H.S. Applicant And: P.W. Respondent, 2018 NLSC 65

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : H.S. v. P.W. , 2018 NLSC 65 Date : March 22, 2018 Docket : 201305G0076 Between: H.S. Applicant And: P.W. Respondent Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: January 26, 2018

Summary: Following an informal trial under Rule F31 of the Rules of the Supreme Court, 1986 , the Court ordered that child support cease for an 18-year old daughter who was no longer living with either parent and was no longer in school. The Court recalculated retroactive child support that would have been payable by each parent to the other as a result of the changes in circumstances of both the 18-year old daughter and a younger child. The Court exercised its discretion not to make a retroactive order for child support. It also declined to make any order with respect to speculative future

section 7 expenses or past orthodontic expenses that were the subject of an existing order. The Court varied the amount of child support payable for one child effective February 1, 2018 and added an administrative recalculation clause. Appearances:

H.S. Appearing on her own behalf P.W. Appearing on his own behalf Authorities Cited: CASES CONSIDERED: Thompson v. Ducharme, 2004 MBCA 42; Power (Guardian ad litem of) v. Power, 2008 NLUFC 21;Dolabaille v. Carrington (1981), (ON CJ), 21 R.F.L. (2d) 207, 7 A.C.W.S. (2d) 463 (Ont. Prov. Ct. (Fam. Div.)); Kincaid v. Arsenault (2002), (ON SC), 114 A.C.W.S. (3d) 101, 27 R.F.L. (5th) 84 (Ont. S.C.J.); Ball v. Broger, 2010ONCJ 557; S. (D.B.) v. G. (S.R.), 2006 SCC 37; S. (H.) v.

W. (P.), 2016 NLCA 67 STATUTES CONSIDERED: Federal Child Support Guidelines, S.O.R./97-175; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); FamilyLaw Act, R.S.N.L. 1990, c. F-2; Family Law Reform Act, 1978, S.O. 1978, c. 2; Child Support Service Regulations, N.L.R. 31/07;Administrative Recalculation of Child Support Regulations, Newfoundland and Labrador Regulation 16/18 RULES CONSIDERED: Rules of the Supreme Court 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] P.W. seeks to vary an order which obligates him to pay child support to H.S. in respect of their two daughters, A.W., age 18,and J.W., age 15. After thirteen years of marriage, P.W. and H.S. separated at the end of 2012 and were divorced in December 2014. [2] The current Order for basic child support (the Court of Appeal Order) is an Order of the Supreme Court of Newfoundland andLabrador Court of Appeal (now known as the Newfoundland and Labrador Court of Appeal) dated November 28, 2016.

This Ordervaried the amount of basic child support payable by P.W. to H.S. from the amount in a prior child support Order of this Court datedMarch 15, 2016 (the March 2016 Order). Based upon P.W.’s annual income of $50,386.00, and the children residing primarily withH.S., the Court of Appeal ordered that P.W. pay H.S. basic child support for the two children in the sum of $725.00 per month as of April1, 2016 in accordance with the Federal Child Support Guidelines, S.O.R./97-175.

Child support was also subject to recalculation on thefirst day of July of each year, commencing in July 2017. [3] Before the Court of Appeal rendered its written decision on November 28, 2016 (the Court of Appeal Decision), this Courthad amended the March 2016 Order pursuant to an Order filed on August 12, 2016 (the Amended Order). This Amended Orderconfirmed this Court’s decision given orally in March 2016 that the parties were to equally share any and all extraordinary expenses forJ.W. and A.W., including expenses specifically identified therein.

It also specified that the parties would equally share orthodonticexpenses not otherwise covered by medical insurance. These provisions do not appear to have been in issue before the Court of Appeal. [4] In October 2016, before the Court of Appeal heard the appeal, P.W. filed an Originating Application for Variation of theAmended Order. His Originating Application for Variation alleged that H.S. was making financial decisions in regard to the children’sexpenses without consulting him. As such, he wanted to add a clause requiring joint decision-making and placing a monetary limit onsuch expenses.

In her Response, H.S. disagreed with a requirement that the parties mutually agree on expenses and requested that theCourt order sharing of post-secondary expenses for both children. In early 2017, this Court ordered that a settlement conference be heldin respect of that Originating Application. [5] Before the settlement conference took place, P.W. filed a second Originating Application for Variation on May 1, 2017 onthe basis that J.W. was now living primarily with him.

He therefore asked that child support be suspended for both children with H.S.taking over the obligation for A.W.’s necessities and P.W. taking over the obligation for J.W.’s necessities. H.S. filed a Response to thissecond Originating Application for Variation alleging that J.W.’s primary residence had not changed and disagreeing that child supportshould be suspended. She also said that changes should not be made “based upon child’s mood or parenting style”. [6] A settlement conference was subsequently conducted in respect of both Originating Applications for Variation by anotherJustice of this Court.

When the matter did not settle, both applications were set down for trial. [7] At the case management hearing to set a date for trial, both parties confirmed to the Court that there had been yet anotherchange in the parenting arrangements as A.W. had finished high school and was living in St. John’s since September 1, 2017. She was

sharing an apartment with a friend and working part-time in retail. In the meantime, J.W. was back residing primarily with H.S., having lived primarily with her father for a period in the Spring of 2017. H.S. has continued to receive the full amount of child support for two children in accordance with the Court of Appeal Order.

However, she says that after A.W. moved out, she provided half of the monthly child support to A.W. [ 8 ] In light of these changes, P.W. asked that child support be varied to not only retroactively adjust for the period of time that J.W. had been living with him primarily, but he wanted child support to cease for A.W. from the time that she moved out of her mother’s home. H.S. did not agree with a retroactive adjustment for either child. She also said that child support should continue for A.W.

While P.W. said he was no longer requesting an order that required joint decision-making for special and extraordinary expenses, H.S. said she wished to address an issue related to A.W.’s orthodontic expenses. [ 9 ] As neither party had filed updated financial information or current documentation regarding the orthodontic expenses and were not in agreement with respect to whether child support should be paid in respect of A.W., an order was made that both parties file updated disclosure. [ 10 ] The matter was also set down for an informal trial pursuant to Rule F31 of the Rules of the Supreme Court 1986 , S.N.L. 1986, c. 42, Sch.

