Ruck v. Ruck, 2016 NSSC 45

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Ruck v. Ruck , 2016 NSSC 45 Date: 2016 - 02 - 22 Docket: 1206-002878 Registry: Halifax Between: Corinne Ruck Petitioner v. Winston Kenneth Ruck Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : December 11 and 17, 2015 Counsel: Peter Katsihtis for Kenneth Ruck By the Court: Introduction [ 1 ] This is a confirmation hearing pursuant to

section 19 of the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3. The real issue in this confirmation hearing is Mr. Ruck’s undue hardship claim. [ 2 ] Corinne Jessome filed a variation application in New Brunswick in October 2013. She sought to vary child support payments both prospectively and retroactively. On a retroactive basis, she sought to vary the amount of support Mr.

Ruck was paying pursuant to the tables contained in the Federal Child Support Guidelines , SOR-97/175 as of January 2010, and she sought a contribution to the costs of post-secondary education as of September 2013, one month before she filed her application. She also sought costs. [ 3 ] In support of her application, Ms. Jessome filed an affidavit and various exhibits which included financial disclosure from Mr. Ruck. Ms. Jessome did not testify at the provisional hearing in New Brunswick. [ 4 ] Justice Noble granted an amended provisional order on March 18, 2015. It contained findings about Mr.

Ruck’s past income, and ordered Mr. Ruck to pay retroactive child support of $15,330.00 calculated pursuant to the tables and $8,004.00 toward post-secondary education costs. Mr. Ruck was ordered to pay prospective monthly child support of $598.00, and costs of $750.00.

[5] The provisional order was transmitted to Nova Scotia and the confirmation hearing was scheduled before me. Provisional proceedings [6] Faced with a provisional order, I have three options: I may confirm the provisional order without variation; I may confirmthe provisional order with variation; or I may refuse confirmation of the provisional order. These options are outlined in subsection19(7) of the Divorce Act.

There is a fourth option: I may return the variation application to New Brunswick for further evidence: seesubsections 19(6) and (7). [7] At a confirmation hearing, I am to make my decision based on the entire evidentiary record, both the record from theprovisional hearing in New Brunswick and from the confirmation hearing before me. [8] Justice Pazaratz described the difficulties inherent in provisional applications in Chree, 2015 ONSC 6480.

Very recently,the Family Division and other Courts across Canada have tried to alleviate some of these difficulties by inviting non-resident parties toparticipate in hearings by video-conference. Ms. Jessome was offered the opportunity to participate in the hearing before me. Shedeclined. Her evidence, of course, was before Justice Noble who had the chance to review it before reaching his decision. [9] After the confirmation hearing date was scheduled, various documents were received at this Court. It is not clear whetherthe documents were sent by Ms. Jessome or her counsel.

They were not part of the transmission package that’s sent from NewBrunswick to Nova Scotia under subsection 18(3) of the Divorce Act: they were not available for consideration by Justice Noble andcould not form a basis for his decision. Arriving outside of the transmission package, they were not disclosed to Mr. Ruck as required bysubsection 19(2) of the Divorce Act. These documents were not part of my decision-making. Background [10] The children are twins born in October 1994. They are now twenty-one. When the motion was filed, they had just turnednineteen. [11] The 1996 Corollary Relief Order required Mr.

Ruck to pay monthly child support of $1.00. This was varied in 1999following a contested hearing before the Honourable Justice Wilson, who imputed an annual income of $20,000.00 to Mr. Ruck, underclause 19(1)(

f) of Federal Child Support Guidelines. Mr. Ruck was ordered to pay $283.00 in monthly child support. [12] At some point in 2009, after Ms. Jessome asked Mr. Ruck for information about his income, Mr. Ruck voluntarilyincreased his monthly child support payment to $350.00. He did not, however, provide Ms. Jessome with information about his income. [13] When the twins started university in 2013, Ms. Jessome asked Mr. Ruck for financial assistance. He offered to pay an extra$50.00 each month. Despite his offer, he didn’t pay the extra $50.00. [14] The provisional hearing began on February 10, 2014, when Mr.

