J.A.M. v. S.A.J., 2014 NSSC 2

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: J.A.M. v. S.A.J. , 2014 NSSC 2 Date: 2014-01-08 Docket: 1201-057546; SFHD-023209 Registry: Halifax Between: J.A.M. Petitioner v. S.A.J. Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: January 2, 2014

Summary: Mother applied to vary child support and to remove one child from the child support order. Father applied for finding of undue hardship and to vary custody to joint custody. Child support was varied. The couple’s older child remained a child of the marriage until his nineteenth birthday. The father’s applications were dismissed. Key words: Divorce Act , family, child support – application to vary, child of the marriage, child custody – joint, undue hardship Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 2(1), subsection 17(4), subsection 17(5) Federal Child Support Guidelines , SOR/97-175,

section 3,

section 8 ,

section 10 , subsection 14 (

a) THIS INFORMATION SHEET DOESN’T 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: J.A.M. v. S.A.J. , 2014 NSSC 2 Date: 2014-01-08 Docket: 1201-057546; SFHD - 023209 Registry: Halifax Between: J.A.M. Petitioner v. S.A.J. Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : January 2, 2014 Counsel: Brian F. Bailey for J.A.M. S.A.J. on his own By the Court: Introduction [ 1 ] This application relates to child support for D, who will turn nineteen in the next few weeks.

There is an additional request to vary the custodial arrangements for D’s younger brother, K. [ 2 ] For the past few years, D’s life has been every parent’s nightmare. D was being bullied at school. He was cutting himself and made multiple attempts to take his own life. He left his mother’s home when he was seventeen. He left high school without graduating. He’s received mental health services at the IWK Health Centre and, until two or three months ago, he was seeing a psychiatrist. [ 3 ] Mr. J, D’s father, says that D is “good right now.

He’s on a good path.” D lives with his father and is working full-time hours at Walmart. He needs two credits to complete high school and talks about completing these courses online so he can graduate. While life has improved for D, there are legal matters between his parents which must be resolved. Litigation history

[ 4 ] In July 2013, D’s mother, Ms. M, applied to vary the table amount of child support being paid by Mr. J, pursuant to their 2003 Corollary Relief Judgment. Ms. M asks that I vary the Corollary Relief Judgment as of July 2013. [ 5 ] The parents attended conciliation in August 2013. At that point, Ms. M wanted the Corollary Relief Judgment varied so that Mr. J would no longer pay child support for D. She said she wanted K’s child support adjusted to reflect Mr.

J’s current income. [ 6 ] No agreement was identified at conciliation, so a conference was scheduled and the parents appeared before Justice Legere-Sers in October 2013. From the conciliation record and the conference memorandum, it’s apparent that Mr. J wanted to make an undue hardship claim with regard to the child support he should pay for K, and he wanted to have joint custody of K. [ 7 ] Justice Legere-Sers directed Mr. J to meet with a conciliator who could help him file the appropriate applications. She also set deadlines for the parents to file their affidavits and financial materials.

She recommended that both parties seek legal advice. Ultimately, Ms. M hired a lawyer. Mr. J did not. [ 8 ] Mr. J tried to file the materials he was directed to file. His efforts weren’t perfect, but Ms. M has not argued that I should dismiss his requests because he failed to file the proper documents or because the documents he filed weren’t in the proper form. Mr. J also neglected to file an affidavit in support of his applications: Ms. M consented to his providing oral testimony at the hearing.

Child support Variation threshold [ 9 ] Before I may vary a child support order I must be satisfied that there’s been a change in circumstances “as provided for in the applicable guidelines” since the most recent child support order was granted, according to subsection 17(4) of the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3. The applicable guidelines are the Federal Child Support Guidelines , SOR 97/175.

Section 14 of the Guidelines lists various changes in circumstances that allow for a variation of child support. Where child support is determined based on the tables, as it is here, the circumstances that allow me to vary child support include a change in the payor’s income, a change in the number of children to be supported and a change in the payor’s province of residence. [ 10 ] When the Corollary Relief Judgment was granted, D lived with his mother, and Mr. J’s annual income was $24,000.00. [ 11 ] D has not lived with Ms. M since the summer of 2012 which means that the number of children for whom Mr.

