G.F. v. J.A.C.F., (2016) 449 N.B.R.(2d) 34 (CA)

• Judge: Quigg, Green and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 19, 2016
• Jurisdiction: New Brunswick
• Citations: (2016), 449 N.B.R.(2d) 34 (CA);2016 NBCA 21

G.F. v. J.A.C.F. (2016), 449 N.B.R.(2d) 34 (CA);

    449 R.N.-B.(2e) 34; 1180 A.P.R. 34

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. AP.025

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.025

G.F. (appellant) v. J.A.C.F. (respondent)

(52-15-CA; 2016 NBCA 21)

Indexed As: G.F. v. J.A.C.F.

Répertorié: G.F. v. J.A.C.F.

New Brunswick Court of Appeal

Quigg, Green and Baird, JJ.A.

April 21, 2016.

Summary:

Résumé:

The parties married in 2004 and separated in 2012. There were two children of the marriage. The husband's income was $83,589.25 per annum at the time of separation and the wife's was $6,074. The trial judge rendered his decision in May 2015 and a corrigendum on July 8, 2015. The wife was ordered to solely bear all child care expenses she would incur should she return to the workforce. The parties had a shared custody arrangement. For the purposes of assessing child support, the trial judge arbitrarily imputed income to the wife in the amount of $19,800 per annum and he applied a straight "set-off", using s. 9 of the Federal Child Support Guidelines as his rationale. He then imputed income to the wife in the amount of $25,000 per annum when he calculated her spousal support pursuant to the Spousal Support Advisory Guidelines. The trial judge assessed spousal support at the low range, retroactive to June 1, 2013, to terminate in 48 months. The net effect of the retroactive order was an overpayment to the wife of between $17,500 and $20,000. The wife appealed.

The New Brunswick Court of Appeal allowed the appeal, set aside the trial judge's decision and remitted the matter to a different judge of the Court of Queen's Bench.

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 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4027 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - The parties separated in 2012 - They had two children - The husband's income was $83,589.25 per annum at the time of separation and the wife's was $6,074 - The trial judge rendered his decision in May 2015 and a corrigendum on July 8, 2015 - The parties had a shared custody arrangement - For the purposes of assessing child support, the trial judge arbitrarily imputed income to the wife in the amount of $19,800 per annum and he applied a straight "set-off", using s. 9 of the Federal Child Support Guidelines as his rationale - He then imputed income to the wife in the amount of $25,000 per annum when he calculated her spousal support pursuant to the Spousal Support Advisory Guidelines - The trial judge assessed spousal support at the low range, retroactive to June 1, 2013, to terminate in 48 months - The wife appealed - The New Brunswick Court of Appeal held that the trial judge's decision could not survive on the basis that the trial judge did not explain why he imputed two different levels of income to the wife for support purposes - As the trial judge's imputation analysis was flawed, the retroactive and the prospective calculations concerning both child and spousal support could not stand - Further, the trial judge assessed child support as a straight set-off, using the wife's imputed income, and the husband's T-4 income information from the previous year - There was no explanation why the husband's income for 2015 was not considered - The mandatory criteria set out in ss. 9(b) and (c) of the Federal Child Support Guidelines were not considered and that constituted an error in law - The trial judge also erred in his analysis of the wife's entitlement to spousal support - There was no analysis as to whether the facts warranted a time limited order, or whether to do so was a deviation from the Spousal Support Advisory Guidelines - See paragraphs 10 to 14 and paragraph 20.

Family Law - Topic 4045.3

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Child care expenses - [See Family Law - Topic 4045.4 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - The New Brunswick Court of Appeal held that the trial judge erred in law in ordering the mother to be solely responsible for the child care costs she would incur on her return to the workforce - The trial judge's order in that regard was not consistent with the directives set out in s. 7 of the Federal Child Support Guidelines which provided for a proportionate sharing of net child care expenses incurred as a result of employment - See paragraph 18.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non-divorce cases) - Calculation or attribution of income - [See Family Law - Topic 4027 ].

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - [See Family Law - Topic 4027 ].

Cases Noticed:

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 NBCA 87, refd to. [para. 6].

Calvy v. Calvy (2015), 440 N.B.R.(2d) 85; 1148 A.P.R. 85; 2015 NBCA 53, refd to. [para. 6].

Grant v. Grant (2012), 397 N.B.R.(2d) 254; 1028 A.P.R. 254; 2012 NBCA 101, refd to. [para. 8].

T.L. v. A.C. (2013), 402 N.B.R.(2d) 373; 1044 A.P.R. 373; 2013 NBCA 24, refd to. [para. 8].

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. 8].

R.S.L. v. S.I.L. (2013), 402 N.B.R.(2d) 199; 1044 A.P.R. 199; 2013 NBCA 23, refd to. [para. 8].

A.M.D. v. A.J.P., [2002] O.J. No. 3731 (C.A.), refd to. [para. 10].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 12].

M.K.R. v. J.A.R. (2015), 443 N.B.R.(2d) 313; 1159 A.P.R. 313; 2015 NBCA 73, refd to. [para. 12].

Woodford v. MacDonald (2014), 343 N.S.R.(2d) 90; 1084 A.P.R. 90; 2014 NSCA 31, refd to. [para. 12].

Conway v. Conway, [2011] A.R. Uned. 97; 2011 ABCA 137, refd to. [para. 12].

Bourque v. Bourque (2004), 274 N.B.R.(2d) 72; 718 A.P.R. 72; 2004 NBCA 60, refd to. [para. 16].

Boudreau v. Brun (2005), 293 N.B.R.(2d) 126; 762 A.P.R. 126; 2005 NBCA 106, refd to. [para. 20].

MacLean v. MacLean (2004), 274 N.B.R.(2d) 90; 718 A.P.R. 90; 2004 NBCA 75, refd to. [para. 20].

Crosman v. Crosman (2006), 299 N.B.R.(2d) 334; 778 A.P.R. 334; 2006 NBCA 46, refd to. [para. 20].

Smith v. Smith (2011), 375 N.B.R.(2d) 208; 969 A.P.R. 208; 2011 NBCA 66, refd to. [para. 20].

Pavecare Industries (1989) Ltd. et al. v. Blue Chip Investments Inc. et al. (2000), 230 N.B.R.(2d) 375; 593 A.P.R. 375; 2000 NBCA 38, refd to. [para. 22].

S.L.B. v. P.J.O. (2013), 408 N.B.R.(2d) 235; 1058 A.P.R. 235; 2013 NBCA 52, refd to. [para. 22].

J.H. v. T.H. (2014), 422 N.B.R.(2d) 388; 1096 A.P.R. 388; 2014 NBCA 52, refd to. [para. 23].

Leger v. Fredericton Exhibition Ltd. et al. (2015), 434 N.B.R.(2d) 186; 1132 A.P.R. 186; 2015 NBCA 20, refd to. [para. 23].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 27].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 27].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 27].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR-97/175, sect. 7 [para. 4]; sect. 9 [para. 5]; sect. 19(1) [para. 10].

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

Counsel:

Avocats:

Kimberly A. McCurdy, for the appellant;

J.A.C.F., on his own behalf.

This appeal was heard on January 19, 2016, before Quigg, Green and Baird, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Baird, J.A., on April 21, 2016.