Locke v. Goulding, 2012 NLCA 8

Editor’s Note: Corrigendum released on February 14, 2012. Original judgment has been corrected with text of corrigendum appended. Date: 20120214 Docket: 09/97 Citation: Locke v. Goulding, 2012 NLCA 8 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : TAMMY LOCKE APPELLANT AND : CHRISTOPHER GOULDING RESPONDENT Coram: Green C.J.N.L., White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division, Happy Valley–Goose Bay 200008T00851 Appeal Heard: April 12, 2011 Judgment Rendered: February 14, 2012 Reasons for Judgment by Hoegg J.A. Concurred in by Green C.J.N.L. and White J.A.

Counsel for the Appellant: Nancy McKillop Counsel for the Respondent: Self Represented Hoegg J.A.: [ 1 ] This is an appeal from an order varying a child support order under the Divorce Act , RSC 1985, c. 3 (2nd Supp) (the “ Act ”) and the Federal Child Support Guidelines , SOR/97-175 (the “ Guidelines ”). BACKGROUND [ 2 ] Tammy Locke and Christopher Goulding married in August, 1990. Their marriage produced three children: J., who was born in May, 1993, and B. and B., who were born in September, 1995. [ 3 ] Ms. Locke and Mr. Goulding separated in October, 1999 and divorced in November, 2000.

Since then, their relationship has been acrimonious and characterized by constant litigation over child support. Mr. Goulding has remarried and has two additional children from his second marriage. [ 4 ] Mr. Goulding works at Wabush Mines. His annual income for the purposes of this appeal is $93,074, comprised of his regular salary and benefits in the amount of $89,000 and a pro-rated one-time bonus payment. [ 5 ] Ms. Locke does not work outside the home. She spends much of her time caring for her children.

In particular, she is the primary caregiver for B., who was born with congenital medical problems that were aggravated in 1996 when she suffered brain damage due to the negligence of a physician. B. is significantly and permanently disabled. She will never be able to work or live independently, and will require constant supervision and care throughout her lifetime. [ 6 ] B. filed a lawsuit against the physician and reached a settlement in May, 2004 to compensate her for her future care, lost income, and pain and suffering.

The settlement was structured, and the payments are held by the office of the Public Trustee to be paid out in accordance with a court order. The settlement also provided $185,682.22 to compensate Ms. Locke for the income she had lost and would lose by caring for B. instead of working outside the home. This money was used by Ms. Locke to purchase and renovate a home in which she and her three children reside. PRIOR CHILD SUPPORT DECISIONS [ 7 ] The order appealed from was the fourth child support order in eight years.

The first order was issued on August 24, 2001, when a Supreme Court applications judge (the First Judge) ordered that Ms. Locke have sole custody of the three children and that Mr. Goulding pay child support of $832 per month plus $100 per month for special expenses. [ 8 ] Those support arrangements were varied on March 7, 2002 by the same judge. Mr. Goulding was ordered to pay child support of either $931 or $389 per month, depending on his employment status, plus $100 in special expenses. [ 9 ] A second variation hearing leading to the third order was initiated by Ms. Locke and took place before the same judge.

Ms. Locke sought increased child support under section 3(1)(

a) of the Guidelines and also pressed a claim for special expenses in the amount of $20,398 per year, half of which she argued Mr. Goulding should pay. As well, Ms. Locke requested the court to order Mr. Goulding to give travel benefits he receives from his employer for each of his children with Ms. Locke directly to them, because these benefits are worth more if used by them for travel than what they receive in increased child support generated by their monetary value being included in their father’s income. In his response, Mr.

Goulding requested relief from paying basic child support under section 3(1) on the basis of undue hardship and resisted the claims for special expenses and the travel benefits. His undue hardship claim was based on his having to support his two children from his second marriage in addition to his three children from his marriage to Ms. Locke, as well as his high monthly expenses. [ 10 ] On November 2, 2006 the First Judge issued the third order. He departed from the Guidelines and did not order the table amount under section 3(1)(a).

Instead, he employed his own methodology to calculate child support and ordered Mr. Goulding to pay the lesser amount of $1,251 in support for his three children with Ms. Locke. The methodology the First Judge used was to take what he stated was the Guidelines amount for five children [1] based on an $80,000 income and divide it by the total number of Mr. Goulding’s children (five), which yielded a figure of $417.00 per child, and then multiply that figure by three, the number of his children with Ms. Locke, which yielded $1,251. In so doing, he said the following: [23] Mr.

Goulding cannot avoid paying child support. He has a legal obligation to support his children which translates into a statutory obligation to pay child support. Therefore in this case Mr. Goulding is required to pay $1251.00 a month child support. That represents the basic amount as determined in the Child Support Tables. That amounts to about $15,012.00 annually. $1251.00 per month child support is for three children of his marriage to the Applicant, Tammy Locke. I do not accept that this places Mr. Goulding in an undue hardship [circumstance].

No doubt supporting five children is always a hardship but it is not undue. Having determined Mr. Goulding’s income, including the value of the unused dependent travel benefits, to be $80,000 per year ( 2006 NLTD 188 ), the First Judge went on to determine Ms. Locke’s basic income (from child support payments and the Child Tax Credit) to be $27,000 per year, and imputed an additional $19,200 per year to her based on her testimony that she had been told her settlement monies would earn $1,400 to $1,600 per month if invested, and an additional $24,000 per year to reflect salary he said Ms.

Locke “ought to be paying herself” for caring for B. or, alternatively, for wages she could earn if she worked outside the home while someone else was paid to care for B. He thus found Ms. Locke’s total income to be $70,200. He did not address the issue of Mr. Goulding’s second wife’s income. Although not stated as such, the foregoing income determinations presumably related to a standards-of-living comparison. The First Judge then decided that ordering Mr. Goulding to pay his share of the high special expenses of $18,000.00 (reduced from the

$20,398.00 Ms. Locke had claimed) would cause him undue hardship: [37] Having arrived at this determination it is clear to me that because of the extraordinary needs of [B.] it would be inordinately burdensome and an undue hardship to require either of these parents to assume this huge expense which approximates $18,000.00 a year even if divided proportionately according to the incomes that I have identified. . . . [39] It would be unfair to order Mr. Goulding in this case to exceed to that extent what he is obligated to pay in child support under the guidelines.

