r v. Braund, 2018 NLCA 3

Darren Dion Taylor (appellant) v. Juanita Lynn Braund (Taylor) (respondent) (17/66) Indexed As: Taylor v. Braund (Taylor) 2018 NLCA 3 2 C.A.N.L.R. 428 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. *, Welsh and O’Brien JJ.A. January 16, 2018

Summary: The appellant, Darren Dion Taylor, and the respondent, Juanita Lynn Braund (Taylor), married in 1994 and divorced in 2012. On April 23, 2015, Mr. Taylor and Ms. Braund entered into a consent order for child support, whereby Mr. Taylor agreed to pay Ms. Braund $374 per month for the support of their two children. The consent order included a recalculation clause pursuant to which, the amount of child support payable was to be reviewed annually and, where necessary, recalculated. In June or July 2016, the Recalculation Office reviewed Mr.

Taylor’s 2015 income and reduced the child support payable from $374 per month to $271.47 per month. Ms. Braund filed an objection in the Supreme Court Trial Division, which was dismissed. Two days later Ms. Braund filed an application to vary the amount of child support payable. The variation application was heard in May 2017, at which time Mr. Taylor’s income was determined to be $78,500. He was ordered to pay $1116.70 per month payment, retroactive to November 1, 2016, as Ms. Braund had filed the variation application in late October 2016. Mr. Taylor appealed the retroactive order and a dental expense.

Held: Appeal dismissed. O’Brien J.A. (Green and Welsh JJ.A. concurring): The first issue is whether the applications judge erred in making a child support variation order without considering whether: there had been a material change in circumstances; that the variation application was filed just two days after the Child Support Variation Order (Recalculated) had been made; and whether the variation application complied with the requirements of the Trial Division Family Rules (Part IV of the Rules of the Supreme Court, 1986 ). The second issue is whether Mr.

Taylor received a fair hearing before the child support variation order was made. While the applications judge did not explicitly state, either in the reasons for judgment or the order, that there was a material change in circumstances, it is apparent from both that the judge considered Mr. Taylor’s significant increase in income in 2016 as the basis upon which the variation order was made. A change in income can constitute a change in circumstances in the context of a variation application. ______________________ * Green C.J.N.L. elected supernumerary status and resigned as Chief Justice on December 1, 2017.

The objection hearing on October 25, 2016 was limited in scope, because it dealt solely with the notice of objection filed by Ms. Braund and was limited to reviewing Mr. Taylor’s 2015 income. The limited scope of the objection hearing meant that there was no consideration of Mr. Taylor’s 2016 income; a variation application was the appropriate tool to consider the change in income.

While recalculation and variation are both possible avenues to effect a change in child support payments, the recalculation process and the variation application are two distinct proceedings which co-exist and do not serve the same purpose. In addition to requiring a material change in circumstances, rule F5.02(1) of the Trial Division Family Rules also mandates that an application for variation can only be made where 180 days have expired from the date of the original child support order, or where a judge grants permission. Mr.

Taylor argued that, as the variation application was brought two days after the recalculated Child Support Order, and no permission was granted to bring the application the 180 day requirement was not met. However, rule F5 does not apply to the recalculation of child support orders made under the Child Support Service Regulations , nor orders made at an objection hearing

concerning recalculation. Moreover, the variation application pre-dated the current Trial Division Family Rules, which came into force March 1, 2017. There wasno requirement in the former rules to wait until 180 days expired from the date of the order, or otherwise seek judicial permission, beforeapplying for variation. This is another basis to relieve Ms. Braund of the requirements of the rule. Nor was Mr. Taylor denied a fair hearing. While informal, and characterized by Mr. Taylor’s counsel as a “haphazard discussion”regarding Mr.

Taylor’s income and employment, there was certainly an opportunity for the parties to state their positions to theapplications judge and they did so. It was open to the judge to rely on the information provided by Mr. Taylor and counsel on his behalfregarding Mr. Taylor’s 2016 income, especially given that the income amount had been admitted and was not contested. It was notarticulated how the absence of direct examination or cross-examination under oath or affirmation on the issue of Mr. Taylor’s incomecould have amounted to a breach of procedural fairness.

The relevant income information provided to the applications judge in this casewas essentially an admission. The judge did not err in awarding the amount of $343.48 for a dental expense. This claim appears to have been included in the variationapplication and as it was a live issue discussed by the parties at the variation hearing and considered by the application’s judge in thereasons for judgment.

The order for retroactive support is consistent with the general rule that once a variation application is filed, the party responding to theapplication knows (or should know) there is jeopardy that the variation order may be effective from the date of the application. There isnothing in the facts of the present case which would preclude the application of the general rule. The applications judge made no error in ordering the payment of child support on a retroactive basis. Ms. Braund, having been successful on the appeal, should be awarded costs of the appeal.

There is nothing specific about this appeal, orits conduct, which would warrant a costs award greater than on Column 3 of the Scale of Costs. No costs were awarded by theapplications judge on the variation application, and there is no basis to interfere with that determination. There being no errors in the trial judgment, the appeal was dismissed. Cases cited: Willick v. Willick, (SCC), [1994] 3 S.C.R. 670 D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 Pinter v. Pinter, 2016 ABCA 58 Beanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) Locke v.

Goulding, 2012 NLCA 8, 318 Nfld. & P.E.I.R. 91 Taylor v. Braund (Taylor), 2017 NLCA 52 Counsel: Alexandra Kindervater, for the appellant; Daniel Glover, for the respondent. This appeal was heard on September 8, 2017 before Green C.J.N.L.*, Welsh and O’Brien JJ.A. The following judgment was delivered on January 16, 2018 by O’Brien J.A for the Court. ______________________________________________________________

O’Brien J.A.: Introduction [ 1 ] This is an appeal of a child support variation order filed in the Supreme Court of Newfoundland and Labrador, Trial Division on July 5, 2017.

The appeal involves the interaction between a recalculation order and a variation order in the context of child support proceedings, and also considers what constitutes a breach of natural justice and procedural fairness in the same context. [ 2 ] The appellant argues that the Court erred in making a variation order for child support and in failing to provide a fair hearing before the variation order was made. [ 3 ] For the reasons which follow, I would dismiss the appeal. Background [ 4 ] The appellant, Darren Dion Taylor, and the respondent, Juanita Lynn Braund (Taylor), married in 1994 and divorced in 2012.

Mr. Taylor is currently paying child support for the two youngest children of the marriage, ages 18 and 15 respectively. Consent Order [ 5 ] On April 23, 2015, Mr. Taylor and Ms. Braund entered into a consent order for child support, whereby Mr. Taylor agreed to pay Ms. Braund $374 per month for the support of the two children. The support award was based on Mr. Taylor’s annual income at the time of the consent order, which was $26,720.

