the matters in issue before me.

The exact tenor of what the motions judge decided is, in my view, not entirely clear and I am not prepared to deal with this application without knowing the exact nature of what was ordered. 10 In addition, I consider the applicant’s request to be in the nature of a stay application and it is not the practice of this court to consider stay applications unless such a request is initially made to and refused by the judge granting an order. 11 The application is dismissed with costs.

J.A.