C.M. Applicant - v. -, 2023 NBKB 131

C.M. v. S.K. - 2023 NBKB 131 FDC-91-2020 1301-75636 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: C.M. Applicant - and - S.K. Respondent Subject: Divorce - reasonable past child support arrangements? BEFORE: The Honourable Justice Larry Landry AT: Campbellton, N.B. DATE OF TRIAL: June 14, 2023 ADDITIONAL APPEARANCE: June 23, 2023 DATE OF DECISION: July 12, 2023 APPEARANCES: C.M. is self-represented Gabrielle Doucet, for the respondent [TRANSLATION] DECISION

Landry, J.: [ 1 ] C.M. and S.K. were in a relationship as a couple for some fifteen years and were married for a little under seven years. A child was born of their union. [ 2 ] They have been separated for five years and are both seeking a divorce. They have settled most of the issues surrounding the division of their property and debts. They have also agreed on decision-making responsibilities and parenting time in respect of their son, who is now 15 years old.

The terms of their agreement were included in a consent order signed by Chantal Daigle, J., this past May 3. [ 3 ] Still outstanding for determination is the issue of support for their son, including special expenses, and whether the support order will have retroactive effect. A Canada Child Benefit payment is also in dispute. Divorce [ 4 ] Given that the parties have now been separated for over five years, that there is no possibility of reconciliation and that they are both seeking a divorce, I indicated at the trial that they would be granted a divorce.

Child support [ 5 ] Since January 2023, the father has been paying $400 a month in support for his son. The mother is asking that this amount be increased in line with the applicant’s current income and is also asking that retroactive support be paid to her for the benefit of their son. [ 6 ] When they separated in May 2018, K was 10 years old. For the first two years following the separation, the child lived with his father. In fact, the mother left New Brunswick for about a year. Then, as of April 2020, the parents agreed to share the parenting time equally. This agreement lasted until May 2022.

The child, then aged 14, decided to live full-time with his mother. This is still the case today, when he is 15. [ 7 ] Under the May 3 consent order, the mother also has full decision-making responsibility. [ 8 ] Of course, sharing parenting time has an impact on child support obligations. Now that the child is living with his mother, the father must pay child support in accordance with the Federal Child Support Guidelines .

The amount that he is liable to pay is usually determined based on his total income as reported to the Canada Revenue Agency. [ 9 ] The father’s income and employment situation have fluctuated considerably over recent years. He has worked as a municipal by-law enforcement officer and deputy sheriff. He has received employment insurance benefits and work- related accident benefits. In late 2021, he purchased a nursing home for seniors in Quebec, where he devoted a lot of his time.

Since January, he has been a correctional officer at a hospital in Campbellton. [ 10 ] With respect to 2023 and his new job, C.M. filed in evidence a recent pay slip from Vitalité Health Network showing a total gross income of $20,882.54 as of May 20. This therefore equates to an annual salary of approximately $54,295. [ 11 ] To this, S.K. would like me to add the sum of $30,000 representing the estimated income from the nursing home he owns. C.M. objects to any imputation of income related to the home.

[ 12 ] In his testimony, he explained that he had given himself one year to see if he could succeed in turning this private nursing home into a profitable business. He therefore devoted himself entirely to it, considering it as his job. He was responsible for maintenance, getting to know the residents, managing the staff, replacing employees who too often took time off, and so on. [ 13 ] For the only full year of operation, 2022, he saw the business generate a net income of $31,785, and this without him being paid an official salary. He says, however, that he was constantly working at the home.

Of course, the nursing home’s net income was his and was added to his personal tax return since the business was not incorporated. Apart from this business income, he received only $1,070 in employment income in 2022, which is consistent with his testimony that he devoted virtually all his time to the nursing home. [ 14 ] After noting what he considered to be the failure of the project, he decided to return to regular employment in 2023 and says he announced his intention to file for bankruptcy due to the financial situation of the home.

Two days after this announcement, he says he was contacted by someone who was interested in buying the business. The process is ongoing, but few details emerged at the trial. [ 15 ] If the business was only able to generate $31,785 in revenue in 2022 when C.M. was devoting virtually all his time to it, I can’t imagine that, in his absence, a similar revenue could be generated this year. The salaries that will be paid to the employees who will replace him on site will cause the net income to melt like snow in the sun.

