F.M. v. T.H., (2016) 449 N.B.R.(2d) 240 (CA)

• Judge: Quigg, Green and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 17, 2016
• Jurisdiction: New Brunswick
• Citations: (2016), 449 N.B.R.(2d) 240 (CA);2016 NBCA 29

F.M. v. T.H. (2016), 449 N.B.R.(2d) 240 (CA);

    449 R.N.-B.(2e) 240; 1180 A.P.R. 240

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. JN.007

Renvoi temp.: [2016] N.B.R.(2d) TBEd. JN.007

F.M. (appellant) v. T.H. (respondent)

(1-15-CA; 2016 NBCA 29)

Indexed As: F.M. v. T.H.

Répertorié: F.M. v. T.H.

New Brunswick Court of Appeal

Quigg, Green and Baird, JJ.A.

June 9, 2016.

Summary:

Résumé:

A father appealed the decision of a motion judge to vary a previous court order concerning the payment of child support, including special expenses and arrears, and the custody and access of the parties' five year old child. The parties had cohabited in a common law relationship. The appeal focused on the following questions: "i) Is the determination of whether a shared parenting arrangement exists limited to a calculation of access time?; ii) What information should be included in a court order which issues pursuant to s. 7 of the Guidelines [special expenses]?; and iii) On what rational basis should a motion judge determine the payment of arrears of child support?"

The New Brunswick Court of Appeal allowed the appeal in part. The motion judge did not err in her analysis with respect to the custody and the access of the child, nor in her assessment of child support pursuant to s. 3 of the Guidelines. However, the order which dealt with s. 7 expenses was deficient. Further, once the motion judge determined there were child support arrears outstanding, the father was entitled to present financial information to assist in the determination of how the arreas should be paid, and he was entitled to reasons which informed him how the motion judge calculated the monthly arrears payment.

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 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - The New Brunswick Court of Appeal stated that "[t]he determination whether a shared parenting arrangement exists requires more than a simple mathematical calculation of access time. Issues such as who has the overall responsibility to arrange medical appointments, which parent has the responsibility to drive the children to their appointments, which parent has the primary decision-making responsibility to oversee a child's health and welfare either at school, or elsewhere, and whether the parents are able to effectively communicate with each other on matters affecting their children, are critical considerations. This approach is in keeping with the reasons of Bastarache J. in Contino v. Leonelli-Contino [(2005) (S.C.C.)]. The Supreme Court observes the analysis must consider the child rearing roles of the parents, in addition to the straight mathematical calculation of access time. The analysis pursuant to ss. 9(b) and (c) of the Guidelines is undertaken only if the court finds the 40 per cent threshold has been met by the access parent." - See paragraph 17.

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - The payor father moved to vary the amount of child support on the basis that he and the mother had adopted a de facto shared custody arrangement following the previous court order - The motion judge considered the number of days each parent had the child in his or her care, the quality of the parenting relationship (the parties did not communicate well), the parties' day-to-day responsibilities for the child's care, and concluded that the parents did not have a shared parenting arrangement for the purpose of s. 9 of the Child Support Guidelines, both in terms of a mathematical approach to the time the child spent with each parent as well as from a "holistic" perspective - The father appealed - The New Brunswick Court of Appeal upheld the motion judge's decision - "The motion judge correctly observed her preoccupation was with the best interests of the child rather than with the minutiae of access time calculations, and she formulated her access order on that basis. ... [T]he 'best interests of the child' is the sole criteria in custody and access decisions. This means that parental preferences and 'rights' play no role and the test is broad." - See paragraphs 21 to 24.

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - The father failed to provide proof of his annual income despite the original court order requiring him to do so - The mother moved to vary the quantum of child support - The motion judge ordered retroactive child support on the basis the father's income had increased during the years at issue - The New Brunswick Court of Appeal held that the father was not prejudiced, nor was there procedural unfairness as a result of the mother's failure to request an order for retroactive child support in her pleadings - "Child support is the right of the child. ... A child's entitlement to receive the statutory amount of support due to him or to her should not be compromised, in the absence of a fatal procedural flaw which cannot be saved through the application of Rule 2.01 of the Rules of Court. The mother requested retroactive relief in her responding affidavit. On this basis I conclude the father was put on notice that retroactive child support was a live issue." - See paragraph 29.

Family Law - Topic 2523

Maintenance of spouses and children - Enforcement - Orders - Arrears of maintenance - The motion judge assessed arrears of child support and made an order with respect to the payment of those arrears, pursuant to s. 118 of the Family Services Act - She ordered the payor father to discharge the arrears at a specified monthly rate, with no explanation as to how she determined that monthly arrears payment or the effect that payment would have on the father's ability to meet his regular amount of monthly child support - There was no information before the motion judge concerning either party's monthly expenses - The father appealed, challenging the payment of arrears on the basis it was arbitrary - The New Brunswick Court of Appeal remitted the payment of child support arrears for determination - Once the motion judge determined the child support arrears, the father should have been given the opportunity to make representations concerning his monthly expenses, and to propose a plan for payment - He was entitled to present evidence of his capacity to pay, and he was entitled to a rational explanation as to how the motion judge arrived at her conclusion - The insufficiency of reasons in that regard constituted an error in the motion judge's disposition - See paragraphs 38 to 44.

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 Appeal stated that "[w]hen there are expenses pursuant to s. 7 [of the Guidelines], the court order must include the particulars of the expense, the name of the child to whom it relates, the amount of the expense, or where the amount is undetermined, the proportions to be paid by each parent (s. 13(e)). Section 7(3) of the Guidelines requires a court to take into consideration any 'subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense'. The word 'must' in s. 7(3), signals a mandatory inclusion." - See paragraph 36.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The motion judge's order which dealt with s. 7 expenses, stated: "Given the relative parity in the parties' incomes, [the father] shall be responsible for 50 percent of special expenses, including child care expenses, and [the mother] shall be responsible for 50 percent of special expenses, including child care expenses, on a go forward basis." - The New Brunswick Court of Appeal concluded that the order was deficient- "Section 13(e) of the Guidelines requires that when a child support order includes a payment pursuant to s. 7 of the Guidelines, it must include the following information: (e) the particulars of any expense described in subsection 7(1), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense" - Pursuant to rule 1.02.1 of the Rules of Court (proportionality), the Court made the order that should have been made in the first instance - See paragraph 37.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of the time with each parent) - The motion judge found that a shared parenting arrangement did not exist - On appeal, the father submitted that the motion judge, in determining retroactive child support, should have conducted the analysis set out in ss. 9(b) and (c) of the Guidelines on the basis that the motion judge found that both parents provided for their child's needs in their respective households - The New Brunswick Court of Appeal disagreed - "Once the motion judge determined a shared parenting arrangement did not exist, any further analysis pursuant to s. 9 became redundant. I parenthetically note that neither party completed appendices IV or V of their Financial Statements (their monthly expenses). The appellant submits the motion judge should have adjourned the hearing to permit both parents the opportunity to complete their Financial Statements. This would have been appropriate, but only in the circumstance where there was a finding a shared parenting arrangement existed." - See paragraph 25.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of the time with each parent) - [See both Family Law - Topic 2082 ].

Counsel:

Avocats:

Michael R. Young, for the appellant;

T.H. appeared in person.

This appeal was heard on March 17, 2016, before Quigg, Green and Baird, JJ.A., of the New Brunswick Court of Appeal. In reasons written by Baird, J.A., the Court delivered the following decision, dated June 9, 2016, in both official languages.