M.P., Applicant (Respondent on Motion), – v. –, 2021 NBQB 77

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON M.P. v. B.R. 2021 NBQB 077 FDM-93-2005 2021/04/12 BETWEEN: M.P., Applicant (Respondent on Motion), – and – B.R., Respondent (Applicant on Motion). DECISION BEFORE: Madam Justice Colette M. d’Entremont AT: Moncton, New Brunswick DATE OF HEARING: February 25, 2021

DATE OF DECISION: April 12, 2021 APPEARANCES: Céline Robichaud Fournier, for M.P., Respondent on Motion B.R., self-represented, Applicant on Motion d’Entremont, J. OFFICIAL LANGUAGES ACT [ 1 ] The proceedings leading to the issuance of this decision were conducted in both official languages, with the Applicant on Motion proceeding in the English language and the Respondent on Motion proceeding in the French language. Pursuant to

section 24 of the Official Languages Act , S.N.B. 2002, c. O-0.5 , the decision should be published in both official languages. I am of the view that to do so now would result in a delay, injustice, and hardship to the parties to the proceedings; therefore, the decision will be published in the first instance in the English language and thereafter at the earliest possible time, in the French language. INTRODUCTION [ 2 ] On April 11, 2019, Mr. B.R. filed a motion requesting a variation of child support. Ms. M.P. was served with the pleadings on April 17, 2019. Mr.

B.R. is asking the court to recalculate child support retroactive to 2016. He is also advancing that the child support benefiting each child should terminate in the year the child in question became independent. [ 3 ] In response, Ms. M.P. is requesting a retroactive increase to child support back to 2006. As well, she is asking that Mr. B.R. contribute to special and extraordinary expenses retroactive to 2006.

Finally, she argues that the oldest child was a dependent until she turned 21 years old, in the summer of 2019. [ 4 ] The matter is based on the Family Law Act , S.N.B. 2020 c.23 , and the Federal Child Support Guidelines , SOR/95-175. FACTS [ 5 ] The parties started living together in the summer of 1997. They were never married. They separated in 2002. [ 6 ] There are three children born of the relationship: F.R., born […], 1998, K.R., born […], 1999, and A.R., born […], 2000. [ 7 ] The parties agree that K.R. became independent on August 1, 2017 as this is when she moved to Victoria, British Columbia.

They agree that A.R. became independent on August 1, 2019. By then she had had a child. [ 8 ] There is a dispute surrounding F.R. with Mr. B.R. arguing that she became independent September 1, 2016, when she was 18½ years old. On the other hand, Ms. M.P. argues that she became independent in August of 2019, when she was 21 years old.

[ 9 ] Following the separation of the parties, Ms. M.P. had the majority of the parenting time with the children. At times, Mr. B.R. had parenting time with the children every second weekend and on holidays. [ 10 ] The interim order dated November 10, 2005 provided that Mr. B.R. pay child support of $153 per month in favour of Ms. M.P. starting November 15, 2005. This amount was based on an annual income of $11,600. [ 11 ] The order of March 28, 2006 indicated that Mr. B.R. was to pay childcare expenses for the three children.

The sum of $582 was the amount determined to be owing by him for the period of September 2005 to February 2006. The order stated that there were no childcare fees payable after February 2006 until further order of the court. [ 12 ] The next order is dated May 24, 2006. It provides that Mr. B.R. was to pay Ms. M.P. monthly child support of $535 per month for three children starting May 1, 2006. Mr. B.R. was ordered to provide Ms. M.P. with a copy of his income tax return every year on the last of May, starting in May of 2007. The order of May 2006 is the order that Mr.

B.R. is seeking to vary in the within motion. [ 13 ] Mr. B.R. testified at trial. He indicated that generally he has been employed in the field of woodworking. He claims that this work is seasonal such that he would work from May to November and he rarely worked from December to April. Most years, during the colder months of the year, he collected employment insurance benefits. [ 14 ] Mr. B.R. admits that for a certain period of time he was employed as a rock truck operator. Then he worked as a long-haul truck driver.