D. Rule F31 provides that, with the written consent of the parties and the permission of a judge, a matter may be set down for an informal trial. Prior to the case management hearing, P.W. had filed a request for an informal trial. After I explained the procedure to both parties, H.S. also agreed to an informal trial.

She subsequently filed a written request for an informal trial. [ 11 ] An informal trial is an alternative trial procedure in which the judge takes a more active role and may admit any evidence that is relevant, material and reliable, even though the evidence might be inadmissible under strict rules of evidence. It is up to the judge hearing the matter to give such weight to the evidence presented as the judge determines is appropriate. [ 12 ] At the outset of trial, both parties made brief opening statements and gave evidence under oath on each of the issues outlined below.

I asked questions of the parties when I determined further inquiry was required. I also asked additional relevant questions of each party at the request of the other party. In addition to oral evidence, both parents provided the Court with documents they wished for me to consider. At the conclusion of the oral evidence, each party made closing submissions. issues [ 13 ] The issues raised by the parties to this informal trial were as follows: 1. Should child support be varied as a result of A.W. moving to St. John’s in September 2017? If so, what is the appropriate order for variation? 2.

Should the amount of child support payable be varied retroactively as a result of J.W.’s temporary change in primary residency in the spring of 2017? If so, what is the appropriate amount of any retroactive adjustment? 3. Should there be any variation of the existing child support Order in respect of ongoing special and extraordinary expenses? 4. Should there be any Order in respect of payment of past orthodontic expenses for A.W.? Issue 1: Should child support be varied as a result of A.W. moving to St. John’s in September 2017?

If so, what is the appropriate order for variation? [ 14 ] In determining whether A.W. is a child entitled to support, I start by recognizing that all Canadian parents have a statutory obligation to provide financial support to their children. The Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) allows this Court to order that spouses or former spouses pay child support for a “child of the marriage”.

Section 2 of the Divorce Act defines a child of the marriage as a child who:

a) is under the age of majority and who has not withdrawn from their charge, or

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [ 15 ] Age of majority is determined by the laws of the Province where the child ordinarily resides. In Newfoundland and Labrador, the age of majority is 19 years. [ 16 ] In cases not governed by the Divorce Act ,

section 37 of the Family Law Act , R.S.N.L. 1990, c. F-2 provides that every parent has an obligation, to the extent that the parent is capable of doing so, to provide support for his or her child ( section 37(1) ). However, section 37(7) states that the obligation does not extend to: (

a) a child who has attained the age of majority unless that child is under the charge of his or her parent and is unable by reason of illness, disability, pursuit of reasonable education or other cause to withdraw from the parent's charge or to obtain the necessities of life; (

b) a child who has not attained the age of majority and who is married; and (

c) a child over the age of 16 years who has withdrawn from parental care.

[ 17 ] As such, under both federal and provincial law, an 18-year old child such as A.W. is considered a child for support purposes unless that child has withdrawn from parental charge or care. I must therefore consider the evidence presented to determine whether there is a continuing legal obligation on her parents to pay child support for A.W. [ 18 ] A.W. finished high school in June 2017. During the summer of 2017, she was living primarily with her mother in Gander while working two part-time jobs in retail for 20-30 hours a week.

H.S. said A.W. could have worked more hours that summer but she wanted to spend more time with her friends. [ 19 ] In August 2017, approximately two to three weeks before she moved to St. John’s, A.W. told her parents that she wanted to move there to obtain employment as she was undecided on what type of further education she would like to pursue. The evidence is that A.W. did not have any significant discussion with either of her parents prior to making her decision to move.

H.S. said when A.W. makes a decision she acts on it, as that is her personality. [ 20 ] Both parents had hoped that A.W. would pursue post-secondary courses. However, P.W. said he recognized that A.W. was not sure what courses she wished to take and he told her not to rush into anything. For her part, H.S. said that she hoped A.W. would remain at home and work full-time in Gander. She was taken aback by A.W.’s decision to move. [ 21 ] A.W. moved to St. John’s on September 1, 2017 with both parents assisting her to furnish her apartment with odds and ends.

While A.W.’s request to transfer one of her part-time jobs from Gander to St. John’s did not work out, A.W. managed to find part-time work at a women’s clothing store within a day of her move to St. John’s.

She was also able to share rented accommodations with a friend. [ 22 ] H.S. provided the Court with A.W.’s pay slips for the period from September 10, 2017 to December 30, 2017 showing that A.W. earned income of $5,866.88 over this three and a half month period, equating to an approximate average monthly income of $1,600.00. [ 23 ] H.S. also provided the Court with information she had obtained from A.W. regarding A.W.’s monthly living expenses, comprised of rent, car insurance, cell phone, vehicle maintenance, gas, groceries, internet, toiletries, clothing and tenant’s insurance.

The total of these monthly expenses is $1,290.10. P.W. disputed some of these expenses. In particular, he says A.W.’s paternal grandfather paid her vehicle insurance. However, A.W. had agreed to repay him over time. Having considered the evidence presented, while the monthly expense budget was a rough estimate based on information supplied by A.W. to her mother, I am satisfied that both parents have knowledge of the general nature of A.W.’s expenses. Further, P.W. did not provide me with any evidence that the budget was inaccurate in any material respect.

I am therefore prepared to accept the information presented as a reasonable estimate of A.W.’s necessary monthly expenses. [ 24 ] In addition to the income A.W. has earned since she moved to St. John’s, H.S. has been making email banking transfers to A.W. for one-half of the monthly amount of child support she receives from P.W.; i.e. $362.50. I had asked H.S. when setting the matter for trial that she provide copies of her bank records evidencing these transfers.

Instead, at trial, H.S. presented a letter from A.W. confirming receipt from her mother of $362.50 at the beginning of each month since September 1, 2017 representing a portion of the child support paid by her father. P.W. said he preferred to see the bank records as proof of payment but did not ask me to disregard the letter from A.W.

As well, he did not present any evidence to contradict the contents of the letter, indicating he would prefer to proceed than adjourn. [ 25 ] H.S. also provided a letter from the store manager where A.W. works advising that A.W. was a part-time employee with no guaranteed hours, and that, entering into January, business dies down significantly compared to the holiday season. P.W. did not object to this letter being considered or its contents.

