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Trial judge erred in finding non-disclosure on ex parte motion, but custody to mother upheld.
The appellant father appealed a Superior Court decision upholding a trial judge's order granting custody of the parties' two children to the respondent mother.
The trial judge had found that the father created an unlawful status quo by failing to make full disclosure on an ex parte motion for temporary custody.
The Court of Appeal found that the trial judge erred in finding material non-disclosure by the father, as the father had provided full and fair disclosure of the mother's text messages indicating she could not parent the children.
However, the Court of Appeal declined to order a new trial or change the custody arrangement, finding it was not in the children's best interests.
The appeal was allowed in part only to amend the commencement date for the father's child support obligation.
Voluntary career change abroad not a material change to reduce child support.
The moving party brought a motion to change a final order governing child support and section 7 expenses under the Divorce Act.
The court considered whether the payor’s reduced income following his voluntary decision to leave employment and start a business abroad constituted a material change in circumstances under s. 17 of the Divorce Act and the Federal Child Support Guidelines.
The court held that the risks associated with the payor’s career change were contemplated when the original order and settlement were made, and therefore no material change existed to justify varying the child support order.
However, the court addressed entitlement of adult children to support and recalculated arrears where one child was not a “child of the marriage” for part of the period.
The motion to vary the support order was largely dismissed and arrears and section 7 expenses were fixed and ordered payable from the payor’s retirement investments.
