Kynoch v. Kynoch, 2013 MBCA 73

Citation: Kynoch v. Kynoch, 2013 MBCA 73 Date: 20130820 Docket: AF 12-30-07842 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin BETWEEN : ) L. R. Fishman DEBBIE SHARON MARIE KYNOCH ) for the Appellant ) (Petitioner) Appellant ) S. D.

Abel ) for the Respondent - and - ) ) Appeal heard: DENNY JAMES JOHN KYNOCH ) June 13, 2013 ) (Respondent) Respondent ) Judgment delivered: ) August 20, 2013 STEEL J.A. [ 1 ] This is an appeal from a decision of the trial judge, following a seven day trial, on issues of spousal support, recovery of costs of moving, counselling and legal expenses, extension of a protection order, various property issues and costs. FACTS [ 2 ] The husband and wife were married in 1979 and separated in February 2009. The parties had three children, all of whom are independent adults at this point in time.

The wife was 47 at the time of separation and the husband was 49. [ 3 ] The husband has a Grade 9 education; however, in the early years of the marriage, with the support of his wife, he upgraded his education and obtained journeyman’s papers as a heavy-duty mechanic and obtained air conditioning certification. [ 4 ] The wife has a Grade 11 education and did some part-time work until she became pregnant, at which time she became a full-time homemaker for the most part.

She worked part-time occasionally during the marriage at various jobs. [ 5 ] In 1989, they rented land from both of their parents, which they farmed for 20 years. In addition to farming, the husband also did some mechanical repair work, was a part-time instructor at Assiniboine Community College in mechanics and started a vehicle safety inspection business. The wife did the bookkeeping for the business. [ 6 ] After the separation, the husband found full-time employment as a mechanic with Miller Farm Equipment.

The wife enrolled in Assiniboine Community College in September 2009 and obtained a certificate in office administration in June 2010. She obtained a job with Nickel Electric in June 2010. At the time of the trial, she was on a medical leave. [ 7 ] Interim spousal support for the wife was ordered in the amount of $1,000 per month beginning January 2010.

[ 8 ] The wife suffered from medical issues during the marriage and was also suffering from medical problems at the time of trial. She testified she could not return to work full-time. However, she was unrepresented at trial and did not submit evidence in support of her medical condition and future capabilities. While the wife was represented up until trial, her lawyer withdrew before trial. [ 9 ] The wife alleged abuse during the marriage and threats by the husband after separation. She obtained an uncontested protection order upon separation which was continued by the court for the duration of the trial.

While the husband admitted to some abuse during the marriage, including one incident of physical abuse, he did not admit all allegations. [ 10 ] The property issues between the parties primarily concerned “family” debts that each asserted were owed to their respective parents. [ 11 ] In 2010, the husband had employment income of $60,691.20 and farm income of $50,432. In 2010, the wife had employment income shown as $30,360.52, inclusive of $12,000 in spousal support. In 2011 and in 2012, the husband had income of between $65,000 and $67,000, and, in 2011, the wife had income of approximately $37,000.

Her income was more uncertain in 2012 due to her medical issues; however, with employment insurance and disability payments, her income was approximately $34,000. [ 12 ] The court dismissed the wife’s request for an extension of the protection order, her claim for reimbursement of her moving and other costs, and her contention that the loans from her parents were shareable liabilities. It accepted the validity of the loan from the husband’s parents and reduced spousal support from $1,000 to $250 per month effective August 1, 2012.

Costs were awarded in the husband’s favour in the sum of $5,000. [ 13 ] The wife appeals, arguing the trial judge erred in fixing the quantum of spousal support, that support retroactive to the date of separation should have been considered, that he erred in the way he dealt with the debts of the parties, that he should have extended the protection order and that he should not have awarded costs against the wife. DECISION OF THE TRIAL JUDGE [ 14 ] The trial judge was alive to the fact that it was difficult for the wife representing herself to prepare and present a trial in an efficient, coherent style.

He was also concerned that he did not have all the evidence required to properly resolve the issues between these parties. I have read the transcripts of the trial. The financial issues were complex and they were made more complex by the wife given her unfamiliarity with the legal process. The trial judge gave the wife a great deal of leeway. Nonetheless, he had no choice but to make the best decision he could on the evidence that was in front of him. [ 15 ] There were four loans made to the parties by their parents.

The trial judge held that, with respect to the three loans made by the wife’s parents to the couple, the first made in 1980 with no payments being made and the other two with the last payments made in 1996, were all three statute barred and were, therefore, not enforceable as of the date of separation. [ 16 ] However, with respect to the $20,000 loan made by the husband’s father, there was evidence that the loan was extended to 2004 and it was, therefore, a valid debt and to be included in the family property accounting. [ 17 ] The trial judge, based on the evidence of both parties and after watching both parties testify, concluded that the facts of the case did not warrant the granting of a protection order and dismissed the application to extend it. [ 18 ] With respect to spousal support, the trial judge found that the economic prospects of both parties suffered as a result of the dissolution of the marriage.

