JRSB205 (summer 2010)
Topic 2, Lesson 1, Activity 2: The Courts – Appeal Decisions
Group C
Citation: Ewing v. Ewing, 2009 ABCA 227
1. What was the name of the appellant? The respondent? Was the appellant the plaintiff or the defendant at the trial?
The name of the appellant was Janette Francis Ewing (also known as Janette Frances Ewing).
The name of the respondent was Ronald Gregory Ewing.
At the trial, the plaintiff was the respondent.
2. Who were
the Judges on the appeal panel?
The judges were:
Honourable Madam Justice Carole Conrad
Honourable Mr. Justice Scott Brooker
Honourable Madam Justice Marsha Erb
3. Who was
the lawyer for the appellant?
The lawyer was L.E. Allen
4. Who was
the lawyer for the respondent?
The lawyer was E.L. Lenz, Q.C.
5. Provide a brief summary of the facts.
a) The appellant and the respondent married in 1978. They separated in 1999 and were divorced on June 10, 2002. They have two children, Elliott Mary Ewing (Elliott), born in 1988, and Morgan Dawn Ewing, born in 1994, both of whom have resided continuously with the appellant since the date of separation.
b) After the parties separated, they entered into a divorce and property contract, described as a “final settlement” which was eventually incorporated into a Divorce Judgment and Corollary Relief Order. The Order provided that the respondent would pay $1,500 per month for the two children, commencing January 1, 2002, until they reached the age of 18. The Order also provided that support could continue past the age of 18 if either or both children became incapacitated or remained in school.
c) In 2003, the parties entered into a consent variation order which increased the child support payable by the respondent to $6000 per month, for both children and set his share of section 7 expenses at 97 per cent. The stated incomes of the father and mother at the time were $750,000 and $24,000 respectively.
d) When it was disclosed that the respondent’s Guideline income from 2002 to 2005 exceeded $1,000,000, the appellant applied for a retroactive variation of support. The chambers judge calculated the arrears and set the prospective child support at $13,776 per month, for both children, effective January 1, 2006. This order was appealed to the Court of Appeal and the court cancelled the arrears prior to January 1, 2004, and reduced the retroactive support order. The appeal centered on whether pre-tax income should be included and not on whether application of the Table resulted in inappropriate support.
e) In 2007, when it was disclosed that the respondent’s income was grater than had been estimated for 2005 and 2006, the appellant brought another application for a retroactive variation of child support. The respondent opposed the application; he also applied for a declaration that his daughter Elliot Mary Ewing was no longer a child of the marriage.
f) The chambers decision resulted in an order for additional retroactive child support. The effect of the order was to allow monthly support ranging from $22,546.49 to $28,297.67 per month for 2005 and 2006. The chambers judge also reduced prospective child support recognizing that the father’s income has decreased as a result of the change in his position. The respondent’s responsibility for 97 per cent of section 7 expenses continued throughout and remained unchanged.
g) Finally, the chambers judge found that Elliott, who was still a student, remained a child of the marriage for child support purposes. The appellant was awarded double costs on Column 3, Schedule C of the Rules of Court.
6. On what grounds was the appeal made?
There were
2 appeals that went through the court, the appeal made by the appellant that
the chamber judge erred in applying section 17 of the guidelines to set
retroactive child support.[2]
Then there was a cross-appeal which was made by the respondent/cross-appellant
who also states that the chamber judge also erred by:
a) Finding the table amount in the Guidelines was not “inappropriate”;
b) Finding that Elliott Mary Ewing was still a child of the marriage; and
c) Awarding double costs against him, or even costs at all [2]
This appeal is based on s.17 of the Federal Child Support Guidelines, S.O.R./97-175 (Guidelines), and its discretion to depart from the section 4 “Table” amount for incomes over $150,000.
The appellant also refer the cases:
- Hickey v. Hickey, 2 S.C.R. 518, 240 N.R. 312.L.(R.E.) v. L.(S.M.), 2007 ABCA 169
- Chalifoux v. Chalifoux, 2008 ABCA 70
- Schick v. Schick, 2008 ABCA 196
- Shields v. Shields, 2006 ABQB 368
- Kowalewich v. Kowalewich, 2001 BCCA 450
The court has cited:
- Steeves v. English, 2004 ABCA 195
7. What was
the decision of the Court of Appeal?
The appeal is dismissed.
Section 17 of the Guidelines requires a judge to determine whether it is
fair to calculate income for the purpose of setting child support by applying
section 16, and where it is not, to set a fair income. It does not matter
whether support is being set prospectively or retroactively. In setting a fair
income the judge may have regard to the spouse’s income over the last three
years and assess what is fair having regard to the pattern of income,
fluctuations in income or non-recurring amounts during those years. The
chambers judge understood these principles, and his conclusion that section 16
was not the fairest method of calculating income is owed deference.
The cross-appeal is allowed, in part. The chambers judge erred in law in four ways. First, he imposed too strict a burden on the cross-appellant to rebut the presumption that the Table amount would be inappropriate. Second, he failed to examine the actual means, needs and circumstances of these children in his assessment of that issue. Third, he failed to explain why he concluded that the evidence did not raise a concern that the Table amounts were inappropriate, relying simply on the fact that the father could pay. Finally, it appears that in reaching his conclusion, the trial judge acted on the assumption that the appellant had not received the $13,776 per month until August 2007, when that was not the case.
In my view, the evidence supports a finding that the Table amounts would result in inappropriate support. The evidence does not support an increase over the amounts being paid. I would allow the cross-appeal and refuse to increase the support from the $13,776 per month previously ordered. I would not interfere with the chambers judge’s finding that Elliott Mary Ewing was a child of the marriage and I would dismiss that aspect of the cross-appeal.
The cross-appellant’s third ground of appeal dealt with costs. This decision affects the issue of costs, both here and in the court below. As a result, costs will be dealt with through further written submissions.
8. When did the Court deliver its decision?
Appeal heard on the 18th day of November, 2008
Reasons filed on 30th day of June, 2009 in Calgary, Alberta
Works Consulted
[1] Alberta Courts, Retrieved May 22, 2010, from http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2009/2009abca0227.pdf
[2] Canadian Legal Information Institute, Retrieved May 22, 2010, from http://www.canlii.org/en/ab/abca/doc/2009/2009abca227/2009abca227.html
19/05/11
