Shears v. Gould, 2014 NLCA 50

Date: 20141212 Docket: 13/90 Citation: Shears v. Gould , 2014 NLCA 50 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : MARK SHEARS APPELLANT AND : CHERIE GOULD RESPONDENT Coram: Welsh, Rowe and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201204F0465 Appeal Heard: December 9, 2014 Judgment Rendered: December 12, 2014 Reasons for Judgment by Welsh J.A. Concurred in by Rowe and White JJ.A. Counsel for the Appellant: Self Represented (Video Conference) Counsel for the Respondent: Self Represented Welsh J.A.:

[ 1 ] Mr. Shears and Ms. Gould are the unmarried parents of one child born in 2000. Consequent upon their separation, effective June 1, 2009, Mr. Shears was ordered to pay $322 per month in child support in accordance with the Child Support Guidelines. The order required Mr. Shears, on June 1 st of each year, to supply Ms. Gould with a copy of his income tax return and notice of assessment for the previous year.

He failed to comply with this requirement which would have provided an annual basis for assessing whether there should have been an adjustment in the amount he was paying. [ 2 ] By application filed November 14, 2012, Ms. Gould sought a variation of the order, having understood that Mr. Shears’ income had increased substantially. By order dated October 11, 2013, based on the evidence presented by the parties and applying the Guidelines, the applications judge ordered Mr. Shears to make child support payments of $786 per month effective January 1, 2013. He also determined that Mr.

Shears should have been making payments of $576 per month effective January 1, 2011 and $838 per month effective January 1, 2012. [ 3 ] The judge ordered Mr. Shears to pay retroactive child support for the years 2011 and 2012 and for January to September 2013. The payment was to be made forthwith. However, the judge specified in his decision that: … Upon request by [Mr. Shears], the Court will deal with the issue of payment over time. A formal application is not required. [ 4 ] In ordering retroactive payments, the judge explained: [Ms. Gould] had discussed her difficulties with [Mr.

Shears] from time to time in having insufficient funds to meet the child’s needs. Even though he was aware that his income had risen substantially since the original order was rendered, he refused to raise his payments to levels appropriate to his income. This retroactive award would not impose too great a burden on [Mr. Shears], and the Court is satisfied that the child would benefit from this award. [ 5 ] Mr. Shears appeals the order for the payment of retroactive child support. At the hearing before the applications judge he submitted that he had made payments of money to assist the child and that he and Ms.

Gould had a verbal agreement that she would not go to court to seek an increase in the amount of child support he was required to pay. The judge did not advert to these issues in his decision. The Question of an Agreement Regarding Child Support [ 6 ] It is clear from the transcript of the hearing that Mr. Shears was adamant that a verbal agreement had been reached by the parties. However, Ms. Gould equally clearly denied this on several occasions during the hearing. An agreement requires the consent of both parties. Ms. Gould gave specific evidence as to how Mr.

Shears made the request for an agreement more than once, together with her responses rejecting his proposal. Mr. Shears clearly wanted an agreement, but he provided no evidence which would lead a reasonable person to believe that an agreement had been reached. This is sufficient to dispose of Mr. Shears’ submission regarding the existence of an agreement. [ 7 ] However, I would add the following comment regarding the Family Law Act , RSNL 1990, c. F-2, which applies in the case of unmarried parents.

Section 37 addresses the obligation of parents to provide appropriate child support on the principle that support is the right of the child:

(1) Every parent has an obligation, to the extent that the parent is capable of doing so, to provide support for his or her child.

(2) A court shall, upon application, make an order for support of a child in accordance with the child support guidelines. …

(5) Notwithstanding subsection (2), a court may make an order for support of a child in an amount that differs from the amount that would be in accordance with the child support guidelines if (

a) the parents of the child consent; and (

b) the court is satisfied that reasonable arrangements have been made for the support of the child. In this case, subsection (5) would not assist Mr. Shears since no application was made for such an order. [ 8 ] In

summary, Mr. Shears cannot rely on an agreement with Ms. Gould that he would continue to pay $322 per month in child support despite an increase in his income because the evidence fails to establish the existence of such an agreement. Retroactive Support [ 9 ] Mr. Shears’ alternate submission is that he was paying $322 per month as ordered and providing additional money directly to the child, or for her needs. In the circumstances, he submits that he should not be required to pay an amount of retroactive support.

General Principles [ 10 ] Relevant principles with respect to the payment of retroactive support are set out in B.W. v. J.G. , 2014 NLCA 5 , 346 Nfld. & P.E.I.R. 234, at paragraphs 8 to 19 , relying on the decision in D.B.S. v. S.R.G. , 2006 SCC 37 , [2006] 2 S.C.R. 231. The analysis begins with the proposition that an order for the payment of retroactive child support is not truly “retroactive” because the order, in fact, holds the payor parent to a legal standard that was in existence at the relevant time.

That is, under the Guidelines, child support is determined based on the income of the payor parent, and an increase in income will result in increased child support payments.

