Bourque v. Gerlach, 2006 BCCA 157

• Judge: Rowles, Ryan and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 24, 2005
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 157;(2006), 223 B.C.A.C. 230 (CA)

Bourque v. Gerlach (2006), 223 B.C.A.C. 230 (CA);

    369 W.A.C. 230

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. AP.006

Thomas Samuel Bourque (respondent/plaintiff) v. Sharon Marie Gerlach (appellant/defendant)

(CA031939; 2006 BCCA 157)

Indexed As: Bourque v. Gerlach

British Columbia Court of Appeal

Rowles, Ryan and Smith, JJ.A.

March 31, 2006.

Summary:

A 1997 court order required a mother to pay child support of $192 per month. Shortly after the order was made, the mother's employment was terminated. As of April 2004, child support arrears were $15,850. The mother applied under the Family Relations Act to vary the child support order and to reduce or cancel the arrears. The father brought a cross-application, seeking payment of the arrears, an order for lump sum child support and security for child support payments.

The British Columbia Supreme Court held that the mother's loss of employment was a material change in circumstance. However, the court determined that the mother's medical and psychiatric problems did not make her unable to work and it imputed an income of $12,000 per year to her for child support purposes. The court reduced the mother's support obligation to $99 per month and dismissed her application to reduce or cancel arrears. The mother was also ordered to pay $5,000 into trust as security for future child support payments. The mother appealed, arguing that the court erred in dismissing her application to reduce or cancel arrears and in imputing an income of $12,000 per year to her.

The British Columbia Court of Appeal dismissed the appeal as it related to the cancellation of the arrears of child support. The court allowed the appeal with respect to the variation of the child support order to the extent that it substituted a figure for the mother's income in the amount that she reported receiving in social assistance for 2003 ($3,852).

Family Law - Topic 2523

Maintenance of wives and children - Enforcement - Orders - Arrears of maintenance - A 1997 court order required a mother to pay child support of $192 per month - Shortly after the order was made, the mother's employment was terminated - As of April 2004, support arrears were $15,850 - The mother applied under the Family Relations Act to reduce or cancel the arrears - The chambers judge dismissed the application - The British Columbia Court of Appeal dismissed an appeal - There was evidence to support the chambers judge's finding that it would not be grossly unfair to refuse to cancel the arrears - The mother had received funds from a pension payout which she had used to purchase an interest in a Richmond property - Although the property had some revenue capacity, the mother did not include that fact in her financial disclosure material - She also had not made any child support payments under the 1997 order other than those garnisheed by the Family Maintenance Enforcement Program - Payment of the outstanding arrears would not deplete all of the monies coming to the mother from the sale of the Richmond property - See paragraphs 45 to 53.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A 1997 court order required a mother to pay child support of $192 per month - Shortly after the order was made, the mother's employment was terminated - The mother applied under the Family Relations Act to vary the support order - The chambers judge determined that the mother's medical and psychiatric problems did not make her unable to work - The chambers judge imputed an income of $12,000 per year to the mother and reduced her support obligation to $99 per month - The mother appealed - The British Columbia Court of Appeal held that the chambers judge's attribution of income to the mother on the basis that she could hold down employment was not supported by the evidence - The court substituted a figure for the mother's income in the amount that she reported receiving in social assistance for 2003 ($3,852) - See paragraphs 54 to 66.

Cases Noticed:

Thompson v. Dorn, [2000] B.C.T.C. Uned. 71; 2000 BCSC 265 (Master), refd to. [para. 28].

Bell v. Bell (1999), 128 B.C.A.C. 300; 208 W.A.C. 300; 1 R.F.L.(5th) 1; 1999 BCCA 497, refd to. [para. 29].

Wallace v. Wallace (2000), 133 B.C.A.C. 175; 217 W.A.C. 175; 2000 BCCA 81, refd to. [para. 29].

Arnold v. Power, [1995] B.C.T.C. Uned. D24; 13 B.C.L.R.(3d) 123 (S.C.), refd to. [para. 32].

Soca v. Soca, [2000] B.C.T.C. Uned. 69; 2000 BCSC 224, refd to. [para. 32].

Ward v. Ward (1998), 105 B.C.A.C. 175; 171 W.A.C. 175; 37 R.F.L.(4th) 163 (C.A.), refd to. [para. 33].

Longstaff v. Longstaff (1993), 30 B.C.A.C. 306; 49 W.A.C. 306; 86 B.C.L.R.(2d) 1; 49 R.F.L.(3d) 1 (C.A.), refd to. [para. 36].

Daniel v. Daniel (1991), 8 B.C.A.C. 186; 17 W.A.C. 186; 38 R.F.L.(3d) 70 (C.A.), refd to. [para. 40].

Earle v. Earle (1999), 3 B.C.T.C. 334 (S.C.), refd to. [para. 41].

Campbell v. Campbell (1993), 22 B.C.A.C. 53; 38 W.A.C. 53; 77 B.C.L.R.(2d) 52; 44 R.F.L.(3d) 229 (C.A.), refd to. [para. 41].

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. 52].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200; 166 D.L.R.(4th) 528; 44 R.F.L.(4th) 314 (C.A.), supplementary reasons [1999] B.C.A.C. Uned. 40; 44 R.F.L.(4th) 331; 1999 BCCA 188, refd to. [para. 63].

Llewellyn v. Llewellyn (2002), 165 B.C.A.C. 268; 270 W.A.C. 268; 26 R.F.L.(5th) 389; 2002 BCCA 182, refd to. [para. 63].

Counsel:

K.A. Bowman, for the appellant;

A. Rees-Thomas, for the respondent.

This appeal was heard on June 24, 2005, at Vancouver, British Columbia, before Rowles, Ryan and Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Rowles, J.A., on March 31, 2006.