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MAINTENANCE AND SUPPORT - Child support - Considerations - Ability to pay - Second families - Retroactive awards - Spousal support - Considerations - Ability to pay - Second families

Thursday, April 12, 2018 @ 8:50 AM  

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Appeal by the wife from an order awarding her retroactive child support, but denying her retroactive spousal support. The parties married in 1994, separated in 2005 and divorced in 2009. They had two children, one of whom was over 19 years old and the other who had special needs and required 24-hour care. The husband was a pilot who worked outside Canada for many years. In 2007, the parties agreed his income was $225,000 for support purposes. His decreased tax liability as a non-resident working overseas was considered in this determination. In 2008, the husband sought to vary support because he had been spending more time in Canada and was therefore liable to pay more tax. In July 2009, the parties agreed to reduce his income to $165,000 for support purposes. The parties reached a comprehensive settlement in 2010, setting the husband’s income at $147,000. The husband was required to pay child support of $1,765 per month and spousal support of $3,700 per month to December 2011, $2,700 per month to December 2012 and $1,500 per month to December 2014. Included in the spousal support was $42,000 that was agreed to represent a full settlement of the wife’s claim to retroactive support and a division of assets. The husband re-married in 2011 to a woman with three children. The wife gave notice in 2012 of her intention to seek review of child and spousal support. The judge varied the consent order relating to parenting arrangements and child support, ordering the husband to pay monthly child support of $2,042 commencing January 1, 2014, and monthly spousal support of $2,100 commencing January 1, 2015. The judge found that the husband had engaged in blameworthy conduct that had deprived the parties’ children of sufficient support by failing to disclose that he was not a Canadian taxpayer in 2010. Of the $57,569 in child support that he had failed to pay over the years based on his lack of candour in disclosing his true financial situation, the husband was ordered to pay $15,420 in retroactive child support, the judge noting that his ability to pay was finite and that he had financial obligations to his second family as well. The judge denied the wife retroactive spousal support, as this would compromise the husband’s ability to meet his child support obligations.

HELD: Appeal dismissed. Although the judge failed to give due weight to the husband’s blameworthy conduct in setting the award for retroactive child support, the award was not clearly wrong given his finite ability to pay. In denying the wife retroactive spousal support, the judge was entitled to consider how a spousal support award would impact the other orders he made. He did not misapprehend the evidence of err in principle in finding that child support took precedence.

E.B.G. v. S.M.B., [2018] B.C.J. No. 512, British Columbia Court of Appeal, S.D. Frankel, A.W. MacKenzie JJ.A. and B. Fisher J., March 5, 2018. Digest No. TLD-April92018008