J should be paying child support has changed. As well, Mr. J’s income has increased to almost $46,000.00 since the Corollary Relief Judgment was granted. These are both changes that allow me to vary Mr. J’s child support payments. What child support should be paid? [ 12 ] There are two issues that I must resolve to determine child support. First, Ms. M says that D is not a child of the marriage, so child support for K should be determined according to

section 3 of the Guidelines . If D is a child of the marriage, then child support would be determined according to

section 8 . Second, Mr. J asks that I award an amount of child support that is different from the amount that would be determined under

section 3 or

section 8 of the Guidelines on the basis that he would suffer undue hardship. Is D a child of the marriage? [ 13 ] D is under the age of majority. He will not turn nineteen for another week or so. D moved from his mother’s home to his father’s home in July 2012 when he was seventeen. He has continued to live with his father for the most part since 2012. [ 14 ] Ms. M says that during the week of September 25, 2012, Mr. J went to D’s high school to have D’s address information changed. This suggests that D was still attending school while he lived with his father. Mr.

J says that D last attended school in February 2013. D went to school periodically. D would call his father and say “I can’t do it” when he was at school. Mr. J would give D permission to leave, and he and D would talk about it when Mr. J got home. D was taking

part in programming at the IWK Health Centre and was being encouraged to attend school through that programming. D was eighteen when he left school. [ 15 ] According to Ms. M, Mr. J called her in January 2013 to obtain the name of D’s doctor. Initially, Mr. J told Ms. M it was “none of her business” why he wanted this information. However, within a few minutes of this phone call, Mr. J called her back and told her that D was “cutting himself again and needed to talk to someone”. [ 16 ] Ms. M says that D has attempted suicide “approximately five times”.

She says that in June 2013 D “took another drug overdose in an attempt to commit suicide.” Following his release from the hospital, D returned to his mother’s home for brief period. D stayed at the home of his father’s ex-wife for approximately one month before returning to his father’s home where he remains. [ 17 ] In an affidavit filed in November 2013, Ms. M said D was registered with two temporary employment agencies, and that he worked at various part-time jobs. Last month D found work at Walmart.

He is considered a part-time employee but he currently works full-time hours, earning $11.50 per hour. [ 18 ] Subsection 2(1) of the Divorce Act says that a child of the marriage is a child of two former spouses who, at the material time, is under the age of majority and has not withdrawn from their charge. Until his nineteenth birthday later this month, D remains under the age of majority. According to the definition of “child of the marriage”, because he is under the age of majority he remains a child of the marriage unless he has withdrawn from the charge of his parents. [ 19 ] The burden is on Ms.

M to prove on a balance of probabilities that D has withdrawn from his parents’ charge.

[ 20 ] Ms. M has not discharged this burden. While D left school at the end of February 2013, he has continued to live with his father, for the most part, and depend on him for support. D has not withdrawn from his father’s charge. He has relied on his father for financial and emotional support.

Accordingly, until he reaches the age of majority, D is a child of the marriage. [ 21 ] Once D reaches the age of nineteen, he remains a child of the marriage only if he is “unable, by reason of illness, disability or other cause, to withdraw from [his parents’] charge or to obtain the necessaries of life”, according to subsection 2(1) of the Divorce Act . Last month D found stable employment. He is a part-time employee, but is currently working full time-hours. At his current level of employment and rate of pay, D can meet his own needs. He is able to obtain the necessaries of life.

