S.M. APPELLANT AND: J.A. RESPONDENT, 2023 NLCA 1

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: S.M. v. J.A., 2023 NLCA 1 Date: January 19, 2023 Docket Number: 202001H0082 BETWEEN: S.M. APPELLANT AND: J.A. RESPONDENT Coram: Hoegg, Butler and Knickle JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201606G0010 Appeal Heard: June 28, 2022 Judgment Rendered: January 19, 2023 Reasons for Judgment by: Hoegg J.A. Concurred in by: Knickle J.A. Dissenting reasons in part: Butler J.A. Counsel for the Appellant: Stacy G. MacDonald Counsel for the Respondent: Jenny A.

McCarthy Authorities Cited: CASES CITED: Hoegg J.A. (Knickle J.A. concurring): Willick v. Willick, (SCC), [1994] 3 S.C.R. 670; S.A.H. v. K.A.H., 2022 NBCA 17; G. (L.) v. B. (G.), (SCC), [1995] 3 S.C.R. 370; L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775; Colucci v. Colucci, 2021 SCC 24; McAllister v. Dunkley,2022 ONCJ 71; Abdullahi v. Warsame, 2021 ONCJ 449; P.M.B. v. M.L.B., 2010 NBCA 5; Hildebrandt v. Hildebrandt (1991), (SK KB), 94 Sask. R. 215 (SK QB); Vennels v. Vennels (1993), (BC SC), 76 B.C.L.R. (2d) 69 (BC SC),

45 RFL (3d) 165; Storey-Bishoff v. Storey-Bishoff (3 October 1995), Saskatoon 1302 (Sask. Q.B.), [1995] S.J. No. 531; Callison v.Callison (1992), (BC SC), 40 RFL (3d) 451 (BC SC); Rogers v. Rogers, 2013 ONSC 1997; Silva v. Queiroz, 2016ONCJ 522; Stoodley v. Klein, 2013 ONSC 3058; MacMillan v. MacMillan (30 September 2002), Ontario 02/118 (Ont. Sup. Ct. J.),; Laginski v. Paleczny, 2016 ONSC 47; Higgins v. Higgins, 2006 ABQB 849; Miglin v. Miglin, 2003 SCC 24, [2003] 1S.C.R. 303; G.S. v. A.S., 2021 NLSC 84; Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27; G.S. v. A.S., 2022 NLCA 32;Wiegers v.

Gray, 2008 SKCA 7; D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. Butler J.A. (dissenting in part): Willick v. Willick, (SCC), [1994] 3 S.C.R. 670; L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775; Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27; R.P. v. R.C., 2011 SCC 65, [2011] 3 S.C.R. 819; Stones v. Stones, 2004 BCCA 99;Goodkey v. Goodkey, 2015 ABCA 394; Dedes v. Dedes, 2015 BCCA 194; Colucci v. Colucci, 2021 SCC 24; McAllister v. Dunkley, 2022ONCJ 71; Abdullahi v. Warsame, 2021 ONCJ 449; Drover v. Drover, 2020 NLCA 9; S.A.H. v.

K.A.H, 2022 NBCA 17; Wiscombe v.Wiscombe, 2018 NLCA 36, 3 C.A.N.L.R. 43; Bowes v. Bowes, 2021 NLCA 10, leave to appeal to SCC refused, 40124 (10 November2022); Drygala v. Pauli (2002), (ON CA), 61 O.R. (3d) 711 (ON CA), 219 D.L.R. (4th) 319; Hynes v. Snook, 2021NLCA 29, leave to appeal to SCC refused, 39814 (10 February 2022); Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132; Powerv. Hutchings, 2022 NLCA 46; R. v. P.H., 2022 NLCA 37; Crosbie v. Crosbie, 2012 ONCA 516; L.K.S. v. D.M.C.T., 2008 NSCA 61,leave to appeal to SCC refused, 32854 (22 January 2009); Horbas v. Horbas, 2020 MBCA 34; Bourque v.

Gerlach, 2006 BCCA 157;S.M. v. C.M., 2012 NLCA 59, 326 Nfld. & P.E.I.R. 91, leave to appeal to SCC refused, 35303 (13 June 2013); D.B.S. v. S.R.G., 2006SCC 37, [2006] 2 S.C.R. 231; B.J.T. v. J.D., 2022 SCC 24. STATUTES CONSIDERED: Hoegg J.A. (Knickle J.A. concurring): Family Law Act, RSNL 1990, c. F-2, sections 47, 37(2); Divorce Act, RSC 1985, c. 3 (2nd Supp.), section 17(4); Children’s Law Act,RSNL 1990, c. C-13, section 35(1). Butler J.A. (dissenting in part): Family Law Act, RSNL 1990, c. F-2, sections 39(9), 47; Children’s Law Act, RSNL 1990, c. C-13, section 35(1).

REGULATIONS CONSIDERED: Hoegg J.A. (Knickle J.A. concurring): Child Support Guidelines Regulations, NLR 40/98, sections 12(b). Butler J.A. (dissenting in part): Child Support Guidelines Regulations, NLR 40/98, sections 12, 14-18. RULES CONSIDERED: Hoegg J.A. (Knickle J.A. concurring): Court of Appeal Rules, NLR 38/16, rule 37; Rules of the Supreme Court, 1986,

Part IV, Supreme Court Family Rules, rule F5.02. Butler J.A. (dissenting in part): Court of Appeal Rules, NLR 38/16, rule 37(3). TEXTS CONSIDERED: Butler J.A. (dissenting in part): Julien D. Payne & Marilyn A. Payne, Child Support Guidelines in Canada, 2020, (Toronto: Irwin Law Inc., 2020). OTHER: Hoegg J.A. (Knickle J.A. concurring):

Federal Child Support Guidelines , SOR/97-175 . Butler J.A. (dissenting in part): Federal Child Support Guidelines , SOR/97-175, section 19(1) (a); Spousal Support Advisory Guidelines , (July 2008); Rollie Thompson, “To Vary, to Review, Perchance to Change: Changing Spousal Support” (2012) 31 Can Fam L 355. Hoegg J.A. INTRODUCTION [ 1 ] This appeal primarily concerns the material changes in circumstances required to vary child and partner support orders and parenting orders. [ 2 ] The appellant, S.M. (the father), applied for variation of a Supreme Court of Newfoundland and Labrador trial judge’s orders respecting child and partner support and the parenting of his and J.A.’s (the mother’

s) child. The Applications Judge dismissed S.M.’s application, ruling that S.M. had not established the material changes in circumstances required to vary the orders. [ 3 ] S.M. appeals the Applications Judge’s decision, arguing that she erred in failing to find that he established the requisite material changes.

He also argues that the Applications Judge erred in failing to address his support arrears. [ 4 ] In my view the Applications Judge did not err in ruling that S.M. did not establish the requisite material changes in circumstances respecting child and partner support or parenting, and that she committed no error in dismissing his application on that basis. Further, I am of the view that the Applications Judge committed no error in failing to address S.M.’s support arrears. BACKGROUND [ 5 ] S.M. and J.A. lived together for 12 years.

They have one child, who was 12 years old at the time the application under appeal was heard. S.M. is a journeyman pipefitter who had worked as such for many years during his relationship with J.A. He was working as a pipefitter with J.V. Driver at Long Harbour, Newfoundland and Labrador at the time of trial, and worked there until his job ended in May 2017. J.A. had worked occasionally as a server in a restaurant although she was primarily a stay-at-home mother after her child was born.

She suffers from a health condition known as Graves’ disease. [ 6 ] After her relationship with S.M. ended, J.A. initiated family law proceedings respecting the parenting of their child, division of property, and child and partner support. Prior to trial, the parties were directed to Family Justice Services, following which they agreed to a consent order respecting parenting, child support, and division of property.

The consent order provided that the parties would have joint custody of their child who would live eight days with J.A. and then six days with S.M. when he was not working, and that S.M. would pay $500.00 per month to J.A. for the child's support. The parties also agreed on the division of their property. There was no agreement respecting J.A.’s claim for partner support, so that issue was tried. After trial, the judge ordered S.M. to pay $2000.00 per month to J.A. for an indefinite period of time.

