Dennis v. Pidruchny 2010 – Lump Sum on Interim Motion
This case was heard by Justice Goldberg in the Manitoba Court of Queen’s Bench. There was one child of the marriage, namely, Justina. At the motion, the petitioner (mother) was seeking temporary sole custody of the child, certain conditions regarding the Respondent father’s access time with the child as well as lump sum-retroactive child support. The issues in the case at bar will be discussed separately below.
Custody and Access
The mother was seeking an order for sole custody of the child. The child has been in her mother’s care since the parties separated, however the father had had a relationship with the child since birth. Justice Goldberg was not convinced that it was in the child’s best interest to make an order for sole custody. An interim order for joint custody was made with the mother having primary care and control of the child.
The father also requested that whenever the mother brings the child to the Winnipeg area, close to where he resides, he should have access with the child. The mother argued that this is not feasible given that the length of the trips vary, depending on the purpose of those trips, such as a doctor’s appointments and so forth. Justice Goldberg was not prepared to specify conditions requiring the mother to extend all visits to the Winnipeg area to the father. He ordered that the parties continue to arrange this time on an ‘as agreed’ basis.
The mother also addressed her concerns with respect to the father’s alcohol consumption and the impact of same when the child is in his care. The mother alleged that the father drank excessively and this posed a great danger for the child. The evidence suggested that the father consumed alcohol frequently and in the child’s presence. Justice Goldberg ordered that the Respondent father refrain from consuming alcohol while the child is in his care.
Retroactive Child Support
Lastly, the petitioner mother was seeking child support retroactive to three years prior to the commencement of the proceeding, which was served on November 2, 2008. The mother suggested that the father had underpaid support relative to the Manitoba Child Support Guidelines. The father argued that the parties had come to agreement with respect to child support. The mother did not dispute that an agreement was made, however she claimed that the circumstances under which they were made differ then what the father was alleging.
The father also argued that the agreement was reasonable given his access costs and that some of his child support payments were cash payments. The father based his argument on the Dram v. Foster case which states that a parent should not ordinarily be ordered to pay lump sum support on an interim basis. The mother however argued that the case does not state that a parent should never be ordered to pay a lump sum amount for child support on an interim basis. In Dram v. Foster, Justice Monnin stated that such an order should be made where extraordinary or exceptional circumstances justify it. The mother further stated that to adjourn the issue of retroactive support would prejudice her and cause her undue hardship due to the costs involved. Justice Goldberg was not prepared make an order with respect to retroactive support. The issue of retroactive child support must be addressed taking into account both parties credibility which required an oral hearing. As a result, the issue of retroactive child support was adjourned to trial.