Benoit v Benoit, 2019 MBCA 106

Citation: Benoit v Benoit, 2019 MBCA 106 Date: 20191021 Docket: AF19-30-09252 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN: corinne ellen benoit ) R. P. Majewski ) for the Appellant (Petitioner) Respondent ) ) C. A. Plouffe- and - ) for the Respondent ) steven earl benoit ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) October 21, 2019 mainella JA (for the Court): [1] This is an appeal of an order declining interim child support, set-off child support, proportionate sharing of

section 7expenses (see Manitoba, Child Support Guidelines Regulation, Man Reg 58/98 (the CSG Regulation)) and costs. The respondent (father)also moves to admit fresh evidence on his appeal. [2] By way of background, the parties share custody of two children of the marriage. The judge exercised his discretionto not order the table amount of child support in favour of the father despite his lower income (see

section 9 of the CSG Regulation; andContino v Leonelli-Contino, 2005 SCC 63). He ordered the petitioner (mother) to pay all of the children’s

section 7 expenses. Tariffcosts on the motion were ordered in favour of the mother for $2,409.75 inclusive of disbursements. [3] We are not satisfied that it is in the interests of justice to admit the fresh evidence (see Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 775).

The motion is dismissed. [4] We are also not persuaded that, in making the interim order, the judge made a serious error in principle or completelymisapprehended the evidence, or that the order is so clearly wrong as to amount to an injustice (see Cottyn v Anderson, 2014 MBCA 48at para 7; and Dillon v Dillon, 2016 MBCA 125 at para 6). [5] In matters such as this, the best course is for the parties to move to a final determination of the family law dispute atthe trial (see Gale v Gale, 2007 MBCA 162 at paras 5-6; and Cottyn at para 7). [6] However, we are concerned that the order appealed from was granted, in part, based on a “small window of time”between the motion and the anticipated trial date.

The order has now been in place for over nine months and a number of the parties’circumstances have changed. Those changes can and should be resolved after a trial on a complete record. The parties need to completethe trial preparation and have it scheduled at the earliest date. [7] In terms of the costs order, given the disputed circumstances relating to the father’s entitlement to child support, inour view, costs should be in the cause for both the motion and the appeal. [8] In the result, the appeal is dismissed except for the order of costs appealed from, which is set aside. JA

JA JA