C.H. Applicant - v. -, 2023 NBKB 083

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FDSJ-20-20 FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN Neutral Citation: 2023 NBKB 083 Date of Decision: May 19, 2023 BETWEEN: C.H. Applicant - and - M.D. JR. Respondent DECISION BEFORE: Madam Justice Chantal N. Daigle AT: Saint John, N.B. DATE OF HEARING: March 22 and 23, 2023 DATE OF DECISION: May 19, 2023 APPEARANCES: Misty Matthews-Emery, on behalf of the Applicant William Watts, on behalf of the Respondent

Daigle, J.: I. BACKGROUND: [ 1 ] This matter pertains to a request for child support for the child, M.H., born on [...], 2002. The Applicant asks that the order be retroactive to 2015. [ 2 ] The Application was filed on January 21, 2020 when the child was 17 years of age. No child support had ever been paid at that point. [ 3 ] After the Application was commenced, a first court appearance was held on June 30, 2020. The Respondent made it clear at that time that he had no intention of paying child support.

During the course of the appearance, the Respondent advised the Court that he was employed but would immediately quit his employment if such an order was made. Notwithstanding, a n interim order was put in place which required the Respondent to pay child support of $174 per month based on an estimated income of $22,494.00. [ 4 ] The Respondent failed to appear at the next court appearance before the Case Management Master which was held in September 2020. When he appeared for the next appearance in October 2020, the Respondent informed the Master that he had not worked since the first appearance.

At that point, the Respondent had yet to file any pleading or financial information, despite two Orders requiring him to do so. The Respondent finally filed an Answer (Form 81C) and Financial Statement (Form 72J) in July 2021, more than a year after the first court appearance. It was only recently, in February 2023, that the Respondent filed an affidavit explaining his position vis-à-vis the Applicant’s claim. [ 5 ] Since the interim order was made in June 2020, the Respondent has made no payment of child support.

What little amount has been recovered came from federal government payments which were garnished by the Office of Support Enforcement. II. FACTS: [ 6 ] The parties met online. They had a brief relationship in the summer of 2001 as a result of which, the Applicant became pregnant. [ 7 ] I accept that the Respondent did not react well to the pregnancy and that the parties parted ways shortly thereafter.

However, the extent of the communications that took place is unclear. [ 8 ] The Applicant states in her affidavit which was sworn in January 2020 that she had a few conversations with the Applicant during her pregnancy but it was clear he did not want to be involved. She states that when the conversation would turn to child support, he would threaten to quit his job. She also states that he would threaten to seek custody of the child.

However, at trial, she testified that child support was not discussed. [ 9 ] On cross-examination, the Applicant testified that she went to speak to the Respondent as soon as she found out she was pregnant. He told her “ don’t think I’m marrying you. Get rid of it. See ya later. ” She testified that was the last time she spoke to him until she contacted him in 2015. However, later on in her testimony, she re-iterated there was a period of harassment during her pregnancy when the Respondent threatened to seek custody.

After about 6 months, she stopped communications altogether. [ 10 ] The parties had no contact thereafter. In fact, there is no evidence that they had any contact once the child was born. The Applicant raised the child as a single parent without any involvement from the Respondent. [ 11 ] At some point around 2014 when the child was about 12 years old, the Applicant reached out to the child’s paternal grandmother but she was rebuffed. The paternal grandmother did not believe that the Respondent had a child. [ 12 ] Then, in 2015, the Applicant contacted the Respondent and asked to meet him.

He agreed and the two met at a local Tim Horton’s in April 2015. At that point, she asked him to undergo paternity testing. She said she did not want anything from him, other than a paternity test. The Respondent agreed. They met for a second time to undergo testing. According to the Applicant, the Respondent said he was not interested in the test result, so she did not contact him again afterwards. [ 13 ] At trial, the Applicant explained that she told the Respondent that if he agreed to undergo testing, she would not seek child support. A piece of paper was apparently signed to that effect.

The Applicant told the Respondent that all she wanted was for him to be nice to the child if she ever reached out to him. If he was not nice to her, she would “ go after him for child support ”. [ 14 ] The testing which was conducted confirmed that the Respondent is indeed the child’s father. [ 15 ] I pause here to make the following observation. It was the Applicant who requested and paid for paternity testing. That she did so suggests there was some uncertainty with regard to the Respondent’s paternity.

