B.W. v. J.G., 2014 NLCA 5

• Judge: Welsh, White and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: November 07, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: 2014 NLCA 5;(2014), 346 Nfld. & P.E.I.R. 234 (NLCA)

B.W. v. J.G. (2014), 346 Nfld. & P.E.I.R. 234 (NLCA);

    1078 A.P.R. 234

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. FE.007

B.W. (appellant) v. J.G. (respondent)

(13/35; 2014 NLCA 5)

Indexed As: B.W. v. J.G.

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, White and Hoegg, JJ.A.

February 5, 2014.

Summary:

The parties were unmarried parents of one child. They shared custody of the child until 2009 when the mother moved to Ontario with the child. A 2009 consent order provided for joint custody with the child's primary residence being with the mother and block access for the father. The father gave consent to the child's relocation to Ontario. The mother would be responsible to fund the travel costs for the child for the purpose of the spring access visit and the father would be responsible to fund the travel costs for every Christmas visit and summer visit. There would be no child support payable by the father. In November 2011, the mother moved to vary the order to impose retroactive child support. In December 2012, the applications judge ordered retroactive support in the amounts of $1,176 for the months of June to December 2011 ($168/month) based on income of $23,338 and $1,518 for the months of January to November 2012 ($138/month) based on income of $18,210. The applications judge ordered no further child support. The father appealed.

The Newfoundland and Labrador Court of Appeal, Hoegg, J.A., dissenting, allowed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2020

Custody and access - Access - Access awards - Costs of exercising - Liability for - [See Family Law - Topic 2353 ].

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - The parties were unmarried parents of one child - They shared custody of the child until 2009 when the mother moved to Ontario with the child - A 2009 consent order provided for joint custody with the child's primary residence being with the mother and block access for the father - The father gave consent to the child's relocation to Ontario - The mother would be responsible to fund the travel costs for the child for the purpose of the spring access visit and the father would be responsible to fund the travel costs for every Christmas visit and summer visit - There would be no child support payable by the father - In November 2011, the mother moved to vary the order to impose retroactive child support - In December 2012, the applications judge ordered retroactive support in the amounts of $1,176 for the months of June to December 2011 ($168/month) based on income of $23,338 and $1,518 for the months of January to November 2012 ($138/month) based on income of $18,210 - The applications judge ordered no further child support - The father appealed - The Newfoundland and Labrador Court of Appeal allowed the appeal - The order for payment of retroactive support was not warranted in light of the factors in D.B.S. v. S.R.G. (SCC 2006) - The first factor, unreasonable delay by the mother in bringing the application, was not a significant consideration in this case - The second factor, the conduct of the parent, did not justify an order for retroactive support - The father had complied with the terms of the order - The third factor, the circumstances of the child, indicated that the child had benefited from the access visits - Finally, the fourth factor to be considered was the hardship that the retroactive order might entail - Hardship was relevant in this case - The father did not have the financial resources to pay for child support in addition to access costs and was not in a position to pay retroactive support.

Family Law - Topic 2360.1

Maintenance of spouses and children - Maintenance of children - Variation of award or agreement - [See Family Law - Topic 2353 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See Family Law - Topic 2353] .

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - [See Family Law - Topic 2353 ].

Cases Noticed:

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, appld. [para. 8].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 43].

Greene v. Greene (2010), 298 B.C.A.C. 114; 505 W.A.C. 114; 12 B.C.L.R.(5th) 330; 2010 BCCA 595, refd to. [para. 58].

Counsel:

Lori Savory, for the appellant;

J.G., self-represented.

This appeal was heard on November 7, 2013, by Welsh, White and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. The judgment of the Court of Appeal was delivered on February 5, 2014, and included the following opinions:

Welsh, J.A. (White, J.A., concurring) - see paragraphs 1 to 30;

Hoegg, J.A., dissenting - see paragraphs 31 to 63.