Shears v. Gould, 2014 NLCA 2

Date: 201401 10 Docket: 13/90 Citation: Shears v. Gould , 2014 NLCA 2 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: MARK SHEARS APPLICANT AND: CHERIE GOULD RESPONDENT Coram: Green C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 201204F0465 Application Heard: January 7, 2014 Decision Rendered: January 10, 2014 Reasons for Decision by Green C.J.N.L.

Counsel for the Applicant: Self Represented Counsel for the Respondent: Self Represented Green, C.J.N.L.: [ 1 ] The intended appellant, Mark Shears, applies for an extension of time to file a notice of appeal from a decision of a judge of the Family Division, to retroactively vary child support for the years 2011, 2012 and 2013. The intended respondent, Cherie Gould,

opposed the extension. [ 2 ] The Family Division Order was filed on October 11, 2013. Mr. Shears attempted to file a notice of appeal on or about November 23, 2013, which was outside the thirty-day window for appealing as stipulated by rule 57.03(1)(

b) of the Rules of the Supreme Court, 1986 . He filed an application to extend the time on December 3, 2013 which was augmented by further material received on January 7, 2014. [ 3 ] In his proposed notice of appeal, Mr. Shears essentially lists one ground of appeal: in calculating the amount of child support retroactively for the years 2011 and 2012 based on the table amount in the relevant child support guidelines, the trial judge failed to take account of the fact that he had a “verbal agreement” with Ms.

Gould whereby he would pay, outside the formal mechanism of the Support Enforcement Agency, certain of the child’s expenses for extracurricular activities, clothing and personal care. [ 4 ] The Court has a discretion to extend time for filing a notice of appeal where refusal to do so would create an injustice: rule 57.05. In deciding this, the Court will normally consider the following factors: (

i) whether the intended appellant had a bona fide intention to appeal within the appeal period; (ii) whether there is a reasonable excuse for the failure to comply with the rule; (iii) the potential merits of the appeal; and (iv) the presence of any exceptional or special circumstances justifying or working against fairness of an extension: Stockwood v. Hayden, 2010 NLCA 39 , 289 Nfld. & P.E.I.R. 145 at para. 13 . As well, as noted in Stockwood at paragraph 14 , these factors are not absolute criteria which all must be satisfied in every case.

In the end, they must be balanced against each other to determine where the justice of the granting or refusing an extension lies. Intention to Appeal [ 5 ] It is not clear that Mr. Shears had an intention to file an appeal within the applicable appeal period. While he disagreed with the trial judge’s decision relating to the years 2011 and 2012, he says he was waiting for a “notice of recalculation” before taking further steps to challenge the Order. This position appears to be based on a misapprehension of clause 6(

c) of the Order which deals with automatic recalculation of child support amounts for 2014 and years following. Paragraph 6(

c) provides that the support payor can file a notice of objection within 30 days of receipt of a notice of recalculation. Mr. Shears mistakenly interpreted this to mean that it applied to the years 2011 and 2012 as well, and that inasmuch as he had not received a notice of recalculation with respect to those years, he thought he still had 30 days in which to file a notice of appeal. [ 6 ] Notwithstanding this erroneous

interpretation of the Order, it seems clear that, while he did not specifically address whether he should invoke the mechanism for appealing to this Court immediately following the issuance of the Order, Mr. Shears did not accept the correctness of the Order for the level of child support that had been imposed and intended to do something about it. In any event, he had clearly manifested an intent to appeal by November 23, 2013 when he tried to file a notice of appeal. This was outside the appeal period by 13 days, a relatively short time delay. Reasonable Excuse [ 7 ] Mr.

Shears advances two arguments in support of his assertion that he has a reasonable excuse for not filing his notice of appeal earlier. The first is based on his

interpretation of the recalculation provisions of the Order as discussed previously. He says his

interpretation explains why he did not act sooner. In my view, this does not in itself amount to a reasonable excuse because his

interpretation is an unreasonable one. Clauses 1 and 2 of the Order make it clear that the amounts of child support payable on a monthly basis for 2011 and 2012 were set for those years at $576 and $838 respectively. Those amounts were, by clause 5, to be “paid directly to the Director of Support Enforcement for the benefit of the child”. Clause 6, dealing with recalculation, clearly deals with adjustment of child support on a go-forward basis and has nothing to do with retroactively readjusting the amounts paid or payable for past years. [ 8 ] The second reason given by Mr.

Shears is that he works “out of province” and that he only returned on or about November 22, 2013, at which time he acted to attempt to file a notice of appeal. Ms. Gould points out, however, that Mr. Shears’ “out of province” work is in Labrador, which is still within the province and that his work there involves two-week shifts with a one week return to his home in Rocky Harbour between shifts. On this basis, she says he would have had time within the appeal period to file an appeal. [ 9 ] While agreeing that he works a two-week-on , one week-off shift, Mr.

