Armstrong v. Armstrong, 2012 BCCA 166

• Judge: Frankel, D. Smith and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 08, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 166;(2012), 320 B.C.A.C. 94 (CA)

Armstrong v. Armstrong (2012), 320 B.C.A.C. 94 (CA);

    543 W.A.C. 94

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AP.023

Joanne Ayako Armstrong (respondent/claimant) v. Robert Jeremy Armstrong (appellant/respondent)

(CA038694; 2012 BCCA 166)

Indexed As: Armstrong v. Armstrong

British Columbia Court of Appeal

Frankel, D. Smith and Garson, JJ.A.

April 24, 2012.

Summary:

The wife commenced a divorce action. On a summary trial application brought by the wife, the trial judge made an order which made provisions for the division of family assets and included the following: a declaration imputing annual income to the husband of $100,000; retroactive and prospective monthly child support for the wife of $580 (calculated on a set-off approach based on the shared custody arrangement) pursuant to s. 3 of the Federal Child Support Guidelines; special or extraordinary expenses to be shared between the parties on a 59/41 split pursuant to s. 7 of the Guidelines; retroactive and prospective monthly spousal support for the wife of $1,680 (an amount at the top of the range provided for in the Spousal Support Advisory Guidelines) with a review provision in seven years; and a fine of $5,000 to be paid by the husband to the wife for non-disclosure of information pursuant to s. 92(1) of the Family Relations Act (FRA). The husband appealed.

The British Columbia Court of Appeal held that the trial judge erred in imputing income to the husband of $100,000. He also erred in law by adopting an approach based on the compensatory model of support that involved equalizing the net disposable income of the parties after the payment of child support. Those errors affected the quantum of child and spousal support awarded to the wife. The trial judge also erred in imposing a $5,000 fine on the husband pursuant to s. 92(1) of the FRA. The court allowed the appeal and set aside the orders for child and spousal support, and the fine pursuant to s. 92(1) of the FRA.

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - The British Columbia Court of Appeal held that the trial judge erred in fining the husband (Mr. Armstrong) $5,000 for non-disclosure pursuant to s. 92 of the Family Relations Act (FRA) for a fundamental reason related to procedural fairness - The court stated that "Section 92(1) provides a remedy for deliberate non-compliance with the disclosure requirements of the Rules of Court. It is a remedy for conduct that is in the nature of contempt. A party against whom such an order is being considered is entitled to notice of that application and an opportunity to provide an explanation for or correction of his or her non-compliance. In this case neither was provided. Ms. Armstrong never requested such an order in her summary trial application and the trial judge did not advise Mr. Armstrong that he was considering such an order or give him an opportunity to respond to that issue. It is also unclear to me with what disclosure requirements of the Rules of Court or the FRA that he failed to comply" - See paragraph 72.

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - The British Columbia Court of Appeal stated that "review orders play a very limited role and are restricted to situations where there is genuine uncertainty about the effect the breakdown of the marriage will have on the future economic circumstances of the parties. In circumstances where a review order is appropriate, it should specify the basis for the uncertainty and which aspects of the support order are to be reviewed" - See paragraph 71.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - General - [See Family Law - Topic 4021.4 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay - Potential to earn income and calculation of income - The wife commenced a divorce action - On a summary trial application brought by the wife, the trial judge made an order which included a declaration imputing annual income to the husband of $100,000, which informed the amount of child and spousal support he awarded to the wife - The husband appealed - The British Columbia Court of Appeal allowed the appeal - The trial judge erred in imputing income to the husband of $100,000 based on factual errors in finding that the husband had not complied with the disclosure requirements of the Rules of Court and the Family Relations Act in the calculation of his business and rental income, and in finding that the husband had deliberately misled the court - The trial judge also erred in law by adopting an approach based on the compensatory model of support that involved equalizing the net disposable income of the parties after the payment of child support - Those errors affected the quantum of child and spousal support awarded to the wife - See paragraphs 44 to 71.

Family Law - Topic 4045.2

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Financial disclosure - [See Family Law - Topic 970 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See Family Law - Topic 4021.4 ].

Family Law - Topic 4085

Divorce - Corollary relief - Interim maintenance - Evidence and proof (incl. disclosure) - [See Family Law - Topic 970 ].