He has present obligations to his new family which he must honour. He has no choice in that. [40] If for example he were ordered to pay an additional $10,000.00 annually as his share of the special expenses this would increase his payments and place a burden on him of approximately $2084.00 per month, an amount that he could not possibly maintain, and still maintain his wife and children. This would clearly be an undue hardship. [ 11 ] In the result, Mr. Goulding was ordered to pay special expenses of $100 as well as $1,251 per month in child support. He was also ordered to provide Ms.

Locke with copies of his annual tax returns and to keep his children with Ms. Locke on his employer’s medical and dental plan. [ 12 ] Ms. Locke filed an appeal of this decision but did not pursue it. It was deemed abandoned on December 19, 2007. THE APPEALED DECISION [ 13 ] On October 28, 2008, Ms. Locke again applied for a variation in child support based on a material change of circumstances. A different applications judge (the “Judge”) agreed that the increase in Mr. Goulding’s income was a material change which justified a variation. The Judge averaged Mr.

Goulding’s income over several years to reflect the impact of a one-time service bonus and determined that Mr. Goulding’s income for child support purposes was $93,074. The Judge referenced the First Judge’s 2006 decision as having decided that Mr. Goulding had established undue hardship, saying that the finding was implicit in the 2006 decision. The Judge also seemed to reach the same conclusion himself. In any event, he, too, calculated child support based on the same formula the First Judge used, which resulted in an order that Mr.

Goulding pay child support of $1,421.18 per month, some $178 per month below the table amount for three children, plus special expenses of $100 per month. The Judge declined to order Mr. Goulding to give to his children the travel benefits he receives for them and declined to make the child support order retroactive. Special expenses remained at $100 per month. [ 14 ] Ms. Locke appeals the Judge’s decision. ISSUES [ 15 ] The appeal concerns the correctness of the Judge’s order for child support. In particular, Ms. Locke argues the Judge erred when he determined that Mr.

Goulding would suffer undue hardship if he were required to pay child support in accordance with section 3(1) of the Guidelines . Appellate review of the Judge’s decision on undue hardship also engages whether Mr. Goulding’s claim for undue hardship had been properly made from a procedural and pleading point of view, and whether the Judge erred in relying on the First Judge’s 2006 decision to support his own finding of undue hardship. [ 16 ] Other issues raised in the appeal are whether Ms. Locke’s claim regarding Mr.

Goulding’s employment travel benefits was properly considered and whether the Judge erred in not making his order for child support retroactive. [ 17 ] This appeal does not involve the special expenses amount of $100 per month which Mr. Goulding was ordered to pay in 2006 and in 2009. That amount stands, and only affects the calculation of child support insofar as it must be added to Mr. Goulding’s support payments calculated pursuant to section 3(1) (

a) of the Guidelines . STANDARD OF REVIEW [ 18 ] The applicable standards of review in this case are correctness for questions of law and palpable and overriding error for findings of fact. This was explained by Roberts J.A. at paragraph 8 in Green v. Green , 2005 NLCA 29 , a case which considered an undue hardship claim, in which he quoted from Housen v. Nikolaison , 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.

[19] In the next paragraph of Green, Roberts J.A. refers to the analysis of Green J.A. found at paragraph 20 of Cooper v. Cooper2001 NFCA 4, 198 Nfld. & P.E.I.R. 1, another family law case: In the instant case, the issue is not whether the judge made an error in principle in determining the legal test to be applied; rather, theissue revolves around the treatment by the judge of the evidence to which the legal principles were applicable.

In the context of anappeal of an order varying support, which was described as having a “fact-based and discretionary nature” involving the balancing ofvarious factors with an appreciation of the particular facts of the case, L’Heureux-Dube J. reiterated the rationale for appellate deferencein such cases, in Hickey v. Hickey at para. [12] as follows: It avoids giving an incentive to appeal judgments and incur added expenses in hope that the appeal court will have a differentappreciation of the relevant factors and evidence.

This approach promotes finality in family law litigation and recognizes the importanceof the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a seriousmisapprehension of the evidence, or an error of law, it is not entitled to overturn a support order simply because it would have made adifferent decision or balanced the factors differently.

That approach and its rationale apply equally to the circumstances of the instant case, where to arrive at an appropriate decision thejudge had to weigh and balance a number of factors in the light of his appreciation of the evidence presented.

All of these formulationsof the standard of appellate review have as their underlying theme the notion that interference with a trial judge’s treatment of theevidence will only be justified where it can be shown that he or she made a “palpable or overriding error”, or manifest error, in theassessment and appreciation of the evidence. (Bracketed text in original.) UNDUE HARDSHIP The Law [20] The ordering of child support pursuant to the Act is set out in the Guidelines, whose objectives are described in

section 1. Theobjectives are designed to protect the best interests of children and to enable them to benefit from the financial means of both parents. The Guidelines seek the consistent and predictable awarding of fair child support within a civil and efficient legal process. [21]

Section 3 of the Guidelines sets out the presumptive rule (“basic support”): 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 relatesand the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. [22] It is well established that child support ordered pursuant to the Divorce Act is governed by the Guidelines. They state thatsupport is payable as determined under section 3(1) unless one or more of the circumstances identified in sections 3(2), 4, 5, 9 or 10 isestablished. There is no discretion to order otherwise. (See Goudie v. Buchanan (2001), (NL SC), 203 Nfld. &P.E.I.R. 34 NFUFC; Barry v. Rogers (2001), (NL SC), 202 Nfld. & P.E.I.R. 212 (NFUFC) and Atwood v. Stoddard,2001 NSCA 69, 193 N.S.R. (2d) 320.) [23]

Section 10 of the Guidelines addresses undue hardship: 10.

