Hamilton v. Brownsword

2025 BCSC 2085 Hamilton v. Brownsword IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hamilton v. Brownsword, 2025 BCSC 2085 Date: 20251023 Docket: E102072 Registry: Vancouver Between: Anne Hamilton Claimant And Andrew Edward Brownsword Respondent Before: The Honourable Madam Justice W.A. Baker Supplemental Reasons for Judgment Counsel for Claimant: F. Robin Counsel for Respondent: B. Ingram Place and Date of Hearing: Vancouver, B.C. October 6 and 21, 2025 Place and Date of Judgment: Vancouver, B.C. October 23, 2025 Introduction [1] On July 17, 2025 I issued reasons for judgment in this matter (2025 BCSC 1360), addressing the child and spousal support obligations of Mr. Brownsword, after the parties' child (M.B.) reached the age of 19. I do not intend to repeat any of the facts from my earlier decision. The parties have now provided me with submissions on the appropriate method of calculating spousal support, taking into account my decision in relation to child support. These reasons address the calculation of spousal support only, and all other matters are addressed in my earlier reasons. [2] In my earlier decision, I found that child support should be determined under s. 3(2)(b) of the Federal Child Support Guidelines [Guidelines]. I held that s. 3(2)(b) requires the court to consider the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [3] I declined to use an expenses approach to determining child support, as this would result in the child being deprived of support which takes into account the financial means of her father, a factor expressly referenced in s. 1(a) of the Guidelines. I found: [30] In the result, I agree that s. 3(2)(b) of the Guidelines is applicable, and find that an appropriate order for child support which is fair to all the parties, ensures that M.B. will continue to benefit from her father's means, and takes into account the disability benefits M.B. receives, is one in which an initial monthly child support figure is determined using the usual Guidelines approach, from which the monthly disability amount received by M.B. will be deducted. In other words, Mr. Brownsword's child support obligation with [sic] be the net amount of the usual Guidelines calculation based on his income, less the disability benefit received by M.B. [4] The parties do not seek any clarification from me in relation to my child support orders. However, Mr. Brownsword raises a concern regarding the impact of the child support calculation on the calculation of spousal support. [5] The parties entered into an agreement that addressed child and spousal support, which was defined in my prior reasons as the "2012 Order". With respect to spousal support, I held: [37] The 2012 Order provides for spousal support obligations to be reset each year in accordance with Mr. Brownsword's income and the SSAG at the low end of the range. Spousal support obligations are impacted by the payment of child support. As I have ordered an adjustment in Mr. Brownsword's child support obligations, the spousal support obligations of Mr. Brownsword to Ms. Hamilton must also be adjusted back to June 1, 2023. [38] In an article from March 2022 entitled "SSAG FAQS 2022: Your frequently (or occasionally) asked questions about the SSAG, and some 'answers'", Professor Rollie Thompson, QC, one of the drafters of the SSAG, addressed how disability benefits for a disabled child should be accounted for in the DivorceMate program, to produce a fair calculation of spousal support. He states that a child's disability income should not be treated as income for the recipient parent. Rather, he suggests the following methodology: The [disability benefit] received for the disabled adult child should be treated in DivorceMate as a "cash flow adjustment - increase NDI". Thus, the [disability benefit] will not be treated as part of the parent's income for spousal support purposes, but will affect their NDI, their net disposable income position. [39] I accept that the inclusion of M.B.'s disability benefit in Ms. Hamilton's net disposable income, as suggested by Prof. Rollie is the appropriate way to determine her spousal support benefit. In addition, the DivorceMate program should receive as an input for child support the actual amount to be paid by Mr. Brownsword, after deducting M.B.'s disability from the Guidelines child support amount. [6] It is my para. 39 that has caused some confusion in how to calculate spousal support. [7] Mr. Brownsword submits that in finding that s. 3(2)(b) of the Guidelines was applicable in the calculation of child support, it necessarily follows that the adult child version of the with child support formula under the Federal Spousal Support Advisory Guidelines ("SSAG") applies. He refers to section 8.10 of the SSAG, which describes when the adult child formula should be used: 8.10 A Hybrid Formula for Adult Children and Section 3(2)(b) After the release of the Draft Proposal, we added another formula to this family of formulas, another hybrid formula, this time for adult children whose child support is determined under section 3(2)(b) of the Federal Child Support Guidelines. In these cases of children who are the age of majority or over, the table-amount-plus-section-7-expenses approach is considered "inappropriate". Under the case law, these are usually cases where: 1.the adult child attends a post-secondary institution away from home; 2.the adult child makes a sizeable contribution to his or her own education expenses; or 