The trial judge acknowledged that the wife had to retrain and, while she obtained employment, “she has foregone 20 years of being able to build up seniority, further her training, or invest in a pension plan” (at para. 53). Similar to the wife, the 20 years spent farming deprived the husband of the opportunities to build up seniority, further his training or invest in a pension plan (at para. 54).

However, since the husband had obtained his status as a journeyman mechanic during the marriage, he was able to obtain employment at double the income of the wife. [ 19 ] On the other hand, the wife’s father had bought her a house and car, while the husband lived with his mother and paid rent. Consequently, the trial judge held that, although entitlement existed and some spousal support was due to the wife given the difference in lifestyle, the quantum should be minimal to allow the husband to improve his standard of living. “Mr.

Kynoch’s standard of living has decreased significantly since the date of separation” (at para. 59). “[H]e has no residence of his own, no pension plan and little savings for the future” (at para. 69). [ 20 ] The trial had to be adjourned for three months while the wife underwent surgery. Upon the trial recommencing, the wife testified that she did not know whether she would be able to return to work; however, no prognosis was presented to the court. The court was left with a difficult decision (at paras. 65-66): The court was left with no indication of what, if any, affect this new surgery would have on Ms.

Kynoch’s future employment. It is the duty of the litigants to present the necessary evidence. The court requires to decide the issues in question. Ms. Kynoch was given the opportunity to reopen her case on two occasions. Her evidence consumed the bulk of the time set for this trial. Eventually, Mr. Kynoch is entitled to have a decision rendered in this matter. I have assumed that Ms. Kynoch will be returning to work on a full time basis.

STANDARD OF REVIEW [21] The decisions of the trial judge were discretionary and should not be interfered with unless the reasons disclose an errorin principle, a significant misapprehension of the evidence or unless the award is clearly wrong or unjust. See Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, and Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367. ANALYSIS AND DECISION [22] I would dismiss the appeal in relation to all issues except the quantum of spousal support awarded to the wife.

DEBTS [23] The wife’s arguments in respect of the debts effectively are an attack on the findings of fact of the trial judge and anargument that it is simply unfair to find one debt valid and another barred by the statute of limitations. She submits that the trial judge’sanalysis in respect of these debts was a formalistic analysis inappropriate to the circumstances. As explained in the factum: Neither of the parties was a sophisticated borrower and neither were their generous parents sophisticated lenders. To hold one loan goodand the others bad creates a legal fiction as a substitute for an emotional one.

The inherent unfairness recognized by the trial judgeshould have been avoided by a refusal to accept any of the evidence in support of either of the debts. [24] There are three debts owing to the wife’s father and one debt owing to the husband’s mother that were at issue in thiscase. The first debt in the amount of $10,000 was borrowed in 1980 and no payments were ever made on the loan, nor has the wife’sfather ever made a written demand for payment of that loan.

As such, the loan was not enforceable at the date of separation as found bythe trial judge and was not a shareable debt. [25] The two other loans were in the amount of $7,204.87 and $6,300, respectively, and the last payment made on these twoloans was in 1996. Consequently, as found by the trial judge, they were not enforceable at the date of separation in 2009. [26] In 1995, the husband’s father lent the husband $20,000 to buy a truck. The loan was extended to 2004. The evidencewas that the husband’s father expected the loan to be repaid.

The will of the husband’s mother confirmed that the debt was to bededucted from the share of the husband’s inheritance. The wife acknowledged it was her handwriting on the loan document thatindicated the extension. Given that the loan had been extended, it was not statute barred as of the date of separation and was therefore ashareable debt. [27] The determination as to whether a debt is owing to one party is not dependent upon the determination of the legalvalidity of another. Each debt must stand on its own depending on the facts.

I see no grounds for interfering with the findings of thetrial judge on this point. [28] On the other hand, the resulting additional debt load placed upon the wife then became a relevant factor in assessing thequantum of spousal support. I will discuss that later in my reasons. PROTECTION ORDER [29] The wife submits that the trial judge’s decision to deny her a continuation of the protection order was based on amisapprehension of the evidence.

The fact that she cross-examined her husband at the trial without obvious fear does not mean that sheis not in need of a protection order given the long history of abuse in this relationship. [30] Whenever a relationship has a history of abuse, the court must be very careful in determining issues that impact on thesafety of the victim.