The consent orders respecting child support, parenting, and division of property were incorporated into the trial judge’s final order dated June 29, 2016. [ 7 ] S.M. did not appeal the trial judge’s order. However, on August 29, 2017, the Court received an application for variation of child and partner support with a financial statement from S.M. saying that he would be receiving employment insurance benefits for the remainder of 2017.

On October 2, 2017, his application was filed but he did not proceed with it at that time. [ 8 ] On April 9, 2019, S.M. filed an amended application for variation of the trial judge’s support and parenting orders, which was heard on October 28, 2020. He argued that there had been two material changes in circumstances which justified varying the support orders.

He also argued that the parenting order be varied to a 50/50 parenting arrangement because he was available to care for his child on a 50/50 basis. [ 9 ] At the hearing, S.M. argued that both the child and partner support orders should be vacated (Transcript of proceedings, October 28, 2020, at 134-135, 140 [ Transcript ]). The two material changes in circumstances on which S.M. rested his position were that: (1) he no longer had the pipefitting job he had with J.V.

Driver when the trial judge made the original orders, and (2) there was no work for him as a pipefitter, and even if there were, he would not earn the same amount of money that he was earning when the trial judge made the support orders.

[ 10 ] The Applications Judge was not persuaded that S.M. established either of the alleged material changes. With respect to his loss of work with J.V. Driver, the Applications Judge reasoned that the trial judge knew, as shown in his reasons for decision, that S.M.’s job with J.V. Driver at Long Harbour was project-based and that it had no guarantee of continuing, that project-based work had been S.M.’s historical work pattern, and that there was nothing to suggest that the trial judge had based his support orders on S.M.’s job with J.V. Driver continuing indefinitely.

The Applications Judge concluded that it had been within the trial judge’s contemplation that S.M.’s job with J.V.

Driver would come to an end and the fact that it did come to an end was therefore not a material change in circumstances ( Transcript , November 16, 2020, at 6). [ 11 ] With respect to S.M.’s argument that work for pipefitters was very limited or no longer available, the Applications Judge determined that S.M. had not established that there was no available work for pipefitters, nor that he would not be earning the same income he was earning when the trial judge made the existing orders if he were able to find such work ( Transcript , November 16, 2020, at 10).

The Applications Judge found that S.M.’s evidence respecting the lack of work for pipefitters was not credible, and that it was directly refuted by evidence given by an impartial and credible witness from S.M.’s union ( Transcript , November 16, 2020, at 8). [ 12 ] As well, the Applications Judge found that S.M. had not been working since his job with J.V. Driver ended because he did not want to pay child or partner support, noting that he had testified to that effect.

She concluded that “[S.M.] has been intentionally unemployed in an effort to evade his support obligations” and “[h]e cannot use that intentional unemployment to rid himself of those obligations” ( Transcript , November 16, 2020, at 10). [ 13 ] The Applications Judge also found that S.M. had not established a material change in circumstances which would cause her to revisit the current parenting order. She found that the child was thriving under the current arrangement and that there was no reason to change it ( Transcript , November 16, 2020, at 10-11).

As well, the Applications Judge stated that S.M.’s motivation for seeking to change the parenting

schedule was to obtain child tax benefits and reduce his child support payments, which were not valid reasons for changing the current order ( Transcript , November 16, 2020, at 11). [ 14 ] The Applications Judge did not address S.M.’s arrears in her decision. APPLICATION FOR ADDITIONAL EVIDENCE [ 15 ] S.M. applied to have five pieces of new evidence introduced at the appeal hearing.

He argued that the proposed evidence was relevant and credible, although he conceded that it could have been obtained and admitted into evidence at the hearing of the application (S.M. had different counsel on his appeal than he had at the hearing of his application, and his new counsel could not speak to why the additional evidence had not been submitted). [ 16 ] At the commencement of the appeal hearing, the Court heard the parties and denied S.M.’s application, saying that reasons would be provided with the Court’s decision on the appeal.

What follows are those reasons. [ 17 ] The admissibility of additional evidence on appeal is governed by rule 37 of the Court of Appeal Rules , NLR 38/16 . Rule 37(3) sets out the criteria for the Court’s consideration: 37.

(3) In determining the application, the Court shall consider (

a) whether, by due diligence, the evidence could have been brought in the court appealed from; (

b) the relevance of the evidence in the sense that it bears upon a decisive or potentially decisive issue in the appeal; (

c) the credibility of the evidence; (

d) whether the evidence, if believed, could reasonably have affected the result; and (

e) any other relevant factor. [ 18 ] The first two pieces of evidence are correspondence from E.F., an employee at S.M.’s union (Pipefitter’s Union Local 740). They concern information respecting S.M.’s position on the union’s “out of work” list from 2017 to 2020. [ 19 ] While this evidence is relevant and credible, the meaning that could be drawn from it is not significant.

In light of the other credible evidence before the Applications Judge, specifically that S.M. twice refused pipefitting work offered to him through the union and made no efforts to investigate any other available work with his union or otherwise since his job at J.V. Driver finished, evidence respecting his position on the “out of work” list before the hearing, without more, could not reasonably have affected the result, and evidence respecting his post-hearing position on the list is irrelevant.

Moreover, as stated at the hearing, this pre-hearing evidence was available to be tendered at the hearing of S.M.’s variation application, but was not. In the above circumstances, the criteria for admissibility of this proposed evidence on appeal are not met. [ 20 ] The third, fourth, and fifth pieces of evidence contain S.M.’s 2014 tax return and his debtor’s statement of account, post- hearing tax returns, and current banking information.

They were submitted to support S.M.’s argument on this appeal that the Applications Judge erred in failing to address his alleged request that his child and partner support arrears should be vacated or reduced. [ 21 ] S.M.’s 2014 tax return and his debtor’s statement of account had been before the Applications Judge and were therefore not new evidence. The balance of the proposed new evidence was post-hearing information, which would be relevant to a court hearing a current application to reduce or vacate arrears, but not relevant to S.M.’s appeal.

Moreover, and more importantly as advised at the hearing, variation or rescission of arrears were not pleaded before the Applications Judge, so this proposed evidence does not bear on a decisive or potentially decisive issue in the appeal. Accordingly, it does not meet the criteria for admissibility on appeal. [ 22 ] In the result, S.M.’s application to submit additional evidence was dismissed.

ISSUES [23] The issues on appeal are: 1. Did the Applications Judge err in determining that S.M. did not establish the material change in circumstances required tovary the trial judge’s child and partner support orders? 2. Did the Applications Judge err in failing to vary the parenting order respecting the parties’ child? 3. Did the Applications Judge err in failing to address S.M.’s support arrears? [24] S.M. also argues that the Applications Judge erred by failing to impute a fair and just income for child and partner supportpurposes.

Imputation of income pursuant to a variation application arises only after a material change in circumstances has beenestablished. As noted above, I agree with the Applications Judge’s determination that S.M. did not establish the material change incircumstances required to vary the support orders. Accordingly, I will not address this issue as a ground of appeal. DID THE APPLICATIONS JUDGE ERR IN DETERMINING THAT S.M. DID NOT ESTABLISH THE MATERIALCHANGE IN CIRCUMSTANCES REQURIED TO VARY THE TRIAL JUDGE’S CHILD AND PARTNER SUPPORTORDERS?

The Law [25] Applications to vary an existing child or partner support order fall under

section 47 of the Family Law Act, RSNL 1990, c. F-2,and rule F5.02 of the Rules of the Supreme Court, 1986,

Part IV, Supreme Court Family Rules. On a variation application the court’sauthority is limited to considering whether there has been a material change in circumstances from those that informed the existing order(Willick v. Willick, (SCC), [1994] 3 S.C.R. 670; see also S.A.H. v. K.A.H., 2022 NBCA 17). [26] In Willick, the Supreme Court of Canada considered what constitutes a material change in circumstances for the purposes ofapplications to vary child support orders made under the provisions of the Divorce Act, RSC 1985, c. 3 (2nd Supp.), at section 17(4).

Willick concerned a payee’s application to increase child support payments due to an increase in the payor’s income. The Court ruledthat such an application can only succeed if the applicant establishes a material change in circumstances from those which informed theexisting support order, and went on to explain that the material change in circumstances must be significant, and that if known at the timethe existing order was made, would likely have resulted in a different order (Willick, at 688-690).