Once she received the result, she did not contact the Respondent to let him know that he was, in fact, the father. [ 16 ] Around December 2018, the child contacted the Respondent out of the blue. She called him on the telephone and when he answered, he told her she had the wrong number. I have no doubt that he was somewhat in shock that his daughter was at the other end of the line. [ 17 ] The Applicant filed her Application for support in January 2020. The child was 17 years of age at the time.

[ 18 ] At present, M.H. is 21 years of age. She has completed high school. She is in full-time attendance at university and continues to reside with the Applicant. She struggles with various health issues, including chronic severe headaches. [ 19 ] The Applicant’s historical information is as follows. Union dues were deducted for those years where the information was provided.

Year Line 15000 Income Union Dues Guideline Income 2015 $34,568.00 --- $34,568.00 2016 $19,803.00 --- $19,803.00 2017 $18,503.00 --- $18,503.00 2018 $23,153.00 --- $23,153.00 2019 $34,591.00 $344 $34,247.00 2020 $37,957.00 $400 $37,557.00 2021 $57,586.00 $560 $57,026.00 2022 $51,680.00 $424 $51,256.00 2023 $53,713.00 (estimated projection) $586 $53,127.00 [ 20 ] The Respondent is 58 years of age. He testified that he earns no income and has not earned any income in several years.

He states that he is both unemployed and unemployable. [ 21 ] The Respondent completed an updated Financial Statement (Form 72J) in February 2023.

In it, he lists no income, no expenses, no assets other than jewelry worth $1,010, and a credit card debt of $6,000. [ 22 ] The Respondent disclosed his 2015 to 2022 income information, which revealed as follows: Year Other Income Gross Business Income Net Business Income Total Line 15000 Income 2015 $20,246.00 2016 $92,654.00 $20,991.00 $20,991.00 2017 $114,793.00 $19,506.00 $19,506.00 2018 $109,605.00 $22,493.00 $22,493.00 2019 $80,275.00 $18,176.00 $18,176.00 2020 $6,900.00 $50,438.00 $61.00 $6,961.00 2021 $0.00 2022 $0.00 2023 $0.00 [ 23 ] Attached to the Respondent’s 2016 to 2020 Income Tax Returns were Statements of Business Activity.

According to these Statements, the Respondent was operating a business under the name Brass ‘N’ Things. [ 24 ] Brass ‘N’ Things is a local antique business which has been around since 1976. It was started by the Respondent’s parents who operated this business for most of their lives. The Respondent’s father is now 81 years of age and in ill health. His mother is 77 years of age. [ 25 ] In his affidavit which was sworn in February 2023, the Respondent essentially denied that he operated Brass ‘N’ Things and he denied having ever received the income which was disclosed on his Income Tax Returns.

He deposed that he did not know the “ins and outs” of the arrangement, but that the income which was attributed to him for several years was notional only and was done for the purpose of income splitting within the family. [ 26 ] Furthermore, according to the Respondent, those years when business income was attributed to him where the only years of his adult life when he theoretically had any income that could attract a child support award. No further evidence was submitted in order to corroborate this statement.

In other words, the Respondent did not submit into evidence any Income Tax Returns pre-dating 2015. [ 27 ] The Respondent deposed that during most of his adult life, he worked “ on a limited basis at the shop of [his] parents for perhaps two hours a day ”. He states that he might have received $100 per month from his mother for groceries. In addition, she would give him the occasional care package. According to the Respondent, he stopped working at the shop in 2020 when the business suffered a sharp decline in revenue.

He states that he has not worked there, or anywhere else since. [ 28 ] The Respondent denies having ever earned much more than $2,000 per year. He argues that he is unable to maintain full- time employment because he is unable to take orders from anyone. He describes his intolerance of others as a disability. He indicated that he was essentially unemployable. [ 29 ] As a result, the Respondent argues that the Applicant’s claim is completely without merit given his work history.

