Boudreau v. Marchand, 2012 NSCA 79

NOVA SCOTIA COURT OF APPEAL Citation: Boudreau v. Marchand , 2012 NSCA 79 Date: 20120724 Docket: CA 353848 Registry: Halifax Between: Adrian Boudreau Appellant v. Betty-Anne Marchand Respondent Judge: The Honourable Justice M. Jill Hamilton Appeal Heard: June 6, 2012 Subject: Amount of child support payable by spouse with access in excess of 40 percent of the time; s. 9 of the Child Maintenance Guidelines implemented pursuant to the Maintenance and Custody Act , R.S.N.S. 1989, c. 160 ( “ Act ” ).

Summary: The parties have one child. The judge made an order containing a detailed and complex

schedule for the father to have access with his daughter. This was necessary because of the parents ’ work schedules. The result of the order is that the child is with her father in excess of 40 percent of the time. Nowhere in her reasons did the judge indicate that the result of her decision was that the father would have his daughter with him more than 40 percent of the time. Nor did she mention the factors set out in s. 9 of the Guidelines dealing with the situation where a parent has a child with him 40 percent of the time. She ordered him to pay the full table amount of monthly child support.

Issue: Did the judge make a reversible error when she failed to consider the factors set out in s. 9 of the Child Maintenance Guidelines? Result: Appeal allowed. The judge made an error of law when she failed to consider the factors set out in s. 9 of the Act in setting the ongoing monthly child support. The wording of s. 9 makes it mandatory that these factors be considered; Contino v. Leonelli- Contino , 2005 SCC 63 . The issue of child support was referred back to the trial judge.

This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 5 pages. NOVA SCOTIA COURT OF APPEAL Citation: Boudreau v. Marchand , 2012 NSCA 79 Date: 20120724 Docket: CA 353848 Registry: Halifax Between: Adrian Boudreau Appellant v. Betty-Anne Marchand Respondent Judges: Oland, Hamilton and Fichaud. JJ.A. Appeal Heard: June 6, 2012, in Halifax, Nova Scotia Held: Appeal allowed. Counsel: Adam D.

Rodgers, for the appellant Respondent, in person Reasons for judgment : [ 1 ] Adrian Boudreau appeals that part of the January 17, 2012 order of Justice Moira C. Legere Sers, ordering him to pay the respondent, Betty-Ann Marchand, ongoing monthly child support of $286 for their five-year-old daughter, based on the table amount prescribed in the Child Maintenance Guidelines ( “ Guidelines ” ) made pursuant to s. 55 of the Maintenance and Custody Act , R.S.N.S.

1989, c. 160. His position is that the judge erred in law by failing to do the analysis required by s. 9 of the Guidelines, after giving himthe right of access to, or physical custody of, their daughter more than forty percent of the time, resulting in her ordering him to pay moreongoing child support than is appropriate. [2] The facts are set out in detail in the judge’s decision reported at 2011 NSSC 276. I need only summarize them here. Theparties had a relationship from July 2004 to November 2009.

The mother and daughter live in the house they have lived in since the childwas born, which the mother purchased after separation. The father lives nearby with his father and step-mother. [3] Both parents work shift work at a local seniors’ facility. One parent is often off work when the other is working. The father’s2010 annual income was $32,822.70. The mother’s was $34,673.17.

In addition, the mother receives the annual child care benefit of$1,200. [4] In her reasons, the judge sets forth the father’s financial contributions while the parties were together and after separation: [31] During the period of time the parties lived together from July, 2004, to November, 2009, the [father] gave the [mother]$15,000.00 to pay down largely her credit card bills. They shared the costs of laminate flooring for the house they lived in.

The [father]believes he paid $2,500.00 for the flooring, the [mother] believes he paid one half of that. [32] In May of 2009, shortly before the separation, he borrowed $5,000.00 in order to have renovations done to the home in which themother and child now live, this would include new bathroom windows and doors.

He makes monthly payments on this loan. [33] In November, 2009, after the separation, he transferred ownership of the 2005 Chev Malibu, valued at approximately $8,000.00,to the [mother] for her use. [34] Since November, he has paid $1,600.00 to cover half of the babysitting expenses. [5] The judge notes the father’s significant involvement with his daughter.

It is clear both parents are acting in what they believeto be the best interests of their daughter. [6] In addition to ordering that the father have his daughter with him more than forty percent of the time and that he pay ongoingchild support at the table amount, the judge ordered him to pay a total of twelve months retroactive child support in the amount of$3,432. The father does not appeal the retroactive child support. He recognizes that prior to the hearing his daughter was with him lessoften.

Nor does the father appeal the judge’s order that he pay one-half of the after-tax cost of daycare, one hundred percent of hisbabysitting costs and that he either add his daughter to his medical coverage at work or pay one half of all uninsured health and medicalcosts for his daughter.

His appeal is limited to ongoing child support. [7] The only issue before us is whether the judge erred by failing to consider the factors set out in s. 9 of the Guidelines when sheordered the father to pay $286 ongoing child support each month. [8] The father’s position is that he should not pay any ongoing child support, given that his income is approximately equal to themother’s. He asks this Court to determine the amount of ongoing child support, if any, rather than refer it to the trial judge. [9] This Court gives great deference to a trial judge’s decision on child support in accordance with Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518, ¶ 10 to 13. However, we must intervene if the judge makes an error of law. [10]

Section 9 of the Guidelines makes it mandatory for the judge to consider the factors set out therein when determining childsupport in a situation where a parent has their child with them forty percent of the time:

9. Where a parent exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child maintenance order must be determined by taking into account

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

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

c) the conditions, means, needs and other circumstances of each parent and of any child for whom maintenance is sought. [Emphasis added] [ 11 ] With respect to the father ’ s obligation to pay ongoing child support the judge states: [84] Current child support shall be in accordance with the 2010 income, less union dues, in accordance with the guidelines in the amount of $286.00 per month and payable through Maintenance Enforcement. [ 12 ] The judge ’ s decision was given two months after the hearing.

In her reasons she makes no reference to (1) the fact the father would have his daughter with him more than forty percent of the time as a result of her detailed and complex access order or (2) s. 9 of the Guidelines. There is nothing to indicate she gave any consideration to the factors she is required to consider under s. 9. Her failure to consider these factors is an error of law; Contino v. Leonelli-Contino , 2005 SCC 63 . [ 13 ] I decline to determine the amount of ongoing child support rather than refer this issue to the trial judge.

The amount, if any, of ongoing child support is not a simple mathematical calculation as the appellant suggests. Offsetting the table amounts is only the starting point under s. 9. It cannot be the end of the inquiry. It has no presumptive value. Discretion is involved; Contino , ¶ 49 to 51. There is minimal evidence in the record with which to assess the factors listed in s. 9(

b) and (c). At ¶ 57 of Contino , the Supreme Court of Canada warns judges not to make “ common sense ” assumptions when assessing these factors. It suggests instead that it may be appropriate to ask the parties to provide the required evidence against which the factors can be considered. [ 14 ] Accordingly, I would allow the appeal and refer the matter of ongoing child support to the trial judge to do the required s. 9 analysis. If she determines she needs additional evidence to complete her analysis, she is at liberty to request it from the parties. I would not order costs, as none were requested. Hamilton, J.A. Concurred in: Oland, J.A. Fichaud, J.A.