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Vancouver and Edmonton Family Law Blog

Don't Wait Too Long, Part II

There seems to be a spate of "retroactive child maintenance for adult children" cases coming out of the courts.  The seemingly immortal Hartshorne case is once more in the forefront, with the parties appearing before the  B.C. Court of Appeal and (hopefully) finally resolving all of the issues arising from their ill fated 1989 marriage agreement.  This case went up to the Supreme Court of Canada and then was sent back down to the Supreme Court of BC level to determine the issue of child support.  Orders were made which were then appealed again by Mr. Hartshorne to the B.C. Court of Appeal.  The interesting fact here is that Ms. Hartshorne, after years of having been buffeted from court to court, was trying to collect arrears of child maintenance for her eldest son.   She brought that claim on in 2007 when the child was 19 years old.   Mr. Hartshorne took the position that "the trial judge did not have jurisdiction to entertain the respondent’s application for retroactive and prospective support for the eldest child because the son was no longer a child of the marriage when the application was made in November 2007." (at paragraph 67).  The court decided, however, that the 2007 application for arrears was simply a resurrection of an earlier action, and because of this stated,  "I am not persuaded the trial judge lacked jurisdiction to hear the application for increased retroactive and prospective child support for the son even though he was over the age of majority at the time because the application was first made by the respondent when the son was still a child of the marriage." [at paragraph 70]  The moral is that you should at least start any application for arrears before your child stops being defined as such by the Act.  Unless the Hartshornes appeal.

To Skype or not to Skype?

There has recently been a flurry of cases referencing, examining or at least mentioning Skype in the context of access and mobility.  As is becoming increasingly known, Skype  is software which allows people to make voice and, by way of a webcam, video calls over the internet. Inexpensive video conferencing has been available to the public through internet based applications for years now, but it seems to only be within the past year that the courts have taken real notice.   It is a truism that video conferencing is not true personal contact.  It is, however, at a higher plane than email or telephone communication, in that it provides child and parent with another level information, a level which heretofore has only been available in a face to face meeting. In British Columbia, the majority of cases which reference video conferencing do so only as an option of communication proposed by the party seeking to move or as evidence of a party's willingness to facilitate access:  See Betz v. Joyce 2009 CarswellBC 2339 British Columbia Supreme Court, 2009 where at paragraph 57, the court acknowledges the willingness of the party to engage in Skype communications.

JCC Scheduling Problems

Here's an issue:  Rule 60E(6) of the Rules of Court (Rule 7-1(8) of the Family Rules which come into effect in a few days)  dictates that a Requisition and Notice of Judicial Case Conference and a copy of Parts 1, 2, 3, and 4 of a Form 89 (soon to be F8) Financial Statement must be served on a party at least 30 days before the date set for the JCC.  In the event that a  JCC is scheduled  for only  few days after service, the only recourse is to attend and complain at the very JCC that was improperly scheduled.  There should be a requirement to provide proof of service or delivery, as the case may be, at least three weeks before the conference, failing which it would be struck.

Early Retirement - What Happens to Spousal Support?

An interesting case out of the B.C. Supreme Court this year dealing with a party responsible for spousal support deciding to retire early. In Szczerbaniwicz v. Szczerbaniwicz, 2010 CarswellBC 759, 2010 B.C.S.C. 421, the Plaintiff and the Defendant separated in 2006 after a 31 year marriage. In 2007, the parties entered into a consent order setting out that the Defendant was to pay to the Plaintiff $3300.00 per month in interim spousal support. The Defendant was a Lieutenant Colonel with the Canadian Armed Forces and earned an income of approximately $118,000.00 a year. The Plaintiff's income earning abilities during the marriage had been hampered by the frequent moves required by the Defendant's military career. After separation, the Plaintiff began working as a receptionist and later as a processing technician at a hospital, earning approximately $31,000.00 a year. In 2009, at the age of 52, the Defendant decided to retire. He wished to pursue a PhD and took the position that, "... he had 30 years of service so his severance pay was maximized and any further work would not increase his pension significantly." (paragraph 19) Upon retirement, he received pension income of $4700.00 per month. The Plaintiff sought a permanent order for spousal. At issue was whether the Defendant's obligation to pay the Plaintiff maintenance would be lessened due to his unilateral decision.

Child Maintenance Claims: Can a Payor Claim Legal Fees as a Tax Deduction?

Interesting case out of the Tax Court this month: in Trignani v. Canada, [2010] T.C.J. No.141, the court determined that a man who had joint custody of his child but who was paying net maintenance to the children's mother, was entitled to write of those legal expenses he incurred to pursue his child support claims. In this case, the appellant, Mr. Trignani, was pursuing sole custody of his child, which the court determined to be a bona fide claim. After the parties' separation July 2000, they entered into an agreement in August 2000 providing for joint custody and for Mr. Trignani to pay maintenance. The parties filed against each other in spring 2001, each claiming sole custody and child maintenance. The Ontario Superior Court of Justice pronounced a consent order in April 2001 that the parties have equal time with the child (the mother's access to be supervised) and Mr. Trignani was to pay child support. Notwithstanding this order, for the next five years, Mr. Trignani had the child in his care for the majority of the time.

Dividing the Grape Juice

You like wine. Who doesn't? You've got a nice collection going, cellared under pristine conditions, perfectly cooled and humidified. And now you and your spouse are splitting up. Wither the wine? How do the courts deal with something that is equal parts collection and food? While meant to be drunk (clearly), bottles of sought-after wine can command remarkable prices. The values of those bottles can and do constantly shift based upon the providence of the wine (ie. how it has been stored) its age and popularity. How then can a court value a collection and divide it up? The British Columbia courts have taken more than one position on this issue. In Forzley v. Forzley, 1998 CanLII 5511 (BC S.C.), the court roughly estimated the value of the wine collection and reapportioned other assets to compensate for the parties' relative interests.

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