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CHILD SUPPORT - Ability to pay - Effect of subsequent relationships

Friday, October 04, 2019 @ 8:03 AM  


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Appeal by the father from two judgments regarding child support and a related costs order. The parties met on the Internet and had a brief sexual relationship. They never had a formal living arrangement. The child was born in 2010 with Down's Syndrome. The father initially denied parentage and never paid support or played a parental role. By the time of trial, DNA tests confirmed parentage. The father became a successful plastic surgeon with his own family. The mother worked for a financial institution. She had a husband who stood in loco parentis to the child. The issues at trial included calculation of support, particularly the special and extraordinary expenses related to the child's extensive needs. The trial judge ordered retroactive and ongoing support. For 2010 to 2012, support was calculated based on the father's line 150 gross income. For 2013 to 2016, the trial judge calculated basic support based on a professional income of $210,000. From 2017 onward, the trial judge used an income of $300,000. The father's share of s. 7 expenses was 80 per cent, which included nanny-type care until 18 years of age and the establishment of a disability savings fund. The father appealed.

HELD: Appeal allowed. While it was not unreasonable for the trial judge to find that table support needed to be supplemented by s. 7 expenses to reflect the child's needs, the inclusion of certain expenses within the scope of s. 7 was conclusory, and unsupported by analysis of whether such expenses were reasonable and necessary. The expenses related to a vehicle and au pair were rescinded. The expenses related to child exportation and transportation costs were referred to the Court of Queen's Bench for reconsideration. The analysis employed by the trial judge involved an artificial notional situation of a one-child family unit, based on relative affordability. The failure to consider the potential contributions to s. 7 expenses from the income of the wife's husband constituted a reviewable error, but did not have a material effect on the outcome. The barrier to the father's access to information in respect of s. 7 expenses was unreasonable and was removed. There was nothing in the father's approach to financial disclosure that justified a costs sanction. The doubling of fixed costs already calculated by prior judges was improperly retroactive. The enhancement of costs was rescinded. Costs were awarded on Column 2 on a party and party basis.

F.J.N. v. J.K., [2019] A.J. No. 1094, Alberta Court of Appeal, J. Watson, F.F. Slatter and B.K. O'Ferrall JJ.A., August 15, 2019. TLD-September302019014