R.R. v. J.M., 2022 NSSC 140

Supreme Court of Nova Scotia (Family Division) Citation: R.R. v. J.M. , 2022 NSSC 140 ENDORSEMENT R.R. v. J.M. May 18, 2022 File No. 58150 • R.R., Applicant on his own behalf • Coline Morrow, counsel for the Respondent, J.M.

Restriction on Publication • Section 94(1) of the Children and Family Services Act applies to this decision and provides as follows: • 94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. BACKGROUND 1 . The parties have one daughter (R.R.M.) who is now 14 years of age.

Until 2017, they parented under a Consent Order issued on April 9, 2010, which granted them joint custody of the child, with J.M. providing the child’s primary residence. R.R. was granted reasonable access, at reasonable times, upon reasonable notice. 2 . In the same Order, R.R. agreed to pay child support of $229.00 per month, based on an income of $26,133.00. 3 . The Minister of Community Services (M.C.S.) became involved with the family in 2017 and the child was removed from the care of her parents. M.C.S. ended its involvement in 2019. 4 .

R.R. filed this Application to Vary on November 15, 2019, in which he seeks child support from J.M. effective September 1, 2019, and termination of his support obligations under the 2010 order. He added a claim for custody in the Amended Application he filed on July 31, 2020. 5 . J.M. filed an Application to Vary on February 11, 2022, in which she seeks child support retroactive to June, 2017, enforcement of arrears payable by R.R., and recalculation of her child support obligations under the 2021 order. 6 . The issues are therefore: i. Who had primary care of the child for what periods of time? ii.

What does each parent owe the other for child support? iii. What related orders are appropriate? THE 2017 ORDER 7 . R.R. filed an Application to Vary on March 9, 2017. He was seeking a change in primary care, as well as changes to child support.

8 . He moved to suspend payment of child support at the same time, as M.C.S. was involved with the family by then, and the child was living with J.M.’s father. At a Simplified Process Conference held on June 16, 2017, J.M. agreed that child support should be paid to her father, as long as R.R.M. remained in his care. 9 . J.M. also agreed to a second order which suspended enforcement of arrears owing by R.R. under the 2010 order. Both orders were issued on June 26, 2017. 10 . The 2017 Application was adjourned without date after M.C.S. filed formal child protection proceedings.

R.R.’s 2019 VARIATION APPLICATION 11 . R.R. filed a new Application to Vary on November 15, 2019. It was filed after M.C.S. ended its formal involvement with the family. It should be noted that R.R.’s 2017 Application was never discontinued, dismissed, or finalized. However, both parties filed documents in relation to the 2019 Application and the hearing was held in relation to those pleadings. J.M.’S RESPONSE & APPLICATION 12 . J.M. did not file a Response to Application, but on November 5, 2020 she filed documents replying to R.R.’s Application.

She then filed her own Application to Vary on February 11, 2022 which was heard at the same time as R.R.’s Application. CHANGE IN CIRCUMSTANCES 13 . The parties participated in a Judicial Settlement Conference (J.S.C.) before another Judge in April, 2021. Although unstated, they clearly agreed that there was a change in circumstances since 2010, as a Varied Order was issued. I agree that there’s been a material change in circumstances sufficient to justify variation of the 2010 Order. R.R.M.’s residence changed numerous times in the past four years. As well, J.M.’s income has declined. THE 2021 ORDER 14 .

At the J.S.C., the parties agreed on certain changes, so an Order was issued to reflect those changes.

That order provides for: • Confirmation that R.R.M. was living with her father “for the majority of the time”; • J.M. was directed to pay child support of $503.32 per month, based on her 2020 income of $59,035.00, with payments starting May 15, 2021 and continuing monthly as of June 1, 2021; • J.M. was directed to cancel her share of the Canada Child Tax Benefit “on or before December 20, 2021; at which time, the Child’s braces should be paid off”; • R.R.’s child support arrears were to be determined either at conciliation or by returning to court. 15 .

The parties did not agree on arrears at conciliation, so a hearing was held on April 14, 2022. I heard evidence from both parties, as well as J.M.’s tax preparer. AGREEMENTS AT HEARING 16 . At the outset of the hearing, the parties advised that they agree R.R.M. lived with her grandfather for a period of time in 2017. They also agree that R.R. paid the grandfather $99.42 and $63.94 under the 2017 order. However, that agreement is helpful only to the

grandfather, should he seek to enforce the 2017 child support order. I am not dealing with his claim, and I decline to adjust child supportretroactively to 2017 in any event. The child wasn’t in the care of either parent for a period of time between 2017 - 2019. PRIMARY CARE 17. R.R. seeks custody and a “primary care designation” for purposes of 1) child support; 2) the federal Child Tax Benefit (C.T.B.); and3) a claim for a tax credit for an eligible dependant. 18. The 2021 order did not specifically address “custody” or “primary care”.

