Trevors v. Jenkins, 2011 NBCA 61

• Judge: Bell, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 24, 2011
• Jurisdiction: New Brunswick
• Citations: 2011 NBCA 61;(2011), 375 N.B.R.(2d) 293 (CA)

Trevors v. Jenkins (2011), 375 N.B.R.(2d) 293 (CA);

    375 R.N.-B.(2e) 293; 969 A.P.R. 293

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: [2011] N.B.R.(2d) TBEd. JL.013

Renvoi temp.: [2011] N.B.R.(2d) TBEd. JL.013

Edward Arnold Trevors (appellant) v. Pearl A. Jenkins (respondent)

(51-10-CA; 2011 NBCA 61)

Indexed As: Trevors v. Jenkins

Répertorié: Trevors v. Jenkins

New Brunswick Court of Appeal

Bell, Quigg and Green, JJ.A.

July 21, 2011.

Summary:

Résumé:

The husband moved for a retroactive variation of his child support payments, which included arrears. The husband was also subject to an order that directed that if he did not make his child support payments, the court administrator was to prepare the necessary documents to have him incarcerated for 10 days in respect of each monthly payment.

The New Brunswick Court of Queen's Bench, Family Division, in a decision not reported in this series of reports, dismissed the motion. The court held that the husband was underemployed. As a result, the court imputed income to him. The court ordered that a monthly payment of $200 toward arrears continue. The husband appealed against the dismissal of the variation motion and against the incarceration order.

The New Brunswick Court of Appeal allowed the appeal. The court reduced the husband's child support payments where the lower court had erred in calculating the husband's income. The $200 arrears payment order remained in place. The court set aside the incarceration order.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The trial judge, ruling on a motion for variation, found that the husband was intentionally underemployed and set child support based on the husband's income for the period of May 2007 to June 2008, $55,568 - The New Brunswick Court of Appeal upheld the underemployment finding but quashed the income calculation - The trial judge had not undertaken any analysis to determine whether a change of circumstances had occurred and had erred by finding that the husband had not provided sufficient income documentation - Proceeding to do the calculation that should have been done at first instance, and determining an amount that was fair and reasonable, the court considered the husband's income for the period June 2005 to December 2009, and determined that the income was $30,927.25 per year - The court found it inappropriate to rely on the three-year provision of s. 17 of the Federal Child Support Guidelines given the underemployment finding at first instance - See paragraphs 10 to 15.

Family Law - Topic 4054.5

Divorce - Corollary relief - Maintenance - Enforcement - Imprisonment - A motion judge ordered that if the husband did not make his child support payments, the court administrator was to prepare the necessary documents to have him incarcerated for 10 days in respect of each monthly payment - The New Brunswick Court of Appeal quashed the incarceration order after setting aside the original child support order - The court indicated that since s. 35(2)(c) of the Support Enforcement Act (N.B.) stated that an order for imprisonment shall not be for a period longer than 90 days, notwithstanding that the default had not been remedied, the court was not convinced that this section permitted a continuation of the prospect of incarceration on an indefinite basis without first having a show cause hearing where the payor could explain his or her reason for non-payment - See paragraphs 16 to 18.

Family Law - Topic 4170

Divorce - Practice - Appeals - Duty of appellate court - Discretionary orders - The New Brunswick Court of Appeal, ruling on an appeal against the dismissal of a motion for the variation of child support, held as follows respecting the standard of review: "Although I am mindful of the fact that appellate courts should be reticent to interfere with a motion judge's exercise of discretion, I believe this is a case where the exercise of discretion must be reviewed on the basis of reasonableness. Our role remains one that requires a review of the record to ensure compliance with statutory law and common law principles. This Court will remain vigilant to ensure compliance with both" - See paragraph 7.

Droit de la famille - Cote 4045.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires pour enfants (y compris les cas hors-divorce) - Calcul ou attribution du revenu - [Voir Family Law - Topic 4045.5 ].

Droit de la famille - Cote 4054.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Exécution - Emprisonnement - [Voir Family Law - Topic 4054.5 ].

Droit de la famille - Cote 4170

Divorce - Procédure - Appels - Devoirs de la Cour d'appel - Ordonnances discrétionnaires - [Voir Family Law - Topic 4170 ].

Cases Noticed:

MacDonald v. MacDonald (2011), 372 N.B.R.(2d) 179; 961 A.P.R. 179; 2011 NBCA 25, consd. [para. 7].

Scott v. Scott (2004), 278 N.B.R.(2d) 61; 728 A.P.R. 61; 2004 NBCA 99, consd. [para. 8].

Statutes Noticed:

Support Enforcement Act, S.N.B. 2005, c. S-15.5, sect. 35(2)(c) [para. 17].

Counsel:

Avocats:

Edward Arnold Trevors appeared in person;

Pearl A. Jenkins appeared in person.

This appeal was heard on March 24, 2011, by Bell, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. The following decision of the Court of Appeal was delivered in both official languages on July 21, 2011, by Quigg, J.A.