[ 30 ] At trial, the Respondent testified that he has held two jobs in his entire life: 1) bartending, and 2) working for the family business Brass ‘N’ Things. [ 31 ] The Respondent testified that he worked as a bartender at a local bar for about 7 years. He usually worked a few nights per week and earned about $3,000 per year doing so. His evidence wavered as to whether or not he declared all of his tips. It would seem that he declared a portion of them.

He indicated he stopped bartending around 2018 or 2019. [ 32 ] He testified that he started working for the family business when he was about 14 years old and has worked there his entire life. He indicated that he averaged 15 to 20 hours per week. When asked if he got paid, he initially testified: “ Not really.

A little bit here and there. ” On cross-examination he indicated: “ Minimum wage is pretty much what it worked out to being. ” Despite obviously having earned an income, he denied having ever received any of the income reported on his Income Tax Returns. [ 33 ] The Respondent testified that he could no longer work at Brass ‘N’ Things because “ there’s nothing going on there ”. He testified that he could not go back to bartending because there are apparently very few bars left in the city. [ 34 ] According to the Respondent, he stopped working at Brass ‘N’ Things during the pandemic.

He indicated that he does not have any interest in the business but acknowledged that he knows more about antiques than the average person. He indicated it was a dying business. [ 35 ] The Respondent currently resides with his brother, along with his parents. He does not pay rent or any other expenses. When asked how he pays for any personal expenses, he indicated that he spends very little money, perhaps $50 in the course of a month and that his mother helps him out when needed.

The Respondent testified that he has never paid rent because until recently, he has always lived in an apartment building owned by either his parents or his brother. [ 36 ] Finally, the Respondent disclosed his parent’s income tax returns for 2020. His father’s income tax return revealed, among other, gross business income of $28,681.00 and net business income of $480. No schedules were provided and accordingly, the source of this business income is unknown. [ 37 ] The Respondent’s mother, S.D., testified at trial. She is 77 years of age.

She indicated that Brass ‘N’ Things was her and her husband’s business, which she described as a “ little hobby shop ”. She acknowledged that the Respondent had worked there his entire adult life but, contrary to the Respondent’s testimony, she said he was only there about 1 or 2 hours per week. She testified that he would go in to the shop a few days per week but said that he was never paid for any of the work he did. [ 38 ] Mrs. S.D. testified that her husband is too sick now and can no longer work. She indicated she was the one working.

She indicated that she did not want the Respondent around the shop because he was apt to “ fly off the handle ” at customers. [ 39 ] She too testified that the pandemic “ shut us down ”. When asked whether the business had started operating again after the pandemic, she said “ No, it never came back ” but then testified that the business would never be shut down while her husband was alive as it would kill him if it closed. [ 40 ] Mrs. S.D. testified that her husband had made an assignment in bankruptcy some time ago, and at that point, the Respondent was added as co-signor.

When asked what the Respondent was co-signor for, she quickly stated “ M.D. is not on nothing. My business is my business ”. Upon further questioning, she testified that the Respondent had been a co-signor on Brass ‘N’ Things’ bank account, and as such he could sign on her husband’s behalf if he was sick. However, she was quick to point out that the Respondent had since been removed as co-signor. She explained that he had been a co-signor for 5 or 6 years and when she was asked when he was removed, she said she did not know, perhaps a year, two years or four years ago.

She indicated that she was added as co-signor when the Respondent was removed. [ 41 ] Mrs. S.D. was also quick to add that the Respondent did not receive any of the income that was reported on his Income Tax Returns. Rather, she indicated he was paid maybe $100 per week. When questioned why he reported business income for Brass ‘N’ Things, she said she did not know why. She indicated she had “ nothing to do with the books ”. [ 42 ] Overall, I did not find her testimony convincing. It was apparent she was simply there to support her son’s position. [ 43 ] The Respondent’s brother also testified.

He was more forthright. He indicated that the Respondent started working at the shop in grade 8 and worked there full-time until a few years ago. Then, business slowed down as a result of the pandemic. He acknowledged that the family could not close the business as that would kill his father. According to the Respondent’s brother, the business is what has kept his 81-year-old father alive. [ 44 ] He testified that his father works when he can. He testified that in spite of his own full-time employment, he puts in about 20 hours per week to help keep the business going.

