2016 NLCA 67, 2016 NLCA 67

H.S. (appellant) v. P.W. (respondent) (16/41) Indexed As: H.S. v. P.W. 2016 NLCA 67 1 C.A.N.L.R. 296 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. November 28, 2016

Summary: H.S and P.W. were divorced parents of two children. At the time of divorce, a consent order providing for joint custody was entered. The children lived alternatively with both parents and no child support was payable. Eventually one of the children began living full time with the mother, H.S. H.S. applied to vary the consent order, to request prospective and retroactive child support. The trial judge dismissed the claim for retroactive child support and ordered that P.W. pay child support in the future, but in an amount less than that provided for in the Federal Child Support Guidelines, SOR/97-175 .

H.S. appealed. Held: Appeal regarding prospective child support allowed; appeal regarding retroactive child support dismissed. Hoegg J.A. (Welsh and Harrington JJ.A. concurring): The applicable standards of review are correctness for questions of law and palpable and overriding error for questions of fact. Child support ordered pursuant to the Divorce Act is governed by the Guidelines . A judge’s discretion to depart from ordering the table amount of support is limited to five circumstances identified in sections 3(2) , 4 , 5 , 9 and 10 of the Guidelines .

Simply put, unless the facts of a case fall within one of the five identified circumstances, child support is payable in accordance with the table amounts. The Judge ordered shared custody of the girls. If shared custody within the meaning of

section 9 of the Guidelines were established on the evidence, it could provide a basis for ordering child support at variance with the Guidelines . However, a finding of shared custody requires a threshold determination that the parent seeking such an order have physical custody of, or exercise access to, the subject child or children for not less than 40 percent of the time over the course of a year. This is not the situation in this case.

None of sections which could justify exemptions from the table amounts of child support apply in this case, and the judge therefore erred in ordering P.W. to pay less child support than required by the Guidelines . Child support arrears are different from retroactive child support. Arrears of child support are monies which a payor parent has been ordered to pay but which he or she has not paid. Retroactive child support is support that ought to have been paid and would have been ordered to be paid had the ordering court been apprised of the basis for it, but was neither paid nor ordered to be paid.

The criteria to be addressed by a judge when considering whether to order retroactive child support are: the reasonableness of the delay by the payee parent in seeking retroactive support; the conduct of the payor spouse; the circumstances of the child; and the hardship that a retroactive award will cause a payor spouse. This Court should not order P.W. to pay retroactive support, or remit the matter to the trial court for further consideration.

While P.W. has not established that payment of retroactive support would cause him hardship there is a pending application in the Family Division respecting the girls’ extraordinary expenses becoming too high for P.W. to handle. The amount that would be owed does not exceed $3000. Moreover, P.W. must pay an adjusted amount of $1400 owing due to the Judge’s errors. Since success was mixed, there was no order as to costs.

Cases cited: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 Green v. Green , 2005 NLCA 29 , 247 Nfld. & P.E.I.R. 82 Whalen v. Whalen , 2005 NLCA 35 , 247 Nfld. & P.E.I.R. 344 Locke v. Goulding, 2012 NLCA 8 , 318 Nfld. & P.E.I.R. 91 Contino v. Leonelli-Contino , 2005 SCC 63 , [2005] 3 S.C.R. 217 S.C. v. S.H., 2016 NLCA 43 S.(D.B.) v. G.(S.R.), 2006 SCC 37 , [2006] 2 S.C.R. 231 Counsel: Desmond Parsons, for the appellant; Appearing on his own behalf, the respondent. This appeal was heard on November 10, 2016 before Welsh, Harrington and Hoegg JJ.A.

The following judgment was delivered on November 28, 2016 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: BACKGROUND [ 1 ] H.S. and P.W. are the divorced parents of two daughters, A.W., born June 29, 1999 and J.W., born July 31, 2002. After the divorce, the girls lived alternately with both parents. This arrangement was reflected in a Consent Order dated November 3, 2014 which provided for the parents’ joint custody of the girls on a week for week basis and that their primary residence was with their mother.

The Consent Order provided that no child support was payable and that the parents would share the cost of the girls’ extracurricular and extraordinary expenses. [ 2 ] The Order which is the subject of this appeal was made on March 15, 2016. Between November 3, 2014 and March 15, 2016, the girls’ living arrangements changed. In January 2015, A.W. began living full-time with her mother while J.W. continued to live half- time with each parent. As a consequence, on March 24, 2015 H.S. applied for a variation of the November 3, 2014 Consent Order and sought child support for A.W.

An Interim Consent Order was made on December 2, 2015, which provided that P.W. would pay child support on an interim basis of $500 per month. The Order acknowledged that P.W. had paid $500 in child support for October and November of 2015. [ 3 ] Early in 2016, J.W. began living full time with her mother, although she was spending alternate weekends with her father and visiting him and her paternal grandparents from time to time. The trial took place on March 8, 2016. THE TRIAL [ 4 ] At trial, H.S. sought child support based on the Federal Child Support Guidelines (SOR/97-175) (the Guidelines ) table amount.