Ruck was ordered to provide information about hisincome, and it concluded in 2015 with Justice Noble’s amended provisional order. The confirmation hearing before me was held onDecember 11 and 17, 2015. [15] Mr. Ruck agrees the twins are still entitled to child support. He doesn’t contest Justice Noble’s determination of hisincome in 2010, 2011, 2012, 2013 and 2014.

He doesn’t contest that there has been a change in circumstance pursuant to subsection17(4) of the Divorce Act since the last variation order was made in 1999. [16] Awarding retroactive child support is discretionary, while awarding prospective child support is not. I’ll first consider theprospective child support claim, following the approach identified by Justice Bateman in Staples v. Callender, 2010 NSCA 49 atparagraph 40. Knowing the obligation prospective support creates for Mr. Ruck, I’ll be better able to address the retroactive claim. Prospective child support [17] Ms.

Jessome seeks prospective child support based on the tables and a contribution to the twins’ university costs. [18] After finding that Mr. Ruck’s annual 2014 income was $42,000.00, Justice Noble ordered him to pay monthly child supportof $598.00 based on the tables. His Lordship made no order for a prospective contribution to post-secondary education costs. [19] In determining prospective child support for the twins, my first step is to determine how I should calculate their support. The twins are over the age of majority, so I have two options for calculating their support: see subsection 3(2).

The first method isdescribed in clause 3(2)(a): apply the Guidelines as I normally would, as if the twins were under the age of majority.

If I find thisapproach is inappropriate, I’m to use the alternate method. [20] In Wesemann, (BCSC) at paragraph 30, Justice Martinson described the Guidelines as assuming thepayor provides child support and the recipient parent “makes a significant contribution to the costs of that child’s care because the childis residing with him or her.” Her Ladyship continued, at paragraph 31, that “[t]he closer the circumstances of the child are to those uponwhich the usual Guidelines approach is based, the less likely it is that the usual Guidelines calculation will be inappropriate.” She saidthe opposite was also true: the usual approach may be inappropriate for a child over the age of majority who lives away from home orearns a significant income. [21] The twins live with their mother.

There is no evidence they have ever lived anywhere else. They attend university in theirhome town. Evidence from the provisional hearing in New Brunswick shows the twins were employed during their second year atuniversity. Their earnings were not significant: paystubs from the end of November 2014 showed that one had earned $3,724.32, whilethe other had earned $2,557.11. Beginning in their second year at university, the twins applied for student loans and each received astudent loan.

[ 22 ] The twins’ circumstances during their first year of university closely approximate those of children under the age of majority, so I find it is not inappropriate to calculate child support based on clause 3(2)(

a) of the Guidelines during the period from October 1, 2013 until September 1, 2014. Thereafter, the twins’ financial circumstances are such that it is inappropriate to determine child support on clause 3(2)(a), and I will base child support on the analysis required in clause 3(2)(b). [ 23 ] Though I am using two different approaches, for the prospective period I will calculate the twins’ expenses and their contribution to them just once. The calculation has many steps, and I believe it will be easier to follow the calculation if I work through it once, rather than twice.

October 1, 2013 – August 31, 2014 [ 24 ] There are two components of child support calculated under clause 3(2)(a): the table amount and a contribution to special or extraordinary expenses. The table amount [ 25 ] In making his order, Justice Noble distinguished between prospective and retroactive child support (which he called “arrears”), using the date of his order as the dividing line. His Lordship found that Mr. Ruck’s 2014 income was $42,000.00 and ordered monthly support based on that amount beginning on February 1, 2015. [ 26 ] Ms.

Jessome filed her application in October 2013, so I use that date as the demarcation between prospective and retroactive awards of child support. [ 27 ] Mr. Ruck filed a Statement of Income and provided his tax returns. According to his 2013 tax return, his total income for child support purposes was $42,000.00, comprised of his earnings and adjusted dividends. Based on this amount, Mr. Ruck would pay monthly child support of $596.00 in October, November and December, 2013. [ 28 ] According to Mr.