As well, both parents testified that A.W. is also now looking for new employment in order to work extra hours. [ 26 ] Both parents also testified that A.W. has called them looking for additional money since she moved into St. John’s. She has also borrowed money from her paternal grandfather. H.S. says while she is not making direct financial contributions to A.W., she has assisted A.W. by picking up parts for car repair, filling her vehicle with gas, sending money on occasion and assisting with her travel home.

As well, she has assisted A.W. by purchasing items at stores such as Costco when they have gone out shopping during a visit by H.S. to St. John’s. [ 27 ] P.W. says that A.W. made the decision to move to St. John’s and work. She must therefore live within her means and learn to take some responsibility. He says despite the fact that she is earning enough to cover her expenses, A.W. expects to receive $362.50 a month from the amount he pays in child support, while continuing to call him looking for more money.

P.W. feels that A.W. needs to know the value of a dollar and realize that she cannot spend money on things like having expensive hair and nail appointments. He indicates he is willing to help A.W. out where he can, but maintains the position A.W. is no longer legally entitled to child support. [ 28 ] On the other hand, H.S. says that A.W. is not financially independent as she is not earning enough money in her part-time employment. H.S. says it is not unusual for an 18-year old to continue to need financial support from her parents.

H.S. feels that A.W. is now maturing and learning what money means even though she may waste some money like all 18-year olds do. [ 29 ] H.S. placed two options before the Court with respect to A.W.’s continued support. The first option that she suggested is for child support to continue in accordance with the Court of Appeal Order with H.S. paying half the amount she receives in child support to A.W.

After I advised the parties that the Guidelines require both parents to provide financial support to a child if that child meets the definition of a child entitled to support, H.S. put forward a second option of both parents dividing A.W.’s rent, cell phone and insurance bills. [ 30 ] As I explained to the parties at the informal trial, I am obligated to apply the Guidelines in determining the appropriate order for child support.

With limited exceptions (none of which apply here), in respect of a child under the age of majority who has not withdrawn from parental charge, the Guidelines require that basic child support be paid in the table amount based upon the payor’s income and province of residence, together with a contribution towards expenses as set out in

section 7 of the Guidelines .

[31] Where a child is over the age of majority but unable to withdraw from parental charge by reason of illness, disability or othercause such as attendance in school, the Guidelines allow me to consider the ability of the child to contribute to his or her own supportand provide me with discretion in determining the appropriate amount of support. However, there is no provision in the Guidelines orstatute that allows me to make a discretionary order for a child who is under the age of majority. [32] As I pointed out to the parties at the hearing, parents are free to agree between themselves on alternate arrangements for thesupport of a child.

Section 15.1(5) of the Divorce Act also recognizes that a Court may award an amount that is different from theamount determined in accordance with applicable Guidelines if it is satisfied: (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or thedivision or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for thebenefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those specialprovisions. [33] However, in this case, the parties said that they did not feel they could reach an agreement between themselves and wished tohave a decision from the Court.

As such, I am obligated to apply the Guidelines in determining the amount of support that should bepaid by both parents if I determine that A.W. is a child who is entitled to support. [34] The real issue for determination, however, is whether A.W. continues to be a child entitled to child support in accordance withthe Guidelines. There is very little case law dealing with the continued entitlement of an 18-year old who has moved out of her parents’home and is no longer attending school.

This is perhaps not surprising as many other provinces have an age of majority of 18, the age atwhich most children graduate from high school. Child support would therefore cease at that time if the child does not pursue post-secondary education or is otherwise unable to withdraw from parental charge or care.

However, in Newfoundland and Labrador, the ageof majority is 19, resulting in the potential that children may have finished high school without continuing their education but still beconsidered a child for child support purposes. [35] While there are limited authorities to rely upon for children under the age of majority, there is considerable case law dealingwith the issue of whether a child over the age of majority has withdrawn from parental charge or care for child support purposes.

Inconsidering this case law, caution must be exercised in recognition of the different approach legislatures have taken when determiningentitlement to support based on a child’s age. In the case of child over the age of majority, the child’s need, ability and personal incomeare factors to be considered in determining whether a child is unable to withdraw from parental charge or care. These factors are notlikely to be relevant in the case of a child under the age of majority. [36] This view was expressed at paragraph 16 of the Manitoba Court of Appeal decision in Thompson v.

Ducharme, 2004 MBCA42, by Kroft, J.A., who stated the following in differentiating the approach to take in respect of children under and over the age ofmajority (18 years in Manitoba): 16 With those comments as background, I cannot avoid concluding that the meaning which was intended to be given to “child of themarriage” is determined by two factors: the chronological age of the child and the source of the child’s financial support for ordinaryliving expenses.

If the child is 17 years of age or less and has elected not to withdraw from the support of the parent for accommodation,food, clothing and necessities, then that child is a “child of the marriage” within the meaning of the Act. The significance of the view thatI have expressed is that for a child who has not yet reached the age of majority, need, ability and personal income are not likely to befactors.

The financial capacity to withdraw from parental care is normally not significant when we deal with a minor. [37] The Manitoba Court of Appeal then noted cases from other Provinces in which a child was working, with the financial abilityto support himself or herself, but was still living at home with a parent. In those cases, child support was not terminated as the underagechild’s financial capacity to withdraw from the charge of the parents, but unwillingness to do so, was irrelevant.

However, the ManitobaCourt of Appeal noted there could be cases where a child under the age of majority can be shown to have withdrawn from parental care. [38] One of the primary considerations in determining if a child’s actions give rise to a disentitlement to child support is whether theyouth’s decision to withdraw can be said to have been voluntary. In other words, I must be satisfied that A.W. exercised her own freewill in deciding to leave home to live independently before making an order terminating child support.

In determining the voluntarinessof this withdrawal, I am mindful that a court should not minutely examine every aspect of what is often a complex and evolving parent-child relationship in an effort to place fault on any family member. [39] In Power, (guardian ad litem of) v. Power, 2008 NLUFC 21, Justice Butler accepted the approach taken by Weisman, Prov. J.in Dolabaille v. Carrington (1981), (ON CJ), 21 R.F.L. (2d) 207, 7 A.C.W.S. (2d) 463 (Ont. Prov. Ct. (Fam. Div.)). In that case, the court was dealing with a

section of the former Family Law Reform Act, 1978, S.O. 1978, c. 2, in Ontario that stated thatthe obligation to provide child support does not extend to a child who is 16 years of age or older and has withdrawn from parentalcontrol. While the Act uses the term “control”, the same principles will be applicable to an application under the Divorce Act which usesthe term “charge” or the Newfoundland and Labrador Family Law Act which uses the word “care”. Weisman, Prov.