However, in this case, not only did the trial judge have the benefit of hearing and seeing the parties testify, but healso heard evidence that the husband had not been charged with breaching the protection order for the three years it had been in place,that the parties were having communications and meetings with each other both in person and over the telephone during that time andthat the husband was no longer in possession of any firearms. The evidence with respect to the threats after separation was conflicting.

Based on the totality of the evidence, he concluded that he did not believe that the wife feared for her safety or that the husband posed a

threat to the wife. [ 31 ] I see no grounds for appellate intervention in the trial judge’s dismissal of the wife’s request for an extension of the protection order. SPOUSAL SUPPORT [ 32 ] With respect to the quantum of spousal support, there are a number of factors that lead me to the conclusion that the quantum of spousal support awarded by the trial judge in the amount of $250 per month is too low and, therefore, unjust in the circumstances.

I do not believe that the trial judge took into account the cumulative impact of the following factors. [ 33 ] First, while the trial judge was correct in his finding that the debt to the husband’s father was shareable while the debts to the wife’s father were not and while he recognized the “apparent inequity of disallowing credit for the monies lent to the Kynoch’s by Mr.

Desrochers but allowing the debt owing to William Kynoch” (at para. 17), he did not take the impact of the extra debt load into account in determining the quantum of spousal support. [ 34 ] Second, there were a number of expenses for retraining and counselling incurred by the wife as a result of the breakdown of the marriage which come under the rubric of compensatory spousal support that were not considered by the trial judge. The wife had no employment income from the date of separation until June 2010.

Instead, she had to pay for tuition and books to attend her office administration course at the Assiniboine Community College. [ 35 ] It is true that the wife did not seek those costs as part of a spousal support claim; however, she was unrepresented at trial. In making his findings that the expenses for moving, retraining and counselling claimed by the wife were post-separation and, therefore, not accountable under The Family Property Act , C.C.S.M., c. F25, the trial judge was undoubtedly correct. However, in reality it is a question of framing.

Retraining costs and counselling costs are part of the consequences to the wife of the marriage breakdown and she should be compensated for them as part of spousal support. [ 36 ] Third, the trial judge did not make an award for retroactive support. The wife argues that, although she separated in February 2009 and filed for interim support in March 2009, it was not awarded until January 1, 2010. [ 37 ] It should be noted that the husband left the family home in March 2009, and did not obtain employment until June or July of 2009, some four to five months after separation.

In addition, he continued to pay interim support at the rate of $1,000 per month until the issuance of the final order in this case, in July 2012. Nonetheless, in looking at the complete picture, one should consider that there was a period of approximately ten months when the husband was working, the wife was not and no support was being paid. There is no question that the trial judge had the jurisdiction to order spousal support from the date of separation ( see Dickson v. Dickson , 2011 MBCA 26 , 262 Man.R. (2d) 247 ). [ 38 ] Fourth, the wife’s physical health is precarious.

Her medical issues pre-date the separation, but continued after separation. In 2007, she had an aorta bi-femoral by-pass surgery. In 2011, she earned approximately $37,000 working full-time. However, during the trial in June 2012, she found herself back in hospital undergoing further surgery. The wife argues that the court made an assumption about her ability to work full-time that was not well founded on the evidence.

She testified at the trial that she could not work full-time because of her condition; however, she did not provide any documentation or medical prognosis as to the extent of the impact of the surgery on her income earning capacity. [ 39 ] While I agree with the trial judge that he was not presented with the evidence he should have been and had no choice but to make assumptions in the absence of that evidence, some allowance should have been made for the uncertainty of the wife’s medical condition. [ 40 ] Fifth, given the particular circumstances of this couple, an award of spousal support in the amount of $250 a month is just too low.

This was a long-term traditional marriage of almost 30 years where the wife came into the marriage at the age of 17 with a Grade 11 education and was primarily a stay-at-home mother while the children were young. While she assisted with the farm and the various businesses, it was as an adjunct to her role as a mother and wife. [ 41 ] On the other hand, the husband upgraded his skills during the marriage and acquired a profession as a journeyman mechanic which he was able to return to as a full-time occupation after the end of their farming career.

Since the separation, the husband has continued in his profession, a direct benefit of the marriage. The wife has had to deal with her lack of skills, her medical condition and needed counselling due to the marriage breakdown. [ 42 ] While neither spouse has a pension plan or job security, the husband’s trade qualification as a journeyman mechanic is the key to his current and ongoing financial security. The husband’s income is approximately $65,000 to $67,000 per annum with bonuses and overtime. This is almost double the wife’s income of approximately $37,000, even assuming she is capable of working full- time.

