Vincent v. Vincent,

• Jurisdiction: British Columbia
• Judge: Huddart, Groberman and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Citation: (2012), 321 B.C.A.C. 219 (CA),2012 BCCA 186
• Date: 03 November 2011

Vincent v. Vincent (2012), 321 B.C.A.C. 219 (CA);

    547 W.A.C. 219

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MY.005

Shawn Peter Vincent (appellant/plaintiff) v. Kim Jenny Vincent (respondent/defendant)

(CA038724; 2012 BCCA 186)

Indexed As: Vincent v. Vincent

British Columbia Court of Appeal

Huddart, Groberman and Garson, JJ.A.

April 30, 2012.

Summary:

On June 18, 2009, the mother applied for a variation of a 1999 child support order to obtain retroactive child support for the years 2006 to 2009. The application was heard in December 2010. The case raised the issue of the calculation of the father's income pursuant to ss. 17 to 19 of the Federal Child Support Guidelines. The father was a "small businessman". The issue arose as a result of the father's "piecemeal, unorganized and incomplete disclosure of his financial affairs."

The British Columbia Supreme Court, with "brief unpublished oral reasons", allowed the application. The court ordered retroactive child support as follows: 2006: $11,977.32, based on income of $150,912; 2007: $106,560.91, based on income of $1,161,420; 2008: $34,610.40, based on income of $383,718; and 2009: $19,373.88, based on income of $237,499. The father appealed.

The British Columbia Court of Appeal allowed the appeal. The court replaced the chambers judge's order with an order to pay the amount that it said the evidence supported: $65,688.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4045.5].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The father was a small businessman whose "piecemeal, unorganized and incomplete disclosure of his financial affairs" gave rise, for retroactive child support purposes, to a calculation of his income pursuant to ss. 17 to 19 of the Federal Child Support Guidelines - The father's companies included 557571, Estate and Robannah - The chambers judge ordered him to pay retroactive child support for the years 2006 to 2009 as follows: 2006, $11,977.32, based on income of $150,912; 2007, $106,560.91, based on income of $1,161,420; 2008, $34,610.40, based on income of $383,718; and 2009, $19,373.88, based on income of $237,499 - The British Columbia Court of Appeal replaced the chambers judge's order with an order to pay the amount that it said the evidence supported: $65,688, based on the following incomes: 2006, $61,300; 2007, $402,300; 2008, $242,700; and 2009, $100,500 - The court: (1) included, under s. 19(1)(f), one-half of the management fees paid by Estate as income in 2006 and 2007; (2) did not include Robannah's pre-tax profits for 2006, which the father reinvested in Robannah as working capital; (3) upheld the chambers judge discretionary refusal to exclude some or all of the father's 2007 Line 150 income from the income available for child support pursuant to s. 16, after the father redirected to Robannah capital gains that resulted from the sale of a building belonging to 557571; (4) upheld the chambers judge's inclusion of Robannah's 2007 pre-tax profit; (5) did not include in the father's 2007 income the profit from the sale of the father's principal residence and refused to accede to the mother's request, made for the first time on appeal, to have an imputation made under s. 19(1)(h); (6) upheld the chambers judge's inclusion in the father's 2008 income of a capital dividend issued by 557571 and redirected to Robannah; and (7) reduced the portion of the profit the chambers judge determined to be available for child support in 2009 to 40% of Robannah's pre-tax income, where Robannah had an operating loss in 2008 - See paragraphs 1 to 136.

Cases Noticed:

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, folld. [para. 4].

Kowalewich v. Kowalewich, [2001] 9 W.W.R. 626; 155 B.C.A.C. 143; 254 W.A.C. 143; 2001 BCCA 450, refd to. [para. 40].

Plett v. Plett, [2009] B.C.T.C. Uned. 227; 2009 BCSC 227, refd to. [para. 40].

Hausmann v. Klukas (2009), 265 B.C.A.C. 219; 446 W.A.C. 219; 91 B.C.L.R.(4th) 201; 2009 BCCA 32, refd to. [para. 40].

Hodgkinson v. Hodgkinson, [2003] B.C.T.C. 1538; 44 R.F.L.(5th) 82; 2003 BCSC 1538, refd to. [para. 40].

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76; 66 O.R.(3d) 40; 38 R.F.L.(5th) 507 (C.A.), refd to. [para. 40].

Shields v. Shields, [2006] A.R. Uned. 149; 2006 ABQB 368, refd to. [para. 40].

Schick v. Schick (2008), 433 A.R. 242; 429 W.A.C. 242; 2008 ABCA 196, refd to. [para. 40].

J.M.D. v. R.M.J.D., [2011] B.C.T.C. Uned. 1295; 2011 BCSC 1295, refd to. [para. 40].

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. 42].

Nielsen v. Nielsen (2007), 249 B.C.A.C. 117; 414 W.A.C. 117; 2007 BCCA 604, refd to. [para. 42].

Caterini v. Zaccaria, [2010] O.T.C. Uned. 6473; 2010 ONSC 6473, refd to. [para. 50].

Colafranceschi v. Colafranceschi, [2005] O.T.C. Uned. 320; 2005 CanLII 10646 (S.C.), refd to. [para. 50].

Riel v. Holland (2003), 177 O.A.C. 162; 232 D.L.R.(4th) 264 (C.A.), refd to. [para. 50].

Orser v. Grant, [2000] O.T.C. Uned. 302 (Sup. Ct.), refd to. [para. 50].

Hollenbach v. Hollenbach (2000), 144 B.C.A.C. 193; 236 W.A.C. 193; 194 D.L.R.(4th) 151; 2000 BCCA 620, refd to. [para. 131].

Counsel:

K. Nordlinger, Q.C., for the appellant;

E. Chesterley, for the respondent.

This appeal was heard at Vancouver, B.C., on November 3, 2011, by Huddart, Groberman and Garson, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., on April 30, 2012, and the following reasons were filed:

Huddart, J.A. - see paragraphs 1 to 134;

Garson, J.A. - see paragraph 135;

Groberman, J.A. - see paragraph 136.