Robert Snell

This is a supplementary judgment addressing outstanding issues from an appeal of family arbitration awards concerning property, spousal support, and costs.

The court recalculated the lump sum spousal support, reducing it from $227,185.00 to $170,816.00, based on revised asset bases due to a successful equalization payment appeal and correction of a calculation error regarding the retirement age/duration.

The arbitrator's costs award, which ordered the wife to pay the husband $67,500.00, was set aside, with the court finding divided success and an erroneous approach to assessing reasonableness based on settlement offers.

No costs were awarded for the arbitration or the appeal.

Appeal from three family arbitration awards arising from a long-term marriage involving equalization, exclusions for inherited and gifted property, ownership of gifted real property, post-separation adjustments, spousal support, and costs.

The court held that the arbitrator erred in law and made palpable and overriding errors in failing to exclude 99% of the balance in two investment accounts traceable to inheritance and gifts under s. 4(2) of the Family Law Act, and substituted a revised equalization result requiring the respondent spouse to pay the appellant spouse.

Although the court found the arbitrator's hearsay analysis concerning beach lot ownership was problematic, it held the hearsay was inadmissible under both the traditional and principled exceptions and upheld the result requiring payment for the share transfer.

The remaining property and unequal division grounds were dismissed, and the spousal support award was upheld in principle subject to limited further submissions on possible mathematical errors.

The appellant appealed the dismissal of his motion to change his child and spousal support obligations.

The parties' separation agreement and divorce order imputed the appellant's income at $200,000, with no variation unless his income changed by more than 10%.

The appellant argued his support should be based on his line 150 income.

The motion judge found the appellant had transferred an income-producing asset to his common-law spouse to remove income that would properly be used to calculate support, and thus failed to demonstrate a change in income.

The Court of Appeal found no error and dismissed the appeal.

The father appealed a child support order, and the mother cross-appealed for retroactive child support back to August 2000, when the father's income increased but he failed to disclose it.

The cross-appeal was reserved pending the Supreme Court of Canada's decision in D.B.S. v. S.R.G. Applying the D.B.S. framework, the Court of Appeal found that the application judge failed to place sufficient emphasis on the father's blameworthy conduct in breaching court orders and failing to disclose his income.

The cross-appeal was allowed and the matter remitted for a new hearing.