Locke v. Goulding, 2013 NLCA 19

Date: 20130313 Docket: 10/127 Citation: Locke v. Goulding , 2013 NLCA 19 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : TAMMY LOCKE APPELLANT AND : CHRISTOPHER GOULDING RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200008T00851 Appeal Heard: March 7, 2013 Judgment Rendered: March 13, 2013 Reasons for Judgment by Welsh J.A. Concurred in by Rowe and Harrington JJ.A. Counsel for the Appellant: Nancy McKillop

Counsel for the Respondent: Self Represented Welsh J.A.: [ 1 ] This appeal follows an earlier decision of this Court regarding child support to be paid by Christopher Goulding. The Decision under Appeal [ 2 ] After the dissolution of their marriage, Christopher Goulding was ordered to make child support payments to Tammy Locke for three children of the marriage. The first order, made in August 2001, was varied in March 2002 and again in November 2006. At that time, in calculating the amount of support payable by Mr.

Goulding, based on undue hardship, the Trial Division judge departed from the amount specified in the Child Support Guidelines and ordered a lesser amount to be paid. Ms. Locke’s appeal of that decision was deemed abandoned on December 19, 2007. [ 3 ] On October 28, 2008, Ms. Locke applied for a variation of the November 2006 order. By order dated November 18, 2009, relying on an increase in Mr. Goulding’s income as a material change justifying variation, a different Trial Division judge accepted the earlier decision of undue hardship, but varied the amount payable by Mr.

Goulding by taking into account his increased income. As well, in calculating his income, an employment bonus related to vacation pay that Mr. Goulding was paid every fifth year was averaged over three years. Again, based on undue hardship, the amount payable by Mr. Goulding was less than the amount applicable under the Guidelines . [ 4 ] Ms. Locke’s appeal of that decision was heard on April 12, 2011. By decision dated February 14, 2012, the November 2009 order of the Trial Division judge was set aside ( 2012 NLCA 8 , 318 Nfld. & P.E.I.R. 91).

This Court, having concluded that the Trial Division judge erred in reducing the amount payable by Mr. Goulding on the basis of undue hardship, ordered that the support payable be calculated according to the Child Support Guidelines . In particular, the Court ordered, in relevant parts: 1. For the purposes of the within order [Mr. Goulding] is deemed to have an annual income of $93,074.00 and the corresponding table amount of child support [Mr. Goulding] is required to pay shall be $1600.12 per month plus $100.00 for special expenses. … 4.

Further to Paragraphs 2 and 3 of the within order the total retroactive amount of child support [Mr. Goulding] owes to [Ms. Locke] up to but not including October 4 th , 2010 is $6,049.97. 5. The immediate enforcement of the within order is stayed on the condition that payment of the aforesaid amount of $6,049.97 be made by [Mr. Goulding] to [Ms. Locke] in 18 equal monthly installments of $336.10 commencing April 1 st , 2012. … [ 5 ] The Court was advised at the hearing of this appeal that:

(1) Mr. Goulding has paid the retroactive amount of $6,049.97 in full by a combination of installment and lump sum payments; and (2) the deemed annual income of $93,074, specified in paragraph 1 of the order, has not been used to calculate the amount payable by Mr. Goulding since October 4, 2010. Rather, the calculation has been based on an income of $82,400 as explained below. [ 6 ] I turn, then, to the appeal now before this Court. The appeal arises from an October 2010 order made by another Trial Division judge. At issue was a recalculation of support payable by Mr. Goulding.

The recalculation followed from a term of the November 18, 2009 order: 6. The Parties shall attend at the Supreme Court of Newfoundland and Labrador in Wabush on the first motions day of October, 2010 for the purposes of recalculating child support. No application is required to be made by either party in this regard. [ 7 ] The Trial Division judge proceeded with a recalculation based on the financial information supplied by Mr. Goulding, and deemed an annual income of $82,400. This was done without providing the parties with an opportunity to be heard, although counsel for Ms. Locke had requested a hearing.

In the appeal of that order, Ms. Locke submits that the judge erred in denying her request. I agree. While this appeal is properly decided on a different basis, I would note that, in the circumstances, an opportunity to be heard should have been provided to Ms. Locke as a matter of procedural fairness. [ 8 ] That said, this appeal is properly decided on the basis that the foundation of the October 2010 order virtually vanished due to the operation of the February 14, 2012 decision of this Court.

The October 2010 decision was simply a recalculation of support payable in light of new financial information, applying, without reviewing, the method of calculation which had been set out in the November 2009 decision. This Court concluded that that method of calculation was in error. It follows that the October 2010 order, now lacking a valid foundation, must be set aside. [ 9 ] Clearly, the appeal now before this Court should have been consolidated with the earlier appeal.

This would not only have been the efficient and cost-effective way to deal with the matters before the Court, but would have avoided difficulties that arose as a result of the bifurcated hearing of the two appeals. Where more than one appeal has been brought to this Court and neither has been heard, the appellant is expected to seek directions, providing the Court with relevant assistance, with the ordinary course being consolidation or hearing of the appeals at the same time. [ 10 ] In the result, this appeal must be allowed and the October 2010 order set aside.

