Lu v. Sun, (2005) 235 N.S.R.(2d) 353 (CA)

• Judge: Cromwell, Oland and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 03, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 235 N.S.R.(2d) 353 (CA);2005 NSCA 112

Lu v. Sun (2005), 235 N.S.R.(2d) 353 (CA);

    747 A.P.R. 353

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. AU.009

Xun Yun Sun (appellant) v. Ping Lu (respondent)

(CA 241061; 2005 NSCA 112)

Indexed As: Lu v. Sun

Nova Scotia Court of Appeal

Cromwell, Oland and Hamilton, JJ.A.

August 3, 2005.

Summary:

Spouses separated in 1992 and divorced in 1997. There was one child, about to enter university. The husband moved to the United States, remarried and had two children. In 1997, the husband consented to pay $550 per month child support and $1 per month spousal support (wife had need for support, but husband's income of about $40,000 precluded his paying support). The husband was obligated to inform his wife of any significant change in his financial situation. The wife, reluctant to go to court, finally did so in 2004 when the husband did not pay the $550. She sought varied child and spousal support. After learning that the husband failed to disclose that his income increased 2.5 times since 1997, the wife also sought retroactive child and spousal support.

The Nova Scotia Supreme Court, in a judgment reported [2004] N.S.R.(2d) Uned. 33, varied upwards ongoing spousal and child support and ordered the husband to pay his proportionate share of the cost of the daughter's university (Federal Child Support Guidelines, s. 7). The court also awarded retroactive child support (13 months) and spousal support (37 months). The husband appealed.

The Nova Scotia Court of Appeal allowed the appeal in part. The court held that the trial judge did not err in his award of ongoing spousal and child support or in awarding retroactive child support. The court affirmed the husband's obligation to pay his proportionate share of s. 7 expenses relating to university, but reduced the amount. Finally, the court set aside the award for retroactive spousal support. The trial judge erred in failing to factor in the wife's delay in seeking to vary spousal support and the husband's ability to pay given his substantially increased obligation respecting ongoing spousal and child support.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Spouses separated in 1992 and divorced in 1997 - Their only child was now entering university - The husband moved to the United States, remarried and had two children - In 1997, the husband consented to pay $550 per month child support and $1 per month spousal support (wife had need for support, but husband's income of about $40,000 precluded his paying support) - The husband agreed to inform his wife of any significant change in his financial situation - The wife, reluctant to go to court, finally did so in 2004 when the husband did not pay the $550 - She sought varied child and spousal support - After discovering the husband's failure to disclose that his income increased 2.5 times since 1997, the wife also sought retroactive child and spousal support - The trial judge increased ongoing spousal and child support and ordered the husband to pay his proportionate share of the cost of the daughter's university expenses (Federal Child Support Guidelines, s. 7) - The judge awarded retroactive child support (13 months) and spousal support (37 months) - The Nova Scotia Court of Appeal held that the trial judge did not err in increasing ongoing spousal and child support or in awarding retroactive child support - The court affirmed the husband's obligation to pay his proportionate share of s. 7 expenses relating to university, but reduced the amount - The award for retroactive spousal support was set aside - The judge erred in failing to consider the wife's delay in enforcing her rights and the husband's inability to pay given his substantially increased obligation to pay ongoing spousal and child support.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4001.1 ].

Cases Noticed:

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. 22].

Armaz v. van Erp, [2000] O.T.C. 297 (Sup. Ct.), refd to. [para. 28].

Conrad v. Rafuse (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46 (C.A.), refd to. [para. 48].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 50 R.F.L.(4th) 302 (C.A.), refd to. [para. 48].

D.B.S. v. S.R.G. (2005), 361 A.R. 60; 339 W.A.C. 60; 7 R.F.L.(6th) 373 (C.A.), refd to. [para. 48].

Park v. Thompson (2005), 197 O.A.C. 158 (C.A.), refd to. [para. 48].

Clarke v. Clarke (2000), 185 N.S.R.(2d) 53; 575 A.P.R. 53 (S.C.), dist. [para. 61].

Dorey v. Dorey (1998), 172 N.S.R.(2d) 75; 524 A.P.R. 75 (S.C.), dist. [para. 61].

Ohrt v. Ohrt (1995), 148 N.S.R.(2d) 60; 429 A.P.R. 60 (S.C.), dist. [para. 61].

McNulty v. McNulty (1989), 94 N.S.R.(2d) 387; 247 A.P.R. 387 (T.D.), dist. [para. 61].

MacKinnon v. MacKinnon (2005), 199 O.A.C. 353 (C.A.), refd to. [para. 73].

Horner v. Horner (2004), 191 O.A.C. 28; 72 O.R.(3d) 561 (C.A.), refd to. [para. 81].

Spiring v. Spiring (2002), 168 Man.R.(2d) 147 (Q.B. Fam. Div.), refd to. [para. 82].

MacDonald v. MacDonald (2001), 198 N.S.R.(2d) 216; 621 A.P.R. 216 (S.C.), refd to. [para. 87].

Adam v. Adam (1993), 89 Man.R.(2d) 275 (Q.B. Fam. Div.), refd to. [para. 87].

Wesemann v. Wesemann (1999), 13 B.C.T.C. 233 (S.C.), refd to. [para. 87].

Krislock v. Krislock (2003), 229 Sask.R. 187 (Q.B.), refd to. [para. 87].

Counsel:

Terrance G. Sheppard, for the appellant;

Lee W. Mitchell and Gary Jewett, for the respondent.

This appeal was heard on May 20, 2005, at Halifax, N.S., before Cromwell, Oland and Hamilton, JJ.A., of the Nova Scotia Court of Appeal.

On August 3, 2005, Hamilton, J.A., delivered the following judgment for the Court of Appeal.