Van Gool v. Van Gool (1998), 113 B.C.A.C. 200 (CA);
184 W.A.C. 200
MLB headnote and full text
Temp. Cite: [1998] B.C.A.C. TBEd. NO.038
Jay Arthur Van Gool (petitioner/appellant) v. Marlene Carol Van Gool (respondent/respondent)
(CA023712)
Indexed As: Van Gool v. Van Gool
British Columbia Court of Appeal
Southin, Goldie and Prowse, JJ.A.
October 30, 1998.
Summary:
A father applied to increase the amount of child support payable by the mother respecting the children of the marriage in his custody. A Chambers judge, applying the Federal Child Support Guidelines, refused to impute income to the mother and reduced the amount of support otherwise payable under the Guidelines because of the mother’s “undue hardship”. The father appealed.
The British Columbia Court of Appeal allowed the appeal and increased the amount of child support payable by the mother.
Family Law – Topic 4045.5
Divorce – Corollary relief – Maintenance – Support Guidelines (incl. nondivorce cases) – Calculation of income – Imputed income – A mother, age 35, had access to her two children of the marriage, aged eight and six, who were in their father’s custody – The mother also had a 13 year old son from a prior relationship to support – A 1994 consent order obligated the mother to pay $25/month/child – In 1996 the amount was increased to $40 – The mother, despite being able-bodied and in good health, was on welfare for many years – In 1997 she found part-time work with an estimated income of $14,000/year – The British Columbia Court of Appeal held that the mother was intentionally under-employed with a view to avoiding her obligations – The court imputed income of $19,000/year to the mother – See paragraphs 36 to 41.
Family Law – Topic 4045.6
Divorce – Corollary relief – Maintenance – Support Guidelines (incl. nondivorce cases) – Exceptions and exemptions (incl. undue hardship) – The British Columbia Court of Appeal generally discussed the concept of “undue hardship” in s. 10 of the Federal Child Support Guidelines, including the test for establishing same – The court held that undue hardship would not be presumed, except in those situations in which the payor was at the lowest income level for the payment of any child support, which was approximately $7000/year – See paragraphs 45, 51, 53.
Family Law – Topic 4045.6
Divorce – Corollary relief – Maintenance – Support Guidelines (incl. nondivorce cases) – Exceptions and exemptions (incl. undue hardship) – A mother, age 35, had access to her two children of the marriage, aged eight and six, who were in their father’s custody – The mother also had a 13 year old son from a prior relationship to support – A 1994 consent order obligated her to pay $25/month/child – In 1996 the amount was increased to $40 – The mother, despite being able-bodied and in good health, was on welfare for many years but now worked part-time, earning approximately $14,000/year – The British Columbia Court of Appeal held that based on $19,000 imputed income, the amount of child support the mother was required to pay under the Federal Child Support Guidelines would not cause her undue hardship – See paragraphs 36 to 54.
Cases Noticed:
Garcia v. Rodriguez (1997), 92 B.C.A.C. 272; 150 W.A.C. 272; 29 R.F.L.(4th) 329 (C.A.), consd. [para. 29].
Swift v. Swift, [1998] O.J. No. 501 (H.C. Gen. Div.), consd. [para. 48].
Messier v. Baines (1997), 161 Sask.R. 132 (Q.B.), consd. [para. 49].
Statutes Noticed:
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15(8), sect. 26.1(2) [para. 28].
Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 1 [para. 24]; sect. 3 [para. 25]; sect. 10 [para. 23]; sect. 10(1) [para. 45]; sect. 10(2)(d)(i) [para. 46]; sect. 19(1)(a) [para. 22].
Family Relations Act, R.S.B.C. 1996, c. 128, sect. 93(2), sect. 96(1) [para. 28].
Federal Child Support Guidelines – see Divorce Act Regulations (Can.).
Authors and Works Noticed:
Payne, Julian, Child Support Under the Federal Child Support Guidelines, (1998) s. 10 [para. 50].
Counsel:
H. Wolfson, for the appellant;
C.R. Lewis, for the respondent.
This appeal was heard before Southin, Goldie and Prowse, JJ.A., of the British Columbia Court of Appeal at Vancouver, British Columbia on October 13, 1998. The decision of the court was delivered on October 30, 1998, by Prowse, J.A.