J. stated thefollowing at paragraphs 20 to 28: 20 In my view the legislature intended that a very limited or narrow approach be taken to the defence contained in s. 16(2) of the Act.In my opinion it is only applicable in the clearest of cases of a free and voluntary withdrawal from reasonable parental control. 21 It provides relief to parents in the limited class of case in which a young person between the ages of 16 and 18 freely andvoluntarily chooses the personal liberty and independence of a life of his own, over one fettered by reasonable parental control.

22 I adopt this approach for the following reasons: 23 1) It reduces most applications to a simple assessment of needs and means, consistent with the general approach of the Act; 24 2) It casts the burden of support on the family, rather than on the public purse, in the majority of cases, consistent with the generalapproach of the Act; 25 3) It recognizes that most normal, emancipating teenagers go through a period in which they become difficult for their parents tocontrol, and excludes them from the operation of s. 16(2); 26 4) It minimizes the inquiry into the conduct of the parties.

It is accordingly consistent with the balance of the Act which ignoresconduct as a basis of liability for support; 27 5) It reduces the necessity of assessing fault.

Where complicated family dynamics are involved, fault is generally indeterminate; 28 6) It limits resurrection of the archaic concepts that go with a fault basis for awarding support. [40] In adopting the approach taken in Dolabaille, Justice Butler noted at paragraph 59 of Power, that while the unique facts of eachcase must be carefully examined to make this determination, “the enquiry into the conduct of the parties must be kept to the minimum inrecognition that fault is not generally a basis for support and, in any event, is generally indeterminate in a case of complicated familydynamics”. [41] As such, while the purpose of looking at the family’s circumstances is not to assign fault, the enquiry may assist in determiningwhether a child’s withdrawal was voluntary or involuntary.

The case law reviewed in Power includes cases in which it was held thatwithdrawal was involuntary, such as when the child was not welcome in his parent’s house as a result of being forced out or was unableto remain in the home of a parent as a result of the presence of a step-parent. [42] In Power, Butler, J. found that the child’s withdrawal was driven by her father’s actions and inactions, including efforts tophysically prevent communication and access to his home, as well as his significant emotional detachment.

While the child in Powerwas an adult at the time of trial, it is notable that a prior interim order was made when the child was under the age of majority. Atparagraph 6 of Power, it is noted that in making that interim order, O’Regan, J. held that “The choice to withdraw from parental control… cannot be voluntary if, by necessity, it is done to ensure, as the applicant suggests here, her physical and mental wellbeing”. [43] In considering whether a child’s withdrawal is voluntary, I also recognize point three referred to by Justice Weisman inDolabaille.

He notes that most normal, emancipating teenagers go through a period in which they become difficult for their parents tocontrol. However, I must keep in mind that statement was made in the context of legislation in which the age of majority is 18 years ofage so the comment was in reference to children 17 years of age or under. As well, in that case, the court determined that the child livedapart from his parents because he was not welcome in their home. At paragraph 35 of Dolabaille, Weisman, Prov.

J., in relation to achild under the age of majority that the child “does not live apart from his parents because he chooses to pursue his personal liberty andindependence... He has known since he was 15 that he could never return home as long as his stepfather was there”. [44] However, there are also cases in which courts have considered the actions of a teenager as sufficient to constitute an election towithdraw from parental charge, care or control. In the case of Kincaid v. Arsenault (2002), (ON SC), 114 A.C.W.S.(3d) 101, 27 R.F.L. (5th) 84 (Ont.

S.C.J.), the Ontario Superior Court of Justice considered a pattern of behaviour by an 18-year old. Thecourt found that her ultimate departure from the home of her step-father who stood in place of a parent was a voluntary act on her partthat was not the result of any coercion or abuse, psychological or otherwise. The child chose not to follow the reasonable rules of aparent and moved in with her boyfriend’s family. In such a case, there was no continued obligation to support the child. [45] In the case of Ball v.

Broger, 2010 ONCJ 557, Justice Sheer was also asked to consider a provision of the Family Law Actsimilar to that considered by Weisman, J. in Dolabille; i.e., whether the obligation to support a child extends to a child who is over theage of 16 years and is alleged to have withdrawn from parental control. In that case, the child had moved out of her mother’s home,moving in to live with her boyfriend in his parents’ home when she was 17. However, she did not bring an application for child supportuntil shortly after her 18th birthday (18 being the age of majority in Ontario).

She was enrolled full-time in a fine arts program. UnderOntario legislation, the Act in place at the time provided that a parent was obligated to support his or her unmarried child who wasenrolled in a full-time program of education. As such, she presumptively met the definition of being a child entitled to support. The onuswas therefore on the parent disputing the child’s entitlement to support to prove that the child had withdrawn from parental control.

Thisis the same onus upon P.W. in these circumstances. [46] In an application seeking support from her mother, the child gave evidence that she continued to receive financial support fromher father but this did not cover all of her needs. However, Justice Sheer was satisfied that the father had no control over how the money

he provided to the child was spent and he had no more parental control over the child than he did when he was paying child support to the child’s mother as the non-custodial parent. The evidence indicated that the child was independent, having voluntarily chosen to live with her boyfriend and his family, when she left the mother’s home.

Justice Sheer held that parental control requires more than being supportive, it requires some element of management and direction over a child’s choices. [ 47 ] Having considered the evidence and submissions of the parties, I find there is no evidence that A.W. was forced out of her parents’ home or that she was unwelcome in either home. As well, there is no evidence that either parent’s actions or inactions led to A.W. feeling that she had no choice but to move to St. John’s on her own.

On the contrary, both parents would have preferred for A.W. to attend post-secondary education, in which case both parents indicated a desire to assist her. As well, I note that H.S. was taken aback by A.W.’s decision to move and would have preferred for her to remain working in Gander while living with her mother. As H.S. pointed out, A.W. has a mind of her own and voluntarily decided that she wished to go out on her own by moving to St.

John’s and working. [ 48 ] While her financial ability to withdraw is not a relevant consideration, I have considered the evidence of A.W.’s income and expenses for the limited purpose of determining whether she made a plan to live independently. As an 18-year old with a high school education, she voluntarily took steps on her own to find employment sufficient to meet her everyday living expenses and she continues to seek additional employment. While she seeks additional contributions from her parents, that is the case with many children and often continues long beyond the age of majority.