While the material change incircumstances in Willick pertained to a child support order, the Supreme Court of Canada made it clear in G. (L.) v. B. (G.), (SCC), [1995] 3 S.C.R. 370, that the Willick framework applies equally to applications to vary spousal (or partner) support (G. (L)., at394-395, 403). [27] In L.M.P., v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, the Supreme Court of Canada elaborated on the materiality of thecircumstances involved in variation applications, ruling that in addition to the criteria set out in Willick, such a material change must havesome measure of continuity (para. 35).

As well, L.M.P. made clear that if a material change in circumstances is established, only thevariations justified by the material change can be made (para. 47). [28] More recently, the term “material change in circumstances” was addressed by the Supreme Court of Canada in Colucci v.Colucci, 2021 SCC 24. Colucci involved a payor who had applied to retroactively decrease his child support payments on the basis thathis past income had not been commensurate with the income on which the existing support order had been based.

The Court explainedthat the payor seeking such a reduction “must have disclosed sufficient reliable evidence for the court to determine when and how fartheir income fell, and to ascertain whether the change was significant, long lasting, and not one of choice” (Colucci, at para. 62). TheCourt considered the effect of Mr. Colucci’s choices on his ability to pay the ordered child support and ruled that his choices to abandonhis children and work outside the country at sporadic low-paying jobs did not allow him to avoid his child support obligations.

TheCourt summarized the framework, saying that a payor who applies to retroactively reduce ordered child support “must meet the thresholdof establishing a past material change in circumstances.

The onus is on the payor to show a material decrease in income that has somedegree of continuity, and that is real and not one of choice” (Colucci, at para. 113). [29] While Colucci addressed what is meant by the “material change in circumstances” required to justify retroactively decreasing achild support order made under the Divorce Act, the Court’s ascribed meaning of the term is not altered when the term is applied to anapplication to vary child support payments on a go-forward basis, or applications to vary past or future partner support payments.

Thereis no difference in principle between what constitutes the requisite material change in circumstances respecting an application to reducesupport arrears or rescind past support orders on the basis of an alleged past inability to pay, and the requisite material change incircumstances required to vary on-going or future support payments based on an alleged present inability to pay.

The point is that anapplicant seeking either a past or future downward variation must show that the alleged material change relied on had or has some degreeof continuity, and was or is significant, real, and not one of choice. [30] A payor’s ability to pay usually depends on whether the payor has an income, which is usually directly related to employment,which makes loss of employment a relevant factor in considering whether there has been a material change in circumstances. Loss ofemployment often provides an understandable reason why a payor may not have the ability to pay an existing support order.

While theloss of employment can affect a payor’s ability to pay, it does not automatically follow that support will be adjusted. Strong policyreasons favoring a stable and predictable support regime require that a material change in circumstances – a change that is substantial, ofa continuing nature, real, and not one of choice – be established before a downward adjustment can obtain. As the Colucci Court stated: “the threshold inquiry preserves some sense of certainty and predictability for the parties and the child, while allowing some flexibilityin response to changes in the payor’s income” (para. 61).

The loss of a particular job, and regardless of whether it was a short-term job ora permanent job, does not, without more, constitute a material change in circumstances; it is only when the loss of the particular jobresults in a significant and real inability to pay the ordered support, that is of some continuity and not of the payor’s choice or creation,that a material change in circumstances is established. Without this requirement, the courts would be barraged with repeated variationapplications and families would suffer.

When such a material change in circumstances has been established, and only then, a court can

move to assess the impact of the material change on the payor’s ability to pay, and adjust an existing support order in accordance withthe Supreme Court of Canada’s direction in L.M.P.: [47] If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the orderneeds to be made in light of the change in circumstances. The court then takes into account the material change, and should limit itself tomaking only the variation justified by that change. … . [31] Deliberate reduction of one’s ability to pay support is not a new concept to family law.

Several other cases illustrate howchoice impacts a court’s determination of a payor’s ability to pay child or spousal/partner support, and how it can thwart a requisitefinding of a material change in circumstances. [32] Deliberate reduction of an applicant’s ability to pay child support was considered recently in McAllister v. Dunkley, 2022 ONCJ71. In McAllister, the payor father had quit his job before applying for a downward variation in ongoing child support payments and areduction in his arrears on the basis that his lack of income was a material change in circumstances.

The Court dismissed his application,saying that “parents have an obligation to financially support their children and they cannot avoid that obligation by a self-inducedreduction of income” (para. 32), and that an applicant “cannot manufacture a material change in circumstances by choosing to remain outof the workforce” (para. 37). [33] Also recently, in Abdullahi v. Warsame, 2021 ONCJ 449, the applicant sought to terminate child support for his four childrenand vacate his arrears on the basis of a self-induced reduction of income.

The Court denied the application, saying that “[a]s a generalrule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-inducedreduction of income” (para. 65). [34] In P.M.B. v. M.L.B., 2010 NBCA 5, the New Brunswick Court of Appeal reasoned at paragraphs 2 and 21(endorsed in Colucciat paragraph 61) that an alleged change in circumstances must be “not one of choice”, and sent the matter back to the motion judge to beheard on the analytical framework provided by the Court. [35] In Hildebrandt v. Hildebrandt (1991), (SK KB), 94 Sask.

R. 215 (SK QB), the Saskatchewan Court ofQueen’s Bench addressed whether an applicant’s deliberate reduction in income justified reducing an existing spousal support order. The applicant had deliberately reduced his “on the books” income from his business through an agreement with his two sons that showedhis past and present income as significantly reduced and his sons’ incomes as significantly increased, so as to demonstrate that his abilityto pay past and future spousal support was not what the trial judge thought it was when the existing spousal support order was made.

The Applications Judge dismissed the application, calling the applicant’s actions deplorable. [36] In Vennels v. Vennels (1993), (BC SC), 76 B.C.L.R. (2d) 69 (BC SC), 45 RFL (3d) 165, the Court had this tosay about self-induced impecuniosity: [31] … courts should, in the interests of justice, refuse to consider a reduced income resulting from retirement, to be a material changein circumstances justifying a variation of a support order where a payor spouse has intentionally put him or herself out of the money inorder to frustrate a maintenance order.

Any such deliberate self-induced impecuniosity constitutes deceit. (Emphasis added.) [37] See also Storey-Bishoff v. Storey-Bishoff (3 October 1995), Saskatoon 1302 (Sask. Q.B.), [1995] S.J. No. 531, where a payor’sactive steps to induce his impecuniosity resulted in his application to reduce his support payments being denied (para. 12), and Callisonv.

Callison (1992), (BC SC), 40 RFL (3d) 451 (BC SC), where a self-induced change in circumstances was deemedan unfair reason to reduce support payments. [38] There is a difference between deliberately reducing one’s ability to pay support for the purpose of avoiding payment of supportand making deliberate choices which have the effect of reducing the payor’s ability to pay support. In Rogers v.

Rogers, 2013 ONSC1997, a payor father sought to retroactively reduce ordered child support and rescind the existing order on the basis that he had not hadand did not have the ability to pay the ordered support because he had no income. In Rogers, the Court distinguished between loss ofincome resulting from willful and deliberate actions within the control of the payor, and loss of income due to factors beyond the payor’scontrol, saying the latter usually results in a determination that a material change in circumstances has been established whereas theformer does not (paras. 49, 53-61).

The Court denied the payor’s application, reasoning that he would have been making the income onwhich the initial order was based were it not for his criminal behavior which caused him to lose his job. The Court found that the payorhad “created and controlled the circumstances under which his job was terminated” (para. 51), and stated that it would be counter topublic policy to allow the applicant to deliberately breach the court’s order and then use his own misconduct to avoid supporting hischildren (para. 60).

The Court concluded: [61] … the Applicant cannot rely on a material change in circumstances, where he created the circumstances he complains of. [39] Further, see Silva v. Queiroz, 2016 ONCJ 522, where the Court found that the applicant’s under-employment or unemploymentresulting from his own choices did not reduce or cancel his child and spousal support obligations (para. 29), and Stoodley v.

Klein, 2013ONSC 3058, where the Court did not reduce the payor’s partner support obligations when he lost his employment due to criminalconvictions for assaulting his wife. [40] As well, deliberate choices which have the effect of reducing the payor’s ability to pay support are also distinguishable fromdeliberate reasonable choices that have the effect of reducing a payor’s ability to pay support. Choices that are deliberately made mayget over the material change in circumstances threshold if they are reasonable, even if they have the effect of reducing a payor’s abilityto pay support.

