Knee v Knee, 2018 MBCA 20

Citation: Knee v Knee, 2018 MBCA 20 Date: 20180306 Docket: AF17-30-08894 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : ) R. P. Majewski KAROLYN KRISTINE KNEE ) for the Appellant ) (Petitioner) Respondent ) K. K. Knee ) on her own behalf - and - ) ) Appeal heard: DANIEL SHAWN KNEE ) January 16, 2018 ) (Respondent) Appellant ) Judgment delivered: ) March 6, 2018 PFUETZNER JA [ 1 ] The respondent (the father) appeals the motion judge’s dismissal of his motion for

summary judgment, seeking a final order giving him primary care and control of the eldest child and for other relief, under r 20.01 of the Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88 (the QB Rules ). The petitioner (the mother) cross appeals, saying the motion judge should have made a final order for shared custody of the eldest child. [ 2 ] For the reasons that follow, I am of the view that the motion judge erred in law in dismissing the father’s motion for

summary judgment by failing to apply the correct legal test. Background [ 3 ] The parties separated in September 2013. They have four children. The eldest, JTK, has lived with the father since shortly after the separation and has had a difficult relationship with the mother. The three younger children initially remained with the mother and spent significant amounts of time with the father.

An interim order made in 2014 under The Family Maintenance Act , CCSM c F20 (the FMA ), gave the parties joint custody of the four children, with the father having primary care and control of JTK and the mother having primary care and control of the three younger children. The 2014 interim order also ordered that the father pay child support based on the Manitoba table of the Federal Child Support Guidelines , SOR/97-175. [ 4 ] A family assessment completed in November 2014 recommended that JTK remain with the father and that there be counselling to repair his relationship with the mother .

The assessment also recommended a shared custody arrangement for the three younger children. [ 5 ] The parties subsequently implemented an equal sharing of time of the three younger children, which was then reflected in a variation order made in 2015 (the July 2015 variation order) . No change was made to the care and control of JTK. C hild support was varied based on the change in custody of the three younger children .

[ 6 ] Shortly after the July 2015 variation order was made, the mother brought a motion for a further variation order seeking shared custody of JTK and a variation of child support. The Court made an order (the October 2015 variation order) dismissing the motion for shared custody of JTK; however, child support was varied based on the parties’ 2014 incomes. [ 7 ] The parties have had difficulty agreeing on the necessity and sharing of certain expenses under

section 7 of the Manitoba, Child Support Guidelines Regulation , Man Reg 58/98 . All of the children have participated in various sports but JTK’s costs of elite hockey have been particularly significant and have caused friction between the parties . Despite the conflict in the family, it is clear that both parents love all four of the children and want the best for them. [ 8 ] In 2017, t he father brought a motion for

summary judgment “on the entirety of the [mother’s] Petition for Divorce and the [father’s] [Amended] Answer and Petition for Divorce” and for costs. The claim for divorce has not been severed from the corollary relief, nor has a motion for severance been filed. [ 9 ] In his motion brief for the

summary judgment motion, the father indicated that he was relying on 19 affidavits of the parties and the family assessment filed previously. No examinations on the affidavits of either party took place. At some point prior to the hearing of the

summary judgment motion, the motion judge apparently expressed concern at the volume of affidavit material filed. Counsel for the father filed a supplementary motion brief, which narrowed the supporting material to eight affidavits (or excerpts thereof) and the family assessment. [ 10 ] Without hearing from the mother, the motion judge dismissed the father’s motion for

summary judgment with terse oral reasons. He said that he was not prepared to grant

summary judgment because “[a]

summary judgment motion requires that most of the facts must be agreed” and that “there were far too many facts in those documents that were not agreed to, were not apparent on the face of it.” [ 11 ] The motion judge also commented that “[t]he purpose of the

summary judgment motion is to deal with the issues quickly upon facts that are apparent on the file. The facts that might have been apparent on the file weren’t given to me.” Despite the fact that the father’s counsel was seeking

summary judgment, the motion judge concluded that “[i]t is clear that counsel wants to set the matter over for trial because they want me to review all of the evidence.” [ 12 ] It is from this decision that the father appeals and the mother cross appeals. The notice of appeal and the notice of cross appeal were both filed prior to the formal order having been issued by the motion judge, and an explanation was not provided as to why the order was not filed (see Manitoba, Court of Appeal Rules , Man Reg 555/88R, rr 11(3)-11(4)).