In fact, in 2021, when he was the owner for only 45 days, net income was $1,017 for that period, equating to $8,249 for a full year. [ 16 ] Thus, given the failure of the project and the fact that C.M. has decided to return to stable employment, I will not impute any additional income from the home to him for 2023. Since his current salary is approximately $54,295, he must therefore pay support of $463 per month for his son, in accordance with the applicable table of the Federal Guidelines . Retroactive Support [ 17 ] In her pre-trial brief, the mother is seeking nearly $40,000 in retroactive child support.

She states that C.M. should have started paying her support for K as soon as parenting time became more or less equally shared. The father counters that he has no retroactive obligation given all the circumstances of this case. [ 18 ] First, the respondent faces a procedural hurdle. In her Answer and Counter-Petition filed on September 25, 2019, S.K. did not claim child support, let alone retroactive support.

In fact, she proposed to pay the applicant support for K herself, given that the child was living with C.M. and that she had moved to Quebec. [1] [ 19 ] Our Court of Appeal has repeatedly stressed the importance of pleadings. As Ernest Drapeau, J.A. wrote in Parlee v. McFarlane : [2] […] The importance of pleadings cannot be underemphasized. They define the issues not only for the parties, but for the judge as well.

Indeed, I cannot fathom a situation where a trial judge could properly decide the case before him or her on a basis not raised in the pleadings or at trial. [ 20 ] Margaret Larlee, J.A. repeated Drapeau, J.A.’s words in the context of a family law case in T.M.A.H. v. J.J.G. [3]

[ 21 ] In fact, this principle is not new. As far back as 1987, in Anderson v. Anderson , [4] the Court of Appeal set aside the trial judge’s child support order because it had not been claimed in the petition for divorce. [ 22 ] Except for the addition of a reference to the applicable guidelines, the court’s duty to satisfy itself that reasonable child support arrangements have been made was the same in 1987 as it is today. Paragraph 11(1) (

b) of the Divorce Act [5] provides as follows: 11(1) In a divorce proceeding, it is the duty of the court: […] (

b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made[.] [ 23 ] If such arrangements have not been made, the court may delay the granting of the divorce and ask the parties to do what is necessary to ensure that the issue is properly brought before the court and that there is sufficient evidence to decide the matter. [ 24 ] In Anderson , supra , the divorce was granted, nonetheless. In Bourgeois v.

Bourgeois , [6] a decision from 1990, Guy Boisvert, J. relied on Anderson and refused to order the payment of support sought in an affidavit but not in the petition for divorce. However, he refused to grant the divorce. [ 25 ] In this case, I am of the view that reasonable arrangements will be made going forward and that is why I am granting the divorce. The father will henceforth pay support in accordance with the Federal Guidelines . In fact, the father was not caught off guard regarding future support payments, since he has already been paying support since January.

However, as far as giving any retroactive effect to the order is concerned, I am not convinced that the mother’s claim should be granted. [ 26 ] In the respondent’s brief, the amount of retroactive support sought includes amounts dating back to 2020, when shared custody began. In fact, the respondent is also claiming amounts that she considers having overpaid in support before 2020, when the son was living with his father. [ 27 ] In the evidence contained in the record on application, there was no claim for retroactive support prior to January 2023.

In fact, in a proposal sent by S.K.’s lawyer in July 2021, it was stated that no retroactive support was payable. [7] However, she was asking that financial disclosure be completed as soon as possible in order to calculate future support. [ 28 ] Finally, it was in January of this year that the respondent’s lawyer purportedly sent a letter to the applicant for the first time, together with a draft consent order providing for retroactive support payable by C.M. from May 2022, i.e., from the time the child went to live full-time with his mother.

A similar letter was allegedly sent to the applicant this past April 18. The applicant denies having received these two letters and there is no proof of receipt on the record. At the time, he was no longer represented by a lawyer. The only evidence of service by letter comes from the respondent’s hearsay, in her affidavit of this past June 6. [8] This evidence is either inadmissible or insufficient. [ 29 ] On the other hand, following the settlement conference held last May, the consent order signed by Daigle, J. specifically provides that the issues of support and retroactive support remain unsettled.