While not explicitly stated in the consent order, it appears the quantum of support would have been calculated with reference to the Federal Child Support Guidelines, SOR/97-175. [ 6 ] The consent order included a recalculation clause. The amount of child support payable was to be reviewed annually and, where necessary, recalculated on or before the 15th day of June of each year, commencing 2016, pursuant to the Child Support Service Regulations, NLR 31/07 (made under the authority of the Family Law Act , RSNL 1990, c. F-2). [ 7 ]

Section 3 of the Child Support Service Regulations refers to a Recalculation Office, which is designated as a “child support service for the purpose of

section 25.1 of the Divorce Act (Canada)…”. [ 8 ]

Section 25.1 of the Divorce Act , RSC 1985, c.3 (2nd Supp.) provides that the Government of Canada may enter into an agreement with a province authorizing a provincial child support service to recalculate, at regular intervals and in accordance with the applicable guidelines, the quantum of child support orders, based on regularly updated income information. [ 9 ] The Child Support Service Regulations describe the process by which child support orders, such as the consent order between Mr. Taylor and Ms.

Braund, can be recalculated. [ 10 ] The duties of the Recalculation Office, which are set out in section 3(2) of the Child Support Service Regulations , include “monitoring compliance with child support orders requiring the periodic filing of income information” and “reviewing and recalculating the amount of a child support order…”. [ 11 ] The consent order between Mr. Taylor and Ms.

Braund indicated that, in the event a recalculation resulted in a difference of five dollars or more per month in the amount of child support, the Recalculation Office would recalculate the amount of child support payable and provide notice of the proposed recalculated amount to each party. [ 12 ] If either party objected to the proposed change in the amount of child support payable, either party could file a notice of objection to the recalculated amount, again pursuant to the Child Support Service Regulations .

Recalculation and Notice of Objection [ 13 ] It appears that in June or July 2016, the Recalculation Office reviewed Mr. Taylor’s 2015 income, which was $18,091. Based on this information, the child support payable by Mr. Taylor was recalculated and reduced from $374 per month to $271.47 per month. The parties were advised of this recalculation. [ 14 ] On July 26, 2016 Ms. Braund filed a notice of objection in the Trial Division, objecting to the recalculated amount of $271.47. In the notice of objection Ms. Braund stated, as one of the reasons for her objection, her belief that Mr.

Taylor did not report all of his income to the Recalculation Office. [ 15 ] On October 25, 2016 a hearing occurred in the Trial Division to consider Ms. Braund’s notice of objection (the objection hearing). Based on the evidence of Mr. Taylor’s 2015 income, which was $18,091, the Court dismissed the objection, confirmed the recalculated amount and ordered that $271 per month be paid by Mr. Taylor for child support. [ 16 ] The order relating to the objection hearing was made on October 25, 2016 and filed on November 16, 2016.

It was styled as a Child Support Variation Order (Recalculated) and provided that payments of $271 per month would commence from August 2016. The order also included a recalculation clause, with the first recalculation review to occur in August 2017. Variation Application [ 17 ] On October 27, 2016, just two days after the objection hearing, Ms. Braund filed in the Trial Division an Originating Application

for Variation (the variation application) with respect to child support. [ 18 ] The variation application stated the reason for seeking a variation was that Mr. Taylor’s income had increased. Ms. Braund requested the “maximum amount” for child support “based [on the] Child Support Guidelines”. The variation application also included a further claim of $500 for an unspecified health related special expense. [ 19 ] At a case management meeting in February 2017, Mr.

Taylor was ordered to file with the Court certain information about his income, and the matter was set for a hearing on May 30, 2017. [ 20 ] The variation application was heard in the Trial Division on May 30, 2017, at which time Mr. Taylor, and counsel on his behalf, were asked by the applications judge about Mr. Taylor’s 2016 earned income. The Court was advised that Mr. Taylor’s 2016 income was $78,000. (Income tax information subsequently provided to the Court on behalf of Mr. Taylor indicated that Mr.

Taylor’s 2016 income was slightly higher than that, and was $78,500.) [ 21 ] The applications judge hearing the variation application suggested that the parties should attempt to settle the matter and, if no settlement was achieved, the Court would make an order based on the information provided at the May 30, 2017 hearing. No objection was taken to this proposed mode of addressing the matter.

Child Support Variation Order [ 22 ] No settlement was achieved, and the applications judge made a decision on the variation application and filed a Child Support Variation Order on July 5, 2017 (the variation order). [ 23 ] The Court ordered that Mr.

Taylor pay child support “based on his income for 2016 in the amount of $78,500, the sum of $1116.70 per month, in accordance with the Child Support Guidelines for the Province of Newfoundland and Labrador.” This amount was ordered to be paid commencing July 1, 2017. [ 24 ] The Court also ordered that the $1116.70 per month payment was retroactive to November 1, 2016, as Ms. Braund had filed the variation application in late October 2016. The retroactive payments were to be reduced by any amount Mr. Taylor had paid to Ms.

Braund between November 1, 2016 and June 30, 2017. [ 25 ] Further, the Court ordered that Mr. Taylor pay, within 60 days of the variation order, an additional special expense of $383.48 toward dental costs incurred by one of the children. [ 26 ] The variation order also included a recalculation clause, providing that the amount of child support would be reviewed annually and, where necessary, recalculated, with the first review to occur on or before August 11, 2018. Appeal [ 27 ] Mr. Taylor has appealed the July 5, 2017 variation order. [ 28 ] Mr.

Taylor appealed on the basis that the applications judge erred in ordering that he pay the following: support of $1116.70 per month commencing July 1, 2017; support of $1116.70 per month, retroactive from November 1, 2016 to June 30, 2017; and $383.48 for a dental expense. [ 29 ] The first item above, whether Mr. Taylor should pay support of $1160.70 per month commencing on July 1, 2017, was conceded at the hearing of the appeal. Mr. Taylor is no longer appealing that part of the order.

He is appealing the other two parts of the order dealing with payment of retroactive support ($1116.70 per month from November 1, 2016 to June 30, 2017) and payment of $383.48 for a dental expense.

Issues on Appeal [ 30 ] There are two main issues for determination on appeal: Issue 1 [ 31 ] The first issue is whether the applications judge erred in making a child support variation order without considering whether there had been a material change in circumstances, without considering that the variation application was filed just two days after the Child Support Variation Order (Recalculated) had been made, and without considering whether the variation application complied with the requirements of the Trial Division Family Rules (Part IV of the Rules of the Supreme Court, 1986 ). [ 32 ] Issue 1 has three components, and three separate arguments by Mr.

Taylor relating to these components, which can be summarized as follows: Issue 1(

a) No consideration of a change of circumstances [ 33 ] Nowhere in the application judge’s reasons for judgment, or in the July 5, 2017 variation order, did the applications judge specifically refer to any “change in circumstances” or “material change in circumstances”. As such, Mr. Taylor argues the applications judge did not properly consider whether there was a material change in circumstances, which is required before making a variation order. Issue 1(

b) The first timing issue [ 34 ] The variation application was filed on October 27, 2016, two days after the Child Support Variation Order (Recalculated) was made at the October 25, 2016 objection hearing. Mr. Taylor argues that there could not possibly have been a material change in circumstances in that brief two day period, and the applications judge erred in finding that a change in circumstances had occurred.

