Hartley v. Del Pero, (2010) 487 A.R. 248 (CA)

• Judge: Slatter, Rowbotham and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 25, 2010
• Citations: (2010), 487 A.R. 248 (CA);2010 ABCA 182

Hartley v. Del Pero (2010), 487 A.R. 248 (CA);

      495 W.A.C. 248

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JN.059

Heather Lynn Hartley (respondent/applicant) v. Fred Del Pero (appellant/respondent)

(1003-0067-AC; 2010 ABCA 182)

Indexed As: Hartley v. Del Pero

Alberta Court of Appeal

Slatter, Rowbotham and Bielby, JJ.A.

June 8, 2010.

Summary:

At issue was the determination of the father's income for the purposes of retroactive and future child support under the Family Law Act for the parties' two children.

The Alberta Court of Queen's Bench, in a decision reported at [2010] A.R. Uned. 96; 2010 ABQB 109, fixed the father's income at $145,000 (subsequently adjusted by consent to $130,000). The father appealed. The mother sought solicitor and client costs of $27,528.18.

The Alberta Court of Queen's Bench, in a decision reported at 478 A.R. 329; 2010 ABQB 200, awarded the mother 50% of her costs as claimed ($13,764.09).

The Alberta Court of Appeal allowed the father's appeal, setting the father's income for child support purposes at $80,000 on an interim basis. The special costs award was set aside. The mother was entitled to taxable costs of that proceeding. The father was entitled to costs of the appeal.

Family Law - Topic 2230

Maintenance of wives and children - Interim relief - Practice - A mother sought retroactive and future child support under the Family Law Act - The parties disputed the father's level of income - The matter was scheduled to be heard in Special Chambers - The father requested leave to present viva voce evidence - The chambers judge denied leave - The matter proceeded as a Special Family Chambers Hearing - The chambers judge fixed the father's income at $145,000 - At issue on the father's appeal was the nature of the order - The mother asserted that the order was final because the Special Chambers application was, in effect, a substitute for a trial and because the order denying the right to call viva voce evidence conclusively denied the father the right to a full trial - The Alberta Court of Appeal held that the chambers judge's order was an interim order - It was not surprising that family law litigants, and some chambers judges, attempted to achieve finality in Special Chambers applications whenever that was possible and fair - However, where the record was permeated with credibility issues and disputed facts that was often simply not possible - A Special Chambers application should not be used as a substitute for a trial in those cases - The order denying leave to introduce viva voce evidence was not clear enough to mean that the father was being denied a trial - The Special Chambers application revealed many disputed issues of fact and credibility - It was an error of law to deny a litigant the right to a full trial in those circumstances - The court allowed the appeal, setting the father's income at $80,000 on an interim basis - See paragraphs 8 to 15.

Family Law - Topic 2230

Maintenance of wives and children - Interim relief - Practice - A mother sought retroactive and future child support under the Family Law Act - The parties disputed the father's level of income - The matter was scheduled to be heard in Special Chambers - The father requested leave to present viva voce evidence - The chambers judge denied leave - The matter proceeded as a Special Family Chambers Hearing - The chambers judge fixed the father's income at $145,000 - The Alberta Court of Appeal allowed the father's appeal, setting the father's income for child support purposes at $80,000 on an interim basis - Having ruled that the father's evidence was not credible, the chambers judge treated the application as a final adjudication, purporting to set retroactive and future child support on a precise and final basis - On the disputed record and absent viva voce evidence, it was impossible and unfair to make that ruling - Credibility issues could not be resolved on a paper record - Therefore, the court treated the order as an interim order - While the practical remedy for a questionable interim support order was usually to expedite the trial, here, the order warranted intervention - The chambers judge had overlooked the fact that he was making an interim order and made impermissible credibility findings - He had included gifts as income, might have misunderstood the significance of some accounting entries in the father's family company's financial statements, had imputed income where it was not warranted and appeared to have misapprehended some evidence - The father's business and personal financial affairs were extremely convoluted and poorly documented - A trial was necessary to resolve the evidentiary and credibility issues - See paragraphs 16 to 31.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See second Family Law - Topic 2230 ].

Practice - Topic 5300.5

Trials - General - Chambers proceedings - Circumstances where trial required - [See both Family Law - Topic 2230 ].

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What constitutes - [See first Family Law - Topic 2230 ].

Cases Noticed:

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 9].

Lapp v. Lapp (2008), 425 A.R. 232; 418 W.A.C. 232; 51 R.F.L.(6th) 11; 93 Alta. L.R.(4th) 1; 2008 ABCA 15, refd to. [para. 9].

Tedham v. Tedham (2003), 188 B.C.A.C. 297; 308 W.A.C. 297; 20 B.C.L.R.(4th) 56; 2003 BCCA 600, refd to. [para. 9].

Peterson v. Ardiel, [2007] A.R. Uned. 347; 39 R.F.L.(6th) 41; 2007 ABCA 218, refd to. [para. 13].

Barter v. Barter (1996), 42 Alta. L.R.(3d) 221 (C.A.), refd to. [para. 16].

Walker v. Walker (2001), 281 A.R. 138; 248 W.A.C. 138; 2001 ABCA 106, refd to. [para. 16].

Phillips v. Phillips, [2005] A.R. Uned. 24; 2005 ABCA 44, refd to. [para. 16].

Bak v. Dobell (2007), 224 O.A.C. 10; 86 O.R.(3d) 196; 2007 ONCA 304, 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. 27].

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, refd to. [para. 27].

Counsel:

D.A. Yungwirth, Q.C., for the respondent;

C.M. Klassen, for the appellant.

This appeal was heard on May 25, 2010, by Slatter, Rowbotham and Bielby, JJ.A., of the Alberta Court of Appeal. On June 8, 2010, the court delivered the following memorandum of judgment.