IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
McFayden v. Faint, |
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2012 BCSC 426 |
Date: 20120323
Docket: 46362
Registry: Kamloops
Between:
Kansas H.A. McFayden and Eric Godin
Appellants
And
Jason Michael Faint
Respondent
Before:
The Honourable Mr. Justice Blair
in Chambers
On
appeal from a decision of the Provincial Court of British Columbia
dated September 22, 2011, Kamloops Registry, Docket No. 7841
Reasons for Judgment
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Counsel for the Appellants: |
M.J. Ford |
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Jason Michael Faint appeared on his own behalf: |
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Place and Date of Hearing: |
Kamloops, B.C. January 10, 2012 |
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Place and Date of Judgment: |
Kamloops, B.C. March 23, 2012 |
[1] The appellants, Kansas H.A. McFayden and Eric Godin, appeal the September 22, 2011 decision of the Honourable Judge S.A. Donegan of the Provincial Court of British Columbia (the “Faint” decision”), pursuant to s. 16 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA].
[2] The appellants, in their notice of appeal, assert that the trial judge erred in concluding that Mr. Godin was obligated to pay child support for Kaiden Devon Dre McFayden-Faint (“Kaiden”) pursuant to the FRA, and that she further erred in the method she used to determine the quantum of child support payable by Mr. Godin.
[3] Mr. Faint and Ms. McFayden were in a relationship from 1994 to 1999 and their son Kaiden was born on February 15, 1996. Following their separation, Kaiden resided with his mother, and had regular access visits with his father. Shortly after her separation from Mr. Faint, Ms. McFayden commenced a common-law relationship with Eric Godin, from which their daughter was born. The appellants, Ms. McFayden and Mr. Godin, married in 2005. Mr. Godin acknowledges that both before and after his marriage to Ms. McFayden he acted as a stepfather and provided financially for Kaiden.
[4] Kaiden left his mother’s home and commenced living with his father in September 2009. He remains in his father’s home together with Mr. Faint’s new partner, Meegan Ernicos and her three children, but spends weekends with his mother and Mr. Godin. Mr. Godin continues to financially support Kaiden by paying his stepson’s expenses incurred for trips he takes with his band and playing basketball.
[5] On November 7, 2000, Mr. Faint was ordered to pay $146 monthly as support for Kaiden pursuant to the Federal Child Support Guidelines (the “Guidelines”), based on an annual income of $17,680. Mr. Faint did not always pay his support obligation and the amount he paid did not always reflect the obligation imposed by the Guidelines as his annual income increased. Judge Donegan ordered that Mr. Faint pay Ms. McFayden $3,066 for arrears of child support to September 2009, after imputing an annual income to Mr. Faint of $34,500.
[6] After Kaiden moved to his father’s home, Ms. McFayden commenced paying Mr. Faint child support of $120 a month. The trial judge concluded that this sum did not reflect her income and ordered that she pay $172 a month for child support commencing September 1, 2011 based on a Guideline income of $19,233.50. The trial judge ordered that Ms. McFayden pay to Mr. Faint arrears of child support of $1,181 to September 2011.
[7] The trial judge found that (as a stepfather), Mr. Godin also had an obligation to pay Mr. Faint child support for Kaiden, and ordered that he pay $664.50 a month in support, commencing September 1, 2011. It is that finding of a child support obligation in the monthly amount of $664.50 which led Mr. Godin to bring this appeal.
[8] Pursuant to Chera v. Chera, 2008 BCCA 374, the appellants must establish that the trial judge made material errors or applied incorrect legal principles from which appellate intervention might follow. Mr. Faint’s position is that the trial judge made no material errors, nor did she apply incorrect legal principles. Mr. Faint submits that in their appeal, Ms. McFayden and Mr. Godin are attacking the trial judge’s findings of fact and rearguing the issues.
[9] Mr. Faint represented himself at both the trial and on the appeal. Although unrepresented, Mr. Faint was well prepared for the appeal hearing, including having the material required to proceed and the authorities upon which he relied.
[10] At the hearing in Provincial Court, Mr. Godin opposed Mr. Faint’s application that he pay child support on the basis that even though he was a parent under the FRA, he was not separated from Kaiden’s biological mother and, therefore, had no obligation to pay child support for Kaiden.
