I receive a weekly e-mail from Supreme Court Advocacy (a boutique law firm in Ottawa focusing on Supreme Court of Canada advocacy and agency).
The newsletter from Supreme Court Advocacy is a great resource and provides an up to date summary of activity at the Supreme Court of Canada.
Earlier in March, this newsletter provided a very good summary of the case of Hathaway v. Hathaway (2014 BCCA 310).
In this case, Mr. Hathaway (a high income earner) had been ordered, by the British Columbia Supreme Court, to pay child support of $12,814.00 per month and spousal support of $24,124.00 per month. At the trial level Mr. Hathaway’s income was determined to be one million dollars a year by the Honourable Mr. Justice Abrioux.
Mr. Hathaway appealed this decision and the British Columbia Court of Appeal denied his appeal.
Mr. Hathaway, at the Court of Appeal, contended that the trial judge erred in three respects (failing to consider Section 11 (which sets a ceiling for incomes over $350,000.00 per annum) and Section 12 (relating to property division) of the Spousal Support Advisory Guidelines, failing to consider the provisions of the Federal Child Support Guidelines regarding incomes over $150,000.00 (Section 4), and the principles relating to reapportioning family assets). Mr. Hathaway’s appeal was dismissed by the Court of Appeal and leave to the Supreme Court of Canada was also dismissed.
The case of Hathaway highlights the importance of considering/arguing Section 4 of the Federal Child Support Guidelines and Section 11 of the Spousal Support Advisory Guidelines at a trial level. A failure to do so will limit the ability to make such arguments or considerations at an appeal level (as per paragraph 34 of the Court of Appeal Decision).
The upshot of this case, from my perspective, is:
Reading the Child Support Guidelines and the Spousal Support Advisory Guidelines is a free and useful exercise if support issues are at play in your family law matter (regardless of your income);
If you are dealing with a case where incomes are over $150,000.00 per annum pay special attention to Section 4 of the Child Support Guidelines;
If you are dealing with a case where incomes are over $350,000.00 per annum pay special attention to Section 11 of the Spousal Support Advisory Guidelines;
It is helpful to get advice from an accountant in a case where you are working to determine an appropriate guideline income for support purposes (I encourage my clients to consult with an accountant regarding determination of income for support purposes regardless if they are paying or receiving support – it is very helpful); and
This is a first world problem to have…