Ruling finds mistake in amount stated in summary at end of decision and in corollary relief order
The New Brunswick Court of Appeal partly granted an appeal after finding that a trial judge correctly set the monthly child support at $585 but erroneously stated that amount as $545 at the end of the judgment.
In C.B. v. L.B. (N.), 2025 NBCA 64, the parties had a child born in 2015, married in June 2016, and separated in September 2018. After their separation, the parties shared parenting time and decision-making responsibilities, and the appellant father paid $400 in monthly child support.
In May 2023, the respondent mother filed a petition seeking a divorce, child support, shared parenting time and decision-making responsibility, and contributions for special expenses, including childcare.
The trial judge issued an oral decision in October 2024 and a divorce judgment and corollary relief order in November 2024. On appeal, the father alleged that the judge showed bias, made errors in determining the child support amount, and incorrectly considered childcare a special expense.
The Court of Appeal of New Brunswick partly allowed the appeal to increase the monthly child support amount to $585 from $545. However, the appeal court entirely dismissed the other appeal grounds.
First, the appeal court refused to find the trial judge biased. The appeal court saw nothing in the oral decision’s transcript that supported the bias allegation. The appeal court noted that the father made no request or motion seeking a recusal at trial and first raised this issue on appeal.
Second, the appeal court rejected the father’s argument that it should not include his non-taxable veteran pensions in his income when computing his child support obligations. The appeal court ruled that – under the broad policy objectives in the Divorce Act, 1985 – courts should consider tax-free income, including veteran pensions, when determining child support.
Third, citing s. 19(1)(h) of the Federal Child Support Guidelines, SOR/97-175, the appeal court found no error in the judge’s decision to gross up the non-taxable income. However, the appeal court saw an apparent mistake that it should correct in the judge’s decision.
The appeal court found that the judge reviewed each item of the father’s income and correctly set monthly child support at $585 per the guidelines. However, the appeal court held that the judge mistakenly stated the amount as $545 in her summary at the end of her decision and in her corollary relief order.
Fourth, the appeal court disagreed with the father’s argument that the judge failed to consider his unpaid income tax debts when computing monthly childcare.
The appeal court echoed the judge’s finding: “When a court is confronted with difficulty in determining a party’s income due to that party’s inadequate financial disclosure, the non-disclosing party must bear the consequences, and the court can reach a conclusion on income based on the best available evidence at trial.”
Lastly, the appeal court accepted that the judge committed errors by failing to articulate in her oral decision why she accepted the mother’s claim that childcare was a necessary expense and by failing to include that expense’s particulars in her order.
However, the appeal court noted that the parties agreed that they had argued and resolved the matter by deferring to the mother’s stance and that the father failed to offer trial transcripts that could shed light on this issue.
