Vincent v. Vincent, (1995) 132 Nfld. & P.E.I.R. 181 (NFCA)

• Judge: Gushue, O'Neill and Marshall, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: July 26, 1995
• Jurisdiction: Newfoundland and Labrador
• Citations: (1995), 132 Nfld. & P.E.I.R. 181 (NFCA)

Vincent v. Vincent (1995), 132 Nfld. & P.E.I.R. 181 (NFCA);

    410 A.P.R. 181

MLB headnote and full text

Derrick Frederick Vincent (appellant) v. Evelyn Marie Vincent (respondent)

(1994 No. 203)

Indexed As: Vincent v. Vincent

Newfoundland Supreme Court

Court of Appeal

Gushue, O'Neill and Marshall, JJ.A.

July 26, 1995.

Summary:

A divorced wife applied for an increase in child support.

The Newfoundland Supreme Court, Unified Family Court, in a decision reported 123 Nfld. & P.E.I.R. 295; 382 A.P.R. 295, allowed the application. The husband appealed.

The Newfoundland Supreme Court, Court of Appeal, dismissed the appeal.

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance awards - Effect of income tax liability - A divorced wife sought an increase in child support - The trial judge determined that support should be $1,000 per month which amount was to be grossed up for income tax - On appeal the husband asserted that there was insufficient evi­dence as to the tax consequences of the monthly payment on either of the parties - The Newfound­land Court of Appeal affirmed the order, stating that it was reasonable to consider that the tax com­pensation should be at the wife's mar­ginal rate - See paragraphs 71 to 79.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - [See Family Law - Topic 4004 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought an increase in child support - The trial judge determined that support should be $1,000 per month - In affirming the award, the Newfoundland Court of Appeal stated that it was not endorsing the trial decision's premise that the share of each spouse's contribution should be deter­mined accord­ing to the proportion by which each one's gross income bears to their total income - Undue hardship may result if a deduction is not first made for the earner's subsis­tence - In this case the error was not fatal where the wife received what she requested and it was common ground that the award was not inordinate - See para­graphs 84 to 88.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought an increase in child support - The trial judge determined that support should be $1,000 per month - On appeal the husband asserted that the trial judge wrongly based the reasonable costs of the children's upbringing solely upon a percentage of the spouses' income (the "litmus test") - The Newfoundland Court of Appeal agreed that it was wrong to relate the reasonable costs exclusively to a percentage of the spouses' incomes, but affirmed the award, where the trial judge had applied the litmus test as part of the overall process of arriving at a fit award - Even if undue emphasis was placed on the test, the award was not inordinate and any resulting error was not material - See paragraphs 49 to 64.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought an increase in child support - The trial judge determined that support should be $1,000 per month - On appeal the husband asserted that the award erroneously included a measure of spousal support which the wife had not sought - The Newfoundland Court of Appeal rejected the assertion, stating that "... it is impossible to make an award without the custodial parent deriving some benefit from it." - See paragraph 66.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - The Newfoundland Court of Appeal rejected the assertion that in calculating child sup­port, the children's needs should be related to a community standard - See paragraph 51.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - The Newfoundland Court of Appeal stated that "... the aim of continuing the children's standard of living at the same level as existed at the time of their parents' separ­ation does not mean it is permanently frozen at that point. The children of the dissolved marriage are entitled to increased expectations in proportion to significant accruals to their parents' fortunes to the same degree as those in a functioning family unit." - See paragraph 52.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - The Newfoundland Court of Appeal dis­cussed the principles governing the calcu­lation of awards for child support, the discretion granted to the court at first instance and the need for curial deference at the appellate level - See paragraphs 24 to 48.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Considerations - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4021.1

Divorce - Corollary relief - Mainten­ance awards - Consider­ations - Financial con­sequences of child care - The New­found­land Court of Appeal rejected the assertion that child support should be approached exclusively from the standpoint of the cost of raising the children of a dissolved mar­riage - See paragraph 50.

Cases Noticed:

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26; 116 D.L.R.(4th) 314 (C.A.), consd. [para. 8].

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, consd. [para. 33].

Paras v. Paras, [1971] 1 O.R. 130; 2 R.F.L. 323; 14 D.L.R.(3d) 546 (C.A.), consd. [para. 38].

Harrington v. Harrington (1981), 123 D.L.R.(3d) 689 (Ont. C.A.), consd. [para. 45].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81; [1987] 4 W.W.R. 481; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 45].

Allan v. Allan (1983), 81 Nfld. & P.E.I.R. 271; 255 A.P.R. 271 (Nfld. U.F.C.), consd. [para. 59].

Blanchard v. Blanchard (1987), 64 Nfld. & P.E.I.R. 15; 197 A.P.R. 15 (Nfld. T.D.), consd. [para. 59].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699; 17 C.P.C.(2d) 104, consd. [para. 66].

Thibaudeau v. Minister of National Rev­enue (1995), 182 N.R. 1 (S.C.C.), consd. [para. 72].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, consd. [para. 76].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 11(1)(b) [para. 32]; sect. 15(5) [paras. 26, 29]; sect. 17 [para. 26]; sect. 17(4) [paras. 27, 29, 33].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 56(1)(b) [paras. 71, 74]; sect. 60(b) [para. 74].

Counsel:

Barry Learmonth, for the appellant;

Irene Muzychka, for the respondent.

This appeal was heard on June 8, 1995, before Gushue, O'Neill and Marshall, JJ.A., of the Newfoundland Court of Appeal.

On July 26, 1995, Marshall, J.A., delivered the following judgment for the Court of Appeal.