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MAINTENANCE AND SUPPORT - Variation or amendment of orders - Changed circumstances

Tuesday, May 25, 2021 @ 9:13 AM  


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Appeal by the wife from an order granting the husband repayment of an overpayment of child and spousal support. The parties married in 1998, separated in 2007 and divorced in 2010. In 2013, they settled financial matters through consent orders. In 2014, the husband applied for a retroactive reduction based on a material change that reduced his income significantly. Following a protracted procedural morass, the application was heard in 2019. The wife contested whether a material change occurred but did not argue quantum or the effective date of retroactivity. The application judge varied monthly spousal support from $8,000 to $3,600 and varied monthly child support from $4,000 to $1,434, effective December 2014. The wife appealed the order but did not advance the appeal. Thereafter, the husband brought a second application for an order requiring the wife to repay support overpayments. The wife opposed the application on jurisdictional grounds and based on hardship. The judge rejected the wife’s application for cancellation or reduction of overpaid support and referred the matter to the registrar to settle the amount owed by the wife. A request for reconsideration of the order by the wife was rejected. The wife appealed.

HELD: Appeal dismissed. A preliminary issue arose regarding what was properly before the court given that the wife’s appeal from the first order remained extant. From 2014 onward, the wife had notice of the husband’s overpayment claim, as the husband’s first application implicitly sought a right to repayment, as any retroactive reduction necessarily carried with it entitlement to repayment. It was incumbent upon the wife to make her whole case against retroactive variation in response to the husband’s first application, including issues of hardship, the effect of the consent orders, and any other discretionary factors that she raised in response to the husband’s second application. To allow the wife to raise such issues in response to the second application constituted an impermissible collateral attack on the first order. With respect to the second order, the judge did not err in finding jurisdiction to order repayment of a support overpayment as a necessary corollary of the Divorce Act’s empowerment to order retroactive reductions. No reversible error arose from the judge’s refusal to reopen the second application.

Moazzen-Ahmadi v. Ahmadi-Far, [2021] B.C.J. No. 598, British Columbia Court of Appeal, D.C. Harris, G.J. Fitch and G.B. Butler JJ.A., March 29, 2021. Digest No. TLD-May242021001