He did not like being away from his home, therefore he left this position and returned to working as a woodworker. From 2008 to 2019, Mr. B.R. was employed by We[…] of Scoudouc, New Brunswick. He worked 40 hours per week and was paid $14.15 per hour. [ 15 ] Then Mr. B.R. was employed by Wi[…] in Moncton, working 40 to 45 hours per week. At first, he was paid $18.50 per hour, and then $19.50 per hour. [ 16 ] Around 2008, Mr. B.R. was living in a rooming house. He wanted to move into an apartment so that he could have parenting time with the children. He claims that Ms.

M.P. agreed to lower his monthly child support from $535 per month to $200 per month so that he could afford to live in an apartment. Therefore, the New Brunswick Office of Support Enforcement only collected $200 per month for child support from Mr. B.R.. Ms. M.P.’s version is that she agreed that Mr. B.R. could make partial payments of $200 per month. However, her understanding was that the arrears of child support continued to accumulate and would be paid whenever Mr. B.R. had the means to pay these. [ 17 ] Mr.

B.R.’s annual income and contributions to union dues have been as follows: 2006 Total Income Union dues $29,087 $336 2007 Total Income Union dues $26,056 $235 2008 Total Income Union dues $26,253 $319 2009 Total Income Union dues $30,533 $268 2010 Total Income Union dues $35,115 $521 2011 Total Income Union dues $34,056 $435 2012 Total Income Union dues $30,213 $493 2013 Total Income Union dues $33,731 $538 2014 Total Income Union dues $34,402 $537 2015 Total Income Union dues $34,606 $555 2016 Total Income Union dues $33,721 $557

2017 Total Income Union dues $35,859 $574 2018 Total Income Union dues $35,834 $159 [ 18 ] Throughout the period of May of 2006 to January of 2021, Mr. B.R. has made the following payments towards child support according to the New Brunswick Office of Family Enforcement accounting. Year Child Support Paid 2006 $3,524 2007 $1,200 2008 $744 2009 $5,101 2010 $2,345 2011 $7,772 2012 $7,037 2013 $6,960 2014 $6,960 2015 $7,097 2016 $10,078 2017 $6,995 2018 $6,085 2019 $7,357 2020 $3,942 To Jan./2021 $200 Total $83,397 [ 19 ] Lately, Mr.

B.R. has been paying $200 per month towards the child support arrears. [ 20 ] For her part, Ms. M.P. has worked as a university professor and as a school teacher during the past years. She holds a Bachelor of Education degree. [ 21 ] While the children were living with her, Ms. M.P. incurred debts, some of which were as a result of paying for orthodontic braces for the children and psychological services for F.R.. In 2015, Ms. M.P. filed a consumer proposal under the Bankruptcy and Insolvency Act . [ 22 ] Ms. M.P. had the majority of the parenting time with the children.

She is the one who has ensured all their needs were met. Other than the child support paid by Mr. B.R., Ms. M.P. was solely responsible for the expenses relating to the children. [ 23 ] Ms.

M.P.’s total annual income and contribution to union dues has been as follows in the past years. 2006 Total Income Union dues $59,681 $732 2007 Total Income Union dues $65,801 $708 2008 Total Income Union dues $79,394 $1,063 2009 Total Income Union dues $67,729 $1,088 2010 Total Income Union dues $80,476 $1,132 2011 Total Income Union dues $81,232 $1,166 2012 Total Income Union dues $90,745 $1,202 2013 Total Income Union dues $95,495 $1,212 2014 Total Income Union dues $82,201 $1,252 2015 Total Income Union dues $92,933 $1,211

2016 Total Income Union dues $81,472 $1,127 2017 Total Income Union dues $85,761 $1,317 2018 Total Income Union dues $56,795 $551 2019 Total Income Union dues $88,269 $875 [ 24 ] Regarding F.R., Ms. M.P. explained that she is intelligent, but she was not interested in school. While F.R. was a teenager, she used drugs and alcohol. In grade 8, and again in grade 9, she attempted suicide. She was followed by a psychiatrist while she was in grade 9.

