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MAINTENANCE AND SUPPORT - Child support - Considerations - Attendance at educational institution - Variation of obligation - Child support guidelines - Exceptions and exemptions from Guidelines

Tuesday, December 12, 2017 @ 8:00 AM  

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Appeal by the mother from a child support variation order in respect of the parties' adult child. The parties' child lived at home while pursuing post-secondary education on a full-time basis. The motion judge varied child support to require the father to pay $2,000 per month based on an income of $187,429, plus 67 per cent of non-educational s. 7 expenses. The variation order was made pursuant to s. 3(2)(b) of the Guidelines, having regard to financial contributions from the child and mother. No reasons for judgment were provided. The mother appealed. She submitted that the judge should have applied s. 3(2)(a) of the Guidelines, requiring the father to pay $2,575 per month based on his Guideline income. The mother submitted that the child's circumstances were akin to a minor child residing at home.

HELD: Appeal dismissed. It was reasonable to presume that the judge took the view that on the evidence before him it was inappropriate to make an order based on s. 3(2)(a) of the Guidelines and relied instead on s. 3(2)(b) which focused on "the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child". The choice to order support pursuant to ss. 3(2)(a) or 3(2)(b) of the Guidelines was discretionary and dependent upon the particular circumstances of each case. There was no requirement to defeat a presumption of s. 3(2)(a) support before relying upon s. 3(2)(b) or vice versa. Here, there was no error in principle or consideration of irrelevant factors in ordering support pursuant to s. 3(2)(b). There was a substantial body of evidence that supported a judicial exercise of discretion in favour of support pursuant to s. 3(2)(b). No basis for appellate interference was established.

McClement v. McClement, [2017] B.C.J. No. 2432, British Columbia Court of Appeal, M.V. Newbury, D.C. Harris and B. Fisher JJ.A., November 23, 2017. Digest No. TLD-December112017004