Fleury v. Fleury,

• Judge: Hart,Nation,O'Brien
• Neutral Citation: 2009 ABCA 43
• Citation: 2009 ABCA 43,(2009), 448 A.R. 92 (CA),448 AR 92,(2009), 448 AR 92 (CA),448 A.R. 92
• Date: 10 December 2008
• Court: Court of Appeal (Alberta)

Fleury v. Fleury (2009), 448 A.R. 92 (CA);

      447 W.A.C. 92

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. FE.053

Veronica Lee Fleury (appellant/respondent) v. Theoren Wallace Fleury (respondent/applicant)

(0801-0093-AC; 2009 ABCA 43)

Indexed As: Fleury v. Fleury

Alberta Court of Appeal

O'Brien, J.A., Hart and Nation, JJ.(ad hoc)

February 10, 2009.

Summary:

A father applied to vary the child support payable under a consent order on the ground that his income had decreased and that he should be paying child support in accordance with the Federal Child Support Guidelines. A chambers judge allowed the application and substantially reduced the quantum of child support retroactive to January 1, 2005. The mother appealed.

The Alberta Court of Appeal allowed the appeal in part. The court determined the father's guideline income and held that the variation in child support payments should not precede the father's notice of the application (June 1, 2007).

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A father applied to vary the child support payable under a consent order on the ground that his income had decreased and that he should be paying child support in accordance with the Federal Child Support Guidelines - A chambers judge allowed the application and substantially reduced the quantum of child support retroactive to January 1, 2005 - The chambers judge held that, although the formal notice was in 2007, the father had earlier indicated in 2004, when he retired as a professional hockey player, that he wanted to address the issue of child support - The Alberta Court of Appeal held that the variation should not have been retroactive - The father's notice of motion itself sought variance of the child support "commencing June 1, 2007" - While the court had the power to amend the document, it was not persuaded that it would be fair to do so in this case - The mother had no reason to believe that she faced an award against her for overpayment of child support until after the application was in progress - Prior to that time, she was entitled to accept the support payments as being made pursuant to an agreement and confirming court orders - The child support payments were not paid under protest or with any warning that the father intended to seek a retroactive adjustment - Nor did the father make disclosure of his tax returns or other financial information prior to the application - See paragraphs 28 to 33.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A father applied to vary the child support payable under a consent order on the ground that his income had decreased and that he should be paying child support in accordance with the Federal Child Support Guidelines - In 2006, the father started a concrete business - By the beginning of 2008, he had loaned $830,000 to the company incorporated to carry on the business, but was neither an officer nor shareholder of that company - The shareholders were his present wife and brother - He was entitled to an annual salary of $60,000 - The father has not drawn salary nor received interest on the loan because he had not needed payment to this date and pending determination of whether the company would be financially successful so as to be in a position to make payment - The chambers judge imputed income at the annual rate of four percent on the father's "liquid capital" ($161,000) but did not consider the investment of $830,000 in the concrete company - The Alberta Court of Appeal held that it was not right to permit the father to divert capital on an interest free basis to a business owned by his wife and brother, and thereby lose the earnings that would otherwise be reasonably attributable to that amount of capital - The court imputed additional income to the father by including the amount of loan as part of the father's investment capital for 2008 - See paragraphs 34 to 38.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A father applied to vary the child support payable under a consent order on the ground that his income had decreased and that he should be paying child support in accordance with the Federal Child Support Guidelines - The chambers judge declined in the circumstances of this case to impute income on the basis of two life insurance policies owned by the father, including the accumulations derived from investments internal to these policies - The policies provided a withdrawal option permitting cash to be withdrawn from the accumulation fund - The father had not made any withdrawals to the date of the application - The mother appealed, arguing that the chambers judge erred in failing to attribute income by reason of the annual accumulations within the policies - The Alberta Court of Appeal dismissed the appeal - While the court might have exercised its discretion differently than the chambers judge, it could not say that the chambers judge was clearly wrong in not imputing income from this source - She was attempting to balance a number of factors, including the overall amount of income to be imputed to the father - The court was not persuaded that appellate interference was warranted - See paragraphs 39 to 44.

Cases Noticed:

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. 25].

Bak v. Dobell (2007), 224 O.A.C. 10; 281 D.L.R.(4th) 494; 2007 ONCA 304, refd to. [para. 41].

Counsel:

W. E. Best, Q.C., for the appellant;

P.L. Daunais, Q.C., and D.L. Harms, for the respondent.

This appeal was heard on December 10, 2008, before O'Brien, J.A., Hart and Nation, JJ.(ad hoc), of the Alberta Court of Appeal, who filed the following memorandum of judgment on February 10, 2009.