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Vancouver BC Child Support Lawyers

Retroactive Variation Reduction Child Support

Vancouver BC Child Support Lawyers know child support is the right of the child and that performing proper calculations of guideline income and obtaining proper interim, and permanent child support is crucial. Our Vancouver BC Child Support Lawyers handle periodic, lump sum and secured child support cases as well as variations and Appeals regarding BC child support.

Today’s blog by our top Vancouver BC Child Support Lawyers discusses:

  1. Vancouver BC Child Support Lawyers negotiate mediate, arbitrate and litigate
  2. Vancouver BC Child Support Lawyers Explain The Law
  3. How Did The Judge Go Wrong? Vancouver BC Child Support Lawyers

MacLean Law’s top rated Vancouver BC Child Support Lawyers have won the Top Choice Award for Top Vancouver family law firm for the last 4 out of 5 years and the last 3 years running. We handle medium to high net worth Vancouver BC Child Support cases across BC and have set precedents for some of the highest child support awards in Canada. We have offices located in downtown Vancouver, Surrey, Kelowna, Richmond and Fort St John/Dawson Creek. Click here for more BC child support information.

Vancouver BC Child Support Lawyers negotiate mediate, arbitrate and litigate

Our Vancouver BC Child Support Lawyers negotiate mediate, arbitrate and litigate high stakes child support cases across BC and in Calgary Alberta. A recent decision of our BC Court of Appeal caught the interest of our founder Lorne N. MacLean, QC on the topic of arbitrated child support awards and how they can be properly varied. The case also set out the law for how a trial decision can be overturned if it is wrong.

Vancouver BC child support lawyers

Lorne N MacLean, QC high net worth Vancouver BC child support lawyers

The 2018 BCCA decision of Stewart and Ferguson dealt with an appeal of a variation of child support for the parties’ 14-year old son made originally by a family arbitrator beacause the son had been accepted into a private boarding school. The trial judge  mistakenly considered this to constitute a change of residence contemplated by the arbitration award and  reduced child support, ordering it to be payable on a per diem basis only for the days that the son was in the care of the appellant.

The BC Court of Appeal set aside the reduction of support on the basis the trial judge  failed to  first determine whether there was a material change of circumstances, and  also failed to properly interprete the arbitration award without considering the arbitrator’s reasons, the application of the Family Law Act and applicable case law. The Court of Appeal  did not accept that a child under the age of majority attends a boarding school equated to a change of residence. There was no material change of circumstances and no basis to vary the award.

Vancouver BC Child Support Lawyers Explain The Law

The test to win a Vancouver BC Child Support appeal is strict:

[16]       In general, trial judges exercise considerable discretion in determining support obligations, based on statutory objectives and criteria, common law principles, and factors relevant to the circumstances of each case. Because of this, appellate courts must give considerable deference to trial judges and should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong. These principles were discussed in Hickey v. Hickey, [1999] 2 S.C.R. 518 and have been applied in this Court: see, for example, B.P.E. v. A.E., 2016 BCCA 335.

How Did The Judge Go Wrong? Vancouver BC Child Support Lawyers

Vancouver BC Child Support Lawyers explain to their family law clients that before a variation of child support is made there must be proof of a significant “material change in circumstances: The Child Support Guidelines are also presumptively applicable to all children under the age of majority. You can click here to get a rough idea of what child support is payable for BASIC CHILD SUPPORT. In the Stewart case here is how the Judge erred:

[23]       The judge also failed to consider whether para. 3 of the arbitration award was inconsistent with the duty of both parents, under s. 147 of the Family Law Act, to support a child unless that child has withdrawn from their charge, or with case law regarding child support for children under the age of majority attending school away from home.

[24]       Clearly, the evidence was that Kyle, at age 14, was a child of the marriage who continued to be in the charge of his parents.

[25]       Moreover, the fact that a child attends a boarding school does not equate with a change of residence. Bockhold v. Bockhold, 2006 BCCA 472, Hodgkinson v. Hodgkinson, 2011 BCSC 634, P.R.M. v. B.J.M., 2012 BCSC 1795, and Catallo v. Catallo, 2015 BCSC 1276 are examples of cases where child support was continued in such circumstances on the basis that (1) s. 3(1) of the Guidelines presumes that the table amounts apply to children under the age of majority, and (2) a parent’s expenses to maintain a home continue despite the child’s absence for extended periods of time.

[26]       In Bockhold, Madam Justice Kirkpatrick of this Court said this about the latter point:

[30]     notwithstanding that Sean is living away from home, the divorce order contemplates that when he is at home, he will reside with both parents. The time Sean spends at each parent’s home will conceivably fluctuate. Nevertheless, Mrs. Bockhold maintains her home in the reasonable expectation that Sean will spend portions of his Christmas and summer holidays with her … In my opinion, it is reasonable that Mrs. Bockhold incurs some of the household expenses so as to allow Sean to live with her from time to time.

[27]       Ms. Steward was self-represented at the hearing before Mr. Justice Baird. None of this case law was put before the court, but Ms. Steward attempted to explain that she still had to keep a home for Kyle when he came home for weekends and holidays. The judge recognized that child support should be paid during holiday periods, such as the summer months, but appeared to place no importance on Ms. Steward’s need to maintain a home.

[28]       With respect to the presumption for the table amount of support for a child under the age of majority, s. 150(2) of the Family Law Act permits a court to order child support in an amount different from that required in the Guidelines if:

(a) the parties consent under section 219 [persons may consent to order being made] or have an agreement respecting child support, and

(b) the court is satisfied that reasonable arrangements have been made for the support of the child.

[29]       Although the amount of child support provided in the arbitration award was not made by consent, Mr. Raponi’s reasons indicate that it reflected offers from both parties that were “virtually identical and of almost the same dollar value”. There is nothing before us to suggest that the award did not provide for reasonable arrangements for the support of the children.

Call Our Top Rated Vancouver BC Child Support Lawyers Now toll free across BC at 1-877-602-9900. Our Vancouver BC Child Support Lawyers think your child deserves to be properly supported – Don’t you?

 

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