It is necessary, then, to provide the parties with an order that will address how the child support payable by Mr. Goulding should be calculated for the future and for purposes of retroactive payments. The Order

[ 11 ] The parties agreed on the following issues:

(1) Mr. Goulding’s vacation-related bonus should not be averaged over years. Rather, it should be reported and considered as income for the year in which it is paid. This will permit inclusion of a recalculation clause in the order.

(2) The order should include a recalculation clause.

(3) Mr. Goulding’s son turned 19 years of age in May 2012, and from June 1, 2012 is not considered to be a child of the marriage for purposes of support. The amounts paid by Mr. Goulding respecting support for his son after May 2012 amount to an overpayment which is to be credited to him.

(4) The $100 per month for special expenses was not contested by Mr. Goulding and should continue.

(5) Mr. Goulding will file his financial information not later than June 1 st each year. The information should be provided to the Support Enforcement Agency and to Ms. Locke. [ 12 ] The February 14, 2012 order of this Court specified that support should be calculated using the Child Support Guidelines , and that Mr. Goulding was deemed to have an annual income of $93,074. Counsel advised that the Support Enforcement Agency (the “Agency”) did not calculate Mr. Goulding’s obligation using that figure, but instead, the Agency continued to use the $82,400 figure from the October 2010 order. Because Mr.

Goulding earned more than $82,400, he was assessed an amount less than should have been the case. [ 13 ] It is clear that Mr. Goulding has paid all arrears in child support up to October 3, 2010. He has provided his financial information for the years 2010 and 2011. His information for 2012 is to be provided by June 1, 2013. While Mr. Goulding advised the Court that his income for 2012 was $110,600, the Court will require written confirmation in order to calculate the child support payment that is to be based on his 2012 income. [ 14 ] Mr.

Goulding also requested that all or part of the retroactive amounts owing be forgiven because he has been compliant with all court orders. He submits that the judicial errors and those of the Agency that resulted in the accumulation of retroactive amounts were not of his making and should not result in a financial detriment to him. While Mr. Goulding’s position is certainly understandable, the fact remains that the support that should have been provided for his children was inaccurately determined. It is unfortunate that correction of the error has taken such an extended period of time.

However, while the retroactive amount due is substantial, it is not such as to warrant forgiveness of all or part of the amount now owing. In order to ease the burden faced by Mr. Goulding, payment of the retroactive amount may be made in installments of $300 per month until paid in full. The overpayment of support for his son should be set off against the amount owing. [ 15 ] To achieve some finality and certainty in respect of Mr. Goulding’s obligations, following are the contents of the order which will issue: 1. Child support payable by Mr.

Goulding commencing October 4, 2010 shall be determined in accordance with the Child Support Guidelines , the amount to be calculated based on the income indicated on the appropriate income tax assessments. 2. The order shall include a recalculation clause. 3. Commencing June 1, 2012, the support payable will be calculated in accordance with paragraph 1, above, on the basis of two rather than three children. 4. Retroactive support shall be calculated, commencing October 4, 2010, in accordance with paragraph 1, above. 5.

The amount of retroactive support due shall be reduced by the amount of the overpayment, commencing June 1, 2012, that resulted from the failure to take into account the fact that Mr. Goulding’s son no longer qualified as a child of the marriage for purposes of support. 6. Retroactive payments assessed under paragraph 4, above, may be paid by installments of $300 per month commencing April 1, 2013. This amount is in addition to the on-going support obligation under paragraph 1, above. 7. Mr. Goulding shall continue to pay $100 per month on account of special expenses. 8. Mr.

Goulding shall file with the Support Enforcement Agency and provide Ms. Locke with copies of his previous year’s income tax returns and notices of assessment no later than June 1 st of each year. 9. Mr. Goulding shall pay all amounts owing to the Director of Support Enforcement and the Director shall enforce the order in accordance with its terms until the order is varied or withdrawn or there are no longer any children of the marriage for whom support is payable. [ 16 ] Accordingly, the appeal is allowed and the October 2010 order is set aside. In the circumstances, each party will bear his or her own costs.

This appeal should have been consolidated with or heard at the same time as the earlier appeal at the instance of Ms. Locke who was the appellant in both cases and was represented by counsel. That action would have precluded the need for a separate hearing, the attendant delay and the difficulties that arose due to the bifurcation of the appeals. [ 17 ] This matter is remitted to the Trial Division, judicial centre of Happy Valley-Goose Bay, for calculation of the payments to be made in accordance with paragraph 15, above. Mr. Goulding, Ms.

Locke and the Support Enforcement Agency shall, without delay, provide any information required by the Court for the purpose of making the above calculations and an appropriate order.

______________________________ B. G. Welsh J.A. I Concur: _____________________________ M. H. Rowe J.A. I Concur: _____________________________ M. F. Harrington J.A.