Melanie Jane Goulding Petitioner v. Kevin Roy Goulding Respondent ________________________________________________________________________ LIBRARY HEADING ________________________________________________________________________ Judge: The Honourable Justice Beryl A. MacDonald, 2012 NSSC 138

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Goulding v. Goulding, 2012 NSSC 138 Date: April 10, 2012 Docket: 1201-064392 (SFHD-069157) Registry: Halifax Between: Melanie Jane Goulding Petitioner v. Kevin Roy Goulding Respondent ________________________________________________________________________ LIBRARY HEADING ________________________________________________________________________ Judge: The Honourable Justice Beryl A. MacDonald Heard: March 8, 2012, in Halifax, Nova Scotia Decision: April 10, 2012 Keywords: Family, Provisional Variation, Child Support, Legislation: The Divorce Act , R.S., 1985, c.3 s.18

Summary: The Petitioner, a resident of Nova Scotia, served the Respondent in with a Divorce Petition in Calgary, Alberta. The Respondent filed an Answer with the court in Nova Scotia and by his actions attorned to the jurisdiction of the Nova Scotia court. The Petitioner later served the Respondent, in Alberta, with an Interim Application. The Respondent did not participate and an Interim Order requiring him to pay child and spousal support was granted.

The Respondent filed an application with the Court of Queen ’ s Bench Alberta requesting a Provisional Order varying child and spousal support and a stay of collection of “ arrears ” . A provisional order was granted. The jurisdiction of the Court of Queen ’ s Bench Alberta to grant the provisional order was questionable. Because the parties agreed to vary the Interim Order and continue with the proceeding in Nova Scotia, the provisional order was not confirmed. 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) Goulding v. Goulding, 2012 NSSC 138 Date: April 10, 2012 Docket: 1201-064392 (SFHD-069157) Registry: Halifax Between: Melanie Jane Goulding Petitioner v. Kevin Roy Goulding Respondent Judge: The Honourable Justice Beryl A. MacDonald Heard: March 8, 2012, in Halifax, Nova Scotia Counsel: Sheena McCarthy, counsel for the Petitioner Kevin Goulding, Self-Represented By the Court: [ 1 ] A Divorce Petition was issued in this proceeding on the 8 th day of March 2010. The Affidavit of Service indicates that Randy Milnes served Mr.

Goulding in Calgary, Alberta on May 6, 2010 with that Petition. In that Petition, Ms. Goulding requested the following relief: divorce, custody of the children of the marriage, access to Mr. Goulding, child support, spousal support, and costs. Pursuant to the Nova Scotia Matrimonial Property Act , R.S.N.S. 1989, c. 275 she also requested exclusive possession of the matrimonial home, a division of property and pension. [ 2 ] On June 16, 2010 an Answer was filed in this proceeding by Mr. Goulding and the relief he requested was custody, access, child support, spousal support and costs.

He also requested, pursuant to the Nova Scotia Matrimonial Property Act, exclusive possession of the matrimonial home, a division of property and a division of pensions.

[ 3 ] The file reveals that after service of the Petition for Divorce, Mr. Goulding communicated with court staff. By filing his Answer and engaging the Nova Scotia court, I find Mr. Goulding has accepted (attorned to) the jurisdiction of this court to make orders in respect to this divorce proceeding. He has however filed an application with the Alberta Court pursuant to the provisional variation provisions of the Divorce Act , R.S. , 1985, c.3.

He has done so in an attempt to change the terms of an Interim Order granted by this court issued on the 3 rd day of August 2010 following a hearing held on July 26, 2010. During that hearing the court heard oral evidence from Ms. Goulding and it reviewed an affidavit she filed in the proceeding. Ms. Goulding indicated that she understood Mr. Goulding was earning approximately $80,000 when he worked in Alberta. He had left to work in Alberta in 2007 because he wanted to earn more money than he had earned in Nova Scotia. When he was in Nova Scotia he earned approximately $40,000-$50,000 as a truck driver.

He would work for a period of time in Alberta and then return for short periods of time to Nova Scotia. Previous to her application, Ms. Goulding had access to the bank account into which Mr. Goulding ’ s pay was deposited. Mr. Goulding informed her he would not be returning to live in Nova Scotia and she did not know how long she would have access to his bank account. She wanted to regularize what she was entitled to receive so she could continue to pay living costs for herself and the children in the matrimonial home. Although there were other allegations made by Ms.