Her mother explained that F.R. has difficulties with interpersonal relationships and she has impulsive behaviours. [ 25 ] When F.R. was prescribed medication, she refused to take the medication. She did not always collaborate with the health professionals who were there to help her, nor did she follow their advice. [ 26 ] In 2016, F.R. graduated from grade 12. She had no plan to pursue post-secondary education thereafter. [ 27 ] From September of 2016 to January of 2017, F.R. lived with her boyfriend in Fredericton. While she was in Fredericton, she worked about two months at an Indian restaurant.

Her boyfriend was studying at the time. During this timeframe, Ms. M.P. contributed to F.R.’s cellular phone bill and to her medical expenses. [ 28 ] In January of 2017, F.R. returned to live with her mother. From February to the fall of 2017, F.R. worked at Starbucks. She earned minimum wage and was working 30 to 40 hours per week. During this time period, she was living at her mother’s house. F.R. did not pay rent to Ms. M.P.. [ 29 ] On […], 2017, F.R. turned 19 years of age which is the age of majority in New Brunswick. [ 30 ] By the end of August of 2017, F.R. moved to Quebec and later she moved to Montreal.

During the months of August to November of 2017, F.R. paid her own rent. Sometimes, Ms. M.P. contributed to some of the expenses incurred by F.R.. [ 31 ] In January of 2018, F.R. returned to live with her mother. Ms. M.P. helped her to move from Quebec to New Brunswick. One month later in February of 2018, F.R. returned to live with her boyfriend for three months. In April of 2018, F.R. returned to live with her mother, Ms. M.P.. During this period, F.R. also returned to work at Starbucks. [ 32 ] According to Ms. M.P., F.R. has difficulty managing her finances. [ 33 ] At some point, F.R. returned to live with Ms.

M.P. on P[…] Street, in Moncton, and she lived there with her mother until June of 2019. Afterwards, Ms. M.P. moved away from P[…] St. and she went to live in another house in St-Antoine, New Brunswick. [ 34 ] By the fall of 2019, F.R. commenced a massage therapy course. By then, Ms. M.P. was of the view that F.R. was independent. By then, she was 21½ years old. [ 35 ] From the time F.R. graduated from high school in June of 2016 to fall of 2019, Ms. M.P. contribute to F.R.’s cellular phone bill. At times, she paid for her medication and for fees incurred as a result of consultations with the psychologist.

As well, Ms. M.P. bought groceries for F.R..

[ 36 ] Generally, when F.R. moved from one city to another, Ms. M.P. helped her out. At times when F.R. was not living with her boyfriend or was not living in another city, she returned to Ms. M.P.’s house who provided her with a place to live and with meals. [ 37 ] A report dated March 16, 2019 from Tatiana Villalon, psychologist, was entered into evidence. Ms. Villalon is of the view that F.R. experiences anxiety and depression. She has confused ideas and has impulsive behaviours. Ms. Villalon has had consultations with F.R. every second week from May 15, 2018 to March 16, 2019. As well, Ms.

Villalon is of the view that F.R. is dependent on her mother, as she has not achieved stability allowing her to meet her needs. [ 38 ] Furthermore, the evidence contains a brief note dated March 15, 2019 from Dr. Manon Belliveau. The note reads as follows: This is to certify that F.R. is not medically stable and unable to care for herself and is not an independant adult. She requires supervision by her mother M.P.. [ 39 ] F.R.’s income tax returns have been entered into evidence.

F.R.’s annual income has been as follows: 2017 $11,337 2018 $686 2019 $10,727 [ 40 ] During the years that the children were living with her, Ms. M.P. had dental and medical insurance for the benefit of the children and herself. [ 41 ] Ms. M.P. is claiming a contribution from Mr. B.R. to special expenses. More specifically, she testified at trial that in the past she had incurred the following expenses for the benefit of the children.

