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Forrest v. Aerin, 2022 BCCA 184 (CanLII)

British Columbia

,

Canada

The original spousal support award was based on the children of the marriage staying with the father in Victoria. When the children were allowed to relocate with the mother to Toronto, the foundation of the previous spousal support order no longer existed. On the support application, the chambers judge erred by not determining spousal support award de novo using all the available evidence, including the marked changes in the parties’ financial situations.

Where the foundation of a previous spousal support order no longer exists, the Court should determine a new spousal support award de novo using all the available evidence.

The husband appealed a spousal support award. He submitted that the chambers judge erred by not determining the spousal support award de novo. After the end of the marriage, the parties were able to resolve, by way of mediation,  issues of property and debt division as well as child and spousal support from the date of separation up to and including June 30, 2018. The arbitrator made a decision on where the children were to reside, as well as child and spousal support. The wife wanted to relocate to Toronto with the parties’ twin girls.

The arbitrator found that the best interests of the children would be for them to remain together in Victoria with the Husband. Based on that finding, the arbitrator then made child and spousal support awards. The arbitrator set spousal support in an amount higher than recommended in the Spousal Support Advisory Guidelines [SSAG] due to the mother’s increased access costs.

The mother appealed the relocation decision. The chambers judge,  in reasons indexed at 2019 BCSC 1323, allowed the appeal and found that it was in the twins’ best interest that they be allowed to relocate to Toronto to live with the Wife. The parties were unable to come to an agreement. The wife then filed an application (the “Support Application”) seeking child support and a continuation of the arbitrator’s spousal support award. The chambers judge, in reasons are indexed at 2021 BCSC 1011, reduced the spousal support award by $833, which represented the reduction in the wife’s travel costs since the twins lived with her in Toronto.

The husband appealed the spousal support award. [x] J.A. held that the chambers judge erred in using the arbitrator’s award as a astarting point to determine spousal support. When the twins were allowed to relocate with the mother, the foundation for the original spousal support order was swept away.  The judge’s task was not to adjust the arbitrator’s award, but rather to undertake and determine spousal support de novo (para 73).

When making a de novo spousal support award, the court should use the best evidence upon which to base an award for spousal support. Not to consider the whole of the evidence would lead to an award that was not grounded in the reality of parties’ circumstances (para 85).

In this case, the Court of Appeal undertook a two-stage process. In the first stage, the Court had to step into the shoes of the arbitrator and determine the spousal support that would have been ordered if the arbitrator had allowed the twins to relocate to Toronto. At the second stage,  the Court reviewed that order as of the date of the Support Application and determine whether it must be reconsidered in light of the parties changed circumstances (para 87).

If the arbitrator had allowed the relocation of the twins to Toronto was mid- range monthly spousal support of $2,050 ending December 31, 2023. In addition, the Husband would have been called on to pay net child support of $2,251. These payments would have led to an almost even split in the parties’ net disposable income notwithstanding the Husband earned more than four times what the Wife earned (para 94)

In the period since, the wife has had considerable financial success while the husband’s income was reduced. The parties’ incomes are nearly identical, so the wife now enjoyed a significant greater share of the parties’ net disposible income. There is no basis to make a continuing award of spousal support. Spousal support was terminated on April 1, 2021 (para 96).

June 30, 2022
Forrest v. Aerin, 2022 BCCA 184 (CanLII)
Author: Katie Sharp