Neither parent said that D’s health problems have been fully resolved. He may still require considerable emotional support from his parents. However, as Mr. J says, D is “good right now. He’s on a good path.” On this basis, I determine that as of D’s nineteenth birthday he will cease to be a child of the marriage. [ 22 ] This conclusion means that I will calculate K’s child support according to

section 8 of the Guidelines for the period from July 2013 until January 2014. Undue hardship [ 23 ] Undue hardship claims are governed by

section 10 of the Guidelines. That

section allows that I may award an amount of child support that is different from the amount calculated by the Guidelines where I find that the person making the request would otherwise suffer undue hardship. [ 24 ] Mr. J claims three circumstances are the basis for undue hardship: he is responsible for an unusually high level of debt; he has a legal duty to support someone (other than K); and he has a legal duty to support an adult person who is unable by reason of illness, disability or other cause, to obtain the necessaries of life. I will deal with each in turn. [ 25 ] First, there is Mr. J’s debt.

This is comprised of a car loan. He explains that he declared bankruptcy in 2001, and he must pay a high rate of interest on his car loan. The loan document shows that his vehicle cost $14,299.12, including taxes, warranty, administration fee and the cost of registering the loan. The annual interest rate on the loan is 27.50% and the cost of borrowing is $14,003.37. [ 26 ] Mr. J lives in downtown Dartmouth and works in Shearwater. He uses his car to transport his sons for access visits every weekend. His son, S, lives in Sackville and K lives in Cole Harbour. S has heart problems, and Mr.

J assumes some responsibility for taking S to medical appointments. [ 27 ] Mr. J’s monthly payment on his car loan is $420.33. His annual income is $45,917.88, after the payment of his union dues. Approximately eleven percent of his gross earnings are spent servicing this car loan. I do not find that the amount of this loan is unusually high. The interest rate is high, but the total amount being paid is not. Mr. J has only one other debt, which is in the amount of $1,500.00. Overall, his debt level is not unusually high. [ 28 ] Second, there is Mr. J’s obligation to support a child other than K. Mr.

J has three sons: D lives with him, K lives with Ms. M and S lives with Mr. J’s former partner. A March 2004 order obliges Mr. J to pay $235.00 per month for S. This order states Mr. J’s income to be $27,000.00. This level of support is not onerous. [ 29 ] Third, Mr. J says he has a legal duty to support an adult who is unable to support himself. This adult is D. I have already decided, at paragraph 21, that D is able to obtain the necessaries of life so this is not a basis upon which I can find undue hardship. [ 30 ] Even if I combine these three circumstances together, Mr.

J has not satisfied me that he would suffer undue hardship if I ordered him to pay child support for K pursuant to the Guidelines . Mr. J is not required to make a contribution to any special or extraordinary expenses for his two younger sons. His oldest son earns an income and is able to contribute to some of his own expenses. Mr. J says that he helps D with spending money. Even if D worked only thirty-five hours each week, D would earn more than $20,000.00 annually. [ 31 ] I dismiss Mr.

J’s undue hardship application. [ 32 ] Having determined that D is a child of the marriage until his next birthday and having dismissed Mr. J’s undue hardship application, I can now calculate the child support Mr. J should pay for K. [ 33 ] I’ve determined that until his birthday later this month, D is a child of the marriage. This means that from July 2013 until this month, child support for K must be calculated on the basis of

section 8 of the Guidelines .

Section 8 requires that where each parent has custody of one or more children, the amount of child support is the difference between the amounts that each spouse would otherwise pay if required to pay child support to the other spouse. [ 34 ] Mr. J’s annual income is $45,917.88, after the payment of his union dues. Based on the simplified tables, he would pay monthly child support of $384.00. [ 35 ] According to Ms. M’s Statement of Income, her annual income is $50,580.12.