However, the order indicates that the judge considered the petition for divorce (even though the date indicated is incorrect), but not the Answer and Counter-Petition. It should be noted that the respondent’s lawyer prepared the draft order. [ 30 ] Therefore, the issue that remains to be determined is whether I should deal with the issue of the retroactive effect of the support order even though it was not properly pleaded. I called the parties back for a further appearance on June 23 to discuss the issue.

The mother’s lawyer claims that the issue can be decided by the court since the father himself included it in his petition for divorce. However, it is clear that the claim was for child support to be paid to him, given that he had custody of their son at the time. I cannot convert this claim by the father into a claim by the mother without her formally pleading it.

[ 31 ] The respondent also points out that she had claimed interim child support in a Notice of Motion filed in 2020. That motion is not part of the record on application, except for the ensuing order of June 22, 2021. All I can discern from that order is that the application for interim child support had either been refused or abandoned, given that parenting time was shared equally. [ 32 ] I also note that the respondent never asked for leave to amend her pleadings in order to seek child support, even at the appearance this past June 23.

I must admit that the issue was not raised, either by the court or by the parties, at the trial on June 14. It was only when I was working on this judgment that I noticed that the mother had not included her claim for child support in her counter-petition, [9] even though she was seeking joint custody. It was at this point that I reconvened the parties. Of course, C.M. still objects to any retroactive effect being given to the support order. [ 33 ] As mentioned above, I agree that before granting a divorce, the court must be satisfied that reasonable arrangements have been made for the support of the children.

Even if no support order was sought, even for the future, I had to include one in the divorce judgment, especially since all the necessary evidence was before me, that the father had already started paying support and that he agrees to continue doing so. [ 34 ] I do not believe that the court’s duty to satisfy itself that satisfactory arrangements are made systematically extends to the period preceding the issuance of the divorce judgment. That is, no case law to that effect has been laid before me. Obviously, if a proper application had been made, I would have had to address it. But that is not the case.

In these circumstances, I decline to give any retroactive effect to the support order made for the benefit of K. [ 35 ] If I should be in error on this issue, I will address it very briefly. In fact, I may have been required to postpone the whole matter to a new hearing. For example, while parenting time was being shared, a more complex analysis of both parents’ budgets and circumstances would have been required.

The analysis proposed by the Supreme Court in D.B.S. [10] should also have been undertaken. [ 36 ] In her brief, the mother asks for the retroactive effect of the support order to extend all the way back to 2018, when the father had custody of K. She claims that she had paid too much support. Statements of electronic money transfers to C.M. in 2018 are also part of the record. [11] However, it is not clear what all these sums were used for.

In her testimony, she said that these sums included support payments, but also her share of the mortgage payments and insurance premiums for their property, special expenses for K and expenses for the parties’ dog. [ 37 ] She also wants income to be imputed to C.M., but he points out that she could also earn more money. During the final years of the marriage, she worked in education and earned an annual income of $50,000 to $60,000. After that, she earned much less. C.M. maintains that she belonged to a religious sect.

I don’t have to determine whether the church in question is a sect or not, but S.K.’s tax returns show that she gave thousands of dollars to this organization. Generous donations were made during the marriage, but also after the separation. Thus, from 2019 to 2021, she reported donations of more than $9,000. [12] [ 38 ] It was mentioned that after the separation, the respondent went through a difficult period which prevented her from working as she had previously done.

The evidence in this regard is very sparse and it may well be that a higher income should be imputed to her. [ 39 ] Moreover, the uncontradicted evidence shows that for a certain period, her religious group took up a great deal of space in her life. During that time, she left for Quebec for almost a year and made extended trips to France and Mexico.

Her involvement with her son was minimal during this period, even though she maintains that C.M. prevented her from seeing him on a regular basis. [ 40 ] S.K. also bases her claim for nearly $40,000 in retroactive support on the imputation of an annual income of $95,000 to the father, i.e., the income he reported to the Canada Revenue Agency (CRA) in 2020. This income came mainly from WorkSafe NB benefits following a leave of absence due to an illness or a job-related accident. These benefits far exceeded the income that he usually earned and that he has been earning since.

He explained this by the fact that he received the money due to him for 2019 and 2020 in 2020. In fact, his reported income in 2019 was only $6,907. It seems completely unrealistic to base a claim for support on income covering two years, but all received in 2020.

[ 41 ] In S.K.’s defence, it should also be noted that since he is no longer represented by a lawyer, C.M. has not complied with his financial disclosure obligations within the prescribed time limits. In fact, it was only on the day of the trial that he completed this disclosure, which is a totally unacceptable behaviour.

