Goudie v. Buchanan, (2001) 203 Nfld. & P.E.I.R. 34 (NFFC)

• Judge: Cook, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: July 13, 2001
• Jurisdiction: Newfoundland and Labrador
• Citations: (2001), 203 Nfld. & P.E.I.R. 34 (NFFC)

Goudie v. Buchanan (2001), 203 Nfld. & P.E.I.R. 34 (NFFC);

    610 A.P.R. 34

MLB headnote and full text

Temp. Cite: [2001] Nfld. & P.E.I.R. TBEd. JL.029

Robert Ian Goudie (applicant) v. Patricia Marie Buchanan (respondent)

(File No. 1991/0383)

Indexed As: Goudie v. Buchanan

Newfoundland Supreme Court

Unified Family Court

Cook, J.

July 13, 2001.

Summary:

The unmarried parents of three children (aged 22, 14 and 12) cohabited from 1978 to 1989. A 1992 court order required the father to pay $1,000/month child support. Between August 1996 and July 2001, the husband paid lesser amounts, alleging an agreement to reduce support. The mother submitted that the 1992 order remained in effect (arrears owing) and sought to have support deter­mined under the provincial Child Support Guidelines Regulations. At issue was the amount of child support owing for six spec­ified periods between 1996 and 2001, whether the mother was estopped from claiming arrears, whether income should be imputed to the father on the ground that he was intentionally underemployed, and whether the father would suffer undue hard­ship if forced to pay the full Guideline amount.

The Newfoundland Supreme Court, Unified Family Court, determined the amount of child support owing for the spec­ified periods, held that the mother was estopped from claiming support arrears for a specified period, refused to impute income after finding that the father was not inten­tionally underemployed and reduced the Guidelines amount payable on the ground of undue hardship.

Estoppel - Topic 1157

Estoppel in pais (by conduct) - Representa­tion - By conduct - Silence or standing by - Detriment - [See Family Law - Topic 2367 ].

Family Law - Topic 2360.1

Maintenance of wives and children - Main­tenance of children - Variation of award or agreement - A father was obligated by court order to pay $1,000 per month child support - Over a 25 month period, the father paid (and the mother accepted) $455/month following discussions respect­ing the provincial Child Support Guidelines Regulations and an agreement that the support payments would be treated as revenue neutral - The father alleged an agreement to vary support - The mother's position throughout was to accept a lesser amount, but to also consider that absent a written agreement "the existing court order stands" - The Newfoundland Supreme Court, Unified Family Court, held that the mother and father were not ad idem - There was no agreement to vary - See paragraphs 51 to 53.

Family Law - Topic 2367

Maintenance of wives and children - De­fences or bars - Delay or estoppel - A father was obligated by court order to pay $1,000 per month child support - Over a 25 month period, the father paid (and the mother accepted) $455/month - The mother now sought payment of the arrears of $545/month for the 25 months, alleging she accepted the lesser support while re­serving her right to claim the full amount -The father claimed the mother was estopped from claiming the arrears - The Newfoundland Supreme Court, Unified Family Court, held that the mother was estopped from now claiming the arrears - The father reasonably relied, to his detri­ment, on the 25 payments of $455 as being sufficient - To now enforce the arrears would cause a grave injustice - See para­graphs 54 to 59.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Pursuant to s. 17(1)(a) of the provincial Child Support Guidelines Regulations, the mother sought to have income imputed to the father on the ground that he was inten­tionally underemployed - The father left his employment in B.C. to move to New­foundland to be nearer his children and to facilitate his access - The father's consult­ing business failed due to economic cir­cumstances beyond his control - The father subsequently took employment that required him to contemporaneously attend university to obtain his Ph.D. - The New­foundland Supreme Court, Unified Family Court, refused to impute income to the father - There was no intentional underemployment to defeat his child sup­port obligations - The court stated that the father "made a bona fide and anticipated career choice in order to establish a more satisfactory and secure future which could benefit his children when they reach uni­versity age. I cannot conclude from the facts that [the father's] primary goal was to pay a lower amount of child support" - See paragraphs 67 to 91.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - A father sought to pay a lesser amount of child support than called for by the Child Support Guidelines Regulations on the basis of undue hardship - The undue hardship claim was based on the father's court-ordered support obligations to two children of a subsequent relation­ship, the increased cost of maintaining a residence to house his two daughters (who lived with him 50% of the time) and his cost of attending university to obtain his Ph.D. - The father's assets barely exceeded his liabilities and his monthly expenses exceeded his income - The Newfoundland Supreme Court, Unified Family Court, held that requiring the father to pay the Guidelines amount of support would impose an undue hardship on him - The court reduced the amount payable - See paragraphs 92 to 105.

