2012 NBCA 70, 2012 NBCA 70

COURT OF APPEAL OF NEW BRUNSWICK 7-12-CA JOSEPH URBAIN DOIRON (Respondent) APPELLANT - and - KIMBERLY WILCOX (Applicant) RESPONDENT JOSEPH URBAIN DOIRON (Intimé) APPELANT - et - KIMBERLY WILCOX (Requérante) INTIMÉE Doiron v. Wilcox, 2012 NBCA 70 Doiron c.

Wilcox, 2012 NBCA 70 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Quigg L’honorable juge Green Appeal from an Order of the Court of Queen’s Bench: October 14, 2011 Appel d’une ordonnance de la Cour du Banc de la Reine : Le 14 octobre 2011 History of the Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: May 10, 2012 Appel entendu : Le 10 mai 2012 Judgment rendered August 9, 2012 Jugement rendu : Le 9 août 2012

Counsel at the hearing: For the appellant: Joseph Urbain Doiron appeared in person For the respondent: No one appeared for Kimberly Wilcox Avocats à l’audience : Pour l’appelant : Joseph Urbain Doiron a comparu en personne Pour l’intimée : Personne n’a comparu pour Kimberly Wilcox THE COURT The appeal is dismissed without costs. LA COUR Rejette l’appel sans dépens. The following is the judgment delivered by THE COURT I.

Introduction [ 1 ] This is an appeal of a decision from a judge of the Court of Queen’s Bench, Family Division, awarding relief pursuant to the Interjurisdictional Support Orders Act , S.N.B. 2002, c. I-12.05, following a motion seeking a retroactive variation of child support and child support arrears by Ms. Wilcox. II. Background [ 2 ] The parties were married in October 1987, have one child, and separated in August 1988. They divorced by a Divorce Judgment of the Supreme Court of Ontario dated October 19, 1989. The Order for Corollary Relief solely provided that Ms.

Wilcox was to have custody of the child of the marriage and Mr. Doiron would not have access. The Order did not speak to child support. On July 21, 1992, Ms. Wilcox was heard on an ex parte application, in Ontario, requesting a variation of the Order so that Mr. Doiron would be ordered not to have any contact with Ms. Wilcox, the child, or Ms. Wilcox’s family members except through counsel for Ms. Wilcox, and that Mr. Doiron not attend to Ms. Wilcox’s father’s residence. This variation was granted and the order for corollary relief was amended. [ 3 ] On August 14, 1998, Ms.

Wilcox appeared before a Provincial Court judge in Ontario and requested child support under provincial legislation, the Reciprocal Enforcement of Support Orders Act, R.S.O. 1990, c R.7. A review of the record reveals the Provincial Court judge discussed the question of jurisdiction, as the parties were divorced, and determined he had jurisdiction over the matter because the Divorce Judgment, the Order for Corollary Relief and the subsequent variation of the Order for Corollary Relief were all silent regarding child support. Thus, a Provisional Order respecting child support was made. The Provisional

Order was forwarded to the New Brunswick Court of Queen’s Bench, Family Division, for confirmation. The matter was heard by a judge of the Court of Queen’s Bench, Family Division. At the hearing, counsel for Mr. Doiron raised the question of whether the Provisional Order was of any effect as the parties were divorced.

The judge undertook a lengthy analysis respecting jurisdiction, and, in her analysis, discussed jurisprudence which holds that, if a Divorce Judgement is silent respecting support, parties are not prevented from seeking support under provincial legislation, nor does it invalidate a provisional order. On that basis, the judge proceeded with the confirmation hearing and, in the end result, issued an order confirming the Provisional Order with variations. This 1999 decision was not appealed and the question of jurisdiction was not raised respecting the present case.

As a result, we do not have to address the issue. [ 4 ] In August 2009, Ms. Wilcox filed a Support Variation Application, pursuant to the Interjurisdictional Support Orders Act , in Calgary, Alberta. The parties appeared before a judge of the Court of Queen’s Bench of New Brunswick, Family Division, on February 11, 2010, but Mr. Doiron’s lawyer was unable to be present. An adjournment was granted and the parties returned to Court on August 5, 2010, at which time the hearing was adjourned to October 14, 2010. By that time, Mr. Doiron had retained a new lawyer to represent him.

Unfortunately, after a full day of testimony, the application judge was not in a position to determine what amount of child support or retroactive arrears were payable as she did not possess the accurate financial information necessary to make a determination. The judge ordered Mr. Doiron’s counsel to summon a loans officer, with whom Mr. Doiron had dealt to obtain loans and mortgages, as well as Mr. Doiron’s accountant to attend the next hearing. [ 5 ] The next hearing was set for June 21, 2011. At that time, Mr. Doiron advised the application judge that he was representing himself. On June 9, 2011, Mr.

Doiron filed a Notice of Intention to Act in Person with the Court of Queen’s Bench. The application judge reiterated that she had ordered Mr. Doiron’s accountant and loans officer to be present in order to confirm the documentation that had been provided to the bank for the purposes of mortgage financing, as well as the deductions Mr. Doiron was claiming due to income he received by being self-employed. Mr. Doiron advised the judge he had not contacted either witness, as he believed it was his lawyer’s responsibility to do so even though she had ended their solicitor/client relationship a week previously.

After hearing submissions from Mr. Doiron and counsel for Ms. Wilcox, the Court took a recess in order for the parties to discuss the possibility of settlement. [ 6 ] After the recess, the parties returned and counsel for Ms. Wilcox advised the Court that an agreement had been reached and that Mr. Doiron was amenable to $45,000 as the amount for his annual income. The child support payable on that basis was $388 per month over a four-year period, for a total of $18,624. Mr.

Doiron was to be given credit for the monthly payments of $94 he made during the period. [ 7 ] The issue of post-secondary education expenses was reviewed and the judge determined, correctly, that she did not have the appropriate evidence respecting the tax credits to decide the issue. The judge requested Ms. Wilcox to obtain information from her accountant to confirm what had been claimed on her behalf and to provide her 2009 and 2010 tax returns. Mr. Doiron was given an opportunity to respond to this issue.

As an aside, the judge later decided this issue by way of written decision dated November 23, 2011, wherein she determined, based on the information forwarded to her by Ms. Wilcox post-hearing, that Mr. Doiron was responsible for the amount of $2,400 for these expenses. This determination is not under appeal. [ 8 ] During the June 21, 2011 hearing, the parties returned to the issue regarding the child support arrears. Toward the end of the hearing the application judge attempted to confirm with Mr. Doiron that he had agreed to the amount of $45,000 as his annual income for a four-year period. Mr.

Doiron said he agreed to that amount because he was “forced to agree”. At that point, the judge advised Mr. Doiron she was not accepting any statement wherein he claimed to have been forced to agree, and that Mr. Doiron “either agreed or didn’t agree”. Mr. Doiron stated he agreed. Therefore, based on the amount of $45,000, a computation was made and Mr. Doiron was ordered to pay $14,112. III. Grounds of Appeal Mr. Doiron alleges the application judge erred:

(1) When she imputed annual income of $45,000 per year to the appellant for the purpose of calculating retroactive arrears;

(2) In not allowing him time to obtain Notices of Reassessment from Canada Revenue Agency. This information would have provided the proper income and would have made it unnecessary for the judge to impute income;

(3) Because Notices of Reassessment were obtained from Canada Revenue Agency after the Order was made and they accuratelyreflected Mr. Doiron’s income for the period which was the subject of the Order for retroactive arrears. Mr. Doiron requests the Court ofAppeal to receive this evidence under Rule 62.21(2)(

b) of the Rules of Court;

(4) By obtaining the consent to the amount of income, as it was not valid and could not be relied on. It was obtained by the Courtwhile Mr. Doiron was under duress. Mr. Doiron says the judge caused this duress by threatening and badgering him with a variety ofnegative threats and statements with the purpose of making him consent to the amount of imputed income. As a result, the consentprovided was not valid and should not be a bar to an appeal of his decision. Mr. Doiron requests the Court of Appeal to receive evidenceon this point under Rule 62.21(2)(

b) of the Rules of Court;

(5) By accepting Mr. Doiron’s consent though it was not valid due to the inequality of power between the parties and theunconscionable treatment of Mr. Doiron by the Court. Mr. Doiron was not represented by counsel when he consented to the amount ofimputed income, he did not have independent legal advice on the issue of imputed income or the appropriateness of imputing income inthis instance. Mr.