In this regard, see MacMillan v. MacMillan, (30 September 2002), Ontario 021118 (Ont. Sup. Ct. J.), ,where the court found that the payor physician’s choice to reduce his workload, which in turn decreased his income and reduced hisability to pay the level of support previously ordered, was a reasonable choice made to address his health and well-being and notcontrived to reduce support. Accordingly, the court found his reduced ability to pay to be a material change in circumstances, and

ordered support based on his current income. Likewise, in Laginski v. Paleczny , 2016 ONSC 47 , the applicant’s application to reduce support payments was allowed. The Court found that he had a reduced ability to pay support despite reasonable and diligent efforts to find work after losing his employment. [ 41 ] The effect of a deliberate choice can also operate to deny a payee’s application for increased support. In Higgins v. Higgins , 2006 ABQB 849 , the applicant was denied an increase in support on the basis of her educational choices unrelated to her marriage breakdown. [ 42 ] In

summary, in order to succeed on an application to vary downward child or spousal support, or rescind an existing support order, the burden is on the applicant to establish a material change in circumstances showing an inability to pay the existing order that is significant, of some duration, real, and not deliberately created by the applicant to reduce income for the purpose of avoiding paying child or partner support. As Martin J. said in Colucci , an applicant cannot expect to benefit from circumstances he deliberately caused ( Colucci , at paras. 4, 61-62, 113 ).

Application of the Law to This Case [ 43 ] In this case S.M. argues that the end of his job with J.V. Driver is a material change in circumstances. The Applications Judge did not think so, and neither do I. [ 44 ] The Applications Judge decided that S.M. did not establish the change in circumstances required to vary support orders for two reasons.

In so deciding, she had before her the trial judge’s written decision, and the viva voce evidence of S.M., J.A., and R.M., the long-time executive assistant/dispatcher of S.M.’s union, Pipefitters Union Local 740, and S.M.’s tax returns from 2014 to 2019. [ 45 ] First, the Applications Judge identified the circumstances the trial judge had relied on in making his support orders.

She referenced the trial judge’s consideration of S.M.’s historical work pattern, that being that he had a number of jobs of varying duration with periods of layoff in between when he collected employment insurance (2016 NLTD(G) 104, at para. 17), and that S.M. testified that he hoped that his work with J.V. Driver would continue for the foreseeable future ( Transcript , November 16, 2020, at 4). She concluded that it was within the trial judge’s contemplation that S.M.’s work with J.V.

Driver would come to an end. [ 46 ] Second, the Applications Judge found that S.M. was intentionally unemployed in an effort to avoid his support obligations. She found his testimony self-serving and motivated by his desire not to have to pay anything to J.A. She referenced S.M.’s own testimony that he was not working because support enforcement would only garnish his earnings as well as evidence of his insulting and vindictive remarks to J.A. The Applications Judge’s decision that S.M. was intentionally unemployed is well supported by the evidence.

The evidence showed that he twice refused specific offers of pipefitting work, that he did not make inquiries or avail of opportunities for pipefitting work though his union or otherwise, and that he made no effort to seek or do any type of job since his work with J.V. Driver ended. Moreover, S.M.’s determination not to pay child or partner support was not only admitted by him but was shown by proof of his remarks to J.A. indicating his determination not to pay her anything. [ 47 ] S.M.’s work as a pipefitter with J.V.

Driver was project based, in that his work lasted for as long as his services as a pipefitter were required on the project. In that respect, his job with J.V. Driver was consistent with his historical work pattern of working at jobs that were not guaranteed to continue indefinitely. S.M. knew this. [ 48 ] So what changed when S.M.’s job at J.V. Driver ended? How did the ending of S.M.’s job with J.V. Driver constitute a material change in circumstances? S.M.’s different pipefitting jobs had ended before, and S.M. went on to find other work, sometimes collecting employment insurance in the meantime.

The ending of his job with J.V. Driver was no different, except that S.M. did not go on to find other pipefitting work. He chose not to attempt to find other pipefitting work and then asserted that he did not have the financial ability to pay the trial judge’s support orders. Not only did he decide not to seek pipefitting work or work at the pipefitting jobs offered to him, he decided not to seek or work at any type of work. Instead, he exhausted his employment insurance benefits, and thereafter supported himself by receiving provincial social services benefits.

S.M. deliberately created his alleged inability to pay the existing support orders for the express purpose of avoiding his support obligations. S.M. admitted this in his testimony before the Applications Judge, saying that he was not working or seeking work because his wages would only be garnisheed by the Support Enforcement agency.

Moreover, the evidence before the Applications Judge proved that S.M. flaunted his determination not to pay support. [ 49 ] In addition to the parts of the trial judge’s reasoning the Applications Judge referenced, I note the trial judge’s finding that S.M. had “great earning potential as his past earnings and present income indicate” (2016 NLTD(G) 104, at para. 27), which shows that he focused on S.M.’s ability to pay support, and not on his particular job with J.V. Driver. [ 50 ] S.M. has not identified any error in the Applications Judge’s appreciation of the evidence or application of the law. She referenced

section 12 (

b) of the Child Support Guidelines Regulations , NLR 40/98 , and conducted the correct analysis respecting material change in circumstance. She correctly identified the trial judge’s focus on S.M.’s ability to pay support, and not on whether S.M.’s job with J.V. Driver would last indefinitely. Her conclusion that the trial judge had contemplated S.M.’s work with J.V. Driver ending discloses no legal error and is well supported by the evidence.

The trial judge would not have made a different partner support order if he had known of S.M.’s future self-induced impecuniosity. [ 51 ] It must be emphasized that this is not a case where the change in S.M.’s ability to pay support was caused by circumstances beyond his control. Rather, S.M.’s ability to continue to pay child and partner support was well within his control.

He deliberately refused pipefitting work offered to him, he deliberately chose not to seek pipefitting work through his union or otherwise, and he deliberately chose not to do any type of work, even available, local, minimum wage work of which he was capable, because, as he said, any earnings he made would be garnisheed at 50 percent ( Transcript , October 28, 2020, at 137). In short, he deliberately created his impecuniosity in order to avoid paying the ordered support or even make a contribution towards the ordered support of his child and former partner.

While his impecuniosity is a significant and real change from his former financial circumstances, it was deliberately created by him and persists only because he steadfastly refuses to pay any child or partner support. I add that the Applications Judge’s reasoning on this issue would apply even if S.M.’s job with J.V. Driver had been a permanent one and not project-based.

[52] The Applications Judge made no error in her appreciation of the evidence or application of the law in concluding that S.M.’sconduct did not entitle him to avoid paying child or partner support. S.M.’s deliberate choice to make himself impecunious precluded afinding of a material change in circumstances. [53] It must also be noted that the trial judge’s child support order was based on a consent order arising from the parties’ agreementthrough the auspices of Family Justice Services.

Many factors influence how and why such agreements are made, and in this case thereis no record of the factors considered by the parties in reaching their agreement respecting child support, which the trial judgeincorporated into his final order. There was no allegation of unconscionability at trial or during the hearing of S.M.’s application to vary. These circumstances call for treating S.M.’s argument to terminate child support as an application to vary a judge’s child support order,rather than by application of the law respecting overturning a consent order (see L.M.P., and Miglin v.

Miglin, 2003 SCC 24, [2003] 1S.C.R. 303). [54] I also note that the trial judge’s child support order provided for an amount of child support that was significantly below theamount set out in the Federal Child Support Guidelines, SOR/97-175. In this regard, section 37(2) of the Family Law Act permits aconsent order for a different amount, but only if the Court determines that reasonable arrangements for the support of the child have beenmade.

While we do not know the factors relied upon by the parties in reaching their agreement facilitated by Family Justice Services, Ispeculate the low amount of child support agreed upon in this case may suggest that the end of S.M.’s job with J.V. Driver may havebeen a factor anticipated by the parties (and subsequently understood by the trial judge).

In this regard I note that the low amount of thechild support order was explicitly considered by the trial judge in his decision (paras. 34-35). [55] S.M. is not assisted by his second argument that no pipefitting work was available to him, and that if it were, remuneration forsuch work would be less than what he was earning with J.V. Driver. He tendered no evidence respecting the lack of pipefitting work,other than his own assertions which were not supported by any witnesses, documentation, or other evidence.

