Senek v. Senek, 2014 MBCA 67

Citation: Senek v. Senek, 2014 MBCA 67 Date: 20140618 Docket: AF 13-30-08074 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN: ) ERNEST ELIE SENEK ) S. D. Abel ) for the Appellant (Petitioner) Appellant ) ) J. C. Robinson and- and - ) S. D.

Berg ) for the Respondent ) GWENDOLYN ENID SENEK ) Appeal heard and ) Decision pronounced: (Respondent) Respondent ) June 18, 2014 ) STEEL J.A. (for the Court): [1] This is an appeal of a motion to vary spousal support. [2] When the parties divorced in 1997, after a long-term marriage of 25 years, the husband was ordered to pay spousalsupport in the amount of $800 per month. After the husband retired, he moved, pursuant to s. 17(1)(

a) of the Divorce Act, to terminatespousal support as of June 2013, the date of his retirement, because of that change of circumstance. [3] The motion judge refused to terminate spousal support, but varied the order such that it would terminate when thewife turned 65 years of age, in approximately four years on July 31, 2017, a variation to which the wife had consented. [4] The husband appeals, arguing two grounds of appeal. First, that the motion judge failed to properly apply theprinciple arising out of the Supreme Court of Canada decision in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413.

In the maritalproperty division at the time of separation, the husband’s pension plan was not divided as a result of an agreement. Instead, the wifeopted to make a smaller equalization payment to him than she would otherwise have had to make. The husband argues that, in effect,similar to the situation in Boston, to make him pay spousal support out of his pension at this point would constitute double recovery. [5] Second, the husband argues that to continue the spousal support obligation at present would create hardship on himand his current wife because of their reduced family income.

He submits that the motion judge misapprehended the evidence in hisanalysis of the husband’s expenses, especially when the wife did not challenge those expenses by way of cross-examination or affidavit. [6] Counsel are, of course, familiar with the high standard of deference this court owes when reviewing orders ofsupport. Deference is owed to the motion judge’s decision absent an error in principle, a significant misapprehension of the evidence orunless the award is clearly wrong. See Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518. [7] We do not believe that the principle in Boston applies to this situation.

In that case, the Supreme Court of Canada wasasked to consider the validity of “double dipping” into pension income. That is, can a pension which has been divided as property undermarital property legislation be looked to as a source of income for assessing support? As Major J. made clear in that case, the principleagainst double recovery arises when compensatory spousal support is awarded as opposed to spousal support based on need. It is not anautomatic exclusion.

[ 8 ] McQuaid J.A. in the case of MacQuarrie v. MacQuarrie , 2012 PECA 3 , 319 Nfld. & P.E.I.R. 246, summarized the ratio from Boston in this way, “Simply put, the challenge is to avoid double recovery when it is fair to do so. This is not to say that in all cases double recovery will be eliminated because, in some cases double recovery may be the only fair way to continue support” (at para. 91). See also Cymbalisty v. Cymbalisty , 2003 MBCA 138 at para. 37 , 180 Man.R. (2d) 112.

In fact, some academics have noted that the exception based on need is an exception “which seems to have swallowed the rule” (Rollie Thompson, “To Vary, To Review, Perchance to Change; Changing Spousal Support” (2012) 31 CFLQ 355 at 380). [ 9 ] I agree with the motion judge that this is a case for the application of that exception. The wife continues to have a need for spousal support. The wife now lives very simply on an annual income of $21,321 including spousal support which represents 45 per cent of her income.

Without that support, her annual income would only be $11,721 despite the fact that the motion judge held that she was doing whatever she could to support herself in the small community in which she lives. [ 10 ] On the other hand, the husband’s income upon retirement is $38,472. The motion judge also held that certain items in the husband’s budget were questionable leading to a finding that, not only did the wife continue to have a need, but the husband had an ability to pay. [ 11 ] Even if the wife did not challenge the husband’s expenses, the motion judge is certainly entitled to do so.

The husband filed his financial statement as part of the documentary evidence in the case. The motion judge was entitled to weigh and evaluate that evidence, whether or not the wife questioned it. That is a judge’s job – to evaluate the evidence filed. [ 12 ] In any case, the husband’s expenses were questioned in argument by counsel for the wife who drew the motion judge’s attention to those expenses. The motion judge was entitled to accept those submissions and conclude, for example, that three cars for two people was excessive when compared to the wife’s financial need.

I see no grounds for intervention in the motion judge’s evaluation of the financial evidence. [ 13 ] The appeal is dismissed with costs. J.A. J.A. J.A.