This amount is less than the amount disclosed on her 2011 and 2012 Notices of Assesment and only slightly greater than the amount shown on her 2010 Notice. Ms. M’s 2011 Notice of Assessment disclosed total income of $54,655.00, and her 2012 Notice of Assessment showed her total income to be $55,733.00. [ 36 ] Ms. M provided me with paystubs for the pay periods ending October 12, 2013, October 26, 2013 and November 9, 2013. According to the last of these, her year-to-date earnings were $50,790.51, excluding taxable benefits and including a bonus of $6,622.91

which appears to be a lump sum payment. To determine Ms. M’s 2013 income, I am extrapolating her year-to-date income from all sources (except the bonus) shown on her November 9 paystub, to the end of 2013 to account for the additional three pay periods left in the year. Once I do this, her earnings total $49,928.59. To this, I add the lump sum bonus payment of $6,622.91 with the result that I find Ms. M’s annual income to be $56,551.50. [ 37 ] Based on the simplified tables and an annual income of $56,551.50, Ms. M would pay Mr.

J child support of $477.00 for D. [ 38 ] The difference between the amount of child support Mr. J should pay to Ms. M for K ($384.00) and the amount Ms. M should pay to Mr. J for D ($477.00) is $93.00. This is the amount that Ms. M owes Mr. J for each month from July 2013 to and including January, 2014. In total, she owes $651.00 to Mr. J. I order her to pay Mr. J this amount by January 31, 2014. [ 39 ] Starting on February 1, 2014, Mr. J will pay Ms. M monthly child support of $384.00 for K.

Custody Variation threshold [ 40 ] Before I may vary a custody order, subsection 17(5) of the Divorce Act requires that I be satisfied that there’s been a change in the condition, means, needs or other circumstances of the child since the last order was made. [ 41 ] Mr. J asks that I change K’s custody: so he has the burden of proving that there’s been a change of the sort described in subsection 17(5) . It’s important to focus on K’s circumstances in 2003 and at the current time because all decisions relating to a child’s custody must be based on the child’s best interests.

Focusing on K’s past and current circumstances enables me to decide if the existing order is still in K’s best interests or if some other order would be in his best interests. [ 42 ] The Corollary Relief Judgment placed both boys in their mother’s sole custody. [ 43 ] Mr. J has offered no information about the circumstances which existed in 2003 when the boys were placed in their mother’s sole custody.

He has offered no evidence about the current circumstances to show that there has been a change in K’s condition, means, needs or other circumstances since 2003. [ 44 ] Without this evidence, I have no basis to conclude that the 2003 sole custody order is no longer in K’s best interests and no authority to change the order. [ 45 ] I dismiss Mr. J’s request for joint custody of K. [ 46 ] Having made this decision, I want to be clear that Ms. M’s status as the sole custodial parent does not mean that she should not share information about K’s welfare with Mr. J. In the past, Mr.

J has either not shared information about D with Ms. M or he has shared it grudgingly. From their experience with D, both parents know the heartache of worrying about their son. Each should share information with the other about the son who lives in his or her home. This will ensure that both parents are able to deal with their sons from the position of knowledge and that their sons know that they have the support of both parents. Conclusion [ 47 ] From July 2013 to and including January, 2014, Ms. M shall pay $93.00 each month in child support to Mr. J. In total, she owes Mr. J $651.00.

I order her to pay $651.00 to Mr. J by January 31, 2014. [ 48 ] Starting on February 1, 2014, Mr. J will pay Ms. M child support of $384 each month for K. [ 49 ] I dismiss Mr. J’s request for joint custody of K. I do order that Mr. J shall be entitled to request and obtain information from K’s educators and health-care providers about K. Ms. M is required to provide Mr. J with the names and contact information for K’s teachers and health-care providers. If this information changes, Ms. M must provide the new information to Mr.

J within two weeks of the change occurring. [ 50 ] I repeat the provision contained in the corollary relief judgment that Mr. J must provide a copy of his income tax return to Ms. M annually, before June 1 of each year. It is not sufficient for Mr. J to tell Ms. M what his income is: he must provide a copy of his complete tax return, along with his T4 slip and any other attachments that would typically be sent to the Canada Revenue Agency if the return was filed by mail. [ 51 ] There shall be no costs to either party. [ 52 ] Ms. M’s counsel will prepare the orders.

I suggest that the order authorizing K’s health-care providers and educators to provide information directly to Mr. J be a separate order so the details of the parents’ support obligations remain private. _____________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia