JDG v SLG, 2018 MBCA 51

Citation: JDG v SLG, 2018 MBCA 51 Date: 20180416 Docket: AF17-30-08865 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : J. d. g. ) G. R. Champagne ) for the Appellant (Petitioner) Respondent ) ) J. A.

Schofield - and - ) for the Respondent ) s. l. g. ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) April 16, 2018 NOTICE OF RESTRICTION ON PUBLICATION: No press, radio or television report shall disclose the name or any information likely to identify any person involved in the proceedings as a party or a witness (see section 75(2) of The Child and Family Services Act , CCSM c C80). steel JA (for the Court): [ 1 ] This is an appeal of a variation order.

Counsel appeared on behalf of the respondent (wife) with instructions to proceed with the appeal hearing in her absence. [ 2 ] The wife is appealing the variation order, which reduced the spousal support payable by the petitioner (husband) from $1,600 per month to $150 per month retroactive to July 1, 2016 as a result of the wife’s incarceration in June 2016.

The variation order also provided that the order was reviewable immediately after her release from incarceration. [ 3 ] The husband had filed a notice of motion to adduce fresh evidence with respect to a material change in circumstances relating to physical care and control of one of the children. However, at the appeal, the husband indicated that the motion would be necessary only if the Court indicated that it would allow the appeal. Given the result, it was not necessary to hear the motion for fresh evidence. [ 4 ] There were a number of grounds of appeal in the wife’s factum.

Many of them were moot, having already been determined by this Court in its previous decision with respect to these parties (see G (JD) v G (SL) , 2017 MBCA 117 ). [ 5 ] This is an appeal only from the variation of the spousal support order, as well as the issue of costs. At the hearing, the wife argued two grounds of appeal. First, that the motion judge misapprehended the evidence as to how long the husband had already paid spousal support which in turn impacted on the payment of compensatory support. Second, that the motion judge had erred in law in her treatment of the issue of compensatory support.

Facts [ 6 ] The parties commenced their relationship in 2004, married in 2005 and separated in 2013. They have two children of the marriage. The husband is a lawyer and the wife has been sporadically employed since 2011. During her career, she has operated various businesses and has been a real estate agent. [ 7 ] The husband voluntarily paid certain expenses immediately after the separation from August 2013 to February 2014.

Following that, a consent interim order was pronounced with respect to spousal and child support in which the wife received spousalsupport in the amount of $2,800 per month from February 1, 2014 to April 1, 2016. [8] After a three-week trial, a final order was pronounced in April 2016 ordering spousal support in the amount of $1,600per month. The Court of Appeal affirmed that order with one exception. The set-off with respect to costs ordered by the trial judge wassuspended for six months from January 1, 2018 to June 30, 2018. [9] The wife received $1,600 on May 1, 2016.

However, in June 2016, she was incarcerated on charges of disobeyingcourt orders, abduction of a person under the age of 14 and flight from police. The husband filed a notice of motion to vary the spousalsupport based on the material change of circumstances of the wife’s incarceration. The variation order was granted in May 2017 varyingthe spousal support to $150 retroactive to July 1, 2016, again with a provision that the variation order was to be reviewable upon herrelease.

Although the notice of motion did not specifically request a retroactive variation, it did not come as a surprise to the wife, sincethe request for variation was based on the wife’s incarceration as of June 2016. Moreover, the issue was fully canvassed at the hearingand no adjournment was requested. [10] The wife was released on bail on May 24, 2017, but was reincarcerated as a result of a breach of one of her conditionsof bail and remained incarcerated as of the date of the appeal hearing. Decision [11] The standard of review in relation to support orders attracts significant deference to the motion judge.

This Courtshould not overturn a support order unless the reasons disclose an error in principle, a significant misapprehension of the evidence orunless the award was clearly wrong (see Hickey v Hickey, (SCC), [1999] 2 SCR 518 at paras 11-12). See also Aquila vAquila, 2016 MBCA 33 at para 37; and Horch v Horch, 2017 MBCA 97 at para 50. The same is true of an order of costs (see G (JD) atpara 80). [12] There is some discrepancy in the evidence as to how long the parties cohabited and the length of time the husband hadpaid support.