Ruck’s 2014 tax return, his total income for child support purposes was $42,290.00, again comprised of his earnings and adjusted dividends. Based on Mr. Ruck’s annual income of $42,290.00, he would pay monthly child support of $600.00. This is the table amount that would be payable from January 1, 2014 until August 1, 2014. From September 1, 2014 forward, I will determine child support based on clause 3(2)(

b) of the Guidelines . [ 29 ] Mr. Ruck receives $300.00 each month from his mother-in-law, who lives with his family and contributes to expenses. An equal amount is shown on his wife’s Statement of Income. In determining Mr. Ruck’s income for child support purposes, I have not included his mother-in-law’s contribution to household expenses. This money is intended to pay the expenses that arise because she lives in the home, not to provide a “profit” for Mr. Ruck and his wife. Apportioning special or extraordinary expenses [ 30 ] The second component of child support, apportioning special or extraordinary expenses, requires me to refer to

section 7 of the Guidelines and to conduct the analysis required of that section. Estimating the expense [ 31 ] Subsection 7(1) of the Guidelines says that I may order an amount to cover all or any portion of certain expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents and the child and the family’s spending pattern prior to the separation. [ 32 ] The expense that concerns me is the twins’ expense for post-secondary education.

This is mentioned in clause 7(1)(e). It is a “special” expense, so it isn’t necessary to prove that it is “extraordinary”, as is required for some expenses. [ 33 ] Mr. Ruck did not dispute that the expense for post-secondary education is necessary in relation to the twins’ best interests. Nor did he take issue with the reasonableness of the expense in relation to the parents’ means, the twins’ means and the family’s pre- separation spending pattern.

I find that the expense for the twins’ post-secondary education is necessary and reasonable. [ 34 ] The twins are enrolled in undergraduate science programs at the University of New Brunswick in Fredericton. They began in the 2013-2014 academic year and are currently in their third year of a four year program. First year university costs (2013-2014) [ 35 ] Tuition totalled $13,712.00 for the twins in 2013-2014, and there were additional expenses of $2,000.00 for books. The total expense for their first year was $15,712.00.

Second year university costs (2014-2015) [ 36 ] In the 2014-2015 academic year (their second year of study), the twins applied for student loans. Each twin received a Notice of Reassessment from New Brunswick’s Student Financial Services, which said post-secondary included $6,187.00 for tuition and $1,200.00 for books. So, in the 2014-2015 academic year these expenses for both twins were $14,774.00.

Third and fourth year university costs (2015-2016, 2016 – 2017) [ 37 ] Considering these historic figures, I estimate the cost for the twins’ tuition in this academic year (2015-2016) and next (2016-2017) is $13,000.00, and their cost for books is $2,400.00. Subsection 7(1) allows me to estimate these expenses.

Available subsidies, benefits and tax deductions [38] Subsection 7(3) of the Guidelines requires that in determining the amount of an expense, I consider the availability of andeligibility to claim subsidies, benefits, income tax deductions and credits relating to the expense. [39] The tuition tax credit is provided for in

section 118.5 of the Income Tax Act, R.S.C. 1985, (5th Supp.), c. 1, and described inInterpretation Bulletin, IT-516R2, December 9, 1996. Fees which are not eligible are: student activity fees, student union dues, medicalor health care fees, transportation and parking, room and board, materials with enduring value that the student will keep (books,laboratory items, clothing), and initiation fees. [40] The tuition tax credit is equal to 24.68% of eligible tuition fees. I calculate the net tuition cost for both twins for eachacademic year in the table below.

TABLE 1: Tuition cost (less tuition tax credit) for both twins in each academic year 2013-2104 2014-2015 2015-2016 2016-2017Eligible tuition 13,712.00 12,374.00 13,000.00 13,000.00Less tuition tax credit (3,384.12) (3,053.90) (3,208.40) (3,208.40)Net tuition cost 10,327.88 9,320.10 9,791.60 9,791.60 [41] The education tax credit and textbook tax credit are provided for in subsections 118.5(2) and (2.1) of the Income Tax Act,respectively. Combined, these tax credits are worth $88.00 per month for every month of full-time university attendance.

The effect ofthese credits is shown in the following table which shows the combined cost and credits for both twins. TABLE 2: Book cost (less education and textbook tax credits)for both twins in eachacademic year 2013-2104 2014-2015 2015-2016 2016-2017Books 2,000.00 2,400.00 2,400.00 2,400.00Less education and textbooktax credits 1,408.00 1,408.00 1,408.00 1,408.00 Net books cost 592.00 992.00 992.00 992.00 [42] As a result of these calculations, I find that the twins’ net post-secondary education costs are as shown in the table below.