He provided no evidence ofapplications submitted or remuneration offered, currently available positions, or quality of work available. Moreover, his assertionsabout the lack of pipefitting work were found not to be credible, and were directly refuted by R.M.’s evidence which was accepted by theCourt. In short, S.M. did not prove that there was a lack of pipefitting work or that such work was paying less than previously. Neitherdoes S.M.’s argument that income could be imputed to him on the basis of his professed contentment to work at a minimum wage jobassist him.

He did not ever even try to work in such a position, because support enforcement would only garnishee his wages(Transcript, November 16, 2022, at 8). In any event, income could only be imputed to him on that basis if he established a materialchange in circumstances, which he has not done. [56] S.M.’s professed inability to pay the existing support orders was deliberately induced and created by him.

Such a concoctedchange is not a material change in circumstances within the meaning of the Family Law Act, the Supreme Court Family Rules, thejurisprudence, and the law as stated in Colucci. [57] In the result, the Applications Judge made no error in concluding that S.M. did not establish the material change incircumstances required to vary S.M.’s support obligations or rescind the trial judge’s support orders, and to dismiss S.M.’s application onthat basis. DID THE APPLICATIONS JUDGE ERR IN FAILING TO VARY THE PARENTING ORDER RESPECTING THEPARTIES’ CHILD?

The Law [58] Parenting of a child whose parents are not being divorced is governed by the provisions of the Children’s Law Act, RSNL1990, c. C-13. Section 35(1) of the Children’s Law Act provides that an existing parenting order cannot be varied “unless there has beena material change in circumstances that affects or is likely to affect the best interests of the child”. [59] In G.S. v.

A.S., 2021 NLSC 84, Coady J. of the Family Division of the Supreme Court of Newfoundland and Labradordetermined that the material change in circumstances required to vary a parenting agreement under the Children’s Law Act was thatdescribed by McLachlin J. in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, at paragraphs 17-20. In dismissing theG.S. appeal to this Court (G.S. v. A.S., 2022 NLCA 32), Welsh J.A. agreed with that conclusion.

In so doing, she stated: [15] In determining what is meant by a material change in circumstance, the applications judge referred to the decision in Gordon v.Goertz, (SCC), [1996] 2 S.C.R. 27: [12] …Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs ina fundamental way: … .

The question is whether the previous order might have been different had the circumstances now existingprevailed earlier: … Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated inmaking the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time theproceedings took place” … . [60] This Court also ruled that age or the passage of time alone are not sufficient reasons to change a parenting order. In soconcluding, Justice Welsh quoted from Wiegers v.

Gray, 2008 SKCA 7, wherein the Court stated: [25] … that mere passage of time and increased maturity of the child does not, in and of itself, constitute a material change ofcircumstances as is required by s. 17(5) of the Divorce Act and the case law that has interpreted that section. Were it otherwise, therewould be an automatic right to seek variation of custody orders on a regular basis every few years. This is clearly contrary to theestablished law.

While the reviewing judge may, of course, take into account that a child’s needs may change as he or she matures, it isnecessary to go further to determine whether and to what extent those change have, in the case before the reviewing judge, made theoriginal order inadequate. This Court concluded:

[16] … while a child’s advancing age may be relevant, it is not an automatic basis for finding a material change in circumstances … . Analysis [ 61 ] In this case, the Applications Judge approached S.M.’s application to vary the parenting order by focusing on the best interests of the parties’ child. She noted that both parents enjoyed a good relationship with the child, and also that the child was spending more time of late with S.M. (rather than with S.M.’s parents, as had previously been the case).

She found that the child “ha[d] done exceedingly well” ( Transcript, November 16, 2020, at 10) under the current arrangement and saw no reason to change it. She concluded that S.M. had not established the requisite material change in circumstances to revisit the current order. The Applications Judge also noted that S.M.’s desire to change the parenting

schedule was “motivated primarily by his desire to receive [the] child tax benefit and to reduce the amount of support he has to pay [J.A.]” and stated that was “not a valid reason to change from the current order” ( Transcript , November 16, 2020, at 11). [ 62 ] As noted above, a material change in circumstances must be significant, real, and of some duration, and in the words of Justice McLachlin in Gordon , “the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order” (para. 12).

Moreover, the change must be one that “altered the child’s needs or the ability of the parents to meet those needs” (para. 12) or “affects or is likely to affect the best interests of the child” ( Children’s Law Act , at s. 35(1) ). [ 63 ] In his amended application dated April 9, 2019, S.M. asserted that his reason for seeking a change in the amount of child support was that he had been laid off from his job and was currently receiving Employment Insurance, and was therefore available to care for his son on a 50/50 basis.

I note that according to the evidence, by April 2019 S.M.’s Employment Insurance had long since expired and that he was receiving social assistance. In any event, the material change in circumstances S.M. relied on to support his variation application in his factum and at the hearing was that his child was four years older than he was when the trial judge ordered the 60/40 parenting arrangement.

S.M. argued that the increase in age meant that the child had different needs and wants which would be better addressed by an exactly equal parenting arrangement, which he contended was effectively the case. [ 64 ] The actual time S.M. spent with the child was not agreed. While J.A. agreed that S.M. was spending more time with the child than he had historically, and that this was good for their child, she did not agree that their parenting time was “effectively 50/50”.

The Applications Judge did not rule on the conflict over the 10 percent difference. [ 65 ] There was no evidence before the Applications Judge suggesting that the child’s needs had changed or that they were not being addressed by the existing parenting arrangement, nor did the evidence indicate that the child’s increase in age showed circumstances distinctly different from those the trial judge anticipated in making the existing order.

Neither did S.M. show that his proposed 50/50 parenting arrangement, which was a ten percent increase in his parenting time and a ten percent decrease in J.A.’s parenting time, would improve the child’s circumstances.

In fact, S.M.’s position that he not have to pay any child support ( Transcript , October 28, 2020, at 140) is difficult to reconcile with his position on parenting, as parenting involves more than the measure of time spent with a child. [ 66 ] The Applications Judge considered the evidence and arguments of both J.A. and S.M., and concluded that S.M. did not establish a change in circumstances that materially departed from what the trial judge anticipated in ordering the current arrangement, nor that another parenting

schedule would be better for the child. On appeal, S.M. has not established that the Applications Judge misapprehended the evidence, applied wrong law, or failed to exercise her discretion judicially in her consideration of the parenting issue by finding that S.M. did not establish the material change in circumstances required to vary the parenting order. Accordingly, deference is owed to her decision. DID THE APPLICATIONS JUDGE ERR IN FAILING TO ADDRESS S.M.’S SUPPORT ARREARS? [ 67 ] S.M. asserts, as a stand-alone ground of appeal, that the Applications Judge erred in failing to address his support arrears.

For the following reasons, I do not agree. Analysis [ 68 ] S.M. did not apply to have his existing child and partner support orders rescinded or his arrears adjusted downward. While he stated that he owed arrears in his application and at the variation hearing, the issue of eliminating or significantly reducing them arose during his counsel’s final submissions on his application.

His counsel stated in his final submissions that S.M.’s arrears should be “if not eliminated altogether then they need to be significantly reduced because his income … has been so low” and “[w]e’d seek to have his child support and well I say child support it’s corollary relief support orders his arrears vacated …” ( Transcript , October 28, 2020, at 135, 140).

In her final submissions, Counsel for J.A. responded to opposite counsel’s arrears comments that J.A. had always been prepared to negotiate new amounts of support as well as arrears”. [ 69 ] The downward variation or rescission of orders respecting arrears is governed by a specific body of law. At the time of the hearing, the principles in D.B.S. v. S.R.G. , 2006 SCC 37 , [2006] 2 S.C.R. 231, tailored to apply to retrospective decreases, was the governing law.

S.M. did not plead elimination or significant reduction of his arrears in his application for variation, and he did not mention D.B.S. or any other jurisprudence respecting how elimination or downward variation of his arrears was to be addressed by the court. Neither did he distinguish between arrears accrued in respect of child support and partner support, argue when or how arrears should be adjusted, or adduce evidence respecting hardship or inability to ever pay.