Year Expense Amount 2006 Childcare $8,004 2007 Childcare $11,500 2008 Childcare $5,500 2009 Childcare $2,000 Feb. 16, 2016 Dentist $172 Feb. 20, 2017 Dentist $175 March 16, 2016 Dentist $143 Oct. 31, 2017 Dentist $136 May 19, 2017 Dentist $145 June 27, 2017 Dentist $49 June 19, 2017 Dentist $209 Aug. 18, 2017 Dentist $158 Jan.-Dec. 2016 Orthodontist $2,660 [ 42 ] Ms. M.P. is arguing that Mr. B.R.’s proportionate share of these special expenses is $8,473. [ 43 ] The first time Mr. B.R. found out about these expenses was at the within trial on February 25, 2021.

His position is that he was not informed of these expenses when they were incurred and that he should not be ordered to contribute to these. ISSUES [ 44 ] The issues in the within matter include the following:

a) When should the child support paid for the benefit of the oldest child come to an end?

b) Should there be a retroactive variation to the child support previously ordered to be paid?

c) Should there be an order made for a proportionate sharing of special expenses?

d) Should there be an award of costs? Family Law Act [ 45 ] The Family Law Act provides that a child support order may be varied prospectively or retroactively. More particularly

section 22 reads as follows: 22(1) Subject to this section, if a child support order has been made under subsection 11(1), on application by any person named in the order or the Minister of Social Development, the Court may, by order, (

a) discharge, vary or suspend any term of the order, prospectively or retroactively, (

b) relieve the person who is obligated to provide support from the payment of part or all of the arrears or any interest due on the arrears, and (

c) include in an order to vary any provision that under this Act could have been included in the child support order in respect of which the order to vary is sought. 22(2) Before the Court makes an order to vary a child support order, the Court shall satisfy itself that a change of circumstances as provided for in the child support guidelines has occurred since the making of the child support order under subsection 11(1) or since the last order to vary was made in respect of that order. 22(3) When making an order to vary a child support order, the Court shall determine the amount of support in accordance with

section 12. [ 46 ] Subsection 12(1) of the Family Law Act describes what the amount of child support should be. It reads as follows: 12(1) In a child support order made under subsection 11(1), (

a) if the child has not attained the age of majority, the support to be provided shall be an amount determined in accordance with the child support guidelines, or (

b) if the child has attained the age of majority, the support to be provided shall be an amount determined in accordance with the child support guidelines or, if the Court considers that amount to be inappropriate, an amount the Court considers appropriate, having regard to the means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child. [ 47 ] Finally, the term child is defined in

section 9, which reads as follows: 9 In this Part, “child” means (

a) a person who has not attained the age of majority who has not withdrawn from the charge of their parents, or (

b) a person who has attained the age of majority who is under the charge of their parents and is unable to withdraw from their charge or to obtain the necessaries of life by reason of

(

i) illness, (ii) disability, (iii) pursuit of reasonable education, or (iv) any other cause. Cessation of child support for the oldest child [48] There is a dispute as to when the child support should cease for the benefit of the oldest child. The following paragraph found atpage 39, of the textbook Child Support Guidelines in Canada, 2020, by Julien D. Payne and Marilyn A. Payne is useful in theinterpretation of the term child, in the context of when child support should cease to be paid.

Important factors in determining whether an adult child is a child of the marriage are employability and the extent of the disability whendetermining whether that individual is able to obtain the necessaries of life. A time limited support order for an adult child isinappropriate where the child’s future ability to “withdraw from parental charge” is unpredictable. An adult child with a disability maybe found to be a “child of the marriage” within the meaning of section 2(1) of the Divorce Act, but the amount of monthly supportpayable pursuant to section 3(2)(

b) of the Federal Child Support Guidelines may take account of the custodial parent’s receipt of aprovincial subsidy for the disabled adult child. Section 3(2)(

b) of the Federal Child Support Guidelines empowers a court to deny acustodial parent’s application for the support of an adult disabled child where the non-custodial parent is responsible for unusually highaccess expenses and disability benefits, including subsidized housing, and diverse services, including respite care, are provided free ofcharge by the province. Proof of an adult child’s disability does not itself justify a child support order where there is no evidence that thedisability prevents the child from obtaining gainful employment; evidence of financial dependence is required.

