MacPhail v Blackburn, 2014 ABQB 739

Court of Queen ’ s Bench of Alberta Citation: MacPhail v Blackburn, 2014 ABQB 739 Date: 20141205 Docket: FL03 44183 Registry: Edmonton Draft 8 Between: John Gregory MacPhail Plaintiff - and - Lenora Ann Blackburn Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Nature of the Application [ 1 ] Mr. MacPhail is applying for a variation of child support pursuant to the Nova Scotia Interjurisdictional Support Orders Act .

In particular, he seeks to terminate his obligation to pay child support for his daughter, Emily, as of August 5, 2011. He also seeks to clarify his ongoing child support obligation in respect of his two other daughters, Melanie and Natalie. Background [ 2 ] Mr. MacPhail lives in Dartmouth, Nova Scotia and Ms. Blackburn lives in Edmonton. They have three children – Emily who is 22, Melanie who is 19 and Natalie who is 16.

[ 3 ] There have been three Orders issued by the Nova Scotia Supreme Court dealing with the issue of child support. The first Order, dated June 4, 2002 (the “June Order”), has not been provided to me; although I understand it required Mr. MacPhail to pay $380.00 per month based on an annual income of $19,900.00. On October 21, 2002, a further Order was issued, requiring Mr. MacPhail to pay the child support in a different manner. Rather than paying monthly instalments of $380.00 per month in accordance with the June Order, Mr.

MacPhail was to pay the same annual amount but by way of $570.00 per month for eight specified months of the year. On August 22, 2006, the parties obtained a Consent Variation Order pursuant to which Mr. MacPhail was to pay $557.00 per month commencing July 2006, based on a projected 2006 income of $27, 950.00. [ 4 ] When Ms. Blackburn moved to Alberta in 2009, Emily remained in Nova Scotia to complete her education. Initially she lived with members of Ms. Blackburn’s family, moved into campus housing between September of 2011 and September of 2012, and then moved in with Mr. MacPhail.

Melanie and Natalie moved with their mother to Alberta and have remained living with her since that time. Melanie finished high school in June of this year and started attending the University of Alberta at the beginning of September. Natalie is in high school. Position of the Parties Mr. MacPhail’s Position [ 5 ] Mr. MacPhail submits that he ought to have ceased making child support payments for Emily on August 5, 2011, the date she reached the Nova Scotia age of majority.

Therefore, he requests a return of any payments made in relation to her since August 5, 2011. [ 6 ] Melanie reached the age of majority on October 29, 2013. He therefore requests that his child support payments for her be terminated effective the earlier the date she completes her schooling or leaves her mother’s residence. Ms. Blackburn’s Position [ 7 ] Ms. Blackburn is not opposed to the termination of support payments for Emily but disagrees on the date on which such payments ought to have terminated. She submits that she continued to support Emily while she resided with her uncle in Nova Scotia following Ms.

Blackburn’s move to Alberta. She also continued to support Emily while she was residing in student housing. She agrees that Emily began living with her father in September of 2012 and that she ceased providing funds for Emily’s living expenses at that time. [ 8 ] She submits that Mr. MacPhail ought to continue paying child support for Melanie and Natalie while they remain in full-time attendance at either high school or university. She does not seek any contribution toward Melanie’s tuition and books because Melanie has funded those costs through student loans. Therefore, she takes the position that Mr.

MacPhail ought to pay

section 3 child support for Melanie and Natalie. Issues [ 9 ] The issues that arise from the circumstances of this case are: 1. Has there been a change in circumstance since the 2006 Order which would justify a variation of that Order? 2. If so, what should the variation be and, in particular, from what date ought the variation to occur? 3. To the extent that Mr. MacPhail’s child support obligation continues, what should trigger a termination of that support? 4. Is there sufficient evidence before me with respect to Mr.

MacPhail’s income to permit, if appropriate, a recalculation of his retroactive and ongoing child support obligations? Analysis 1. Has there been a change in circumstance since the 2006 Order which would justify a variation of that Order? [ 10 ] I accept Ms. Blackburn’s evidence that she continued to support Emily while Emily resided with her uncle and while she was resident in student housing after Ms. Blackburn’s move to Edmonton. However, a change in circumstance did occur in September of 2012, when Emily moved in with her father and began receiving his support directly. 2.

If so, what should the variation be and, in particular, from

what date ought the variation to occur? [ 11 ] Mr. MacPhail should not have continued paying child support for Emily beginning with the October 1, 2012 payment. From that date on, he ought to have been paying for only Melanie and Natalie. 3. To the extent that Mr. MacPhail’s child support obligation continues, what should trigger a termination of that support? [ 12 ] Melanie and Natalie remain children of the marriage as both are in full-time attendance, either in high school or university. Therefore, Mr.

MacPhail’s obligation continues in relation to them and will continue while they remain in such full-time attendance. 4. Is there sufficient evidence before me with respect to Mr. MacPhail’s income to permit, if appropriate, a recalculation of his retroactive and ongoing child support obligations? [ 13 ] The 2006 Order required Mr. MacPhail to provide Ms. Blackburn with copies of his Income Tax Returns and Notices of Assessment every year on or before June 1. He did not do so. I reject his excuse that Ms. Blackburn made it impossible for him to do so, because she would not provide him with her residence address.

It was clear from the evidence that there were other alternatives in providing that information. Furthermore, I am satisfied that Mr. MacPhail was aware that his child support obligation was determined by his income. He could have advised the Nova Scotia Maintenance Enforcement Program of his increased income and sought their advice on how to have his payments adjusted accordingly, but did not do so.