I’ve calculated amounts by reducing the estimated total cost by the tuition tax credit and the education and textbook tax credits.

TABLE 3: Net post-secondary cost for both twins in each academic year (net tuition costfrom Table 1 plus net books cost from Table 2) 2013-2104 2014-2015 2015-2016 2016-2017Net post-secondaryeducation cost 10,919.88 10,312.10 10,783.60 10,783.60 The twins’ contribution [43] Parents share the expense in proportion to their respective incomes after deducting any contribution to the expense made bythe child: this is the guiding principle in determining the amount of an expense according to subsection 7(2) of the Guidelines. In Seligv.

Smith, 2008 NSCA 54 at paragraph 17, Justice Roscoe, who wrote the Court’s unanimous reasons, said that, “The proper order of thecalculations would be to deduct the child’s share from the total costs and apportion the remainder between the parents.” [44] When I consider the twins’ contribution, I look to the money they earn, the money they receive as scholarships from theuniversity and their student loans. [45] Both twins are employed. At the end of November 2014, one had earnings of $3,575.64 and the other’s earnings were$2,557.11.

I assume that they continue to be employed, earning the same approximate amount as they did that year. [46] The twins have received scholarships which defray the cost of their post-secondary education by $2,500.00 per year. [47] In Lu v. Sun, 2004 NSSF 108, Justice Lynch considered the daughter’s scholarships to be part of her contribution to hereducation expenses. The Court of Appeal took no issue with this characterization in Sun v.

Lu, 2005 NSCA 112, and similarly describedthe daughter’s scholarships as her “contribution” at paragraph 37 of its reasons. (Leave was sought to appeal this decision to theSupreme Court of Canada and dismissed December 22, 2005 at (SCC).) [48] In the 2014 – 2015 academic year, one twin received a student loan of $3,904.00 and the other received a student loan of$4,177.00. I assume they continue to receive student loans in the same approximate amount as they did that year. [49] In the table below, I subtract the twins’ contributions from their net post-secondary education costs.

In the twins’ second,third and fourth years at university, I estimate that they were able to cover the cost of their post-secondary education. Of course, thismeant that they had little to contribute to their expenses for clothing, food, transportation, toiletries, grooming or social spending. Without loans or earnings, they were unable to pay their costs during their initial year. TABLE 4: Sharable post-secondary education cost (net post-secondary education cost fromTable 3 less contribution by twins) 2013-2104 2014-2015 2015-2016 2016-2017

Net post-secondary education cost (from Table 3) 10,919.88 10,312.10 10,783.60 10,783.60 Less earnings (6,132.75) (6,132.75) (6,132.75) Less scholarships (2,500.00) (2,500.00) (2,500.00) (2,500.00) Less student loans (8,081.00) (8,081.00) (8,081.00) Sharable post-secondary education cost (surplus amounts shown in brackets) 8,418.88 (6,401.65) (5,930.15) (5,930.15) The parents’ proportionate shares [ 50 ] Following Justice Roscoe’s direction at paragraph 17 in Selig v.

Smith , 2008 NSCA 54 that I’m to deduct the twins’ contribution from the total cost and then apportion the remainder between the parents, I turn to calculate each parent’s share of the twins’ post-secondary costs. [ 51 ] In calculating each parent’s share of the twins’ post-secondary costs, I need to determine each parent’s income for the relevant years. I know Mr. Ruck’s 2013 income from his tax return, and I have determined his 2014 income. I have Ms. Jessome’s 2013 income figure and nothing more recent, so I use this figure for her. Overall, this means that Mr.

Ruck’s proportionate share of the twins’ university costs would be forty percent. [ 52 ] Considering Table 4 which shows the twins’ net education cost, Mr. Ruck’s proportionate share of this cost would be $3,367.55 for the 2013 – 2014 academic year which is payable in eleven installments, from October 1, 2013 to and including August 1, 2014. This is a proportionate sharing, consistent with the guiding principle in subsection 7(2) of the Guidelines . September 1, 2014 onward [ 53 ] Where it’s inappropriate to calculate child support based on clause 3(2)(a), I am to calculate child support based on clause 3(2)(

b) which tells me to consider the condition, means, needs and other circumstances of the child and each parent’s financial ability to contribute. This is the approach I adopt for determining the twins’ prospective child support for the period starting on September 1, 2014, when the twins had student loans and earnings to assist with their costs. [ 54 ] In Table 4, I calculated an annual surplus of approximately $3,000.00 for each twin in the 2014-2015, 2015-2016 and 2016- 2017 academic years.

