McNeil v. McNeil, (2015) 367 B.C.A.C. 196 (CA)

Judge:Lowry, D. Smith and Harris, JJ.A.
Court:Court of Appeal of British Columbia
Case Date:February 16, 2015
Jurisdiction:British Columbia
Citations:(2015), 367 B.C.A.C. 196 (CA);2015 BCCA 80
 
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McNeil v. McNeil (2015), 367 B.C.A.C. 196 (CA);

    631 W.A.C. 196

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Temp. Cite: [2015] B.C.A.C. TBEd. MR.016

Julie Diane McNeil (respondent/claimant) v. David Ross McNeil (appellant/respondent)

(CA041375; 2015 BCCA 80)

Indexed As: McNeil v. McNeil

British Columbia Court of Appeal

Lowry, D. Smith and Harris, JJ.A.

February 16, 2015.

Summary:

The parties married in 1986, separated in 1996 and divorced in 2000. There were four children of the marriage. The mother was awarded sole custody of the children and a lifetime restraining order against the husband. The father was not ordered to pay child support as he had no income at the time. In 2009, the father was ordered to pay monthly child support of $199 for the two younger children of the marriage. He was also ordered to undergo an independent medical examination (IME) to address his claim that he was unable to work. The child support obligation was suspended to give the father time to obtain the IME, which he failed to do. In 2011, the mother obtained an order imputing an income of $50,000 annually to the father and ordering him to pay child support of $750 per month, ongoing and retroactively to May 2009. The order was not appealed. In 2013, the father applied to vary the order, submitting a doctor's report (not an IME). The application was dismissed on the basis that the father had failed to establish a material change in circumstances since the 2011 order. The father appealed.

The British Columbia Court of Appeal dismissed the appeal. There was no error in the order dismissing the father's application. The production of the IME was foundational to the authenticity of the father's claim that he could not contribute to his children's support. Without the IME or a change in the 2009 order, the father's application to vary the 2011 order could not be determined.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation of - Jurisdiction - See paragraphs 13 to 27.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Changed circumstances - See paragraphs 13 to 27.

Family Law - Topic 4195

Divorce - Practice - Judgments and orders - Variation of - See paragraphs 13 to 27.

Cases Noticed:

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 15].

L.M.P. v. L.S. (2011), 424 N.R. 341; 2011 SCC 64, refd to. [para. 15].

Wong v. Wong (2006), 233 B.C.A.C. 186; 386 W.A.C. 186; 2006 BCCA 540, refd to. [para. 19].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 21].

Counsel:

K. Groves, for the appellant;

N. Harold, for the respondent.

This appeal was heard at Vancouver, B.C., on February 16, 2015, by Lowry, D. Smith and Harris, JJ.A., of the British Columbia Court of Appeal. On the same date, D. Smith, J.A., delivered the following oral reasons for judgment for the court.

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