This does not mean these children have not withdrawn from parental charge. Overall, the evidence satisfies me that A.W. made this decision independently and voluntarily. Effective September 1, 2017, she ceased to be a child entitled to child support. [ 49 ] That being said, I recognize that both parents indicated a willingness to assist A.W. financially to the extent that they could while still ensuring she focused on a budget and lived within her means. This is the same approach taken by many parents and is admirable. However, the decision to give such financial assistance is one for the parents to make.

It is not a legal obligation that the Court has jurisdiction to order or enforce. Issue 2: Should the amount of child support payable be varied retroactively as a result of J.W.’s temporary change in primary residency in the spring of 2017? If so, what is the appropriate amount of any retroactive adjustment? [ 50 ] The parties are generally in agreement that J.W. chose to live primarily with her father for a period in the spring of 2017. At that time, she was not attending school.

While both parents would have liked J.W. to attend school, they accepted advice that she not attend for a period of time for medical reasons. [ 51 ] P.W. said that J.W. moved in with him in mid-March 2017 and, by mid-April 2017, she expressed a desire to stay with him permanently. He says J.W. remained living primarily with him until a couple of days before the July 1 st weekend when she returned to live primarily with her mother. P.W. acknowledges that J.W. spent some time with her mother on a trip to St. John’s in late April and had some overnight stays with her mother in May and June 2017.

He estimated that the total number of overnights with her mother was probably six or seven nights. [ 52 ] During the time that J.W was residing primarily with her father, P.W. says he supplied her with all necessary food, toiletries and spending money even though he continued to pay child support for two children to H.S. In fact, he says he had to borrow money from his father to afford this. [ 53 ] H.S. acknowledges that she continued to receive the full amount of child support for two children from P.W. during this period but says that she also purchased items for J.W.

In particular, H.S. says that on a trip to St. John’s with J.W. on April 23, 2017, she purchased clothing, shoes and make-up for J.W. She also says that in May 2017 she went with J.W. to purchase a sympathy card when one of J.W.’s friends passed away and provided her with money to put in the card. In addition, H.S. says that she sometimes transported J.W. and bought other items for her during this period. H.S. did not provide the Court with a dollar figure for the amounts she spent. I note, however, it is not unusual for a non-custodial parent to purchase items for a child.

These smaller purchases or gifts do not serve to reduce the child support obligation. [ 54 ] For his part, P.W. says the evidence demonstrates that J.W. lived primarily with him for a period of four months in the spring of 2017.

However, recognizing it may be difficult for H.S. to make a lump sum payment to him of retroactive child support, he suggests that the amount of retroactive child support owed to him by H.S. be offset against child support payable by him to H.S. in the next four months. [ 55 ] In response, H.S. says the evidence reveals that J.W. lived primarily with her father for only two and a half months as opposed to four months. H.S. says that J.W. began living primarily with her father on April 1, 2017, with J.W. spending the following overnights with H.S. in the period from March to June, 2017:

a) March – 24 nights

b) April – 1 night

c) May – 3 nights

d) June – 11 nights [ 56 ] The evidence satisfied me that J.W. resided primarily with her father for a period of three months from late March to late June 2017. The question then is the appropriate amount, if any, to adjust for child support in those months. [ 57 ] H.S. asks that I consider the fact that she went many months without receipt of child support in the past and payment for those

months was forgiven. She asks that similar consideration be given to her. [ 58 ] In the Supreme Court of Canada case of S. (D.B.) v. G. (S.R.) , 2006 SCC 37 , Justice Bastarache summarized the factors a court must consider when exercising its discretion to order retroactive child support. At paragraph 133, he stated as follows: 133 In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility.

In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail. [ 59 ] These four factors were also set out at paragraph 24 of the Court of Appeal Decision, cited as S. (H.) v. W. (P.) , 2016 NLCA 67 , involving these same parties. At this informal trial, neither parent specifically argued these four factors.

However, they did provide evidence that allows me to consider these factors in determining whether I should retroactively adjust support for the period that J.W. was living with her father. [ 60 ] With respect to the first factor, the reasonableness of the delay in P.W. seeking retroactive support, I note that P.W. filed an Originating Application for Variation on May 1, 2017, approximately one month after J.W. began primarily residing with him.

This delay was reasonable as J.W. only made a decision to remain primarily living with her father in mid-April, 2017. [ 61 ] In respect of the second factor, the conduct of H.S., I note that H.S. made no effort to voluntarily pay any amount of child support to P.W. when J.W. began residing with her father.

However, again, H.S. did not support J.W. living on a full-time basis with her father and was hoping and expecting that J.W. would return to live with her. [ 62 ] With respect to the third factor, the circumstances of the child, there is no evidence that J.W. suffered any financial hardship as a result of the non-payment of support. [ 63 ] Finally, with respect to any hardship that a retroactive award would cause H.S., I do not have specific information as to H.S.’s financial position other than to note that she was earning income of approximately $50,000.00 in 2017 while paying expenses and living in accommodations suitable for two children.

I also note H.S.’s submission that, for a period in 2015, she went without child support for A.W. who went from a shared parenting arrangement to living primarily with her mother. In particular, in the Court of Appeal Decision, the Court of Appeal did not order P.W. to pay retroactive support to H.S. for A.W. from early 2015 to September 2015. The Court of Appeal determined that the amount of money involved was no more than $3,000.00.

At paragraph 27, the Court stated as follows: 27 Applying the factors set out in S. (D.B.) , I am of the view that this Court should not order P.W. to pay retroactive support or remit the matter to the trial court for further consideration. The amount of money involved is no more than $3,000. While this is not an insignificant amount for H.S., it is significant to P.S. who must pay the adjusted amount of $1,400 (being the difference of $175.00 per month for eight months) to cover the period from April to November 2016 due to the Judge's errors.

