Wilson v Wilson, 2017 MBCA 114

Citation: Wilson v Wilson, 2017 MBCA 114 Date: 20171124 Docket: AF17-30-08836 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN: SHIRLEY GERALDINE WILSON ) K. C. Misko ) for the Appellant (Petitioner) Respondent ) ) C. H.

Stewart- and - ) for the Respondent ) TERRENCE KEITH WILSON ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) November 24, 2017 PFUETZNER JA (for the Court): [1] The respondent appeals an order dismissing his motion to vary his spousal support obligation to the petitioner as setout in a final order made in 2007. [2] The final order provided for spousal support of $2,200 per month payable by the respondent to the petitioner untilfurther order of the court.

The respondent moved to vary the order based on a material change in circumstances, in particular, that he haddecided to retire at age 65 from his profession as an electrician and his income would be significantly reduced to only his pensionincome from previous employment. [3] The respondent had engaged in contract work as an electrician through his wholly owned corporation, T. WilsonElectrical Ltd. (the corporation) since 1998. At the time of his retirement, the corporation’s financial statements showed that it hadapproximately $155,000 in retained earnings.

The petitioner became disabled during the marriage, is unable to work and does not haveassets that could generate any meaningful income. [4] An appellate court should not overturn a decision regarding spousal support unless the reasons disclose an error inprinciple, a significant misapprehension of the evidence, or unless the award is clearly wrong. See Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11. [5] The motion judge dismissed the motion for a variation finding that the respondent did not meet the onus to establishthat his retirement at age 65 constituted a material change in circumstances.

A material change is one that, if known at the time of thefinal order, would have resulted in different terms. See Willick v Willick, (SCC), [1994] 3 SCR 670; and LMP v LS,2011 SCC 64 at para 30. [6] The motion judge found that the respondent’s post-retirement income would not be restricted to his pensions as hewas able to control his income through the corporation and had access to the retained earnings. Essentially, the motion judge found thatthe respondent failed to meet the onus on him to establish that there are valid business reasons for leaving the money in the corporation.

See Nesbitt v Nesbitt, 2001 MBCA 113 at para 19; and Dyck v Dyck, 2008 MBCA 135. [7] The motion judge went on to decide that, even if she was wrong in finding that there was no material change incircumstances, it would be neither fit nor just to vary the spousal support amount due to the parties’ relative financial circumstances andthe petitioner’s disability. [8] While we have some concerns with respect to the level of financial disclosure by each party, we are satisfied thatthere was an evidentiary basis for the motion judge to reach the conclusions she did. Going forward, should the parties bring further

proceedings, it is our expectation that complete financial disclosure be made without the need for procedures to compel same. [ 9 ] We are not convinced that the motion judge erred in principle or misapprehended the evidence. The record supported the findings of the motion judge. Nor are we persuaded that the decision is clearly wrong. [ 10 ] Accordingly, the appeal is dismissed with costs. JA JA JA