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined underany of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made,would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their childrenprior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the courtif it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child supportunder any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards ofliving test set out in

Schedule II.

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable atthe end of that time.

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [24] The statutory scheme respecting undue hardship was referenced in Brandt v. Brandt, 2003 NLCA 34, 227 Nfld. & P.E.I.R. 75. At paragraph 13 of Brandt, Rowe J.A. observed that a determination of undue hardship requires “a trial judge to perform a series ofsteps, including consideration of the evidence, findings of fact and the application of factors set out in

section 10.” [25] Claims of undue hardship have often been considered by the Unified Family Court (now, Family Division of the SupremeCourt of NL) in this province. In Smith v. Hookey (1999), (NL SC), 179 Nfld. & P.E.I.R. 205 (NFUFC), the courtdecided an undue hardship claim made on the basis that the claimant had a child to support in a second marriage as well as difficultfinancial circumstances. In analyzing the issue, Cook J. said: 28 The evidence does show that Mr. Smith has a four year old child who he has to support; he thus brings himself within s.10(2)(d)(

i) of the Guidelines. This, of course, of itself, neither proves nor disproves undue hardship. 29 To deviate from the presumptive rule, the hardship claimant bears the element of proof on all elements: Messier v. Baines(1997), (SK KB), 161 Sask. R. 132; S.J. No. 627 Q.B. Fam. Div. The fact that one or more hardship circumstancesexists does not determine the issue because that circumstance only may cause undue hardship: Hansvall v. Hansvall (1997), (SK KB), 160 Sask. R. 201; S. J. No. 782 (Q.B.). 30 Undue hardship is a tough threshold to meet.

Synonyms for undue include: excessive, extreme, improper, unreasonable,unjustified. It is more than awkward or inconvenient. Swift v. Swift (ON SC), [1998] O.J. No. 501, Ont. Gen. Div. Inother words, the fact that any of the provisions of s.10(2) of the Guidelines may apply to the Applicant is not, of itself, determinative ofthe undue hardship issue. The hardship must be “undue” to satisfy the requirements of s.10(1).

And, if an applicant meets therequirements of s.10(2), he or she must still prove a lower standard of living under s.10(3) and, even if this is proven there is still aresiduary discretion granted pursuant to s.10(1). (Underlining added; italics in original.) [26] Cook J. went on to clarify the nature of the burden the claimant must bear: 33 For greater certainty, it is my view, that there is an onus on an applicant who alleges that s.10(2)(d)(

i) of the Guidelines appliesto show more than a legal duty to support a child (or children) because such legal duty, of itself, is insufficient to meet the burden. To besuccessful under s.10(2)(d)(

i) an applicant must actually provide cogent and persuasive evidence that he suffers undue hardship becauseof having to support a child or children. (Emphasis added.)Later in his judgment, Cook J. explained when and how a standards-of-living comparison comes into play: 36 The purpose of s.10 of the Guidelines is not to promote equal standards of living between spouses' new households.

All thats.10(3) of the Guidelines does, is to ensure, following a determination of undue hardship, that the successful application must be deniedif, after determining the amount of child support payable, the payor spouse's household standard of living is higher than the household ofthe other parent. If undue hardship is not proven under s.10(2), a comparison of household standards under s.10(3), becomesunnecessary. [27] Cook J.’s approach has been upheld by this Court in Green and also widely followed in this province. (For example, seeGoudie, Barry and Kearsey v.

Hedderson, 2009 NLUFC 30.) [28] In Goudie, Cook J. allowed a claim for undue hardship on the basis of finding that the claimant was supporting four children intwo different homes, had an unusually high debt load, had heavy expenses related to earning his livelihood, and had no room tomaneuver regarding his real property assets. [29] In Barry, Handrigan J. denied a claim for undue hardship made on the basis that the claimant had heavy expenses related tosecuring employment. There were no hard data proffered to enable the court to assess the expenses nor was there any evidence showingimpact on the claimant.

The court determined that the claimant’s bald assertion of significant loss did not make his plight extraordinaryso as to constitute undue hardship. [30] In Kearsey, Butler J. denied a payor parent’s claim of undue hardship made on the basis of his having to support a child in hissubsequent marriage as well as his heavy monthly debt reduction expenses.

The court found that the needs of the payor parent’s childfrom his second marriage were not extraordinary, that they were being met by her two parents living in the same household, and that thedebt reduction expenses of the claimant were not excessive in the circumstances. [31] In all three of the above-referenced cases, the courts analyzed the evidence put forward to support the undue hardship claimsand determined whether it fit any of the statutory circumstances in section 10(2) or otherwise met the high threshold for establishingundue hardship. [32] In Hanmore v.

Hanmore, 2000 ABCA 57 255 A.R. 163 (leave to appeal to the Supreme Court of Canada refused [2000] S.C.C.

A. No. 182), the Alberta Court of Appeal pronounced on the considerations affecting a claim of undue hardship. In Hanmore, the courtsummarized the approach to determination of undue hardship as follows: [9] … The applicant who seeks a reduction on grounds of undue hardship must satisfy a two stage test. The first stage requires theapplicant party to prove specific facts establishing the undue hardship. S. 10(2) sets out a non-exhaustive list of circumstances that maygive rise to such a claim.

If undue hardship is established, the applicant must show that his or her household would enjoy a lowerstandard of living than the household of the other parent should child support not be reduced. However, even where such a finding ismade, the Court retains a discretion to refuse to reduce the guideline amount. … In paragraph 17, the court also stated: [10] … Further, it is not sufficient that the payor spouse has obligations to a new family or has a lower household standard of living thanthe payee spouse. The applicant must specifically identify the hardship which is said to be undue.

