Caillier v. Viray

Caillier v. Viray

Court found claimant established a material involuntary income decrease for 2016-2018, triggered a presumptive retroactive variation window but declined to limit relief strictly to the presumptive three‑year period; court varied child support beginning in 2016 using Federal Child Support Guidelines figures for each year, credited payments actually made, refused to cancel or materially reduce remaining arrears because claimant did not rebut presumption against rescission and failed adequate disclosure, and granted only partial relief reducing default fees and interest proportionate to the reduction in arrears while ordering annual income disclosure under s.25.

Citation
2021 BCSC 2512
Parties
Claimant: Leon Albert William Caillier; Respondent: Rhoda Gavini Viray
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
30 December 2021
Procedural Posture
Family Law Child Support Variation / Application Hearing / Reasons for Judgment
Outcome
Application allowed in part and dismissed in part: child support varied retroactively in part; arrears largely preserved; limited reductions of default fees and interest ordered; some disclosure orders granted; other relief denied.
Legal Topics
Retroactive Decrease of Child Support, Variation of Child Support, Arrears and Rescission, Application of Federal Child Support Guidelines, Disclosure Obligations S.25, Default Fees and Interest Reduction, Life Insurance Designation
Source Language
English
Family Law Child Support Divorce Enforcement Maintenance Enforcement Act Retroactive Decrease of Child Support Variation of Child Support Arrears and Rescission +4 more

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Parties

Leon Albert William Caillier

Claimant

Rhoda Gavini Viray

Respondent

Procedural Posture

Family Law Child Support Variation / Application Hearing / Reasons for Judgment

Legal Issues

  1. 1 Whether claimant established a past material change in income sufficient to justify a retroactive decrease in child support
  2. 2 Proper date and scope of retroactive variation under Colucci and D.B.S. principles
  3. 3 Whether arrears should be reduced or cancelled and whether interest/default fees should be waived or reduced

Ratio Decidendi

Court found claimant established a material involuntary income decrease for 2016-2018, triggered a presumptive retroactive variation window but declined to limit relief strictly to the presumptive three‑year period; court varied child support beginning in 2016 using Federal Child Support Guidelines figures for each year, credited payments actually made, refused to cancel or materially reduce remaining arrears because claimant did not rebut presumption against rescission and failed adequate disclosure, and granted only partial relief reducing default fees and interest proportionate to the reduction in arrears while ordering annual income disclosure under s.25.

Court Disposition

Application allowed in part and dismissed in part: child support varied retroactively in part; arrears largely preserved; limited reductions of default fees and interest ordered; some disclosure orders granted; other relief denied.

Orders

  • Vary child support under the separation agreement to reflect the Federal Child Support Guidelines in part: monthly guideline amounts set for the claimant as follows and claimant entitled to credit for actual payments made: 2016 $717/month; 2017 $717/month; Jan–Mar 2018 $717/month; Apr–Dec 2018 $562/month; 2019...
  • Claimant remains responsible for remaining arrears after giving credit for payments; application to cancel or otherwise rescind arrears is denied.