Campbell v. Campbell, 2014 MBCA 104

Citation: Campbell v. Campbell, 2014 MBCA 104 Date: 20141120 Docket: AF14 30-08165 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN : LEANNE DAWN CAMPBELL ) S. D.

Abel ) for the Appellant (Petitioner) Respondent ) ) No appearance - and - ) for the Respondent ) ) Appeal heard: MICHAEL ALLEN CAMPBELL ) September 24, 2014 ) (Respondent) Appellant ) Judgment delivered: ) November 20, 2014 MONNIN J.A. [ 1 ] This is an appeal by the appellant husband (the husband) from a variation order imputing his income at $29,638.80 per year, setting child support payments for four children at $661 per month and providing for spousal support by a lump sum payment of $3,000 per year commencing March 31, 2012. [ 2 ] The respondent wife (the wife) was represented by counsel before the motion judge but informed this court by letter that because of lack of funds she could no longer retain counsel and would not be appearing at the hearing of this appeal.

She also did not file a factum. [ 3 ] The order that the husband sought to be varied by motion dated August 21, 2013, was a consent final order dated April 17, 2012, that provided that the husband’s annual income was $34,656.85, that he pay child support in the sum of $550 per month and that he pay the wife a lump sum payment of $3,000 per year.

The order also provided for the payment of retroactive child support of $4,090 payable in installments of $50 per month commencing December 1, 2011. [ 4 ] The husband brought a motion seeking a stay of enforcement proceedings, a deletion of arrears, a termination of the lump sum payment as well as a variation of his child support obligation and costs. [ 5 ] The husband’s motion for variation was brought on because he alleged that, contrary to the situation that existed when the consent order was made, he was no longer able to be employed on a full-time basis as a welder as he developed psoriasis and psoriatic arthritis, which made it impossible to continue working as a welder.

He has also been diagnosed with type 2 diabetes. At the time of his application to vary, he was working 13 hours per week as a part-time bartender in a legion earning $10.50 per hour. [ 6 ] In addition to his wages from the legion, the husband receives an annual dividend from shares he holds in a family corporation that receives royalty payments arising from an oil lease.

The husband declared that payment to be in the order of $10,000 per year. [ 7 ] Furthermore, at the time of the husband’s application to vary, his driver’s licence had been suspended as a result of arrears in the payment of his support obligations and he was in arrears on the mortgage against the mobile home in which he resides. [ 8 ] The wife is self-employed providing massage, reflexology and aromatherapy services earning approximately $13,797 in 2012. [ 9 ] The motion judge accepted that there existed a change in circumstances in that, since the making of the consent order in 2012, the husband, for health reasons, was no longer able to work as a welder.

He went on to state, however, that he was not satisfied

that the evidence demonstrated that the husband could not work, that he was far from satisfied with the husband’s attempts in his effortsat a job search and in giving up so quickly and that he would accept a job for 13 hours a week at minimum wage. He also found that thehusband failed to declare as income the monies he received from the family corporation. [10] The motion judge then went on to impute income to the husband, the amount of which is the central issue of thisappeal. He said: Here I have no evidence as to why Mr. Campbell, father, cannot relocate to find work in a larger centre.

He says there is nothingavailable where he is. I’m not sure I even believe that, but in any event I do know that he is underemployed at 13 hours a week. I acceptthe fact that he has no skills left and that he must work at a minimum wage. I’m also accepting the fact that basically he needs one dayoff a week to attend to medical appointments and because of setbacks due to his health, but he should be re-employed in my opinion, atan 80 percent level at minimum wage. And I am going to set his income on that. I welcome counsel to calculate that himself, eighty percent of minimum wage.

In addition, he is receiving the Uward Oil payments, and I am going to average the last three years of those to impute his income inaddition to what I have already imputed for his employment income. [11] The motion judge then went on to deal with the lump sum payment of $3,000 in these words: Now, that brings me to the final question of the $3,000 payment. I don’t know what happened at the time of the drafting of the order,and it’s very unclear to me whether it’s spousal support, child support, or whatever, but basically it was agreed to.

This is a man as wellthat has considerable assets in the fact that he is a shareholder in a corporation that’s never been delved into by counsel, but he’s [a]shareholder in a very large corporation, very large, I guess, by the scheme of this family, which is very poor, both sides. And he says thisis all I’m getting from it. I’m not sure how one can take that position when there are four mouths to feed, but in any event, he still doesowe the two $3,000 payments. How the wife collects on that I’m not sure at the present time whether there has to be some actionbrought to cash out his interest in the corporation.

I don’t know. But I’ll leave that of course, for another day. [12] It is well established that an appellate tribunal should show great deference to a decision of a motion judge setting outsupport payments, whether for a spouse or children. Unless a support order discloses an error in principle, a significant misapprehensionof the evidence or unless an award is clearly wrong, there should be no appellate interference. See Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518. [13] The husband argues that the motion judge significantly misapprehended the evidence on the issues of disclosure, hishealth and his ability to relocate in order to find employment and that on that basis, this court can interfere with the order of the motionjudge. He also argues that there was no basis on which to make a lump sum spousal support award as that was not a relief that was evensought in the original petition filed by the wife. [14] The motion judge was in error when he found that the husband had not declared the income he received from the familycorporation.

Attached to the husband’s financial disclosure were income tax returns which set out the amount received from that source. The sum of $10,000 was also set out in the disclosure document itself as an amount expected to be received by the husband. [15] Dealing firstly with the issue of the monthly child support payment, it is clear that the motion judge was not satisfiedthat the medical evidence adduced by the husband was sufficient to justify his claim that he was not able to earn more employmentincome than he was presently earning.

The motion judge’s finding that the husband was underemployed, notwithstanding his medicaldifficulties, is one of fact that the motion judge was entitled to make and that this court should not interfere with lightly. Flowing fromthat finding is the motion judge’s decision to impute the income that he did. [16] On the matter of imputing income, Steel J.A. stated the following in Donovan v. Donovan, 2000 MBCA 80, 150Man.R. (2d) 116 (at para. 18): A decision as to whether a person is capable of earning more income than they are presently earning depends on the context.

Fundamentally, the court will impute income in the same fashion that it did before the introduction of the Federal Child SupportGuidelines. Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable atthe time they are taken considering all the circumstances. [17] She then went on to summarize which guidelines can be considered when a judge decides to impute income (at para.21):

The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, Imputing Income, “Determination of Income, Disclosure of Income” , Child Support in Canada , Danrab Inc., August 3, 1999.) …. 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations. 3.

A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment. …. [ 18 ] The motion judge was entitled to exercise his discretion and impute the income that he did to the husband.

In coming to that decision, I have not been persuaded that he misapprehended the evidence before him, that he committed an error in principle or that he was clearly wrong. Accordingly, there is, in my view, no basis for appellate intervention and I would dismiss the husband’s appeal with respect to the award of monthly support. [ 19 ] The lump sum award is, however, a different matter. At the motion hearing, it was unclear as to who should have been the recipient or beneficiary of the award as between the wife and the children and why it was initially made.

What is clear, however, and what was confirmed by the wife’s counsel, is that she never sought support for herself. There was no such prayer for relief in her original petition, nor did she seek it thereafter. [ 20 ] It appears that the lump sum award might have been awarded as child support because the monthly award was below the Federal Child Support Guidelines amount, but there is no clear indication of that fact.

What is clear is that there was no basis in law to direct that payment to the wife and I would set that part of the order aside. [ 21 ] If the lump sum payment was to be for the benefit of the children, I also fail to see the justification for it, in addition to the monthly support payments, and it is, in my view, an unrealistic burden to be placed on the husband’s meager financial resources at this time. [ 22 ] In

summary, therefore, I would dismiss the husband’s appeal with respect to the imputation of income and the award of monthly child support. I would allow his appeal with respect to the lump sum payment and would set aside that portion of the order appealed from. J.A. I agree: J.A. I agree: J.A.