Surplus refers to the excess amount available after post-secondary education costs have been paid – and before there’s been any expenditure for clothing, food, transportation, toiletries, grooming or social spending. This surplus exists because the twins are not required to provide their own home. The main financial burden of providing for the twins rests with Ms. Jessome who provides their home. [ 55 ] Using the Guidelines tables as a reference point, I find it appropriate that Mr. Ruck pay monthly child support of $500.00 for the period starting on September 1, 2014.

This amount is slightly reduced from the table amount to reflect the twins’ surplus. It is not significantly reduced: Ms. Jessome’s expenses for the twins would be slightly reduced by the twins’ surplus and their ability to pay some of their own costs. Where the parents’ financial obligations can be reduced, it should be done so on a roughly proportionate basis, which reflects their respective means. Preliminary prospective child support award [ 56 ] It’s important to bring together the result of all these calculations so I can assess Mr. Ruck’s undue hardship claim. [ 57 ] Based on the tables, Mr.

Ruck would pay monthly child support of $596.00 in October, November and December, 2013 and monthly child support of $600.00 from January 1, 2014 until August 1, 2014. Beginning on September 1, 2014 and continuing onward, Mr. Ruck would pay monthly child support of $500.00. [ 58 ] Additionally, a proportionate sharing of the twins’ university costs would see Mr. Ruck pay an additional $291.93 in monthly child support from October 1, 2013 until and including August 1, 2014. Mr. Ruck’s undue hardship claim [ 59 ] Mr.

Ruck argues that he would suffer undue hardship if I ordered him to pay child support as calculated by applying the Guidelines . So I can consider his argument, I have calculated the child support he would pay by applying the Guidelines in paragraphs 27 to 58, above. [ 60 ] The burden is on Mr. Ruck to prove he will suffer undue hardship if ordered to pay child support as calculated pursuant to the Guidelines . [ 61 ] In Gaetz , 2001 NSCA 57 at paragraph 15 , Justice Freeman (with whom Chief Justice Glube and Justice Saunders concurred), described the analysis I must do where undue hardship is claimed.

He said that there are two steps in the analysis of an undue hardship claim. First, I am to look to subsection 10(2) of the Guidelines and determine whether there exist circumstances capable of creating undue hardship if Guidelines -based child support is ordered.

Then, Justice Freeman continued, “Only when circumstances capable of creating undue hardship are found does the second step become relevant - the comparison of the standards of living of the households of the payor spouse and the custodial spouse.” [ 62 ] Often the focus is only on the second step of the analysis because even if there has been a finding of undue hardship, subsection 10(3) requires that the undue hardship application “must be denied” if the judge is of the opinion that the parent claiming

undue hardship will have a higher household standard of living even after paying child support than the other parent. Do circumstances exist that would create undue hardship? [ 63 ] Mr. Ruck says that he would suffer undue hardship because he has a legal duty to support children other than those who are the subject of this application. This circumstance is listed in subclause 10(2)(d)(

i) of the Guidelines . [ 64 ] Mr. Ruck also says his “household has extensive debt”. This circumstance is not specifically enumerated in

section 10 of the Guidelines , but it need not be, according to subsection 10(2). Since Mr. Ruck did not mention clause 10(2)(

a) or (b), I conclude that the household debt does not relate to supporting Mr. Ruck and Ms. Jessome and the twins while they were together, or to earning a living, or to exercising access with the twins in New Brunswick. [ 65 ] In determining whether undue hardship would be caused by awarding Guidelines -based child support, I have reviewed the information provided by Mr. Ruck, his current wife and his mother-in-law, who lives with them. [ 66 ] Mr. Ruck and his wife are the parents of two children, born in 2008 and 2012. The Statements of Expenses Mr.

