2014 NBCA 49, 2014 NBCA 49

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 83-13-CA DAVID CHIASSON APPELLANT DAVID CHIASSON APPELANT - and - - et - NANCY DOUCET RESPONDENT NANCY DOUCET INTIMÉE Chiasson v. Doucet, 2014 NBCA 49 Chiasson c.

Doucet, 2014 NBCA 49 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Quigg CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: July 3, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 3 juillet 2013 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: May 15, 2014 Appel entendu : le 15 mai 2014 Judgment rendered: July 24, 2014 Jugement rendu : le 24 juillet 2014

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Deschênes The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Quigg Counsel at hearing: For the appellant: Terence Connelly For the respondent: Donald Cormier Avocats à l’audience : Pour l’appelant : Terence Connelly Pour l’intim é e : Donald Cormier THE COURT The appeal is allowed with $1,500 in costs.

English version of the Court’s reasons for judgment delivered by LARLEE, J.A. [ 1 ] This is an appeal from the dismissal of an application to vary a child support order issued pursuant to the Family Services Act , S.N.B. 1980, c. F-2.2, and the relevant provisions of the Federal Child Support Guidelines . [ 2 ] The appellant David Chiasson and the respondent Nancy Doucet separated in 1997 after cohabiting for ten years or so. Two children were born of their union: Dominic, born on January 28, 1992, and Jonathan, born on December 13, 1993.

Dominic receives a disability pension and has been confined to a wheelchair since an all-terrain vehicle accident in 2011. Jonathan graduated from École Secondaire Népisiguit in December 2011. He has been working for Expert Roofing since May 2012. [ 3 ] Mr. Chiasson alleges numerous errors. He maintains the application judge dismissed it without

considering the following: (1) when Ms. Doucet separated from her last spouse, Éric Hébert, both children stayed with Mr. Hébert forfour months; and (2) he provides free lodging to his current spouse's mother. Mr. Chiasson further submits that the annual salaryimputed to him does not reflect reality. In that connection, he contends that the judge [TRANSLATION] “erred in law by failing to givesufficient reasons explaining why he imputed an income of $50,000 [to him] for the years from 2009 to 2012 inclusive”. Ms.

Doucet, forher part, is of the opinion that the judge made no significant error and submits that after ten appearances before the court, the judge knewMr. Chiasson’s work history and was able to impute income to him considering all of the evidence on the record. [4] In MacDonald v. MacDonald, 2011 NBCA 25, 372 N.B.R. (2d) 179, the Court explains thestandard of review that applies in this case: The standard of review that applies to family matters generally is that the judge’s decision must be given considerable deference.

Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, asignificant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518,[1999] S.C.J. No. 9 (QL), para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v. Levesque, 2009 NBCA 47,[2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton, 2008 NBCA 87, 338N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v.

V.B., 2007 NBCA 69, 321N.B.R. (2d) 314, para. 2). [para. 7] [5] The standard of review applicable to spousal support matters was addressed in Milton v.Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300, in which the Court noted the following: [...] In addition we will only interfere with a support order where there has been an error in principle, a significant misapprehension of theevidence, or the award is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL),at para. 11 and Pollock v. Rioux (2004), 278 N.B.R. (2d) 351, [2004] N.B.J.

No. 467 (QL), 2004 NBCA 98, para. 27). [Para. 14] [6] In Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL),the Supreme Court adds: When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, andcriteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerablediscretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with anappreciation of the particular facts of the case.

It is a difficult but important determination, which is critical to the lives of the parties andto their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courtswhen such decisions are reviewed. [para. 10] [7] In Smith v. Smith, 2011 NBCA 66, 375 N.B.R. (2d) 208, Quigg, J.A. summed up the applicablestandard of review in these terms: [F]indings of fact by a trial judge are to be given deference by an appellate court. Such findings are not to be overturned, unless palpableand overriding error is clearly present.

