Elefante v Elefante, 2016 MBCA 59

Citation: Elefante v Elefante, 2016 MBCA 59 Date: 20160531 Docket: AF15-30-08523 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : LAURA ELEFANTE ) V. B. Olson ) for the Appellant (Petitioner) Respondent ) ) S. D.

Laviolette - and - ) for the Respondent ) RENATO RENEE ELEFANTE ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) May 31, 2016 MAINELLA JA (for the Court): [ 1 ] The petitioner moves to quash the appeal of an order of child support pursuant to The Family Maintenance Act , CCSM c F20, for want of jurisdiction.

She argues that the order under appeal was a consent order, and accordingly this Court has no jurisdiction to hear an appeal unless leave of the judge making the order has previously been obtained ( section 90(1) of The Court of Queen’s Bench Act , CCSM c C280; and ASC v SC , 2011 MBCA 70 at para 56 , 268 ManR (2d) 282). [ 2 ] The record is muddy as to what was and was not consented to by the parties before the motion judge. For the purposes of disposing of this motion, only two parts of the order being appealed are relevant.

First, the respondent challenges the motion judge’s calculation as to the child support arrears owed for the three children of the parties made under a previous order pronounced on September 22, 1997 (see clause 3.2 of the order under appeal). Second, he also contests the motion judge’s calculation as to the amount of retroactive child support owed, using the Alberta table of the Federal Child Support Guidelines , SOR/97-175, in relation to one of the three children, the son of the parties (see clauses 3.8 and 3.9 of the order under appeal).

In contrast, the petitioner says that the motion judge’s calculations on these two parts of the order are accurate. [ 3 ] At the hearing of the motion, the respondent acknowledged that he did consent, in part, to the order of the motion judge, however, he did not consent to the amounts set out in clauses 3.2, 3.8 and 3.9 of the order.

He says that the total amount of the arrears owed as per clause 3.11 of the order should be $10,395.64, not $28,897.41. [ 4 ] It should be noted that, in argument before us, the respondent conceded that he is not appealing that part of the motion judge’s order where he set aside a child support order pronounced on November 27, 2012, for non-compliance with the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, as to service (see clause 3.1 of the order under appeal).

The respondent’s appeal simply turns on whether the motion judge erred in calculating the amount of the arrears owed under the 1997 order, and the amount of additional retroactive child support owed for the son of the parties using the Alberta table. [ 5 ] Accordingly, on the basis of section 90(1) of The Court of Queen’s Bench Act , the motion is granted, and the respondent’s appeal is quashed for want of jurisdiction, save and except as to the issue of the motion judge’s calculations as to the amount of child support owed by the respondent under clauses 3.2, 3.8 and 3.9 of the order, which, if successful, in whole or in part, would affect the total sum owed under clause 3.11 of the order. [ 6 ] As success is divided, each side will bear their own costs of the motion, save for any order of costs against the respondent previously made by a judge of this Court sitting in Chambers.

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