Other than the statements of counsel referred to above, he made no arguments respecting arrears. [ 70 ] In the above circumstances, it is my view that S.M. did not properly put elimination or reduction of his arrears or rescission of the existing support orders before the Court. I do not regard his comments in his final submissions as notice to the Court or to J.A. that rescission of past support orders or elimination or downward variation of arrears was to be addressed at the hearing in any stand-alone way.

The fact that counsel for J.A. advised the court that J.A. had always been prepared to negotiate arrears along with the other issues, did not put arrears before the Applications Judge as a stand-alone issue. Neither does the fact that S.M. has argued the Applications Judge’s failure to address his arrears as an independent ground of appeal convert the issue of arrears into a stand-alone ground of appeal, even though J.A. responded to his argument in this Court after first arguing that the issue had not been before the Applications Judge.

[ 71 ] That said, S.M.’s variation application, if successful, could have resulted in the reduction of some of his arrears respecting either child or spousal support, or both, depending on the effective date of ordered variation. In that respect, the issue of some of his arrears could be said to have been before the Court. However, the Applications Judge did not find that S.M. established the requisite material change of circumstances to make a variation order, so S.M’s arrears in that context did not become an issue, so the Applications Judge had no reason to address them.

In any event, application of the analytical framework set out in Colucci , and previously in D.B.S. , requires that the payor must overcome a presumption against rescinding any part of the arrears. In Colucci , the Court explained: [138] …The presumption will only be rebutted where the payor parent establishes on a balance of probabilities that — even with a flexible payment plan — they cannot and will not ever be able to pay the arrears. … … [141] While the presumption in favour of enforcing arrears may be rebutted in “unusual circumstances” … the standard should remain a stringent one.

Rescission of arrears based solely on current financial incapacity should not be ordered lightly. It is a last resort in exceptional cases ... . S. M. did not identify the presumption he had to overcome nor adduce any evidence that could be said to support overcoming the presumption. [ 72 ] In the result, the Applications Judge made no error in failing to address arrears either as a stand-alone ground of appeal or as part of S.M.’s application to vary. DISPOSITION [ 73 ] In

summary, in my view the Applications Judge made no errors in determining that S.M. did not establish the material change in circumstances required to vary or rescind the trial judge’s child and partner support orders. Neither did the Applications Judge err in determining that S.M. did not establish the material change in circumstances required to vary the trial judge’s parenting order.

Lastly, the Applications Judge did not err in failing to address S.M.’s support arrears because the matter was not before the Court. [ 74 ] In the result, I would dismiss S.M.’s appeal, and order him to pay column three costs to J.A. ____________________________ L. R. Hoegg J.A. I concur: _________________________ F. J. Knickle J.A. Butler J.A.’s reasons; dissenting in part: INTRODUCTION [ 75 ] This appeal addresses what constitutes a material change in circumstances relative to an application for variation of partner support, child support and parenting.

BACKGROUND [ 76 ] S.M. (the “father”) and J.A. (the “mother”) resided together in a relationship resembling marriage between December 1, 2003 and August 8, 2015. Their only child was born in 2008. [ 77 ] Relative to issues raised on this appeal, at the time of their separation, the parties agreed: 1. to joint custody of the child to be arranged around the father’s work schedule; 2. that the father would pay the mother child support of $500.00 per month; and 3. that the mother was entitled to partner support.

The 2016 Decision [ 78 ] On June 13, 2016, 2016 NLTD(G) 104, (the trial judge’s decision), a justice of the Supreme Court of Newfoundland and Labrador, Trial Division (General), acknowledged the parenting agreement in place, considered whether he should confirm the parties’ agreement on child support and addressed the quantum and duration of partner support to which the father had agreed the mother was entitled (2016 NLTD(G) 104). [ 79 ] Relative to parenting, the trial judge’s decision acknowledged that “[the mother] and [the father] exercise access to [the child] and have custody of [the child] as agreed in a consent order they negotiated with Family Justice Services’ help” (para. 39(1)).

The Consent Order on parenting reflected the parties’ agreement that in each two week cycle, the child would reside with the mother eight

days and with the father six days based upon the father’s work

schedule at the Long Harbour Nickel Processing facility (the “Long Harbour facility”). In 2016, the father was employed there as a pipefitter with the J.V. Driver Group. [ 80 ] While considering the means of the parties relative to partner support, the trial judge’s decision stated: [19] … [the father] earned $118,475 in 2015.

That was up from the $112,000 he earned in 2014 and only slightly less than the $120,000 he expects to earn this year, judging by a cheque stub his employer issued to [the father] on May 26, 2016. … [27] … [the father] has great earning potential as his past earnings and present income indicate.

He is employed and hopes to continue in his present job for the foreseeable future. [ 81 ] Citing section 39(9) of the Family Law Act , and following a review of the relevant factors, the trial judge concluded respecting partner and child support as follows: [34] Based on these considerations I find that [the mother] is entitled to partner support of $2,000, for an indefinite period. I note that [the father] pays only $500 a month to [the mother] for [the child]’s child support.

The table amount of child support is $1,034 if calculated according to the Federal Child Support Guidelines for [the father]’s income of $120,000 a year. The parties agreed on the reduced amount with the help of Family Justice Services and I accept it. However, [the father] is paying less than half what he might be paying if the table amount applied. [ 82 ] The partner support order was effective as of June 1, 2016. The 2020 Decision [ 83 ] On April 9, 2019, the father filed an Amended Originating Application for Variation of partner support, child support, and parenting.

The application was heard before a different Supreme Court of Newfoundland and Labrador, General Division judge, the Applications Judge, on October 28, 2020, who rendered her oral decision on November 16, 2020 ( Transcript , November 16, 2020). [ 84 ] It was established during the 2020 hearing that the father had been involuntarily laid off by his employer when the Long Harbour facility was de-commissioned in May 2017. The father relied upon this fact as a material change of circumstances.

The Applications Judge was of the view that the second material change relied upon was the father’s assertion that: … there has been no work for him as a unionized pipe fitter since the Long Harbour project finished and even if he could find other work the job market is currently such that he can no longer earn the same salary as he did when he was working at Long Harbour. ( Transcript , November 16, 2020, at 3) [ 85 ] In response to the father’s application, the mother denied that there had been any material change in circumstances and instead the mother asserted that the father was intentionally unemployed. [ 86 ] The Applications Judge recognized that the onus was on the father to establish on a balance of probabilities that there had been a material change in circumstances and she found that he had not done so. [ 87 ] Specifically, on the two bases that the Applications Judge characterized as material changes asserted by the father, the Applications Judge concluded firstly that “… the Long Harbour project coming to an end … was within [the trial judge]’s contemplation at the time. …” and secondly that the father had failed to provide credible evidence on the job market for pipe fitters and “has been intentionally unemployed in an effort to evade his support obligations” ( Transcript , November 16, 2020, at 6, 10). [ 88 ] As a result, the Applications Judge dismissed the father’s application to vary both partner and child support. [ 89 ] Relative to the father’s requested change to the parenting arrangement, the Applications Judge concluded that: I have concern that [the father]’s desire to change the parenting

schedule is motivated primarily by his desire to receive the child tax benefit and to reduce the amount of support he has to pay [the mother] … [the father] has not established a material change in circumstances that would cause me to revisit the current order and his application for variation is thus dismissed. ( Transcript , November 16, 2020, at 11-12) [ 90 ] The father appeals the Applications Judge’s dismissal of his application to vary partner support, child support, and the terms of parenting. ISSUES [ 91 ] On this appeal the following issues will be addressed: 1.

Did the Applications Judge err in concluding that the father had not established a material change in circumstances warranting a variation of child support and that it should remain payable at $500.00 per month? 2. Did the Applications Judge err in concluding that the father had not established a material change in circumstances warranting a

variation of partner support and that it should remain payable at $2,000.00 per month indefinitely? and 3. Did the Applications Judge err in concluding that there was no material change in circumstances warranting a change in the existing parenting regime and that it should continue to follow the 8/6 day rotation? ANALYSIS Application to Introduce New Evidence on the Appeal [ 92 ] I agree with my colleague’s reasons and her conclusion that none of the documents that the father sought to enter as new evidence on the appeal met the criterion set out in rule 37(3) of the Court of Appeal Rules .

