L.D.P. v. A.B.P.

L.D.P. v. A.B.P.

The court retroactively varied the child support order by fixing the defendant's Guidelines income at $51,500 (average annual income 1997–2001) yielding child support of $439/month and finding a $5,216 overpayment to be set off against spousal arrears; the defendant failed to meet the s.17(4.1) onus to vary or...

Source-derived case information.

Citation
2002 BCSC 1308
Parties
Plaintiff: L.D.P.; Defendant: A.B.P.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 September 2002
Procedural Posture
Family Law — Divorce and Support / Summary Trial (in Chambers)
Outcome
Plaintiff's claim for continuation of spousal maintenance granted; defendant's application to reduce or cancel spousal support denied; child support order varied retroactively; arrears not cancelled but adjusted and subject to repayment plan; multiple consent orders granted.
Legal Topics
Retroactive Variation, Interim Maintenance, Arrears and Set Off, Material Change of Circumstances, Guidelines Income Calculation, Guardianship, Name Restoration
Source Language
english
Family Law Divorce Act Child Support Spousal Support Enforcement Property Division Retroactive Variation Interim Maintenance +5 more

Source-derived case record

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Parties

L.D.P.

Plaintiff

A.B.P.

Defendant

Procedural Posture

Family Law — Divorce and Support / Summary Trial (in Chambers)

Legal Issues

  1. 1 Whether the August 1998 interim child support order can be varied retroactively under s.17 of the Divorce Act
  2. 2 Whether the October 1998 spousal support order should be reduced, cancelled or continued and whether arrears should be set off or cancelled
  3. 3 Whether the defendant has met the onus under s.17(4.1) to show a material change of circumstances

Ratio Decidendi

The court retroactively varied the child support order by fixing the defendant's Guidelines income at $51,500 (average annual income 1997–2001) yielding child support of $439/month and finding a $5,216 overpayment to be set off against spousal arrears; the defendant failed to meet the s.17(4.1) onus to vary or cancel the spousal support order, so spousal maintenance of $1,000/month on an indefinite basis was continued and arrears of $44,710.86 (subject to the set‑off) were ordered repayable at $250/month commencing October 1, 2002, with no cancellation of arrears and related consent orders made.

Court Disposition

Plaintiff's claim for continuation of spousal maintenance granted; defendant's application to reduce or cancel spousal support denied; child support order varied retroactively; arrears not cancelled but adjusted and subject to repayment plan; multiple consent orders granted.

Orders

  • Declaration under s.57 of the Family Relations Act that parties have no reasonable prospect of reconciliation (by consent)
  • Order of joint guardianship (by consent)