Budden v Clappison, 2019 NSSC 98

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Budden v Clappison , 2019 NSSC 98 Date: 2019-03-11 Docket: 100002 Registry: Sydney, NS Between: Christopher Budden Applicant v. Melissa Clappison Respondent Library Heading Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: March 11, 2019 in Sydney, Nova Scotia Written Decision: March 25, 2019 Subject: Provisional Variation; adult child; termination of child support obligation

Summary: The Father of two children, ages 20 and 18, applied to vary child support and terminate his payment obligation. Both children lived in Saskatchewan with the mother, who had cut off contact with the father’s family. The mother reported to the Director of Maintenance Enforcement that the oldest child was no longer dependent in 2016. Termination date set for younger child. Father’s income had dropped, constituting a change of circumstances in addition to the ages of the children. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Budden v Clappison , 2019 NSSC 98 Date: 2018-03-11 Docket: 100002 Registry: Sydney, NS Between: Christopher Budden Applicant v. Melissa Clappison Respondent Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: March 11, 2019, in Sydney, Nova Scotia Written Release: March 25, 2019 Provisional Variation Counsel: Christopher Budden, Self Represented Melissa Clappison, Self Represented (not present)

By the Court: Facts [ 1 ] The parties are the parents of two adult children, S.M.B., age 20 and R.B., age 18. They signed an interspousal agreement in Saskatchewan in 2013, which was registered as an order of the Supreme Court of Nova Scotia on March 17, 2016. It has since been enforced by the Director of Maintenance Enforcement in Nova Scotia. [ 2 ] Mr. Budden applied to vary the order for child support on October 26, 2018. Because the parties reside in different provinces and Ms. Clappison did not attorn to this jurisdiction, the matter proceeded by way of a Provisional Hearing on March 11, 2019. [ 3 ] Mr.

Budden is a Red Seal pipe and steamfitter, as well as a Journeyman plumber. He worked on industrial shut-downs in western Canada until 2016, at which time he moved back to Cape Breton to pursue his own plumbing business. He was unsuccessful in establishing that business and filed for bankruptcy in January, 2019. He has since found work with a local plumbing company, where he’s been employed since February 2019. [ 4 ] Mr. Budden’s income dropped after he stopped working in western Canada. He operated his own business from April, 2016 to April, 2018.

His line 150 income for the past few years is as follows: Year Line 150 Income 2017 $524.82 2016 $49,709.05 2015 $127,697.00 [ 5 ] Mr. Budden expects to continue with his current employment, working 40 – 50 hours per week. He shut down his business in 2018 and now refers customers to his employer or other companies. He is still eligible for a travel card with the union to work out west, but doesn’t plan to go back. [ 6 ] Since the parties’ divorce, Mr. Budden has remarried, and his wife works as a bank teller.

She was an ironworker when they met in Saskatchewan, but when they moved back to Cape Breton she worked doing bookkeeping duties for their business, in which she was a 50% partner. [ 7 ] Mr. Budden has a home with a mortgage, a 2016 Chev Silverado, a pension through his union, and no savings. The value of any assets (which are not exempted under the Bankruptcy and Insolvency Act [R.S.C., 1985, c. B-3]) would be held by the Trustee in bankruptcy at this time. The values of his exempt assets and associated debt isn’t clear.

Issue #1 - Has there been a material change in circumstances sufficient to justify variation of the child support order? Issue #2 - What is the appropriate child support order if so? Issue #1 - Has there been a material change in circumstances sufficient to justify variation of the child support order? [ 8 ] I’m satisfied that two changes have occurred in Mr.

Budden’s circumstances since March, 2016: • He’s had significantly reduced income; • The older child S.M.B. was no longer a dependent child of the marriage as of July 6, 2016. [ 9 ] The question is whether these are material changes which justify variation of the child support order. Having considered all of the evidence, I find that they are. [ 10 ] Mr. Budden’s decreased income is real. His efforts to build his own business were genuine. When it became apparent that his business was failing, he sought alternative work, and found employment in his field.

His paystubs show that he’s earning $572.00 with a year-to-date total of $2,995.20. This results in a projected annual income of $38,937.60 if he works similar hours for the rest of 2019. [ 11 ] Mr. Budden says that he was hindered in his efforts to find employment by enforcement measures taken by the Nova Scotia Director of Maintenance Enforcement. His driver’s license was suspended for unpaid arrears. Those arrears are based on an income of $95,000 per annum, so although M.E.P. was only enforcing the table amount for one child after June, 2016, Mr. Budden’s arrears may still be overstated. [ 12 ] I found Mr.

