RECENT FAMILY LAW CASES IN BC

Parties living together from 2014 to January, 2017 and having a daughter, A., age 3 at time of hearing in February, 2018. Master’s order of February, 2017 prohibiting A.’s removal from the Lower Mainland. Respondent mother nevertheless taking A. to live on Vancouver Island and refusing access to father, alleging he had sexually abused A. Master finding no substance to that allegation and finding, instead, the mother was seeking to preclude any relationship between A. and her father and would continue to ignore court orders. Master ordering removal of A. from the mother and placement with the father on an interim basis, with mother to have supervised access only. Master including a police assist clause to ensure enforcement of the order.

The courts power to fine and punish for contempt is important to ensure that respect for the court is maintained but it is to be used lightly.

Arrears of spousal maintenance were cancelled where the interim Order was based on income $26,000.00 higher than the husband actually earned while working full-time. The husband was not required to take on a second job to pay increased support when he was already working full-time:

The Supreme Court has no jurisdiction to adjudicate the issue of access where the Provincial Court had earlier ruled upon the issue:

900 unwelcome texts and email messages sent post-separation designed to intimidate and harass the recipient spouse were determined to constitute “family violence” under the Family Law Act and resulted in a protection order being made.

An excluded asset subsequently used for a family purpose results in the loss of the exclusion.

The wife and children remained in the former matrimonial home post-separation and was responsible for the upkeep of the home and the husband made mostly all the mortgage payments, mortgage insurance and line of credit payments. The husband’s claim for occupational rent was unsuccessful. The court equally divided the assets accumulated in the parties’ 30-year marriage from the net sale proceeds of the former matrimonial home, the wife would have deducted from her share 50% of the mortgage payments, 50% of the mortgage insurance payments and 50% of the debt payments the husband had made post separation.

There is no limitation period under the Divorce Act regarding spousal support.

Simply finding that a parental regime comes within Section 9 of the Federal Child Support Guidelines (shared custody) does not compel an automatic reduction in child support. In this case, evidence was not advanced to address one of the 3 factors the court was required to analyze under Section 9. The three factors are (1) the amount set out in the applicable tables for each spouse; (2) the increased costs of sharing custody arrangements; and (3) the condition, means, needs and other circumstances of each of the spouses and the child.

The court awarded retroactive Section 3 child support 3 years prior to the mother providing notice she was seeking child support. The court awarded 2 years of retroactive Section 7 child support. On a go-forward basis, the court ordered all reasonable and medical expenses to be shared equally. The court also ordered the father to pay one extra-curricular expense for each daughter commencing in 2013 and on a continuing basis.

A parent was successful in reducing child support for an adult disabled son in receipt of benefits for Persons with Disability.

Clothing, pizza and sushi are not Section 7 Expenses, but Tuition and medical expenses are. The Court set aside an Order for Section 7 expenses after determining the father did not willfully fail to attend Court.

The Court fixed extraordinary expenses at $2,000.00 for one year to be shared equally where the parents shared parenting on a week on, week off basis. Horseback riding lessons were not deemed to be Section 7 expenses where one party unilaterally incurs without the other parent's prior consent.

A Marriage Agreement first presented on a Saturday before the parties’ marriage on a Sunday was set aside as being unfair where each party gave up their spousal support claims forever and neither would make claims to an interest in any property of the other.

A payor who was found by the court to have willfully failed to comply with a support order was found to be in contempt of court and was ordered to pay all of the outstanding arrears over 5 months, failing which the payor would be incarcerated for 14 days for each payment not made.

On further application by the payor to vary support and cancel arrears, the Court did not allow a stay of the contempt order, but lowered the quantum of the monthly payments.

General damages awarded to a spouse by a tribunal could not be included as income for the payor spouse in relation to the issue of spousal support.

A decision to separate is not a Separation Agreement – a level of formality is required.

Where a child was placed by the Ministry of Children and Family Development in the care of a family relative, the court permitted the relative to obtain child support from the mother based on her Guideline Income and from the father based on his Guideline Income even when the biological parents continued to reside together.

Separation Agreements are not written in stone. The Court made a relocation order permitting one parent to move outside the Lower Mainland, which was contrary to a term in an earlier executed Separation Agreement. The Court said the terms of a Separation Agreement could not bind one parent to a specific location or community.

A parent was declared a vexatious litigant and a restraining order was granted where one parent had sent hundreds of emails in the children’s hockey community, caused commotions at hockey games and assaulted a coach. That parent was no longer entitled to receive information from the children’s school and medical practitioners.

The Court ordered a divorce on the basis of adultery. The finding of adultery was made on an exceptional basis because one spouse’s religion only recognized a divorce on the basis of adultery.

The Court permitted ongoing payments of interim child and spousal support to be paid from the net sale proceeds of the sale of the family home, which had been paid into court.

The Court varied an earlier Consent Order. The parties initially agreed to divide assets by consent with the husband assuming more family debt, but the former matrimonial home left the parties with debt not assets. The court considered the changes in debt post-separation and equally divided the debt and by so doing varied the parties’ earlier Consent order.

A wife, who had a spousal support order and who agreed later voluntarily and verbally agreed outside the court to reduce the amount of spousal support she received, could not later seek enforcement of the original spousal support order.

The parties signed a Marriage Agreement while they were still married. The parties agreed the wife was to receive $100,000.00 from the husband, and she was then to give up all of her claims to the former matrimonial home. Upon the divorce 10 years after the Marriage Agreement was signed, the wife asked the court to set aside the Marriage Agreement so she could receive more than 50% of the value of the home at the date of the trial. She was not successful as she had not proved that the Marriage agreement was unfair.