McCabe v. McCabe

2013 BCCA 277 McCabe v. McCabe COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McCabe v. McCabe, 2013 BCCA 277 Date: 20130604 Docket: CA039565 Between: Louise Elizabeth McCabe Respondent (Plaintiff) And Kelly Ray McCabe Appellant (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman The Honourable Mr. Justice Hinkson On appeal from: Supreme Court of British Columbia, November 21, 2011 (McCabe v. McCabe, Kelowna Registry No. E52888) Oral Reasons for Judgment Appellant appearing In Person: K.R. McCabe Respondent appearing In Person: L.E. McCabe Place and Date of Hearing: Vancouver, British Columbia June 4, 2013 Place and Date of Judgment: Vancouver, British Columbia June 4, 2013 [1] GROBERMAN J.A.: This appeal arises out of an order of a chambers judge dealing with the child support to be paid by each of the parties in respect of their two youngest daughters, Miranda and Cassity. The chambers judge ordered Mr. McCabe to pay Ms. McCabe retroactive child support in the net amount of $6,675. She made no order for ongoing child support. Mr. McCabe appeals, arguing that the judge erred in her assessment of Ms. McCabe's income, and contending that it is unfair, in the circumstances of this case, for retroactive child support to be ordered against him. [2] The parties were divorced in 2001. They have had acrimonious relations in respect of support obligations, and have been in court on many occasions. In April 2009, the Supreme Court ordered that Ms. McCabe pay $176/month in respect of Miranda, who was then residing with Mr. McCabe. Cassity was, at that time, living on her own in Thailand, and it was held that neither party had support obligations in respect of her. [3] On July 31, 2009, Miranda ceased to live with her father, and began residing with her mother. That situation subsisted until June 30, 2010, when Miranda returned to her father's residence. [4] In the meantime, Cassity had returned to Canada, and enrolled part-time at a broadcasting school. While doing so, she resided with Mr. McCabe from September 2009 to at least March 2010. [5] In November 2011, Ms. McCabe applied for retroactive child support for the period from August 1, 2009 to June 30, 2010, the period during which Miranda resided with her. Mr. McCabe cross-applied for child support in respect of Miranda from July 1, 2010 onward, and also sought child support in respect of Cassity for the period from September 2009 to March 2010. [6] The judge found that Ms. McCabe's obligation to pay child support in respect of Miranda ceased at the end of July 2009, when Miranda left Mr. McCabe's residence and moved in with Ms. McCabe. She ordered Mr. McCabe to pay retroactive child support in respect of Miranda for the period from August 1, 2009 to June 30, 2010. The judge rejected Mr. McCabe's application for child support, holding that Ms. McCabe's income was insufficient to require her to pay support under the Child Support Guidelines. [7] Mr. McCabe appeals, arguing that the chambers judge erred in her assessment of the financial evidence. He contends that income should have been imputed to Ms. McCabe on the basis that it was unreasonable for her to operate a money-losing business. Further, he says that the judge should have scrutinized the financial evidence more closely and found both that Ms. McCabe under-reported her income and assets and exaggerated her business expenses. Finally, he says that it was unfair to require him to pay retroactive child support for a period during which each of the parties had a child of the marriage residing with them. [8] I am not persuaded to the appellant's position. The parties filed significant financial information in respect of their applications. The chambers judge found that from 2009 to the date of the application in late 2011, Ms. McCabe was self-employed, operating a laser hair removal business. The judge accepted that the business was not profitable, and that Ms. McCabe had a negative income throughout that period. [9] The material put before the chambers judge was not presented in an orderly fashion, and may well have been incomplete. In view of the relatively modest amounts in issue, the chambers judge, sensibly, did the best she could with the evidence. While there is some difficulty in establishing precisely how much additional documentation was before the chambers judge, it is evident that the sworn financial information that was in evidence supported her determination that Ms. McCabe had a negative income during the relevant period. The judge considered, but rejected the idea that income should be imputed to Ms. McCabe. She found that Ms. McCabe's efforts to generate income through self-employment were reasonable, though she warned that income was likely to be imputed to Ms. McCabe in the future if she did not either make a success of her business or abandon it to pursue more lucrative endeavours. [10] The judge found the expenses that Ms. McCabe attributed to her business to be reasonable, and found that no appreciable amount of the expenditures could be seen as conferring personal benefits on her. [11] The assessment of the evidence was a matter for the chambers judge. Mr. McCabe has not demonstrated that she either misapprehended the evidence or that she made palpable and overriding errors in reaching her conclusions. [12] Mr. McCabe also contends that it is unfair for him to be required to pay retroactive support for the period that Miranda resided with Ms. McCabe. He is particularly aggrieved because, during a large part of that period, Cassity resided with him. He contends that the parties agreed that, as each had one daughter residing with them, no support would be payable. [13] The evidence before the chambers judge did not support Mr. McCabe's contention. He provided no documentary evidence of an agreement between the parties. In contrast, Ms. McCabe placed contemporaneous correspondence before the court demonstrating that she repeatedly demanded that Mr. McCabe pay child support in respect of Miranda. Mr. McCabe provided no explanation for that correspondence, which appears entirely inconsistent with his contention that there was an agreement. [14] Ms. McCabe has explained the delay in seeking retroactive support, indicating that she was attempting to negotiate support with Mr. McCabe and avoid further litigation. The contemporaneous correspondence appears to support that explanation. [15] The judge's order for retroactive support was based on the parties' respective incomes at relevant dates, and on an apparent determination that the delay in bringing the application was not blameworthy. I am not persuaded that the order was in any sense unfair or otherwise improper. [16] I am unable detect any error in the judge's order. In the result, I would dismiss the appeal. [17] SAUNDERS J.A.: I agree. [18] HINKSON J.A.: I agree. [19] SAUNDERS J.A.: The appeal is dismissed. "The Honourable Mr. Justice Groberman"