Cheeseman v. Walsh, 2012 NLCA 62

Date: 20120928 Docket: 12/25 Citation: Cheeseman v. Walsh, 2012 NLCA 62 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : THOMAS CHEESEMAN APPELLANT AND : JENNIFER WALSH RESPONDENT Coram: Rowe, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (U) 200502U0416 Appeal Heard: September 17, 2012 Judgment Rendered: September 28, 2012 Reasons for Judgment by Hoegg J.A. Concurred in by: Rowe and White JJ.A.

The Appellant represented himself The Respondent represented herself Hoegg J.A.: [ 1 ] Thomas Cheeseman appeals a child support decision of the Unified Family Court (UFC), alleging that, 1) the Child Support Order includes two erroneous statements, 2) the UFC judge ought to have ordered a set off for child support he paid pursuant to an earlier order of the Court, 3) the UFC judge erred in not permitting him to adduce evidence respecting

section 15 of the Canadian Charter of Rights and Freedoms at the child support hearing, and 4) the UFC judge erred in failing to order Jennifer Walsh to produce financial disclosure to him. [ 2 ] At the appeal hearing Mr. Cheeseman did not pursue the grounds relating to the Charter and financial disclosure from Ms. Walsh. It is unnecessary for this Court to deal with these grounds, other than to say that it is clear from the record that the Charter has no applicability to the parties’ procedural rights or the issues raised at the support hearing, and equally clear that financial disclosure from Ms.

Walsh was not ordered because it is not relevant. The issue before the Court involved child support for H.C.C. who lives with Ms. Walsh, so it was only Mr. Cheeseman’s income that was relevant to determining the basic child support to be paid by him. The Alleged Misstatements [ 3 ] Mr. Cheeseman argues that two misstatements in the UFC Child Support Order should be corrected. The first alleged misstatement is found in paragraph 1, which reads: 1) THAT based on total income of $72,359 for 2010, Thomas Cheeseman shall pay child support to Jennifer Walsh of $486.00 for

the child of the relationship; [H.C.C.], (DOB […], 1994) commencing January 1, 2011 and continuing on the first day of eachsubsequent month to and including through to the first day of December 2011. [4] Mr. Cheeseman takes no issue with the amount of child support he is ordered to pay. However he says that the amount of hisincome stated in the order should read $57,211, and not $72,359. It was explained to Mr. Cheeseman that the $72,359 in the order is hisnet income, which amount is borne out by the record, and not his income for child support purposes. Mr.

Cheeseman then argued thatthe reference to his net income in the order could cause confusion in the future, in that it suggests that his income for child supportpurposes is higher than it is. Ms. Walsh did not object. Although Mr. Cheeseman has not demonstrated that the statement of his netincome in the order is erroneous, this Court is prepared to allay his concerns by modifying the order to delete reference to his net incomeand substituting $57,211 as his income for child support purposes. This Court has the power to modify a court order without findingerror (see Wareham v.

Steele (1985), (NL CA), 55 Nfld. & P.E.I.R. 59 (Nfld.C.A.)). The modified order shall read: THAT based on an income for child support purposes of $57,211, Thomas Cheeseman will… [5] The second alleged misstatement relates to paragraph 3 of the order: 3) THAT effective December 31, 2011 there shall be no further child support payable for [J.A.C.] (DOB […], 1991). Mr. Cheeseman argues that the word “further” in this clause should be replaced by the word “future”, because he says that there neverwas any child support paid for J.A.C. [6] Mr. Cheeseman’s argument in this regard cannot be accepted.

A Consent Order filed with the UFC on January 23, 2009references J.A.C. and H.C.C. as two children of the marriage in respect of whom child support is payable. The relevant parts of thatorder read: WHEREAS the applicant and respondent are the parents of the children of the marriage, [J.A.C.] (DOB […], 1991) and [H.C.C.] (DOB[…], 1994): AND WHEREAS the applicant has applied for an Order to vary the Consent Child Support Order by Mr. Justice Cook of December 17,2007 for the children J.A.C and H.C.C.; on the basis that J.A.C. has her primary residence with Mr.

Cheeseman with liberal and openaccess to the respondent, based upon the child’s wishes AND on the basis that H.C.C. has her primary residence with the respondentwith liberal and open access to the applicant, based upon the child’s wishes: IT IS HEREBY ORDERED: 1) THAT based upon the split custody arrangement and the salary of Mr. Cheeseman being $54,394.00 his child support payment wouldbe $461.00 and based upon the salary of Ms. Walsh being $49,744.00 her child support payment would be $422.00, there shall be a netamount of $39.00 payable from Mr. Cheeseman to Ms. Walsh. [7] Clearly, Mr.

Cheeseman was ordered to pay $39 per month in relation to his two children. He paid the support ordered. Hisassertion that there was never any child support paid for J.A.C. is therefore incorrect. The word “further” as used in the order underappeal accurately reflects the UFC judge’s determination that the child support payment of $486 per month was in relation to H.C.C.,and that as of December 31, 2011 nothing further was payable for J.A.C. The Set-off [8] Mr.

Cheeseman maintains that he continued to pay the above-referenced $39 monthly child support during 2011 in addition tothe child support for 2011 which was ordered on March 26, 2012. He argues that a set-off for the period of time he double paid ought tohave been ordered by the UFC judge. [9] Mr. Cheeseman did not establish on appeal that he overpaid child support due to his paying child support in relation to bothorders during 2011. It was explained to Mr. Cheeseman that the child support order under appeal was clear as to the applicablecommencement and termination dates.

As well, both the order under appeal and the January 23, 2009 order clearly state that paymentsare/were to be made directly to the Support Enforcement Agency. It was explained to Mr. Cheeseman that if he did in fact overpay, thematter ought to be brought to the attention of the Support Enforcement Agency which would be in a position to rectify the situation. Inthis regard, Ms.

Walsh advised this Court that her statements from the Support Enforcement Agency demonstrate that the appropriateadjustments have been made and all is now in good order. [10] In the result, a new order reflecting the change referenced in paragraph 4 above will issue from this Court. [11] There is no order as to costs. L. R. Hoegg J.A. I concur: M. H. Rowe J.A.

I concur: C. W. White J. A.