I would also note that P.W. cannot be said to have misconducted himself, nor has it been suggested that the girls have suffered as a result of the financial situations of their parents. While I cannot say that P.W. has established that payment of retroactive support would cause him hardship (which is a different level of hardship than that required to be established under

section 10 of the Guidelines ( S. (D.B.) at para. 114 ), I was made aware of a pending application in the Family Division respecting the girls' extraordinary expenses becoming too high for P.W. to handle. [ 64 ] Hoegg, J.A., after considering the four S. (D.B.) factors and “ in an effort to bring some closure to the fractious relationships within this family ”, adjusted the amount of child support due to the Judge’s error in calculating support from 2016 forward but did not make an award of retroactive support for the period from April to September 2015. [ 65 ] Unfortunately, the Court of Appeal decision does not appear to have brought closure to the contentious nature of the relationship between the parents as they have been unsuccessful in sorting out the financial arrangements respecting the two children.

The issue of retroactive adjustments in support is before the Court again.

While P.W. agreed at trial to forego his claim for overpayment of child support in respect of A.W. to the date of the informal trial, I find that, in exercising my discretion, it is nevertheless fair and equitable for me to consider the amount that ought to have been paid if adjustments had been made to child support at the time the children’s living arrangements changed. [ 66 ] The below tables identify the amount of child support payable in accordance with the Guidelines based upon the children’s actual living arrangements and my findings with respect to A.W.’s disentitlement to child support effective September 1, 2017.

These tables also recognize that the Court of Appeal Order contemplated that child support would be recalculated by the Recalculation Office annually in accordance with the Child Support Service Regulations , N.L.R. 31/07 (the “ Regulations ”), with the first recalculation on July 1, 2017. However, the Recalculation Office declined to recalculate child support on the basis that the Court of Appeal Order did not contain the wording required by the Regulations to allow them to complete the necessary recalculation.

However, as it was clearly the Court of Appeal’s intention that the support be recalculated effective July 1, 2017, for purposes of this decision I have calculated child support that would have been payable from July 2017 forward using P.W.’s 2016 income as set out in his income tax returns. That is the recalculation method that was set forth in the Regulations . [ 67 ] In addition, effective November 22, 2017, new Child Support Tables under the Guidelines came into force reflecting income tax changes since the 2011 Child Support Tables were put in place.

As a result, for the months of December 2017 and January 2018, I have used these new Child Support Tables in calculating support that would have been payable. BASIC CHILD SUPPORT

April to June, 2017 – 3 months 2011 Child Support Tables P.W.’s 2015 Income H.S.’s 2015 Income Child Support for one child Child Support payable by P.W. for A.W. $53,742.00* $467.00/month Child Support payable by H.S. for J.W. $46,976.00 $407.00/month Difference $60.00/month x 3 = $180.00 *The Court of Appeal Order used P.W.’s 2014 income of $50,386.00, being the income used in the March 2016 Order.

However, if the Court had varied child support as at the date of J.W.’s change in residence, the Court would likely have used the parties’ 2015 income as that would have been the most recent income tax return available.

Amount Actually Paid: $725.00 x 3 months = $2,175.00 Overpayment: $2,175.00 - $90.00 = $2,085.00 July and August, 2017 – 2 months 2011 Child Support Tables P.W.’s 2016 Income Child Support for two children Child Support payable by P.W. for A.W. and J.W. $57,091.00 $820.00/month Total for 2 months $1,640.00 Amount Actually Paid: $725 x 2 months = $1,450.00 Underpayment: $1,640.00 - $1,450.00 = $190.00

September, 2017 to November, 2017 – 3 months 2011 Child Support Tables P.W.’s 2016 Income Child Support for one child Child Support payable by P.W. for J.W. $57,091.00 $499.00/month Total for 3 months $1,497.00 Amount Actually Paid: $725.00 x 3 months = $2,175.00 Overpayment: $2,175.00 - $1,497.00 = $678.00 December, 2017 and January, 2018 – 2 months 2017 Child Support Tables P.W.’s 2016 Income Child Support for one child Child Support payable by P.W. for J.W. $57,091.00 $501.00/month Total for 2 months $1,002.00 Amount Actually Paid: $725.00 x 2 months = $1,450.00 Overpayment: $1,450.00 - $1,002.00 = $448.00 [ 68 ] As can be seen from these calculations, if child support had been adjusted based upon the change in the parties’ circumstances from April 1, 2017 to the end of January, 2018, P.W. would have paid $3,021.00 less in child support than he actually paid.

He has indicated to the Court he will not seek readjustment for the amount of child support paid in relation to A.W. from September 2017 to the date of trial as payments were made by H.S. to A.W.

As the amount of the overpayment relating to A.W. for that time period is $1,126.00, this would leave him seeking a retroactive payment of $1,895.00. [ 69 ] In considering the request of H.S. to not order repayment of any overpayment made by P.W., I note that H.S. is in a relatively similar situation to that of P.W. when he was before the Court of Appeal asking that there be no retroactive adjustment of child support for September 2015. The amount of that retroactive adjustment would have been approximately $3,000.00.

[ 70 ] As was the case with P.W., there is no substantive evidence that H.S. would suffer hardship as a result of any retroactive order that she pay child support to P.W. However, as did the Court of Appeal in considering the circumstances of P.W., I recognize that H.S. has a modest income and a payment of two or three thousand dollars would be significant to her. I am also entitled to consider that H.S. went without retroactive support for A.W. who was in her primary care for several months prior to September 2015.

As well, H.S. was continuing to pay for living accommodations for two children while J.W. resided primarily with her father. I have also considered that the parties were in a difficult financial situation after their separation, resulting in bankruptcy. With a modest income, it is unlikely H.S. could have amassed any significant savings to fall back on. [ 71 ] As a result, I will exercise my discretion to not order any retroactive adjustment payable by either party to the other for the period from April 1, 2017 to the end of January 2018.

I reiterate the comments of the Court of Appeal that I am hopeful this Order will put an end to the disagreements between the parties respecting child support. I encourage them to move forward with a clean slate having had the benefit of being relieved of having to pay retroactive amounts for support in similar amounts. [ 72 ] On a go forward basis, P.W. will pay child support to H.S. in respect of J.W. in the amount of $501.00 per month effective February 1, 2018.

Such support is to be paid in two equal installments of $250.50 on the 1st and 15th day of each calendar month. [ 73 ] In respect of ongoing support, I note that since the hearing of this informal trial, new regulations have been enacted dealing with the recalculation of child support orders. These new regulations came into force on March 1, 2018 and are entitled the Administrative Recalculation of Child Support Regulations , Newfoundland and Labrador Regulation 16/18 (the “ New Regulations ”).

