Diment v. Diment, 2014 MBCA 37

Citation: Diment v. Diment, 2014 MBCA 37 Date: 20140424 Docket: AF 13-30-08045 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) S. D.

Abel ROYA-LYNN DIMENT ) for the Appellant ) (Petitioner) Respondent ) No appearance ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: TIMOTHY JOSEPH DIMENT ) April 22, 2014 ) (Respondent) Appellant ) Written reasons: ) April 24, 2014 MONNIN J.A. (for the Court): [ 1 ] After the hearing of this appeal, we indicated that it would be dismissed with short reasons to follow.

These are those reasons. [ 2 ] The respondent father appeals from a decision of a motion judge whereby he varied a support order by ordering payments for tuition and dental expenses for a daughter attending a practical nursing program at Assiniboine Community College. [ 3 ] The hearing proceeded in the absence of the petitioner mother, who had advised the court, in writing, that she would not participate in the appeal. [ 4 ] The previous order provided for payment of special expenses on a 50 per cent sharing basis, 30 days after notice of the incurring of the expense and presentation of documentation. [ 5 ] After reviewing the affidavit evidence of the mother, child and father, the motion judge ordered that the father pay a proportionate share (72 per cent) of the first-term costs of the daughter, i.e., $2,160 over a four-month period commencing January 1, 2013, at the rate of $540 per month, for the months of January 2013 to April 2013 inclusive.

As well, he ordered that the father’s proportionate share of her estimated second-year costs of $2,800.80 be paid from May 1 to October 1, 2013, at the rate of $466.80 per month. Finally, he ordered that the father pay a proportionate share of the daughter’s dental expenses which remained after reimbursement of group insurance plans available to the parties. The motion judge terminated any other child support for the daughter as of December 31, 2012, as agreed to by the mother. [ 6 ] The father appeals this decision arguing that:

a) the motion judge misapprehended the evidence as whether there were sufficient receipts to justify the expenditure that the daughter claimed for the first term of her studies;

b) the ordering of payments for the second-term expenses before they were incurred was contrary to established principles;

c) child support of any form should not have been ordered after January 1, 2013, as the daughter was no longer a child of the marriage;

and

d) the dental expenses should be shared on an equal basis as they had been in the past. [7] This court has clearly stated that it will not interfere with discretionary support orders, unless the reasons disclose anerror in 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 Kynoch v. Kynoch, 2013 MBCA 73, 294 Man.R. (2d) 250). [8] We are all of the view that no such error or misapprehension of the evidence is raised by the motion judge’s reasons inthis case.

There was evidence before him by which he could reach the conclusions that he did. The motion judge correctly applied, inour view, the leading case of Rebenchuk v. Rebenchuk, 2007 MBCA 22, 212 Man.R. (2d) 261, as to the issue of entitlement of the childto support in this case. [9] Given that, in his view, the child remained a child of the marriage while enrolled in the nursing program, the issue washow to assess the support which she should receive during the period of her education. He assessed the evidence before him andconcluded that payment of tuition was required.

He determined what that amount should be based upon the evidence of the mother andchild. The motion judge also concluded dental expenses were also appropriate. That he decided to grant them on a proportionate basisas opposed to an equal sharing was a decision which was within his discretion. We see no error in his doing so.

While it would havebeen preferable that he make a specific finding of changed circumstances, it is easily discerned from the significant change in relativeincomes of the couple. [10] In our view, the order is not unjust to the respondent father in the circumstances. [11] Accordingly, the appeal is dismissed. As the petitioner mother did not attend or participate in the appeal, there will beno costs. J.A. J.A. J.A.