[ 11 ] An order for retroactive support may be refused or limited where there has been unreasonable delay by the recipient parent in seeking increased support payments. However, delay is but one factor to consider since there is a continuing obligation on the payor parent to provide support to which the child is entitled. (See: D.B.S. v. S.R.G. , at paragraph 104 .) [ 12 ] Blameworthy conduct by the payor parent is also a factor to be considered in determining whether retroactive support should be ordered. Blameworthy conduct in this context is described in D.B.S. v.

S.R.G. : [106] Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. … Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments … .

A payor parent cannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support … . And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not. [107] No level of blameworthy behavior by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them.

Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct … . [ 13 ] The circumstances and living conditions of the child are an important consideration. Where the circumstances warrant, hardship that an order for retroactive support may involve for the payor parent will be considered. Reliance by the payor parent on the belief that he or she was meeting child support obligations may be considered where such reliance was reasonable.

The discrepancy between what was paid in contrast to what should have been paid is a factor in the analysis. Where the payor parent’s income increases substantially, reliance on an earlier order and failure to disclose the changed ability to pay will be deemed unreasonable ( D.B.S. v. S.R.G. , at paragraph 108 ). [ 14 ] Generally, the order will be retroactive to the date when the recipient parent gave notice of an intention to seek an increase in support.

However, a decision as to the date from which retroactive support will be payable will depend on the circumstances as a whole, including the factors discussed above. Application of the General Principles [ 15 ] In this case, Mr. Shears knew or ought to have known that his increased income would result in increased child support payments under the Guidelines. His income had increased substantially resulting in an increase in support payable under the Guidelines from $322 per month under the order to $576 per month for 2011, $838 per month for 2012, and $786 per month for 2013.

These substantial increases demonstrate that Mr. Shears was not acting reasonably in relying on the earlier order and failing to disclose his changed ability to pay. [ 16 ] Ms. Gould’s moderate delay in applying for a variation order until November 2012 was not unreasonable given that she was not given income documentation from Mr. Shears as had been ordered. [ 17 ] The fact that Mr. Shears gave money to the child and bought items for her does not displace his obligation to pay support in accordance with the Guidelines.

Such conduct, in fact, demonstrates a failure to appreciate the purpose and effect of the Guidelines which were designed to ensure the child’s right to support in an amount based upon the payor parent’s income. It is, of course, open to a parent to provide additional monies for the benefit of the child, but, except in special circumstances, such amounts will not replace the support to which the child is entitled under the Guidelines. [ 18 ] Mr. Shears submits that he made payments to and for the benefit of the child in addition to the $322 per month he paid in 2011 and 2012 in accordance with the earlier order.

In D.B.S. v. S.R.G , Bastarache J. explained that additional monies provided by a payor parent will not affect an order for retroactive support except in limited circumstances and where the contributions would amount to satisfaction of the payor parent’s obligation: [109] Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award. A court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation.

For instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. I am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle … .

But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child’s support in a way that satisfied his/her obligation, no retroactive support award should be ordered. [ 19 ] In this case, Mr. Shears has not demonstrated that he paid an amount that would have the effect of fulfilling his obligation to provide support of $576 per month for 2011 and $838 per month for 2012.

In the circumstances, gifts to the child and small periodic payments to assist with expenses for special activities for the child are not such as to meet his obligation. [ 20 ] Finally, in determining whether retroactive support should be ordered, the applications judge took into account the insufficiency of funds to meet the child’s needs and Mr. Shears’ resistance to increasing his support payments to reflect his significantly increased income. The judge concluded that an order for retroactive support “would not impose too great a burden” on Mr.

Shears. [ 21 ] The order for retroactive support to January 2011 cannot be said to be unreasonable or in error. Mr. Shears’ failure to disclose his increased income as ordered and his attempts to have Ms. Gould agree to maintaining support payments at $322 per month demonstrate his reluctance to adjust his payments, support to which the child was entitled, in accordance with his changed income. His conduct fell within the scope of blameworthy conduct as discussed in D.B.S. v. S.R.G. , leading to the order imposed by the applications judge.

[ 22 ] In

summary, there is no basis on which to conclude that the applications judge erred in ordering Mr. Shears to pay retroactive support to January 1, 2011. Compliance with Court Orders [ 23 ] A comment is necessary regarding Mr. Shears’ refusal to comply with the court order requiring him, annually, to provide Ms. Gould with a copy of his income tax return and notice of assessment for the previous year. I would caution Mr. Shears that, if he continues to refuse to comply with the order, he risks being held in contempt of court. His submission that the information is private is not an answer.

There is good reason for requiring this information in order to ensure the provision of appropriate support to which the child is entitled.

Summary and Disposition [ 24 ] In

summary, Mr. Shears cannot rely on an agreement with Ms. Gould regarding support payments because the evidence does not establish the existence of such an agreement. Further, the applications judge did not err in ordering Mr. Shears to pay retroactive support to January 1, 2011. [ 25 ] Accordingly, the appeal is dismissed. Mr.

Shears is required to pay retroactive support in the amounts determined by the applications judge for 2011 and 2012 and January to October 2013, with account being taken of the $322 per month he, in fact, paid in compliance with the earlier court order. _______________________________________ B. G. Welsh J.A. I Concur: ___________________________________ M. H. Rowe J.A. I Concur: ___________________________________ C. W. White J.A.