Gonabady-Namadon v. Mohammadzadeh

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Newbury, Bauman and Neilson, JJ.A.
• Citation: (2009), 277 B.C.A.C. 48 (CA),2009 BCCA 448
• Date: 21 April 2009

Gonabady-Namadon v. Mohammadzadeh (2009), 277 B.C.A.C. 48 (CA);

    469 W.A.C. 48

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. OC.021

Mojdeh Gonabady-Namadon, also known as Mojdeh Gonabady, also known as Mojdeh Gonabaday Namadon (appellant/plaintiff) v. Hossein Mohammadzadeh, also known as Hossein Mohammad Zadeh, also known as Hossein Mohammed-Zadeh (respondent/defendant)

(CA036179; 2009 BCCA 448)

Indexed As: Gonabady-Namadon v. Mohammadzadeh

British Columbia Court of Appeal

Newbury, Bauman and Neilson, JJ.A.

October 20, 2009.

Summary:

The parties met in Iran and married there in 1993. The husband started a successful business. The wife obtained a medical degree. They had two children. They moved to Canada. In July 2006, the parties separated. The husband returned to Iran. The wife commenced matrimonial proceedings.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 317, imputed an income of $250,000 annually to the husband for the purpose of calculating child suppport and dismissed the wife's claim for spousal support. In a decision reported at [2008] B.C.T.C. Uned. 381, the court ordered the husband to pay child support based on the imputed income of $3,281 per month. In a decision reported at [2008] B.C.T.C. Uned. C60, the court awarded the wife 50% of special costs due to the husband's failure to provide a complete disclosure of his assets. The wife appealed.

The British Columbia Court of Appeal allowed the appeal. The court imputed a gross income of $350,000 to the husband. Child support payable on that income was $4,501 monthly. The wife was entitled to spousal support of $2,300 monthly for six years. The court declined to vary the order for special costs.

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Income tax - [See Family Law - Topic 4045.5 ].

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Financial consequences of child care and household responsibilities - The parties met in Iran and married there in 1993 - The husband started a successful business - The wife obtained a medical degree - They had two children - They moved to Canada - In 2004, the wife commenced a two-year medical residency program - In 2005, the wife, her brother and another doctor formed a company (Ramona) - In July 2006, the parties separated - Ramona failed - The husband returned to Iran - The wife commenced matrimonial proceedings - The trial judge dismissed the wife's claim for spousal support - The British Columbia Court of Appeal allowed the wife's appeal - The trial judge failed to fully address the relevance and allocation of family assets and debts - While the wife had received over $1,000,000 of family assets, most of those funds were directed to family expenses and discharging Ramona's debts - Ramona was a family asset - The allocation of family debt entirely to the wife constituted an economic hardship - The trial judge also failed to value and allocate the husband's business in Iran - Her inability to do so was linked to the husband's non-disclosure - However, the husband's non-disclosure could not be a basis for avoiding his obligation for spousal support - Finally, child care responsibilities had an impact on the wife's career advancement and options - The wife was entitled to spousal support at the low end of the range ($2,300 monthly) for six years - The wife's professional income and future prospects did not merit long-term support at the high end of the range - See paragraphs 45 to 61.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of income or potential income of claimant - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties met in Iran and married there in 1993 - The husband started a successful business - The wife obtained a medical degree - They had two children - They moved to Canada - In July 2006, the parties separated - The husband returned to Iran - The wife commenced matrimonial proceedings - The trial judge awarded child support payable to the wife of $3,281 per month based on an annual income of $250,000 imputed to the husband - The wife appealed, asserting that the trial judge erred in failing to gross up the husband's income - The British Columbia Court of Appeal allowed the appeal - When a non-resident payor's tax rate was significantly different from Canadian tax rates, the usual practice under s. 19(1)(c) and s. 20 of the Federal Child Support Guidelines was to convert the payor's gross foreign income to Canadian dollars, then look to the applicable foreign tax rate to calculate the payor's net income and then determine what gross income would be required to yield the same net income at Canadian tax rates - It might also be necessary to examine the "bundle of services" that both governments provided in exchange for tax dollars - The trial judge could not follow that process here as she had rejected the husband's testimony as to his foreign income and he had failed to produce his company's record of taxes remitted on his behalf - Thus, the trial judge's imputation of income failed to account adequately for tax liability and significantly underestimated the husband's gross income - Some increase was justified - The court imputed a gross income of $350,000 - This yielded a net income in the range of $215,000, which more fairly reflected the funds available to the husband - Child support payable on that income was $4,501 monthly - The court rejected the husband's request to make submissions under s. 4 of the Guidelines regarding reasons for departing from the Guidelines amount - Those steps should have been taken at trial - See paragraphs 33 to 44.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Where income over $150,000 - [See Family Law - Topic 4045.5 ].

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - The parties met in Iran and married there in 1993 - The husband started a successful business - The wife obtained a medical degree - They had two children - They moved to Canada - In July 2006, the parties separated - The husband returned to Iran - The wife commenced matrimonial proceedings - The trial judge awarded child support payable to the wife of $3,281 per month based on an annual income of $250,000 imputed to the husband, and dismissed the wife's claim for spousal support - The court awarded the wife 50% of special costs due to the husband's failure to provide a complete disclosure of his assets - The wife appealed - The British Columbia Court of Appeal allowed the appeal - The court increased the amount of income imputed to the husband and, correspondingly, increased monthly child support to $4,501 - The court held that the wife was entitled to spousal support of $2,300 monthly for six years - However, the court disagreed with the wife's assertion that her success in obtaining spousal support merited an increase in the award of special costs - The basis for the award of special costs was the husband's non-disclosure - The order for costs should not be varied - See paragraphs 62 and 63.

Family Law - Topic 4188

Divorce - Practice - Costs - Appeals from costs order - [See Family Law - Topic 4175 ].

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - [See Family Law - Topic 4175 ].

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See Family Law - Topic 4175 ].

Cases Noticed:

Cunha v. Cunha, [1994] B.C.T.C. Uned. C76; 99 B.C.L.R.(2d) 93 (S.C.), refd to. [para. 23].

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. 32].

Patrick v. Patrick, [1999] B.C.T.C. Uned. 384 (S.C.), refd to. [para. 36].

Ward v. Ward, [2001] B.C.T.C. 847; 19 R.F.L.(5th) 232; 2001 BCSC 847, refd to. [para. 36].

Watson v. Watson, [2006] B.C.T.C. Uned. 103; 2006 BCSC 256, refd to. [para. 36].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 48].

Hodgkinson v. Hodgkinson (2006), 224 B.C.A.C. 224; 370 W.A.C. 224; 53 B.C.L.R.(4th) 52; 2006 BCCA 158, refd to. [para. 48].

Tedham v. Tedham (2005), 217 B.C.A.C. 250; 358 W.A.C. 250; 47 B.C.L.R.(4th) 254; 2005 BCCA 502; 2005 BCCA 553, refd to. [para. 48].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 51].

Counsel:

H. Wiebach, for the appellant;

Z. Jenab, for the respondent.

This appeal was heard on April 21, 2009, at Vancouver, British Columbia, by Newbury, Bauman and Neilson, JJ.A., of the British Columbia Court of Appeal. On October 20, 2009, Neilson, J.A., delivered the following reasons for judgment for the court.