Kingsbury v. Kingsbury

Kingsbury v. Kingsbury

The application to set aside the Bracken Order was denied because the respondent willfully ignored the notice of family claim and produced insufficient evidence of incapacity; however the court found a material, continuous and non-voluntary decline in income since 2015 sufficient to vary child and spousal support to actual income, applied the retroactive variation to 2018 as a fair departure from the presumptive date, and concluded on the evidence that it would be grossly unfair and appropriate under s.174 FLA to rescind the outstanding support arrears given the respondent's disability benefits and unlikely future capacity to pay.

Citation
2025 BCSC 212
Parties
Claimant / Respondent on Application: Angela Kathleen Kingsbury (now Angela Farley); Respondent / Applicant on Application: Kristoffer James Kingsbury
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 February 2025
Procedural Posture
Divorce and Corollary Relief (family Law) / Application to Set Aside or Vary a Final Order (chambers)
Outcome
Application partly dismissed and partly allowed: set aside relief denied; support provisions varied and applied retroactively; arrears cancelled; ongoing support obligations terminated; costs order maintained.
Legal Topics
Setting Aside Default Judgment, Variation of Support Orders, Retroactive Variation, Rescission of Arrears, Stepparent Support Obligations, Imputed Income
Source Language
English
Family Law Child Support Spousal Support Property and Debt Procedural Law Setting Aside Default Judgment Variation of Support Orders Retroactive Variation +3 more

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Parties

Angela Kathleen Kingsbury (now Angela Farley)

Claimant / Respondent on Application

Kristoffer James Kingsbury

Respondent / Applicant on Application

Procedural Posture

Divorce and Corollary Relief (family Law) / Application to Set Aside or Vary a Final Order (chambers)

Legal Issues

  1. 1 Whether the Bracken final order made in the respondent's absence should be set aside under s.200(2) FLA or the court's inherent jurisdiction
  2. 2 Whether the respondent's decreased income since 2015 constitutes a material change in circumstances warranting variation of child and spousal support
  3. 3 Whether retroactive reduction of support should apply and, if so, to what date

Ratio Decidendi

The application to set aside the Bracken Order was denied because the respondent willfully ignored the notice of family claim and produced insufficient evidence of incapacity; however the court found a material, continuous and non-voluntary decline in income since 2015 sufficient to vary child and spousal support to actual income, applied the retroactive variation to 2018 as a fair departure from the presumptive date, and concluded on the evidence that it would be grossly unfair and appropriate under s.174 FLA to rescind the outstanding support arrears given the respondent's disability benefits and unlikely future capacity to pay.

Court Disposition

Application partly dismissed and partly allowed: set aside relief denied; support provisions varied and applied retroactively; arrears cancelled; ongoing support obligations terminated; costs order maintained.

Orders

  • Child and spousal support adjusted to be based on respondent's actual income as per tax records referenced in reasons
  • Respondent's decrease in income applied retroactively to 2018