Cases Noticed:

Owen Sound Public Library Board v. Mial Developments Ltd. (1979), 102 D.L.R.(3d) 685 (Ont. C.A.), refd to. [para. 57].

Furlong v. Furlong, [1998] A.R. Uned. 525; 42 R.F.L.(4th) 350 (C.A.), refd to. [para. 70].

Walsh v. Walsh (1999), 173 Nfld. & P.E.I.R. 325; 530 A.P.R. 325 (Nfld. U.F.C.), refd to. [para. 71].

Penney v. Penney (2001), 199 Nfld. & P.E.I.R. 261; 600 A.P.R. 261 (Nfld. U.F.C.), refd to. [para. 71].

Montgomery v. Montgomery (2000), 182 N.S.R.(2d) 184; 563 A.P.R. 184; 3 R.F.L.(5th) 126 (C.A.), refd to. [para. 73].

Dennis v. Wilson (1997), 104 O.A.C. 250; 35 R.F.L.(4th) 146 (C.A.), refd to. [para. 74].

Woloshyn v. Woloshyn (1997), 115 Man.R.(2d) 225; 139 W.A.C. 225; 28 R.F.L.(4th) 70 (C.A.), refd to. [para. 74].

Williams v. Williams, [1997] N.W.T.R. 303 (S.C.), refd to. [para. 77].

McNulty v. McNulty (1999), 133 Man.R.(2d) 297 (Q.B.), refd to. [para. 89].

Mayo v. O'Connell (1998), 170 Nfld. & P.E.I.R. 157; 522 A.P.R. 157 (Nfld. U.F.C.), refd to. [para. 93].

Smith v. Hookey (1999), 179 Nfld. & P.E.I.R. 205; 546 A.P.R. 205 (Nfld. U.F.C.), refd to. [para. 93].

Jeans v. Jeans (2000), 187 Nfld. & P.E.I.R. 112; 566 A.P.R. 112 (Nfld. U.F.C.), refd to. [para. 93].

Barry v. Rogers (2001), 202 Nfld. & P.E.I.R. 212; 608 A.P.R. 212 (Nfld. U.F.C.), refd to. [para. 93].

Slade v. Slade (2001), 197 Nfld. & P.E.I.R. 4; 591 A.P.R. 4 (Nfld. C.A.), refd to. [para. 102].

Statutes Noticed:

Family Law Act Regulations (Nfld.), Child Support Guidelines Regulation, Reg. 40/98, sect. 10 [para. 92]; sect. 17(1)(a) [para. 69].

Child Support Guidelines Regulation - see Family Law Act Regulations (Nfld.).

Authors and Works Noticed:

Spencer-Bower, The Law Relating to Estoppel by Representation, generally [para. 56].

Waddams, S.M., The Law of Contracts (4th Ed.), pp. 140 [para. 56]; 147 [para. 57]; 149 [para. 62].

Counsel:

David C. Moores, for the applicant, Robert Ian Goudie;

Glenda C. Best, for the respondent, Patricia Marie Buchanan.

This case was heard on April 6 and 20, 2001, before Cook, J., of the Newfoundland Supreme Court, Unified Family Court, who delivered the following judgment on July 13, 2001.