Goulding, these appear to be the facts upon which the court relied when it granted the Interim Order. [ 4 ] There is an Affidavit of Service, sworn by Randy Milnes, indicating that on June 17, 2010, he served Mr. Goulding, in Alberta, with the Interim Application that was the subject of the hearing I have previously described. At the time Mr. Goulding was also served with a notice to disclose requiring him to provide financial information about his current economic circumstances as well as those that had existed since 2007. The Interim Application served upon Mr.

Goulding made it clear there was to be a hearing at the Supreme Court of Nova Scotia on Monday the 26 th day of July 2010 at the hour of 2:00 p.m. in the afternoon. Mr. Goulding did not contact the court to request an adjournment of that hearing. He did not seek to file any documents in respect to that hearing, nor to participate in that hearing. The court granted an Interim Order requiring Mr. Goulding to pay table guideline child support based upon an annual income of $80,000.00 in the amount of $1,151.00 per month. He also was ordered to pay $100.00 per month for

section 7 expenses and $850.00 per month as spousal support. [ 5 ] On December 2, 2011, Mr. Goulding made an application to the Court of Queen ’ s Bench in Alberta for a “ Provisional Order Changing Child Support and Spousal Support ” . He also made an application to stay collection of “ arrears ” . [ 6 ] There is an Affidavit of Service, sworn by Randy Milnes, confirming he served Mr. Gouding on January 19, 2012 in Calgary, Alberta with the following documents: ● a request for a Date Assignment Conference; ● An affidavit of Ms. Goulding dated December 5, 2011; ● Payroll deductions for Ms. Goulding; ● Ms.

Goulding ’ s 2010 income tax return Ms. Goulding ’ s 2010; ● Notice of Assessment; ● A notice for Mr. Goulding to disclose necessary financial information. Although Mr. Goulding had been served with a previous requirement to disclose financial information he had not done so. [ 7 ] After receiving the documents on January 19, 2012, Mr. Goulding did contact the court staff in Nova Scotia and made arrangements for telephone participation in the Date Assignment Conference.

He filed some financial information and by the date of the conference the court also had received the financial information used by the Alberta court in processing his request for a Provisional Order varying the Interim Order issued by the Nova Scotia court.

[ 8 ] The Divorce Act does not have a specific provision authorizing the variation of an interim order. It is rare for a court to vary an interim order, but it will do so when it appears to be in the best interest of a child in respect to issues relating to custody and access and when there is a considerable change in circumstances in respect to financial issues.

While the right to vary an interim order may be implicitly contained within the right to vary an order generally, it is questionable whether that would apply in respect to provisional variation of an interim order particularly when the respondent has accepted the jurisdiction of the court that issued the interim order. In addition the Provisional Order before me makes no reference to the amount to be paid for special expenses and spousal support. Presumably they are not varied by the Provisional Order. [ 9 ] Fortunately I do not have to determine the appropriate jurisdictional approach because Ms.

Goulding is prepared to accept the change requested by Mr. Goulding understanding that both she and he will have the opportunity to request this court, in a final proceeding, to order what it then determines is the appropriate amount to be paid both retroactively and prospectively. Mr. Goulding is prepared to pay Ms. Goulding a total amount of $1,500.00 per month to support her and their two children. [ 10 ] The Provisional Order issued by the Court of Queen ’ s Bench, Alberta can be interpreted to apply only to the table guideline child support. This is what Mr.

Goulding understood happened when he appeared to request the Provisional Order. The Alberta Court decided his annual income was $38,376.00 and required him to pay $549.00 per month for table guideline child support. If Mr. Goulding was to continue to pay the $100.00 for the

section 7 expenses his total child support payment would be $649.00 monthly. With the added spousal support his total monthly payment would be $1,499.00, rounded up to $1,500.00. The spousal support will provide him with an income tax deduction, but his total yearly support will leave him with very little to cover his own living expenses on a total income of $40,000.00. However he is prepared to pay this amount because he expects his 2012 total income to exceed $40,000.00. He has new employment. Ms.

Goulding has accepted his proposal to pay a total sum of $1,500.00 for support, $850.00 of which is spousal support. [ 11 ] Mr. Goulding is to pay $1,500.00 per month commencing January 1, 2012 in two installments each in the amount of $750.00, one to be paid on the 15 th and the other on the 30 th of each month. There will be a stay of collection of any arrears that have accumulated on Mr.

Goulding ’ s account to December 31, 2011. [ 12 ] Although I do not need to make a definitive finding about the appropriate jurisdiction in this matter, I do have to decide whether procedurally I should confirm the provisional variation granted by the Court of Queens Bench or whether I should refuse to confirm that Provisional Order and issue an order from this Court based upon Ms. Goulding ’ s consent. I have decided the latter is the proper procedure to follow. J.