Issue 1(

c) The second timing issue [ 35 ] Rule F5.02 of the Trial Division Family Rules states that a person may only apply for variation of a final order for child support where 180 days have expired from the date of the original order, or a judge otherwise grants permission. Mr. Taylor argues that the variation application was invalid as it was filed less than 180 days from the date of the Child Support Variation Order (Recalculated), which was a final order, and no permission was granted by a judge to bring the application. [ 36 ] These three arguments will be considered separately, below.

Issue 2 [ 37 ] The second issue is whether Mr. Taylor received a fair hearing before the child support variation order was made, and specifically whether the applications judge erred in making a variation order without hearing testimony under oath or affirmation, and without affording the parties the opportunity to cross-examine witnesses. Analysis Issue 1(

a) No consideration of a change in circumstances [ 38 ] Mr.

Taylor argues that the applications judge was required, before making a child support variation order, to consider whether there had been a material change in circumstances, and erred in not doing so. [ 39 ] It is clear from the legislation and case law that a judge is, indeed, required to consider whether there has been a change in circumstances which would warrant a variation in the amount of child support payable. [ 40 ] Reference to a change in circumstances, or a material change in circumstances, in the context of a child support variation application can be found in the Divorce Act , the Federal Child Support Guidelines and the Trial Division Family Rules .

Divorce Act [ 41 ]

Section 17 of the Divorce Act states in part: 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses; ... …

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. …

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. (Emphasis added.) Federal Child Support Guidelines [ 42 ] The relevant provision of the Federal Child Support Guidelines dealing with variation of child support orders is

section 14 , which states in part: 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;… (Emphasis added.) Trial Division Family Rules [ 43 ] Rule F5.02 of the Trial Division Family Rules refers to a material change in circumstances: F5.02

(1) A person may only apply for variation of a final order for parenting, child support, spousal support, partner support, parental support, or dependant support where (

a) the person can demonstrate a material change in circumstances from the time the original order was made; and (

b) either (i) 180 days have expired from the date of the original order, or (ii) a judge grants permission.

(Emphasis added.) [44] With respect to the Trial Division Family Rules generally, these Rules came into force after Mr. Braund’s variation applicationwas filed. This raises an additional issue (unrelated to the issue of the requirement of a material change of circumstances), which isdiscussed in Issue 1(

c) below, beginning at paragraph 98. [45] There is also case authority with respect to the requirement of a material change in circumstances. For example, in Willick v.Willick, (SCC), [1994] 3 S.C.R. 670, the Supreme Court of Canada interpreted section 17(4) of the Divorce Act, and therequirement of a material change in circumstances, at p.688 as follows: This subsection authorizes the court to vary a previous support order if a change of circumstances occurs.

The approach which a courtshould take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order oughtto be made in light of the change in circumstances. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. … (Emphasis added.) Application to the present case [46] The material change in circumstances in the present case arose from Mr.

Taylor’s increased income, which resulted from hischanged employment in 2016. [47] The judge at the October 25, 2016 objection hearing found that Mr. Taylor’s 2015 income was $18,091. As noted above, basedon this income the Court ordered, in the Child Support Variation Order (Recalculated), that $271 per month be paid by Mr. Taylor forchild support. [48] However, at the May 30, 2017 variation application hearing, both Mr. Taylor and counsel, on his behalf, advised the applicationsjudge that Mr.

Taylor’s 2016 income was $78,000 (and the tax information subsequently filed with the Court indicated the amount to be$78,500). This is an increase of over $60,000 when compared to Mr. Taylor’s 2015 income of $18,091. As a result, and relying on theincome information provided, the judge varied the child support payment, and ordered Mr. Taylor to pay $1116.70 per month. [49] Mr. Taylor points to the fact that the applications judge failed to explicitly state, either in the brief reasons for judgment or thevariation order itself, that there was actually a material change in circumstances.

He argues that this is evidence that the judge failed toconsider whether such a change in circumstances occurred, despite being required to do so. [50] While the applications judge did not explicitly state, either in the reasons for judgment or the order, that there was a materialchange in circumstances, it is apparent from both that the judge considered Mr.

Taylor’s significant increase in income in 2016 as thebasis upon which the variation order was made. [51] In the reasons for judgment, the applications judge ordered the payment of “$1116.70 based on his 2016 tax return which showsa line 150 income of $78,500 and according to the NL guidelines.” This was done “upon hearing Mr. Taylor and his counsel…andreviewing Mr. Taylor’s Tax Assessment for 2016 and reviewing documentation filed by both parties…”. [52] In the variation order, the applications judge ordered Mr.

Taylor to pay “based on his income for 2016 in the amount of $78,500,the sum of $1116.70 per month, in accordance with the Child Support Guidelines for the Province of Newfoundland and Labrador.” [53] While not using the specific term “change in circumstances”, or “material change in circumstances”, the reasons for judgmentand the variation order both show the applications judge considered Mr. Taylor’s change in income and determined that the change inincome constituted the requisite change in circumstances.

It is apparent when considering the circumstances of the May 30, 2017variation application hearing, the reasons for judgment, and the July 5, 2017 variation order that the judge considered whether there wasa material change in circumstances, as required, despite not explicitly using those exact words. A change in income constituting a change in circumstances [54] Further, there is legislative and case authority stating a change in income can constitute a change in circumstances. [55] For example, and as noted above,

section 14 of the Federal Child Support Guidelines states in part: 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to themaking of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, anychange in circumstances that would result in a different child support order or any provision thereof; … [56] The case law also establishes that a change in income can constitute a change in circumstances in the context of a variationapplication. [57] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 66, the Supreme Court of Canada refers to

section 14 of theFederal Child Support Guidelines, stating: “An increase in income that would alter the amount payable by a payor parent is also amaterial change in circumstances: s. 14 of the Guidelines;…”. [58] In Pinter v. Pinter, 2016 ABCA 58, the Alberta Court of Appeal referred to the Supreme Court of Canada’s decision in D.B.S.:

[19] Turning to the first argument on appeal, it is trite law that children have a right to support from their parents that is commensuratewith their parents’ income: DBS v SRG … 2006 SCC 37 , [2006] 2 S.C.R. 231 [DBS]. That right, and a parent’s correspondingobligation, exists independently of any court order: DBS at para 68. Moreover, an increase in income is a material change incircumstance: DBS at para 66; Federal Child Support Guidelines, s 14(a). [59] Both

section 14 of the Federal Child Support Guidelines, and the case law interpreting

section 14, then, provide that a change inincome which would result in a different amount of child support payable pursuant to the applicable table in the Federal Child SupportGuidelines, constitutes a change in circumstances which can give rise to a variation order. [60] In the present case, Mr. Taylor’s change in income from 2015 to 2016, an increase of over $60,000, was an appropriate basis forthe Court determining that there was a material change in circumstances and for making a variation order. To do otherwise would be toignore the plain language and intent of the legislation. Issue 1(

b) The first timing issue: Filing an application for variation two days after the Child Support Variation Order(Recalculated) was made [61] Mr. Taylor argues that there could not have been any change in circumstances warranting a variation order, as Ms. Braund’svariation application was filed on October 27, 2016, which was just two days after the Court had made an order regarding child support,on October 25, 2016 (the Child Support Variation Order (Recalculated)). [62] Mr. Taylor submits that the applications judge erred in failing to consider that another judge had reviewed Mr.