Cogent evidence must beprovided by the parent requesting support about the nature and extent of the child’s disability or illness, and the manner and extent towhich this disability or illness is impacting on the child’s ability to obtain the necessities of life on their own. Bald statements from aparent that the child suffers certain disabilities or illnesses with nothing more will not suffice. [49] The Court of Appeal of New Brunswick in Scott v. Scott, 2004 NBCA 99, dealt with a situation in which a young man haddisabilities and his mother had requested child support on his behalf.

The following passages found in paragraphs 47 and 48, penned byJustice Richard, as he then was, are relevant to the issues. 47 The words of this Court in Crawford v. Crawford (1999), (NB CA), 212 N.B.R. (2d) 196 at para. 7 (C.A.) arequite apposite: Proof of a disability in and of itself will not be sufficient to maintain a support award. (See Jorden v. Jorden (1995), (NB KB), 162 N.B.R. (2d) 241 (Fam. Div.) and Leblanc v. Leblanc (1996), (NB KB), 174 N.B.R. (2d) 321 (Fam.Div.)). Once a child has reached the age of majority he or she is no longer presumptively a child of the marriage.

Furthermore an adultchild who has no definite educational plans (Chalmers v. Chalmers, [1997] A.J. No. 433), and has made no effort to find employment isnot generally a child of the marriage entitled to support (Giorno v. Giorno (1992), (NS CA), 39 R.F.L. (3d) 345(N.S.C.A.)). 48 Following Crawford, I am of the view that the evidence was insufficient to permit the motions judge to classify A. as a person whois unable, by reason of disability, to withdraw from his parents' charge or to obtain the necessaries of life.

It was simply not demonstratedat trial that A. could not engage in some form of gainful employment. [50] In other words, evidence that an adult child has a disability does not imply that an award of child support will be made for thatperson’s benefit. There needs to be proof that the disability in question prevents the individual from finding employment. As well, thereneeds to be proof of dependency.

[51] Regarding the term unable to obtain “the necessities of life”, this term is explained at pages 37 and 38 by Prof. Payne in ChildSupport Guidelines in Canada, 2020. The relevant passages read as follows.

A court may order support for a child under the age of majority who has not withdrawn from his or her parents’ charge or for any childover the age of majority who is unable to withdraw from his or her parents’ charge or obtain the necessaries of life by reason of “illness,disability or other cause.” “Necessaries of life” have traditionally included shelter, food, clothing, household equipment, and medicaltreatment, but section 2(1) of the Divorce Act should not be narrowly construed as meaning bare necessities, such as food and shelter.

Itwill vary with the specific applicant considering their reasonable expectations. The phrase is sufficiently broad to encompass areasonable program of education that will prepare an adult child to function effectively in an increasingly technological society. Thewords “or other cause” are not to be construed ejusdem generis with the preceding words “illness, disability.” An order for the support ofan adult child will not be made unless there is sufficient evidence to establish that such an order is justified.

Each case is determined onits own facts and all of the circumstances must be considered in determining whether a child remains a child of the marriage. [52] Therefore, the necessaries of life mean shelter, food, clothing, household equipment, medical treatment and other items.However, each case depends on the facts on which the claim is based. [53] Ms. M.P. is requesting child support for F.R. up to the summer of 2019. After completing high school in June of 2016, F.R. didnot pursue post-secondary education.

