Johnson v Mayer, 2016 MBCA 41

Citation: Johnson v Mayer, 2016 MBCA 41 Date: 20160415 Docket: AF15-30-08327 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) D. E. Johnston WARREN FREDRIK JOHNSON ) for the Appellant ) (Petitioner) Appellant ) C. J.

Friesen ) for the Respondent - and - ) ) ANITA MAYER ) Appeal heard and ) Decision pronounced: (Respondent) Respondent ) April 15, 2016 On appeal from 2014 MBQB 197 , 309 ManR (2d) 271 STEEL JA (for the Court): [ 1 ] This is an appeal of a final order refusing to award child support to the father, despite the fact that the child was in his de facto care during the period in question. The father also appeals the award of costs. [ 2 ] At the hearing, the appeal was dismissed with reasons to follow. These are those reasons. [ 3 ] The parties married in 1996 and their daughter was born in 1997.

Their final separation occurred in 2008. A number of consent interim orders followed, allowing for joint care and control of their daughter on a week-on-week-off basis with final decision- making to the mother, starting May 2008. Neither party was paying child support to the other, given the shared care arrangements. [ 4 ] In 2010, the father filed a notice of motion seeking primary care and control and child support from the mother from and after October 1, 2010.

No interim hearing was held on that motion, and the request for child support was dealt with by the trial judge when the matter came to trial three years later, beginning in April 2013 and finishing in August 2013. [ 5 ] October 1, 2010 was also the date that the daughter first refused to go to her mother’s house to begin her week in her mother’s care and control.

The trial judge found as a fact that after October 1, 2010, the father did not comply with the directions in the order regarding decision-making, and that visitation between the mother and daughter was sparse and inconsistent until it became nonexistent. [ 6 ] Based on the evidence of both parents, the daughter and expert opinion, the trial judge came to the conclusion that the father had alienated the daughter from the mother, and that there was clear and unequivocal evidence that the father has been in contempt of the July 2009 order repeatedly since October 2010.

The trial judge held that the father (at para 20): [E]motionally manipulated J., bribed J. and lied to J. for years with the goal of having J. completely reject her mother. He also manipulated the court system by coming to an agreement on July 16, 2010 so that the August 2010 trial dates would be cancelled, and resiling from it by September 27, 2010. The father delayed the trial by coming to various agreements which were never followed.

[7] It is noteworthy that, in his factum and at the hearing, the father alleges only a mistake in law by the trial judge, andnot any error in her finding of facts. [8] There has been no appeal from this finding of contempt, or from the quantum of the fine ordered in the amount of$2,000. Given the egregious facts as found by the trial judge, incarceration was certainly a possible option, but the trial judge explainedthat this would not be in the best interests of the child in this case.

Instead, she ordered a fine of $2,000, certainly not an excessiveamount in my view, given the circumstances of the contempt and the financial position of the father. [9] Sadly, but acting in her daughter’s best interest, the mother recognized the impact of the alienation on her daughterand, partway through the trial, consented to an order that the daughter be in the primary care of her father. She also agreed to pay childsupport commencing June 16, 2013. [10] The trial judge refused the father’s request for interim child support for the period beginning October 1, 2010, untilJune 16, 2013.

She considered that during the time period in question, the daughter was the father’s only dependant and, not only did thefather not incur financial hardship, he spent excessively on his daughter’s clothes, as well as building an expensive (over $20,000) logcabin in the backyard for her. The trial judge also considered that the child was in her father’s de facto care because of the father’scontempt of an existing order that granted the parents joint custody. She did, however, order a retroactive amount to be paid by themother toward

section 7 expenses under the Child Support Guidelines Regulation, Man Reg 58/98. [11] All of the cases agree that the governing standard of review is that set out in Hickey v Hickey, (SCC),[1999] 2 SCR 518, namely: “[C]ourts should not overturn support orders unless the reasons disclose an error in principle, a significantmisapprehension of the evidence, or unless the award is clearly wrong” (at para 11). [12] The father argues that child support is the right of the child, and his conduct should not affect that.

