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Maintenance and support - Practice and procedure - Orders - Interim or interlocutory orders - Appeals and judicial review

Thursday, February 02, 2017 @ 7:00 PM  

Appeal by the husband from an interim order regarding parenting arrangements, child support, and spousal support. The parties moved in together in 2007, married in 2009 and separated in May 2015. Their children were two and seven years of age. The wife remained in the home following separation. She was unemployed from 2008 onward due to health reasons. In 2016, the parties agreed to an equal parenting arrangement. Following separation, the husband’s earnings went to a joint bank account that the wife was able to use to pay all expenses associated with the family home. In April 2016, the husband closed the account on the basis that the wife’s withdrawals left him unable to meet his own expenses. Thereafter, the husband made monthly deposits on account of child support and continued to make mortgage, property tax and insurance payments on the family home, in addition to the wife’s car payments. The wife commenced divorce proceedings in May 2016. The court made an interim order for joint custody with shared parenting, ordered interim child support of $1,173 based on the husband’s income of $85,783, with two months’ retroactive support, and interim spousal support of $600, with four months’ retroactive support. The husband was required to continue the home and car payments. Further issues of retroactive support were reserved for trial. The husband appealed.

HELD: Appeal allowed in part. The chambers judge made no error in respect of parenting arrangements, particularly granting the wife the first option to parent the children in the event of the husband’s absence due to work. No error arose from use of the husband’s 2015 income for support purposes, as it would be speculative to base support on his uncertain 2016 income. Even though a shared parenting arrangement existed, there was insufficient evidence to conduct a set-off analysis. There was thus no error in finding the wife had no income for support purposes. However, there was no authority for awarding retroactive support on an interim basis, as it was properly a matter for trial. In addition, the order of interim spousal support combined with the requirement to continue house and car payments was unsustainable. The husband’s total payment obligation exceeded the high end of the applicable range. The monthly spousal support payment of $600, plus arrears, was set aside. The order otherwise remained intact.