Dillon v Dillon, 2016 MBCA 125

Citation: Dillon v Dillon, 2016 MBCA 125 Date: 20161205 Docket: AF16-30-08572 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN: PETER THOMAS DILLON ) R. H. Johnston, Q.C. ) for the Appellant (Petitioner) Appellant ) ) ) P. L.

Fraser- and - ) for the Respondent ) ) ) Appeal heard andGWYN ALICE DILLON ) Decision pronounced: ) December 5, 2016 (Respondent) Respondent ) BEARD and PFUETZNER JJA (for the Court): [1] The petitioner (the husband) is appealing an order of interim spousal support of $2,000 per month payable to therespondent (the wife) pending trial. [2] The parties were married for approximately 21 years, and the agreed date of separation is June 11, 2011. The wife ispresently 59 years of age and the husband is 63. It is a second marriage for each, and they have no children together.

At the date of thehearing, the wife was unemployed, having sold her business shortly before the separation. The husband was employed at a recreationalvehicle business of which he is an owner. They appear to have accumulated significant assets and are in the process of working througha marital property valuation and division of those assets. [3] This Court has consistently and for many years discouraged appeals of interim orders, particularly in family matters.

For example, in Gale v Gale, 2008 MBCA 134, 231 ManR (2d) 188, this Court stated (at para 61): Family law litigants, like all litigants, are entitled to their strict legal rights. However, given the highly discretionary nature of mostfamily law interim orders, coupled with the financial cost of appeal, delay and, in most cases, limited impact in the event of trial,appealing interim family law orders does not practically benefit the parties. Most interim matters are capable of efficient review at trial,that is, unless delay operates to the benefit of one of the parties.

I am not suggesting that is the case here, but I am suggesting that theparties would be better served by concluding disclosure issues and proceeding to trial. (See also Vauclair v Vauclair (1998), (MB CA), 126 ManR (2d) 136 at para 3 (CA); Martin v Orris, 2010 MBCA59 at para 5, 255 ManR (2d) 126; and Cottyn v Anderson, 2014 MBCA 48 at para 7, 306 ManR (2d) 87.) [4] The reason for discouraging interim appeals was explained in Martin (at para 6): It is well understood that orders granted on an interim basis are often made without the benefit of a full record and the careful judicialanalysis that is possible following a trial.

They often do not provide the best legal and evidentiary foundation for appellate review. There is unease about deciding important legal issues without the benefit of a full record. That is the reason why appellate courts preferto review matters after a final decision has been reached.

(See also this Court’s comments in Grandbois v Grandbois (1998), (MB CA), 131 ManR (2d) 110 at paras 2-4(CA).) [5] As this Court stated in Graham v Graham, 2013 MBCA 66 at para 14, there is ample authority that an interim orderthat does not properly reflect the state of things when all of the evidence has been adduced at trial can be corrected retroactively.

This isa reflection of the fact that the record at the interim hearing is imperfect and that errors are better resolved based on the more completerecord that will exist following a trial. [6] The standard of review on the appeal of interim orders in family matters is well settled and clear. It was recently setout by this Court in Cottyn (at para 7): . . . . An appellate court will not interfere with an interim family order absent a serious error in principle, a completemisapprehension of the evidence, or the order being so clearly wrong that it amounts to an injustice (Gale v.

Gale (2007), 2007 MBCA162 , 220 Man.R. (2d) 306; 407 W.A.C. 306; 2007 MBCA 162, at paras. 5-6). (See also Webster v Lusty (1992), (MB CA), 83 ManR (2d) 193 at para 6 (CA).) [7] In this case, the motion judge reviewed the evidence that was provided to her, none of which was in dispute. Itconsisted of two affidavits provided by the wife, on which there was no cross-examination, and no evidence from the husband. It wasclear from the affidavits that the parties are in the process of working through and settling their financial affairs. [8] The motion judge considered the applicable law.

She was alive to the issues raised by the husband, including hisargument that the wife had not established a threshold entitlement to support. The motion judge found that the threshold had been metand ordered interim support based on her findings of the wife’s needs and the husband’s means to pay. In coming to those conclusions,she made no errors in principle and she did not misapprehend the evidence. Further, the order is certainly not so clearly wrong that itamounts to an injustice. [9] This Court’s admonition in Vauclair is applicable in this case (at para 3): . . . .

Rather than challenge an interim order, [an] aggrieved party should move forward to the trial as expeditiously as possible. Thiswill avoid delay in the proper resolution of the issues and the cost of proceedings of doubtful value to either party. [10] The appeal is dismissed with costs payable by the husband to the wife. JA JA JA