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MAINTENANCE AND SUPPORT - Spousal support - Agreement

Monday, March 04, 2019 @ 9:21 AM  

Lexis Advance® Quicklaw®
Appeal by the husband from a trial judgment that granted the wife periodic spousal support more than the couple’s separation agreement. Cross-appeal by the wife from the trial judge’s refusal to order double costs. The parties were married for 25 years prior to their separation in 2011. During the marriage, the wife had gone on disability for depression. She continued to receive disability benefits at the time of trial. The parties’ 2012 separation agreement, entered into when both parties were represented by counsel, provided the husband would pay $1,750 in monthly spousal support for five years. The trial judge found the husband took advantage of the wife’s vulnerability, including her depression and financial pressures, in negotiating the agreement and that the agreement did not substantially comply with the objectives of the Divorce Act. She ordered the husband to pay $3,800 in monthly spousal support from 2016 until further order of the court. She refused to order double costs on the basis that her variable order was more favourable to the husband than the wife’s offer to settle for $3,000 per month until 2024.

HELD: Appeal and cross appeal dismissed. The trial judge applied the correct law. The record demonstrated an evidentiary basis on which the trial judge could have reached her conclusions. The trial judge did not misapprehend the evidence. The award was not clearly wrong. The trial judge was entitled to find the variable order benefited the husband more than the fixed order offered by the wife. It was not possible to say with certainty the result of the trial was as or more favourable than the wife’s offer. The trial judge’s discretionary decision regarding costs was not plainly wrong.

Rivard (Litigation Guardian of) v. Thompson, [2019] M.J. No. 16, Manitoba Court of Appeal, D.M. Cameron, W.J. Burnett and J. leMaistre JJ.A., January 18, 2019. Digest No. TLD-March42019002