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MAINTENANCE AND SUPPORT - Child support - Variation or termination of obligation

Tuesday, March 12, 2019 @ 8:32 AM  

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Appeal by the father from an order dismissing his application for variation of a lump sum child support award and extraordinary expenses based on material change in circumstances and granting the mother’s application to enforce payment and have previous cost orders characterized as maintenance which survived the father’s bankruptcy. The father was an accountant. In 2011, the trial judge imputed income of $120,000 to him because his evidence about his earnings was unreliable and awarded the mother lump sum child support payable from the father’s share of the family property. The father subsequently filed for bankruptcy and was discharged in 2015. The mother applied in 2016 to have a 2014 order determining the amount of support owing by the father and a 2015 order awarding the mother lump sum costs on the father’s application to reduce the income imputed to him and to retroactively apportion s. 7 expenses as in relation to maintenance so that they would survive the father’s bankruptcy. The judge concluded that both orders survived the bankruptcy to the extent that they had been incurred in relation to support orders and designated a portion of the costs as support-related. While the father acknowledged that costs incurred to obtain a child support order survived bankruptcy, he argued the orders in this case were not such orders.

HELD: Appeal dismissed. The judge had jurisdiction to vary the orders after they had been entered and apportion costs between maintenance and other issues. After bankruptcy, it was a proper exercise of the authority of the court to address apportionment in hindsight to give effect to the intention of Parliament that liability for costs relating to child and spousal support should not be extinguished by the bankruptcy of the debtor. In such cases, the amount owed was not altered. While in general it was preferable for the judge who made the costs order to hear an application for apportionment of those costs, that would not always be possible or practical. There was no reason why another judge of the court could not hear an application in such circumstances, if some evidence was presented to permit that judge to make an informed decision. The chambers judge had before her enough evidence to apportion costs as she did. The judge did not err in finding that the father was obligated to contribute to s. 7 expenses for which he had refused to pay. The mother had presented evidence of her repeated efforts to consult the father regarding the activities and the father had not objected to the activities in principle, recognizing their benefit to the children, but declining to pay for most of the associated expenses. The record demonstrated that the father consistently took the position that he could not afford to pay for the activities due to his low level of income — an income which the court had found represented intentional under-employment.

Dorey v. Havens, [2019] B.C.J. No. 152, British Columbia Court of Appeal, H. Groberman, L.A. Fenlon and G.J. Fitch JJ.A., February 6, 2019. Digest No. TLD-March112019004