She also sought “arrears” (which was actually retroactive child support) for the periods of time when, in her view, the girls’ living arrangements justified more child support than had been paid by their father. [ 5 ] The Judge ordered that the parents have shared custody of the girls, that their primary residence be with their mother, and that J.W. spend every second weekend (from Friday evening to Sunday evening) and one weekday night each fortnight with her father.

The Judge made no access order respecting A.W. [ 6 ] The Judge stated P.W.’s annual income to be $50,000, and ordered him to pay $550 per month in child support for the girls. In so doing, he said: And my calculation would be that over the years you’re going to have [J.W.] you know, 25-26 weekends plus you’re going to have her for one night during the week and this is why I reduced the child support down to – normally it would be around $720. I’m reducing it down to the amount that I said $550 because of the fact that she’s going to be with you and you’re going to be supporting her, you’re

going to be feeding her anyway. Okay, and that’s my rationale for doing it that way… The thing is that this is a hearing, the guidelines are the guidelines. But the judge has the right to make whatever changes he feels is reasonable under the circumstances … But a trial judge has the discretion to make a change. [ 7 ] The Judge went on to order that all extraordinary expenses be divided equally, and he dismissed the mother’s claim for “arrears”. THE APPEAL [ 8 ] H.S. appeals the Judge’s child support order and his dismissal of her claim for retroactive child support.

She argues that the Judge had no discretion to depart from ordering P.W. to pay child support in accordance with the Guidelines , and further that the Judge’s determination that the girls’ living arrangements amounted to shared custody was a palpable and overriding error unsupported by the evidence.

H.S. also argues that the Judge erred by failing to consider the evidence, apply the law, or provide reasons in dismissing her claim for retroactive child support. [ 9 ] P.W. maintains that the Judge “effectively and correctly exercised his discretion to reduce child support payments” from the Guidelines amount, and that his decision to dismiss H.S.’s claim for retroactive support “was correctly based on the evidence presented at the hearing.” STANDARD OF REVIEW [ 10 ] The applicable standards of review are correctness for questions of law and palpable and overriding error for questions of fact ( Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ): [8] On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own.

Thus the standard of review on a question of law is correctness … […] [10] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error […] […] [25] … [On the standard of review for inferences of fact,] there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge – that of palpable and overriding error. […] [36] … Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard.

The general rule […] is that, where the issue on appeal involves the trial judge’s

interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. [ 11 ] These review standards apply equally to fact-based and discretionary decisions made in family law cases as they do to other civil cases, as explained by Roberts J.A. in Green v. Green , 2005 NLCA 29 , 247 Nfld. & P.E.I.R. 82 , and by Welsh J.A. in Whalen v. Whalen , 2005 NLCA 35 , 247 Nfld. & P.E.I.R. 344 ).

ANALYSIS Did the Judge err by exercising his discretion to depart from ordering child support in accordance with the Guidelines ? [ 12 ] It is well established that child support ordered pursuant to the Divorce Act is governed by the Guidelines . The presumptive rule is set out in section 3(1) : Unless otherwise provided under these Guidelines , the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. [ 13 ] A judge’s discretion to depart from ordering the table amount of support is limited to five circumstances identified in sections 3(2) , 4 , 5 , 9 and 10 of the Guidelines . Simply put, unless the facts of a case fall within one of the five identified circumstances, child support is payable in accordance with the table amounts ( Locke v. Goulding, 2012 NLCA 8 , 318 Nfld. & P.E.I.R. at para. 35 ). This case does not involve children over the age of majority ( section 3(2) ), the payor parent’s income exceeding $150,000 (

section 4 ), or a step- parent (

section 5 ). Further, no issue arises under

section 10 because P.W. did not adduce evidence to support a claim of undue hardship and there is no reference to undue hardship in the Judge’s decision. The Judge did, however, order shared custody of the girls. If shared custody were established on the evidence, it could provide a basis for ordering child support at variance with the Guidelines amount (

section 9 ). [ 14 ] Shared custody is defined in the section: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 15 ] A finding of shared custody requires a threshold determination that the parent seeking such an order have physical custody of or exercise access to the subject child or children for “not less than 40 percent of the time over the course of a year”.

While there may be some variation in how a court determines the 40 percent threshold, there must be a valid determination that the 40 percent threshold is met before a Judge has the discretion to depart from ordering the table amount of child support on this basis. This is not a debatable point in this jurisdiction or elsewhere in Canada ( Contino v. Leonelli-Contino , 2005 SCC 63 , [2005] 3 S.C.R. 217 ; Locke v. Goulding , at para. 35 . See also S.C. v.

