Briscoe v Briscoe, 2022 MBCA 76

Citation: Briscoe v Briscoe, 2022 MBCA 76 Date: 20220913 Docket: AF21-30-09702 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Karen I. Simonsen BETWEEN : mireille gabrielle therese briscoe ) R. A. Horton ) for the Appellant (Petitioner) Respondent ) ) M. G. T. Briscoe - and - ) on her own behalf ) james stephen briscoe ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) September 13, 2022 Steel JA (for the Court) : [ 1 ] This is an appeal from a dismissal of a motion brought by the respondent (the husband) asking to have the divorce pronounced on a

summary judgment basis or, alternatively, that the issue of divorce be severed from the balance of relief requested in the pleadings. [ 2 ] The motion judge dismissed the husband’s motion, determining that

summary judgment was not proportionate. It would not advance the matter, simplify the proceedings or facilitate a proportional resolution. As well, there were issues other than the pronouncement of divorce which required a trial and she was unable to determine that reasonable arrangements had been made for the support of the children as required by section 11(1) (

b) of the Divorce Act , RSC 1985, c 3 (2nd Supp ) (the Act ). [ 3 ] In this case, the husband applied both for

summary judgment or, alternatively, for severance. The rules are clear that proportionality is a critical touchstone for both applications. [ 4 ] Severance is not a matter of right. It is a discretionary remedy and will depend on the facts of the case (see KAS v CDS , 2004 MBQB 258 ; and Senger v Rawana , 2010 MBQB 57 at paras 56-57 ).

Particularly, in family proceedings, severance should not be easily granted, as it is preferable to have all matters resolved together (see Desjardins v Desjardins , 1993 CarswellMan 273 (QB) at para 26 ). [ 5 ] There is no evidence from the husband that he wishes to remarry in the near future or that the lack of a divorce will affect him prejudicially. Nor is there any evidence that a successful severance motion in this matter will be of any real benefit to the completion of this litigation.

We see no error in the exercise of the motion judge’s discretion that severance in this case will not advance the resolution of any of the issues or facilitate a proportional resolution. [ 6 ] Rules 20.01(1) and 20.03 of the MB, Court of King’s Bench Rules , MR 553/88 , which govern

summary judgment in civil proceedings, are applicable in family proceedings (see r 70.18.1(1)). In addition, r 70.18.1(2) for family proceedings contains the same language as r 50.04(5.2) for civil proceedings, namely, that a judge must allow a motion for

summary judgment to proceed if they are satisfied that the

summary judgment motion can achieve a fair and just adjudication of the issues based on three factors, which include a consideration as to whether

summary judgment is a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial” (rr 50.04(5.2)(c), 70.18.1(2)(c)). [ 7 ] While these rules apply to preliminary screening of

summary judgment motions, the same factors are relevant to a determination of a motion. So, proportionality is always a consideration both in the screening of

summary judgment motions and, as well, on a final determination whether to grant

summary judgment. We agree with counsel that the rules now make it clear that

proportionality is the critical touchstone in all civil and family law matters (see Hryniak v Mauldin , 2014 SCC 7 at paras 47-51 ; and Dakota Ojibway Child and Family Services et al v MBH , 2019 MBCA 91 at paras 82 , 92). [ 8 ] The standard of review in family proceedings is also the same as in civil proceedings. Assuming no error in law, the standard of review on a decision refusing

summary judgment is deferential. The granting or denying of a motion for

summary judgment is an exercise of judicial discretion and can be set aside on appeal only upon a finding of an error in law or the facts or unless the decision is so clearly wrong as to yield an unjust result (see Shachtay v Shachtay , 2013 MBCA 17 at para 7 ). The motion judge in this case found that

summary judgment would not be a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. We see no palpable or overriding error in her finding. [ 9 ] However, most importantly in this appeal, before a divorce can be granted, a court must be satisfied that suitable arrangements have been made for the support of any children of the marriage (see section 11(1) (

b) of the Act ). The interim order in this case is effective only until the trial of the matter. Several issues with respect to child support have not been resolved, including retroactive child support, income determination, whether the adult children remain children of the marriage, and

section 7 expenses (see

section 7 of the Manitoba, Child Support Guidelines Regulation , Man Reg 58/98 ). The motion judge held that, consequently, she was unable to conclude that reasonable arrangements had been made for the support of the children. Again, we see no error in the exercise of her discretion. [ 10 ] Costs of the appeal will go to the wife. JA JA JA