2015 NBCA 16, 2015 NBCA 16

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 9-14-CA SUSAN PERCY APPELLANT SUSAN PERCY APPELANTE - and - - et - LAWRENCE PERCY RESPONDENT LAWRENCE PERCY INTIMÉ Percy v. Percy, 2015 NBCA 16 Percy c.

Percy, 2015 NBCA 16 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: December 13, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 13 décembre 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: January 14, 2015 Appel entendu : le 14 janvier 2015 Judgment rendered: March 12, 2015 Jugement rendu : le 12 mars 2015

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: Susan Percy appeared in person Lawrence Percy appeared in person Avocats à l’audience : Susan Percy a comparu en personne Lawrence Percy a comparu en personne THE COURT The appeal is dismissed without costs. The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] The parties have one child who is 19 years of age.

By Consent Order, filed October 20, 2011, the respondent agreed to pay $252.00 a month for child support, as well as arrears for 2010 and from January 1, 2011, until the date of the Order.

That Order replaced a previous Consent Order dated December 14, 2009, wherein the respondent was ordered to pay $203.00 monthly for child support. [ 2 ] On June 13, 2013, the appellant filed a Motion to Change pursuant to Rule 81 of the Rules of Court and the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), based on an alleged increase in the respondent’s income, seeking an order that the respondent pay child support based on his actual income in 2012 and current income in 2013, and for arrears from 2011. On December 9, 2013, a judge of the Court of Queen’s Bench heard the motion.

The motion judge ordered the respondent to pay $390.00 a month for child support based on his 2012 income, with the first payment to commence on January 1, 2014. He also ordered the respondent to pay arrears from July 2013, to December 2013, totalling $895.00, and to provide the appellant with his income tax returns on or before June 30 of each year for the parties to negotiate the next year’s child support. The appellant appeals from this order with respect to the amount of arrears ordered.

In particular she argues the judge did not make a decision with respect to arrears for 2011 and 2012, or essentially that the new order regarding retroactive support should have commenced in 2011. [ 3 ] The standard of review to be followed in family matters dictates that the judge’s decision will be given considerable deference: Lang v. Lang , [2007] N.B.J. No. 348 (C.A.) (QL) ; P.R.H. v. M.E.L. , 2009 NBCA 18 , [2009] N.B.J. No. 77 (QL); MacDonald v. MacDonald , 2011 NBCA 25 , 372 N.B.R. (2d) 179, leave to appeal refused [2011] S.C.C.A. No. 237 (QL); Smith v. Smith , 2011 NBCA 66 , 375 N.B.R. (2d) 208; Grant v.

Grant , 2012 NBCA 101 , 397 N.B.R. (2d) 254; and Simon v. Adey , 2012 NBCA 63 , 391 N.B.R. (2d) 189.

[4] The Court of Appeal cannot re-try a case; it may only overturn a trial judge’s finding of fact ifit is the result of a palpable and overriding error, and may only interfere with a discretionary order if it is founded upon an error of law,an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence. [5] At the commencement of the appeal hearing, the appellant brought a motion to adduce freshevidence, which she argued would establish the motion judge should have fixed the arrears for a longer period than he did. [6] The law with respect to the admissibility of fresh evidence in the criminal law context is setout in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL), followed by this Court in thefamily case of L.T.G. v. C.J.G., 2011 NBCA 12, 369 N.B.R. (2d) 202, at para. 9 and MacDonald v. MacDonald, at para. 2. In order to beadmitted, the evidence must not have been reasonably discoverable prior to trial by the application of due diligence, must be likely tohave an influence upon the result, and must be apparently credible, although it need not be incontrovertible. [7] In this case, by the appellant’s own admission, the evidence she sought to produce on appealwas fully discoverable before trial.

She had all the documents in her possession at her house but did not take them to the hearing whereshe was self-represented. Since all the documents could have been tendered at trial, I would dismiss the motion to admit fresh evidence:see B.P. v. A.T., 2014 NBCA 51, [2014] N.B.J. No. 209 (QL), at paras. 6-10, and Sangster v. Sangster, 2014 NBCA 14, 416 N.B.R. (2d)397, at paras. 4-5. [8] In establishing the date from which retroactive support payments should commence, themotion judge used the date on which the appellant notified the respondent of the demand for increased support, June 13, 2013.

Thus, hegranted retroactive support for a period of six months from July 1, 2013. [9] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231,the Supreme Court endorsed the rulethat, in situations where payor parents are found to be deficient in their support obligations to their children, it will be open for the courts,acting pursuant to the relevant legislation, to vary the existing orders retroactively.

Concerning the date chosen for the retroactive childsupport order to begin, Bastarache J. stated as a general rule support should be retroactive to the date of effective notice by the recipientparent that child support should be paid or increased, but to no more than three years in the past unless there is evidence of blameworthyconduct (paras. 118 and 121; see also para. 125). This case has been applied recently in C.M.M.R. v. R.W.A.R., 2011 NBQB 159, 381N.B.R. (2d) 45, per French J. at para. 83; Thibodeau v. Bourgeois, 2013 NBQB 315, 409 N.B.R. (2d) 374, per d'Entremont J. at para. 36;C.C. v.

M.R., 2013 NBQB 330, [2013] N.B.J. No. 453 (QL), per Tuck J. at paras. 113-116; and Hanscom v. Cormier, 2014 NBQB 31,[2014] N.B.J. No. 17 (QL), per B.M. Robichaud J. at paras 38-55. In this case, the motion judge made no error in ordering thecommencement of retroactive child support on the date the appellant gave the respondent effective notice that she wanted child supportincreased. [10] I would dismiss the appeal without costs since both parties were self-represented. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: ___________________________________ KATHLEEN A.

QUIGG, J.A. ____________________________________

BRADLEY V. GREEN, J.A.