Kowalewich v. Kowalewich, 2001 BCCA 450

• Jurisdiction: British Columbia
• Judge: Lambert, Donald and Huddart, JJ.A.
• Neutral Citation: 2001 BCCA 450
• Citation: 2001 BCCA 450,(2001), 155 B.C.A.C. 143 (CA),[2001] 9 WWR 626,92 BCLR (3d) 38,19 RFL (5th) 330,155 BCAC 143,[2001] BCJ No 1406 (QL),254 WAC 143,[2001] B.C.J. No 1406 (QL),254 W.A.C. 143,155 B.C.A.C. 143,(2001), 155 BCAC 143 (CA)
• Date: 06 July 2001
• Court: Court of Appeal (British Columbia)

Kowalewich v. Kowalewich (2001), 155 B.C.A.C. 143 (CA);

    254 W.A.C. 143

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. AU.012

Connie Diane Kowalewich (petitioner/respondent) v. Robert Michael Andrew Kowalewich (respondent/appellant)

(V03504; 2001 BCCA 450)

Indexed As: Kowalewich v. Kowalewich

British Columbia Court of Appeal

Lambert, Donald and Huddart, JJ.A.

July 6, 2001.

Summary:

Following separation and an order under s. 43 of the Family Relations Act, the husband sought an "in specie" division of the family assets. The trial judge, in a decision reported at [1997] B.C.T.C. Uned. 894, awarded the wife the family home, its contents, her RRSP and the car in her possession. He awarded to the husband the shares in the couple's two hold­ing companies, his RRSP and the car in his possession. He ordered the husband to trans­fer funds from his RRSP to the wife's, in order to equalize the two values and ordered the husband to pay com­pensation to the wife respecting the greater value being awarded to him. Also, the hus­band was ordered to pay spousal support of $5,000/month and child support of $2,427/ month (including extraordinary expenses) under the Federal Child Support Guidelines. The husband appealed and applied for a stay pending appeal.

The British Columbia Court of Appeal, per Esson, J.A., in a decision reported in 97 B.C.A.C. 55; 157 W.A.C. 55, stayed execu­tion of the above orders. Pending appeal, he ordered the husband to pay $4,000/month child support plus private school fees.

The British Columbia Court of Appeal, in a decision reported in 108 B.C.A.C. 12; 176 W.A.C. 12, allowed the appeal in part, reducing the amount of the compensation award. The court ordered that the questions of spousal and child support be considered by a Supreme Court judge as on an original application based on the circumstances as they existed once the compensation order was paid or the couple's business sold. Until the support issues were resolved, the hus­band was to pay $4,000/month for spousal and child support plus the school fees. See also [1998] B.C.A.C. Uned. 158, and [1998] B.C.A.C. Uned. 176.

The British Columbia Supreme Court, in a decision reported at [1999] B.C.T.C. Uned. 306, acting on the Court of Appeal's recon­sideration order, fixed the husband's child support obligation at $3,633/month based on his Guidelines income of $300,000. The court set spousal support at $2,500/month. The husband was also obligated to pay 88.2 percent of extraordinary expenses. The husband appealed.

Meanwhile, the husband applied to vary the latest support orders, including abroga­tion of arrears and a stay of execution.

The British Columbia Supreme Court dismissed both applications.

The British Columbia Court of Appeal, in the following decision, allowed the husband's appeal in part.

Editor's Note: See also [2001] B.C.A.C. Uned. 89 and [2001] B.C.A.C. Uned. 90.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - A hus­band/father operated an incorporated small business - The British Columbia Court of Appeal discussed the use of the value of personal services to determine a spouse's income, rather than the approach based on corpor­ate income - The court held that in light of the corporate structure the husband put in place for his business, the corporate income method was the fairest way of determining what money was available to the husband for the payment of child sup­port - See paragraphs 37 to 50.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - The Federal Child Support Guidelines allowed a court to include all of the pre-tax income of a corporation for the most recent tax year in a spouse's annual income - The British Columbia Court of Appeal discussed the determination of the pre-tax income of a husband's companies - The court held that monies needed to maintain the value of the business as a viable con­cern should not be included in determining annual income - A trial judge must have regard to the evi­dence of legitimate busi­ness needs in determining what portion of pre-tax cor­porate income to include in annual income for Guidelines purposes - See paragraphs 51 to 65.

Cases Noticed:

Elensky v. Elenskaya (1993), 50 R.F.L.(3d) 231 (B.C.C.A.), refd to. [para. 3].

L.S. v. E.P., [1997] B.C.T.C. Uned. D93; 32 R.F.L.(4th) 75 (S.C.), disagreed with [para. 39].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200; 59 B.C.L.R.(3d) 395 (C.A.), refd to. [para. 42].

Baum v. Baum (1999), 27 B.C.T.C. 219; 182 D.L.R.(4th) 715 (S.C.), refd to. [para. 43].

Hollenbach v. Hollenbach (2000), 144 B.C.A.C. 193; 236 W.A.C. 193 (C.A.), refd to. [para. 58].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 15, sect. 16, sect. 17, sect. 18, sect. 19, sect. 20, sect. 21 [para. 35].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Counsel:

B. Bulmer, for the appellant;

M. Ray, for the respondent.

This appeal was heard before Lambert, Donald and Huddart, JJ.A., of the British Columbia Court of Appeal, at Victoria, British Columbia, on June 4 and 5, 2001. The decision of the court was delivered at Vancouver, British Columbia, on July 6, 2001, by Huddart, J.A.