Taylor’s incomeand made an order following the hearing on October 25, 2016, two days before the variation application was filed. He suggests thatsurely no material change in circumstances could have occurred in that two day period. [63] However, the objection hearing on October 25, 2016 was limited in scope. As mentioned above, pursuant to the terms of theconsent order, Mr. Taylor’s child support payment was recalculated in 2016, based on his 2015 income of $18,091. This recalculationactually resulted in a reduction in his child support payments from $374 to $271.47 per month. [64] Ms.

Braund filed a notice of objection to this recalculated child support amount. The subsequent hearing on October 25, 2016dealt solely with the notice of objection filed by Ms. Braund and was limited to reviewing Mr. Taylor’s 2015 income. As there was noevidence that Mr. Taylor’s 2015 income was different than the amount determined by the Recalculation Office ($18,091), the Courtdismissed Ms. Braund’s objection.

The Court confirmed the recalculated amount of $271 per month (the amount set by the RecalculationOffice, rounded off to the nearest dollar) in the Child Support Variation Order (Recalculated), which was made on October 25, 2016. [65] At the October 25, 2016 objection hearing, Ms. Braund attempted to raise issues with respect to Mr. Taylor’s 2016 income. Shewanted the Court to consider Mr. Taylor’s ability to pay increased child support based on her understanding that he was employed in2016 and earning substantially more than he did in 2015. The Court advised Ms.

Braund that an objection hearing was not the properforum to consider Mr. Taylor’s 2016 income. [66] The Court indicated that only information about Mr. Taylor’s 2015 income was relevant at the objection hearing. For example,had there been evidence which could demonstrate that Mr. Taylor’s 2015 income was higher than the amount disclosed in his 2015 taxdocumentation, this could properly be considered at the objection hearing. [67] However it was made clear that, if Ms. Braund wished the Court to consider Mr.

Taylor’s 2016 income, and his ability to payincreased child support based on increased income in 2016, she would need to file a variation application. Two days later, on October 27,2016, Ms. Braund did exactly that; she filed a variation application which led to the July 5, 2017 variation order, which is the subject ofthis appeal. [68] The limited scope of the objection hearing on October 25, 2016 meant that there was no consideration of Mr. Taylor’s 2016income; a variation application was the appropriate tool to consider the change in income.

Recalculation versus variation [69] The relationship between a recalculation and variation of a child support order was considered by the Alberta Court of Appeal inPinter: [21] A child’s entitlement to child support fluctuates with a parent’s income, which led Alberta through its legislators to create the ChildSupport Recalculation Program.

The program was conceived as an efficient, accessible, inexpensive alternative to court proceedings forfamilies with children requiring ongoing child support recalculations (Alberta, Legislative Assembly, Hansard, 27th Leg, 1st Sess, No27e (28 May 2008) at 1049 (Robin Campbell)).

The program annually recalculates a parent’s child support using the applicable guidelineamounts from the parent’s most recent income information: Family Law Act, SA 2003, c F-4.5, s. 55.11. [22] The program has limitations and it has been recognized that it is not a suitable non-court alternative for all parties: DPH v CAH,2015 ABQB 699 at paras 7-11; JT v TT, 2015 ABQB 648 at para 17; Gonek v Gonek, 2011 ABQB 166 atparas 29-30. It follows that a court’s jurisdiction to recalculate a child support order under s. 17 of the Divorce Act cannot be ousted bythe program.

Simply put, the Court must do whatever the program cannot: see, for example Child Support Recalculation ProgramRegulation, Alta Reg 287/2009, s. 16. [70] Similar to the Alberta recalculation process described above, Newfoundland and Labrador also utilizes a recalculation process.The Newfoundland and Labrador process is authorized by the Child Support Service Regulations, which describe the recalculationprocess, including the ability of a party to file a notice of objection. [71] While recalculation and variation are both possible avenues to effect a change in child support payments, the recalculationprocess and the variation application are two distinct proceedings which co-exist and do not serve the same purpose.

An application for

variation can be made notwithstanding a recalculation clause in a child support order, and notwithstanding that a notice of objection has been filed and a hearing held to consider the notice of objection. [ 72 ] An agreement (in this case the consent order of April 23, 2015) to use the recalculation process does not preclude the ability to bring an application for variation under

section 17 of the Divorce Act . [ 73 ] The October 25, 2016 objection hearing and the Child Support Variation Order (Recalculated) did not address Ms. Braund’s concern or her belief that Mr. Taylor’s income had increased in 2016, possibly as early as July 2016 according to Ms. Braund. That concern was addressed in the variation application filed on October 27, 2016. [ 74 ] The applications judge hearing the variation application on May 30, 2017 was not limited by the fact that the application was brought two days after the Child Support Variation Order (Recalculated) was made.

Nor was the judge restricted to considering only this two day period when determining whether there had been a material change in circumstances to warrant a variation. Issue 1(

c) The second timing issue: The requirement to wait 180 days from the date of a child support order before bringing a variation application Rule F5.02(1)(b) – the 180 day waiting requirement [ 75 ] In addition to requiring a material change in circumstances, rule F5.02(1) of the Trial Division Family Rules also mandates that an application for variation can only be made where 180 days have expired from the date of the original child support order, or where a judge grants permission. Rule F5.02(1) states: F5.02

(1) A person may only apply for variation of a final order for parenting, child support, spousal support, partner support, parental support, or dependant support where (

a) the person can demonstrate a material change in circumstances from the time the original order was made; and (

b) either (i) 180 days have expired from the date of the original order, or (ii) a judge grants permission. [ 76 ] Mr. Taylor argues that, as the variation application was brought on October 27, 2016, which was two days after the October 25, 2016 Child Support Variation Order (Recalculated), and no permission was granted to bring the application, the application does not meet the 180 day requirement of rule F5.02(1)(b). [ 77 ] While rule F5.02(1)(

b) establishes this 180 day requirement, other provisions of the Trial Division Family Rules are also relevant in interpreting this rule; these are rules F5.01(2), F1.05(2) and F1.06(1), which will be considered next, below. Rule F5.01(2) – Rule F5 does not apply to “the recalculation of child support orders” [ 78 ] Rule F5.01 deals with applications to vary a final order. It states: F5.01

(1) This rule sets out (

a) when to make an application to vary a final order for parenting, child support, spousal support, partner support, parental support, or dependant support; (

b) the form to complete and the documents to include with the application; (

c) where to file the application and required documents; and (

d) how to notify the other party that a variation proceeding has been started.