A general claim regarding an inabilityto pay or a generic reference to the overall expense of a new household will not suffice. We adopt the words of Prowse, J.A. in VanGool: [51] The onus is on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant hasthe legal responsibility for another child or children and/or because the standard of living of the applicant’s household is lower than thatof the other spouse.

The applicant must lead cogent evidence to establish why the table amount would cause undue hardship. [33] The Guidelines regime for determining undue hardship was succinctly described in Kelly v. Kelly, 2011 BCCA 173, a recentdecision from the British Columbia Court of Appeal: [33] A claim for undue hardship under s. 10 of the Guidelines encompasses a two-step analysis. First, the parent applying for reliefmust demonstrate the undue hardship that will be caused by paying Guidelines support.

Section 10(2) sets out a non-exhaustive list offactors that may be considered at this stage, including “an unusually high level of debts” incurred prior to the separation or “to earn aliving”, and “unusually high expenses in … exercising access”. This first step has a high threshold. The hardship that must be establishedis described in the authorities as severe, extreme, improper, unreasonable, or unjustified: Van Gool v.

Van Gool (1998), (BC CA), 59 B.C.L.R. (3d) 395, 44 R.F.L. (4th) 314 at paras. 48-51. [34] If, and only if, this first requirement is met, the second step engages a comparison of the standard of living in each parent’shousehold under s. 10(3) of the Guidelines, to ensure the payor of child support will not have a higher standard of living than therecipient if a reduction in Guidelines support is made. [35] If the applicant establishes these two requirements, the court has a discretion to order child support in an amount other thanthat required by the Guidelines.

This is a narrow discretion, however, and should be exercised cautiously to avoid thwarting theGuidelines’ objectives of predictability and consistency: Julien D. Payne and Marilyn A. Payne, Child Support Guidelines in Canada(Irwin Law: Toronto, 2009) at 302. [34] I agree with the above-referenced

interpretations of the Guidelines as found in the Smith, Hanmore and Kelly cases. I do note,however, there is one minor point of difference between the analyses in Hanmore on the one hand, and Smith and Kelly on the other. InHanmore, the court states that a claim of undue hardship must be denied unless the complainant household’s standard of living is shownto be lower than that of the recipient’s household.

In Smith and Kelly, the courts use the language of the section, which leaves open thepossibility that if the results of the two standards-of-living assessments are equal, then an undue hardship claim could prevail. None ofthese cases had to decide if an undue hardship claim could prevail when the results of a standards-of-living comparison were equal. However, the Hanmore court went further than the Smith and Kelly courts by saying that the claimant’s household’s standard of livinghad to be lower before a justice could grant the claim.

This case does not require me to decide which of the two approaches shouldgovern. However, in obiter, I say that the Hanmore

interpretation makes sense: if the standards of living of the two households are foundto be equal, there is no reason to permit an undue hardship claim which would effectively enable the claimant’s household to enjoy ahigher standard of living while paying less than basic support. [35] In

summary, there is no discretion to depart from the Guidelines when ordering child support pursuant to the Act. Thepresumption is that basic support will be ordered in accordance with section 3(1). Apart from sections 3(2), 4, 5 and 9, which have noapplication to this case, a non-custodial payor parent must pay the basic amount unless that parent establishes that by doing so he or shewould suffer undue hardship. [36] An undue hardship analysis involves several steps. First, the support otherwise payable under section 3(1) must bedetermined.

Second, the evidence led in support of the claim for undue hardship must be assessed in relation to the section 10(2)circumstances or any other circumstances (as the list is not exhaustive) which reasonably invite consideration of undue hardship. Thisevaluation must recognize that undue hardship is a high threshold to meet. In this regard, the claimant’s hardship must be more than adifficult or inconvenient one. Rather, it must be “excessive, extreme, improper, unreasonable, [or] unjustified” (per Cook J. in Smith).

Itis not a simple matter of the claimant saying “I have other obligations” or “I have high expenses.” Rather, the claimant must show thathis or her obligations and expenses cannot be reasonably managed so as to enable him or her to pay basic support and how and why it isthat he or she will suffer undue hardship if ordered to so pay.

If the claimant is unable to do so, his or her claim must fail at this stage. [37] However, if the evidence supports a finding of undue hardship under section 10(2), then the judge must go on to do the third-step – a standards-of-living comparison under section 10(3). [38] An optional test for conducting a standards-of-living comparison is found in

Schedule II of the Guidelines. Without attemptingto catalogue the factors which inform a standards-of-living comparison, I observe that it involves more than a straightforwardcomparison of household incomes. Even

Schedule II contemplates imputing income to any member of the household, which includesthe spouse of a payor parent. But

Schedule II does not account for all factors relevant to one’s standard of living. The value of a two-parent household as opposed to a single-parent household, high medical costs or a multitude of other circumstances could well inform astandards-of-living comparison.

[ 39 ] After completing the comparison, unless the judge concludes that, after payment of basic support, the household of the payor claimant would have a higher standard of living than that of the recipient household, the judge may, as a fourth step, exercise his or her discretion to grant or refuse the claim.

If the judge determines that the standard of living of the payor claimant’s household remains higher than that of the recipient household, the claim must be denied. [ 40 ] To be clear, a court has discretion to reduce the basic amount of child support only when there is a finding of undue hardship under section 10(1) and a finding that the household of the payor parent would not have a higher standard of living after payment of basic support under section 10(3) . Finally, if a court ultimately exercises its discretion and grants the claim for undue hardship, it is required to record its reasons for doing so.

Analysis [ 41 ] In this case, it was incumbent on the Judge to determine the basic support payable by Mr. Goulding under section 3(1) and to order Mr. Goulding to pay that basic support unless he found that Mr. Goulding would suffer undue hardship by doing so. Mr. Goulding’s annual income increased by $13,000.00. This amount is directly relevant to his claim of undue hardship for the simple reason that income substantially informs such a finding and the $13,000 increase, significant in the circumstances, could well obviate a previous finding of undue hardship.