Ruck and his wife have filed show no unusual expenses. [ 67 ] Statements of Expenses and testimony from Mr. Ruck and his current wife allow me to consider whether Mr. Ruck’s duty to support his younger children would create undue hardship for him if he was ordered to pay child support as required by usual application of the Guidelines . I have considered their household income and expenses, paying particular attention to their income taxes and their new plan to repay debt. Household income and expenses [ 68 ] Mr. Ruck has a monthly income of $3,762.35. His wife’s monthly income is $3,472.88.

Additionally, she receives $370.00 in government payments for the children. Mr. Ruck’s mother-in-law has a monthly income of $1,641.99, and she pays $600.00 of this amount to her daughter and son-in-law as a contribution to the household expenses. The total funds available to pay household expenses are $8,205.23, of which $970.00 are received tax-free. [ 69 ] Mr. Ruck and his wife filed Statements of Expenses which showed the household costs were $8,004.51 each month.

They share almost all expenses equally: the only expenses which aren’t equally shared are costs for health, dental or medical insurance through their employment. As described in these Statements, there is a monthly household surplus of $200.00. This surplus is an illusion because Mr. Ruck didn’t budget for the payment of any child support in his Statement of Expenses. Taxes [ 70 ] I compared the Statements of Expenses with the tax returns filed by Mr. Ruck and his wife. According to their tax returns, their annual income tax bills are lower than the amounts shown on their Statements of Expenses. Consider Mr.

Ruck: • Mr. Ruck estimated his 2015 total taxes at $8,370.00. • Mr. Ruck had paid $7,546.85 toward his 2015 taxes by Novemer 9, 2015. • In 2014 his total taxes were $7,475.26. • In 2013 his total taxes were $7,580.65. • In 2012 his total taxes were $7,425.57. [ 71 ] Consider his wife: • She estimated her 2015 total taxes at $7,406.28. • She had paid $6,078.12 toward her 2015 taxes by October 31, 2015. • In 2014 her total taxes were were $2,917.99 and she had a refund of $3,647.48. • In 2013 her total taxes were $2,636.04. She had paid $3,925.56 through source deductions. • In 2012 her total taxes were $3,073.94.

She had paid $5,287.42 through source deductions. [ 72 ] Based on their past experience, I expect both Mr. Ruck and his wife will have tax refunds when they file their 2015 tax returns. I believe they have overestimated their income taxes by failing to consider the tax deductibility of their child care cost. Debt repayment plan [ 73 ] Mr. Ruck and his wife have worked with their banker to re-arrange their debt into a home equity credit line. This will reduce their monthly expenses because they had been budgeting for $850.00 in monthly interest payments on their credit cards.

The budget they worked out with their banker didn’t include amounts for house repairs, clothing, extra-curricular activities, school supplies, hair care and gifts. Re-introducing these expenses, the total household costs will be $7,778.06, allowing a monthly surplus of $426.45. This surplus, too, doesn’t consider the payment of child support. [ 74 ] Mr. Ruck and his wife have debt of approximately $406,000.00. Much of this relates to their home, which currently has a mortgage of $306,000.00. The remaining debt is comprised of approximately $60,000.00 owed on eight credit cards and a car loan of

approximately $39,000.00. Mr. Ruck and his wife have worked with their banker to re-arrange their debt into a home equity credit line. The fact that they are able to do this suggests that the value of their home exceeds the amount of the debt owed. [ 75 ] There is no evidence explaining why the credit card debt was incurred. [ 76 ] Paying child support as I have calculated means that Mr. Ruck will have a monthly deficit, but not one so significant that it will create an “undue” hardship.

In Hanmore , 2000 ABCA 57 at paragraph 17 , the Alberta Court of Appeal said that undue hardship had to be “more than awkward or inconvenient. It must be exceptional, excessive or disproportionate in the circumstances.” (Leave to appeal the decision in Hanmore to the Supreme Court of Canada dismissed without reasons at [2000] SCCA No. 182.) Mr. Ruck’s hardship will not be exceptional, excessive or disproportionate to the circumstances. [ 77 ] Wisely, Mr. Ruck and his wife have taken steps to re-arrange their finances so they are repaying debt, rather than paying only the interest on the debt.