Although this should have been done, in my view, ultimately, nothing turns on this oversight. Issues [ 13 ] This appeal raises two issues: 1. Did the motion judge err in law by applying the wrong legal test in determining whether

summary judgment should be ordered? 2. If so, should

summary judgment be granted on any of the claims in the pleadings ? Analysis Did the Motion Judge Apply the Wrong Legal Test for

Summary Judgment? [ 14 ] This Court has repeatedly commented on the applicable standard of review for

summary judgment decisions. In Shachtay v Shachtay , 2013 MBCA 17 , this was explained as follows (at para 7): The granting or denying of a motion for

summary judgment is an exercise in judicial discretion and a judge’s order on such a motion can only be set aside on appeal upon a finding of misdirection on the law or the facts or unless the decision is so clearly wrong as to yield an unjust result (see Towers Ltd. v. Quinton’s Cleaners Ltd. et al. , 2009 MBCA 81 at paras. 24-28 , 245 Man.R. (2d) 70 ). [ 15 ]

Summary judgment is available to either a plaintiff or defendant under QB r 20.01. In principle,

summary judgment under QB r 20.01 is available in family proceedings ( see Dell v Dell , 2017 MBCA 34 at para 15 ; and Wright v Simonson , 2018 MBQB 3 ). Family disputes do not always lend themselves to resolution by

summary judgment as, commonly, the facts are highly disputed. This will often be the case in contested custody matters. [ 16 ] In this case, the father moved for

summary judgment on his claims set out in his Amended Answer and Petition for Divorce. Given this, he is, for the purposes of this proceeding, in the position of a petitioner. As well, the father moved for

summary judgment dismissing certain of the mother’s claims in her Petition for Divorce. [ 17 ] The tests to be applied on a motion for

summary judgment by a defendant or plaintiff respectively are set out in Homestead Properties (Canada) Ltd v Sekhri et al , 2007 MBCA 61 at paras 14-15 : When the defendant moves, as here, he must prove, on a prima facie basis, that the plaintiff’s action must fail. If he meets that burden, then the plaintiff has the burden to establish that there is a genuine issue for determination. He must show that his claim is “one with a real chance of success”.

When a plaintiff moves, he must prove, on a prima facie basis, that his action will succeed. If he meets that burden, then the defendant has the burden to establish that there is a genuine issue for determination. If he fails to do so,

summary judgment granting the claim will follow. As was made clear in Blanco et al. v. Canada Trust Co. et al. , 2003 MBCA 64 , 173 Man.R. (2d) 247 at para. 62 , regardless of who is the moving party, the analysis is a two-step process. [ 18 ] The father submits that the motion judge erred in law in failing to correctly state and apply the test for

summary judgment. In support of her cross appeal, the mother argues that the motion judge erred in failing to make a factual finding, based on the affidavits, that the parties had agreed to shared custody of JTK and making an order to that effect. [ 19 ] It is clear from his reasons that the motion judge did not engage in the two-step analysis required of him. His reasons show that he was primarily concerned with the volume of material filed and what he saw as the number of facts in dispute.

He undertook no analysis of the evidence actually before him in order to determine whether the father had established a prima facie case that any or all of his claims will succeed. Nor did he turn his mind to the second step—whether the mother had raised a genuine issue for determination on any of those claims. [ 20 ] As mentioned, the standard of review on a decision refusing

summary judgment is deferential. However, in this case, the motion judge misdirected himself by failing to apply the right legal test and this directly resulted in his decision. In my view, no deference is owed to the decision and this Court can review the matter afresh. Should This Court Grant

Summary Judgment on All or Any Claims? [ 21 ] Since the same record that was before the motion judge is now before this Court, we can, and in my view should, decide the motion on its merits. Returning the motion to the motion judge for redetermination will only increase the costs to the parties and further delay final resolution of some of the key outstanding issues. Dealing with the

summary judgment motion now is a small step towards reducing “the continuing trauma of significant expenses and protracted proceedings” for this family ( Dunford v Birnboim , 2017 MBCA 100 at para 4 ). [ 22 ] At the hearing of the appeal, counsel for the father conceded that there was insufficient current financial information before the Court to allow final judgment to be granted in respect of child support or

section 7 expenses and that a contested hearing is required on those issues. [ 23 ] As for the father’s claim for a divorce in his Amended Answer and Petition for Divorce, before a divorce can be granted, the Court must be satisfied that suitable arrangements have been made for the support of the children, having regard to the applicable guidelines (see section 11(1)(

b) of the Divorce Act , RSC 1985, c 3 (2nd Supp)). As child support has not been resolved and the divorce claim has not been severed from the other claims, a divorce is not currently available. Final corollary relief cannot be granted under the Divorce Act unless the parties are divorced (see

section 4 of the Divorce Act ). Accordingly, the motion for a

summary divorce judgment and final corollary relief is dismissed. [ 24 ] Both parties agree on shared custody of the three youngest children. In addition, there are other claims set out in the pleadings that the evidence shows have been resolved. This includes claims for equal division of family property; exclusive occupation of the family home; postponement of sale; and protective relief. These resolved claims will be dealt with in the Decision part of these reasons. [ 25 ] This leaves the issue of the father’s claim for a final order for primary care and control of JTK.

