Buckingham v. Buckingham, 2013 ABQB 155

• Judge: Strekaf, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 18, 2012
• Citations: 2013 ABQB 155;(2013), 554 A.R. 256 (QB)

Buckingham v. Buckingham (2013), 554 A.R. 256 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.020

Thomas Scott Buckingham (applicant) v. Irene Kelly Buckingham (respondent)

(FL01 13905; 2013 ABQB 155)

Indexed As: Buckingham v. Buckingham

Alberta Court of Queen's Bench

Judicial District of Calgary

Strekaf, J.

March 13, 2013.

Summary:

Parents of a child born in 1989 separated in 1994. A 1996 interim support order required the father to pay $400 per month child support, which was approximately twice the amount he would have been required to pay if support was calculated under the Federal Child Support Guidelines which came into effect the next year. In 1999, the father suffered a debilitating injury in a motor vehicle accident, which rendered him unemployable. He ceased paying support. In December 2011, the father received a personal injury settlement of approximately $700,000, of which $20,000 per year was assigned to past lost income. As of September 2011, support arrears were almost $48,000. The father applied under s. 17(1)(a) of the Divorce Act to retroactively reduce his child support obligation to what he would have had to pay under the Guidelines based on his assigned income of $20,000 per year. The mother, relying on D.B.S. v. S.R.G. (S.C.C.), argued that the court had no jurisdiction to retroactively vary the support order where the child was no longer a "child of the marriage". The father argued that D.B.S. v. S.R.G. applied only to preclude an application to retroactively increase child support where the child was no longer a "child of the marriage" as of the date of the application.

The Alberta Court of Queen's Bench held that it had jurisdiction under s. 17(1)(a) to retroactively reduce the father's child support obligation after the child was no longer a "child of the marriage". Given the material change in circumstances (Guidelines coming into force and a 50% reduction in income after the 1999 injury), it was appropriate to retroactively reduce the child support arrears. The father was obligated to pay $400 per month until the date of his accident. From that date until the child turned 19, support was to be recalculated under the Guidelines on the basis of an annual income of $20,000.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A 1996 interim support order required the father to pay $400 per month child support, which was approximately twice the amount he would have been required to pay if support was calculated under the Federal Child Support Guidelines which came into effect the next year - In 1999, the father suffered a debilitating injury in a motor vehicle accident, which rendered him unemployable - He ceased paying support - In December 2011, the father received a personal injury settlement of $700,000, of which $20,000 per year was assigned to past lost income - As of September 2011, support arrears were almost $48,000 - The father applied under s. 17(1)(a) of the Divorce Act to retroactively reduce those arrears to what he would have paid under the Guidelines based on income of $20,000 per year - The mother, relying on D.B.S. v. S.R.G. (S.C.C.), argued that the court had no jurisdiction to retroactively vary the support order where the child was no longer a "child of the marriage" at the time of the application - The father argued that D.B.S. v. S.R.G. applied only to preclude an application to retroactively increase child support where the child was no longer a "child of the marriage" as of the date of the application - The Alberta Court of Queen's Bench held that it had jurisdiction under s. 17(1)(a) to retroactively reduce the father's arrears after the child was no longer a "child of the marriage" - The court stated that "the SCC did not intend to create a strict jurisdictional rule for variation orders under s. 17 of the Divorce Act. While courts might be jurisdictionally limited to granting 'child support orders' under s. 15.1(1) of the Divorce Act only while the child is a 'child of the marriage', the same rule should not apply to 'variation orders' for the following reasons: it does not accord with an ordinary interpretation of the statute; and in application, it will either create a framework that treats parents inequitably, or one that conflicts with the principles of child support as outlined in the DBS judgment" - Given the material change in circumstances (Guidelines coming into force and a 50% reduction in income after the 1999 injury), it was appropriate to retroactively reduce the child support arrears - The father was obligated to pay $400 per month until the date of his accident - The father had no financial ability to pay the full amount - From that date until the child turned 19, support was to be recalculated under the Guidelines on the basis of an annual income of $20,000 - See paragraphs 31 to 64.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - [See Family Law - Topic 4001.1 ].

Cases Noticed:

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, dist. [para. 1].

Haisman v. Haisman (1994), 157 A.R. 47; 77 W.A.C. 47; 116 D.L.R.(4th) 671 (C.A.), refd to. [para. 15].

Duffett v. Duffett (2010), 304 Nfld. & P.E.I.R. 37; 944 A.P.R. 37; 2010 NLTD(F) 16, refd to. [para. 18].

Millar v. Millar (2007), 292 Sask.R. 316; 2007 SKQB 25, disagreed with [para. 23].

Ross v. Welsh (2009), 347 Sask.R. 56; 2009 SKQB 438, agreed with [para. 26].

Brown v. Brown (2010), 353 N.B.R.(2d) 323; 910 A.P.R. 323; 2010 NBCA 5, agreed with [para. 27].

Peterson v. Farrer (2010), 360 N.B.R.(2d) 341; 930 A.P.R. 341, agreed with [para. 28].

Smith v. Helppi (2011), 306 N.S.R.(2d) 1; 968 A.P.R. 1; 2011 NSCA 65, refd to. [para. 29].

Henry v. Henry (2003), 344 A.R. 377; 2003 ABQB 717, affd. (2005), 357 A.R. 388; 334 W.A.C. 388; 2005 ABCA 5, refd to. [para. 34].

D.B.S. v. S.R.G. (2005), 361 A.R. 60; 339 W.A.C. 60; 2005 ABCA 2, refd to. [para. 36].

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19, refd to. [para. 37].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 42].

Fleury v. Fleury (2009), 448 A.R. 92; 447 W.A.C. 92; 2009 ABCA 43, refd to. [para. 56].

M.K. v. R.A.S., [2004] B.C.T.C. 1798; 140 A.C.W.S.(3d) 520; 2004 BCSC 1798, refd to. [para. 60].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2(1) [para. 7]; sect. 15.1(1) [para. 6]; sect. 15.1(3) [para. 44]; sect. 17(1)(a) [para. 8]; sect. 17(6.1) [para. 44].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2004), p. 44 [para. 37].

Counsel:

Farrah E. Kohorst, for the applicant;

Lindsay C. Ewens-Jones, for the respondent.

This application was heard on September 18, 2012, before Strekaf, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 13, 2013.