Briard v. Briard, (2010) 297 B.C.A.C. 5 (CA)

• Judge: Rowles, Tysoe and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 22, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 297 B.C.A.C. 5 (CA);2010 BCCA 431

Briard v. Briard (2010), 297 B.C.A.C. 5 (CA);

    504 W.A.C. 5

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. DE.017

Leeann Marie Briard (respondent/plaintiff) v. Joseph Jean Pierre Briard (appellant/defendant)

(CA037870; 2010 BCCA 431)

Indexed As: Briard v. Briard

British Columbia Court of Appeal

Rowles, Tysoe and Bennett, JJ.A.

September 24, 2010.

Summary:

The only live issue in these matrimonial proceedings were whether a divorced couple's daughter was a "child of the marriage" for purposes of the Divorce Act and the amount of any child support payable by the father. The daughter, who had Down Syndrome, was over the age of majority and under the mother's care, but received government assistance.

The British Columbia Supreme Court, in a decision reported [2010] B.C.T.C. Uned. 65, found that the daughter was a "child of the marriage" within the meaning of s. 2(1) of the Divorce Act. The father appealed.

The British Columbia Court of Appeal dismissed the appeal.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - Awards - To children and children defined - [See Family Law - Topic 4032 ].

Family Law - Topic 4032

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of assistance by the state - At issue was whether a divorced couple's daughter was a "child of the marriage" for purposes of the Divorce Act and quantum of support payable by the father - The daughter, who had Down Syndrome, was over the age of majority and under the mother's care - The father claimed that the daughter was no longer a "child of the marriage" because she was receiving the "necessaries of life" through her receipt of income assistance under the Assistance Act and had access to additional benefits under the Act and kindred legislation - The trial judge determined that the daughter was a "child of the marriage" and, applying s. 3(2)(b) of the Child Support Guidelines, ordered the father to pay $500 per month having regard to his income of $82,096 - The father appealed - The British Columbia Court of Appeal dismissed the appeal, there being no basis to interfere with the trial judge's order.

Cases Noticed:

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 11].

Lougheed v. Lougheed (2007), 245 B.C.A.C. 116; 405 W.A.C. 116; 2007 BCCA 396, refd to. [para. 18].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2(1) [para. 6].

Counsel:

M. Campbell, for the appellant;

D.R. Greig, for the respondent.

This appeal was heard in Vancouver, British Columbia, on September 22, 2010, before Rowles, Tysoe and Bennett, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered orally, for the court, by Rowles, J.A., on September 24, 2010.