He also argues thatthis is not an order of retroactive support, and that the principles set out in the Supreme Court of Canada decision of DBS v SRG; LJW vTAR; Henry v Henry; Hiemstra v Hiemstra, 2006 SCC 37, [2006] 2 SCR 231, are not applicable. He differentiates DBS on the basis thatno motion for child support had been filed in the situations discussed in that case. [13] It is important in these cases to grasp the essence of the matter. There was a consent order in force which shared jointcustody and child support.

Despite the fact that the father filed a motion on September 27, 2010, requesting child support, that order wasnot varied until the trial of the action in 2013. The order of child support being requested by the father would relate to a period of timealready past, not a period of time going forward from the date of the court order. We agree that child support is the right of the child.

However, we agree with the mother that not only is this interim child support, but it is retroactive interim child support. [14] The award of retroactive child support involves a consideration of a number of factors unique to the circumstances ofthe particular case. In DBS, the Court identified four basic considerations with respect to retroactive child support orders, namely: 1. Whether the recipient parent has supplied a reasonable excuse for the delay; 2. The conduct of the payor parent; 3. The circumstances of the children; and 4.

The hardship the retroactive award might entail. [15] Moreover, the question of fairness arises in the case of retroactive support in a way that it does not in regard to ongoingchild support. As Bastarache J, stated in DBS (at para 96): Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness alsodemands that they not be gratuitously disrupted.

Prospective and retroactive awards are thus very different in this regard. Prospectiveawards serve to define a new and predictable status quo; retroactive awards serve to supplant it. [16] The trial judge held that the circumstances of the daughter were such that the retroactive child support was not required;that there was no evidence that the father was not able to provide his daughter with adequate support commensurate with her standard ofliving; and that an award of retroactive child support would constitute a financial windfall for the father.

As Bastarache J noted in DBS(at paras 95, 110-111), courts must consider the past and present circumstances of the child, and it will not always be appropriate for aretroactive award to be ordered, particularly where the child would get no discernible benefit from the award. [17] Additionally, not only has the father not supplied a reasonable excuse for the delay in not pursuing his claim in the threeyears between October 2010 and the commencement of the trial in 2013, but there was a finding of fact not challenged, that hedeliberately delayed a court hearing and manipulated the system. [18] In coming to her conclusion, the trial judge relied on the case of Hughes v Hughes, 2014 BCCA 196, 355 BCAC 289.

This was an unusual case based on complicated and unique facts. In coming to my conclusion, we do not see it as necessary to eitheradopt or reject the decision of the British Columbia Court of Appeal. [19] In keeping with the Supreme Court of Canada’s direction in DBS (at para 99), the trial judge took a holistic view of the

matter, and decided the case on the basis of its particular factual matrix. It is sufficient for our purposes to agree with the trial judge that,given the circumstances of this child in this case, the fact that the child would obtain no benefit from a retroactive award, and the factthat the recipient parent has no reasonable excuse for the delay, that this is not an appropriate case for the award of retroactive childsupport. Costs [20] The father also appeals the award of costs.

The trial judge awarded costs to the mother in accordance with the Tariffand double costs in accordance with the Tariff after March 25, 2013 (the date of the mother’s offer to settle). The trial judge noted thatas of March 25, 2013, the mother would have withdrawn the contempt proceeding in exchange for the father withdrawing the claim forretroactive child support. The mother was successful on both the issue of the contempt motion and the claim for child support. [21] A highly deferential standard of review applies to costs awards.

As Arbour J (writing for the Court) stated in Hamiltonv Open Window Bakery Ltd, 2004 SCC 9, [2004] 1 SCR 303, “A court should set aside a costs award on appeal only if the trial judge hasmade an error in principle or if the costs award is plainly wrong” (at para 27). [22] This standard is consistently applied by appellate courts in family law matters. This Court has also generally adoptedthis deferential approach.

See, for example Stabner v Stabner (1997), (MB CA), 123 Man R (2d) 77 at paras 7-8(CA); Stewart v Stewart, 2007 MBCA 66 at para 51, 214 ManR (2d) 199; Graham v Graham, 2013 MBCA 66 at paras 24-27 ;Kynoch v Kynoch, 2013 MBCA 73 at para 51, 294 ManR (2d) 250. [23] The trial judge detailed her reasons for making her award of costs, and we see no error in principle; nor was the costsaward plainly wrong. [24] We would dismiss the appeal with costs. JA JA JA