However, it can be seen that his income for 2021 and 2022 was rather $47,319 and $32,856 respectively. [ 42 ] Lastly, no evidence was adduced to show that K suffered from the absence of support payments, if his mother had in fact been entitled to them. [ 43 ] On balance, given the particular facts of this case, I am not satisfied that it would have been appropriate to give retroactive effect to the support order, even if it had been properly sought.

Special expenses [ 44 ] The issue of sharing special expenses was actually pleaded by S.K. [13] She claims reimbursement from the applicant of certain past expenses, namely medication, karate and lifeguard lessons, and dental care. For future expenses, she asks that the father also pay his share of the orthodontic treatment recommended by the dentist. [ 45 ] C.M. agrees to pay for his share of the cost of karate lessons from now on, as this is something K used to do.

However, he does not agree to pay for the dental expenses or lifeguard lessons, as the mother did not consult him. [ 46 ] All expenses already incurred are reasonable and supported by receipts or sufficient proof. C.M. agrees to pay for the karate lessons and the relevant belts. There was no reason for his refusal to pay expenses that predated the trial. As for the lifeguard course, the mother’s testimony satisfied me that it was appropriate in the circumstances. They have even enabled the child to start working in this field.

The medication and dental treatments were also perfectly necessary expenses. [ 47 ] All these expenses total $1,687.60. They were incurred in 2022 and 2023. [ 48 ] The parents’ respective shares still need to be determined. I have already determined that the father’s income for 2023 would be $54,295. In 2022, it was rather $32,856. As for the mother, she reported a net business income of $15,471 in 2022. There is no real evidence as to the nature of the business or the expected income for 2023. Her brief mentions a potential income of $24,000. [ 49 ] One is also left to wonder why she doesn’t return to teaching.

She pointed to the death of her most recent spouse, which is still affecting her. She states that she accepted a contract with the local francophone school district in 2019- 2020. She began working with them in mid-November 2019, but the COVID-19 pandemic allegedly put an end to her work in March 2020. She did not file her tax returns for those years for the purposes of the divorce proceedings. Her brief mentions an income of nearly $35,000 in 2020, which would surely have been higher if there had been no pandemic.

The last full years before the separation show incomes quite similar to and even higher than what C.M. earns, i.e., $50,616 and $60,441. [ 50 ] The lack of details about her current income and reasons why she is not returning to teaching leads the court to conclude that both parents earn or can earn approximately the same income. As a result, they will be equally responsible for past and future special expenses. As for past expenses, this means that C.M. must reimburse $843.80 to S.K. within 60 days. [ 51 ] S.K. now has full decision-making responsibility with respect to K.

The orthodontic treatment proposed by the dentist seems reasonable to me. If she decides to proceed with the treatment, both parties shall share the cost equally. The same applies to dental treatments, medication, and karate (including uniforms and belts). Any expenses incurred shall be reimbursed to the other parent within 10 days of presentation of a receipt or other suitable proof, failing which reimbursement will be enforced through the Office of Support Enforcement.

[ 52 ] Should medical and dental insurance coverage become available through either parent’s employment, the portion attributable to K would be shared equally between the parties. [ 53 ] Future swimming lessons will not be considered a special expense. Of course, the parents may decide to share the costs, as with any other expense related to K. However, as the child is now working in this area, he may be asked to contribute to such expenses and be encouraged to save for this purpose. [ 54 ] K is nearing the end of high school.

If he decides to undertake post-secondary education, his parents shall share the costs equally. A more accurate determination shall be made at that point, considering the child’s means and needs and the parents’ financial capacities. Other Support-Related Obligations [ 55 ] In her brief, the respondent asks that the applicant’s support obligation and liability continue after his death and that such should constitute a debt of the estate.

In her final arguments at trial, she also asked to be designated as the beneficiary of C.M.’s life insurance policy, for the benefit of K.M. [14] [ 56 ] Once again, these are claims that are not included in the pleadings. C.M. objects to such claims. He refers to all the money that S.K. had given to what he considers to be a sect and fears that, if the life insurance proceeds were paid to the mother, she might spend the money on her religious group. During these arguments, she said that she was no longer involved with that group, but she was no longer under oath.