As a result of the New Regulations , the recalculation of child support orders is now an administrative process rather than a judicial one. These New Regulations provide that child support is to be recalculated on a review date as defined therein. The review date is the date in each year which is the anniversary of the commencement of the most recent child support obligation under a child support order, an agreement or a recalculation notice.

Section 5(2) of the New Regulations provides that where a child support order was made before the coming into force of those regulations, a payor shall provide his or her income information to the Recalculation Office no later than the date in a year on which income information was required to be provided under the child support order. While the Court of Appeal Order did not contain a date on which income information was required to be provided, it did order that support be adjusted July 1, 2017.

That adjustment would have used P.W.’s 2016 income information and it is on that basis that I have recalculated the support in this decision. July 1, 2018 therefore would effectively be the first anniversary of the commencement of the most recent child support obligation. That date would therefore be the effective “review date” for the purposes of the New Regulations .

In accordance with section 5(1) of the New Regulations , P.W. must therefore provide his income information to the Recalculation Office no later than 45 days prior to July 1, 2018 to allow for recalculation of the amount of child support in accordance with the New Regulations . The appropriate recalculation wording to be included in the order is at the end of this judgment. [ 74 ] Further, as I previously noted to the parties, child support may need to be adjusted if circumstances change and A.W. enrolls in post-secondary education as hoped in September 2018.

In that case, she may again become a child under parental charge or unable to obtain the necessaries of life and thereby entitled to child support. However, a determination of the amount of support may involve a consideration of A.W.’s needs and circumstances as well as those of her parents as A.W. turns 19 in June of 2018.

Issue 3: Should there be any variation of the existing child support Order in respect of ongoing special and extraordinary expenses? [ 75 ] As noted previously, the Amended Order provides for 50/50 sharing of any and all extraordinary expenses for J.W. and A.W., including expenses specifically identified therein. It also provides for sharing of orthodontic expenses which will be discussed separately. These types of expenses are dealt with in

section 7 of the Guidelines . Section 7(1) reads as follows: 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and

(

f) extraordinary expenses for extracurricular activities. [ 76 ] Both parties agreed that, even if A.W. were considered a child for support purposes, there are no longer any

section 7 expenses incurred for her. With respect to J.W., the only current

section 7 expenses relate to the cost of glasses, contact lenses and potentially a hearing aid. Both parties have medical insurance that covers most of these expenses and any excess is split equally between the parents. [ 77 ] The only item of contention between the parents relates to expenses associated with J.W.’s high school graduation which are not anticipated to be incurred for another two years. It was apparent from the parties’ testimony that they had disagreed on whether expenses incurred for A.W.’s graduation were reasonable and ought to have been equally shared.

These expenses included the cost of her dress, corsage, hair appointments and school apparel. Ultimately, agreement was reached but P.W. would like a limit set on the sharing of J.W.’s graduation expenses in light of this past experience. [ 78 ] As graduation expenses are not required in order for J.W. to complete her secondary school education and are not part of an educational program, they are unlikely to fall within section 7(1)(d), but may fall within section 7(1)(f), being an expense for an extra- curricular activity.

However, in order to meet the definition, I must be satisfied that the expense is “extraordinary” within the meaning of section 7(1.1) of the Guidelines which reads as follows:

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [ 79 ] In other words, I must be satisfied that the expense exceeds that which the spouse receiving child support could reasonably expect to pay taking into account that spouse’s income and the amount that spouse is receiving in basic child support. I must also consider the overall cost of the graduation activities. [ 80 ] Much time was spent by the parents disputing the expenses that were incurred for A.W.’s graduation expenses. These costs amounted to at least $1,000.00, with P.W. contributing $500.00.

At this point in time, neither parent was able to provide the Court with a reasonably accurate estimate of the expenses that may be incurred in respect of J.W.’s graduation. J.W. is only now in Grade 10 and there is no way of knowing whether her graduation activities in two years will involve the same magnitude of expenses as A.W. incurred. [ 81 ] As well, in order to make a determination on this issue, I would need to estimate the parties’ income in two years’ time as well as J.W.’s own means of paying for these expenses.

This is because section 7(1) of the Guidelines requires me to take into account the reasonableness of the expense in relation to the means, not only of the spouses, but those of the child. It may be that J.W. will choose to have part-time employment in Grade 12 and thereby have the means to cover a portion of her expenses. [ 82 ] As a result of the foregoing, to ask the Court to estimate such expenses and place a cap on the parents’ contribution is premature and speculative. I decline to make such an order.

However, I do note that, not only were the parties in general agreement that they would both contribute to reasonable graduation expenses, they were ultimately able to come to an agreement with respect to A.W.’s graduation expenses. I am hopeful that, for J.W.’s sake, the parties will take into account the provisions of

section 7 of the Guidelines , as outlined in this decision, in determining the reasonableness and necessity of any expenses associated with J.W.’s graduation and come to an agreement that is in J.W.’s best interest at that time. Issue 4: Should there be any Order in respect of past orthodontic expenses for A.W.?

[ 83 ] Finally, H.S. asked the Court to deal with the issue of payment of orthodontic expenses in respect of A.W. When evidence was presented, it became apparent that these expenses predated March 2016. [ 84 ] In particular, H.S. provided the Court with documentation from the dental office that treated A.W. showing an outstanding balance of $1,011.01 for prior services rendered to A.W. A letter from the office manager indicated P.W. had previously paid $1,010.00 on the invoice, resulting in a $1,011.01 balance. P.W. says this balance is owed by H.S.

On the other hand, H.S. provided the Court with a printout entitled “Single Family Ledger” that purports to show invoices and payments made in respect of services rendered to H.S., A.W. and J.W. from February 2013 to July 23, 2015, with handwritten notations. These notations are intended to identify who made certain payments. H.S. specifically referred to a payment of $687.50 on February 26, 2013, that she says was made on her credit card. She says this should serve to reduce her 50% contribution.

P.W. says he has no way of confirming who made the $687.50 payment and, in any event, both parties had made assignments in bankruptcy after that payment with their credit card debts being discharged. [ 85 ] As noted above, the Amended Order provides that both parties will be equally responsible for orthodontic expenses not covered by their medical plans. The issue of payment of those expenses was not appealed.

