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MAINTENANCE AND SUPPORT - Child support - Quantum - Payor’s annual income - Spousal support - Quantum - Payor’s annual income

Tuesday, April 11, 2017 @ 7:47 AM  


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Appeal by the father from an order directing him to pay retroactive and ongoing child and spousal support based on income that included monthly benefits received from Veterans Affairs Canada (VAC). The parties were married for 20 years, and had two children who remained children of the marriage. The father was in the military and received numerous monthly benefits from the military and other third parties. At the time of the application the father received VAC non-taxable disability pension benefits in the amount of $1,598 per month, VAC non-taxable additional disability pension benefits with respect to spouse in the amount of $399 per month, VAC non-taxable permanent impairment allowance in the amount of $584, VAC non-taxable permanent impairment allowance supplement in the amount of $1,074, VAC non-taxable benefit for home care and maintenance in an annual amount of $6,951, SunLife long term disability benefits in the amount of $1,971 per month, Canada Pension Plan Disability in the amount of $866 per month, and Canadian Forces Pension Plan in the amount of $1,495 per month. The father objected to any of his non-taxable VAC benefits being included in income. After the children were born, the mother did not work outside the home until she started working at Tim Hortons. The chambers judge found that her earnings were insignificant and were not in dispute. In his analysis of prior jurisprudence, the chambers judge noted that some older trial level cases tended to characterize VAC payments as property or as payments for pain and suffering, akin to damage awards for personal injury. However, he concluded that more recent cases had included VAC payments in income. On the evidence before him, the chambers judge found there was no basis to exclude the VAC payments received for the purpose of calculation of income to establish spousal and child support.

HELD: Appeal dismissed. The chambers judge did not err in concluding that the VAC benefits being received by the father were properly included in his income for the purposes of support. The determination must be made under the legislation governing its award, specifically the Divorce Act and the Federal Child Support Guidelines (Guidelines). The payments formed part of the means and ability to pay of the father, a fundamental consideration in determining entitlement to and quantum of spousal support. A stated objective in the Guidelines was that a fair standard of support for children that ensured that they continued to benefit from the financial means of both spouses after separation. VAC benefits seen through this lens were means from which support could be paid.

Rooker v. Rooker, [2017] A.J. No. 247, Alberta Court of Appeal, M.S. Paperny, F.F. Slatter JJ.A. and J. Strekaf J. (ad hoc), March 15, 2017. TLD-Apr102017005