One should also note that the husband will get a tax deduction for the payment of spousal support while the wife will pay tax on the amount. [ 43 ] With respect to present lifestyle comparisons, although the wife’s father did buy the wife a house and car after separation, that did not result in a substantial difference in lifestyle. The maintenance of the house costs the wife in the same range as rented accommodations. Besides maintenance and utilities, her property tax is $350 per month. The husband has the use of his mother’s home, as well as paid-for accommodation and food while travelling for work.

Although the husband testified he paid his mother $300 per month for rent, he also testified that he did not pay that amount every month and sometimes bartered rent in exchange for labour around the home. In addition, the house and vehicle given to the wife was considered as an advance on her inheritance.

[ 44 ] Moreover, although the wife referred to the Spousal Support Advisory Guidelines (SSAG) and the court acknowledged that the courts did use them, the trial judge did not consider them and did not explain how he arrived at the quantum of $250 per month. [ 45 ] The SSAG were finalized in 2008. Their acceptance seems to be growing among lawyers and the judiciary, as everyone becomes more familiar with their use and the computer programs that make their application easier to adopt. (Annual review of Family Law, 2011, James G. McLeod and Alfred A.

Mamo, Carswell (2012), p. 454) [ 46 ] I am well aware that the SSAG, although certainly part of the legal landscape at this point in time, are not legislated or binding, are only advisory and do not replace judicial discretion. The parties, their lawyers and the courts are not required to employ them. This court in Scott v. Scott , 2011 MBCA 21 , 262 Man.R. (2d) 237 , has adopted the approach taken by the Ontario Court of Appeal in Fisher v.

Fisher , 2008 ONCA 11 , 88 O.R. (3d) 241 , and has held that the SSAG have not replaced the inherent discretion of a judge to determine what he or she considers an appropriate quantum to be awarded. Failure to refer to the SSAG or failure to follow them is not an error in principle. [ 47 ] The SSAG must be used with care and understanding as to their structure and the limitations of determining spousal support based on a formula.

As the Ontario Court of Appeal explained in Fisher , the formulas in the guidelines do not create new law, but reflect the result and the preponderance of decisions under the existing jurisprudence. The guidelines do not apply in many cases and must not be used in substitution for a consideration of the individual circumstances of the parties in front of the court. [ 48 ] Having repeated the cautions expressed in the Scott case, I also acknowledge that the SSAG can bring some measure of consistency and predictability to a sorely inconsistent area and thereby encourage settlement.

After considering the individual facts of a case, testing the quantum of support against the range suggested by the SSAG to see whether it falls within or close to that range is a reasonable method of double-checking the validity of the quantum of spousal support. This is especially so, in a case such as this, where the trial judge did not explain how he arrived at the figure of $250, and failed to take into account certain other considerations as mentioned above. As a matter of fact, at trial, even counsel for the husband suggested a higher quantum of spousal support of $300.

In effect, the SSAG can act as a “litmus test” to determine whether the quantum of spousal support is so low as to be unjust or clearly wrong. [ 49 ] In this case, reference to the SSAG confirm, in my view, that $250 per month is too low in the circumstances of this case. The SSAG shows a spousal support award in the range of between $878 to $1,134, with a mid-range of $1,006.

While I understand the trial judge’s desire to adjust the quantum of spousal support to take into account the fact that the wife owns a house and the husband has no assets, the reality is still that the husband’s present income is double that of the wife’s, as a result of training he obtained during the marriage. While I agree that some allowance should be made for the fact that the wife owns a home, I disagree with the quantum arrived at by the trial judge for the reasons listed above. Instead, I would substitute an award that is below the low end of the range in the amount of $600 per month. [ 50 ] In

summary, in assessing the quantum of spousal support, the trial judge did not adequately consider the financial and emotional detriments to the wife which occurred as a result of the marriage as well as its breakdown. It may be that the wife has a capital asset that may benefit her in the future. It may be that the situation will change as a result of inheritances that may or may not come to the parties. It may be that when the husband retires, the situation will look quite different. Many things may happen in the future.

However, in the present, the wife is living in the house and is maintaining it at a cost not significantly different than if she were renting accommodations. Should circumstances change, variation applications can be made. COSTS [ 51 ] As we all know, the award of costs is a discretionary decision. The trial judge considered the tariff, the result in this case and the economic impact of the decision on the wife. He also considered the fact that the length of the trial was increased due to the wife.

While it may not have been the wife’s fault given her lack of representation, neither should the increased cost be laid on the shoulders of the husband. Counsel for the husband was asking for costs in the amount of $11,000. Taking all the factors into account, the trial judge awarded the husband only $5,000. Given the overall result of the decision at trial and on appeal, I would not interfere with the lower court’s decision on costs. [ 52 ] With respect to the costs on appeal, success is divided so each party will bear their own costs [ 53 ] The appeal is allowed in part. J.A. I agree: J.A. I agree: J.A.