This decision is an appeal from the Order of Justice Snowie, which mandated that the Respondent had no legal obligation to pay retroactive child support, and instead, ordered her to pay support of $45.00 monthly. The appellant in this case argued that the Order should be set aside and substituted for an Order requiring the Respondent to pay retroactive child support for the period from January 2007 to October 2007 (the period of time that the child lived with the appellant).
There are two children of the marriage in this case, one born on October 9, 1986, and the other born on June 25, 1990. The children resided with the Respondent from the 1996 separation until December 2005. During this time, the appellant paid to the Respondent $400.00 per month in child support. Around January 2007, one child began living with the appellant.
On February 5, 2008, the motions judge heard the appellant's motion to vary an earlier consent order that required neither party to pay support to the other (as the parties at this time were living together). Although the parties were unrepresented at this motion, neither of the parties had filed income tax assessments as required by the Rules and a previous court order, and the evidence presented to the judge was extremely limited, the judge still made an Order for no retroactive child support to be paid by the Respondent. The motion judge failed to consider in its decision the principles of retroactive support, and made other findings without giving any reasons. The matter was remitted for another motion. The Divisional Court felt that palpable and overriding errors had been made. Thus, the appeal was allowed, and the Order of the motions judge was set aside.