He testified that the business was not generating any profit, and was more of a hobby at this point. That being said, he indicated that he did not know the financials of the business. [ 45 ] Although three witnesses testified that the business was doing poorly (the Respondent, his mother and his brother), all indicated they had no knowledge about the accounting side of it. The business’ bookkeeper was not called to testify, nor was any documentation submitted into evidence to shed any light on the business’ profitability. III.

CREDIBILITY [ 46 ] Before I go any further, I wish to address the credibility of both parties. [ 47 ] In Grover v. Ecerova , 2018 NBQB 8 , Walsh J. provided useful comments relating to the assessment of credibility: 103 Credibility assessments are required to be made. There are in essence two aspects to credibility - veracity (i.e., truthfulness) and

reliability (i.e., accuracy), but one does not necessarily lead to the other. Put differently, a court must be cautious for even a witness endeavouring to be truthful can be inaccurate. As well, it must be recognized that a court can accept all, part, or none of a witness's evidence, although a finding that a witness was deliberately untruthful on one aspect of the evidence might infect that witness's entire evidence. 104 There are any numbers of factors that can guide a court in assessing credibility.

They include plausibility, internal and external consistency, powers of observation, ability to recollect, self-interest, etc. (See: O'Brien v. O'Brien 2011 NBQB 179 at para. 102 (B.M. Robichaud J.) and D. (G.) v. D. (M.) 2005 NBQB 253 at para. 95 (Wooder J.) ); common sense and logic being the underlying assessment tool. I refer often to the following: ... There can be no rule as to when and to what extent inherent improbability must be taken into account by a trial judge.

As Lord Hoffman observed...: ... common sense, not law, requires that in deciding the question, regard should be had, to whatever extent appropriate, to inherent probabilities. ( F.H. v. McDougall 2008 SCC 53 at para. 48 ) [ 48 ] More recently, in S.F.D. v. M.T. , 2019 NBCA 62 , Baird, J.A. stated the following: 30 McLachlin C.J. in R. v.

R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , writes: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; [...].

In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. [para. 49] 31 At the end of the day, assessing conflicting evidence is a weighing exercise which requires a trial judge to use his or her common sense and experience. [ 49 ] Overall, the Court has some concerns with respect to the evidence that was presented in this case. [ 50 ] The Applicant did not seem to have a good recollection of the discussions she had with the Respondent in 2001 and in 2015.

At times, her testimony regarding these discussions seemed to be tailored to meet the requirements for an award of retroactive support. [ 51 ] As for the Respondent, he was simply not a credible witness. He feigned complete ignorance with regard to all of his Income Tax Returns. He signed a Financial Statement for the Court but knew very little about it. He signed an affidavit under oath but did not review it. There were several times during his testimony when he simply chuckled and seemed to find humor in all of this. Further, the evidence pertaining to his employment and his wages was inconsistent throughout.

III. ISSUES: [ 52 ] The issues to be resolved in this matter are as follows: (

i) Should the Court impute income to the Respondent? (ii) Has the Respondent established undue hardship? (iii) Should there be an order for retroactive child support? IV. ANALYSIS: [ 53 ] The Applicant advances her claim for child support pursuant to sections 10 , 11 and 12 of the Family Law Act, S.N.B. 2020, c.23 . ISSUE 1 – Imputation of Income [ 54 ] I start this

section with the following passage contained in the Court

Summary of the Supreme Court of Canada decision in Colucci v. Colucci , 2021 SCC 24 : (…) The child support system depends upon adequate, accurate and timely financial disclosure. Disclosure is the linchpin on which fair support depends and the relevant legal tests must encourage the timely provision of necessary information. In a system that ties support to payor income, it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it.

Thus, full and frank disclosure of income information by the payor lies at the foundation of the child support regime (…) [Emphasis added] [ 55 ] As indicated above, the Respondent argues that he cannot pay child support because he earns no income. [ 56 ] The Applicant asks the Court to impute income pursuant to

section 19 of the Federal Child Support Guidelines. She asks that, at a minimum, the Court impute a gross annual income of $26,812.00 based on the minimum wage rate of $13.75/hr effective as of October 1, 2022, and a 37.5 hour work week. She asks that an income of $24,862.50 be imputed retroactively based on the minimum wage rate of $12.75 per hour prior to October 2022.

