Sinclair v. McAuley, 2012 MBCA 63

Citation: Sinclair v. McAuley, 2012 MBCA 63 Date: 20120604 Docket: AF 12-30-07760 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : LORI ELLEN SINCLAIR ) ) (Petitioner) ) ) C. B. Paul - and - ) for the Applicant ) TODD HENRY McAULEY ) J. E. Crane ) for the Respondent (Respondent) ) (by original action) ) T. J.

Kochanski ) for the Civil Service AND BETWEEN: ) Superannuation Board ) CRAIG GENAILLE AS THE ) EXECUTOR OF THE ESTATE OF ) Chambers motion heard: LORI ELLEN SINCLAIR ) May 31, 2012 ) (Petitioner) Respondent ) Decision pronounced: ) June 4, 2012 - and - ) ) TODD HENRY McAULEY ) ) (Respondent) Applicant ) ) (by order dated May 4, 2012) ) CHARTIER J.A. 1 The applicant (the father) moves for an order to preserve the proceeds of two policies of life insurance resulting from the untimely death of Lori Ellen Sinclair (the mother) pending his appeal from the decision of the motions judge refusing to designate him as a beneficiary under the said policies. 2 Some background is necessary.

One month before filing this motion, the father had filed a similar motion. My colleague M. A. Monnin J.A. considered the matter and dismissed the application. He noted that the order being appealed had not yet been finalized and taken out and, because the exact tenor of the motions judge’s decision had not been made entirely clear to him, he was not prepared to deal with it.

Moreover, he considered the application to be in the nature of a stay application and pointed out that the practice of this court is not to consider stay applications unless they have initially been made to and refused by the judge who granted the order which is being appealed to our court. 3 I am now being asked to consider the same application. The facts and events leading to this application need not be repeated as they are detailed in my colleague’s decision, referenced at Sinclair v. McAuley , 2012 MBCA 29 . However, since his decision, there have been significant changes in circumstances.

The motions judge’s order has now been finalized and signed; a request for a stay has been made to and refused by the motions judge; the mother has since passed away; and the insurance proceeds are ready to be paid out to the beneficiaries. 4 Counsel for the estate of the mother and beneficiaries of the life insurance policies (counsel for the estate) has raised a jurisdictional issue. He argues that I cannot consider the application because it is more than “incidental” to the matter pending on appeal. Section 7(1) of The Court of Appeal Act , C.C.S.M., c.

C240 (the Act ) limits the powers of a chambers judge to hearing and disposing of matters which are incidental to a matter pending before our court. This court has stated that “incidental,” as used in s. 7(1) , means that the issue to be determined by the chambers judge plays but a minor or subordinate role in relation to the outcome of the appeal (see British Aviation Insurance Group v. Coseco Insurance Co. , 2010 MBCA 56 at para. 2 , 251 Man.R. (2d) 318 , and Canada (Attorney General) v.

Courchene , 2010 MBCA 4 at paras. 3-5 , 85 C.P.C. (6th) 97 ). 5 While related to the principal issue under appeal , i t is clear to me that a consideration of the father’s application to “preserve the life insurance benefits” pending the appeal of the motions judge’s refusal to designate him as a beneficiary under certain

life insurance policies is a matter which properly falls within the jurisdiction of a single judge of the Court of Appeal and the purview ofs. 7(1) of the Act. 6 I now turn to the merits of the application. 7 The general principles applicable to this application require a determination of three questions (see RJR-MacDonaldInc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, and Manitoba (Attorney General) v. MetropolitanStores Ltd., (SCC), [1987] 1 S.C.R. 110). Is there a serious question to be argued on appeal? Would the father sufferirreparable harm if the application is refused?

Finally, on a balance of convenience, who would suffer greater harm from the granting orrefusal of the application?

The onus is on the father to satisfy me that the first two questions should be answered in the affirmative andthat he would suffer the greater harm. 8 On the first question (the serious question element), the thrust of the father’s argument is that the purpose of the lifeinsurance policies was to ensure that the surviving spouse was able to contribute to the child’s support and that now that the mother, whowas the principal wage-earner, has passed away, the financial well-being of their child is in issue.

Counsel for the estate submits that thefather has no arguable case. 9 On the irreparable harm question, the father argues that the child, being a minor, would have the insurance proceedsheld in trust until his 18th birthday and would have little, if any, access to these funds until then. Counsel for the estate submits that thechild could access these funds pursuant to The Public Trustee Act, C.C.S.M., c. P275, or The Dependants Relief Act, C.C.S.M., c.

D37. 10 On the balance of convenience test, the father argues that the beneficiaries are not in need because the insuranceproceeds arise from the untimely death of the mother and, as such, were not anticipated funds. He submits that the funds could beinvested in an interest-bearing trust account until the issue is determined on appeal.

Counsel for the estate submits that the child will bethe one who will suffer the greater harm as it would be mostly his funds which would be held in trust pending appeal. 11 I have been persuaded, in the particular circumstances of this case, to grant the request to preserve the proceeds of thelife insurance policies pending appeal and order that the proceeds of the two life insurance policies be paid to the counsel for the estateand be held in an interest-bearing trust account pending the decision of this court on the merits of the appeal. 12 The application is granted with costs. J.A.