Garard v. Garard, (1998) 111 B.C.A.C. 269 (CA)

• Judge: Prowse, Donald and Newbury, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 18, 1998
• Jurisdiction: British Columbia
• Citations: (1998), 111 B.C.A.C. 269 (CA)

Garard v. Garard (1998), 111 B.C.A.C. 269 (CA);

   181 W.A.C. 269

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. OC.008

Tracy Lee Garard (petitioner/appellant) v. Brian Douglas Garard (respondent/respondent)

(CA023609)

Indexed As: Garard v. Garard

British Columbia Court of Appeal

Prowse, Donald and Newbury, JJ.A.

September 9, 1998.

Summary:

A wife and mother of four applied to increase child support set several months previously by the court. Her former husband (not the children's father but in loco parentis) cross-moved to reduce the amount of maintenance. A Chambers judge allowed the husband's application and reduced the amount of maintenance. The wife appealed.

The British Columbia Court of Appeal allowed the appeal and restored the original support order.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - The British Columbia Court of Appeal noted that a husband could not deduct his own CPP and Employment Insurance payments for purposes of calculating his total income under the Federal Child Support Guidelines - See paragraph 8.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Changed circumstances - The British Columbia Court of Appeal held that a court faced with a variation application was not required to vary an order made under the previous legislative scheme merely by virtue of the amendments to the Divorce Act and the enactment of the Federal Child Support Guidelines - See paragraph 14.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Changed circumstances - The British Columbia Court of Appeal held that a Chambers judge erred in varying an order made before the enactment of the Federal Child Support Guidelines, when the order was reasonable in the circumstances when it was made and where the difference between the amount the husband would have been liable to pay under the old and new legislative regimes was very slight - Thus, there was no compelling reason to invoke s. 17(1) of the Divorce Act - The Chambers judge erred in proceeding to the issue of whether the amount of support according to the Guidelines should be departed from under s. 17(6.2) of the Act.

Cases Noticed:

Phillips v. Phillips, [1997] B.C.T.C. Uned. 497; 32 R.F.L.(4th) 218 (S.C.), refd to. [para. 8].

Wang v. Wang, [1998] 110 B.C.A.C. 302; 178 W.A.C. 302 (C.A.), refd to. [para. 14].

Kuntz v. Chow, [1998] 6 W.W.R. 171; 162 Sask.R. 139 (Q.B.), refd to. [para. 14].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(1) [para. 1]; sect. 17(4) [para. 1]; sect. 17(6.1) [para. 1]; sect. 17(6.2) [para. 11].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 14 [para. 1].

Counsel:

Jack Hittrich, for the appellant;

Brian Douglas Garard, in person.

This appeal was heard before Prowse, Donald and Newbury, JJ.A., of the British Columbia Court of Appeal at Vancouver, British Columbia on June 18, 1998. The decision of the court was delivered on Sep­tember 9, 1998 by Newbury, J.A.