Broaders v. Broaders, 2014 NLCA 47

Date: 201412 04 Docket: 14/71 and 14/64 Citation: Broaders v. Broaders , 2014 NLCA 47 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DONALD BROADERS APPELLANT AND: MARY BOLAND BROADERS RESPONDENT AND BETWEEN: MARY BOLAND BROADERS RESPONDENT/APPELLANT BY CROSS APPEAL AND: DONALD BROADERS APPELLANT/RESPONDENT BY CROSS APPEAL Coram: Green C.J.N.L.

Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division 201002F0614 Application for Directions Heard: December 2, 2014 Judgment Rendered: December 2, 2014 Reasons for Oral Decision Filed: December 4, 2014 Corrected decision: The original judgment was corrected on December 9, 2014. A description is appended. Counsel for the Appellant: Jean Dawe, Q.C. Counsel for the Respondent: Self-Represented

REASONS FOR ORAL DECISION Green C.J.N.L.: [ 1 ] This matter involves an application for directions under rule 57.14(6) of the Rules of the Supreme Court, 1986 as to whether the appellant, Donald Broaders, should be required, for the purpose of perfecting the appeal, to prepare and file a complete transcript of the evidence taken at the trial. [ 2 ] The respondent, Mary Broaders asserts that a full transcript is required. Mr.

Broaders, however, says that the issues he has raised on appeal do not require any reference to the evidence taken from the Broaders’ son, Patrick, and that, accordingly he should not be required to go to the expense of having that portion of the evidence transcribed. [ 3 ] At the conclusion of the hearing, I ruled that the appellant did not have to file a transcript of the evidence of Patrick Broaders in order to perfect the appeal. What follows are my reasons for this conclusion. [ 4 ] The newly-amended rule of court relating to transcript preparation (in force November 5, 2014) reads: 57.06

(1) An appellant shall not file the written transcript in its entirety unless the whole of the transcript is necessary to enable the issues on the appeal to be determined. …

(4) Where a respondent is satisfied that an appellant has not filed a portion of the written transcript that is necessary to enable the issues on appeal or on a cross-appeal to be determined, the respondent may file additional portions of the transcript… …

(14) A Court determining the issues on appeal or cross-appeal may make an appropriate order as to costs if it is of the opinion that an appellant or respondent failed to comply with this rule. (NLReg. 90/14.

See also Practice Note CAPN No. 2014-2) [ 5 ] This amendment makes explicit what was the underlying policy of the former iteration of the rule, which encouraged the parties to address whether the whole of the transcript was reasonably necessary for the determination of the issues on appeal, to actively explore whether agreement could be reached on abridgement of the transcript, and if agreement could not be reached, to apply to Court for directions.

See, former rules 57.03(5); 57.14(3)(b)(iv); 57.14(5); 57.14(6) and Practice Note CAPN 2013-01. [ 6 ] Because the order under appeal in this case was made before the amendments to the rule came into force, it is the previous provisions which apply: NLReg. 90/14, s. 6. In practical terms, however, there is very little difference.

In each case, the approach is to try to limit the cost and time associated with transcript production by requiring only those portions of the transcript to be filed in the Court that are necessary to enable the issues on the appeal to be determined. [ 7 ] In this case, the order being appealed dealt with child and spousal support. The trial judge held that the parties’ son, Patrick, was not a “child of the marriage” within the meaning of the Divorce Act, 1986.

The appellant accepts this finding but appeals certain other rulings consequential upon this decision, including the failure to order the respondent to repay overpayments he had made as child support following the son’s ceasing to be a child of the marriage.

He also appeals the failure of the trial judge, in determining spousal support, to exclude from the respondent’s claimed expenses, those expenses that related to their son who had ceased to be a child of the marriage. [ 8 ] The respondent has cross-appealed against the finding that Patrick was not a child of the marriage and against the failure of the judge to order recovery of retroactive spousal support. [ 9 ] Clearly, the evidence of Patrick may be necessary for the respondent to challenge the fact-based finding that he was not a child of the marriage.

But the question is not whether the respondent needs the transcript for the purposes of determining the issues on her cross-appeal, but whether the transcript of that evidence is necessary to determine the issues on the appellant’s appeal, thereby requiring the appellant to prepare and file that portion of the transcript. [ 10 ] The approach to this issue should start from the proposition that it is not necessary to prepare and file a complete transcript unless the whole of the transcript is necessary to enable the issues on the appeal to be determined.

The obligation of the appellant is therefore to ensure that as much of the transcript as will be necessary to enable the appeal issues to be determined is provided. It is important to note, however, that this does not mean that all the appellant has to provide are those portions of the transcript that support his or her submissions. What has to be provided are all portions of the transcript that pertain to or bear on the issues under appeal that have to be decided so that the Court will have a complete picture of all relevant evidence pertaining to the live issues, whether favourable to the appellant or not.

