Branton v. LeFrense, 2012 NSSC 206

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Branton v. LeFrense, 2012 NSSC 206 Date: 20120528 Docket: 1201-052025 Registry: Halifax Between: Rodney Absolom Branton Applicant v. Aretena Audrey LeFrense Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: April 26, 2012 in Halifax, Nova Scotia Decision: April 26, 2012 ( Orally ) Written Release: May 28, 2012 Counsel: Rodney Branton, Self-Represented Aretena LeFrense, Not Present By the Court:

[ 1 ] For the purposes of the arrears, I am prepared to issue an order based on the affidavit evidence. I request a transcript be provided immediately and the matter forwarded to the Alberta Court to deal with the arrears that are being enforced by the Maintenance Enforcement Program. [ 2 ] I would issue an interim suspension of collection on the arrears, given the evidence that is before the Court.

I'd ask that you advise Maintenance Enforcement and draft an order confirming the suspension of collection on the arrears based on the circumstances that have been presented to the Court. [ 3 ] I'm doing that because I'm well aware that these provisional proceedings take a great deal of time. [ 4 ] There was evidence before me that would cause me to conclude that no arrears ought to have accumulated or be enforced between April of 2010 and April of 2011. [ 5 ] The parties were married and by way of separation agreement dated the 23 rd of December 2008, all matters between them were resolved.

The child, at that time, was living in Dartmouth with the mother as was the father. [ 6 ] The father's income, together with his benefits in 2008 in accordance with the order, reflect $80,292.00 which is inclusive of his base pay plus his then taxable allowances plus his DVA pension as a result of post-traumatic stress disorder. [ 7 ] The respondent in this proceeding, Ms. Branton, now called LeFrense, earned $44,000.00 at that time.

She had Grade 12 plus level one or two allowing her to be an inspector and to inspect bridges and other structures for proper welding and maintenance. [ 8 ] The applicant in this proceeding has no knowledge of her current employment or apparently her whereabouts or phone number. [ 9 ] The mother of the child, the respondent herein, left Nova Scotia shortly after the 2008 order, returned to Newfoundland and never returned to Nova Scotia contrary to the assumptions contained in the agreement.

In April 2010 she left the child with a babysitter in in Port Aux Basques, Newfoundland. [ 10 ] Then the mother went to Calgary without the child. [ 11 ] The child contacted the father in Dartmouth. After considerable expense, including what he indicates is $8,000.00 in legal fees, he was able to retrieve his child from the babysitter and bring his child to live with him in Nova Scotia for a period between April 2010 and April 2011. [ 12 ] Mr. Branton's affidavit is supplemented by his viva voce testimony.

He describes and confirms that the mother paid no child support to him during that period of time the child was with him. [ 13 ] He provides a letter from the school advising that the child was indeed in the school at Seaside Elementary in Eastern Passage, Nova Scotia from March of 2010 to April 8, 2011. [ 14 ] The mother appeared at the school, without notifying the father, and surreptitiously removed the child under the pretense that she was there visiting the child. In fact she left and returned with the child to Alberta.

The father has not seen the child since that period of time. [ 15 ] The mother was able to use the original 2008 and 2010 court order to convince the RCMP that she was the rightful custodial parent of the child.

[ 16 ] The mother has then sought enforcement of the Corollary Relief Judgement in accordance for the period of time that the child was with the father and for the current period of time. [ 17 ] The father has been contacted by Maintenance Enforcement and they are in the process of garnishing his wages. [ 18 ] I am satisfied, based on the evidence before me, that the child lived with the father from April of 2010 to April of 2011. [ 19 ] For the purposes of future proceedings and determination of child support, I will not waive the father's right to seek child support for that year period as it may possibly be used as a set-off in the event the mother seeks child support and that would be one factor to be considered in the assessment of ongoing child support. [ 20 ] However, I will suspend enforcement of any arrears that have accrued as a result of an

interpretation of the Corollary Relief Judgement that the child was with the mother when, in fact, she was with the father. Therefore, any arrears which Maintenance Enforcement seek to enforce as a result of the April 12, 2010 corollary relief judgement, are suspended. [ 21 ] A moratorium is placed on enforcement so that this matter can go as quickly as possible to the Alberta Court and be resolved by way of a confirmation order. [ 22 ] With respect to assessing his current payments, I am unable to do so, although Mr.

Branton has reinstated his payments in accordance with the current Corollary Relief Judgement. [ 23 ] I note that for purposes of this judgement, the base amount was based on a salary of $80,292.00 for a payment of $689.00. There's no further any need for

Section 7 expenses as set out in the Corollary Relief Judgement or the separation agreement attached. [ 24 ] There shall be no enforcement relating to child care expenses as the evidence before me indicates that while the corollary relief judgement reflected child care expenses, from April 12, 2010 the father testified that shortly after that the mother withdrew the child from child care and no further child care expenses were paid. [ 25 ] My understanding from the father is that they ’ re not being enforced and in accordance with the clause, they are only to be enforced as long as such expenses are incurred for the child of the marriage. [ 26 ] Therefore, should there be any request for retroactive enforcement of child care costs, the mother shall provide receipts from 2010 forward or for any period of time for which she is seeking child care costs. [ 27 ] I am asking the father to consult with Mr.

Stordy,

summary counsel at Devonshire, and I am directing that he provide complete particulars of his current income situation in order to respond to any application to adjust the child support. [ 28 ] I further order, for the confirming court, the respondent to provide to the confirming court her last three years Income Tax Returns together with her current income from January 1, 2012 to date with confirmation of any and all child care expenses should there be any and with confirmation of her address, her phone number, her whereabouts and the school in which the child is registered and confirmation that the child is, in fact, registered in that school and living with the mother. [ 29 ] I do that in order to address possible future expenses and to confirm the whereabouts of the child for the purposes of

determining the appropriate recipient of child support. Legere Sers, J.