Such an error must be plainly discernable. The Guidelines are not law, and this Court should notbe quick to limit a judge’s discretionary powers as provided for by the Divorce Act. However, in order to avoid the appearance ofarbitrary decision-making, a trial judge should give reasons for spousal support awards above or below the Guideline amounts.

Failing togive reasons or giving reasons based on erroneous fact-finding subjects trial decisions to appellate review. [para. 49] [8] For the purposes of this appeal, it is, in my view, enough to dispose of the ground of appealrelating to the sufficiency of the reasons for dismissal of the variation application. The law on the sufficiency of reasons for judgment inthe Family Division was reviewed in P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, paras. 10-13, and there is no need to repeatthe principles outlined by the Court in that case. In the case at bar, the judge had to undertake a two-step analysis.

First, he had toconsider the evidence in order to determine if there had been a change of circumstances since the last order. His reasons for judgment aresilent on this issue. However, he could not move onto the second step unless he had determined that there had been such a change. Thesecond step, of course, is to determine the amount of support that should be paid: Trevors v. Jenkins, 2011 NBCA 61, 375 N.B.R. (2d)293. [9] In D.L.M. v.

J.A.M., 2008 NBCA 2, 326 N.B.R. (2d) 111, the Court dealt with the issue ofimputing income to an under-employed spouse and pointed out that s. 19(1) of the Federal Child Support Guidelines provides that acourt may impute such amount of income to a spouse “as it considers appropriate”, particularly in nine given circumstances. The nine

situations identified are not an exhaustive list, and the provision gives the court considerable discretion for the purposes of imputingincome. In D.L.M., the Court refers to Donovan v. Donovan, 2000 MBCA 80, [2000] M.J. No. 407 (QL), thereby subscribing to theprinciple that when determining whether an income can be imputed to a spouse, the court ought to have regard to the context, includingthe age, education, experience, skills and health of the under-employed spouse. This Court has also concurred with the followingcomments of the Court of Appeal for Ontario in Drygala v. Pauli, (ON CA), [2002] O.J. No. 3731 (C.A.) (QL):

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rationalbasis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in theevidence. [para. 40] See also LeBlanc v. LeBlanc, 2013 NBCA 22, [2013] N.B.J. No. 79 (QL). [10] In this case, no reasons were given for dismissing the variation application; it is impossible todetermine why the judge decided as he did. The record indicates that the judge began by imputing income pursuant to the Guidelines.

Heconsidered the key issue: determining Mr. Chiasson’s annual income since 2009. The documentary evidence consists of tax returns (filedby Mr. Chiasson), which indicate that his income for the relevant years was: 2009 27 000.00 $2009 $27,000.00 2010 3 993.00 $2010 $3,993.00 2011 8 996.50 $2011 $8,996.50 Mr. Chiasson also declared bankruptcy on February 7, 2011. [11] The judge found as follows, despite that evidence: [TRANSLATION] The respondent’s imputed gross annual income for the years from 2009 to 2012, inclusive, is fifty thousand dollars($50,000). [12] Where did that $50,000 annual income come from?

The reasons for judgment and recordprovide no explanation. The following questions remain unanswered:

(1) Was the judge of the view that Mr. Chiasson had chosen to beunder-employed as defined in s. 19(1)(a)?; and

(2) Was the judge satisfied that Mr. Chiasson had undisclosed income? In short, there isno “rational basis underlying” the imputation of an annual income of $50,000 (see Drygala v. Pauli). This fundamental omission leadsme to believe the judge did not consider the relevant essential criteria and that he selected an amount in an arbitrary fashion. [13] I would, therefore, allow the appeal, set aside the order issued at first instance and refer thematter back to another judge of the Court of Queen’s Bench, Family Division. I would fix the costs at $1,500. ____________________________________ M.E.L. Larlee, j.c.a. ____________________________________

Alexandre Deschênes, j.c.a. ____________________________________ Kathleen A. Quigg, j.c.a.