Magnusson v. Duguay, 2015 MBCA 65

Citation: Magnusson v. Duguay, 2015 MBCA 65 Date: 20150630 Docket: AF15-30-08323 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN: KRISTA MARIE MAGNUSSON ) C. B. Paul) for the Appellant ) (Petitioner) Appellant ) J. Duguay ) on his own behalf- and - ) ) Appeal heard and ) Decision pronounced:JAMIE DUGUAY ) June 12, 2015 ) ) Written reasons: (Respondent) Respondent ) June 30, 2015 BEARD J.A. (for the Court): I.

THE ISSUES AND BACKGROUND [1] The mother, Krista Marie Magnusson, is appealing an interim order in which the motion judge ordered, on her owninitiative, the preparation of a focussed assessment by a family evaluator (the report), further financial disclosure by the father, JamieDuguay, and other provisions unrelated to this appeal. She then adjourned the mother’s motion sine die as it related to (

i) the father’sschedule of care and control of their child, (ii) vacations with the child, and (iii) the mother’s request for sanctions and penalties againstthe father for failing to provide financial disclosure as previously ordered. [2] The mother alleges: (

i) that the motion judge erred in ordering the report on her own initiative and without giving notice to the parties or providing themwith an opportunity to make submissions as to whether a report should be ordered and, further, that there was no basis upon which toorder a report; and (ii) that the motion judge erred in granting the adjournment of the motion for sanctions because the sanctions were unrelated to thecare and control of the child and the preparation of the report, and also because the father provided no explanation as to why he had notprovided the financial disclosure as ordered. [3] The mother is represented by counsel, while the father appeared without counsel in the hearing of this appeal, althoughhe was represented by counsel for the motion.

Further, the father has not filed any written material for this appeal. [4] The motion was argued and the motion judge gave her decision on April 9, 2014. There was no request for a stay of theorder at that time, and no subsequent motion requesting a stay pending appeal was filed. The written order was not signed by the motionjudge until December 16, 2014, and it was entered on December 18, 2014.

The notice of appeal was filed on January 15, 2015. [5] As noted above, this is an appeal of an interim order and, in fact, relates to an interim order granting relief related to anunderlying motion for other interim relief. The consideration of this appeal must take into account this court’s frequent, strongadmonitions against appeals of interim orders. They use up limited family financial resources with usually little or no effect on the finaloutcome, while delaying a final resolution. (See Webster v. Lusty (1992), (MB CA), 83 Man.R. (2d) 193 (C.A.);Grandbois v.

Grandbois (1998), (MB CA), 131 Man.R. (2d) 110 (C.A.); Vauclair v. Vauclair (1998), (MB CA), 126 Man.R. (2d) 136 (C.A.); Skinner v. Skinner (1999), (MB CA), 134 Man.R. (2d) 313 (C.A.);Rock v. Rock, 2004 MBCA 84 at para. 7; Chevalier v. Chevalier, 2007 MBCA 131 at para. 2; Gale v. Gale, 2008 MBCA 134 at paras.

60-61, 231 Man.R. (2d) 188; Dram v. Foster, 2009 MBCA 125 at para. 4; and Randall v. Johnas, 2010 MBCA 26 at para. 10.) II. THE REPORT [6] The report has now been prepared and filed with the court, raising the question of whether this aspect of the appeal isnow moot or academic. Even if the order for the report is set aside, as the mother requests, the report is still available. The best interestsof the child militate in favour of the court making use of the report to determine the issues related to the care and control of the child.

Therefore, any order that this court would make to set aside the motion judge’s order, if the mother were successful, would be of nomoment, rendering the appeal on this issue moot. [7] Having found that the issues related to the order for the report are moot, the onus shifts to the mother to demonstratewhy the court should depart from the usual practice of refusing to hear moot appeals. (See Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342.) The mother has failed to convince us that we should do so. [8] Thus, the mother’s appeal as it relates to the order for the preparation of the report is dismissed. III. THE MOTION FOR SANCTIONS [9] The motion judge did not deal substantively with the motion for sanctions against the father. She found that the onlydisclosure remaining to be provided was the father’s 2012 income tax return and that this and his 2013 income tax return had just beenfiled and would be produced. She ordered that he do so by April 17, 2014.

She then ordered that that part of the motion be adjournedsine die pending the resolution of the balance of the motion after the preparation of the report. [10] The mother argues that this part of the motion is unrelated to the custody and control issues and that the motion judgeerred in relating the claim for sanctions to the results of the home assessment. [11] It must be emphasized that the decision to grant an adjournment is a discretionary decision and, as such, would be subjectto a high standard of review. Donald J.M.

Brown, Q.C., Civil Appeals (Toronto: Carswell, 2013) (loose-leaf updated May 2015, release2015-2), vol. 2, states (at para. 12:2130): Subject to any legislation or a Practice Direction providing otherwise, a decision about an adjournment is within the discretion ofthe pre-trial, chambers, or trial judge. Indeed, it has been said that there is no decision that is more discretionary.

Accordingly, absenterror of law or principle, or an error in the decision-making process (such as taking into account irrelevancies or failing to addressrelevant considerations), the decision will only attract appellate intervention where it is “unreasonable,” “clearly wrong,” or results in aninjustice. (See also Brown at para. 15:2100; Munroe v. Munroe, 2009 MBCA 105 at para. 10; R. v. Le (T.D.), 2011 MBCA 83 at paras. 31-44, 270Man.R. (2d) 82; McIntyre v. Frohlich et al., 2013 MBCA 20 at para. 49, 288 Man.R. (2d) 291; and Penner v.

Niagara (Regional PoliceServices Board), 2013 SCC 19 at para. 27, [2013] 2 S.C.R. 125.) [12] When considering the substance of the motion judge’s decision on this issue, we do not agree that she erred in grantingthe adjournment. She did so on the condition that the father provide the balance of the disclosure as he had agreed that day. It wasreasonable for her to see whether he would comply with that request before deciding whether any sanctions should be imposed and, if so,what they should be.

In contempt proceedings, which are analogous to this motion for sanctions, it is common to give a party theopportunity to purge his contempt before imposing any sanctions. That is what the motion judge did here. [13] The motion judge’s comments in the latter part of her decision, particularly as they relate to the credibility of the parties,may not be as precise as they could have been, but it is necessary to take into account that she was delivering her reasons on the samedate as the hearing.

It is clear that she wanted to consider the parties’ conduct on all issues to determine, among other things, theircredibility, all of which is relevant to their respective roles in the matters before her. That would include the provision by the father ofthe further disclosure and the recommendations in the report. With that information, she would be in a better position to deal with all ofthe outstanding issues.

While her comments could have been worded more carefully, we see no error on her part. [14] For these reasons, we would dismiss the grounds of appeal that relate to the adjournment of the motion for sanctionsagainst the father. V. COSTS [15] Ordinarily, the father, as the successful party, would be granted costs on the appeal. Given that he does not have counselfor this matter and did not file any material for the appeal, we are ordering costs in his favour of $150. J.A. J.A.

J.A.