Accordingly, the change in income had to be considered along with all the other evidence so that a reliable decision respecting undue hardship could be made. [ 42 ] In his decision, the Judge stated that the First Judge had “by implication” found undue hardship in the 2006 decision. The Judge also referenced Mr. Goulding’s argument that the doctrine of res judicata applied to the findings in the 2006 case: I think the matter that [Mr.

Goulding] was talking about is the formula Justice Fowler used in his decision of November 2nd, 2006, which implicitly made a finding of hardship because he reduced the Guideline amount based on five children instead of three. In other words, it recognized that Mr. Goulding is now supporting five children and it tried to create some fairness there. [ 43 ] It is unclear whether the Judge accepted the res judicata argument or not. His statement admits of three possible

interpretations: 1) he was bound by the First Judge’s findings and methodology, 2) he adopted the First Judge’s findings and methodology, or 3) he found undue hardship as a result of his own analysis. Whatever the Judge meant, he specifically adopted the First Judge’s view that children of first and second marriages should be treated equally and went on to depart from the Guidelines and to calculate basic child support according to the First Judge’s methodology, which involved using the table amount for five children and then prorating for the three children of his first marriage. This was an error.

Neither the approach nor the methodology for calculating support is in accordance with the Guidelines . Section 3(1)(

a) places the focus of calculation of basic child support on the number of children “to whom the order relates”. In this case the judge was required to use the table amount for three children as it applied to Mr. Goulding’s level of income. Such a calculation would have led to a basic child support amount of $1,600.12. [ 44 ] The equal treatment of children from different unions who live apart is not a factor for a judge’s consideration when deciding basic support under section 3(1).

When a parent enters into a new family unit knowing that he or she already has responsibility for supporting existing children, that parent is expected to organize his or her affairs accordingly so as to honour that obligation. (See Hanmore , paragraph 5 .) In some measure the Guidelines do provide a mechanism for treating children equally – the standards-of-living comparison under section 10(3) – insofar as the children of each household can be presumed to benefit equally from their respective households. However, this comparison is only triggered by a finding of undue hardship.

One cannot depart from the usage of the appropriate table amount to achieve, as the judge appears to have done, an indirect adjustment to recognize undue hardship as part of the basic child support calculations. [ 45 ] In any event, the methodology employed by the Judge does not achieve equality. The table amount of support of five children is not determined by adding five equal increments together. Moreover, that methodology does not account for the balance of Mr.

Goulding’s income (after child support is deducted) from which the two children of his second family benefit nor for the fact that those children benefit from a two-parent family and a stay-at-home mother.

Regardless, the Guidelines clearly set out the regime to be followed, and a judge has no discretion to depart from it. [ 46 ] Accordingly, to the extent that it could be said that the Judge relied on the First Judge’s “implicit” determination of undue hardship, and the basis for that determination, he made palpable and overriding error. [ 47 ] Notwithstanding the above, it appears as though the Judge made his own determination that Mr. Goulding established undue hardship. At paragraph 16 of his judgment, the Judge said: [16] That is paraphrasing what the obligations are under the Guidelines . Ms.

Cullihall did mention that there is a two step process. I am satisfied that Mr. Goulding does have obligations to support the children from the second marriage and I do find because of that, and also because of his monthly expenses exceeding or at least completing offsetting his net income, that he is in a situation where there is undue hardship. I do have the right to exercise my discretion. And I also find that the standards of living, comparing the two households, will not be out of kilter. In other words, Mr.

Goulding will not be left with a higher standard of living. [ 48 ] In this case, the Judge found undue hardship, although he did not actually state that Mr. Goulding would suffer an undue hardship if he were ordered to pay the correct table amount of $1,600.12 plus $100 per month on his $93,074 annual income. The Judge gave three reasons for his finding: 1) Mr. Goulding had an obligation to support the children from his second marriage; 2) Mr. Goulding’s monthly expenses exceeded, or at least offset, his net income; and 3) after comparing the two households, Mr.

Goulding would not be left with a higher standard of living. [ 49 ] The first of the Judge’s reasons relates to circumstance (

d) of section 10(2) of the Guidelines , which lists five circumstances that may cause a spouse or child to suffer undue hardship. As indicated above, these circumstances are not criteria which, upon any one being met, entitle a claimant to a determination of undue hardship. ( Smith , Hanmore and Kelly ) They are merely circumstances which could cause undue hardship. As such, they can be said only to invite consideration of the issue.

[50] Mr. Goulding is obliged to support all of his children and in this respect, his circumstances are encompassed by section10(2)(d). However, the Judge’s bald finding that Mr. Goulding is in a situation of undue hardship because he has an obligation tosupport children from his second marriage is not sufficient. To justify such a finding, a judge must explain why or how it is that Mr.Goulding’s having to support his two children in his new family unit and to pay basic support for his three children with Ms. Lockecreates an undue hardship for him. Mr.

Goulding’s two children from his second marriage live with him and their mother who togethermeet their children’s needs. The record does not disclose any expenses specific to the support of Mr. Goulding’s children from hissecond marriage. Neither is it discernable from the Judge’s decision how and why it is that the cost to Mr. Goulding of supporting histwo youngest children is such that he cannot arrange his affairs so as to pay basic support for his three older children, or how he wouldbe impacted if he has to pay basic support.

Accordingly, by failing to find and explain how and why supporting two children in hispresent marriage and paying basic support for his three children with Ms. Locke would cause Mr. Goulding undue hardship, the Judgeerred in his application of the law to the case. [51] The second reason the Judge gave for finding undue hardship is that Mr. Goulding’s expenses exceeded or completely offsethis net income. The monthly expenses Mr.

Goulding submitted do not relate to the children specifically or in any detail, nor do theyotherwise show how and why his duty to support them causes him undue hardship under section 10(2)(d). Neither do they relate to anyother section 10(2) criteria. Section 10(2)(

a) of the Guidelines speaks to carrying debts and expenses incurred to support spouses andchildren of his first family unit, and section 10(2)(

b) speaks to expenses related to exercising access to children. There is no evidencesupporting either of these circumstances.

