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MAINTENANCE AND SUPPORT - Child support - Retroactive awards

Friday, December 20, 2019 @ 6:31 AM  


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Appeal by the wife from a decision dismissing her claim for retroactive child support because the children were no longer children of the marriage. The Divorce Judgment and Corollary Relief Order set the husband’s child support obligation at $900 per month. Pursuant to the parties’ 2009 agreement, the wife had primary care of the three children and the husband paid child support at $2,563 per month, based on his 2007 Guideline income of $140,000. This amount was not to increase if he paid 50 per cent of the s. 7 expenses and the agreed upon child support arrears. In 2007, the wife’s income was $17,840. In 2016, the wife served the husband with a demand to provide financial disclosure. At the time, all children were still attending high school. The husband’s income increased by $120,000 in 2014, by almost $180,000 in 2015, and by $80,000 in 2016. In contrast, the wife’s income remained stagnant. In 2017, she filed her application for retroactive child support for all three children. The chambers judge awarded retroactive support only for the youngest child retroactive from January 2014. He concluded he had no jurisdiction to hear the application relating to the two sons as they were the age of majority and no longer children of the marriage. The chambers judge concluded that while the wife had requested financial disclosure while the children were all children of the marriage and were clearly entitled to support, the steps taken, including service of an unfiled notice to disclose application, did not constitute an application. The husband argued that retroactive support for the youngest child should begin in May 2016, the effective notice date of the wife’s claim.

HELD: Appeal allowed. Cross-appeal dismissed. Having found blameworthy conduct on the part of the husband, a finding amply supported in the record, it was within the chambers judge’s discretion to set the commencement date for the retroactive award. He was not limited to either the date of effective notice or a period of three years preceding the date of formal notice. The wife’s 2017 application was a variation application that fell under s. 17(1) of the Divorce Act. The language of s. 17(1) was clear and straightforward and required only that a material change of circumstances was demonstrated. If Parliament intended that children be children of the marriage at the time both original and variation applications were made, it could have said so. Once the parties obtained an order or agreement for child support, the court retained jurisdiction to hear an application to retroactively vary the support, and it was not necessary to file the application while the child was still a child of the marriage. Determining jurisdiction without regard to blameworthy conduct also led to an unjust result. The husband’s failure to fulfill his disclosure obligations factored significantly in the timing of the wife’s application. The chambers judge’s analysis on jurisdiction was devoid of any consideration of the husband’s blameworthy conduct. Any finding of blameworthy conduct, wherein the actions of the payor parent favoured their own interests over those of their children, was sufficient to retain or trigger the court’s jurisdiction to vary a retroactive child support application.

Brear v. Brear, [2019] A.J. NO. 1459, Alberta Court of Appeal, J.D.B. McDonald, D. Pentelechuk and K.P. Feehan JJ.A., November 1, 2019. Digest No. TLD-December162019009