I encourage them both to take steps to adjust the source deduction of income tax to ease their cash flow. [ 78 ] Mr. Ruck has not proven that he will suffer undue hardship if I order him to pay child support as calculated by applying the Guidelines . Having failed to make the proof required by required by subsection 10(2), I am not required to conduct the analysis required of subsection 10(3). I dismiss Mr. Ruck’s undue hardship claim. Conclusion on prospective child support [ 79 ] Mr.

Ruck shall pay monthly child support of $596.00 in October, November and December, 2013 and monthly child support of $600.00 from January 1, 2014 until August 1, 2014. These amounts are calculated under clause 3(1)(

a) of the Guidelines . [ 80 ] Additionally, from October 1, 2013 until August 1, 2014, Mr. Ruck shall pay a forty percent proportionate share of the twins’ university costs of $292.00 per month. This amount is calculated under clause 3(1)(

b) and clause 7(1)(

e) of the Guidelines . [ 81 ] Beginning on September 1, 2014 and continuing until varied by the parties’ agreement or a court order, Mr. Ruck shall pay monthly child support of $500.00. This amount was determined based on clause 3(2)(

b) of the Guidelines . Retroactive child support [ 82 ] Justice Noble decided to make a retroactive award of child support based on Ms. Jessome’s evidence. [ 83 ] His Lordship ordered Mr. Ruck to pay retroactive child support of $15,330.00 for the years of 2010, 2011, 2012, 2013, 2014 and for January 2015. This amount was based on the Guidelines tables. He also ordered that Mr. Ruck pay $8,004.00 toward the twins’ post-secondary education costs for the 2012-2013 and 2013-2014 academic years.

This was calculated as a proportionate sharing of the twins’ university costs. [ 84 ] Claims for support on a retroactive basis are governed by the Supreme Court of Canada’s decision in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 . In deciding whether to make a support order on a retroactive basis, I am to consider: the reason for Ms. Jessome’s delay in seeking child support; any blameworthy conduct by Mr. Ruck that may have played a

part in this delay; the children’s needs (both now and at the time the support might have been paid); and whether a retroactive award would impose hardship. I’ll deal with each in turn. [ 85 ] I am to balance the competing principles of certainty and flexibility, while respecting the core principles of child support when considering whether to make a retroactive award.

The core principles are that: child support is the children’s right; the children’s right to support survives the breakdown of the parents’ relationship; child support should, as much as possible, perpetuate the standard of living the children experienced before the parents’ relationship broke down; and the amount of child support varies, based upon the parent’s income. Ms. Jessome’s delay [ 86 ] With regard to her delay, Ms. Jessome said that she was “only recently” in the financial position to pursue child support. Ms.

Jessome advanced her variation application when her income increased so she could retain counsel. Since 1999, she and the children have lived in New Brunswick which would have compelled her to proceed provisionally, unless she was willing to travel to Nova Scotia because Mr. Ruck did not accept the jurisdiction of the New Brunswick court. I can appreciate why a litigant would want the assistance of counsel in dealing with a provisional application. [ 87 ] Ms. Jessome said she sought disclosure from Mr. Ruck in the past, and on only one occasion did she receive any information which showed that Mr.

Ruck had no income, so she didn’t pursue child support at that time. [ 88 ] Ms. Jessome learned from a magazine

article published in the summer of 2011 that Mr. Ruck was the owner, with two partners, of a successful business. The business had started fifteen years earlier. In 2013, the twins began university, increasing their need for child support. [ 89 ] I find that Ms. Jessome’s delay has been reasonable. Mr. Ruck’s blameworthy conduct [ 90 ] It is blameworthy conduct that’s relevant to my consideration of M s . Jessome ’s variation application.

Justice Bastarache characterized blameworthy conduct as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”: D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 , at paragraph 106 , [ 91 ] The 1999 variation order required Mr. Ruck to annually disclose his personal and corporate tax returns and Notices of

Assessment. He did so in 2000, but has not done so in the fourteen years since. Ms. Jessome concluded he had no income and she didn’t pursue child support from him. She asked him for his tax return in 2002 and 2003 and occasionally since then. [ 92 ] Mr. Ruck failed to provide financial disclosure though he was court-ordered to do so. Mr. Ruck failed to provide disclosure in 1999, and Justice Wilson was compelled to impute income to him. It is clear that since 2010 Mr. Ruck’s payments have not been commensurate with his income, based on the Federal Child Support Guidelines . [ 93 ] I find Mr.

