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SPOUSAL SUPPORT - Calculation or attribution of income - Quantum - Interim

Monday, January 11, 2021 @ 9:17 AM  

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Appeal by the husband from an interim child and spousal support order and the related costs award. The parties separated in 2019. They had one child. The wife was the primary caregiver for the child and did not work since November 2017 when she commenced maternity leave. Following separation, the parties continued to live in the matrimonial home. The wife left the home with the child in May 2020 and moved in with her father. At the husband’s emergency application for access, the parties reached a consent parenting arrangement that would see the child residing with the wife while the husband had parenting specified time. The chambers judge set the husband’s income at $74,736 and rejected his claim that income should be imputed to the wife. The husband was thus ordered to pay $648 per month in child support. The chambers judge concluded that a prima facie entitlement to compensatory spousal support was made out having regard to the parties’ division of labour, as the wife had previously been working part-time and was out of the work force taking care of the child since her birth. The chambers judge rejected the husband’s submission that the wife did not need spousal support because she was living with a family member and ordered the appellant to pay spousal support of $1,150 per month, reviewable in three years. The husband was ordered to pay solicitor and client costs of $11,500 to the wife.

HELD: Appeal allowed in part. The three-year duration for the spousal support order was set aside. The costs award was reduced to $5,000. The husband’s submission that the chambers judge lacked jurisdiction to award support because it was not contemplated by the court’s COVID protocols was entirely without merit. The Master Order expressly provided that the court retained the discretion to hear matters that did not fall within the definition of an emergency or urgent matter, which was what occurred in this case. The application set down before the chambers judge was the husband’s emergency application for parenting time. Once the parties reached a consensual arrangement on parenting time, the chambers judge properly recognized that child and spousal support followed from such an order. There was no merit to the submission that the chambers judge failed to act judicially or displayed a reasonable apprehension of bias. The chambers judge made no error in concluding that the wife was entitled to compensatory spousal support and in declining to impute income to her in the circumstances. The husband had not demonstrated financial hardship that would preclude his ability to pay spousal support. The three-year duration of the interim order was set aside as it might be viewed as precluding either party from seeking a variation prior to that date if there was a sufficient change in circumstances that would merit such an application. While many of the positions advanced by the husband lacked apparent merit, his conduct did not reflect the type of behaviour that merited an award based on solicitor and client costs, reduced somewhat to reflect divided success. Some level of enhanced costs was, however, appropriate to reflect the additional procedures that were involved and aspects of the husband’s conduct.

Malazdrewicz v. Malazdrewicz, [2020] A.J. No. 1285, Alberta Court of Appeal, M.G. Crighton, J. Strekaf and D. Pentelechuk JJ.A., November 27, 2020. Digest No. TLD-January112021002