It simply references that R.R.M. was living with her father“for the majority of the time”. R.R. says that R.R.M. lived with him “99% of the time” after September 1, 2019, so this should bereflected in a court order confirming that he had primary care. 19. The evidence from the parties on where R.R.M. lived at various points after 2017 is confusing and at times contradictory. That’s notsurprising or unusual. In assessing credibility, I have to weigh the reliability and credibility of each witness. I can accept all, some, ornone of what a witness has to say.

I have considered and applied the factors laid out by Forgeron, J. in Baker-Warren v. Denault, 2009NSSC 59 , 2009 N.S.S.C. 59, in concluding that the evidence offered by J.M. is generally more reliable and credible. 20. In reaching that conclusion, I considered the following: J.M.’s evidence was candid and consistent. She was unshaken on cross-examination. When she gave evidence on the periods of time when R.R.M. lived with each parent, her dates were tied to specific eventswhich make them more memorable, and those dates were generally consistent between her Affidavits and her testimony. 21.

In contrast, R.R. displayed selective memory on cross-examination and refused to concede any point that didn’t accord with hisnarrative. He made assumptions about J.M.’s actions that proved to be incorrect, and when confronted with evidence to the contrary, hesimply replied (in a flippant tone), “I’m allowed to make mistakes.” 22. R.R. asserted a timeframe of 1.5 months (vs. 3 months according to J.M.) when R.R.M. lived with her sister in 2020. He alsoinsisted that she lived with him for the last four months of 2019, rather than the last 1.5 months as J.M. testified.

He claims that M.C.S.allowed the child to live with him after their involvement was “done” yet he didn’t call evidence to support that claim. 23. Most persuasive is the fact that R.R. didn’t file his Application to Vary until November 15, 2019. That date coincides with J.M.’sevidence that the child lived with her in September and October 2019, and that R.R.M. didn’t move back with her father until mid-November, 2019. 24. Throughout his testimony, R.R. repeated the September, 2019 date over and over like a mantra. However, repetition does not makethe date more plausible.

Without evidence from M.C.S. to confirm his version of events and contradict J.M.’s dates, and given otherinconsistencies, his date for R.R.M.’s return is rejected. 25. I accept J.M.’s chronology. According to her Affidavit (Exhibit 13): • R.R.M. lived with her grandfather for a period of time in 2017 and “returned to my care later [after M.C.S. concluded itsinvolvement]”.

Although she didn’t specify dates in her Affidavit, she said in testimony that R.R.M. returned to her care from Septemberthrough October, 2019, and that she moved in with R.R. after his birthday in 2019. • The child was in her father’s care until July 1, 2020 when R.R. “threw [the child] out”. • R.R.M. lived with her older sister for three months, returning to her father’s care on September 26, 2020.

• R.R.M. continued to live with R.R. after September 26, 2020. 26 . I find the following chart reflects the primary care arrangements for the child R.R.M. after September 1, 2019: YEAR DAD MOM SISTER 2019 (last 4 m) 1.5 m 2.5 m 2020 9 m 3 m 2021 12 m 2022 (5 m YTD) 5 m 27 . The parties have joint custody under the 2010 order. The term “custody” was removed from the Parenting and Support Act , R.S.N.S. 1989, c.160 , and replaced with “decision-making responsibility”. “Access” is now referred to as “parenting time”. 28 .

Given their high conflict relationship, and the age of the child, I find it’s appropriate to vary the Order to grant R.R. sole decision making authority and primary care. J.M. will have parenting time in accordance with R.R.M.’s wishes. A Varied Order will be issued to reflect the above changes in primary care. TAX FILINGS 29 . R.R. wishes to refile his tax returns to claim R.R.M. as a dependant after September, 2019. He tried to do so after the 2021 order was issued, but the wording didn’t meet Canada Revenue Agency’s (C.R.A.) requirements.

For purposes of the varied order, I will set the date that R.R.M. started living with her father under his primary care as November 15, 2019. CHILD TAX BENEFIT 30 . R.R. says that J.W. is in breach of the 2021 Order, because he believes that she is still claiming the C.T.B. He relies on a letter from the C.R.A. to support his claim. The letter he produced doesn’t state what R.R. thinks that it says. In addition, J.M. presented a letter from C.R.A. confirming that she did cancel her C.T.B. claim in August, 2021, once the child’s braces were paid off. 31 . I find that J.M. complied with the 2021 order.

R.R.’s confusion on this point illustrates his assumptions and misunderstanding of important documents which drove the need for a hearing. Had R.R. received legal advice and had J.M. disclosed more information earlier (such as the orthodontics payments and C.T.B. information) the parties might have resolved their claims short of a hearing. RETROACTIVE CHILD SUPPORT PAYABLE BY J.M. 32 . The 2021 order captures only prospective child support payable as of April 15, 2021.