In the Smith and Kearsey cases, the courts examined the nature of the heavy expenses on whichthe undue hardship claims were made and found that neither claimant’s heavy expenses related to exercising access to children or to theirsupport specifically, or to carrying expenses related to the previous relationships. [52] Although the section 10(2) list of circumstances inviting undue hardship is not exhaustive, the mere fact that a claimant’sincome is exceeded or offset by his expenses is not, without more, an independent criterion for consideration of undue hardship.

InGreen, this Court concluded that the claimant’s heavy expenses were as a result of lifestyle choices which did not relieve him of his childsupport obligations. In this case, the Judge did not consider whether Mr. Goulding’s finances were so justifiably tight that he could notpay basic support according to the Guidelines, which amounted to approximately $178 more per month. As the Saskatchewan Court ofAppeal found in Pellitier v. Kateakaway, 2002 SKCA 94, 223 Sask.

R. 305 at paragraph 13, “a generic reference to the overall expenseof a new household is not enough to support a claim of undue hardship.” To fail to examine Mr. Goulding’s expenses and explain whyand how they would justify him paying less than basic support is an error of law. [53] Mr. Goulding’s monthly expense and household income information is an important consideration in any comparison ofstandards-of-living analysis. Ms. Locke argues on this appeal that Mr.

Goulding did not substantiate his claim of undue hardshipbecause he failed to state the material facts on which his claim was based and because he failed to file and serve a complete financialstatement in accordance with Rules 56A.12(4) and 56A.28(3)(

b) of the Rules of the Supreme Court, 1986. [54] Ms. Locke is correct; Mr. Goulding’s financial statement was deficient. He failed to complete

Section F, containing the detailsof his undue hardship claim, and

Section G, listing the income of his other household members, specifically his wife. It seems that theJudge accepted Mr. Goulding’s testimony that although his wife was babysitting, she was not earning any income. In this regard, I notethat Mr. Goulding’s 2006 and 2007 tax returns indicate that his wife earned $1,200 and $2,100 in those respective years. Thisinformation contradicts Mr. Goulding’s trial evidence. While it may be permissible in some situations to accept viva voce evidence inplace of the

Section G form, in this case Mr. Goulding’s failure to plead undue hardship in the prescribed form and to complete SectionsF and G of the financial statement prejudiced Ms. Locke. She could not prepare and respond to Mr. Goulding’s claim if she did notknow the basic facts on which he purported to base it. Mrs. Goulding’s income or her ability to earn income is directly relevant to Mr.Goulding’s undue hardship application, in that it must be considered in a standards-of-living comparison. Accordingly, this deficiency inMr.

Goulding’s claim and financial statement is more than an irregularity which could possibly be disregarded (see Rule 56A.70). Thissituation underscores the importance of pleading the requisite information to enable a proper undue hardship analysis to be conducted. [55] Accordingly, when a payor parent’s evidence supporting a standards-of-living assessment is materially deficient, as in thiscase, a meaningful comparison of standards of living cannot take place. In such a circumstance, his or her claim ought not to beentertained. (See Ellis v. Ellis, (1999) 1999 NSCA 31 , 175 N.S.R. (2d) 268 (CA) at paragraph 38).

The Judge erred inconsidering Mr. Goulding’s claim on this deficient basis. [56] Ms. Locke also points to inconsistencies, errors and incorrect information in Mr. Goulding’s monthly expenses claim aspresented to the court. At the appeal hearing, Mr. Goulding specifically acknowledged that he claimed some one-time expenses asmonthly expenses, that there were calculation errors in his expense statement and that some expenses he claimed had already beensubtracted from his gross income by his employer and were therefore double counted. Ms. Locke’s counsel submitted the revised figureof $5,974.00 for Mr.

Goulding’s monthly expenses instead of the $7,801.56 he claimed, and Mr. Goulding did not dispute this correctedamount. This is a difference of $1,827.56 per month or $21,930.72 per year – some nine times the amount by which his supportpayments were reduced from the basic amount. Nothing in the Judge’s decision indicates that he appreciated that the monthly expensestatement as submitted was wrong. Accordingly, the incorrect information in Mr. Goulding’s monthly expense statement underminesthe Judge’s reason for finding undue hardship, that being that Mr.

Goulding’s “monthly expenses exceeded or at least offset his netincome”. [57] In any event, the Judge did not examine the evidence respecting Mr. Goulding’s monthly expenses and explain why and how itjustifiably disentitled his first three children to basic support, which support was only a fraction of the amount of money by which Mr.Goulding’s monthly expenses were overstated. In not doing so, the Judge made palpable and overriding error in his appreciation of theevidence and application of the law. [58] Mr. Goulding did not discharge the burden required of him to establish undue hardship under section 10(1).

Therefore, astandards-of- living comparison was not required. However, had one been necessary, the evidence was insufficient to carry out such acomparison as explained in paragraph 55 above. A standards-of-living comparison includes, at a minimum, establishing the annualincome of each person in the household and adjusting it if necessary. In this case, the Judge imputed income to Ms. Locke, but gave noconsideration to Mrs. Goulding’s income or her ability to earn one. In this regard, he did not assess the respective households in an equal

manner. [ 59 ] In

summary, 1) the Judge erred in his use of the applicable table amount in calculating basic child support pursuant to section 3(1) (

a) of the Guidelines . Properly applied, the amount would be $1,600.12; 2) the judge erred in finding that Mr. Goulding had met the burden of establishing undue hardship so as to relieve him from paying basic support under section 3(1) to his first three children, and 3) even if the Judge had correctly apprehended the evidence and applied the law, the record indicates that Mr. Goulding’s undue hardship claim could not succeed because it was deficiently pleaded and because his statement of expenses was incorrectly calculated. In the result, Mr.