An original child support Consent Order of November 2014 also provided that the parties would equally share the cost of the children’s extra-curricular activities and special or extraordinary expenses, with a specific provision that the cost of braces for A.W. be paid equally by the parties. No reference was made in the 2014 Order to any retroactive payment or adjustment.

The pleadings giving rise to this informal trial also do not raise the issue of any payment of orthodontic expenses. [ 86 ] Further, it appears this outstanding orthodontic bill was previously raised in this Court in March 2016, despite the fact that the pleadings giving rise to that hearing did not raise the issue of payment for A.W.’s braces. A review of the Court recording of the oral decision given by the Court on March 15, 2016 indicates that the Justice determined that the parties had agreed on a 50/50 split, as evidenced in the prior 2014 Order, and needed to undertake the exercise of adding up all

section 7 expenses (not simply one expense), dividing them equally and then making any necessary payment from one to the other. [ 87 ] Despite this direction to the parties, the issue of payment for these same past expenses for A.W.’s braces was referenced again at this hearing but not put in issue in the pleadings. I reiterate the comments of the Justice who presided over the March 2016 hearing. It is neither fair nor possible to hear evidence relating to one particular payment for one

section 7 expense and make an order as to which party bears responsibility for any balance owing. The parties need to go through all expenses and calculate what amount, if any, is owed by one to the other. The parties already have an existing Order that has been registered and can be enforced through the Support Enforcement Agency. [ 88 ] Having made determinations on the issues raised at trial, I conclude by encouraging the parties to work cooperatively in all dealings respecting their children, whether related to parenting, support or otherwise.

It was evident to me that both parents love their children deeply and have made personal and financial sacrifices to ensure their children’s needs have been met. This is to be commended. However, I cannot imagine that their inability to agree on parenting and financial matters has not had some impact on their relationships with their children. Both parents have involved the children to some degree in their ongoing dispute.

P.W. previously filed a sworn statement from J.W. regarding her preference on residency and H.S. filed written confirmation from A.W. relating to a transfer of child support to her, despite my direction to file bank account transfer documents. This gives rise to a concern that these disputes may drive a wedge between parent and child. In the best interests of their children, I ask H.S. and P.W. to take this into account in their future interactions. DISPOSITION [ 89 ] Having fully considered the evidence and submission of the parties, I make the following Order: 1.

Effective September 1, 2017, A.W. ceased to be a child entitled to child support on the basis that she had withdrawn from parental charge. This shall in no way bar any future application for child support in respect of A.W. should her circumstances change, such as if she should attend post-secondary education, and once again becomes a child entitled to child support. 2. There shall be no payment of retroactive child support from either parent to the other in respect of the period from the date of the Court of Appeal Order to January 31, 2018. 3.

Based on a 2016 annual income of $57,901.00, P.W. is hereby ordered to pay child support to H.S. in respect of J.W. in the amount of $501.00 per month effective February 1, 2018. The said payment shall be made in two equal installments of $250.50 payable on the 1st and 15th day of each month. The Support Enforcement Agency shall make any necessary adjustments in respect of support paid by P.W. to date. 4. Child support shall be recalculated effective July 1st of each year commencing July 1, 2018. 5.

The amount of child support shall be reviewed each year and, where necessary, will be recalculated by the Recalculation Office in accordance with the Administrative Recalculation of Child Support Regulations. (

a) The commencement date of child support pursuant to this order is the 1 st day of July of 2017. (

b) The child support amount will be reviewed one year after the date set out in clause (

a) above. The next review date for the child support obligation is the 1 st day of July of 2018. (

c) The person required to pay child support must provide the following income information to the Recalculation Office: i. Personal income tax return for the most recent taxation year; and ii. Notice of assessment and any reassessments for the most recent taxation year; or

iii. Other document(

s) acceptable to the Recalculation Office. (

d) The income information must be provided to the Recalculation Office not later than 45 days before the review date at: Recalculation Office 9th Floor, Sir Richard Squires Building P.O. Box 2006, Corner Brook, NL A2H 6J8 Tel: (709) 634-4172/Fax: (709) 634-4155 Email: recalculation@gov.nl.ca (

e) If satisfactory income information is received by the Recalculation Office at least 45 days before the review date, the Recalculation Office will issue a Recalculation Notice setting out the proposed recalculated child support amount. (

f) If, as a result of the recalculation, the amount of child support would increase or decrease less than $5.00 per month, the Recalculation Office will not recalculate the amount of child support. The Recalculation Office will notify the parties that there will be no change for that year. (

g) If satisfactory income information is not received by the Recalculation Office at least 45 days before the review date, the Recalculation Office will issue a Recalculation Notice setting out the proposed recalculated child support amount. This amount will be: i. The income amount on which the most recent child support order, agreement, or Recalculation Notice was based; plus ii. 20% of the payor’s income as determined under (g)(

i) above. (

h) Unless a Notice of Objection is filed, the recalculated amount of child support stated in the Recalculation Notice will come into effect on the date set out in the Recalculation Notice. The Recalculation Office will file a copy of the Recalculation Notice with the court that made the child support order (or where the agreement is filed) and the Support Enforcement Agency. (

i) The recalculated amount of child support is payable to the Support Enforcement Agency: Support Enforcement Division 2nd Floor, Sir Richard Squires Building P.O. Box 2006, Corner Brook, NL A2H 6J8 Tel: (709) 637-2608 (

j) If a party objects to the change in child support amount in the Recalculation Notice, the party must file a Notice of Objection with the court that made the child support order, or where the agreement was filed. The party must also provide a copy of the Notice of Objection to the Recalculation Office. (

k) The Notice of Objection must be filed within 30 days after the Notice of Recalculation is deemed to be received. (

l) If a Notice of Objection is filed, no change shall be made to the amount of child support payable unless: i. A court order is made at the conclusion of the objection hearing; or ii. The Notice of Objection is withdrawn before the objection hearing, in which case the

recalculated amount of child support is considered to have come into effect on the date set out in the Recalculation Notice. Parties must notify the Recalculation Office of any change to their mailing address, email address, telephone number, or fax number within 10 days of the change. 6. No order is made with respect to any payment of past orthodontic expenses in respect of A.W. 7. There shall be no variation of the provisions of the Amended Order in respect of

section 7 expenses. 8. In light of the parties’ divided success in this matter, there shall be no order as to costs. _________________________ ROSALIE MCGRATH Justice