As previously noted, final corollary relief cannot yet be granted under the Divorce Act . Accordingly, if a final order for custody of JTK is to be made at this time, it would only be available under the FMA . [ 26 ] The father argues that he has raised a prima facie case that he should be granted primary care and control of JTK and that the mother has not shown that there is a genuine issue for trial.

The mother’s position is that she should be granted shared custody of JTK or, alternatively, that the issue should be determined at a trial. [ 27 ] At the date of the appeal hearing, JTK was 17 years old and had been in the primary care and control of the father for over four years. He is currently playing hockey in Dauphin, Manitoba and, as a result, is living away from the father’s home in Brandon, Manitoba. The evidence of both parties shows that JTK’s relationship with the mother has been very strained.

Although the mother has periods of care and control of JTK every second weekend pursuant to the July 2015 variation order, he has, at times, refused to see her. The mother has repeatedly claimed that this is “a clear case of parental alienation”. This allegation was not supported by the family assessment or by a report from JTK’s counsellor. The mother provided no evidence that JTK’s views or preferences would support the change in custody that she is seeking. Indeed, all evidence points to the contrary conclusion.

Moreover, the evidence does not support the mother’s claim that she and the father had agreed to share custody of JTK on the same basis as their other children. [ 28 ] Custody orders are to be determined based on the “best interests” of the child ( section 2(1) of the FMA ). Factors that are relevant to the determination of best interests in this case include, but are not limited to, the nature, quality and stability of the relationship between the child and each parent (see section 39(2.1) (a)(

i) of the FMA ); the history of the care arrangements for the child (see section 39(2.1)(

h) of the FMA ); and the views and preferences of the child (see section 39(2.1)(

j) of the FMA ). [ 29 ] Taking into account the evidence of JTK’s age, the length of time that he has been in the primary care and control of the father, the difficulties in his relationship with the mother and his reluctance to see her, the father has established a prima facie case that he should continue to have primary care and control of JTK. [ 30 ] Although a

summary judgment motion is the time for responding parties to put “their best and strongest case before the court” ( Homestead Properties at para 19), nothing in the mother’s affidavits, or elsewhere in the record before the Court, indicates that there is a genuine issue for determination with respect to the custody of JTK.

[31] Although extensive affidavits were filed in these proceedings, the facts relevant to the determination of custody of this17-year-old child were not materially in dispute. In my view, it is inevitable that the father would be granted a final order confirmingprimary care and control of JTK if this issue went to trial. In the circumstances of this case,

summary judgment is the appropriate wayfor this issue to be resolved. [32] I am satisfied that

summary judgment should be granted to the father, granting him a final order of primary care andcontrol of JTK. [33] One final comment is required. Much has been said regarding delays in the court system and the attendant financial andemotional costs of having family and civil disputes resolved. Unfortunately, the problem of systemic delay is exacerbated by cases likethis where a

summary judgment motion has been properly brought and a judge refuses to adjudicate it on its merits. On a

summaryjudgment motion, a judge has the duty to take “a hard look” at the merits of a claim (Podkriznik v Schwede, 1990 CarswellMan 202 at 7(CA); Winnipeg Condominium Corporation No 36 v Bird Construction Co, (SCC), [1995] 1 SCR 85 at para 55; andHomestead Properties at para 39). Decision [34] In the result, I would allow the appeal in part and make the following orders. [35] I would grant

summary judgment and make a final order under the FMA for: (

a) custody of the children on the same terms as set out in paras 5.1.1-5.1.2 of the variation order pronounced July 15, 2015; and (

b) financial disclosure on the same terms as set out in para 16 of the interim order pronounced April 3, 2014. [36] The following matters have been resolved by the parties so I would grant

summary judgment dismissing the claims for: (

a) equal division of family property under The Family Property Act, CCSM c F25; (

b) exclusive occupation of the family home under the FMA; (

c) postponement of sale under The Law of Property Act, CCSM c L90; and (

d) protective relief under The Domestic Violence and Stalking Act, CCSM c D93. [37] I would dismiss the motion for

summary judgment for a final order of child support and

section 7 expenses under theFMA and direct a trial of these issues. The child support provisions in the October 2015 variation order continue in effect. [38] I would dismiss the motion for a

summary divorce judgment and for final corollary relief under the Divorce Act for thereasons set out in paragraph 23. [39] I would dismiss the mother’s cross appeal. [40] The father is entitled to his costs in both this Court and on the motion for

summary judgment before the motion judge. JA I agree: JA I agree: JA