Goulding should have been ordered to pay basic monthly support for his three children with Ms. Locke of $1700.12. This amount is comprised of the monthly table amount of $1600.12 under section 3(1) (

a) and $100 per month special expenses under section 3(1) (b). Employment Travel Benefits [ 60 ] Ms. Locke sought an order directing Mr. Goulding to pay the travel benefits he receives directly to their children. She argues there was a material change in circumstances justifying changing the First Judge’s decision not to do so, in that B.’s settlement monies do not cover all of her expenses when she travels for medical reasons. Ms.

Locke says that the expenses shortfall was not known at the time of the hearing which resulted in the First Judge’s decision, and that if it had been known, it likely would have resulted in a different decision. Ms. Locke describes the situation in her factum as follows: 35. The Respondent has been entitled to air travel benefits through his employer since June, 1999. These benefits are made available to the Respondent and each dependent member of his family over the age of two residing in Wabush, Newfoundland and Labrador. . . . 39.

The Appellant has never received the air travel benefits from the Respondent for the three children.

It is respectfully submitted that, as confirmed by the Appellant at trial, the increased cost of traveling out of Labrador and the inability of the Registrar of the Supreme Court, [now, Public Trustee] to cover all travel costs for medical appointments in the recent year were the material change in circumstances that formed the basis for her application to vary the order of the Honourable Mister Justice Fowler and seek travel benefits from the Respondent for the three children. [ 61 ] Subsection 15.1(1) of the Act authorizes a court to order payment of child support: A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Subsection 3(1) of the Guidelines addresses the methodology applicable to calculating an amount of child support: 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. The provisions concerning extraordinary expenses in subsection 7(1) allow for the payment of an amount: In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses… This provision authorizes an order, over and above basic child support, for an “amount” to cover certain types of “expenses”. It contemplates reimbursement, by payment of money, of specific “expenses” expressed in monetary terms.

It does not, on its face, allow for an order directing that an employment benefit be transferred to or for the children of the marriage. Employment benefits respecting medical or dental insurance are addressed in

section 6 of the Guidelines : In making a child support order, where medical or dental insurance coverage for the child is available to either spouse through his or her employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued. Employment benefits respecting travel are not specifically addressed. [ 62 ] In this case, Mr. Goulding receives the value of the travel benefit in income. He pays taxes on it and it is included in his income for the purposes of child support.

However, it would be worth much more to his children if they were to receive it directly for travel, than the small increase in child support they receive by virtue of its value being included in their father’s income. Nonetheless, the money is Mr. Goulding’s employment benefit pursuant to his employment contract. [ 63 ] In this case, the Judge accurately noted the facts of the situation and declined to order Mr. Goulding to pay the benefits directly to his and Ms. Locke’s three children. Ms.

Locke has not asserted that her children have a proprietary right to the travel benefit, or that the benefit could be made the subject of a trust obligation or claimed as an amount under extraordinary expenses. She also has not sought to invoke the parens patriae jurisdiction of the court or otherwise shown under what authority a court could order the travel benefit be paid directly to the children. In the absence of specific statutory or other demonstrated authority to make the requested order, I am not convinced that the Judge made any error in ruling as he did.

This is not to say that a court could never make such an order, but only to say that the case for making such an order does not appear to have been made out at trial or on appeal and the appellant has not demonstrated any error on the Judge’s part. Accordingly, his decision respecting travel benefits stands. [ 64 ] If the parties are able to negotiate a sharing of the travel benefit, then Mr. Goulding’s income for the purposes of child support

could be reduced and a consent order could issue. In this regard, I note that B.’s travel costs exceed the funds available from hersettlement for that purpose. Like the Judge, I would encourage the parties to try to reach an arrangement that is more beneficial to thechildren. Retroactivity [65] Ms. Locke argues that retroactive child support should have been ordered.

The Judge acknowledged that child support ordersare generally retroactive to the date of the variation application, but he concluded that he could, in his discretion, decline to orderretroactive support: [22] The adjustment of the child support obligations will become effective October 1, 2009. I am exercising my discretion not to goretroactive even though that would be my normal practice, at least to go back to the date of the application.

But of course the arrears thatare currently outstanding will have to be paid. … [66] Although not explicitly stated in his decision, the only discernable basis for the Judge’s exercise of discretion respectingretroactivity is his previous finding of undue hardship. In this case, the finding of undue hardship for the purposes of

section 10 of theGuidelines is determined to be in error. Accordingly, undue hardship can no longer justify the judge’s decision to deny retroactive childsupport. It is therefore incumbent on this Court to determine the issue. [67] The principles governing retroactive child support were recently summarized by Bastarache J. in D.B.S. v. S.R.G.; L.J.W. v.T.A.R.; Henry v. Henry; Hiemstra v.

Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”) at paragraphs 68 and 69: The concern associated with retroactivity is that, from the perspective of the person on whom a retroactive obligation is imposed, theorder is arbitrary and unfair: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 553-54. Yet aretroactive child support order, as considered in the present appeals, does not involve imposing an obligation on a payor parent that didnot exist at the time for which support is being claimed: compare Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977] 1 S.C.R. 271, at p. 279. As I concluded above, a payor parent always has the obligation to pay — and thedependent child always has the right to receive — child support in an amount that is commensurate to his/her income. This obligation isindependent of any court order that may have been previously awarded.

Accordingly, even where the payor parent has made paymentsconsistent with an existing court order, (s)he would not have been fulfilling his/her obligation to his/her children if those payments didnot increase when they should have, according to the applicable law at the time. Thus, the support obligation of a payor parent, whilepresumed to be the amount ordered by a court, will not necessarily be frozen to the amount ordered by a court. It is the responsibility ofboth parents to ensure that the payor parent fulfills his/her actual obligation, tailored to the circumstances at the relevant time.