[11] Neither party at trial was able to provide any authority on whether Mr. Godin, as a stepfather married to Kaiden’s mother, had an obligation to pay child support for his wife’s child after Kaiden left their matrimonial home to live with his father. However, following the hearing in Faint, the Honourable Judge R.C. Dickey of the Provincial Court of B.C. gave his decision in K.A.L. v. J.P.R., 2011 BCPC 0183 (on July 22, 2011), involving circumstances which are markedly similar to those encountered in Faint. Judge Dickey wrote:
[5] The applicant is the father and primary caregiver of the 10-year-old child. The applicant and the mother of the child have joint custody and guardianship. The mother has access to the child a minimum of three days per week; and, on alternating weeks, five days per week. I understand the child began living with the father in August 2009. The child, prior to living with the father, lived from the date of his birth with the mother and respondent stepfather. The respondent stepfather is married to the mother. The stepfather admits that he falls within the definition of "parent" as set out in the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA].
[12] In both K.A.L. and Faint, the mothers paid child support commensurate with their incomes under the Guidelines to the father with whom the child was living.
[13] The question in each case was whether the stepfather had an obligation pursuant to the FRA to pay child support to the father. After reviewing the applicable legislation, Judge Dickey concluded the stepfather was obligated to pay child support, a conclusion with which Judge Donegan agreed in finding Mr. Godin obligated to pay child support for Kaiden.
[14] The appellants assert that in concluding that Mr. Godin was obligated to pay child support for Kaiden, the learned trial judge erred:
1) in finding Mr. Godin, a stepfather, who is in an intact relationship with the biological mother, Ms. McFayden, is obligated to pay child support to Mr. Faint, the biological father;
2) in holding that the FRA may be invoked by a party, Mr. Faint, against a person, Mr. Godin, where there is no lis or cause of action between that party and that person;
3) in holding that the FRA may be invoked against Mr. Godin in circumstances where there has been no separation of the biological parent, Ms. McFayden, and the stepfather, Mr. Godin, particularly where that stepfather continued to contributes to the support of the child;
4) in finding that the objectives in the Guidelines adopted by British Columbia under the Child Support Guidelines Regulation, B.C. Reg. 61/98 (the “CSG”) apply only to the Divorce Act, R.S.C. 1985, c. 3 (the “Divorce Act”), and not to the FRA;
5) in finding that the order made under the FRA compelling the stepfather, Mr. Godin, to pay child support met the objectives of the Guidelines; and
6) in holding Mr. Godin as stepfather obligated to pay child support to the biological father, the Court would open the “floodgates” and lead to the “absurd result” of allowing many applications for child support that were never contemplated by the FRA or the Guidelines.
[15] The grounds of appeal with respect to whether Mr. Godin was obligated to pay child support for Kaiden are based largely on the appellants’ position that Mr. Godin cannot be found obligated to pay child support for Kaiden for so long as he continues to live in a marriage or marriage-like relationship with Ms. McFayden. The basis for this assertion lies in the interpretation and application of provisions of the FRA, the Guidelines, and the CSG.
[16] Section 88 of the FRA describes the obligation of a parent to provide for the support of the child, stating:
(1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.
(2) The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent.
[17] Section 1 of the FRA defines “parent” as including:
(b) a stepparent of a child if
(i) the stepparent contributed to the support and maintenance of the child for at least one year, and
(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;
[18] Section 1(2) of the FRA defines “stepparent” as follows:
(2) For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child
(a) are or were married, or
(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.
[19] The Guidelines created by the federal government were adopted for use in B.C.’s FRA through the CSG. The latter defines how the Guidelines and the FRA are to work together.
[20] Section 1 of the Guidelines sets out its objectives which includes:
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation. [Emphasis added]
[21] Mr. Godin submits that s. 1(a) of the Guidelines should be interpreted as being applicable to a stepparent only if he or she is separated from the biological parent. Since he is still married and living with Ms. McFayden he asserts that he is not obligated to pay such child support.
