Tedham v. Tedham (2005), 217 B.C.A.C. 250 (CA);
358 W.A.C. 250
MLB headnote and full text
Temp. Cite: [2005] B.C.A.C. TBEd. OC.036
Jacqueline Margaret Tedham (appellant/plaintiff) v. David Stuart Tedham (respondent/defendant)
(CA032525; 2005 BCCA 502; 2005 BCCA 553)
Indexed As: Tedham v. Tedham
British Columbia Court of Appeal
Prowse, Smith and Lowry, JJ.A.
October 18, 2005 and November 17, 2005.
Summary:
A wife applied for, inter alia, a reapportionment of family assets, spousal support and child support for her two children. An interim order already existed respecting interim child support, arrears of child support and interim spousal support. See [2001] B.C.T.C. Uned. 18.
The British Columbia Supreme Court, in a decision reported at [2002] B.C.T.C. Uned. 324, divided the family assets equally and ordered the husband to pay child support of $1,480 monthly. The court also ordered the parties to share the children’s extraordinary expenses in accordance with their respective incomes. The court rejected the wife’s claim for retroactive child maintenance from the date of the interim order to the date of trial, based on the husband’s actual income during that period. The court further ordered that the wife pay the costs of the proceedings at Scale 3. The wife appealed.
The British Columbia Court of Appeal, in a decision reported at 188 B.C.A.C. 297; 308 W.A.C. 297, allowed the appeal. The court remitted the issue of the amount of child support payable by the husband for the year 2002 and following, together with the issue of the amount payable by him for the period commencing October 1, 2002 for extraordinary expenses, to the British Columbia Supreme Court. The husband sought leave to appeal to the Supreme Court of Canada. He was unsuccessful. The husband applied to review spousal support as provided for in the Supreme Court order with a view to terminating support. The wife cross-applied for increased spousal support retroactive to 2001 based on the husband’s actual income.
The British Columbia Supreme Court dismissed the wife’s application. The court ordered decreasing, time-limited spousal support and provided for a review of the order by the husband upon certain conditions. The wife appealed.
The British Columbia Court of Appeal allowed the appeal.
Family Law – Topic 2211
Maintenance of wives and children – General principles – Retrospective or retroactive orders – In 2002, a trial judge made an order respecting division of family assets, child support and spousal support – The wife appealed the decision respecting division of family assets and child support – The appeal was allowed on both issues – The family assets were reapportioned 65/35 in the wife’s favour in consideration of “the needs of each spouse to become or remain economically independent and self sufficient” (Family Relations Act, s. 65(1)(e)) – The husband applied to review spousal support with a view to terminating support – The wife cross-applied for increased spousal support retroactive to 2001 based on the husband’s actual income – The British Columbia Court of Appeal held that the trial judge did not err in refusing to order retroactive support – The court considered, inter alia, that the wife could have appealed the order when she appealed the order dismissing her claim for retroactive child support – Bringing the claim now, rather than then, resulted in some prejudice to the husband – See paragraphs 82 to 87.
Family Law – Topic 3997
Divorce – Corollary relief – General – Economic self-sufficiency – When the parties married in 1983, the wife was earning $50,000 annually as a financial accountant with the provincial government – The husband was earning $29,000 annually – In 1984, when the parties’ first child was born, the wife left her job – She was primarily a homemaker until the parties separated in 1999 – On an appeal, the family assets were reapportioned 65/35 in the wife’s favour in consideration of “the needs of each spouse to become or remain economically independent and self sufficient” (Family Relations Act, s. 65(1)(e)) – In 2004, a judge varied a spousal support order for $6,000 monthly and ordered decreasing, time-limited spousal support ending in 2007 – In 2004, the wife earned $25,000, while the husband earned $245,000 in the first seven months of 2004 – The British Columbia Court of Appeal held that the judge erred by focusing almost exclusively on the objective of self-sufficiency – That obligation was limited by the words “in so far as practicable” – The reapportionment of the matrimonial property had not fully compensated the wife for the disadvantages caused by the marriage breakdown, nor enabled her to meet her needs – The court ordered $6,000 monthly support without a time limit – See paragraphs 1 to 81.
Family Law – Topic 4001.2
Divorce – Corollary relief – Maintenance and awards – Retroactive awards – [See
Family Law – Topic 2211
].
Family Law – Topic 4010
Divorce – Corollary relief – Maintenance and awards – Awards – Periodic payments – [See
Family Law – Topic 3997
].
Family Law – Topic 4021.2
Divorce – Corollary relief – Maintenance and awards – Awards – Considerations – Leaving labour market for family responsibilities – [See
Family Law – Topic 3997
].
Family Law – Topic 4022.1
Divorce – Corollary relief – Maintenance and awards – Awards – To spouse – Extent of obligation – [See
Family Law – Topic 3997
].
Family Law – Topic 4034
Divorce – Corollary relief – Maintenance and awards – Awards – Effect of division of matrimonial property – [See
Family Law – Topic 3997
].
Cases Noticed:
Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 20].
Schmidt v. Schmidt (1999), 132 B.C.A.C. 36; 215 W.A.C. 36; 1 R.F.L.(5th) 197; 1999 BCCA 701, refd to. [para. 21].
Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 48].
Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 48].
Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193; 355 W.A.C. 193; 2005 BCCA 406, refd to. [para. 55].
Allaire v. Allaire (2003), 170 O.A.C. 72; 35 R.F.L.(5th) 256 (Ont. C.A.), refd to. [para. 58].
Spencer v. Spencer (2002), 169 B.C.A.C. 215; 276 W.A.C. 215; 27 R.F.L.(5th) 431; 2002 BCCA 265, dist. [para. 61].
Graves v. Graves, [2002] B.C.A.C. Uned. 158; 32 R.F.L.(5th) 58; 2002 BCCA 508, dist. [para. 61].
Rogers v. Rogers (1999), 122 B.C.A.C. 64; 200 W.A.C. 64; 67 B.C.L.R.(3d) 315; 1999 BCCA 238, refd to. [para. 61].
Touwslager v. Touwslager (1992), 9 B.C.A.C. 203; 19 W.A.C. 203; 63 B.C.L.R.(2d) 247 (C.A.), refd to. [para. 61].
Toth v. Toth (1995), 64 B.C.A.C. 81; 105 W.A.C. 81; 13 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 63].
Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, consd. [para. 66].
Metzner v. Metzner (1997), 91 B.C.A.C. 241; 148 W.A.C. 241; 34 B.C.L.R.(3d) 314 (C.A.), refd to. [para. 67].
Authors and Works Noticed:
Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A Draft Proposal (2005), p. 7 [para. 54].
Counsel:
M.E.B. Wood, for the appellant;
J.A.W. Schuman and K.L. Basran, for the respondent.
This appeal was heard at Vancouver, B.C., on September 12, 2005, by Prowse, Smith and Lowry, JJ.A., of the British Columbia Court of Appeal. Prowse, J.A., delivered the following reasons for judgment for the court on October 18, 2005. The court delivered supplementary reasons on November 17, 2005.