Doiron says he was “under distress and not able to think clearly when he consented to this because of the threats and illtreatment he was receiving from the Court, he has a grade 5 education, poor reading and language skills and very little understanding ofcomplicated legal concepts such as imputing income or the effect of consenting to the imputing of income”. Mr. Doiron requests theCourt of Appeal to receive evidence on this point under Rule 62.21(2)(

b) of the Rules of Court. IV. Standard of Review [9] In family cases, application judges' decisions are to be given considerable deference. InMacDonald v. MacDonald, 2011 NBCA 25, 372 N.B.R. (2d) 179, Larlee J.A. states: [...] An appellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error inprinciple, a significant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2S.C.R. 518, [1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v.

Levesque, 2009NBCA 47, [2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton, 2008 NBCA87, 338 N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v. V.B., 2007 NBCA 69,321 N.B.R. (2d) 314, para. 2). [para. 7] [10] Larlee J.A. discusses the standard of review applicable in cases regarding family matters inP.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100: The appropriate standard of review to be applied in an appeal of this nature is discussed in Van de Perre v. Edwards, [2001] 2 S.C.R.1014, [2001] S.C.J.

No. 60 (QL), 2001 SCC 60. The Supreme Court of Canada set out a standard of considerable deference for thedecisions of trial courts in cases of family law. Intervention on appeal requires that there have been a material error, a seriousmisapprehension of the evidence, or an error of law. […] […] […] See this Court's decisions on the application of the deferential standard: MacLean v. MacLean (2004), 274 N.B.R. (2d) 90, [2004]N.B.J. No. 363 (QL), 2004 NBCA 75 at para. 18; J.P. v. R.R. (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98at para. 27; Scott v.

Scott (2004), 278 N.B.R. (2d) 61, [2004] N.B.J. No. 468 (QL), 2004 NBCA 99 at para. 32 and Boudreau v. Brun(2005), 293 N.B.R. (2d) 126, [2005] N.B.J. No. 501 (QL), 2005 NBCA 106 at para. 5. [paras. 8-9] [Emphasis added.]

[11] This is consistent with Richard J.A.'s comments in J.E.J. v. S.L.M., 2007 NBCA 33, 318 N.B.R.(2d) 119: I am mindful of the standard of review that governs appeals in custody, access and support matters, pursuant to which the decision infirst instance must be given considerable deference. However, an appellate court is nevertheless empowered to set aside or vary adecision or order in these types of cases where it is the product of an error of law, an error in principle, a significant misapprehension ofthe evidence or if it is clearly wrong: see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J.

No. 9 (QL) atpara. 11 and Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, [2001] S.C.J. No. 60 (QL), 2001 SCC 60. [para. 35] In the case before us we do not believe the application judge erred. V. Analysis [12] In the present case, the application was brought, pursuant to the Interjurisdictional SupportOrders Act, for a retroactive variation of child support. The application judge found Mr. Doiron agreed to his income being $45,000 and,on that basis, the amount owed for retroactive child support was $14,112. Mr.

Doiron now requests that the application judge’s order bevaried and the amount of annual income and the amount of retroactive arrears be varied to reflect his updated income information. In thealternative, he asks that the order be set aside and a new hearing be held. Mr. Doiron also requested the Court receive new evidencewhich included updated financial information and to extend his time for filing the Notice of Appeal. [13] We will deal with each of Mr. Doiron’s grounds of appeal as they appear in his Notice ofAppeal.

(1) Error in imputing income to be $45,000 a year [14] A review of the record reveals that the application judge did not impute income in this case. Mr.Doiron agreed to the amount of $45,000.

(2) Mr. Doiron advised the application judge he was in the process of obtaining Notices of Reassessment [15] Mr. Doiron submits the new information would have provided the proper amount of incomeinformation and made it unnecessary for the judge to impute income. We can only reiterate – no income was imputed, Mr. Doiron agreedto the amount of income.