[22] Mr. Godin acknowledges that he falls within the definition of parent as found in s. (1) and 1(2) of the FRA which leads to the question of whether s. 1(a) of the Guidelines should be interpreted as obliging a stepparent to pay child support as sought by Mr. Faint only if the stepparent is separated from the biological parent.
[23] In K.A.L., Judge Dickey succinctly addresses the interpretation and application of s. 1(a) of the Guidelines where the stepparent is not separated from the biological parent of the child, stating at para. 18 of his reasons:
[18] In analyzing the issue of whether the "Objectives" of the Guidelines should guide the interpretation of the FRA, it must be remembered that this is an application under the FRA and not under the Divorce Act and Guidelines. The Divorce Act and Guidelines apply to persons who are, or were, married to each other. The FRA is much broader in scope in that it applies to persons married to one another, persons in a marriage-like relationship, and stepparents. The "Objectives" of the Guidelines relate to the more restrictive Divorce Act. The Regulation broadens the scope of the Guidelines by adopting them, and then expanding their application by broadening the definitions; see s. 1(3)(h) of the Regulation, in which reference to "spouse" in the Guidelines is to be read as a reference to "parent" as defined in the FRA, except for s. 5, in which it is to be read as a reference to "person". I also find that the "children first perspective" [D.B.S. v. S.R.G. (2006), 2 SCC 37] of the Guidelines should be used as an interpretation guide to broaden and not narrow the obligation to provide child support, unless the obligation is clearly limited. I find, therefore, that the restrictive nature of the "Objectives" of the Guidelines does not limit the child support obligations as found in the FRA.
[24] The approach taken by Judge Dickey in K.A.L. is consistent with that found in Adler v. Jonas, [1998] B.C.J. No. 2062 (S.C.), a case involving a stepparent’s obligation to pay child support to his wife’s child. Mr. Justice Hardinge wrote at para. 20:
... I think it appropriate to note here that the provisions of the Family Relations Act should be given a liberal interpretation wherever its provisions relate to children. In Prichard v. Prichard (1994), 1 B.C.L.R. (3d) 336 Spencer J. of this court said at paragraph 6:
The Act as a whole should be given an interpretation consistent with its objective of regulating the affairs of families in the broad sense. Where it deals with children it should be construed liberally in their favour to provide for their “reasonable support”.
[25] I concur with the liberal interpretation adopted by Judge Dickey in K.A.L. and affirmed by Judge Donegan in Faint when he concluded that Mr. Godin had a legislated obligation to pay child support for Kaiden, and that it was not relevant that Mr. Godin and Ms. McFayden were still married and living together.
[26] I view the legislative provisions referred to above as providing the means of ensuring that those such as Ms. McFayden, Mr. Godin and Mr. Faint, who have supported Kaiden and have accepted financial responsibility for him over many years, continue to support him financially and provide him with an appropriate standard of living.
[27] Mr. Godin submits that the absence in the case law since the enactment of the FRA 32 years ago of a situation such as this, where a stepparent was ordered to pay child support indicates that the law is that a stepparent in Mr. Godin’s position has no obligation to pay child support. I am not prepared to conclude that the absence of such a case until the K.A.L. and Faint decisions is determinative of the state of the law.
[28] Mr. Godin also submitted that the Court erred in holding that the FRA could be invoked by a party against a person where there is no lis or cause of action between that party and that person. Phrasing it somewhat differently, Mr. Godin said that as they were never in a relationship together, there was no lis or cause of action between himself and Mr. Faint. This submission appears to ignore the fact that this is not a personal action between Mr. Godin and Mr. Faint, but an action brought by Mr. Faint pursuant to the FRA on behalf of the child to ensure that the child receives the support from his parents, to which he was entitled under the FRA. The FRA provides the mechanism by which Mr. Faint could advance the claim on behalf of Kaiden against Mr. Godin.
[29] I have not canvassed all the matters raised by Mr. Godin with respect to his obligation to pay child support for Kaiden, having concluded that Judge Donegan has appropriately addressed those issues with respect to Mr. Godin’s obligation to pay child support.