[ 57 ] In the textbook Child Support Guidelines in Canada , 2022, the authors Julien D. Payne and Marilyn A. Payne, explain as follows at page 175:

Section 19 of the Guidelines does not require a court to impute income; it confers a discretion on the court to do so in circumstances where the court finds it appropriate. The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding but this does not relieve the parent against whom the imputation of income is sought from making full and complete financial disclosure so as to ensure that the information required to make a decision on the issue is before the court.

Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case for imputation of income, the onus shifts to the individual seeking to defend the income position he is taking. Imputation of income must be based on evidence and not speculation. A court cannot arbitrarily select an amount as imputed income. Income should not be imputed on the basis of suspicion where relevant evidence is lacking.

The court cannot assume facts; facts must be proven. (…) [Emphasis added] [ 58 ] The reason why the onus shifts to the individual disputing the imputation of income is simple: the information is in their possession and no one else's. As such, it would be unfair to expect the person seeking to impute income to bear the entire onus of proving the imputation of income ( Lo v. Lo , 2011 ONSC 7663 (Ont. S.C.J.), at para. 57 ). [ 59 ] The evidence before the Court reveals that in the three years which pre-date the Application for child support, the Respondent reported an average annual income of $20,058.00.

During the first court appearance in June 2020, the Respondent made it clear that he had no intention of paying child support. He indicated that he would quit his job if he was forced to pay child support. He later advised the Court at a subsequent appearance in October 2020 that he had not worked since the June 2020 appearance. [ 60 ] At trial, the Respondent did not dispute that he said he would quit. He testified that he did not actually quit.

He said there was no more work, that the business was failing because of the pandemic, and that he was already aware of that when he appeared in Court in June 2020. [ 61 ] The evidence also reveals that the business Brass ‘N’ Things continued to operate beyond 2020. The Applicant submitted into evidence several online advertisements from 2021 and 2023 for the business. The advertisements were posted by one “M.D.” but the Respondent denied doing so. The Respondent has the same name as his father and at trial, he testified that it was his 81-year-old father who posted the advertisements online.

He indicated his father was on his computer every day. However, the evidence before the Court is that his father is in poor health. He attends the hospital three days per week, up to 6 hours each day to undergo dialysis. [ 62 ] The Respondent’s Income Tax Returns confirm that the Respondent earned, or at the very least, reported business income in each of the years 2016 to 2020. He deposed in his affidavit that this was all part of an income splitting arrangement.

He testified that he never received any of the income reported on his Tax Returns, that this was done by the business’s accountant or bookkeeper and that he did not understand any of it. Neither the Respondent, nor his brother, nor his mother could provide further information. The business’s accountant or bookkeeper was never called to testify. [ 63 ] In the end, the Respondent acknowledged that the business was still running but he indicated it was not doing well and that there was no work for him to do and no money to pay him, that it was just his parents working there now.

Yet, his brother testified that he was spending 20 to 25 hours per week helping run the business. [ 64 ] While the Respondent repeatedly stated that post-pandemic, the business had been doing very poorly, no cogent evidence was submitted to support this premise. [ 65 ] Finally, the Respondent’s assertions about his income have been inconsistent throughout this process. What he told the Case Management Master in June 2020 regarding his employment and his income is not consistent with his current position.

However, as the Applicant pointed out, what has remained consistent is that the Respondent attended the first appearance in June 2020, declared that he would not pay child support and threatened that he would quit working to avoid paying child support, and the path these proceedings then took was consistent with that statement. [ 66 ] As indicated by Stephenson J. in K.E.M. v. K.G. , (unreported, NBKB, May 14, 2014), this is precisely what section 19(1)(

a) of the Guidelines was intended to address. For this reason, I find that income should be imputed to the Respondent. I also rely on section 19(1)(

d) of the Guidelines as there is sufficient evidence to convince me, on a balance of probabilities, that income has been diverted. [ 67 ] In any event, the Applicant has established a prima facie case. Once that was done, the onus shifted to the Respondent to put forth clear and compelling evidence to support his position. This, he failed to do. As was indicated in Colucci v. Colucci , supra, it is the Respondent who had access to the information needed to dispel the notion that income should be imputed.

