K.D.M. v. J.D.M., (2016) 378 Nfld. & P.E.I.R. 180 (PEISC)

• Judge: Campbell, J.
• Case Date: April 18, 2016
• Jurisdiction: Prince Edward Island
• Citations: (2016), 378 Nfld. & P.E.I.R. 180 (PEISC)

K.D.M. v. J.D.M. (2016), 378 Nfld. & P.E.I.R. 180 (PEISC);

    1174 A.P.R. 180

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JN.018

K.M. (petitioner) v. J.M. (respondent)

(S1-1101/7810; 2016 PESC 21)

Indexed As: K.D.M. v. J.D.M.

Prince Edward Island Supreme Court

Campbell, J.

June 2, 2016.

Summary:

The Prince Edward Island Supreme Court, in a decision reported at 364 Nfld. & P.E.I.R. 311; 1136 A.P.R. 311, made an interim order under the Divorce Act for child support and spousal support. The payor father appealed on the grounds that the motions judge made legal errors: (a) in his calculation of annual income (i) by proceeding on the basis that the Federal Child Support Guidelines did not permit calculation based on current income, and (ii) by imputing income to him without a proper evidentiary basis; (b) by assessing spousal support without considering the factors prescribed by s. 15.2(4) of the Divorce Act; and (c) by delaying his decision for over six months and then basing the decision on out-of-date income information.

The Prince Edward Island Court of Appeal, in a decision reported at 371 Nfld. & P.E.I.R. 182; 156 A.P.R. 182, allowed the appeal regarding all the grounds of appeal. The statutory criteria for determining child support and spousal support were not followed or taken into account. The motion was set down for another hearing in the Supreme Court.

The Prince Edward Island Supreme Court, on an interim basis: determined the parties' current incomes upon which child support and s. 7 special expenses on a go forward basis was calculated; determined the parties' incomes since separation to determine the past level of child support due; and addressed the request for spousal support.

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 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. nondivorce cases) - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - The parties had a relatively short relationship consisting of four years of marriage preceded by three years' cohabitation - There were two children, in the day-to-day care of the petitioner mother - The petitioner moved for interim child support and spousal support - Both before and during the marriage, the petitioner worked as a hairdresser - From the time the children were two years of age, they were in full time day care or after-school care - The petitioner's current income was $25,000 - The respondent, a "high income earner" ($135,000 plus bonus of $2,300), submitted that the petitioner did not forgo any career opportunities or refrain from joining the workforce full-time because of the marriage - Child support had been assessed in accordance with the Child Support Guidelines - The Prince Edward Island Supreme Court held that, on an interim basis, the petitioner was entitled to some amount of spousal support for a relatively short transitional period, to assist with the economic hardship arising from the breakdown of the marriage - The respondent was facing "compelling financial circumstances ... which severely restrict his capacity to pay spousal support. That arises in part from his assumption of responsibility for payment of family debt in advance of any final division of assets and in the absence of any substantial contribution to those debts from the petitioner. Notwithstanding that, the petitioner has shown some need. Given all of those factors, I do not find the Divorce Mate calculations, which employ the SSAG [Spousal Support Advisory Guidelines] inputs, provide realistic results in this case." - In the result, the Court found that the sum of $1,000 per month for the first 12 months, and $500 per month for the next 12 months was appropriate - See paragraphs 57 to 68.

Counsel:

Pamela M. Stewart, for the petitioner;

Greg B. Collins, for the respondent.

This motion was heard at Charlottetown, P.E.I., on April 18, 2016, before Campbell, J., of the Prince Edward Island Supreme Court, who delivered the following reasons and judgment, dated June 2, 2016.