[30] I turn next to the trial judge’s determination of the quantum of child support for Kaiden payable by Mr. Godin. The appellants submitted that the trial judge erred:
1) in reaching a conclusion that effectively renders household income relevant in determining child support obligations of a parent in the absence of an undue hardship claim;
2) in relying on the annual expenses reported by Mr. Faint after the court earlier made an adverse finding with respect to Mr. Faint’s credibility regarding his reporting of financial information;
3) in attributing half of Mr. Faint’s annual expenses to Kaiden without a foundation in the evidence for so doing;
4) in failing to consider the income or contribution of Mr. Faint’s partner, Meegan Ernicos, in determining the financial shortfall that Mr. Faint had with respect to Kaiden’s annual expenses; and
5) in determining the arrears of child support for three months in 2009 payable by Ms. McFayden to Mr. Faint based on her income which apparently and incorrectly included Ms. McFayden’s withdrawals of $1,379 from her Registered Retirement Savings Plan and the receipt of $700 in child care benefits. Were I to give effect to this assertion, the arrears payable by Ms. McFayden would be reduced from $1,181 to $1,121, a total of $60.
[31] There are limits to an appellate review with respect to support orders and these are expressed in Chera by Madam Justice D. Smith, writing for the Court at para. 10:
[10] The scope of appellate review in regard to final support orders (Hickey v. Hickey, [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577), and final custody orders (Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014), is a narrow one that limits appellate intervention to where there is shown to be a material error. A material error is said to exist where conclusive or relevant evidence has been ignored or misunderstood, erroneous conclusions drawn from it, or where incorrect legal principles have been applied. The stated rationale for this approach to appellate review is that it "promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge" (Hickey at para. 12) as "[t]he Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge." (Van de Perre at para. 12) [Emphasis included]
[32] In Hickey v. Hickey, [1999] 2 S.C.R. 518, Madam Justice L’Heureux-Dubé, for the Court, wrote of the deference to be accorded a trial judge’s decisions with respect to support obligations stating:
[10] When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
[11] Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. These principles were stated by Morden J.A. of the Ontario Court of Appeal in Harrington v. Harrington (1981), 33 O.R. (2d) 150, at p. 154, and approved by the majority of this Court in Pelech v. Pelech, [1987] 1 S.C.R. 801, per Wilson J.; in Moge v. Moge, [1992] 3 S.C.R. 813, per L'Heureux-Dubé J.; and in Willick v. Willick, [1994] 3 S.C.R. 670, at p. 691, per Sopinka J., and at pp. 743-44, per L'Heureux-Dubé J.
[12] There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.
[33] It is in the context of Chera and Hickey that I consider the approach and conclusions reached by the trial judge with respect to the determination of child support payable by Mr. Godin.
[34] In this determination, the trial judge first considered s. 5 of the Guidelines which addresses a stepparent situation. It states:
5. Where a spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate having regard to these Guidelines and any other parent’s legal duty to support the child.
[35] At para. 39 of her reasons, Judge Donegan referred to the decision H. (U.V.) v. H.(M.W.), 2008 BCCA 177, in which Madam Justice Newbury, for the Court, discussed child support obligations, particularly those imposed on a stepparent. I found her discussion illuminating in the context of the instant case. In her conclusions Newbury J.A. wrote:
[38] As should be clear from the foregoing, although the broad principles of law relating to the existence of child support obligations on the part of stepparents are clear, Canadian courts have differed as to how those obligations, as stated in the Guidelines, are to be determined in practice. I read s. 5 as requiring that the legal duties of support of the “other parent(s)” – in this case, the natural parents – be considered when support is sought from a stepparent. If such duties are to be considered, it seems obvious that they must be quantified if possible. For this purpose, the “other parent(s)” should be before the court, or other evidence satisfactory to the court relating to that parent’s status should be adduced, as occurred in Dutrisac v. Ulm, 2000 BCCA 334, and Kobe v. Kobe, [2002] O.J. No. 1250 (S.C.J.) (but not in Chartier v. Chartier, [1999] 1 S.C.R. 242]. Unless that other parent is a stepparent, s. 3 requires that his or her support be the applicable table amount unless custody is being shared, the child is over age 19, or one of the other ‘discretionary’ provisions applies. (In the case at bar, the daughter had reached 19 by the time of the hearing below, but was still dependant on parental support, and no argument was advanced invoking s. 3(2)(b) of the Regulation. None of the other discretionary provisions applied.) At this stage, the process is not one of “balancing” or even “apportionment”: it appears that the natural parent’s obligation can be determined only in accordance with the non-discretionary “presumptive rule” of s. 3.