(2) This rule does not apply to the recalculation of child support orders made under the Child Support Service Regulations (under the Family Law Act ). [ 79 ] Rule F5.01(2) states rule F5 does not apply “to the recalculation of child support orders made under the Child Support Service Regulations …” . Therefore the requirements of rule F5.02(1)(b) (having to wait 180 days from the date of a child support order, or having a judge grant permission, before bringing a variation application), which are part of rule F5, would also not apply to a recalculation.

Applying rule F5.01(2) [ 80 ] Applying rule F5.01(2), there is no requirement to wait 180 days after a child support order is made before the order can be reviewed by the Recalculation Office in the normal course. As well, again applying rule F5.01(2), there is no requirement to wait 180 days after a child support order is made before a notice of objection can be filed or an objection hearing can be held.

The ability to review and recalculate a child support order, after the order has been made, is not fettered by the 180 day requirement. [ 81 ] Similarly, there is no requirement to wait 180 days after the recalculation of a child support order has occurred (whether the recalculation is done by the Recalculation Office or by a judge at an objection hearing) before a variation application can be filed. [ 82 ] Rule F5.01(2) operates such that a party bringing an application for variation, subsequent to a recalculation, need not consider or

“count” when the recalculation was done (whether by the Recalculation Office or a judge) when considering the 180 day timing requirement. The language of rule F5.01(2) presumptively excludes “ the recalculation of child support orders made under the Child Support Service Regulations …” from the 180 day requirement in the context of a subsequent variation application. The purpose of the 180 day waiting requirement in rule F5.02(1)(b) [ 83 ] Rule F5.02(1)(

b) of the Trial Division Family Rules establishes the 180 day waiting period (or the requirement for judicial permission to bring an application before the expiry of 180 days) to avoid a situation where a party makes an application for variation, an order is made on the variation application, and a further application for variation is made within 180 days. [ 84 ] This 180 day waiting requirement might afford the parties some level of certainty and stability, knowing that further variation orders cannot be brought (absent judicial permission) until 180 days have elapsed from the earlier order. [ 85 ] The 180 day “cooling off period” fetters the right to bring a further variation application once a final child support order has been made, and permits the Court to limit the otherwise unfettered right to bring further variation applications. [ 86 ] It is the ability to bring a further variation application within 180 days of a final order which is fettered, not the ability to bring a variation application within 180 days of a recalculation order. [ 87 ] Bringing a variation application subsequent to a recalculation process (and recalculation order) is not precluded by the 180 day requirement in rule F5.02(1)(b), as a variation application brought in this context would not cause the type of mischief which is contemplated by, or sought to be addressed by, rule F5.02(1)(b).

Can rule F5.01(2) assist Ms. Braund in the present case? [ 88 ] In the present case the judge at the objection hearing issued an order, the Child Support Variation Order (Recalculated) on October 25, 2016. In essence, the Child Support Variation Order (Recalculated) constitutes a recalculation of a child support order under the Child Support Service Regulations (and more precisely a confirmation of the recalculated amount proposed by the Recalculation Office). [ 89 ] Ms.

Braund is not required, in this instance, to wait for 180 days to expire from the date of the Child Support Variation Order (Recalculated), or have a judge grant permission, before bringing a variation application. [ 90 ] The consent order in this case was entered into between Mr. Taylor and Ms. Braund on April 23, 2015. The variation application brought on October 27, 2016 is the first application to vary (as opposed to recalculate) that order.

When the Child Support Variation Order (Recalculated) of October 25, 2016 is excluded, because it is essentially a recalculation order, the time period between the original consent order and the variation application is approximately 18 months. This is well beyond the 180 day period contemplated by rule F5.02(1)(b). [ 91 ] Recognizing that the recalculation process and the variation application serve two different purposes, the fact that there was an objection hearing on October 25, 2016 would not prohibit Ms. Braund from commencing a variation application.

As previously discussed, the Child Support Variation Order (Recalculated) of October 25, 2016 confirmed the recalculated support amount payable, based on 2015 income. It did not deal with variation of support based on 2016 income. [ 92 ] The intent of the 180 day requirement in rule F5.02(1)(

b) is not to preclude a variation application brought within 180 days of a recalculation. [ 93 ] It is also significant that, had Ms. Braund accepted, and not objected to, the recalculated amount proposed by the Recalculation Office, no new order would have been made. In that case, there would have been no notice of objection filed, no objection hearing and no October 25, 2016 recalculation order resulting from the objection hearing. It is this October 25, 2016 recalculation order which, Mr. Taylor argues, forecloses Ms. Braund’s ability to bring a variation application without waiting 180 days. [ 94 ]

Section 4 of the Child Support Service Regulations describes the recalculation process, and section 4(8) provides what follows from a notice of objection. Section 4(8) states: 4.

(8) Where a notice of objection under paragraph (3)(

b) is filed objecting to the recalculation, the amount of the child support order shall not change as a result of the recalculation, but the court may, upon hearing the parties, issue an order for the recalculated amount or another amount. [ 95 ] The notice of objection and any hearing to consider the objection are, then, essential components of the recalculation process. [ 96 ] Had there been no objection and no order made on October 25, 2016, presumably there would be no argument available to Mr. Taylor regarding the 180 day requirement.

There simply would have been a recalculation done by the Recalculation Office, and Ms. Braund would have been free to file a variation application. [ 97 ] To interpret the rules to preclude Ms. Braund’s application would effectively penalize a party who exercises the right to object to a recalculation, and proceeds to an objection hearing, as it would require that party to wait 180 days from the order arising from the objection hearing before making a variation application. This would prejudice a party like Ms.

Braund, in comparison to a party who did not file a notice of objection, and would not be consistent with the legislative intent. Rules F1.05(2) and F1.06(1) – avoiding “injustice” and “prejudice” [ 98 ] As well, and quite apart from rule F5.01(2), there is another basis upon which Ms. Braund would be relieved of the 180 day requirement of rule F5.02(1)(

b) in this circumstance. That is because the variation application, brought on October 27, 2016, pre-dated

the current Trial Division Family Rules, which came into force March 1, 2017. [99] The former applicable family law rules in force on October 27, 2016 contained no requirements similar to those contained in thenew rule F5.02(1)(b); there was no requirement in the former rules to wait until 180 days expired from the date of the order, or otherwiseseek judicial permission, before applying for variation. [100] Rules F1.05(2) and F1.06(1) of the Trial Division Family Rules are applicable in this circumstance. They state: F1.05

(2) A judge may, in proceedings under this Part, (

a) provide directions and make procedural orders that advance the purpose of this Part; and (

b) relieve a party from strict compliance with a rule where it would cause injustice. F1.06

(1) These rules govern proceedings commenced, but not completed, prior to the coming into force of these rules, without prejudiceto anything lawfully done under the former rules. [101] Applying rule F1.06(1) in the present case, Ms. Braund should not be prejudiced by not having complied with the requirements ofrule F5.02(1)(b), as her application was commenced before the current Trial Division Family Rules (including the requirements of ruleF5.02(1)(b)) were in force. Ms. Braund could not possibly have been aware of the 180 day requirement, as it did not exist when she filedthe variation application in October 2016. [102] As a result, the requirements of rule F5.02(1)(

b) should not prevent Ms. Braund’s application from proceeding. To prevent Ms.Braund’s application from continuing in this circumstance could amount to “prejudice to anything lawfully done under the former rules”(per rule F1.06(1)) or perhaps even an “injustice”(per rule F1.05(2)(b)). [103] While the applications judge was not asked in this instance to consider this timing issue or exercise discretion to allow Ms.Braund’s application to proceed, this would be an appropriate situation where a judge could exercise discretion and relieve a party fromstrict compliance with a rule, as authorized by rule F1.05(2)(b).