The Father’s Appeal Respecting Forgiveness of Arrears [ 93 ] I also agree with my colleague’s conclusion that since the father’s Amended Originating Application made no request to forgive either child or partner support arrears, the Applications Judge did not err in making no order in this regard. However, as will be apparent, I conclude that a material change in circumstances was established for partner support and therefore the effective date of any variation order would form part of the framework to be considered when (as I have found appropriate) the matter was remitted back.

Introductory Comments to Issues 1-3 [ 94 ] The focus of the analysis on an application to vary support or parenting is on the prior agreement or order and the circumstances under which it was made ( Willick , at 688, para. 22 ; L.M.P. , at para. 34 ; and Gordon , at para. 13 ). [ 95 ] In this case, there were distinct circumstances underlying the three orders made by the trial judge for child support, partner support and parenting.

Neither was appealed and no error is asserted in relation to either. [ 96 ] The parties had agreed to child support of $500.00 per month in advance of the 2016 hearing but did not reference the income upon which the $500.00 was based.

The trial judge noted that this was not consistent with the Federal Child Support Guidelines , “for [the father]’s income of $120,000 a year” but nevertheless accepted it (para. 34). [ 97 ] I note that since the parties were never married, the appropriate reference would have been to the Child Support Guidelines Regulations (the “ Guidelines ”). [ 98 ] In the absence of consent on the quantum and duration of partner support, the trial judge appropriately conducted an assessment of the condition, means, needs and circumstances of the parties in concluding that $2,000.00 per month should be payable by the father to the mother indefinitely. [ 99 ] Respecting parenting, the Consent Order expressly stated the basis upon which the parties had reached their agreement, namely that it was “[d]ue to” the father’s “work rotation of eight days work and six days off”. [ 100 ] Since the foundation for all three Orders was different, it was necessary for the Applications Judge at the 2020 hearing (and this Court on appeal) to conduct a distinct and individualized assessment of whether the father had established a material change in circumstances warranting a variation of either child support, partner support or parenting.

What may be a material change in circumstances for one order, may not be a material change of circumstances for another order. [ 101 ] I conclude that the Applications Judge erred in failing to conduct this individualized assessment. As I explain below, this error impacted the Applications Judge’s decision to deny a variation of partner support but it had no effect on her decision to deny a variation of child support or parenting.

DID THE APPLICATIONS JUDGE ERR IN CONCLUDING THAT THE FATHER HAD NOT ESTABLISHED A MATERIAL CHANGE IN CIRCUMSTANCES WARRANTING A VARIATION OF CHILD SUPPORT AND THAT IT SHOULD REMAIN PAYABLE AT $500.00 PER MONTH? Relevant Statutory and Regulatory Provisions [ 102 ] The Applications Judge referenced both

section 47 of the Family Law Act and

section 12 of the Guidelines in her decision. They state in relevant part: 47.

(1) Where an order for support has been made or confirmed and where the court is satisfied, (

a) that there has been a material change in the circumstances of the dependant or the respondent; … the court may, … (

e) discharge, vary or suspend a term of the order, prospectively or retroactively; (

f) relieve the respondent from the payment of part or all of the arrears or interest due on it; … 12. For the purposes of paragraph 47(1)(

a) of the Act , any one of the following constitutes a material change in circumstances that gives rise to the making of a variation order in respect of an order for child support

(

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, a change in circumstances that would result in a different order for support of a child or a different provision of that order for support; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, a change in the condition, means, needs or other circumstances of either parent or of a child who is entitled to support; … [ 103 ]

Section 12 (

b) of the Guidelines contemplates the situation in this case. Because the child support was not determined by referencing the applicable table for the father’s income of $120,000.00, on the father’s application to vary child support, the Applications Judge was required to compare “the condition, means, needs or other circumstances of either parent or of a child who is entitled to support” at the time of their agreement , to the same factors at the time of the application.

The Applications Judge’s Analysis [ 104 ] The Applications Judge concluded that the loss of the father’s job at the Long Harbour facility (where he was expected to earn $120,000.00 in 2016), was not a material change in circumstances. This conclusion was applied to her assessment of the father’s application to vary both child and partner support. [ 105 ] As regards to child support, I would conclude that this was an error in principle. The foundation for the child support order was not the father’s 2016 income (as a pipefitter) of $120,000.00.

As the trial judge acknowledged in the at paragraph 34 of his decision, on the basis of $120,000.00 in income, the father should have paid child support of $1,034.00 per month. The $500.00 per month reflected in the Consent Order arose from an agreement between the parties in advance of the 2016 hearing, not the evidence before the trial judge. [ 106 ] The Applications Judge’s error entitles this Court to substitute its opinion on the issue of whether the father had established a material change in circumstances warranting a variation of child support and whether it should remain at $500.00 per month.

Conclusion on Issue 1 [ 107 ]

Section 12 (

b) of the Guidelines requires comparison of the “condition, means, needs or other circumstances” of the parties at the time of their agreement to the “condition, means, needs or other circumstances” of the parties at the time of the application to vary . [ 108 ] Neither judge at the 2016 nor 2020 hearings was advised of the basis upon which the parties had, with the assistance of Family Justice Services, agreed to $500.00 in child support.

However, the trial judge’s decision drew an appropriate conclusion, namely that the child support had not been based upon the father’s contemplated 2016 total income of $120,000.00 because if so, reliance upon the tables would have warranted $1,034.00 per month. [ 109 ] The record from the 2016 hearing provides no other assistance respecting what the parties actually contemplated in reaching their agreement on child support with the help of Family Justice Services.

There was no evidence respecting the incomes the parties attributed to each other in reaching this agreement and neither party provided any insight into other factors that may have been considered in reaching their agreement. In the absence of evidence establishing the basis for the parties’ agreement to $500.00 per month in child support, the Applications Judge was unable to conduct the required analysis to assess if a material change in circumstances warranting a variation of child support had been established. The onus rested on the father to present this evidence and he failed to do so.

As the Court confirmed in R.P. v. R.C. , 2011 SCC 65 , [2011] 3 S.C.R. 819, without evidence before the variation court, of the circumstances surrounding the original order, there can be no basis for a finding of a material change (paras. 31-33, 37, 44-45). [ 110 ] Therefore, despite the Application Judge’s error in approach, no error is established in her conclusion that relative to the father’s application to vary child support, no material change in circumstances was established and his application should be dismissed. [ 111 ] I would therefore dismiss this ground of appeal.

DID THE APPLICATIONS JUDGE ERR IN CONCLUDING THAT THE FATHER HAD NOT ESTABLISHED A MATERIAL CHANGE IN CIRCUMSTANCES WARRANTING A VARIATION OF PARTNER SUPPORT AND THAT IT SHOULD REMAIN PAYABLE AT $2,000.00 PER MONTH INDEFINITELY? Stage One of the Willick Analysis - Material Change in Circumstances [ 112 ] The Applications Judge appropriately cited

section 47 of the Family Law Act and recognized that the onus lay upon the father to establish a material change of circumstances on a balance of probabilities which she defined as follows: … in the context of a variation for support has been described by the courts as a change that is substantial, continuing, and that if known at the time would likely have resulted in a different order. … ( Transcript , November 16, 2020, at 4) [ 113 ] The Applications Judge’s definition of a material change is supported by Willick , page 688, paragraph 22 , and pages 732-735, and L.M.P. , at paragraphs 34, 39, 67 and 84 .

Misapprehension of the Basis for the Partner Support Order [ 114 ] With regard to the material change of circumstances asserted for partner support, the Applications Judge concluded: … there is nothing to suggest that [the trial judge] based his decision on a continued and uninterrupted income for [the father] from Long Harbour indefinitely. [The trial judge] knew that there was not even a guarantee of work past the construction phase if [the father]’s

company did not get the commissioning contract and he knew that [the father]’s historical income had been periods of project employment interspersed with periods of EI. … … I do not find that the Long Harbour project coming to an end is a material change in circumstances.

That was within … [the trial judge]’s contemplation at the time. … ( Transcript , November 16, 2020, at 5-6) [ 115 ] I conclude that these passages reflect a misapprehension of the basis for the trial judge’s decision on partner support and a palpable and overriding error by the Applications Judge. [ 116 ] Firstly, contrary to the Applications Judge’s conclusions, in estimating the father’s 2016 income at $120,000.00, the trial judge had found: [18] [The father] now works with JV Driver Corporation in its Construction Services Division at Long Harbour, NL where the company is one of the contractors building a nickel-processing plant for Vale. [The father] says he started working for JV Driver about two and a half years ago and has enjoyed steady, full-time employment for that time.

