D.L. v. M.L. et al.,

• Jurisdiction: New Brunswick
• Judge: Walsh, J.
• Neutral Citation: 2012 NBQB 382
• Citation: (2012), 396 N.B.R.(2d) 353 (FD),2012 NBQB 382,396 NBR(2d) 353,(2012), 396 NBR(2d) 353 (FD),396 N.B.R.(2d) 353
• Date: 01 November 2012
• Court: Court of Queen's Bench of New Brunswick (Canada)

D.L. v. M.L. (2012), 396 N.B.R.(2d) 353 (FD);

    396 R.N.-B.(2e) 353; 1024 A.P.R. 353

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Temp. Cite: [2012] N.B.R.(2d) TBEd. DE.008

Renvoi temp.: [2012] N.B.R.(2d) TBEd. DE.008

D.L. (applicant) v. M.L. (respondent) and C.B. (respondent) and K.D. (respondent)

(FDSJ-25-2010; FDSJ-68-2003; FDSJ-5642-1995; 2012 NBQB 382; 2012 NBBR 382)

Indexed As: D.L. v. M.L. et al.

Répertorié: D.L. v. M.L. et al.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Walsh, J.

November 27, 2012.

Summary:

Résumé:

A father had three children, one from each of his failed marriages. The father applied for relief from paying full child support and s. 7 (i.e., special) expenses on the ground of financial hardship. The three children's mothers were the respondents.

The New Brunswick Court of Queen's Bench, Family Division, relieved the father from any obligation to pay special expenses. The court found that the father had established undue hardship; however, he was able to obtain other employment to supplement his income. Therefore, while the court granted a five month reduction in child support to account for the father taking over child care responsibilities for one of the children, the court otherwise refused to reduce the Guideline amount of child support.

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 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The New Brunswick Court of Queen's Bench, Family Division, stated that "... unlike child support, special expenses are not presumptively ordered, it is more a discretionary determination that is guided not just by 'income' but also by 'means' ... The long and short of it is that whether a Court will also require a special expense contribution on top of child support depends not just on whether the expense is 'reasonable' but also on whether there is a 'reasonable' ability to pay by the non-custodial parent in all the circumstances. There is no requirement for the payor to meet the higher threshold of 'undue hardship' under Section 10 of the Child Support Guidelines, as is required to obtain financial relief from basic child support" - See paragraphs 29 and 30.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - A father was required to pay monthly guideline support of $338.17 to each of three children from different marriages, plus s. 7 (special expenses) of $269 for one child - The father applied for relief, claiming financial hardship - The New Brunswick Court of Queen's Bench, Family Division, removed the father's obligation to pay special expenses - The test for hardship with respect to s. 7 expenses was less stringent than the test for undue hardship to obtain relief from paying basic child support under the Guidelines - The court stated that "It is simply not reasonable to expect the father to pay his share of these expenses on his income and means and at the same time pay child support to three separate households. To the extent that this does not seem fair to the mothers and the children, in these matters the Court is engaged in legal, not moral reasoning." - See paragraphs 27 to 31.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - The New Brunswick Court of Queen's Bench, Family Division, noted that "Section 10(3) (4) of the Child Support Guidelines requires that even if 'undue hardship' is made out the plea for relief against paying any portion of child support must be denied if the payor's household standard of living would be higher than the payee's ..." - See paragraph 3 (footnote 1).

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - The New Brunswick Court of Queen's Bench, Family Division, stated that "The threshold to be met by a payor under s. 10 of the Child Support Guidelines to get out from under the burden of any portion of child support is very high and not commonly granted ... The threshold has been characterized as 'tough'. In Gillespie v. Gormley 2003 NBCA 72 our Court of Appeal underscored what is required: '... undue hardship is not to be equated with financial difficulty, budgetary cutbacks or financial restraints. Subjective perceptions of undue hardship do not satisfy the requirements of s. 10 of the Guidelines. The hardship must be excessive or extreme determined objectively.'" - See paragraph 32.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - A father had three children, one from each of his failed marriages - His monthly income was $3,418.20, less expenses of $2,312.63 and child support of $1,014.51, leaving a surplus of $91.06 - The father applied for relief from paying full child support, claiming undue hardship - The New Brunswick Court of Queen's Bench, Family Division, held that the father established "undue hardship" - However, considering his past work history, his work schedule (7 days on, 7 days off) and heavy financial obligations, it was unreasonable for him not to obtain additional employment - It was reasonable to impute income to him on the ground of under-employment (i.e., 16 hours per week x 2 weeks @ 10.00 per hour = $320/month) - The court granted temporary relief from undue hardship by reducing support for two of the children for five months, while the father was taking over child care responsibilities for one of the children - See paragraphs 32 to 49.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - The New Brunswick Court of Queen's Bench, Family Division, stated that "Whereas the law provides statutory guidance in the resolution of questions of whether undue financial hardship exists in a particular case, the legislation has not formulated a so-called 'departure rule', i.e. how adjustments are to be made if the Court is required to depart from the presumptive rule of the Child Support Guideline Tables ..." - See paragraph 43.

Droit de la famille - Cote 4045.4

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires (y compris les pensions payables hors les affaires de divorce) - Dépenses spéciales ou extraordinaires - [Voir Family Law - Topic 4045.4 ].

Droit de la famille - Cote 4045.6

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires (y compris les cas hors-divorce) - Exceptions et exemptions (notamment difficultés excessives) - [Voir Family Law - Topic 4045.6 ].

Cases Noticed:

O'Connor v. O'Connor (1999), 75 O.T.C. 296 (Gen. Div.), refd to. [para. 3, footnote 1].

K.F. v. T.B. (2012), 388 N.B.R.(2d) 215; 1006 A.P.R. 215; 2012 NBQB 144, refd to. [para. 27].

Young v. Young (2000), 225 N.B.R.(2d) 272; 578 A.P.R. 272 (C.A.), refd to. [para. 29].

Yeates v. Yeates, [2008] O.A.C. Uned. 372; 2008 ONCA 519, refd to. [para. 29].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200; 44 R.F.L.(4th) 314 (C.A.), refd to. [para. 32].

H.F.G. v. C.G. (2003), 264 N.B.R.(2d) 277; 691 A.P.R. 277; 2003 NBCA 72, refd to. [para. 32].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 NBCA 2, refd to. [para. 36].

M.A.A. v. J.M.A. (2011), 379 N.B.R.(2d) 148; 978 A.P.R. 148; 2011 NBQB 298, refd to. [para. 38].

Locke v. Goulding (2012), 318 Nfld. & P.E.I.R. 91; 989 A.P.R. 91; 2012 NLCA 8, refd to. [para. 40].

Brown v. Brown (2010), 353 N.B.R.(2d) 323; 910 A.P.R. 323; 2010 NBCA 5, refd to. [para. 52].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 7 [para. 29]; sect. 10 [para. 32]; sect. 19(1)(a) [para. 35].

Federal Child Support Guidelines - see/voir Divorce Act Regulations (Can.).

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2012), pp. 17, 18 [para. 27].

Thompson, D.A. Rollie, The Second Family Conundrum in Child Support (2001), 18 Can. J. Fam. L. 227, para. 90 [para. 44].

Counsel:

Avocats:

The parties, per se.

This matter was heard on November 1, 2012, before Walsh, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who issued the following decision on November 27, 2012.