In that regard, I note that he testified that he contacted the Maintenance Enforcement Program to seek their advice on his proposed termination of payments pending this application and that he made them aware of the reason why he ceased making payments after making a partial payment in May. [ 14 ] Because of Mr. MacPhail’s failure to provide his income information, the hearing of this matter was adjourned pending receipt of copies of his Tax Returns and Notices of Assessment for 2011, 2012 and 2013.

That information was provided after the hearing and confirmed that his line 150 income was $30,446.00 in 2011, $35,455.00 in 2012, and $36,068.00 in 2013. Therefore, his child support obligations ought to be recalculated using these incomes. However, Ms. Blackburn does not have an application before me in relation to a variation for the period prior to the change in circumstance resulting from Emily’s move to her father’s residence. The only application before me is Mr.

MacPhail’s application to terminate his support in relation to Emily. [ 15 ] Therefore, the recalculation that can be made within the confines of this application is a readjustment of Mr. MacPhail’s child support obligation from October 1, 2012. From that date onward, his child support obligation should be for two children. It should be based, for the balance of 2012, on an annual income of $35,455.00 and, for the calendar year 2013, on an annual income of $36,068.00. While it appears that Mr.

MacPhail underpaid in 2011 and in 2012 up to October 1, that matter is not capable of being addressed by me, given the nature of the application filed by Mr. MacPhail. [ 16 ] Mr. MacPhail’s obligation for 2014 should be for two children, based on his 2013 income pending receipt of confirmation of his 2014 income. In that regard, given Mr. MacPhail’s history of failing to provide his information, should Mr.

MacPhail again fail to provide a copy of his 2014 Tax Return and Notice of Assessment by June 1 of 2015, since his income has been increasing over the last three years, a 20% increase in his income will be imputed to him and his payments adjusted accordingly until he provides the required documentation. [ 17 ] For her part, Ms. Blackburn is to provide Mr.

MacPhail with confirmation of the enrollment of Natalie and Melanie in high school or university, as the case may be, by October 1 of each school or university year in which they are enrolled, as well as a copy of the transcript of their marks confirming their completion of the year by no later than August 1 of each year. [ 18 ] For the purposes of exchanging this information, the parties are to use the addresses provided at the hearing of this matter. In the case of Mr. MacPhail, the address is 39 Inglewood Crescent, Dartmouth, Nova Scotia, B2W 5W4. In the case of Ms.

Blackburn, the address is l.a.blackburn@hotmail.com. If either party wishes to change their address for service of documents, they are to provide written notice of the change to the last address provided for the other party. Conclusion [ 19 ] Subject to my comments in paragraph [24], Mr. MacPhail’s child support obligation is to be recalculated from October 1, 2012 onwards. His obligation shall be in respect of two children, calculated from October 1, 2012 to December 31, 2012, on an annual income of $35, 455.00.

Using the Guideline Tables applicable to payors resident in Nova Scotia in 2012, his monthly payment ought to have been $511.00. His obligation for 2013, also in respect of two children, shall be recalculated based on an annual income of $36, 068.00. Using the Guideline Tables for 2013, his monthly payment ought to have been $519.00. Until his 2014 income is known or an increase is imputed pursuant to paragraph [16], his child support obligation, also for two children, shall be calculated based on an estimated 2014 income of $36,068.00.

Using the same Guideline Tables for 2014, his monthly payment would have been $519.00. [ 20 ] Mr. MacPhail is to provide the financial disclosure specified in paragraph [16] above, failing which a 20% increase will be imputed to him until the required documentation is provided. This will be in addition to any other sanctions which may be imposed by virtue of his failure to comply with this Order. [ 21 ] Ms. Blackburn is to provide the confirmation of enrollment and transcript of marks contemplated in paragraph [17] above, failing which Mr.

MacPhail’s child support obligation will be suspended until such documentation has been provided.

[ 22 ] Provision of the documentation required to be provided by Mr. MacPhail and Ms. Blackburn shall be made to Mr. MacPhail by regular mail to the address stipulated in paragraph [18] and to Ms. Blackburn via email to the address stipulated in that same paragraph, unless and until notice of a change of address is provided to the other party. [ 23 ] Once Mr. MacPhail’s child support obligation has been recalculated from and after October 1, 2012, he shall receive credit, against such recalculated amount, for any payments made toward his obligation for such time period. If, upon such recalculation, Mr.

MacPhail owes any arrears, such arrears are to be paid within 30 days. If, upon such recalculation, Mr. MacPhail has a credit for an overpayment, such credit shall be used to satisfy his ongoing child support obligation until it has been used in full, at which time Mr. MacPhail shall begin making payments toward his ongoing support. [ 24 ] To be clear, this Decision relates only to the application that was before me and is without prejudice to any other applications which may be contemplated by the parties, including applications referred to during the course of this application.

Nothing in these Reasons for Judgment should be construed as an indication of the likely success or failure of any such applications. Heard on the 24 th day of September, 2014, with supplemental written materials received on October 3 and 21, 2014. Dated at the City of Edmonton, Alberta this 4 rd day of December, 2014. D.L. Shelley J.C.Q.B.A. Appearances: John MacPhail Self-represented (appearing via telephone) Lenora Blackburn Self-represented (appearing in person) Elizabeth Berg Counsel, Family Law Information Centre Appearing as a Friend of the Court