Wherethey fail in this obligation, a court may order an award that recognizes and corrects this failure. Such an award is in no way arbitrary forthe payor parent. To the contrary, it serves to enforce an obligation that should have been fulfilled already. In ordering that an award be calculated retroactive to a certain date, a court would therefore be acting consistently with the law thatexisted at the relevant time. While the order itself would be varied with retroactive effect, the obligation that formed the basis of thecourt’s decision would not be imposed after the fact.

Because the recipient parent could have arrived at the same result had (s)he appliedfor an increase in child support earlier, it cannot be said that the court is subjecting the payor parent to legal rules different from thosethat applied at the relevant time. (Emphasis in original.) And later in the judgment at paragraphs 132 to 134, he says: Once parents are in front of a court with jurisdiction over their dispute, that court will generally have the power to order a retroactiveaward that enforces the unfulfilled obligations that have accrued over time.

In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it.The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court shouldconsider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, thecircumstances of the child, and the hardship the retroactive award might entail.

Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice wasgiven to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materiallywill be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive awardconsistent with the statutory scheme under which it is operating. [68] In the excerpt above, Bastarache J. identified four factors to be considered in determining retroactivity.

None of these fourcriteria was cited by the Judge as support for his decision to excuse Mr. Goulding from paying the child support he ought to have beenpaying from the date of Ms. Locke’s application for variation. I note in paragraph 133 of D.B.S. that Bastarache J. refers to hardship as apossible basis to deny retroactivity. The hardship in D.B.S. is not necessarily of the same stringent standard of hardship as the unduehardship addressed by

section 10 of the Guidelines. Although this is so, the judge in this case made no finding as to whether Mr.Goulding established hardship within the meaning of D.B.S. which would justify waiving retroactivity. Neither does the record discloseany basis on which this Court could find Mr. Goulding’s child support payments ought not to be retroactive to the date of Ms. Locke’sapplication. [69] Mr. Goulding has known for a long time that he must advise Ms. Locke of any changes in his income and that he has anobligation to pay child support based on it.

He has no reason to expect that appropriate child support would not be payable from the dateof Ms. Locke’s variation application. Accordingly, child support as determined in paragraph 60 is payable by Mr. Goulding to Ms.Locke retroactive to October 28, 2008, the date of Ms. Locke’s application. [70] The calculation of retroactive child support is somewhat complicated. From October 28, 2008 until October 1, 2009, when the

Judge’s order came into effect, Mr. Goulding paid $1,251.00 of table support plus $100.00 in special expenses, or $1,351.00 in total. He ought to have paid $1,600.12 plus $100 for a total of $1700.12 per month. The difference between this sum and what he ought to have paid is $349.12 per month. Multiplying that difference over eleven complete months of support, Mr. Goulding owes $3,840.32 for the period November 1, 2008–October 1, 2009 plus a prorated $45.05 for the period October 28–October 31, 2008.

The total retroactive sum owing from October 28, 2008–October 1, 2009 is $3,885.37. [ 71 ] The next relevant period is October 1, 2009, when the Judge’s order came into effect, until October 4, 2010, when it was subsequently modified by yet another judge’s order. I have taken judicial notice of this subsequent order dated October 4, 2010 (the fifth order), which was verified by resort to the court record. During that period, Mr. Goulding paid $1,421.18 per month in table support plus $100.00 in special expenses, or $1,521.18 in total.

The difference between this sum and the $1,700.12 he ought to have paid is $178.94 per month. Multiplying that difference over twelve complete months for the period October 1, 2009–October 1, 2010, Mr. Goulding owes Ms. Locke $2,147.28 plus a prorated $17.32 for the first three days of October, 2010. The total retroactive sum from October 1, 2009–October 3, 2010 is $2,164.60. The total retroactive amount up to but not including October 4, 2010 calculates to $6,049.97. [ 72 ] From October 4, 2010 to the present, support is payable under the fifth order.

Although this order has been separately appealed, no hearing in respect of that appeal has been held. For the purposes of this appeal, therefore, it must be presumed to be correct unless and until the appeal is brought on and is successful. [ 73 ] As regards retroactive child support for the period between October 4, 2010 to the present day, I would encourage the parties to give effect to the principles arising from this decision and to try to resolve the matter without resort to another appeal.

If they cannot do so, then the circumstances of their inability to agree could be taken into consideration in a future costs award. [ 74 ] I am concerned about Mr. Goulding’s ability to pay the retroactive child support forthwith. Accordingly, I would stay immediate enforcement of the order on condition that payment of the amount of $6,049.97 be made in 18 equal monthly installments of $336.10 commencing April 1, 2012. COSTS [ 75 ] Rule 56A.26 governs costs in family litigation. It incorporates Rule 55 which governs costs in civil matters.

In family law litigation, particularly in cases involving child support, costs are frequently not awarded and parties therefore bear their own costs. However, in this case Ms. Locke has gone to considerable effort and expense to prosecute her appeal, and she has been largely successful. In these circumstances, it would be unfair to deny her any costs. Accordingly, she is awarded costs on column I of the Scale of Costs in the Appendix to Rule 55 for this appeal. ________________________________ L. R. Hoegg, J.A. I Concur: __________________________ J. D. Green, C.J.N.L. I Concur: ___________________________ C. W.

White, J.A. Date: 20120214 Docket: 09/97 Citation: Locke v. Goulding, 2012 NLCA 8 err 1 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : TAMMY LOCKE APPELLANT

AND : CHRISTOPHER GOULDING RESPONDENT Coram: Green C.J.N.L., White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division, Happy Valley–Goose Bay 200008T00851 Appeal Heard: April 12, 2011 Judgment Rendered: February 14, 2012 Reasons for Judgment by Hoegg J.A. Concurred in by Green C.J.N.L. and White J.A. Counsel for the Appellant: Nancy McKillop Counsel for the Respondent: Self Represented CORRIGENDUM In paragraph [75] in the first line, the reference to Rule 57A.26 should read Rule 56A.26. _________________________ L. R. Hoegg J.A. I Concur: ___________________________ J. D. Green C.J.N.L. I Concur: ___________________________ C. W. White J.A.