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MAINTENANCE AND SUPPORT - Child Support - Spousal support - Calculation or attribution of income - Considerations - Ability to pay - Pension

Wednesday, August 30, 2017 @ 10:09 AM  


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Appeal by the husband from a 2016 order respecting spousal and child support. The appellant argued that the judge erred in determining his support obligations by taking into account his Veterans Affairs disability pension (VA Pension) and treating it as income. The parties were married in 1998 and separated in 2011. They had a shared parenting arrangement after separation. The appellant worked for the Royal Canadian Mounted Police (RCMP). In addition to his regular income, he received a VA Pension of $1,360 per month since 2006 due to back and neck injuries suffered in the course of his work as an RCMP officer. On discovery, the appellant testified that during the marriage the VA Pension payments were treated as “family funds” and used to cover household expenses. The appellant’s 2015 employment income was $130,370. The wife was an RCMP civilian employee. Her 2015 employment income was $70,532. After considering the payor parent’s injuries, their impact and the corresponding VA Pension amount, the judge accepted the wife’s proposal and fixed child support at $675 per month on the basis that the appellant’s receipt of the VA Pension justified an upward departure from the amount dictated by the Federal Child Support Guidelines. He also found that the VA Pension created an increased discrepancy in the parties’ respective standards of living, warranting an award of spousal support on the higher end of the range indicated by the Spousal Support Advisory Guidelines. Spousal support was set at $900 per month going forward and $15,000 in retroactive spousal support was awarded.

HELD: Appeal dismissed. The judge did not err by taking the VA Pension into account as part of the conditions, means, needs and other circumstances of each spouse pursuant to s. 9(c) of the Federal Child Support Guidelines and s. 15.2(4) of the Divorce Act in determining child and spousal support. Given the shared parenting context, the judge was entitled to consider non-income resources. The phrase “conditions, means, needs and other circumstances of each spouse” was broad and flexible. The judge engaged in the sort of broad and flexible analysis mandated by Parliament in s. 9(c) of the Federal Child Support Guidelines and s. 15.2(4) of the Divorce Act. In doing so, he proceeded on the basis that the VA Pension was not income, but determined that in light of the shared parenting context he was entitled to consider the VA Pension as part of all financial resources, capital assets, income from employment and any other source from which the appellant derived gains or benefits. The judge examined the full factual context within which the appellant received and used the VA Pension and, taking those facts into account, adopted the wife’s midpoint proposal. The judge’s approach was entirely consistent with the discretion and flexibility envisioned by Parliament and required to make shared parenting arrangements work. Given the broad definition of “means” in the case law, the judge was entitled to consider the VA Pension in determining the appropriate quantum of spousal support.

Lozinski v. Lozinski, [2017] B.C.J. No. 1467, British Columbia Court of Appeal, N.J. Garson, G. Dickson and G.J. Fitch JJ.A., July 27, 2017. Digest No. TLD-August282017007