J.E.H. v. P.L.H.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Donald, Neilson and Harris, JJ.A.
• Citation: 2014 BCCA 310,(2014), 360 B.C.A.C. 15 (CA)
• Date: 23 May 2014
• Subject Matter: FAMILY LAW

J.E.H. v. P.L.H. (2014), 360 B.C.A.C. 15 (CA);

    617 W.A.C. 15

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. AU.013

J.E.H. (respondent/claimant) v. P.L.H. (appellant/respondent)

(CA040938; 2014 BCCA 310)

Indexed As: J.E.H. v. P.L.H.

British Columbia Court of Appeal

Donald, Neilson and Harris, JJ.A.

July 31, 2014.

Summary:

The parties were married in 2003, after living together for approximately 13 years. They had two children, born in 2005 and in 2007. The parties adopted traditional family roles. They separated in 2010. The husband (43 at the time of trial) sought an equal division of family assets and debts, while the wife (41 years old) sought a reapportionment of the family home, with no responsibility for the alleged family debts. The wife also sought spousal support of $54,000 per month, and child support of $29,000 per month. The husband's position was that his income in 2012 was $688,000. The wife contended that the husband's income, averaged over a three year period, was $2.26 million.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 752, reapportioned the family home 65% in favour of the wife. The judge found that the husband's income for support purposes was $1 million as of January 1, 2013. In the exercise of his discretion, he ordered spousal support at the midpoint of the "with child formula" of the Spousal Support Advisory Guidelines (SSAG), at $24,124 per month. Child support was based on the mid-range Table amount of the Federal Child Support Guidelines, at $12,814 per month. The husband applied to reopen the trial to address the application of the income "ceiling" of $350,000 under s. 11 of the SSAG.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 125, declined to reopen the trial. The husband appealed. He contended that: (1) the judge, in his determination of child support, failed to apply established principles as required by s. 4 of the Guidelines when a payor's income exceeded $150,000 per year; (2) the judge, in his determination of spousal support, failed to consider s. 11 of the SSAG, and the reduction under s. 12.6 of the SSAG for the reapportionment of property; and the judge erred in principle in reapportioning the family assets.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - See paragraphs 66 to 73.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - See paragraphs 67 to 73.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Considerations - Financial consequences of child care and household responsibilities - See paragraphs 52 to 57.

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Considerations - Leaving labour market for family responsibilities - See paragraphs 52 to 57.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance and awards - Support guidelines (incl. non-divorce cases) - See paragraphs 37 to 65.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - To spouse - Considerations - See paragraphs 37 to 65.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Effect of division of matrimonial property - See paragraphs 60 to 65.

Family Law - Topic 4040

Divorce - Corollary relief - Maintenance and awards - Evidence and proof - See paragraphs 37 to 42.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where income over $150,000 - See paragraphs 23 to 36.

Family Law - Topic 4045.17

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Evidence and proof - See paragraphs 23 to 36.

Cases Noticed:

R. v. R. (2002), 159 O.A.C. 46; 58 O.R.(3d) 656 (C.A.), refd to. [para. 23].

S.R.M. v. I.A.M. (2002), 162 B.C.A.C. 285; 264 W.A.C. 285; 2002 BCCA 46, refd to. [para. 24].

Macdonald v. Macdonald - see S.R.M. v. I.A.M.

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) (2010), 294 B.C.A.C. 70; 498 W.A.C. 70; 2010 BCCA 439, refd to. [para. 27].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 27].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 27].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 1 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, refd to. [para. 27].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 28].

Metzner v. Metzner (2000), 141 B.C.A.C. 84; 231 W.A.C. 84; 2000 BCCA 474, refd to. [para. 28].

Hollenbach v. Hollenbach (2000), 144 B.C.A.C. 193; 236 W.A.C. 193; 2000 BCCA 620, refd to. [para. 29].

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. 43].

Hallgren v. Fry (2013), 332 B.C.A.C. 60; 569 W.A.C. 60; 2013 BCCA 15, refd to. [para. 43].

Loesch v. Walji (2008), 255 B.C.A.C. 264; 430 W.A.C. 264; 2008 BCCA 214, refd to. [para. 44].

J.K.S. v. H.G.S. (2008), 257 B.C.A.C. 16; 432 W.A.C. 16; 2008 BCCA 245, refd to. [para. 45].

Smith v. Smith - see J.K.S. v. H.G.S.

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. 52].

Toth v. Toth (1995), 64 B.C.A.C. 81; 105 W.A.C. 81; 13 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 69].

Tedham v. Tedham (2005), 217 B.C.A.C. 250; 358 W.A.C. 250; 2005 BCCA 502, refd to. [para. 69].

Chutter v. Chutter et al. (2008), 263 B.C.A.C. 109; 443 W.A.C. 109; 2008 BCCA 507, refd to. [para. 69].

Bodine-Shah v. Shah (2014), 355 B.C.A.C. 255; 607 W.A.C. 255; 2014 BCCA 191, refd to. [para. 71].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.2 [para. 50].

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 65(1) [para. 62].

Federal Child Support Guidelines, SOR/97-175, sect. 4 [para. 26]; sect. 11 [para. 2]; sect. 12 [para. 2].

Authors and Works Noticed:

Canada, Department of Justice, The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version (2010), generally [paras. 48, 61].

Counsel:

G.A. Lang, for the appellant;

J.S. Sheppard, for the respondent.

This appeal was heard at Vancouver, British Columbia, on May 23, 2014, before Donald, Neilson and Harris, JJ.A., of the British Columbia Court of Appeal. In reasons written by Harris, J.A., the Court delivered the following judgment, dated July 31, 2014.