She was in a common-law relationship and lived with her companion away from the family homefor extended periods of time. As well, she was employed at various stages thereby earning $11,337 in 2017 and $10,727 in 2019. In theyear 2018, she earned $686. At certain periods of time, she lived in Fredericton, Quebec and Montreal. [54] The pattern was such that F.R. moved away from her mother’s home in Moncton. Then after four or five months, she wouldreturn to her mother’s home for a few months, then she moved out again. When asked what Ms.

M.P. contributed to F.R.’s expenses shereplied that she helped pay her cellular phone bill, she helped with moving and at times she bought groceries. As well, Ms. M.P. helpedpay fees incurred as a result of consultations by F.R. with a psychologist. Whenever F.R. came back home, Ms. M.P. provided her with aplace to live and meals to eat. [55] Although F.R. has a disability, that is that she suffers from anxiety and depression, this will not imply that a child support awardshould continue for her benefit. The fact is that F.R. worked at different times.

I acknowledge that she earned minimum wage and thather income was limited. [56] To summarize, F.R. lived with a common-law partner for extended periods of time, she lived in various cities, she had no plan topursue her education and she worked for extended periods of time. Taking a holistic approach to the facts of this case, I am of the viewthat when F.R. left her mother’s home and moved in with her partner in September of 2016, she was able to meet her own financial needsand obtain the necessities of life.

As such, F.R. had withdrawn from the charge of her parents and was not a child under the definition“child” found in

section 9 of the Family Law Act. Therefore, Mr. B.R.’s obligation to pay child support for F.R. will terminate August of2016. Retroactive variation of child support [57] The parties in the within matter are requesting a retroactive recalculation of a previous final order relating to child support for thebenefit of young adults who have ceased to be children under the Family Law Act. [58] In Michel v.

Graydon, 2020 SCC 24, the Supreme Court of Canada was tasked with deciding if it was possible to vary a childsupport order under the Family Law Act, S.B.C. 2011, c. 25, after the order had expired and after the child support beneficiary ceased tobe a “child” under the said Act. The reasons of the majority of the Court, penned by Justice Brown, indicate that the court had authorityto retroactively vary a child support order, even if the person for whom the benefits were paid was no longer a dependent child.Paragraphs 22 and 28 are relevant in this regard.

They read as follows. 22 Examining s. 152 of the FLA in the light of this Court’s examination in D.B.S. of s. 15.1 of the Divorce Act, what becomes readilyapparent is what s. 152 does not contain. The FLA replaced its predecessor, the Family Relations Act, which stated, for both original andvariation applications, that “[a]ny person may apply for an order ... on behalf of a child” (s. 91(3)).

Relying on D.B.S., courts haveinterpreted this language as conditioning a court’s authority to order child support upon the beneficiary’s dependant status, which was thestate of the law in British Columbia when the FLA was enacted (de Rooy v. Bergstrom, 2010 BCCA 5, 4 B.C.L.R. (5th) 74, at para. 65,citing McDonald v. McDonald, 2008 BCSC 1203, at para. 34 ). While it is unnecessary to decide here whether a reference to thedefined term “child” should properly be construed as limiting the court’s authority to grant retroactive support, what is clear is that this

same language was not included in s. 152(1) when the FLA was enacted. Section 152(1) contains no reference to the defined term “child”that might serve to qualify the authority of a court to vary child support.

Rather, s. 152(1) states simply that “[o]n application, a courtmay change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.” While s. 152(2) listspreconditions (at least one of which must be present before making a variation order), none of those conditions relate to the dependentstatus of the beneficiary of a child support order. (…) 28 In sum, the text of s. 152 and the scheme of the FLA indicate that the Legislature authorized a court to vary any child support order,irrespective of whether the beneficiary remains a dependent child, and irrespective of whether the order continues to require payment.(…) [59] The court then determined whether a retroactive award was appropriate.

Justice Brown explains that once a court determines thatthe legislative scheme grants the authority to retroactively vary an order, the question of whether it should, and the analysis provided inD.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry, Hiemstra v. Hiemstra 2006 SCC 37 , [2006] 2 S.C.R. 231 should befollowed.

