2011 NBCA 10, 2011 NBCA 10

COURT OF APPEAL OF NEW BRUNSWICK 54-10-CA MARK WILLIAM MAGEE (Applicant) APPELLANT MARK WILLIAM MAGEE (Requérant) APPELANT - and - - et - HELEN LOUISE MAGEE (Respondent) RESPONDENT HELEN LOUISE MAGEE (Intimé

e) INTIMÉE Magee v. Magee , 2011 NBCA 10 Magee c. Magee, 2011 NBCA 10 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: April 29, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 29 avril 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: Court of Appeal 2010 NBCA 86 [2009] N.B.J.

No. 421 Procédures préliminaires ou accessoires : Cour d’appel du Nouveau-Brunswick 2010 NBCA 86 [2009] A.N.-B. n o 421 Appeal heard: January 27, 2011 Appel entendu : Le 27 janvier 2011

Judgment rendered: February 8, 2011 Jugement rendu : Le 8 février 2011 Reasons for judgment by: The Honourable Justice Quigg Concurred in by : The Honourable Justice Larlee The Honourable Justice Green Motifs de jugement : L’honorable juge Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Green Counsel at hearing: For the appellant: Mark William Magee appeared in person For the respondent: Helen Louise Magee appeared in person Avocats à l’audience : Pour l’appelant : Mark William Magee a comparu en personne Pour l’intimée : Helen Louise Magee a comparu en personne THE COURT The appeal is allowed in part.

There is no order of costs. LA COUR Accueille l’appel en partie. Il n’y a pas d’ordonnance quant aux dépens. The judgment of the Court was delivered by QUIGG J.A. I. Introduction [ 1 ] Mark William Magee and Helen Louise Magee were married in 1985, separated in 1991 and divorced in 1994. The two children from their union are no longer receiving child support. The facts are fully set out in M.W.M. v. H.L.M . , 2010 NBCA 86 , [2010] N.B.J. No. 416 (QL) , where the Court decided disability insurance payments relating to two specific debts of Mr.

Magee’s were not to be taken into consideration in calculating child support in accordance with the Federal Child Support Guidelines . The parties were involved in a further hearing in the Court of Queen’s Bench, Family Division, regarding child support arrears. In the result, an order issued on April 27, 2010, effective March 24, 2010, which included, among other things, a provision that imputed two disability insurance payments as income. Unfortunately, the issuing judge did not have the benefit of this Court’s decision regarding the imputation of disability insurance payments as income.

[ 2 ] In the original Notice of Appeal giving rise to the present proceeding, Mr. Magee’s sole ground of appeal was the imputation of the disability insurance payments as income. At the hearing, Mr. Magee made a motion to amend his Notice of Appeal to include two further grounds: the garnishment of his Canada Pension Plan payments and costs. The panel allowed the amendment pertaining to the garnishment issue but disallowed the addition of his claim for costs. [ 3 ] After hearing from both parties, it became apparent there may have been a clerical error in the garnishment of Mr.

Magee’s Canada Pension Plan payments, but no evidence was provided to detail the nature of that error and its financial consequences to Mr. Magee. Even if there had been a motion for fresh evidence, the Court does not have the jurisdiction to pronounce upon a clerical error of that nature. [ 4 ] The parties advised they are scheduled to appear in the Court of Queen’s Bench, Family Division, in mid- February.

I am of the view that the issue of the imputation of the disability insurance payments as income should be dealt with by the Court of Queen’s Bench, Family Division, and I would accordingly allow the appeal for that purpose. At the same time, the hearing judge should determine whether a clerical error was indeed made regarding Mr. Magee’s Canada Pension Plan payments, in contradiction of the April 29, 2010 order, and undertake a recalculation of Mr. Magee’s income. This recalculation will exclude the disability insurance payments and, consequently, affect the amount of the arrears.

However, I would dismiss the appeal regarding the garnishment of the Canada Pension Plan payments, without costs, as both parties were self-represented. ______________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ________________________________ M.E.L. LARLEE, J.A. ________________________________ BRADLEY V. GREEN, J.A.