2012 NBCA 69, 2012 NBCA 69

COURT OF APPEAL OF NEW BRUNSWICK 54-11-CA PAUL MURRAY BROWN APPELLANT PAUL MURRAY BROWN APPELANT - and - - et - MEGAN LOUISE BROWN RESPONDENT MEGAN LOUISE BROWN INTIMÉE Brown v. Brown, 2012 NBCA 69 Brown c. Brown, 2012 NBCA 69 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: March 17, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 17 mars 2011

History of case: Decision under appeal: 2012 NBCA 11 Preliminary or incidental proceedings: Court of Appeal 2012 NBCA 11 [2011] N.B.J. No. 169 (QL) 2010 NBCA 5 [2009] N.B.J.

No. 222 (QL) Court of Queen’s Bench: 2011 NBQB 92 Historique de la cause : Décision frappée d’appel : 2012 NBCA 11 Procédures préliminaires ou accessoires : Cour d’appel 2012 NBCA 11 [2011] A.N.-B. n o 169 (QL) 2010 NBCA 5 [2009] A.N.-B. n o 222 (QL) Cour du Banc de la Reine : 2011 NBBR 92 Motion heard: May 10, 2012 Motion entendue : Le 10 mai 2012 Decision on motion rendered: August 2, 2012 Décision sur la motion rendue : Le 2 août 2012 Counsel at hearing: For the appellant: Paul Murray Brown appeared in person For the respondent: No one appeared for Megan Louise Brown Avocats à l’audience : Pour l’appelant: Paul Murray Brown a comparu en personne Pour l’intimée : Personne n’a comparu pour Megan Louise Brown THE COURT The motion is allowed in part without costs.

LA COUR La motion est accueillie en partie, sans dépens.

The following is the judgment delivered by THE COURT I. Introduction [ 1 ] The appellant brings a motion pursuant to Rule 60.03(4) of the Rules of Court in which he applies to have this Court vary its decision reported at 2012 NBCA 11 . The appellant contends this Court erred in its calculation of the amount payable by the appellant to the respondent and in the amounts actually paid. The litigation between the parties has been protracted. They have appeared before this Court on three other occasions: [2011] N.B.J. No. 169 (QL) ; 2010 NBCA 5 , 353 N.B.R. (2d) 323 ; and [2009] N.B.J.

No. 222 (QL) and before the Court of Queen’s Bench on numerous occasions, only one of which is reported, at 2011 NBQB 92 , 369 N.B.R. (2d) 228 . II. Child Support [ 2 ] The appellant contends this Court erred when it concluded he was required to pay child support for all of 2007 and 2008. He is correct. The record in the court below shows that the child of the marriage was residing with the appellant for 7 months in 2007 and 8 months in 2008. The total child support obligation for 2007 and 2008 should therefore be reduced by $1,986.32 for 2007 ($283.76 x 7 months) and $7,520 for 2008 ($940 x 8 months).

The total reduction in child support payable is therefore $9,506.32. III. Total Amounts Paid [ 3 ] The appellant also contends this Court erred when it concluded he paid a total of $39,880 towards arrears. He says the actual amount paid by him was $58,435. He is incorrect in that regard. According to his analysis, the total support payable for the period in question from January 1, 2004, to October 1, 2008, was $191,400 and the amount of arrears, without any variance, was $132,965.

The appellant therefore claims that, according to the math, he must have paid $58,435 during the “period of arrears” and not the $39,880 determined by this Court. He says one need only subtract $132,965 from $191,400 to arrive at this conclusion. However, the appellant’s analysis fails when one considers the trial judge concluded the appellant’s support obligations were not honoured “after May of 2004”. The starting date for the amounts “otherwise due” without any variation, is therefore June 1, 2004 and not January 1, 2004.

If one uses June 1 as the starting date, the amount “otherwise due”, according to the appellant’s approach, would be $174,900 and not $191,400. Furthermore, the appellant counts October, 2008 in his calculation of amounts “otherwise due”. October should not be counted, thereby reducing the global figure by a further $3,300 to $171,600. If one uses the appellant’s own approach by subtracting the arrears from the amount otherwise due during the period of arrears, the amount paid would be $38,635 ($171,600 - $132,965) and not $58,435 as suggested by him. Since this Court used the figures from Mr.

Brown’s own income tax returns to arrive at an amount paid of $39,880 we are not prepared to apply the slip rule to alter our decision in this regard. [ 4 ] Given the change to child support payable for the 15 months in 2007 and 2008, we amend paragraphs 20, 21, and 22 of our decision as follows: […] I have therefore calculated Mr. Brown’s support obligations as follows: Year Mr. Brown’s Income Ms.

Brown’s Income Child Support (per month) Spousal Support (per month) Total Amount Support Obligation 2004 $16,826.00 $25,972.26 $143.30 0 $1,719.60 2005 $61,776.00 $34,919.76 $535.83 $116.00 $7,821.96 2006 $14,603.00 $21,077.24 $114.28 0 $1,371.96 2007 $32,453.00 $23,832.99 $283.76 x 5 0 $1,418.80

TOTAL $12,332.32 In 2008 Mr. Brown earned $131,858.00. There is no indication on the record that this income is derived from collapsed RRSPs. Therefore, this Court owes deference to the motion judge’s finding that the contracted amount of child and spousal support is appropriate for 2008. Since the motion judge concluded the child resided with the appellant for 8 months in 2008, no child support is payable for that period. The total support obligation for 2008 is therefore $22,180.00 ($29,700.00 less 8 X $940.00). We therefore calculate Mr.

Brown’s total support obligation for the period in arrears, given his changed circumstances, to be $34,512.32 ($12,232.32 + $22,180). During this period of arrears, Mr. Brown made support payments of $39,880. He therefore has a credit of $5,367.68. We order that Mr. Brown may retire his credit by reducing his future support payments by a maximum of $500 per month. [paras. 20-22] [ 5 ] In conclusion, we allow the motion brought pursuant to Rule 60.03(4) and amend the decision reported at 2012 NBCA 11 accordingly. We make no order of costs. ______________________________ M.E.L.

LARLEE, J.A. ______________________________ B. RICHARD BELL, J.A. _______________________________ BRADLEY V. GREEN, J.A.