While the wife argues that the period of cohabitation was nine years, in its earlier decision, this Court confirmed that thepleadings stated that the parties cohabited for eight years and that “[t]he [wife’s] argument that the length of cohabitation was actuallynine years is without merit as she failed to prove that fact” (at para 68).

In addition, this Court confirmed that the wife was out of theworkforce for four years of the parties’ eight-year marriage (see para 70). [13] At the motion, the judge stated that the wife had received almost four years of support, because she included the periodof time that the husband paid voluntarily before any court order was in effect.

She stated, “There were payments made not pursuant toany court order, but the court order, as is always the case, came about some months later.” In actuality, at most, the husband paid anykind of support for a little under three years, from August 2013 to June 2016. [14] We do not believe the difference is significant in the overall balancing of the factors necessary in an award of spousalsupport. If it is a mistake of fact, we do not believe it was material to the decision.

The essence of the motion judge’s decision was thatthe wife’s need for support was minimal while incarcerated and that a review of the entire situation should take place upon her release,including both the entitlement to continued support as well as quantum. [15] The wife argued further that the spousal support ordered in the final order was compensatory and therefore, herincarceration was not a reason to terminate or reduce that compensatory spousal support. [16] The award of spousal support as provided for in

section 17 of the Divorce Act, RSC 1985, c 3 (2nd Supp), is based on acomplex mixture of many factors, both compensatory and non-compensatory. As stated in G (JD), “each case turns on the exercise ofdiscretion in the circumstances in light of the factors and objectives set out in the Divorce Act” (at para 72). See also Aquila at para 44. [17] The wife in this case was entitled to some degree of compensatory support. This fact was agreed to by counsel on therecord during submissions before the motion judge.

The motion judge recognized this and confirmed that the wife’s entitlement in thisregard continued at the time of the variation hearing. She stated as follows: In this case although unfortunately I did not put it into my written decision, there was both a compensatory aspect to the support and anon-compensatory. Both counsel agreed with that when we last met.

The compensatory aspect, and I am just going to put it in rough lay person’s terms, is intended to address those situations where one ofthe spouses has put their career on hold usually to remain at home and raise the children while the other spouse’s career continuesunfettered. That happened for a period of time in this marriage. So there was and is a compensatory aspect to the spousal support. . . . [T]here is some blurring of whether the compensatory aspect has been completely satisfied.

[ 18 ] The motion judge recognized that the wife still had some degree of need even though incarcerated. However, she also recognized that, given the wife’s incarceration, her expenses were minimal at best.

She specifically did not accept the expenses as claimed by the wife. [ 19 ] The decision of the motion judge to reduce spousal support for the period of the wife’s incarceration is reflective of the required “qualitative assessment as to equitable sharing of the economic consequences of the marriage and its breakdown, as well as the means and needs of the parties” ( G (JD) at para 72 , citing Aquila at para 49 ).

She provided sufficient reasons for that decision. [ 20 ] The costs awarded by the motion judge were based on the tariff at Class II as set out in the bill of costs prepared by counsel for the husband which was attached to his factum. The motion judge held that there was no need for the cross-examination that took place of the husband by the wife. Further, she found that the wife’s position on the motion had very little chance of success, given the wife’s incarceration and consequent lack of need.

The wife has failed to show any error in the motion judge’s award of costs. [ 21 ] This is a high conflict family matter. The parties’ divorce proceedings have been described by this Court as “a devastating and destructive war which has unfortunately consumed the lives of them and their children and has caused the expenditure of tremendous and limited resources of police, child welfare agencies and the courts” ( G (JD) at para 2 ).

Attempts must be made to limit this death by a thousand cuts of litigation. [ 22 ] We agree with the motion judge that all of these issues should be reviewed upon the wife’s release from prison. Her ability to become self-sufficient and her circumstances are entirely unknown at present and will not be known until her release. [ 23 ] Costs in favour of the husband are awarded. However, they are not payable until the wife’s release from incarceration. The appeal is dismissed. JA JA JA