Issue 2 Was there a fair hearing? Procedural fairness and natural justice [104] The second main issue on appeal is whether the applications judge erred by denying Mr. Taylor a fair hearing. [105] Mr. Taylor argues that the applications judge erred in making a child support variation order without having a viva voce hearing,without hearing testimony under oath or affirmation, and without affording the parties the opportunity to cross-examine witnesses. [106] Mr.

Taylor further claims that he did not have an appropriate opportunity to make representations or legal arguments before thevariation order was made, and that this constituted a denial of procedural fairness and a breach of natural justice. [107] In Beanland v.

Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (NFCA), a decision of this Court, GreenJ.A. discussed the legitimate expectations of litigants regarding the principles of natural justice, as follows: [10] Whenever issues of procedural fairness are raised, what is in essence being asserted is that the manner in which the judicial processhas operated does not accord with the expectations of fairness held by the litigants or the public at large. The court ought to be sensitiveto these concerns.

Although a litigant can never legitimately expect to have any guarantee that he or she will prevail on the substantiveissues in dispute, it is a legitimate expectation that in invoking the judicial process, both sides will be guaranteed that they will be treatedfairly and will have an appropriate opportunity of making their respective cases.

These are time-honoured principles of natural justice.The rules of court must be interpreted and applied with these fundamental precepts in mind. [108] However, Justice Green also stressed in Beanland that questions relating to procedural fairness must be considered in theparticular context of the proceeding in question, stating on this point: [11] Having said that, it must be recognized that issues of procedural fairness are not determined in a vacuum, but in concrete factsituations where competing interests of the parties must constantly be balanced against each other.

The rules of court and other principlesof adjective law are manifestations of this balancing process. Accordingly, it is to the specific procedural principles applicable to theparticular procedural stage that is involved to which a court must first turn for guidance to ensure that fairness issues are determined inthis balancing context. The result of such an approach is that one party’s claim of unfair treatment must be judged, not in the abstract, butagainst the impact which the granting of the requested procedural concession would have on the other party.

Furthermore, the actions ofthe party, in particular his or her own non-compliance with the rules, may disentitle him or her to further concessions. [109] It is appropriate, then, to consider the precise nature of the proceeding that led to the applications judge’s variation order of July5, 2017, in order to determine whether there was any breach of natural justice or denial of procedural fairness. [110] Ms. Braund’s variation application was filed on October 27, 2016. There was a case management meeting on February 17, 2017at which time Mr.

Taylor was ordered to provide information relating to his income, and the matter was set for a hearing on May 30,2017. [111] At the May 30, 2017 hearing Ms. Braund appeared in person on her own behalf and Mr. Taylor was represented by counsel, whoappeared by telephone. Initially, Mr. Taylor did not appear either in person or by telephone, and counsel for Mr. Taylor indicated shehad difficulty contacting him, and requested a postponement. Ms. Braund objected to the request for a postponement and theapplications judge considered the matter, and did not grant the postponement.

The applications judge, in making this determination,considered, among other things, that Mr. Taylor would have been aware of the hearing date, of which he had plenty of notice, and alsothat the matter had been ongoing for a lengthy period of time.

[ 112 ] The proceeding continued and the applications judge asked Mr. Taylor’s counsel for information regarding Mr. Taylor’s 2016 income. Counsel advised that Mr. Taylor had indicated this amount to be $78,000. After some further exchange among the judge, Ms. Braund and counsel for Mr. Taylor about Mr. Taylor’s income and employment circumstances, there was a brief adjournment to attempt to contact Mr. Taylor by telephone. Mr. Taylor subsequently joined the proceeding by telephone and explained that he did not appear earlier as he was mistaken about the date of the hearing. [ 113 ] After Mr.

Taylor joined the hearing by telephone, the applications judge again confirmed that Mr. Taylor earned $78,000 in 2016. This was not disputed. Indeed, the Court was advised that Mr. Taylor had already been in communication with the Recalculation Office and had informed that Office of his $78,000 earned income for 2016. The Court further heard that the Recalculation Office had advised Mr.

Taylor that his child support payments would increase to $1011 per month, starting in August 2017, and that this increase was based on his 2016 income. [ 114 ] The remainder of the proceeding on May 30, 2017 consisted of a discussion among the applications judge, Mr. Taylor, Mr. Taylor’s counsel and Ms. Braund. The main focus was Mr. Taylor’s income, and there was also some discussion about an amount claimed by Ms. Braund for dental services. [ 115 ] Mr.

Taylor states that there was no evidence given under oath or affirmation and no direct examination or cross-examination of witnesses, and he asserts that this was an error in the circumstances. While it is correct that the information provided on May 30, 2017 was not given under oath or affirmation or subject to cross-examination, it is not correct to say there was no hearing or no proceeding. While informal, and while characterized by Mr. Taylor’s counsel as a “haphazard discussion” regarding Mr.

Taylor’s income and employment, there was certainly an opportunity for the parties to state their positions to the applications judge. [ 116 ] While the proceeding certainly could not be characterized as formal in the conventional sense that one might otherwise encounter in a hearing of this kind, a review of the record of the May 30, 2017 proceeding reveals that the parties did explain their respective positions to the applications judge, either in response to the judge’s questions or through their own statements to the judge. It was clearly open to the judge to rely on the information provided by Mr.

Taylor, and counsel on his behalf, regarding Mr. Taylor’s 2016 income, especially given that the income amount had been admitted and was not contested. [ 117 ] The applications judge also made it clear on several occasions that, unless the parties could reach a settlement, a decision would be made based on the information provided at the May 30, 2017 proceeding. There was no objection made with respect to the judge proceeding based on the information received at the May 30, 2017 hearing.

There was no submission by the parties or counsel that it would be procedurally unfair for the judge to make a decision without a more formal hearing or without hearing further evidence with direct examination and cross-examination of witnesses. No objection was made either at the hearing or in the subsequent period before the judge made the variation order. [ 118 ] Of course the presence or absence of an objection is not determinative.

If, on consideration of all the circumstances, a reviewing Court holds that a party was denied a fair hearing and a breach of natural justice or procedural fairness has occurred, a Court (absent a waiver) may intervene, notwithstanding the absence of an objection, in a case where an injustice might occur which could not otherwise be rectified. Conversely, the presence of an objection does not prove a breach of natural justice. The circumstances would need to be considered in each case to determine whether the party was effectively denied the right to a fair hearing.

