S. C. APPELLANT AND: S. H. RESPONDENT, 2016 NLCA 43

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : S.C. v. S.H. , 2016 NLCA 43 Date : 201608 24 Docket : 201601H0043 BETWEEN: S. C. APPELLANT AND: S. H. RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 201202F0708 Appeal Heard: June 22, 2016 Judgment Rendered: August 24, 2016 Reasons for Judgment by Welsh J.A. Concurred in by White and Hoegg JJ.A. Counsel for the Appellant: Janet Tucker Counsel for the Respondent: Self-Represented Welsh J.A.: [ 1 ] Mr. C. and Ms.

H., the parents of three children, are separated. The father works approximately half-time offshore. The trial judge ordered that he would have parenting time that amounted to thirty-eight percent of the total during a year. The father, who was ordered to pay child support in the table amount listed in the Child Support Guidelines , appeals on the basis that his parenting time would, in fact, amount to forty percent, thereby engaging the special considerations under

section 9 of the Guidelines . In the result, he

submits, the amount of child support should be calculated using the setoff method. BACKGROUND [ 2 ] The parents, who cohabited from January 1996 until May 31, 2012, have three children aged seven, twelve and seventeen. The trial judge concluded that, since their separation, the parents have been in a situation of high conflict and that, due to their animosity, they have lost focus on the best interests of their three children.

However, setting aside the acrimony and their inability to communicate with each other, the judge concluded that each could parent the children equally well. [ 3 ] The mother has remained in the family home with the children while the father is renting accommodation. The mother was employed as an insurance adjuster but has been on disability leave since August 2015. She is receiving non-taxable disability income of $3,233 per month. [ 4 ] The father’s employment generally involves a rotation of three weeks offshore and three weeks onshore.

However, he testified that there are occasions when, although scheduled to work offshore, he actually works onshore. The judge was satisfied that the children should spend more time with their father during his time onshore.

In his oral decision, the trial judge referenced the fact that the father sometimes works his offshore-scheduled time onshore: … On the occasions where [the father] is required to work onshore for his three-week stint that he would normally be offshore, he will have access in that three-week period for the full second week from Monday after school until the following Monday morning when he will drop the children off at school.

Because I understand this does not happen very often, but it will , this will be his access period if he happens to be home for the three weeks that he should have been offshore. (Emphasis added.) [ 5 ] Without taking account of the times when the father may have extra shifts onshore, the regular

schedule provides that the father has care of the children for sixteen overnights out of his forty-two-day work rotation. This amounts to 139 overnights per year; that is, the father has care of the children thirty-eight percent of the time. One extra work rotation onshore would result in an extra seven overnights during which the father would have care of the children. This would amount to a total of 146 overnights or forty percent of the year. However, the trial judge did not take into account this additional time, and determined support on the basis that

section 9 of the Guidelines , which is engaged at the forty percent threshold, would not apply. ANALYSIS [ 6 ]

Section 9 of the Child Support Guidelines provides for factors to be taken into account in ordering child support where a parent has custody or access for not less than forty percent of the time: Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year , the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. (Emphasis added.) [ 7 ] The trial judge was aware that the father’s parenting time, calculated to be thirty-eight percent over the year, was close to the forty percent threshold specified in

section 9. He explained: As regards the issue of child support, this plan that I have basically ordered now means that the children will be in dad’s care sixteen overnights, generally sixteen overnights in every forty-two day rotation period. That works out to just less than 40 percent of the time which means that his is not a shared parenting arrangement under

section 9 of the Child Support Guidelines. Now, there’s been a lot of literature about what we call the cliff effect of the guidelines in the sense that where it is close, what is the difference between 38 and 42, and why should there be a difference in child support. However, the law mandates that if it’s not a shared parenting arrangement at least 40 percent of the time then I must apply the guidelines where the children are underage, under the age of majority and there is no undue hardship.

Here I must apply the guidelines. [ 8 ] The first question to address in this case is not the “cliff effect”, but whether the parenting schedule, in fact, satisfies the forty percent threshold. The trial judge provided for the situation where the father works his offshore rotation onshore. Whenever that situation arises, the father has care of the children for seven extra nights. If it should occur even one time over the course of a year, the forty percent threshold would be satisfied.

Referring to possible extra onshore rotations, based on the father’s evidence, the judge commented: “I understand this does not happen very often, but it will ” (paragraph 4, above). He did not go on to explain why he did not take this additional parenting time into account when assessing whether

section 9 of the Guidelines was engaged. This constituted an error. [ 9 ] The significance of the error becomes apparent when the judge’s custody and access order is reviewed. It can be inferred that, had the father’s employment not involved half-time in the offshore, a shared parenting regime would have resulted. The order provides that, when the father is on a three-week onshore rotation, he has care of the children during that period except for two weekends from after school on Friday to Sunday at 6:00 p.m. and one Tuesday from after school until 8:00 p.m. These exceptions are intended to provide time for the children with their mother during the extended period with their father.

[ 10 ] Ordinarily, as would be expected, the mother has care of the children for the entire three weeks when the father is offshore. However, when it happens that the father is onshore during a scheduled offshore rotation, the judge ordered that he have care of the children for seven of those days, thus reducing the children’s time with their mother. [ 11 ] These factors must be considered in light of the father’s evidence, and the judge’s comment, that it would be expected that he would work at least one scheduled offshore rotation onshore. While these seven days, necessary to satisfy the forty percent threshold under

section 9 of the Guidelines , are not guaranteed, there is a sufficient probability that the situation will occur at least once over the year to engage the analysis under

section 9. In the result, the trial judge erred when he concluded that the forty percent threshold had not been satisfied. Indeed,

section 9 of the Guidelines is engaged on the facts of this case. [ 12 ] However, applying

section 9, it does not follow that the setoff method of calculation automatically applies. Rather, in determining the appropriate child support, the judge must consider the factors enumerated in

section 9 on the basis of the evidence. This is a matter properly undertaken by the trial judge.

SUMMARY AND DISPOSITION [ 13 ] The trial judge erred in concluding that the forty percent threshold under

section 9 of the Child Support Guidelines was not satisfied on the facts of this case. The calculation of appropriate child support, applying

section 9, is properly determined at first instance, not by this Court, but by the trial judge. [ 14 ] Regarding costs, both parties were partially successful.

Section 9 of the Guidelines is to apply, but not necessarily the setoff method of calculation. [ 15 ] Accordingly, I would grant the appeal and remit the question of appropriate child support to be determined by the trial judge. I would order the parties to bear their own costs. ____________________________________ B. G. Welsh J.A. I Concur: ______________________________ C. W. White J.A. I Concur: ______________________________ L. R. Hoegg J.A.