M.K.R. v. J.A.R., 2015 NBCA 73

• Judge: Deschênes, Richard and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 29, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 73;(2015), 443 N.B.R.(2d) 313 (CA)

M.K.R. v. J.A.R. (2015), 443 N.B.R.(2d) 313 (CA);

    443 R.N.-B.(2e) 313; 1159 A.P.R. 313

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: [2015] N.B.R.(2d) TBEd. DE.009

Renvoi temp.: [2015] N.B.R.(2d) TBEd. DE.009

M.K.R. (appellant) v. J.A.R. (respondent)

(47-15-CA; 2015 NBCA 73)

Indexed As: M.K.R. v. J.A.R.

Répertorié: M.K.R. v. J.A.R.

New Brunswick Court of Appeal

Deschênes, Richard and Baird, JJ.A.

December 10, 2015.

Summary:

Résumé:

The parties divorced. A September 14, 2010 consent order required the wife to pay the husband support for the parties' two dependent children. The order acknowledged that the wife's employment was terminating at the end of September 2010, and that she would pay child support based on her anticipated employment insurance benefits (the order became the corollary relief order on October 21, 2011). In February 2011, the wife moved for a retroactive reduction in child support payments to the date that she started receiving employment insurance benefits. The wife did not provide her annual income tax return.

The New Brunswick Court of Queen's Bench, in a decision not reported in this series of reports, retroactively reduced child support payments to November 1, 2010, based on an imputed level of income. The order required the parties to exchange financial information each year no later than June 1, commencing in 2011. The decision was effective as of May 12, 2011 (the hearing date). On July 20, 2012, the husband requested financial disclosure from the wife. The wife complied and it was determined that her income exceeded that which was imputed by the motion judge. The husband moved for a retroactive variation of child support to November 1, 2010.

The New Brunswick Court of Queen's Bench, in a decision not reported in this series of reports, retroactively varied the child support payments to January 1, 2011, a period of five months predating the May 2011 order. The court ordered the wife to pay costs. The wife appealed.

The New Brunswick Court of Appeal allowed the appeal in part with respect to the calculation of child support arrears for 2011, 2012 and 2013.

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.

Courts - Topic 566

Judges - Powers - To review orders of judge of same court - The parties divorced - A September 2010 consent order required the wife to pay her husband support for the parties' two children (the order became the corollary relief order which issued in October 2011) - The wife's employment was terminated at the end of September 2010 - In May 2011, she obtained a retroactive reduction in child support payment to November 1, 2010, based on an imputed level of income (the quantum of employment insurance benefits to which she was entitled) - In July 2012, the husband requested financial disclosure from the wife - The wife complied and it was determined that her income exceeded that which was imputed by the motion judge - The husband obtained a retroactive variation of child support to January 1, 2011 - The wife appealed, asserting that the retroactive variation was tantamount to an appeal of the May 2011 order by the same judge who issued it contrary to rule 62 of the Rules of Court ("Civil Appeals to the Court of Appeal") - The New Brunswick Court of Appeal rejected the assertion, stating that "Generally, child support orders are never final until such time as the child no longer qualifies as a dependent, or as a child of the marriage. In fact, the Guidelines contemplate regular reviews and variations of child support orders as the circumstances of the parents and the child change with time. The Divorce Act grants statutory jurisdiction to vary a child support order both prospectively and retroactively (s. 17). Thus, a retroactive order is not an appeal of the original order if the original order was based on financial disclosure later found to be false or inaccurate." - Here the impugned variation was based on actual income figures produced by the wife which disclosed a higher level of income - The motion judge had the authority and the responsibility to adjust the level of support to conform with the Guidelines - See paragraph 15.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The parties divorced - A September 2010 consent order required the wife (M.K.R.) to pay her husband (J.A.R.) support for the parties' two children (the order became the corollary relief order) - M.K.R.'s employment was terminated - In May 2011, she obtained a retroactive reduction in child support payment to November 1, 2010, based on an imputed level of income (the quantum of employment insurance benefits to which she was entitled) - The order required the parties to exchange financial information each year no later than June 1, commencing in 2011 - In July 2012, J.A.R. requested financial disclosure - M.K.R. complied and it was determined that her income exceeded that which was imputed by the motion judge - J.A.R. obtained a retroactive variation of child support to January 1, 2011 - M.K.R. appealed, asserting that the motion judge failed to articulate reasons why he varied the support to January 1, 2011 - The New Brunswick Court of Appeal stated that "... an appellate court will intervene if the reasons do not explain how the judge arrived at his or her decision to allow for informed appellate review. Simply failing to express him or herself will not justify appellate review. In this case, the motion judge provided sufficient reasons to support why he varied his previous order. He varied the child support payments to January 1, 2011, the year when M.K.R. was required to provide proof of her income no later than June 1. This was a pragmatic and common sense adjustment. ... I have already determined M.K.R. engaged in blameworthy conduct by failing to provide her financial information in June 2011, as court ordered. The motion judge had authority to make an order retroactive to a date which preceded the previous order. The reasons were sufficiently clear to allow for appellate review. In my opinion, a payor parent who knows they have had an increase in their income, such that they could reasonably expect would alter the amount of child support payable, and who fails to disclose the increase to the other parent, should expect the order will be varied retroactively ..." - See paragraphs 22 and 23.