S.H. , 2016 NLCA 43 . [ 16 ] In this case, no method of calculating the time the girls spend with their father comes anywhere close to meeting the 40 percent threshold. J.W. spends three days of each two-week period with her father, which amounts at most to 78 days or 21 percent of a 365-day year. And, that calculation is with respect to only one of the two subject children, for A.W. does not spend any time with her father.

Shared custody is simply not established on the evidence. [ 17 ] Accordingly, to the extent that the Judge characterized the girls’ living arrangements as shared custody, he made a palpable and overriding factual error, and to the extent that he relied on shared custody as a basis for ordering child support in a lesser amount than that set out in the Guidelines , he made a legal error. Having no other basis on which to depart from ordering child support in accordance with the Guidelines, the Judge erred in law by exercising his discretion to do so. [ 18 ] P.W.’s income is not in dispute.

As a result, the Judge’s error can be remedied by this Court adjusting the order for child support to conform with the Guidelines . [ 19 ] The Guidelines child support amount for two children based on P.W.’s 2014 Line 150 annual income of $50,386 is $725.00 per month. P.W. is therefore ordered to pay to H.S. child support for A.W. and J.W. in the amount of $725 per month from April 1, 2016 and thereafter on the first of each month unless varied in accordance with law.

Retroactive Support [ 20 ] In dismissing H.S.’s claim for retroactive support, the Judge said: Although the Applicant has requested arrears of support I note at the hearing she is not pursuing arrears which in this particular case are substantial and ( sic ) the hope of moving forward in this matter. All arrears for child support are therefore dismissed at this time. [ 21 ] It appears as though there may have been a misunderstanding respecting H.S.’s position on retroactive support at trial.

She argues, and the record shows, that she was prepared to withdraw her claim for retroactive support if P.W. would pay the dental bills for the girls’ braces. The Judge ordered the parties to share the cost of the girls’ braces, so the conditional basis for H.S.’s willingness to withdraw her claim for retroactive support was not established. [ 22 ] Child support arrears are different from retroactive child support. The distinction was clarified by the Supreme Court in S.(D.B.) v. G.(S.R.) , 2006 SCC 37 , [2006] 2 S.C.R. 231 at paragraphs 1 and 98 .

Arrears of child support are monies which a payor parent has been ordered to pay but which he or she has not paid. In other words, arrears are a debt that has not been honoured. [ 23 ] Retroactive child support is support that ought to have been paid and would have been ordered to be paid had the ordering court been apprised of the basis for it, but was neither paid nor ordered to be paid. Retroactive support is more in the nature of an unfulfilled obligation than a debt. A payor parent facing a claim for retroactive support has not acted in contravention of a court order.

Because claims for retroactive support can disturb “the certainty that a payor parent has come to expect” ( S. (D.B.) at para. 63 ), they are adjudged on a different basis than claims for arrears. [ 24 ] In S.(D.B) , Bastarache J. identified four criteria to be addressed by a judge when considering whether to order retroactive child support: (1) the reasonableness of the delay by the payee parent in seeking retroactive support; (2) the conduct of the payor spouse; (3) the circumstances of the child; and (4) the hardship that a retroactive award will cause a payor spouse. [ 25 ] In this case, H.S., as the payee parent, first gave P.W. notice she was seeking child support in late March of 2015, after A.W. began to live with her full-time.

This situation resolved on an interim basis by way of an Interim Consent Order dated December 2, 2015 to the effect that P.W. would pay $500 per month in child support. It was acknowledged that he had paid this amount for October and November of 2015, and he complied with this Order until and including March 2016.

At no time did he fail to pay ordered child support. [ 26 ] Accordingly, H.S.’s claim for retroactive support is for one child (A.W.) from April to September, 2015, and possibly the difference between support for one child and support for two children for some time in the early months of 2016. (I say possibly because the evidence respecting when J.W. began living full time with her mother in 2016 is far from clear.) [ 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. [ 28 ] Considering the S.(D.B.) factors, and in an effort to bring some closure to the fractious relationships within this family, I would allow the appeal and amend the March 15, 2016 order as follows: - P.W. is ordered to pay H.S. for the support of A.W. and J.W. child support of $725 per month as of April 1, 2016.

The monthly payments shall be made in two installments of $362.50 on the 1st and 15th of each calendar month; - The adjusted amount owing due to the Judge’s errors, which calculates to a total of $1,400 for the months of April to November 2016, is to be paid by P.W. to H.S. in seven equal amounts of $200 on the first day of the seven successive months commencing on January 1, 2017; - Child support for A.W. and J.W. shall be subject to recalculation annually in accordance with the Child Support Service Regulations NLR 31/07.

All support payable under this Order shall be paid directly to the Director of Support Enforcement at: Support Enforcement Program P.O. Box 2006 Corner Brook, NL A2H 6J8 [ 29 ] Given the mixed success, I would make no order as to costs. Appeal allowed in part.