[39] Thus the chambers judge below did err, in my respectful view, in failing to determine whether the father was in fact contributing an amount at least equal to what he would have been required to pay under s. 3 had he been making regular monthly payments in accordance with the Guidelines. Whether or not the father was doing so, the chambers judge should then have ordered him to pay his table amount – although if the mother was content to accept support in the form of the payment of tuition fees or other expenses, she could enter an agreement with him to that effect. She could not, however, choose to give the father a “pass” in favour of pursuing the stepfather for all the support the children required.
[40] Once the duty of the “other parent” had been determined, the chambers judge could proceed to determine the stepfather’s obligation, “having regard to” that duty and “these Guidelines”. I agree with the Court in Kobe that the chambers judge’s discretion under s. 5 was not “unfettered”, but certainly the phrase “these Guidelines” would include the objectives stated in s. 1, which I repeat here for convenience:
(a)to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation;
(b) to reduce conflict and tension between parents by making the calculation of maintenance orders more objective;
(c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of maintenance orders and encouraging settlement; and
(d) to ensure consistent treatment of parents and children who are in similar circumstances.
Thus a “fair standard of support”, objectivity of calculation, and reduction of conflict between parents are relevant to the determination of “appropriate” support by the stepparent. On the other hand, s. 5 does not, in my view, confer a discretion that is so broad as to encompass “all” the circumstances of a case (as was suggested in Russenberger v. Rebagliati, 2000 BCSC 82)) or “fairness” to the father arising from a kind of promissory estoppel against the stepparent (as was suggested by the chambers judge in this case).
[41] Given the “children-first” perspective of the Guidelines (see D.B.S. v. S.R.G., (2006) 2 SCC 37], primacy should be given to the children’s standard of living. Where for example the stepparent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guidelines amounts, a court might find it appropriate to make an order against the stepparent that is designed to provide the higher standard, or something approximating it, “on top of” the other parents’ support. However, where the ‘piling’ of Guidelines amounts would result in a standard beyond one that is reasonable in the context of the standard the children have previously enjoyed, such a ‘windfall’ or “wealth transfer” (see Francis v. Baker,[1999] 3 S.C.R. 250 at para. 41) is unlikely to be “appropriate”. At the other end of the spectrum, where the three (or more) parents’ Guidelines “contributions” together are needed to provide the children with a reasonable standard of living, then both the stepparent and the non-custodial parent(s) may well be required to pay full Guidelines amounts. Or, where one of the natural or adoptive parents is not present or is unable to pay any support, the stepparent may well have to pay his or her full table amount. The Legislature has left it to the judgment of trial and chambers judges in the first instance to fashion orders that are “appropriate” under s. 5. At the same time, the Guidelines system is not thereby jettisoned in favour of a ‘wide open’ discretion. The inquiry must, like the Guidelines themselves, focus on the children and their needs.
[42] In this case, the income levels of the father and stepfather were not very different. When the stepfather was supporting the children, the father was sharing custody and was therefore not expected to contribute funds to the mother for the children’s care. Now, the natural parents are able to provide a quite comfortable standard of support – the father by paying his Guidelines amount and the mother by providing her presumed contribution as custodial parent. The chambers judge reasoned that the mother’s expenses were slightly more than her Form 89 had indicated – about $2,570 per month from May 1, 2006. In this, he has not been shown to be wrong. Where he erred was in approaching the natural father’s obligation as a secondary one, losing sight of the non-discretionary obligation created by s. 3. If the chambers judge had factored in the Guidelines obligations of the natural parents, which come to a total of $2,210 per month, he would have been left with a shortfall of $360 per month. If the stepfather had been ordered to “top up” this amount, the children would have a more than a “fair standard of support” and the other requirements and objectives of the Guidelines would have been met.
