Fletcher v. Keilty, 2004 NBCA 34

• Jurisdiction: New Brunswick
• Judge: Ryan, Deschênes and Robertson, JJ.A.
• Neutral Citation: 2004 NBCA 34
• Citation: 2004 NBCA 34,(2004), 269 N.B.R.(2d) 302 (CA),269 NBR (2d) 302,238 DLR (4th) 232,49 RFL (5th) 29,[2004] NBJ No 152 (QL),[2004] N.B.J. No 152 (QL),(2004), 269 NBR(2d) 302 (CA),238 D.L.R. (4th) 232,269 N.B.R.(2d) 302,269 NBR(2d) 302
• Date: 22 April 2004
• Court: Court of Appeal (New Brunswick)

Fletcher v. Keilty (2004), 269 N.B.R.(2d) 302 (CA);

    269 R.N.-B.(2e) 302; 707 A.P.R. 302

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2004] N.B.R.(2d) TBEd. AP.037

Michael Glen Fletcher (applicant/appellant) v. Andrea Lynn Keilty (respondent/respondent)

(20/03/CA; 2004 NBCA 34)

Indexed As: Fletcher v. Keilty

New Brunswick Court of Appeal

Ryan, Deschênes and Robertson, JJ.A.

April 22, 2004.

Summary:

When the divorced husband's portion of the shared parenting time with his children went from 40% to 50%, he applied for a variation of his child support payments.

The New Brunswick Court of Queen's Bench, Family Division, in a decision re­ported [2003] N.B.R.(2d) Uned. 8, dismissed the application. The husband appealed and applied to introduce fresh evidence on ap­peal.

The New Brunswick Court of Appeal, Ryan, J.A., dissenting, dismissed the appeal. The court unanimously dismissed the appli­cation to introduce fresh evidence.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines - Shared custody (at least 40% of time with each parent) - [See Family Law - Topic 4045.8 ].

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines - Changed circum­stances - When the divorced husband's portion of the shared parenting time with his children went from 40% to 50%, he applied for a variation of his child support payments - The motions judge dismissed the application, ruling as follows: (1) the "few extra days" spent with the husband had no real financial impact on the parties; (2) there was no reason to disturb a child support amount that had been prearranged taking into account shared parenting; (3) the husband failed to establish a material change in circumstance; and (4) the hus­band's additional time with the children was an "insignificant increase" - The New Brunswick Court of Appeal, Ryan, J.A., dissenting, upheld the motions judge's decision, holding that she did not err in law, commit a material error or seriously misapprehend the evidence - The court added that this was not a case where a noncustodial parent became a custodial parent and then sought variation on the basis of the shared custody provision in s. 9 of the Federal Child Support Guidelines - On the contrary, this was a case where the parties negotiated a shared custody arrangement bearing in mind s. 9 and where one of the parents sought a variation principally be­cause his parenting time portion changed from 40% to 50% - See paragraphs 38 to 57.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - When the divorced husband's portion of the shared parenting time with his children went from 40% to 50%, he applied for a variation of his child support payments - The motions judge dismissed the application, ruling, inter alia, that the husband had failed to establish a material change in circumstance - The husband appealed and applied to admit fresh evidence - The New Brunswick Court of Appeal dismissed the appeal and the application - The husband essentially asked the court to take into account this fresh evidence in order to correspondingly adjust the original support order - How­ever, this was only appropriate if the court concluded, contrary to what the motions judge found, that there was a material change in circumstances - Thus, it was only if the court reversed the motions judge's decision respecting materiality that the fresh evidence could properly come into play in adjusting the amount of child support - This was a far cry from admit­ting and considering the fresh evidence to rule on the issue of materiality - See para­graphs 35, 58 to 64.

Cases Noticed:

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50, consd. [para. 14].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, consd. [para. 15].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147 (C.A.), consd. [para. 16].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [paras. 28, 51].

Friends of the Oldman River Society v. Canada (Minister of Transport and Min­ister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 33].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, consd. [para. 50].

Contino v. Leonelli-Contino (2003), 178 O.A.C. 281; 42 R.F.L.(5th) 295 (C.A.), refd to. [para. 57].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 58].

Slade v. Slade (2001), 197 Nfld. & P.E.I.R. 4; 591 A.P.R. 4; 13 R.F.L.(5th) 187 (Nfld. C.A.), refd to. [para. 58].

Counsel:

Jennifer M. Robertson, for the appellant;

Peggy J. O'Brian, for the respondent.

This appeal was heard on October 22, 2003, by Ryan, Deschênes and Robertson, JJ.A., of the New Brunswick Court of Ap­peal.

The decision of the Court of Appeal was delivered in both official languages on April 22, 2004, and the following reasons were filed:

Ryan, J.A. (dissenting) - see paragraphs 1 to 37;

Deschênes, J.A. (Robertson, J.A., concur­ring) - see paragraphs 38 to 66.