C.M. added, without being under oath either, that in the past, she has left the group, but subsequently returned to it. [ 57 ] In any event, the latter claim was not pleaded until the trial, whereas the former was mentioned for the first time in the brief filed two days before the hearing. No application to amend the pleadings was made. In addition, the son will be 16 years old by the end of the year. These applications are more important when the children are very young. In this case, they are denied.

Canada Child Benefit [ 58 ] The division of marital property was settled between the parties, except for one issue: the amount received under the Canada Child Benefit (CCB). [ 59 ] Once the parties began to share parenting time with the child equally, in 2020, S.K. was entitled to a share of the CCB that had previously been paid entirely to C.M. She therefore applied for it.

The Canada Revenue Agency (CRA) later notified her of a deposit representing her share of the CCB from July 2020 to June 2021. [15] [ 60 ] Shortly thereafter, she realized that the deposit of $3,128.42 had been made to a joint account she still held with C.M., which she had forgotten about. This was still the account that was registered in her CRA records. The applicant withdrew the amount from the account, kept it and never repaid it to the respondent. [ 61 ] The applicant believes that she is not entitled to it because the CRA document in question indicates 2019 as the base year.

He testified that his son was with him all through 2019. However, it is clear from the document that the money paid covers the period from July 2020 to June 2021, when the parents shared custody. The year 2019 was simply used as the basis for calculating the amount to which S.K. was entitled under the CCB. [ 62 ] C.M. must therefore reimburse the sum of $3,128.42 to S.K. within 90 days of this judgment. Costs

[ 63 ] The respondent seeks costs in the amount of $20,000, plus HST and disbursements. She invokes the non-compliance with the order of last May regarding the disclosure of financial information, the lack of response to her lawyer’s letters, the applicant’s failure to cooperate, the failure to file a pre-trial brief, among other things. In her view, this conduct delayed the outcome of the case and caused her to incur significant and unnecessary legal fees. [ 64 ] S.K. has fallen well short of having obtained everything she sought.

Moreover, some financial information is also missing or incomplete (for the years 2019, 2020 and 2023). She sought relief that was either not pleaded or pleaded at the last minute. [ 65 ] As for C.M., he fared fairly well, but it is true that his late financial disclosure, his unreasonable refusal to reimburse the CCB owing to the mother and his uncompromising stance on special expenses must be denounced. [ 66 ] Each party will therefore bear his or her own costs.

Conclusion [ 67 ] Divorce is granted to the parties. [ 68 ] Starting on August 1, 2023, and on the first day of each month thereafter, C.M. shall pay to S.K. the sum of $463 in support for their son K.M. [ 69 ] C.M. shall pay to S.K. his share of past special expenses, i.e., $843.80, within 60 days of this judgment. [ 70 ] Each parent will be responsible for 50% of future special expenses, which currently include dental care, medication, and karate-related costs (including lessons, belts, and uniforms).

If medical and dental insurance premiums are attributable to the child, both parents will be equally responsible.

The same applies to the cost of the orthodontic treatment programme, should it be undertaken. [ 71 ] S.K. and C.M. will be equally responsible for K.M.’s post-secondary education expenses, if any. [ 72 ] Support will continue to be paid through the Office of Support Enforcement (“OSE”), as will be the past special expenses of $843.80 mentioned in paragraph 69. [ 73 ] As for future special expenses, they shall be reimbursed directly to the other parent within 10 days of presentation of a receipt or other suitable proof, failing which reimbursement will be enforced through the OSE on presentation of proof of payment to that office. [ 74 ] S.K. and C.M. shall, no later than June 30 of each year, starting in 2024, provide the other parent and the OSE with a copy of his or her tax return and notice of assessment for the previous year.

C.M. shall also file proof of the sale of his nursing home, when applicable, together with the financial details of the transaction. [ 75 ] C.M. shall pay the sum of $3,128.42 to S.K. in reimbursement of the Canada Child Benefit to which she was entitled. This sum shall be paid within 90 days of this judgment. The OES will have nothing to do with this payment.

[ 76 ] S.K.’s application to give retroactive effect to the order for payment of child support is dismissed, as are her claims to maintain C.M.’s obligation and liability after his death. [ 77 ] No costs are awarded. July 12, 2023 ____________________________ Campbellton, N.B. Larry Landry, J.C.K.B.