He argued that those years when business income was attributed to him where the only years of his adult life when he theoretically had any income that could attract a child support award. Yet, he did not submit into evidence any Income Tax Returns pre-dating 2015. He argued that the business income which was reported on his Income Tax Returns was part of an income splitting arrangement put in place by the business’ accountant or bookkeeper and about which he knew nothing. Yet, he did not call this individual to testify and shed some light on this alleged arrangement.

He argued that the business was doing poorly financially but submitted no evidence to corroborate this allegation. [ 68 ] Overall, I find it reasonable to impute income to the Respondent. [ 69 ] When imputing income, the Court cannot speculate. It requires a rational basis upon which to impute income. It cannot be done arbitrarily. ( See Chiasson v. Doucet , 2014 NBCA 49 and M.R. v. J.R. 2018 NBCA 12 .) [ 70 ] In M.A.A. v. J.M.A. , 2011 NBQB 298 , Walsh J. stated at paragraphs 35 and 36: 35 The law cautions against making speculative decisions in fixing the level of income by imputation.

It cannot be arbitrary. (…)

(…) 36 The most cogent evidence I have before me is the father's historical earnings over the previous three years (which I have set outearlier). It was noted in D.L.M. v. J.A.M., supra at para. 34: "Courts are given a significant degree of discretion when imputing income,and there is no specific formula employed." In Lee v.

Lee (1999), (NL CA), 167 Nfld. & P.E.I.R. 176, which isreferred to in the D.L.M. decision at para. 34, the Court said: "Historical data is obviously important and usually the best forecast ofcurrent ability to pay." [Emphasis added] [71] In this case, the Respondent’s historical income information shows that he earned an average annual income of $20,058.00 inthe 3 years leading up to the filing of the Application. This is reflective of a pattern of income and is an amount that can be usedpursuant to s.17(1) of the Guidelines.

I find it fair and reasonable to impute an income of $20,058.00 to the Respondent in this case. ISSUE 2 - Undue Hardship [72]

Section 10 of the Federal Child Support Guidelines allows a Court to deviate from the Guidelines in the event of unduehardship. That

section provides as follows: 10

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined underany of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made,would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior tothe separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising parenting time with a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if itis of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support underany of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of livingtest set out in

Schedule II. (…) [73] In their textbook, Child Support Guidelines in Canada, 2022, Julien D. Payne and Marilyn A. Payne explain the purpose ofthe Federal Child Support Guidelines and provide some guidance as to what circumstances amount to undue hardship. At page 359, theauthors explain the following: The presumptive rule under

section 3 of the Federal Child Support Guidelines should not be displaced in the absence of specific andcogent evidence why the applicable table amount would cause an “undue hardship”.

Section 10 of the Guidelines is only availablewhere excessively hard living conditions or severe financial consequences would result from the payment of the Guidelines amount. [74] The onus of proving that the requirements of

section 10 of the Guidelines have been met falls upon the party who invokes theplea of undue hardship.[1] The payor must provide evidence in support of two pre-conditions: 1) proof of circumstances which wouldcause undue hardship, and 2) proof of a lower standard of living in the payor’s household (J.O. v. M.C., 2017 NBCA 15, per Baird J., atparas. 51 to 54). [75] In this case, neither pre-condition has been met. [76] The Respondent does not come within any of the circumstances outlined at subsection 10(2) of the Guidelines.

While the listis non-exhaustive, the Court was not provided with evidence of any other circumstances which may cause the Respondent unduehardship. General assumptions are not enough.

[ 77 ] More importantly, it was incumbent on the Respondent to provide the Court with the evidence necessary to conduct a comparison of the Respondent’s household standard of living and the Applicant’s household standard of living. The evidence is that the Respondent primarily resides with his brother and his parents. However, the household income was not disclosed. [ 78 ] The Respondent’s claim for undue hardship is therefore dismissed. The amount of child support payable shall be in accordance with s. 3 of the Guidelines . Here, the child is over the age of majority.