Shears says that from time to time he is required to stay on the job extra days. He acknowledged, however, that he was “vague” about whether this situation occurred in October and November, which is the crucial time for our purposes. Mr. Shears bears the burden of establishing a reasonable excuse. I cannot conclude, on the basis of his “vague” information, that he remained in Labrador for the whole of the time in which the appeal period was running. I therefore agree with Ms. Gould’s position that Mr. Shears’ presence in Labrador does not in itself explain why Mr. Shears did not file his notice of appeal earlier.

Indeed, it does not even follow that absence from the province (assuming work in Labrador could be described as such) is in any event necessarily an excuse for not complying with time lines in this age of electronic communications. [ 10 ] I conclude therefore that Mr. Shears has not put forward a reasonable excuse for not appealing within time. Merits of the Appeal [ 11 ] Mr. Shears asserts that the judge should have taken account of the informal payments he made towards his child’s expenses when setting the amounts of child support for 2011 and 2012. [ 12 ] Both parties agree that Mr.

Shears’ argument on this point was made to the trial judge. However, in his Memorandum of Decision filed 16 days after the hearing, the judge makes no reference to this matter. He focused on the fact that even though Mr. Shears’ income had “risen substantially” since the making of the original child support order in 2008, he did not comply with the requirement, imposed in the original order, that he provide Ms.

Gould annually with copies of his income tax returns and notice of assessment and that “he refused to raise his payments to levels appropriate to his income.” He concluded that “the retroactive award would not impose too great a burden on [Mr. Shears] and the Court is satisfied that the child would benefit from this award.” The judge then proceeded to calculate Mr. Shears’ income for the years 2011, 2012 and 2013 and applied the table amount to derive the amount of monthly child support to be paid.

[ 13 ] It is, accordingly, unclear whether in conducting the foregoing analysis, the judge addressed at all the question whether there ought to be an adjustment to the retroactive child support amounts to account for the fact that, as Mr. Shears asserted, he had made informal payments for the support of the child. It may be, of course, that the judge rejected Mr. Shears’ evidence and concluded that he had not made any substantial payments in that regard. But he did not say so.

He may also have concluded that even though such payments were made, it was still inappropriate to make any adjustment because they were not materially significant or were overbalanced by other factors. But, again, he did not say so. This raises the question of whether he was alive to the issue as a relevant factor in his analysis. [ 14 ] The law contemplates that informal payments by a payor parent should be considered as part of the payor parent’s conduct in crafting a retroactive child support order and, as such, may factor into the quantum of the ultimate award: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v.

Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231 at para. 109 ; Swiderski v. Dussault , 2009 BCCA 461 , 98 B.C.L.R. (4th) 40 at para. 7 ; Leaman v. Leaman , 2009 NLTD 199 , 293 Nfld. & P.E.I.R. 108 at para. 28 .

While it does not follow that the making of payments outside the formal child support scheme will necessarily lead to a reduction in the amount of retroactive payments that otherwise should be made, the existence of such payments is relevant to the analysis when considering all other appropriate circumstances. [ 15 ] The judge’s two-page written reasons are styled a “memorandum” of decision and may not therefore have been intended to be an analysis of all of the considerations in the case; nevertheless, it appears that it was something more than a simple of decision. By specifically addressing the failure of Mr.

Shears to disclose his increases in annual income and his refusal to increase the level of his payments as factors in reaching the conclusion he did, while at the same time not addressing Mr. Shears’ point, he gives the impression of an unbalanced analysis. This may be unfair to the judge, as he may well have decided that the failure to disclose his income and pay increased child support was conduct that completely overbalanced any other consideration.

But emphasizing one and not mentioning the other raises a question as to whether the judge conducted a proper analysis. [ 16 ] It cannot be said, therefore, that the appeal is without merit. I stress, however, that this conclusion does not mean that Mr. Shears’ appeal will ultimately be successful. No transcript of the evidence at trial is presently available. It may be that the evidence given by Mr. Shears with respect to what he says he paid for support of his daughter will not support any factual findings in his favour.

Again, there may be other considerations which will overbalance the effect of his payments, if made. Such matters can only be addressed on a full appeal. Exceptional or Special Circumstances [ 17 ] Neither party pointed to any special or exceptional circumstances that would work in favour of or against the fairness of an extension. In particular, Ms. Gould has not asserted any prejudice that she will suffer as a result of allowing the appeal to be filed now as opposed to within the original appeal period. While potential prejudice to the child is also a relevant consideration, none was emphasized here.

Conclusion and Disposition [ 18 ] Balancing the considerations related to the foregoing factors, I conclude that I ought to exercise my discretion to allow an extension of time for filing an appeal. Mr. Shears has shown that there is potential merit in his proposed appeal. Other things being equal, proceedings ought to be decided on their merits rather than on technicalities or strict time limits. While Mr. Shears has not put forward an acceptable excuse for not filing his appeal within time, the delay has been a relatively short one, he acted promptly to apply for an extension and Ms.

Gould has not established prejudice to her or her daughter as a result of the delay. On balance, the equities favour Mr. Shears. [ 19 ] The time for filing the notice of appeal is extended to the date of the hearing of this application and the copy of the notice of appeal annexed to the application is hereby deemed to have been filed nunc pro tunc as of that date. [ 20 ] Costs of this application shall be costs in the cause. J. D. Green C.J.N.L.