Family Law - Topic 4085.3

Divorce - Corollary relief - Interim maintenance - Appeals - The wife commenced a divorce action - On a summary trial application brought by the wife, the trial judge made an order which made provisions for the division of family assets - The trial judge also imputed an annual income of $100,000 to the husband which informed the amount of child and spousal support he awarded to the wife - The husband appealed - The wife brought a preliminary application to have the husband's appeal dismissed for non-compliance with the orders for child and spousal support - The British Columbia Court of Appeal dismissed the wife's application, primarily because the arrears of support were secured in large part by the equalization payment owed by the wife to the husband - See paragraphs 24 to 26.

Family Law - Topic 4196

Divorce - Practice - Judgments and orders - Summary judgments and summary trials - The wife commenced a divorce action - On a summary trial application brought by the wife, the trial judge made an order which made provisions for the division of family assets - The trial judge also imputed an annual income of $100,000 to the husband which informed the amount of child and spousal support he awarded to the wife - The husband appealed - The husband argued that the summary trial procedure was inappropriate to determine this action because of conflicts in the evidence and the lack of cross-examination or pre-trial discovery procedures to resolve the conflicts - The British Columbia Court of Appeal held that as the trial judge had been urged by then-counsel for the parties to proceed in the manner he did, the husband should not now be permitted to resile from that position because the order under appeal turned out not to be to his liking - The court stated that "Accordingly, the appeal should focus on the substantive issues arising from the awards for child and spousal support, while not ignoring the difficulties that resulted from the procedure employed and the lack of pre-trial discovery procedures" - See paragraph 39.

Family Law - Topic 4196

Divorce - Practice - Judgments and orders - Summary judgments and summary trials - The wife commenced a divorce action - On a summary trial application brought by the wife, the trial judge made an order which made provisions for the division of family assets - The trial judge also imputed an annual income of $100,000 to the husband which informed the amount of child and spousal support he awarded to the wife - The husband appealed - The husband took issue with the matter proceeding by way of summary trial when no Statement of Defence or Response to Family Claim had been filed, as expressly required by both Rule 18A(1) of the former Rules of Court and Rule 11-3(2) of the Supreme Court Family Rules - The British Columbia Court of Appeal was not persuaded that the husband's failure to file a Statement of Defence precluded the trial judge from proceeding with the summary trial application - The court stated that "the summary trial application, filed before July 1, 2010, is governed by the former rules. Under the former R. 18A(1) a party may apply for summary trial in several situations, including: '(a) an action in which a defence has been filed', and '(c) a contested family law proceeding'. The latter situation must be distinguished from the former if it is to not be superfluous; it must be seen to add something not already covered by (a) - i.e., there must be some proceedings which are 'contested' even though a defence has not been filed. We were satisfied that a 'contested family law proceeding' could include a situation as occurred in this case, where an appearance has been filed, both parties argued the merits of the application, and the parties urged the trial judge to determine the matter in this summary fashion. ... we are not persuaded that the trial judge erred in determining the action by way of a summary trial" - See paragraphs 40 to 43.

Cases Noticed:

Orangeville Raceway Ltd. v. Wood Gundy Inc. et al. (1995), 59 B.C.A.C. 241; 98 W.A.C. 241; 6 B.C.L.R.(3d) 391 (C.A.), refd to. [para. 22].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 27].

Muirhead v. Muirhead (1995), 59 B.C.A.C. 144; 98 W.A.C. 144; 6 B.C.L.R.(3d) 229 (C.A.), refd to. [para. 27].

Tedham v. Tedham (2005), 217 B.C.A.C. 250; 358 W.A.C. 250; 20 R.F.L.(6th) 217; 2005 BCCA 502; 2005 BCCA 553, refd to. [para. 28].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 38].

Poursadeghian v. Hashemi-Dahaj (2010), 292 B.C.A.C. 239; 493 W.A.C. 239; 2010 BCCA 453, refd to. [para. 38].

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al., [2011] 2 S.C.R. 175; 416 N.R. 1; 306 B.C.A.C. 1; 516 W.A.C. 1; 2011 SCC 23, refd to. [para. 66].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 68].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 68].

Statutes Noticed:

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 92(1) [para. 46].

Rules of Court (B.C.), Supreme Court Family Rules, rule 18A(1) [para. 41].

Counsel:

B. Hardwick, for the appellant;

B. Churchill, for the respondent.

This appeal was heard on February 8, 2012, at Kelowna, B.C., before Frankel, D. Smith and Garson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by D. Smith, J.A., on April 24, 2012.