Pelletier v. Parent, (1999) 219 N.B.R.(2d) 102 (CA)

• Judge: Daigle, C.J.N.B., Ayles and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 22, 1998
• Jurisdiction: New Brunswick
• Citations: (1999), 219 N.B.R.(2d) 102 (CA)

Pelletier v. Parent (1999), 219 N.B.R.(2d) 102 (CA);

    219 R.N.-B.(2e) 102; 561 A.P.R. 102

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: [1999] N.B.R.(2d) TBEd. SE.048

François Pelletier (appellant/respondent) v. Alice Parent (respondent/applicant)

(71/98/CA)

Indexed As: Pelletier v. Parent

New Brunswick Court of Appeal

Daigle, C.J.N.B., Ayles and Drapeau, JJ.A.

September 21, 1999.

Summary:

A father sought variation of a support order made in 1995, relying exclusively on s. 14(c) of the Federal Child Support Guide­lines.

The New Brunswick Court of Queen's Bench, Family Division, in a deci­sion not reported in this series, dismissed the motion. The father appealed, arguing that the judge did not have the power to refuse to vary the order.

The New Brunswick Court of Appeal dismissed the appeal.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Variation of periodic pay­ments or lump sum award - A father sought variation of a support order relying exclusively on s. 14 of the Federal Child Support Guidelines - The trial judge dis­missed the motion - The father appealed - He argued that the coming into force of the Guidelines constituted a change of circumstances such that s. 17(4) of the Divorce Act applied, and that by virtue of s. 14(c) of the Guidelines, the variation order was mandatory - The New Bruns­wick Court of Appeal held that a variation order could be refused under s. 17 of the Act - Section 14(c) of the Guidelines did not deprive the court of its discretion under s. 17 of the Act, but rather allowed its exercise, where appropriate in cases where there was no change of circumstances under s. 14(b) of the Guidelines - See paragraphs 1 to 17.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Variation of periodic pay­ments or lump sum award - The New Brunswick Court of Appeal held that when the coming into force of the Federal Child Support Guidelines is the only change of circumstances raised to justify a variation, the judicial discretion conferred by s. 17 of the Divorce Act must be exercised accord­ing to the criterion which favours uni­formity of support payments, while being flexible enough to allow the court to block any attempt at making it a party to a result which would be patently unfair to the children - As such, the court would grant a motion to vary based on s. 14(c) of the Guidelines unless it can be shown that the variation would cause significant harm to the children - See paragraphs 18 to 25.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Variation of periodic pay­ments or lump sum award - A father was paying $1,400/month for his two children under a support order made in 1995 - He sought to have the order varied, relying exclusively on the coming into force of the Federal Child Support Guidelines - The father would have paid only $643/month under the Guidelines - The trial judge dismissed the motion because the variation order would have been unfair for the chil­dren - The father appealed - The New Brunswick Court of Appeal dismissed the appeal - The children's standard of living would have decreased significantly (loss of $500 a month) and the benefits (gain of $50/month) to the father would be insig­nificant - The extent of the harm a varia­tion would cause the children made it unacceptable - See paragraphs 25 and 26.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines - Changed circum­stances - [See all Family Law - Topic 4017 ].

Cases Noticed:

Hickey v. Hickey, [1999] S.C.J. No. 9, refd to. [para. 8].

Wang v. Wang (1998), 110 B.C.A.C. 302; 178 W.A.C. 302; 164 D.L.R.(4th) 146; 39 R.F.L.(4th) 426 (C.A.), refd to. [para. 13].

Garard v. Garard (1998), 111 B.C.A.C. 269; 181 W.A.C. 269; 164 D.L.R.(4th) 347 (C.A.), refd to. [para. 14].

Meuser v. Meuser, [1998] B.C.J. No. 2808 (C.A.), refd to. [para. 14].

Del Puppo v. Del Puppo, [1999] B.C.J. No. 1722, refd to. [para. 14].

Fullerton v. Fullerton, [1999] B.C.A.C. Uned. 112 (C.A.), refd to. [para. 14].

Frame v. Frame (1999), 210 N.B.R.(2d) 250; 536 A.P.R. 250 (Fam. Div.), refd to. [para. 14].

Parsan v. Parsan, [1997] O.T.C. Uned. 551 (Gen. Div.), refd to. [para. 14].

Lewkoski v. Lewkoski, [1998] O.J. No. 1736, refd to. [para. 14].

Claridge-Skof v. Skof, [1997] O.J. No. 3112, refd to. [para. 14].

Sherman v. Sherman (1999), 146 O.A.C. 342 (C.A.), not folld. [para. 14].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161, refd to. [para. 23].

Statutes Noticed:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), sect. 17(1)(a) [para. 9].

Divorce Act Regulations (Can.), Federal Child Support Guidelines­, SOR/97-175, sect. 14(c) [para. 9].

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

Counsel:

Sylvain Pelletier, for the appellant;

Alice Parent, appearing in person.

This appeal was heard on September 22, 1998 by Daigle, C.J.N.B., Ayles and Drapeau, JJ.A., of the New Brunswick Court of Appeal. Drapeau, J.A., delivered the following judgment for the court on Septem­ber 21, 1999.