Family Law - Topic 2421

Maintenance of spouses and children - Appeals - General (incl. standard of review) - The parties divorced - The husband obtained a retroactive variation of the wife's child support payments - The wife appealed - The New Brunswick Court of Appeal stated that "... appellate intervention will be justified if there has been a material error, a serious misapprehension of the evidence, or an error of law. No deference is owed to the motion judge's decision when reviewing a question of law, including proper interpretation of the Guidelines when determining a parent's income for the calculation of child support" - See paragraph 11.

Family Law - Topic 3373

Separation agreements, domestic contracts and marriage contracts - Variation - Of consent order - The parties divorced - A September 2010 consent order required the wife to pay the husband support for the parties' two children (the order became the corollary relief order which issued in October 2011) - The wife's employment was terminated at the end of September 2010 - In May 2011, she obtained a retroactive reduction in child support payment to November 1, 2010, based on an imputed level of income (the quantum of employment insurance benefits to which she was entitled) - The order required the parties to exchange financial information each year no later than June 1, commencing in 2011 - In July 2012, the husband requested financial disclosure from the wife - The wife complied and it was determined that her income exceeded that which was imputed by the motion judge - The husband obtained a retroactive variation of child support to January 1, 2011 - The wife appealed, asserting that the motion judge erred by not considering the terms of the consent order contrary to the Divorce Act - The New Brunswick Court of Appeal stated that the threshold test of material change was met by the unforeseeable changes to the wife's income and the May 2011 retroactive variation met the objectives of the Divorce Act and the Federal Child Support Guidelines - In those circumstances, the court was not bound by either of the previous orders - The wife's failure to provide her income information constituted blameworthy conduct and the motion judge had authority to go behind the May 2011 order and make the retroactive variation to the beginning of the year - See paragraphs 16 to 20.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Courts -Topic 566 , Courts - Topic 583 and Family Law - Topic 3373 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The parties divorced - A husband obtained a retroactive variation of child support that the wife was required to pay pursuant to the Federal Child Support Guidelines - The wife appealed, asserting that the motion judge erred by determining the retroactive child payments owing for each year based on her income from the prior year, rather than assessing the support based on her actual income for the periods in question - The New Brunswick Court of Appeal agreed, stating that "It is clear the previous year's income cannot be used to assess child support when the current income of the payor is known (s. 2(3) of the Guidelines). The current year's income must be used, absent a circumstance where it is necessary to average the previous three years of earnings as provided for in the Guidelines (s. 17(1)), or where the court imputes income (s. 19)." - See paragraph 27.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation of - Jurisdiction - [See Courts - Topic 566 , Courts - Topic 583 and Family Law - Topic 3373 ].

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance awards - Appeals - [See Family Law - Topic 2421 ].

Family Law - Topic 4045.2

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Financial disclosure - [See Courts - Topic 583 and Family Law - Topic 3373 ].

Family Law - Topic 4045.2

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Financial disclosure - The New Brunswick Court of Appeal discussed the continuing obligation of a payor parent under the Federal Child Support Guidelines to disclose income information, including changes in income - See paragraphs 12 to 14.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See second Family Law - Topic 4001.1 ].

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Changed circumstances - [See Family Law - Topic 3373 ].

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - The parties divorced - A September 2010 consent order required the wife to pay the husband support for the parties' two children (the order became the corollary relief order) - The wife's employment was terminated at the end of September 2010 - In May 2011, she obtained a retroactive reduction in child support payment to November 1, 2010, based on an imputed level of income (the quantum of employment insurance benefits to which she was entitled) - The order required the parties to exchange financial information each year no later than June 1, commencing in 2011 - In July 2012, the husband requested financial disclosure from the wife - The wife complied and it was determined that her income exceeded that which was imputed by the motion judge - The husband obtained a retroactive variation of child support to January 1, 2011 - The wife was ordered to pay costs - The wife appealed the order and the costs award - The New Brunswick Court of Appeal allowed the appeal in part - With respect to the costs award, the court stated that the motion judge exercised his inherent jurisdiction to deal with costs independently of the Rules of the Court - The court refused to interfere with the exercise of that discretion on the facts of the case - See paragraphs 35 to 37.

Family Law - Topic 4188

Divorce - Practice - Costs - Appeals form costs order - [See Family Law - Topic 4175 ].

Family Law - Topic 4191

Divorce - Practice - Judgments and orders - General (incl. content) - [See Courts - Topic 583 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - [See Family Law - Topic 4175 ].

Practice - Topic 8301

Costs - Appeals - Appeals from order granting or denying costs - Variation of order of trial court - [See Family Law - Topic 4175 ].

Cases Noticed:

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 6].

Levesque v. Meade (2010), 363 N.B.R.(2d) 183; 936 A.P.R. 183; 2010 NBQB 270 (Fam. Div.), refd to. [para. 7].

J.L. v. J.M. - see/voir Levesque v. Meade.

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 2009 NBCA 18, refd to. [para. 9].

Percy v. Percy, [2015] N.B.R.(2d) Uned. 22; 2015 NBCA 16, refd to. [para. 10].

Wills v. Kennedy (2015), 436 N.B.R.(2d) 358; 1139 A.P.R. 358; 2015 NBCA 31, refd to. [para. 10].

M.W.M. v. H.L.M. (2010), 366 N.B.R.(2d) 142; 942 A.P.R. 142; 2010 NBCA 86, refd to. [para. 11].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201, refd to. [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. [para. 16].

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. 17].

J.H. v. T.H. (2014), 422 N.B.R.(2d) 388; 1096 A.P.R. 388; 2014 NBCA 52, refd to. [para. 21].

D.M.A. v. M.S. (2012), 391 N.B.R.(2d) 189; 1013 A.P.R. 189; 2012 NBCA 63, refd to. [para. 23].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261 (C.A.), refd to. [para. 24].

Scott v. Scott (2004), 278 N.B.R.(2d) 61; 728 A.P.R. 61; 2004 NBCA 99, refd to. [para. 26].

Reid v. Gillingham (2015), 435 N.B.R.(2d) 176; 1134 A.P.R. 175; 2015 NBCA 27, refd to. [para. 26].

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. 26].

T.L. v. A.C. (2013), 402 N.B.R.(2d) 373; 1044 A.P.R. 373; 2013 NBCA 24, refd to. [para. 26].

Brooks v. Brooks (2012), 397 N.B.R.(2d) 361; 1028 A.P.R. 361; 2012 NBQB 401, refd to. [para. 26].

R.F.T. v. K.L.N., [2012] N.B.R.(2d) Uned. 139; 2012 NBQB 343, refd to. [para. 26].

Trevors v. Jenkins (2011), 375 N.B.R.(2d) 293; 969 A.P.R. 293; 2011 NBCA 61, refd to. [para. 26].

D.E. v. L.E. (2014), 426 N.B.R.(2d) 284; 1110 A.P.R. 284; 2014 NBCA 67, refd to. [para. 26].

Potash Corp. of Saskatchewan Inc. et al. v. Dupont Canada Inc. et al., [2008] N.B.R.(2d) Uned. 13 (C.A.), refd to. [para. 36].

C.J.G. v. L.T.G. (2011), 369 N.B.R.(2d) 202; 952 A.P.R. 202; 2011 NBCA 12, refd to. [para. 36].

Counsel:

Avocats:

Terence Richard Connelly, for the appellant;

Nadine M.L. Losier, for the respondent.

This appeal was heard on September 29, 2015, by Deschênes, Richard and Baird, JJ.A., of the New Brunswick Court of Appeal. Baird, J.A., delivered the following judgment for the court in both official languages on December 10, 2015.