Separation & Divorce and the Effects on Children in BC
  • The parties in this case owned or indirectly benefitted from numerous companies.
  • They have two children, and executed a separation agreement in June 2008.
  • The husband failed to pay child support on several occasions, and refused to provide any financial disclosure when requested.
  • The wife’s first web design business failed, but she has since started a new business with her current partner, and it has been doing well.
  • The husband had not been making child support payments, but claimed he had been overpaying for the children’s section 7 (extracurricular/extraordinary) expenses.
  • While this was true, those section 7 expenses have since decreased, and the husband is still in significant arrears to the wife.
  • The husband made many claims against the wife, including accusing her of “sabotaging” one of his businesses, none of which were substantiated by evidence. Worse, they did not speak well of his character.
  • The husband is a minority shareholder in one business, which generally means that section 18 of the Child Support Guidelines would not be applied against him. In this case, though, he acts more like a majority shareholder, and so section 18 can have application if the circumstances are appropriate,1 and more income can be imputed to him.
  • The court took an average of the husband’s income over the last three years, finding it higher than he was reporting it to be.
  • Both parties are ordered to continue paying the section 7 expenses proportional to their respective income.
  • Child support was set pursuant to section 9(a) of the Child Support Guidelines, and the judge found no mitigating factors.

Why This Decision is Important

The husband in this case was acting as a self-represented litigant (SRL). While the court makes an effort to treat SRL’s the same as parties with counsel, some shortcomings cannot be overcome. Here, the court found that the husband was “prepared and determined to argue the facts of the case, he made no submissions regarding the law and displayed only a vague understanding of the legal issues.”

This is a situation where obtaining legal counsel may have helped the husband’s arguments to be advanced and to garner some favour from the court.

Further, there was some suggestion that the husband had failed to make full financial disclosure, even after repeated requests from the wife. In this situation, counsel for the wife pointed out that “the court can draw an adverse inference against and impute any income to any spouse in such amount it considers appropriate where such spouse has failed to make full financial disclosure.” This means that, if the husband’s financial disclosure is not satisfactory, the court can essentially hold that against him and assume his income to be an amount they feel is fair.

Case Details

Family law — Children — Maintenance — Practice — Summary trials

“A payor parent who does not increase child support payments to correspond with increased income does not fulfill his or her obligation to the children.”

Outcome

The husband was ordered to pay the retroactive child support he owed, and costs were awarded to the wife. This is a punitive measure the court can take against the husband for not being forthcoming in his disclosure.

Key Takeaways

  • Parents are obliged to filly and honestly disclose their income information. This includes their tax returns, notice of assessment, statement of earnings, self-employment financial statements, partnership enterprises, or anything else that indicates their financials.
  • The court can impute income to a parent when they may have more money available to them by way of being a shareholder, director, or officer of a corporation.
  • The court can impute income in situations such as intentional underemployment or unemployment.

References

Bennett v Bennett, 2015 BCSC 699
https://canlii.ca/t/ghf0w

  1. Federal Child Support Guidelines, SOR/97-175, section 18
    https://laws-lois.justice.gc.ca/eng/regulations/sor-97-175/page-1.html ↩︎
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Madison Lussier

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Assisting clients through some of the most challenging times in their lives has shaped Madison’s empathetic, professional, and trauma-informed approach to advocacy. Although she now specializes exclusively in family law, her confidence in the courtroom is largely derived from her previous experience in criminal defence.

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