Ruck has engaged in blameworthy conduct. The twins’ circumstances [ 94 ] I’m to consider the twins’ past and current circumstances in deciding whether a retroactive award is justified. Both attend university. To afford this, they have had to borrow money and to work. They have been successful in earning scholarships which have reduced their expenses. The twins’ costs are minimized by remaining in their mother’s home. On graduation they will have student loans to repay. Based on their 2014-2015 loans, I estimate they will have $24,243.00 to repay.

A retroactive award of child support would assist with this. [ 95 ] I find that the twins’ circumstances warrant making a retroactive child support award. Mr. Ruck’s hardship [ 96 ] My final consideration is whether a retroactive award would result in hardship. I am to consider whether Mr. Ruck is able to satisfy a retroactive award. “Hardship” is to be considered broadly, not within the confines of

section 10 of the Guidelines as I have earlier in my reasons. [ 97 ] Mr. Ruck has provided information with regard to his

section 10 claim. He lives with his wife, their seven year old and three year old daughters, and his mother-in-law. [ 98 ] The budgeting they have done with their banker does not consider the deductibility of child care expenses noted in paragraph 72. [ 99 ] I am prepared to award retroactive child support having regard to these considerations. In light of Mr. Ruck’s conduct, I am willing to reach back to a date three years before Ms. Jessome began her application and to award child support retroactive to the date of October 2010. [ 100 ] Justice Noble calculated that Mr.

Ruck owed retroactive child support for the period from October 2010 to October 2013 of $8,952.00. This amount gave him credit for the child support payments that he had made. I have estimated the twins have student loans of more than $24,000.00 when they graduate if they continue to borrow as they did in 2014-2015. Even if they only had student loans in one year, the amount they borrowed ($8,081.00) is roughly the amount Justice Noble calculated as Mr. Ruck owing for the retroactive period. [ 101 ] I may be creative in structuring a retroactive award so as to minimize hardship: D.B.S. v. S.R.G. , L.J.W. v.

T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 at paragraph 116 . I recognize that Mr. Ruck’s means are finite. I believe the prospective award I have made allows the twins to continue with their education. To minimize Mr. Ruck’s hardship and to recognize the twins’ circumstances, I order that Mr. Ruck pay retroactive child support of $8,952.00 in twelve monthly payments of $746.00 beginning on October 1, 2017 and continuing to and including September 1, 2018. Costs [ 102 ] Justice Noble ordered Mr. Ruck to pay Ms. Jessome costs of $750.00. Mr. Ruck did not oppose this order and I confirm it.

Conclusion [ 103 ] I grant Ms. Jessome’s claim for prospective and retroactive child support. I confirm Justice Noble’s provisional order with variation. I dismiss Mr. Ruck’s undue hardship application. [ 104 ] Mr. Ruck shall pay monthly child support of $596.00 in October, November and December, 2013 and monthly child support of $600.00 from January 1, 2014 until August 1, 2014. These amounts are calculated under clause 3(1)(

a) of the Guidelines . [ 105 ] Additionally, from October 1, 2013 until August 1, 2014, Mr. Ruck shall pay $306.14 per month as a forty percent proportionate share of the twins’ university costs. This amount is calculated under clause 3(1)(

b) and clause 7(1)(

e) of the Guidelines . [ 106 ] Beginning on September 1, 2014 and continuing onward, Mr. Ruck shall pay monthly child support of $500.00. This amount was determined based on clause 3(2)(

b) of the Guidelines . [ 107 ] Mr. Ruck shall pay retroactive child support of $8,952.00 in twelve monthly payments of $746.00 beginning on October 1, 2017 and continuing to and including September 1, 2018. [ 108 ] I confirm Justice Noble’s order that Mr. Ruck pay costs of $750.00 and direct that this payment be made on October 1, 2018. [ 109 ] This is a confirmation hearing. My decision and the confirmation order will be prepared and forwarded to the New Brunswick court.

__________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia