Wiechern v Wiechern, 2019 MBCA 96

Citation: Wiechern v Wiechern, 2019 MBCA 96 Date: 20190930 Docket: AF19-30-09215 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : MAILI LORRAINE WIECHERN ) C. B. Paul ) for the Appellant ) (Petitioner) Respondent ) C. L.

Kulyk ) for the Respondent - and - ) ) Appeal heard and HEIKO PETER WIECHERN ) Decision pronounced: ) September 13, 2019 ) (Respondent) Appellant ) Written reasons: ) September 30, 2019 Corrected Judgment: A corrigendum was issued on October 10, 2019; the corrections have been made to the text and the corrigendum is appended to this judgment. On appeal from 2018 MBQB 90 LEMAISTRE JA (for the Court): [ 1 ] The respondent (the father) appealed an order increasing the child support payable by him to the petitioner (the mother) and awarding her retroactive child support.

He also appealed the costs award. [ 2 ] After hearing the appeal, we allowed it in part with reasons to follow. These are those reasons. [ 3 ] The parties have three children, T.W., D.W. and J.W. By the terms of a final order, the parties shared custody and paid child support based on the Child Support Guidelines Regulation , Man Reg 58/98 . The father’s income was higher than the mother’s and, therefore, he paid a set-off amount to the mother. [ 4 ] After D.W. began living with the father, the father brought a motion seeking a variation to reflect the changed circumstances.

After T.W. ceased being a “child of the marriage” (see the Divorce Act , RSC 1985, c 3 (2nd Supp ), section 2(1) ), the mother brought a motion seeking termination of her child support payments for T.W. and retroactive increases of child support payable by the father for D.W. and J.W.

She also sought primary care and control of J.W., but abandoned this claim at the hearing of the motions. [ 5 ] In granting the relief he did, the motion judge concluded that the father’s income had increased significantly and that there was no basis “to depart from the payment of a straight set-off amount of child support for [J.W.]” (at para 34). The motion judge varied the child support payable by the father for J.W. to account for the increase in his income and determined the set-off amount payable to the mother.

He also calculated the retroactive child support owed by the father for all three children for the years 2014-2018 based on the parties’ actual income. Finally, he awarded costs to the mother, but reduced the award in light of the cost to the father of defending a claim that was ultimately abandoned. [ 6 ] We are of the view that the motion judge erred when he awarded retroactive child support for T.W. after June 30, 2016, but that there is no other basis for appellate intervention. [ 7 ] The motion judge’s decision was a discretionary decision and, as such, is entitled to deference absent an error in

CREST principle, a significant misapprehension of the evidence or unless the award is clearly wrong (see Hickey v Hickey, (SCC), [1999] 2 SCR 518 at paras 10-11; and Horch v Horch, 2017 MBCA 97 at para 50). [8] When the mother brought her motion for termination of the child support she was paying for T.W., T.W. was 18 yearsof age, living independently and no longer in school. In 2017, T.W. moved in with her mother and returned to school for four months,however, the mother did not request retroactive child support for T.W. in her notice of motion.

The motion judge granted the mother’smotion to terminate support for T.W. as of June 30, 2016 but, after doing so, ordered the father to pay retroactive child support for thefour months in 2017 that T.W. was in school.

We have been persuaded that, having terminated the mother’s obligation for child support,the motion judge erred when he made an order for retroactive child support for T.W. in the absence of a pleading seeking that relief (seethe Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88, r 70.31(3); Aquila v Aquila, 2016 MBCA 33 at para 27; Horch at para116; and Wenzel v Wenzel, 2017 MBCA 113 at paras 22-23). [9] We have not been persuaded, however, that the motion judge erred by deciding the matter based on affidavitevidence.

While counsel for the father had requested a trial on the issues, she conceded at a case conference that the hearing couldproceed based on affidavit evidence if examinations for discovery were conducted in lieu of cross-examinations. The motion judgeexpressed concern about proceeding based on affidavit evidence in the absence of cross-examinations, but was entitled to deal with thematter in the manner that he did. [10] There is no merit to the father’s assertion that the motion judge failed to apply the law to the facts when determining thechild support payable for J.W.

He carefully considered “the parties’ conditions, means, needs and other circumstances (including theirrespective budgets and household lifestyles, and the history of their arrangements for care and support of their children for the past sevenyears)” (at para 34), as well as the financial contributions of the mother’s partner. In our view, the motion judge was entitled to placeemphasis on the father’s significant increase in income and the award does not result in an injustice. [11] The motion judge also considered the conduct of the parties.

Key to his decision to award retroactive child support washis conclusion that the father had been “much less than forthright with the [mother], and with the court” (at para 30) regarding thesignificant increase in his income. A payor parent cannot hide his or her income increases from the recipient parent in the hopes ofavoiding larger child support payments (see DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra, 2006 SCC 37 at para 106).

Leaving aside any credibility issues, the motion judge’s conclusion was clearly supported by the evidence. [12] We have also not been persuaded that the motion judge erred by exercising his discretion to reduce the award of costs inthe manner that he did in the context of the highly deferential standard of review for costs awards (see Rummerfield v Rummerfield, 2018MBCA 3 at para 6). [13] In the result, the appeal was allowed with respect to the order for retroactive child support payments for T.W. after June30, 2016, however, the balance of the appeal was dismissed.

As success on the appeal was divided, the parties will each bear their owncosts. JA JA JA COURT OF APPEAL PROVINCE OF MANITOBA WINNIPEG R3C OP9

CORRIGENDUM October 10, 2019 TO WHOM IT MAY CONCERN: Re: Wiechern v Wiechern 2019 MBCA 96 Docket No. AF19-30-09215 Released: September 30, 2019 The attached decision replaces the previous decision which was released September 30, 2019. In para 3, the “Manitoba Table of the Federal Child Support Guidelines , SOR/97-175 ” has been changed to read the Child Support Guidelines Regulation , Man Reg 58/98 .