Budden to be a credible witness. He was candid. He produced the financial information he was required to produce. He acknowledged that he may have been mistaken in assuming that R.B. graduated last year, and conceded that R.B. might still be eligible for support at least until June, 2019. [ 13 ] I reviewed his income tax returns, as well as his statements of business activity with Mr. Budden. He did not pay salary to a non-arms length party, and his expenses were not unreasonable.

Indeed, he didn’t even deduct some commonly deducted expenses in his first year of business. [ 14 ] I accept his explanation for the business’ failure. Some people are talented in their trade, but make poor entrepreneurs. This seems to be the case for Mr. Budden, who testified that many people simply did not pay for the work he completed. He carried the costs

for some supplies for which he was not paid. His bad debts were too much for him to carry over a third year, hence the BIA filing. [ 15 ] Mr. Budden testified that his wife ensured that remittances and H.S.T. were paid, so the government has no lien on his assets. And presumably any other business debts were included in the BIA proceeding. As this is his second bankruptcy, it’s unclear whether he’ll be wholly or only partially relieved of liability for those debts. Either way, he will leave the BIA proceedings in a better financial position. [ 16 ] Mr.

Budden maintains his travel card with the local union, qualifying him to return to work out west if work becomes available. However, he and his wife are from this area, so he intends to stay in Cape Breton and work for his current employer in the foreseeable future. [ 17 ] There’s also the change of circumstances associated with S.M.B.’s independence. Mr. Budden testified that Maintenance Enforcement allowed him to reduce his child support payment after June, 2016 because Ms.

Clappison advised the Director of M.E.P. that S.M.B. was no longer dependent. [ 18 ] At the time that he filed his Variation Application, Mr. Budden understood that his younger child had graduated from high school in June, 2018. He based this on social media posts he’d seen, not direct information from R.B. or Ms. Clappison. He’s since discovered that his son isn’t expected to graduate until June, 2019. [ 19 ] Mr. Budden last called R.B. in early 2018, but says he received no response. He testified that Ms. Clappison cut off contact between the children and his parents in late 2015.

He has little access to information about the children. [ 20 ] Mr. Budden conceded his responsibility to pay child support until at least June, 2019 for R.B., when R.B. is expected to graduate from high school. He has no knowledge of his son’s plans after graduation. Disposition: [ 21 ] The onus is on Mr. Budden. I find he’s met that onus. I find that R.B. will cease being a dependent child effective September 28, 2019 when he turns 19 years of age. He will have his high school diploma by then.

There’s no evidence that he plans to pursue post- secondary studies, or that he’s unable to withdraw from his parents’ care for other reasons. [ 22 ] In addition, there is evidence that R.B. has chosen to have no contact with his father (or abides by his mother’s wishes for him to have no contact). An adult child may choose to have no contact with a parent, but they do so at the risk of future support. This factor forms part of my decision to terminate child support for R.B. on his 19 th birthday. Issue #2 - What is the appropriate child support order if so? [ 23 ] Mr. Budden does not seek reimbursement from Ms.

Clappison if he’s overpaid child support. However, he does ask that collection of ongoing support and enforcement of arrears be suspended, pending this court’s decision and confirmation (or variation) of my decision in Saskatchewan. He seeks termination of all support after June 2019. [ 24 ] Having considered all of the evidence before me, I find there has been a material change in circumstances which justifies variation of the child support order. The order will be varied as follows: 1.

Child support for S.M.B. will terminate effective July 6, 2016 and thereafter, effective August, 2016 child support for one child only will be payable; 2. Child support for the younger child R.B. will terminate effective September 28, 2019, with the last monthly payment owing in September, 2019. This will give R.B. time to seek employment after graduation and coincides with his 19 th birthday; 3. The Director of Maintenance Enforcement for the Province of Nova Scotia shall calculate any arrears owing, and adjust Mr. Budden’s account accordingly; 4.

In the event there is an overpayment, child support arrears will be set at zero and there shall be no further payments owing by either party; 5. In the event there are arrears owing by Mr. Budden, he will be entitled to pay those as follows: • If the arrears are less than $1,000, he shall pay in 12 equal monthly increments until the total arrears are paid in full. • In the event the arrears total falls between $1,000 - $2,500, Mr. Budden shall pay in monthly increments of $150 per month until the arrears are paid in full. • If the arrears exceed $2,500, Mr.

Budden shall pay the arrears in monthly increments of $250 per month until the arrears are paid in full. [ 25 ] As an ancillary order, I have directed that the Director of Maintenance Enforcement in Nova Scotia suspend enforcement of child support and any arrears accumulated under the order, pending review and confirmation (or variation) of my decision in Saskatchewan. MacLeod-Archer, J.