The child was in R.R.’s primary care before that, so J.M. owes child support for one and a half months in 2019, nine months in 2020, and for the first 4.5 months of 2021 (until the 2021 order took effect). 33 . I calculate J.M.’s retroactive child support obligation as follows:

• J.M.’s income in 2019 was $53,005.00 ($54,929.00 less union dues of $1,924.00 *) so she owes the Nova Scotia table amount of $450.00 X 1.5 = $675.00 for 2019; • Her income in 2020 was $56,903.54 ($59,035.00 less union dues of $2131.46*) so she owes the NS table amount of $484.00 X9 = $4,356.00 for 2020; • In 2021 her income was $41,349.43 ($42,868.15 less union dues of $1,518.72) so she owes the NS table amount of $353.00 X4.5 = $1,588.50 for 2021; • Total retroactive child support $6,619.50. *2019 and 2020 dues calculated on percentages and figures shown in exhibit 14* 34 .

I’m satisfied that J.M. made contributions to R.R.M.’s support while the child lived with her sister in 2020. I assess no retroactive support owing for that timeframe. 35 . I’m also satisfied that J.M. made payments of $1,200.00 directly to R.R. for the child’s support in 2020, and I will give her credit for those payments. This brings the retroactive child support owing by J.M. to R.R. to $5,419.50 . J.M.’s ONGOING CHILD SUPPORT OBLIGATION 36 . J.M. asks that her child support payment under the 2021 Order be reduced to reflect her actual 2021 income.

She believes that the 2021 child support order is based on a projected income. However, the order clearly states that it’s based on her actual 2020 income, and not a projection. The 2020 income figure wasn’t reduced for union dues, but the difference in support payable is negligible. 37 . Given that J.M.’s income was lower in 2021 than the year prior, and she continues to pay based on a higher income, it’s appropriate to vary her prospective child support payments. Based on her most recent income (2021) of $41,349.43 net of union dues, this equates to a table amount of $353.00 per month.

The varied order will reflect this change to her child support obligation effective April 1, 2022. ARREARS OWED BY R.R. 38 . When enforcement of arrears under the 2010 order was suspended in 2017, R.R. owed $3,980.00. J.M. asks that this suspension be lifted and the arrears be enforced. R.R. argues that these arrears were forgiven under the 2017 order. 39 . The 2021 order expressly leaves arrears of child support to be determined at conciliation or at a future hearing.

The 2017 order states that: • “[M.E.P.] shall discontinue any attempts or actions to collect the arrears owed in child support by the Applicant [R.R.] until a further order of the Court.” • “The Applicant may apply to the court to have the arrears forgiven.” • The order is made “without prejudice” to either party. 40 . R.R. testified that he believes the arrears were “squashed” in 2017. He points to the last page of the Maintenance Enforcement Program (M.E.P.) printout (Exhibit 5) which shows a $0 balance for enforcement purposes. His argument completely ignores the actual wording of the order. 41 .

I find that the plain and ordinary meaning of the 2017 order is clear: Enforcement of arrears was suspended , but the arrears were not forgiven . In fact, the order expressly allows R.R. to “apply to the court to have the arrears forgiven”, a term which would be redundant if the order itself forgave the arrears.

42 . Even if R.R. had alternatively asked that I forgive the arrears, I would decline to do so. He earned $68,470.00 in 2017, and although he relied on Employment Insurance and Income Assistance for a period of time, he reported income of $39,456.00 in 2021. There is no evidence to suggest R.R. would suffer hardship if he’s required to pay the arrears, especially if they are set off against monies J.M. owes to him. 43 . The arrears of $3,980.00 which were outstanding when the 2017 order was issued remain payable by R.R. Any amounts J.M. owes to him will be off set against that sum.

In the result, that leaves J.M. owing R.R. $1,439.50 ($5,419.50 - $3,980.00). That sum must be paid within 90 days. It is enforceable by M.E.P. RELATED ORDERS 44 . I direct that the order be enrolled for recalculation as requested by J.M. This will avoid further conflict and court costs. J.M. must file her updated income information yearly, and the recalculation clerk will calculate what support is payable on the anniversary date each year. COSTS 45 . Both parties met with some success, so I direct that each bear their own costs of the proceeding. CONCLUSION 46 . A Varied Order is granted.

R.R. is granted sole decision-making responsibility for R.R.M. J.M. will have parenting time in accordance with the child’s wishes. R.R.’s child support obligations under the 2010 Order are terminated. J.M.’s child support is varied to reflect her most recent income information. She must pay R.R. retroactive child support of $1,439.50 within 90 days. The order will be enrolled for recalculation. Both parties will bear their own costs. ___________________________________ Lee Anne MacLeod-Archer, J.