Beninger v. Beninger

Parties

Amounts and remedies

• Defendant 2008 Guideline Income (court Finding): CAD 416,400
• Defendant 2008 Alternative Base Income (excluding Bonus): CAD 366,400
• Performance Bonus Included in 2008 Calculation: CAD 50,000
• Child Support Monthly Ordered: CAD 3,380
• Child Support Annual Equivalent: CAD 40,560
• Spousal Support Monthly Ordered: CAD 10,000
• Credit for Overpayment of Extraordinary Expenses: CAD 1,126.3
• Payment to Plaintiff in Satisfaction of Outstanding Extraordinary Expenses: CAD 410.97

Party arguments

Applicant

The plaintiff sought full production under Rule 60D and further cross-examination, an increase in child and spousal support, enforcement of payment of extraordinary expenses, and continuation of monthly reporting; she alleged the defendant understated income and improperly deducted business expenses and therefore required source documents to verify income.

Respondent

The defendant sought to end the intrusive monthly reporting and to obtain a credit for alleged overpayment of extraordinary expenses; he maintained his 2008 income is $416,400 after legitimate business deductions, provided tax returns and bank records, asserted he has not hidden income since 2006, and opposed further Rule 60D production as unnecessary and beyond its scope.

Legal principles

1. 01

   Rules of Court, Rule 60D

   Rule 60D governs the financial disclosure required for cross-examination on Form 89 and does not require full Rule 26 style production

2. 02

   Rules of Court, Rule 26

   General discovery/document production at commencement of action is governed by Rule 26, distinct from Rule 60D

3. 03

   Federal Child Support Guidelines

   Child Support must be calculated under the Federal Child Support Guidelines based on actual income for the year

4. 04

   Divorce Act s.17; Spousal Support Advisory Guidelines

   Spousal support determinations are guided by s.17 of the Divorce Act and the Spousal Support Advisory Guidelines but require judicial discretion, especially for incomes above $350,000

5. 05

   Court of Appeal reasons, 2007 BCCA 619

   Variation of support requires a material change in circumstances and is subject to appellate guidance permitting further variation based on actual financial disclosure

Court disposition

Applications partially allowed and partially dismissed: child support increased; spousal support increased; monthly reporting rescinded; further Rule 60D production and further cross-examination dismissed; orders made for payment of extraordinary expenses and credits; costs reserved as each party bears own costs.

• Child support for Kelsey Beninger set at $3,380 per month based on Guideline income of $416,400, payable from January 1, 2008 (by consent).
• Kelsey to submit medical claims to UBC plan first; if not covered Mrs. Beninger to provide receipts and UBC response; defendant to claim remainder from Blue Cross and pay any balance; defendant responsible for amounts not covered by either plan (by consent).
• Defendant to pay medical expenses incurred by Kelsey in relation to travel in 2007 (ordered $531 in reasons).
• Defendant to pay his proportionate share of Kelsey's swim team expenses as set out in Bruce J.'s order of August 17, 2007, up to and including January 15, 2008 (by consent).
• Defendant entitled to a credit of $1,126.30 in relation to an overpayment of extraordinary expenses based on parties' calculations.
• Defendant to pay plaintiff $410.97 in full satisfaction of outstanding extraordinary expense shares for 2006-2008 (medical travel 2007, swim team, educational items), taking into account the credit and summer tuition treatment.
• Paragraph 4 of the order of Goepel J. dated June 26, 2003, and paragraph 3 of the order of Cole J. dated June 2, 2004, rescinded; defendant no longer required to provide monthly reports of income, expenses and supporting documentation.
• Defendant to notify plaintiff within 14 days of any significant change in his income (by consent).
• Plaintiff's application for further production under Rule 60D and further cross-examination of the defendant is dismissed.
• Defendant to pay plaintiff spousal support of $10,000 per month commencing January 1, 2008, with any retroactive amount to be paid by October 31, 2008.
• Each party shall bear his or her own costs.
• Court seized of further applications if the presiding judge is reasonably available.