Shared parenting range used for calculation, but one parent had primary parenting
The British Columbia Court of Appeal has found it erroneous for a judge to calculate periodic spousal support using a shared parenting range after he already ordered primary parenting in favour of one of the parents.
In O.C. v. M.V.S.G., 2022 BCCA 140, the parties married in 1999 and separated in 2019. They had three teenage children. In 2020, the parties sought orders under the Divorce Act and B.C.’s Family Law Act in a summary trial meant to resolve all their outstanding family law matters.
In January 2021, the judge granted a divorce and awarded the respondent ex-wife primary parenting and monthly spousal support of $1,750 for an indefinite duration. He also issued orders for guardianship, child support, and a division of family property and family debt.
After the trial and before entry of a final order, the appellant ex-husband brought an application for reconsideration. He argued that the judge used an inappropriate DivorceMate calculation to assess spousal support, wrongly quantified his income for spousal support purposes, and failed to order an annual review of child and spousal support.
In April 2021, the judge dismissed the former husband’s application and ordered him to pay its costs. The ex-husband appealed, seeking to overturn the spousal support award and the latest costs order against him. Through a cross appeal, the ex-wife asked for a reconsideration of the order of equal division of family property and family debt if the appellate court decided to reduce the spousal support award.
The B.C. Court of Appeal allowed the appeal, partly allowed the cross appeal, and set aside the costs award against the former husband because it found that both parties should bear their own costs for the April 2021 application.
Regarding the ex-husband’s appeal, the appellate court reduced his monthly spousal support obligation to $720 effective Feb. 1, 2021, consistent with the correct range. The judge committed a palpable and overriding error when he assessed periodic spousal support with a DivorceMate calculation that assumed a shared parenting arrangement, even though he had ordered primary parenting in the ex-wife’s favour, the court ruled.
According to the appellate court, spousal support should fall at the high end of the correct range of the Spousal Support Advisory Guidelines, given the following factors:
As for the ex-wife’s cross appeal, the appellate court ordered the former husband to pay her $47,690 in retroactive support and compensation, which could be offset by the excess spousal support he had paid since Feb.1, 2021, and by costs he paid for the April 2021 hearing.
The appellate court accepted that the judge, by awarding higher‑end spousal support, partly intended to compensate the former wife for family funds that the ex-husband appropriated for his sole benefit after the separation and for the lack of retroactive child and spousal support. Since the property division had been implemented, the proper remedy would be to quantify those amounts and to order the ex-husband to compensate his former spouse, the court said.
Lastly, the appellate court found it manifestly unjust for the judge to order costs against the appellant for his attempt to correct that error before the entry of a final order, considering that both parties were asking for changes to the trial order and neither was substantially successful.