(3) The Notices of Reassessment were obtained by Mr. Doiron after the order was made [16] According to Mr. Doiron, these reassessments accurately reflect his income for the years thatwere the subject of the order for retroactive arrears. Again, these reassessments would not make any difference as Mr. Doiron agreed hisincome was $45,000 per year for the years in question.

(4) The consent (or agreement to amount of income) was obtained while Mr. Doiron was under duress [17] Mr. Doiron submits the judge caused this duress by “threatening and badgering the appellantwith a variety of negative threats and statements with the purpose of making the appellant consent to the amount of imputed income”. [18] We have read the transcripts of August 5, 2010, October 14, 2010 and June 21, 2011. We couldnot isolate any statements by the application judge that could be interpreted as “threatening” or “badgering”. We can say with certaintythat the record indicates Mr.

Doiron was evasive and disrespectful in his responses to opposing counsel. Understandably, this would haveled to frustration on the part of the judge. Moreover, there are many occasions when Mr. Doiron completely evaded responding to

questions. Mr. Doiron was present for the October 14, 2010 hearing when the application judge ordered his lawyer to have all financialinformation available, as well as the loans officer and Mr. Doiron’s accountant for the next hearing. Mr. Doiron had in excess of sevenmonths to obtain the financial documentation requested and produce the witnesses required by the judge. Mr. Doiron terminated hisrelationship with his lawyer a few weeks prior to the hearing in June 2011 and the responsibility to have the proper financial informationbefore the Court for the hearing then fell upon him.

(5) Mr. Doiron submits his consent was not valid [19] Mr. Doiron states he gave his consent as a result of the inequality of power between the partiesand “unconscionable treatment by the Court”. He also submits he was not represented by counsel when he consented to the amount ofincome, he did not have independent legal advice respecting this issue, he was under duress and was not able to think clearly when heconsented because of the “threats and ill-treatment” he was receiving from the Court.

He further argues that his lack of education, poorliteracy skills and little understanding of legal concepts all allow this Court to receive fresh evidence. [20] Again, a review of the transcript does not reveal any inappropriate treatment by the judgetoward Mr. Doiron. She was merely attempting to have Mr. Doiron respond to the questions posed to him. Mr. Doiron was very adroit atdodging most questions. The income tax information for years 2007, 2008, and 2009, was available at the time of the June hearing; forwhatever reason, Mr.

Doiron elected not to provide the information to the Court and, we repeat, consented to use the amount of $45,000as his income for those years. In the hearing before us, Mr. Doiron, by way of motion, sought to adduce further evidence pursuant toRule 62.21(2)(c). His fresh evidence included a Notice of Assessment, dated February 3, 2012, which indicates he had no income (forwhich year we are not certain) and he owed $4,365.88 in taxes. In R.P. v.

R.C., 2011 SCC 65, [2011] 3 S.C.R. 819, a family caseconcerning the variation of a spousal support order, the Supreme Court discusses the test for admission of fresh evidence: On an application to adduce fresh evidence, the applicant must demonstrate that the evidence meets the test for admission from Palmer v.The Queen, (SCC), [1980] 1 S.C.R. 759, at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen (SCC), [1964]S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [para. 50] [21] An examination of the evidence leads us to conclude that the evidence could have been adducedat the hearing of the application if Mr. Doiron had exercised due diligence. We would therefore dismiss the motion to adduce furtherevidence as it does not meet the test as set out in R. v. Palmer (see also MacDonald v. MacDonald, 2011 NBCA 25, 372 N.B.R. (2d) 179,D.L.M. v. J.A.M., 2008 NBCA 2, 326 N.B.R. (2d) 111 and P.R.H. v.

M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100). [22] Finally, there is nothing in the record, including the transcript of the two-day hearing, topersuade us that Mr. Doiron was treated unconscionably or denied a fair trial. This ground of appeal must fail. VI. Disposition [23] For the above reasons, we dismiss the appeal without costs as no one appeared on behalf of Ms.Wilcox.

______________________________ M.E.L. LARLEE, J.A. _______________________________ KATHLEEN A. QUIGG, J.A. ______________________________ BRADLEY V. GREEN, J.A.