However, she continues to reside with the Applicant while attending university and as such, I find that it is appropriate to determine the amount as if she were under the age of majority, pursuant to ss.3(2)(

a) of the Guidelines . [ 79 ] Commencing June 1, 2023 and continuing on the 1 st day of each month thereafter until further Order of the Court, the Respondent shall pay child support of $160 per month based on an imputed income of $20,058.00 per year. ISSUE 3 - Retroactive Child Support [ 80 ] The Applicant is seeking child support dating back to 2015. [ 81 ] As the claim for retroactive child support is contained in an initial application (as opposed to an application for variation), D.B.S. v.

S.R.G. , 2006 SCC 37 applies . [ 82 ] In D.B.S. , the Supreme Court of Canada established four factors that Courts must consider before awarding retroactive child support. These factors are as follows:

(1) The reason for the recipient parent’s delay in seeking child support;

(2) The conduct of the payor parent;

(3) The circumstances of the child; and

(4) Any hardship occasioned by a retroactive award. [ 83 ] The exercise is a holistic one. No one factor is determinative or decisive.

(1) Delay [ 84 ] Here, the Court must consider why a claimant waited to bring an application. In Michel v.

Graydon , the Supreme Court concluded that with respect to the issue of delay in making an application, “ the focus should be on whether the reason provided is understandable ” rather than whether the support recipient had a “ reasonable excuse ” for the delay. [ 85 ] As Martin J. further explained at paragraphs 113 and 114, “ a delay will be prejudicial only if it is deemed to be “unreasonable”, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made ”, and “the longer the delay, the more weight may go against the justification ”. [ 86 ] In this case, the Applicant mother testified that when she told the Respondent of her pregnancy, the Respondent threatened to seek custody of the child.

I have not been convinced that this conversation took place. I find it far more plausible that the Respondent simply was not interested in having any further involvement with the Applicant and the child that was on the way. [ 87 ] The Applicant also explained that when she was involved with the Respondent in the summer of 2001, he was rude, crude, aggressive and he drank a lot. She did not want him around the child. I find this explanation plausible. The fact of the matter is that the parties did not know each other.

Neither could envision being tied to the other, or raising a child together. [ 88 ] The Respondent argues that the mother’s delay was unreasonable. Even if the mother would have broached the topic of child support at the time of her pregnancy in 2001 (which I find she did not), I would agree that an 18-year delay to file a claim would have been unreasonable. Such a lengthy period of inactivity would militate against such a lengthy period of retroactivity. However, the mother does not seek support going back to 2002 when the child was born. Rather, she only seeks support retroactive to 2015.

(2) Conduct of the payor [ 89 ] Blameworthy conduct is not a prerequisite to a retroactive award of child support. Nevertheless, when considering the propriety of a retroactive award, the Court should consider whether the payor parent has engaged in blameworthy conduct.

At paragraph 106 of D.B.S. , Bastarache J. urges courts to “ take an expansive view of what constitutes blameworthy conduct in this context ”, which he characterizes as “ anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support ”. [ 90 ] There is no doubt that the Respondent engaged in blameworthy conduct after the Application was filed in 2020. [ 91 ] However, as it pertains to the claim for retroactive support, there are several factors that come into play. On the one hand, the Respondent never paid any child support.

On the other hand, he was never contacted when the child was born and I note that as recently as 2015, there remained a cloud of uncertainty over his paternity. [ 92 ] The Applicant argued that in 2015, the Respondent knew or ought to have known he should be paying child support. However, when paternity was confirmed, he was never informed of the results. Thus, it is difficult to ascribe blameworthy conduct to the Respondent for failing to pay child support under those circumstances. [ 93 ] At the earliest, it was when the child contacted him in December 2018 that paternity was confirmed.

(3) Circumstances of the child [ 94 ] There was no evidence before the Court that the child struggled over the years. However, that is not a prerequisite to an award of retroactive child support. In Michel v. Graydon , Martin J. stated: 112 (…) this does not mean that any kind of need or hardship is a necessary antecedent to an award for retroactive child support.

