Focus On

MAINTENANCE AND SUPPORT - Child support - Retroactive - Enforcement of orders - Arrears of maintenance

Wednesday, April 04, 2018 @ 5:24 AM  

Lexis Advance® Quicklaw®
Appeal by the mother and cross appeal by the father from a motion judge’s decision assessing child support. The parties divorced in 2009 and had four children. A consent order provided the mother would have primary care and it also specified the child support amount payable by the father, which deviated from the Table amount. A court order varied the child support amount and a motion judge determined the previous order was redundant on the basis the respondent had increased access, the appellant’s income had increased and other considerations. Child support was then fixed at $1,200 monthly, which was $685 less than the Table amount. The appellant filed a motion to vary the child support on the basis the eldest child was no longer dependent and that the parties’ incomes had changed. The motion judge acknowledged a change had occurred and assessed arrears. At issue on appeal from this motion was the interpretation and application of ss. 3 and 14 of the Federal Child Support Guidelines, which permitted a court to award retroactive and prospective child support orders. The appellant argued the motion judge assessed child support in an amount that deviated from the Guidelines Table amount without providing reasons and that the motion judge’s order regarding arrears repayment was arbitrary. The appellant also alleged the overall result had insufficient reasons. The respondent cross-appealed on the grounds the motion judge erred in law and in fact when he required him to contribute retroactively and prospectively towards the payment of special expenses for the children. Further, he argued the motion judge’s order contravened s. 7(3) of the Guidelines as it failed to consider the tax credits, subsidies or other third party payments available to the appellant in relation to these expenses, prior to establishing the proportionate shares.

HELD: Appeal allowed; cross-appeal allowed. The motion judge’s conclusory findings were not supported by adequate reasons. The motion judge erred when he relied on the prior court orders to justify his decision to maintain the same percentage deviation from the Table amount with no explanation as to how this result met the objectives of the Guidelines. An order which established how child support arrears were to be paid should not have been arbitrary. It must have been grounded on the basis of a reasoned and articulated analysis of the financial realities of the parties. A recipient spouse was not a lender or a mortgagee to a payor spouse who owed arrears in support. He or she should not have been required to finance the blameworthy conduct of a payor. The purported analysis did not even meet minimal expectations. A judge could not escape the responsibility of providing adequate reasons by cutting and pasting from draft orders prepared in advance by counsel.

T.M.D. v. J.P.G., [2018] N.B.J. No. 44, New Brunswick Court of Appeal, J.C.M. Richard, B.V. Green and B.L. Baird JJ.A., March 15, 2018. Digest No. TLD-April22018006