3.there are other non-parental resources to defray education expenses, like scholarships or RESP's or grandparent monies. Under section 3(2)(b), an individual budget is usually prepared for the adult child and, after the child and other contributions are deducted, the remaining deficit is then apportioned between the parents, based upon their incomes or some other arrangement. These child support amounts will differ significantly from any amounts using the table and section 7 expenses, almost invariably lower. [8] The examples given include instances where regular child support is not paid, but the parents agree to share the costs of a child's post-secondary education which the child is not able to pay themselves. For instance, one example is given where the child's university costs are $20,000, the child can pay $5,000, and the parents share the remaining $15,000. [9] The adult child formula is also described as easing the transition between a with child support and without child support formula, as all children cease being children of the marriage. [10] I do not agree that the adult child formula is appropriate in the case before me. While I found that s. 3(2)(b) was appropriate to determine child support, I also found that child support would continue to be calculated using the Guidelines. The only deviation from the Guidelines calculation that I ordered, was a deduction from Mr. Brownsword's Guideline table support obligation in the amount of the disability benefit received by M.B. [11] This case is very different from the examples given in the adult child formula (s. 8.10) in the SSAG. In the case before me, M.B. is not going to university, and is not expected to ever live independently. This is not a case where the family is transitioning out of a child support scenario. It is very likely that M.B. will remain a child of the marriage throughout the lives of her parents. [12] In the 2012 Order, the parties agreed that Mr. Brownsword would pay child and spousal support. There is no end date to Mr. Brownsword's spousal support obligation. The reality is that Mr. Brownsword also will continue to pay child support indefinitely, unless there is some unexpected significant change to M.B. disabilities. [13] The adult child formula described in the SSAG is not appropriate in this case, where M.B. will continue to be wholly dependent on her mother and father throughout her life. This is not a case where an adult child is essentially independent, but requires contributions from their parents to pay for their schooling expenses. [14] Further, I do not accept the submission of Mr. Brownsword that the calculation of child support under s. 3(2)(b) of the Guidelines mandates the use of the adult child formula under SSAG. In the circumstances of this case, child support continues to be calculated under the Guidelines as it would be for a minor child, based on Mr. Brownsword's annual income. Child support is not based on the educational or other expenses of M.B. The only adjustment is a recognition that M.B. does receive some disability income that must be accounted for. [15] Before Mr. Brownsword brought this application, M.B. and Ms. Hamilton together received just under 50% of Mr. Brownsword's net disposable income each year. The calculation methodology advanced by Mr. Brownsword would result in a significant reduction of the household income for M.B. and Ms. Hamilton. Rather than receiving just under 50% of Mr. Brownsword's net disposable income, they would receive something in the range of 30%. As an example of the impact of this reduction, in 2022 Ms. Hamilton's spousal support would be reduced from approximately $15,000 to approximately $7,000. [16] The only change in the factual matrix for this family was the receipt of disability benefits for M.B. in the amount of approximately $1,500 each month. I do not agree that, in taking into account this new income source, the result should be a reduction in the household income of some $8,000 (using 2022 as an example). [17] I confirm my earlier reasons, where I held that, in the calculation of spousal support, the disability income received in relation to M.B. would be included as a cash flow adjustment to Ms. Hamilton's net disposal income, and Mr. Brownsword's child support payments would be included in the spousal support calculation in the amount actually paid (i.e. the guideline support amount, less the disability payment). [18] M.B. and Ms. Hamilton will continue to receive just under 50% of Mr. Brownsword's net disposable income. The difference will arise in the distribution of support. The calculation of support I have ordered will decrease the child support, but will increase the spousal support paid by Mr. Brownsword. There will be tax implications, as Mr. Brownsword will be able to deduct a higher amount of spousal support, and Ms. Hamilton will have to pay a higher amount of tax on the spousal support she receives. I find this result is consistent with the intention of the 2012 Order, and the reality of the financial dependency of both M.B. and Ms. Hamilton on Mr. Brownsword. [19] In her submissions, Ms. Hamilton provided DivorceMate calculations which are consistent with the orders I have made. I accept these calculations and order that for the years 2022, 2023 and 2024, the child and spousal support obligations of Mr. Brownsword are the following: Year Monthly child support Monthly spousal support 2022 $3,244 $15,106 2023 $2,151 $12,052 2024 $4,183 $18,041 "W.A. Baker J."