Indeed, D.B.S. explicitly indicated at para. 113 that a payor parent’s obligation will not “disappear where [their] children do not ‘need’ [their] financial support” (see also Swiderski (S.C.), at paras 93-95). (…) [ 95 ] Had there been evidence that the child had been deprived of anything during her childhood, this would have weighed in favour of an award and perhaps even expanded the temporal reach of the award.

(4) Hardship [ 96 ] Here, the focus is not only on any hardship caused to the payor, but also the hardship which would result on the child and the recipient ( Michel v. Graydon per Martin J. at 124-125). [ 97 ] In this case, very little evidence was provided to suggest that the Respondent would suffer hardship in the event an award of retroactive support was made. The Respondent lives rent-free and appears to have few debts or obligations. [ 98 ] In the end, the Court must conduct a holistic and relative assessment.

While the facts of this case may lean toward a retroactive order, the difficulty lies in the date of retroactivity. [ 99 ] In D.B.S. , the Supreme Court of Canada settled on the date of effective notice as the general rule for the date of retroactivity. Bastarache J. explained the concept of effective notice as follows: 121 (….) By "effective notice", I am referring to any indication by the recipient parent that child support should be paid , or if it already is, that the current amount of child support needs to be re-negotiated.

Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair , and his/her interest in certainty becomes less compelling. [Emphasis added] [ 100 ] In this case, I find there was no effective notice given, as the topic was never broached.

While there may have been some vague discussion of child support in 2015 when the Applicant indicated she did not want anything from the Respondent, as indicated above, there remained an air of uncertainty regarding the child’s paternity at that point. When the issue was confirmed to the Respondent in December 2018, there was no request for child support.

It was only in January 2020, when the Application was filed, that the claim for child support crystallized. [ 101 ] Therefore, the Respondent shall be required to pay child support from January 1, 2020 onward, which I have calculated as follows: Year Respondent Father’s Income Monthly Child Support Payable Annual Child Support Payable Child Support Paid Amount outstanding 2020 $20,058.00 $160/mth $1,920.00 $187.75 $1,732.25 2021 $20,058.00 $160/mth $1,920.00 $637.00 $1,283.00 2022 $20,058.00 $160/mth $1,920.00 $757.25 $1,162.75 2023 $20,058.00 $160/mth $800.00 $0.00 $800.00 Total $4,978.00 [ 102 ] The amount owed is not truly retroactive because it arose after the Application was filed.

Any hardship that the Respondent might face as a result of having to pay this award is self-imposed. The Respondent chose not to pay child support after a claim was made or even after an interim order was made in June 2020. As such, he is the author of his own misfortune. [ 103 ] The amount owed is payable forthwith. I see no reason why the Applicant should wait any longer to receive payment. [ 104 ] Finally, in her Application, the Applicant asked for a contribution toward the child’s university expenses pursuant to s. 7 of the Guidelines .

At trial, she conceded that if the Court imputed a minimum wage salary (or less) to the Respondent, she was no longer pursuing this claim. As such, no order is made under

section 7. [ 105 ] Before disposing of this matter, the Court must address the issue of costs. [ 106 ] Here, the Applicant was successful. At trial, the Respondent vehemently argued that no costs should be awarded because both counsel had been appointed through Legal Aid. I am not aware of any jurisprudence which provides that Legal Aid clients are somehow inoculated from awards of costs. [ 107 ] The fact is that the Respondent failed to disclose his income information in a timely fashion, and he took an untenable position at trial. Costs of $800 are awarded in favour of the Applicant. V.

DISPOSITION: [ 108 ] Commencing June 1, 2023 and continuing on the 1 st day of each month thereafter until further Order of the Court, the Respondent shall pay child support of $160 per month for the child based on an imputed annual income of $20,058.00.

[ 109 ] The Respondent’s arrears of child support are assessed at $4,978.00 for the period of January 1, 2020 to May 31, 2023. The Office of Support Enforcement shall make the necessary adjustments to their records to reflect these arrears. [ 110 ] The arrears are payable forthwith. [ 111 ] The Respondent shall pay costs of $800, again payable forthwith. DATED at Saint John, New Brunswick this ______ day of May, 2023. ___________________​​​​​​​​​_____________ Chantal N. Daigle Justice of the Court of King’s Bench of New Brunswick - Family Division