12.53: Form of orders

Case Summary

In a family law Action, the parties obtained an interim Consent Order granting the Respondent mother residential custody of the children, and $500.00 per week in child support, inclusive of section 7 expenses. The Consent Order directed the father to provide a Notice of Assessment annually, and a subsequent divorce Judgment made the disclosure obligation mutual between the parties. Neither party disclosed their finances to one another until the father sought disclosure in 2012. In 2013, the father’s Application to vary the interim Consent Order was heard in Justice Chambers. The oldest child, who was no longer a child of the marriage as defined by the Divorce Act, RSC 1985, c 3 (2nd Supp), and one of the two younger children, was living with the father by that time. The mother cross-applied for increased child support and section 7 expenses because of the father’s increased income; the Chambers Justice granted retroactive child support for the older child and the father appealed.

The Court of Appeal considered whether the Chambers Justice erred in law when expenses for the older child were ordered retroactively, even though the child was no longer a child of the marriage. The Court of Appeal observed that a Court’s jurisdiction to make a retroactive support Order is possible if the child is a child of the marriage when an Application is made for retroactive support or for income disclosure. The Court also commented, in response to arguments made by the Respondent mother, that disclosure obligations in support Orders are now the norm and are mandated by the Rules of Court, (e.g. Rule 12.53 and Family Law Forms FL-26 and FL-27). The Court allowed the Appeal and held that the father’s income should be calculated without correcting for the additional funds received as an allowance for costs relating to his work in Northern Alberta. Support and expenses were not payable for the oldest child, who had ceased to be a child of the marriage by the time of the Application.

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