This is contextual and fact specific to each case. [ 119 ] In this case, a review of the record of the May 30, 2017 proceeding reveals that both parties, and counsel on behalf of Mr. Taylor, were clearly advised that a decision would be made based on the information provided; the applications judge asked if this was understood and the parties and counsel indicated that it was. [ 120 ] This is not a case where there was a legitimate expectation of a future hearing in a more formal context.

In that respect the lack of any objection is consistent with the Court’s direction and the parties’ acknowledgement of how the matter would be resolved. [ 121 ] Also, there was never any request made to present evidence under oath or affirmation, for example by direct examination or affidavit, and no request to cross-examine. The applications judge relied on the information provided by Mr. Taylor, and counsel on his behalf, at the May 30, 2017 proceeding regarding Mr. Taylor’s income. The information was confirmed by tax documentation which was subsequently filed.

The Court did not, for example, rely on the evidence of any other witness regarding Mr. Taylor’s income. [ 122 ] It was not articulated how the absence of direct examination or cross-examination under oath or affirmation, on the issue of Mr. Taylor’s income, could have amounted to a breach of procedural fairness. The relevant income information provided to the applications judge in this case, while not given by a witness under other or affirmation, was essentially an admission.

As such, the potential danger associated with relying on evidence which is neither sworn nor affirmed, and the need to address any such potential danger through cross-examination, does not exist in this instance. In this particular circumstance the key factor to be considered in the applications judge’s determination, the amount of Mr. Taylor’s income, had been admitted by Mr. Taylor and counsel on his behalf. [ 123 ] Further, there was no suggestion on the appeal that Mr. Taylor’s 2016 income amount was incorrect or that the judge erred in relying on it in making the variation order.

In fact, documentation provided to the Court on behalf of Mr. Taylor subsequent to the May 30, 2017 proceeding confirmed his 2016 income (with the documentation showing a slightly higher amount of $78,500). [ 124 ] Returning to Beanland , the Court looked at the particular factual circumstances in that case and held: [32] In this case, no request was made to lead viva voce evidence. On appeal, counsel for Mr. Beanland could only suggest the evidence with respect to the appraisal obtained by Mrs . Beanland was sparse and perhaps required amplification. However, it is clear from the record that Mr.

Beanland had accepted the appraised value and that that was not really in issue. The question was whether within the terms of the original order, Mr. Beanland’s counter offer to purchase the property for $100 more than Mrs. Beanland was prepared to pay should have been the operative offer. The resolution of that question depended upon an

interpretation of the original order or perhaps the giving of additional directions. None of that depended upon the reception of further substantial evidence.

[33] In any event, Mr. Beanland had the opportunity to present evidence in the form of affidavit evidence, by filing same in accordance with the rules in advance of the hearing. Through his counsel, he chose not to do so. He was not, therefore, deprived of an opportunity to present evidence. [34] Mr. Beanland also argues that at the very least he ought to have been given an opportunity to cross-examine Mrs. Beanland on her affidavit. He had given no advance notice to counsel for Mrs. Beanland that he wished to avail of such an opportunity. Even this “right” to cross-examine on affidavits is subject to the discretion of the court. See rules 48.10(

c) and 29.09(1)(c). Generally, however, the court will permit such cross-examination where it is necessary to challenge facts deposed to by the deponent or to elicit additional relevant evidence amplifying or qualifying the affidavit material which might be solely within the knowledge of the deponent.

Nevertheless, because cross-examination cannot be availed of as of right, one would expect that, even though the rules do not require formal notice of intention to cross-examine, a party seeking to cross-examine should nevertheless consider notifying the other party in advance of the hearing of such intention so as to ensure the presence of the deponent for the purpose of a cross-examination if it were allowed by the court. Failure to do so may well result in certain circumstances in the Court taking that fact into account in deciding whether or not to exercise its discretion to grant an adjournment.

In this case, Mr. Beanland did not give such notice, whether formal or otherwise, and did not request at the hearing, through counsel, an opportunity to cross-examine. Indeed, the only factual matter that in theory could have been the subject of attack would have been the valuation put upon the property but, as indicated, that was accepted by Mr.

Beanland. [35] Accordingly, I see no merit in this ground of appeal. [ 125 ] Similarly, having reviewed the factual circumstances leading to the applications judge’s variation order in the present situation, it is clear that the parties were provided with the opportunity to present their views and advocate for their positions, and that they did so.

In these particular circumstances, the judge’s decision to make an order based on the information provided in the May 30, 2017 proceeding, and the income documentation which was subsequently provided, did not constitute a breach of natural justice or a denial of procedural fairness. Ancillary Issues: Special Expense and Retroactivity [ 126 ] There were two other ancillary issues which were considered on appeal. One dealt with a claim made in the variation application for a contribution to a special expense relating to a dental bill.

The other dealt with the question of whether it was appropriate for the applications judge to have ordered retroactive child support in this matter. These are considered below. Claim for a special expense (dental bill) [ 127 ] Mr. Taylor was ordered to pay $383.48 toward a dental bill within 60 days of the variation order. There was some confusion concerning this on appeal, as Mr. Taylor had already paid the amount by the time the appeal was heard and Ms. Braund understood that this payment was not in issue. At the appeal Mr.

Taylor’s position was that the payment was made only to comply with the terms of the variation order. Mr. Taylor sought a return of this amount, stating that the amount was not claimed in the variation application and particulars of the expense were not properly provided. [ 128 ] A review of the variation application indicates Ms. Braund claimed an amount of $500 for special expenses, categorized as health expenses. As well, a review of the record of the May 30, 2017 proceeding reveals some discussion among the applications judge, the parties and counsel for Mr. Taylor about this claim.

The applications judge suggested that the parties should attempt to reach agreement on the issue and, if no agreement was achieved, the Court would consider the claim. [ 129 ] At the May 30, 2017 proceeding, Ms. Braund advised that the actual amount incurred for this dental expense was approximately $1800.

The Court awarded $383.48, indicating in the reasons for judgment that there was insufficient information to award any higher amount. [ 130 ] As this claim appears to have been included in the variation application, and as it was a live issue discussed by the parties at the May 30, 2017 hearing and considered by the application’s judge in the reasons for judgment, there was no error in awarding this amount. Retroactive child support award [ 131 ] Mr. Taylor argued that the applications judge erred in ordering the payment of child support on a retroactive basis.

The argument is based, first, on the notion that there was no material change in circumstances that would justify a retroactive order. That argument has been addressed earlier in this judgment, and will not be recanvassed. Second, Mr. Taylor argues that there was nothing in the October 27, 2016 variation application to indicate Ms. Braund was seeking retroactive payments and, further, the applications judge at the May 30, 2017 hearing provided no indication an award might have retroactive effect. Further Mr.

Taylor argues generally that a retroactive child support award is unwarranted in this case. [ 132 ] The issue of retroactivity of child support orders was considered by this Court in Locke v.

Goulding , 2012 NLCA 8 , 318 Nfld. & P.E.I.R. 91 . [ 133 ] In Locke , the trial judge had acknowledged that child support orders were generally retroactive to the date of the variation application, but exercised discretion and declined to order retroactive support in the particular circumstances of that case. [ 134 ] On appeal, Hoegg J.A. considered the issue of retroactivity in paragraph 67, as follows: [67] The principles governing retroactive child support were recently summarized by Bastarache J. in D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v.

Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231 (“ D.B.S. ”) at paragraphs 68 and 69 : The concern associated with retroactivity is that, from the perspective of the person on whom a retroactive obligation is imposed, the order is arbitrary and unfair: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 553-54. Yet a retroactive child support order, as considered in the present appeals, does not involve imposing an obligation on a payor parent that did

not exist at the time for which support is being claimed: compare Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977] 1 S.C.R. 271, at p. 279. As I concluded above, a payor parent always has the obligation to pay — and thedependent child always has the right to receive — child support in an amount that is commensurate to his/her income. This obligation isindependent of any court order that may have been previously awarded.

Accordingly, even where the payor parent has made paymentsconsistent with an existing court order, (s)he would not have been fulfilling his/her obligation to his/her children if those payments didnot increase when they should have, according to the applicable law at the time. Thus, the support obligation of a payor parent, whilepresumed to be the amount ordered by a court, will not necessarily be frozen to the amount ordered by a court. It is the responsibility ofboth parents to ensure that the payor parent fulfills his/her actual obligation, tailored to the circumstances at the relevant time.

Wherethey fail in this obligation, a court may order an award that recognizes and corrects this failure. Such an award is in no way arbitrary forthe payor parent. To the contrary, it serves to enforce an obligation that should have been fulfilled already. In ordering that an award be calculated retroactive to a certain date, a court would therefore be acting consistently with the law thatexisted at the relevant time. While the order itself would be varied with retroactive effect, the obligation that formed the basis of thecourt’s decision would not be imposed after the fact.

Because the recipient parent could have arrived at the same result had (s)he appliedfor an increase in child support earlier, it cannot be said that the court is subjecting the payor parent to legal rules different from thosethat applied at the relevant time. (Emphasis in original) And later in the judgment at paragraphs 132 to 134, he says: Once parents are in front of a court with jurisdiction over their dispute, that court will generally have the power to order a retroactiveaward that enforces the unfulfilled obligations that have accrued over time… . [135] At paragraph 69 of Locke, Justice Hoegg ordered the payment of retroactive support, stating: [69] Mr.

Goulding has known for a long time that he must advise Ms. Locke of any changes in his income and that he has an obligationto pay child support based on it. He has no reason to expect that appropriate child support would not be payable from the date of Ms.Locke’s variation application. Accordingly, child support as determined in paragraph 60 is payable by Mr. Goulding to Ms. Lockeretroactive to October 28, 2008, the date of Ms. Locke’s application. [136] The principles outlined above, in both Locke and D.B.S., are applicable in the present case. As Ms.

Braund brought the variationapplication on October 27, 2016, Mr. Taylor should have been cognizant of his potential liability for payment of a retroactive award (inthe event Ms. Braund’s application was successful) back to the date of the variation application. [137] This is consistent with the general rule, discussed in Locke, D.B.S. and elsewhere, that once a variation application is filed, theparty responding to the application knows (or should know) there is jeopardy that the variation order may be effective from the date ofthe application.

Locke and D.B.S. also outline and discuss a number of factors which might result in the general rule not applying, eitherin whole or in part. However there is nothing in the facts of the present case which would preclude the application of the general rule. [138] Mr. Taylor cannot claim an injustice arising from a lack of notice that the award might be retroactive, especially given that Ms.Braund did not seek any payment for support accruing before the variation application was brought on October 27, 2016 (even thoughthe increase in Mr. Taylor’s income may have commenced before that date). Ms.

Braund did not ask the Court to consider any periodwhich preceded the application. [139] With respect to Mr. Taylor’s general assertion that a retroactive award is unwarranted in this case, as Mr. Taylor’s income clearlyincreased in 2016, the applications judge could rely on this fact when ordering the child support payment be retroactive for the periodfrom November 1, 2016 (just after the October 27, 2016 variation application was filed) to July 1, 2017 (just before the July 5, 2017variation order was filed). [140] Finally,

section 10 of the Child Support Service Regulations confirms that retroactive child support can be sought notwithstandingthe presence of a recalculation clause in a consent order. [141]

Section 10 states: 10. The existence of a child support order or an agreement providing for the recalculation of child support shall not preclude anapplication for retroactive child support. [142] Considering the specific circumstances and factual basis in this case, the applications judge made no error in ordering thepayment of child support on a retroactive basis. COSTS [143] On appeal, Ms. Braund seeks costs in accordance with Column 5 of the Scale of Costs. The request for costs on a scale greaterthan Column 3 (the default scale), is partly based on Ms. Braund’s view that Mr.

Taylor had caused an unreasonable delay in theproceedings by not admitting his change in income earlier, and by not meeting his obligation to disclose his increased income in a timelyfashion after the variation application was filed. [144] Rule 58 of the Court of Appeal Rules, NLR 38/16 allows this Court to make such order as to costs as it considers appropriate.

Inexercising discretion in awarding costs, rule 58(4) indicates the Court may consider, among other things, the manner in which theproceeding was conducted and the failure of a party to admit anything that should have been admitted. [145] While there appears to have been delay on Mr. Taylor’s behalf in providing the required income information on the variationapplication, thereby delaying the Court’s ability to make an order on the variation application, there was no such delay on appeal. [146] In the appeal proceeding, Mr.

Taylor followed the Court’s direction to file all documentation within specified timelines so that

the appeal could be heard on an expedited basis. Also, while unsuccessful on the appeal, Mr. Taylor’s grounds of appeal, dealing with, among other matters, issues of natural justice and the application of the new Trial Division Family Rules to a proceeding commenced before these Rules came into effect, were not wholly frivolous or unreasonable. [ 147 ] Ms. Braund, having been successful on the appeal, should be awarded costs of the appeal. However, there is nothing specific about this appeal, or its conduct, which would warrant a costs award greater than on Column 3 of the Scale of Costs.

As such, I would award Ms. Braund costs of the appeal in accordance with Column 3. No costs were awarded by the applications judge on the variation application, and there is no basis to interfere with that determination. [ 148 ] There was also an earlier application made to this Court in this matter. Mr. Taylor, under rule 42(2) of the Court of Appeal Rules , requested that this Court stay the enforcement of the July 5, 2017 variation order until the appeal of this matter was decided. The stay application was dismissed by Welsh, J.A. in Taylor v.

Braund (Taylor) , 2017 NLCA 52 , with costs to be awarded in the cause of the appeal. [ 149 ] Ms. Braund represented herself on the stay application, and she should be entitled to reimbursement of expenses directly incurred by her in respect of her appearance on the stay application.

Summary and Disposition [ 150 ] In

summary, I would dismiss the appeal and affirm the variation order of July 5, 2017. I would award Ms. Braund costs of this appeal in accordance with Column 3 of the Scale of Costs, in addition to expenses directly incurred by Ms. Braund with respect to the stay application. Appeal dismissed .