M.K. v. R.A.S.

M.K. v. R.A.S.

Only the portion of the structured settlement attributable to loss of earning capacity, together with CPP disability benefits, constitutes "income" under the Child Support Guidelines; damages awarded for non-pecuniary loss and cost of future care are personal compensation and are not Guideline income; the $30,000 loss-of-capacity figure should not be grossed up because the award was based on gross earnings; appellant's Guideline income fixed at $40,121 (30,000 + 10,121), child support restored at $350/month, lump-sum payments not income, and no automatic annual review tied to the annuity's 3% increase.

Citation
2004 BCSC 1798
Parties
Respondent/applicant: M.K.; Appellant/respondent: R.A.S.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 July 2004
Procedural Posture
Family Law Appeal Child Support Variation / Appeal and Cross Appeal; Oral Reasons (in Chambers) Judgment
Outcome
Appeal allowed in part and cross-appeal dismissed in part: trial judge's full imputation and gross-up set aside; Guideline income fixed at $40,121; child support restored at $350/month; lump-sum payments excluded from income; no annual review tied to 3% annuity increases; retroactivity issue rendered moot.
Legal Topics
Income Characterization, Structured Settlement, Imputation of Income, Child Support Guidelines Interpretation, Retroactivity, Extraordinary Childcare Expenses, Gross Up of Non Taxable Payments
Source Language
English
Family Law Child Support Personal Injury Tort Damages Tax Law Income Characterization Structured Settlement Imputation of Income +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

M.K.

Respondent/applicant

R.A.S.

Appellant/respondent

Procedural Posture

Family Law Appeal Child Support Variation / Appeal and Cross Appeal; Oral Reasons (in Chambers) Judgment

Legal Issues

  1. 1 Whether damages/structured settlement payments constitute "income" under the Child Support Guidelines
  2. 2 Whether the non-taxable annuity payments should be grossed up when calculating Guideline income
  3. 3 Whether lump-sum payments in the structured settlement are "income" for Guideline purposes

Ratio Decidendi

Only the portion of the structured settlement attributable to loss of earning capacity, together with CPP disability benefits, constitutes "income" under the Child Support Guidelines; damages awarded for non-pecuniary loss and cost of future care are personal compensation and are not Guideline income; the $30,000 loss-of-capacity figure should not be grossed up because the award was based on gross earnings; appellant's Guideline income fixed at $40,121 (30,000 + 10,121), child support restored at $350/month, lump-sum payments not income, and no automatic annual review tied to the annuity's 3% increase.

Court Disposition

Appeal allowed in part and cross-appeal dismissed in part: trial judge's full imputation and gross-up set aside; Guideline income fixed at $40,121; child support restored at $350/month; lump-sum payments excluded from income; no annual review tied to 3% annuity increases; retroactivity issue rendered moot.

Orders

  • Appellant's Guideline income fixed at $40,121 per annum
  • Appellant to continue paying child support of $350 per month