[43] I would allow the appeal on the basis that the chambers judge erred in his approach to the determination of the stepfather’s obligation under s. 5 of the Regulation and the father’s obligation under s. 3, and in considering factors that do not come within the wording of s. 5.
[36] The presumptive rule found at s. 3(1) of the Guidelines and referred to by Newbury J.A. in the above extract from her judgment H. (U.V.) reads as follows:
3(1) Presumptive Rule
Unless otherwise provided under these Guidelines, the amount of a maintenance order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought;
[37] Judge Donegan, in applying s. 5 of the Guidelines, took guidance from Madam Justice Newbury’s direction found in H.(U.V.), and first ascertained the child support obligations of the natural parents, Ms. McFayden and Mr. Faint, dependent on their annual income. She found Ms. McFayden’s income to be $19,233 requiring her to pay $172 a month towards Kaiden’s support, and imputed Mr. Faint’s income to be $34,500 requiring him to have a presumed support obligation of $322 a month. The total support from the biological parents amounted to $494 a month.
[38] The trial judge then applied the approach found in H.(U.V.) at paras. 40-41 to Mr. Godin’s child support obligation based on his 2010 income of $103,711, which under the Guidelines would have required him to pay child support of $936 a month.
[39] The trial judge accepted that given Mr. Godin’s income compared to that of Mr. Faint, Kaiden’s standard of living decreased when he moved in with Mr. Faint. The trial judge also accepted the evidence of Mr. Faint and concluded that given Kaiden’s age and activity level his expenses for housing, utilities, household and transportations expenses amounted to $11,202 annually, plus $2,700 for his clothing, school fees, entertainment and gifts, for a total of $13,902 annually, or $1,158.50 a month.
[40] After deducting the child support obligation of $494 a month payable by the biological parents, it left Mr. Faint with a shortfall of $664.50 a month. The trial judge, at para. 54 and 55 of her reasons, found it appropriate for Mr. Godin to “top up” this amount to provide Kaiden a “fair standard of support” and concluded that this would meet the other requirements and objectives of the Guidelines, noting that the amount took into account that Mr. Godin supports his daughter and that his child support obligation under the Guidelines would have been $936 a month. She concluded that his obligation under s. 5 of the Guidelines ought to be somewhat less than the Guideline amount.
[41] I referred earlier in these reasons to the grounds upon which the appellants advanced their submission that the trial judge erred in reaching her conclusions with respect to the quantum of child support payable by Mr. Godin. As I have noted, I am obliged to give significant deference to Judge Donegan’s findings and conclusions with respect to the child support order she has made. The applicable standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. I do not find a basis upon which to intervene, given the absence of material error, a serious misapprehension of the evidence, or an error in law by the trial judge.
[42] The trial judge heard the evidence and made findings of fact relating to the incomes of the parents, their expenses when applicable, their support obligations, and the credibility of the parties, particularly that of Mr. Faint. The trial judge also paid little attention to the evidence of Mr. Faint’s partner, Ms. Ernicos, a discretion which was hers to exercise in her capacity as trial judge. I am not prepared to interfere with these findings as they do not indicate that she seriously misapprehended the evidence or made an error in law.
[43] I do feel obligated to comment on Ms. McFayden’s submission that the trial judge erred in finding that she owed arrears of $1,181 to Mr. Faint, the amount which had accrued in a three-month period in 2009. Ms. McFayden submitted that two items should not have been included in her income and that the correct sum of the arrears should have been $1,121, not $1,181, a difference of just $60. I appreciate that $60 is $60 and is of some significance to Ms. McFayden. I do not want to trivialize that amount, however, given the expense which the appellants have undoubtedly incurred in defending their position at the original hearing and on appeal, it is difficult to comprehend why such effort was expended in pursuit of $60. In any event, I am not satisfied that an error in the arrears payable was made by the trial judge.
[44] In conclusion, I dismiss the appeal having found that the trial judge correctly determined that Mr. Godin, as Kaiden’s stepfather, had an obligation to pay child support to Mr. Faint for Kaiden and that the appropriate obligation amounted to $664.50 a month commencing September 1, 2011.
[45] The respondent, Jason Michael Faint, will have his costs at Scale B of Appendix B.
‘R.M. Blair J.”
BLAIR J.