Counsel making this determination is expected to do so as an officer of the court.

[ 11 ] Where an appellant who is represented by counsel proposes not to file the whole of the transcript on the grounds that it is not necessary, it will be presumed, until the contrary is demonstrated, that the counsel has properly fulfilled his or her duty as an officer of the court in making that determination.

The onus therefore rests initially on the other party to satisfy the court that those portions that the appellant does not intend to file are reasonably necessary to enable the issues on appeal to be properly determined. [ 12 ] In this case, the respondent submits that because issues relating to the status of Patrick as a child of the marriage are engaged, it would be inappropriate for the Court to decide those issues without reference to Patrick’s own evidence. That submission covers appeal grounds relating to: (

i) the failure of the judge to order repayment of an overpayment of child support after Patrick ceased to be a child of the marriage; (ii) the failure to state a specific date when Patrick ceased to be a child of the marriage; (iii) the failure to terminate child support payments after Patrick ceased to be a child of the marriage; and (iv) the alleged failure of the judge, in determining spousal support, to exclude from the respondent’s claimed expenses those expenses related to Patrick, about which Patrick also testified. [ 13 ] The respondent also submits that Patrick’s testimony is relevant to the appeal ground that the trial judge allowed the respondent to repeat evidence during her own testimony when she was unrepresented when that evidence had previously been ruled inadmissible during the earlier part of the trial when she was represented by counsel.

She says that when Patrick was giving his evidence, she was represented by counsel and that the transcript of that part of the trial would therefore be relevant to determine just what was ruled inadmissible. [ 14 ] For the appellant’s part, his counsel points out that the evidence relating to Patrick’s status as a child of the marriage is not relevant to the issues the appellant has raised because that finding is not being appealed by him.

Counsel says that for the purposes of the appeal, the appellant is prepared to stipulate that Patrick ceased to be a child of the marriage as of the time of trial, even though it might be argued that he achieved his emancipation earlier than that.

Accepting that date as the date of emancipation, the issues of the repayment of the overpayment of child support and the termination of further child support payments can be addressed as matters of law and principle without the need to refer to any of the evidence. [ 15 ] With respect to the issue relating to the alleged failure to exclude Patrick’s personal expenses from the respondent’s for the purpose of determining need for spousal support, counsel for the appellant submits that the appellant is prepared to stipulate that the only expenses which the appellant will argue should have been excluded from the respondent’s are those which were identified by her in her evidence or in the financial statements she filed as being related to Patrick.

Any additional acknowledgements by Patrick in his evidence that certain expenses were personal to him will not be relied on.

She points out that waiving reliance on evidence from Patrick in this regard can only harm the appellant’s case not the respondent’s. [ 16 ] Finally, with respect to the appeal ground relating to the alleged improper allowance of the respondent to repeat evidence that had been previously ruled inadmissible, counsel for the appellant says that Patrick’s evidence is irrelevant to this issue because what is being referred to is the first part of the respondent’s own evidence (when she was still being represented by counsel), not Patrick’s evidence.

A transcript of the respondent’s evidence is being provided to the court by the appellant in any event. [ 17 ] Having considered the matter, I find the appellant’s arguments persuasive. The respondent has not satisfied me that, for the issues as framed by the appellant, it would be necessary to have the transcript of Patrick’s evidence to enable the Court to decide those issues.

I reach this conclusion in reliance on the stipulation by counsel for the appellant that the appellant will not seek to argue that on a date earlier than the date of trial, Patrick ceased to be a child of the marriage and that the appellant will restrict her reliance on evidence of Patrick’s personal expenses, for the purpose of determining spousal support, to portions of the appeal record that do not include Patrick’s evidence. [ 18 ] Of course, this ruling does not preclude the respondent from preparing and filing a transcript of such portions of Patrick’s evidence as she deems necessary for the determination of the issues on her cross-appeal.

She may also file all or a portion of the transcript of Patrick’s evidence in relation to the issues on the appellant’s appeal if she nevertheless is of the opinion that reference by her to that transcript will be necessary to respond to the appellant’s case. [ 19 ] Further, should it appear, following the appeal, that the appellant’s argument on the appeal or the respondent’s response thereto in fact required reference to or reliance upon any portion of Patrick’s evidence, then that fact can be taken into account in an order respecting costs pursuant to former rule 57.14(6). [ 20 ] Accordingly, in reliance on the stipulations of counsel outlined above, the request of the respondent that the appellant be required to file a transcript of the evidence of Patrick Broaders was dismissed.

It is directed that the appellant’s appeal book does not have to contain such a transcript. There is no order as to costs on this application. J. D. Green C.J.N.L. Correction Notice: Correction made on December 9, 2014: 1. On page 1 the citation Broaders v. Broaders , NLCA 2014 47 was replaced with Broaders v. Broaders , 2014 NLCA 47.