He says he works an 8/6

schedule so that after working eight days straight, he is off for six days. [The father] says he hopes JV Driver gets the “commissioning contract” for the project as that will ensure he has work for the foreseeable future. [19] … [The father] earned $118,475 in 2015. That was up from the $112,000 he earned in 2014 and only slightly less than the $120,000 he expects to earn this year, judging by a cheque stub his employer issued to [the father] on May 26, 2016. … … [27] … [The father] has great earning potential as his past earnings and his present income indicate.

He is employed and hopes to continue in his present job for the foreseeable future. [ 117 ] It is these paragraphs from the trial judge’s decision that reflect the basis upon which the trial judge ordered partner support of $2,000.00 per month. [ 118 ] The evidence supports that at the time of the 2016 hearing, the father had been working and residing at the Long Harbour facility, on a

schedule of 8 days on and 6 days off. As he stated in paragraph 19 of his decision, the basis for the trial judge’s conclusion on the father’s 2016 income of $120,000.00 was a cheque stub that J.V. Driver had issued to the father on May 26, 2016. It reflected gross pay of $2,638.90 for the eight day pay period ending May 21, 2016. On the basis of his rotating schedule, the father had 45.6 pay periods per year (365÷8).

Full time employment at Long Harbour would support the trial judge’s estimate of $120,000.00 per year ($2,638.90 x 45.6 = $120,333.84) (2016 NLTD(G) 104, at para. 19). [ 119 ] It is clear therefore that the $120,000.00 in income attributed to the father by the trial judge at the 2016 hearing was based upon the father’s employment at the Long Harbour facility for the full year, and not “periods of project employment interspersed with periods of Employment Insurance” as the Applications Judge had concluded at page five.

A Change Which, if Known at the Time, Would Likely Have Resulted in Different Terms [ 120 ] In my view the second error is in the application of the “actual contemplation” standard. [ 121 ] L’Heureux-Dube J. stated in Willick , at page 734, paragraph 101 : … the fact that a change was objectively foreseeable does not necessarily mean that it was contemplated by the parties … [ 122 ] Subsequent to the Court’s 1994 decision in Willick (which addressed child support) there was confusion in the jurisprudence between matters that were “foreseeable” (a potential future event) versus those that were “foreseen” (actually taken into account).

This confusion was discussed in Professor Thompson’s article, “To Vary, To Review Perchance to Change: Changing Spousal Support” 31 CFLQ 355, at 356-358. [ 123 ] Any confusion on this element of the test was put to rest in the Court’s subsequent decision in L.M.P. (which concerned spousal support) where the Court repeated that a material change of circumstances “means a change, such that, if known at the time, would likely have resulted in different terms” (para. 44). [ 124 ] At paragraph 39 of L.M.P. , Abella and Rothstein JJ. explained that “even significant changes may not be material… if they were actually contemplated by the parties by the terms of the order at the time of the order” and at paragraph 67, Cromwell, J. in concurring reasons agreed that “changes which the parties actually contemplated or that must have been in the parties’ contemplation, cannot constitute material changes”. [ 125 ] Provincial appellate courts have applied the “actual contemplation” standard to this element of the threshold test for a material change of circumstances.

Stones v. Stones , 2004 BCCA 99 , at paragraph 16 , suggests that “the question should really be asked in each case as whether the circumstance in question was one which the parties must have had in contemplation and built into the framing of their agreement”. In Goodkey v. Goodkey , 2015 ABCA 394 , at paragraph 21 , the Court recognized that a reasonable anticipation of some future event (like retirement, lay-off or the cessation of child support) is different from knowledge of the “specific timing” of such an event. In Dedes v.

Dedes , 2015 BCCA 194 , at paragraphs 22 and 25 , citing L.M.P , at paragraph 34, the Court acknowledged that “the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated

at the time the order was entered …” (Emphasis in Original). [126] The “actual contemplation” standard applies equally on applications to vary orders, consent orders and agreements.

As the Courtstated in L.M.P. at paragraph 36 “(t)he threshold variation question is the same whether or not a spousal support order, incorporates anagreement…”. [127] Applying the “actual contemplation” standard to the facts of this case, there was no evidence to support the Applications Judge’sconclusion that the “Long Harbour project … coming to an end” (Transcript, November 16, 2020, at 6) was within “[the trial judge]’sactual contemplation” or that the involuntary loss of the father’s employment had been taken into account in the trial judge’s order.

Tothe contrary, the trial judge’s order was based on the conclusion that the father would remain employed at Long Harbour “for theforeseeable future” earning $120,000.00 per year (2016 NLTD(G) 104, at paras. 18, 19, 27). Conclusion on Loss of the Father’s Job as a Material Change of Circumstances [128] In this case, distinguishable from the decisions cited by my colleague at paragraphs 32-41, the father was involuntarily laid offfrom his full time project-based employment at the Long Harbour facility in May 2017. The layoff did not result from a willful ordeliberate action by the father.

The father had not sought the layoff and he was not terminated due to poor performance or criminalbehavior. [129] The loss of full time project-based, employment was neither temporary (L.M.P., at para. 35) trivial or short-lived (Colucci, atpara. 61). The father’s employer gave no indication at the time of the layoff, if or when the father would be re-called.

R.M., ExecutiveAssistant and Dispatcher at the father’s union, testified that the job market for pipefitters had been up and down and she could notdetermine the hours the father would have worked had he accepted the two jobs that he was offered in 2017 and 2018 (Transcript,October 28, 2020, at 80-82). The evidence supported the conclusion that the father had not been offered full time, project-basedemployment at Long Harbour (or elsewhere) since his layoff. [130] The father’s income had declined from the $120,000.00 relied upon by the trial judge in his decision because of an involuntarylayoff.

The decrease in income was significant, and neither “actually contemplated” nor built into the trial judge’s order for $2,000.00per month in partner support (Willick, at 734, para. 101; L.M.P., at para. 34; Stones, at para. 16; and Dedes, at paras. 22, 25). [131] I conclude that the father met the onus of establishing a material change in circumstances relative to partner support at the 2020hearing and that the Applications Judge erred in concluding otherwise. [132] Regarding the Applications Judge’s conclusion (that the father had claimed the lack of alternate work as a second materialchange), I note that this is inconsistent with the second basis asserted in the father’s Amended Originating Application.

Therein, thefather’s alternative basis was asserted to be that the mother’s health issues were “no longer preventing her from working or from seekingemployment or from upgrading her employability skills through further education…” (12, 14).

This was recognized in the mother’ssubmissions to the Applications Judge (Transcript, October 28, 2020, at 144). [133] The Applications Judge’s characterization of the second basis alleged by the father confuses “material change of circumstances”with imputation of income and ability to pay, a distinction that was addressed by the mother’s submission to the Applications Judge(Transcript, October 28, 2020, at 147).

Stage Two of the Willick Analysis [134] As Willick confirms at pages 734-735, paragraph 102, “[o]nce a sufficient change that will justify variation has been identified,the Court must next determine the extent to which it will reconsider the circumstances underlying, and the basis for, the support orderitself”.

On the facts of this case, since a material change in circumstances was established on the first ground asserted by the father, theApplications Judge was required to shift her focus to the second stage of the analysis addressed in Willick and determine the payor’sincome for purposes of the support (Willick, at 687, para. 20). [135] It is at stage two of the Willick analysis that the father’s assertion (that neither pipefitting nor other jobs were available to him) isappropriately addressed. My colleague cites two decisions which reflect this.

In McAllister, both paragraphs 32 and 37 fall within thecourt’s review of “jurisprudence for imputation of income”. Similarly, in Abdullahi, paragraph 65 is within the

section entitled “LegalConsiderations for the Imputation of Income”. To be clear, availability of employment is a consideration within a court’s assessment ofimputation of income. It is not a component of the material change of circumstances test. The Father’s Request to Vary Duration of Partner Support [136] At pages 13 and 14 of the father’s April 19, 2019, Amended Originating Application for Variation, the father sought variation ofboth the amount and

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