This is explained in paragraph 29 of the decision which reads as follows: 29 Having decided that the applicable legislative scheme confers authority on a court to order retroactive child support, the questionthen arises whether a court should order retroactive child support in the circumstances of the case. To be clear, and as D.B.S. shows, thisis a distinct question and entails a distinct analysis.

A court hearing an application for retroactive child support must consider whetherthe recipient parent’s delay in seeking variation is reasonable in the circumstances, the payor parent’s conduct, the circumstances of thechild, and whether any hardship would result from a retroactive award (D.B.S., at para. 133).

These same considerations are equallyapplicable after the child support beneficiary ceases to be a dependent child; while the beneficiary may no longer be a dependent childbecause of the recipient parent’s delay, it remains open to the recipient parent to show that their delay was reasonable. [60] In New Brunswick, the applicable legislative scheme is subsection 22(1) of the Family Law Act. It provides that when a childsupport order has been made, on application, by a person named in the order, the court may discharge, vary or suspend any term of theorder prospectively or retroactively.

The court may relieve a person who is obligated to provide support from the payment of arrears.Before varying a child support order, the court should satisfy itself that a change of circumstances as provided for in the child supportguidelines has occurred since the issuing of the original child support order. Subsection 22(1) of the Family Law Act does not makereference to the term “child” that could potentially restrict the court’s authority to vary child support. Much like

section 152 of the BritishColumbia legislation, the New Brunswick subsection 22(1) of the Family Law Act states that on application, a court may, discharge,vary or suspend any term of the child support order prospectively or retroactively. [61] All in all, I am of the view that subsection 22(1) of the Act grants authority to the court to vary a child support order, even if thebeneficiary is no longer a dependent child. [62] As I have authority to vary retroactively the child support order, I should follow the D.B.S. analysis to determine if I ought tovary the previous order. I must look at the following factors:

a) The recipient parent’s reason for delaying the application for varying child support;

b) The conduct of the payor parent;

c) The circumstances of the children;

d) The hardship the award creates for the payor or recipient parent;

e) The date of effective notice. [63] The first factor I must look at is the recipient parent’s reason for delaying the application. In the matter before me, it is the payorparent Mr. B.R. who brought the initial Motion to Change on April 11, 2019, as by then all three children had finished high school andnot one of them had plans to attend post-secondary education. It is only on May 22, 2019, in her Answer and Response that the recipientparent Ms. M.P. requested a retroactive calculation of child support to May 24, 2006, that is the day the previous final order was granted.Ms.

M.P. testified she did not pursue the matter earlier as the Family Enforcement Office had difficulty collecting the previously orderedamount of $535 from Mr. B.R..

[ 64 ] As to the conduct of the payor parent, it is correct that Mr. B.R. failed to disclose his income tax returns to Ms. M.P. as ordered in the 2006 order. From 2006 to 2019, Mr. B.R.’s income varied from $26,000 per year to $35,800 per year. On the other hand, Ms. M.P.’s blameworthy conduct is that she failed to advise the Family Enforcement Office that the children were no longer dependent and no longer entitled to benefit from the child support award. [ 65 ] As to the children’s needs and the hardship during their childhood, the children lived primarily with Ms. M.P..

From 2006 to 2019, her income ranged from $59,700 to $95,500, thereby earning two to three times the annual income of Mr. B.R.. The order of 2006 established Mr. B.R.’s child support obligation at $530 per month. In the within matter, Ms. M.P. is requesting an award of child support according to the applicable tables, ranging from $511 to $696 per month. Extra funds from Mr. B.R. could have benefited Ms. M.P. with her budget. [ 66 ] The next factor is the hardship that a retroactive award might entail, in other words, the ease with which the payor parent, Mr. B.R., might be able to pay such award. Mr.

B.R. can be characterized as the working poor. He lived in boarding rooms for four years and was unable to accommodate the visits with the three children as he could not afford to rent an apartment. A large retroactive award would create a hardship to him. [ 67 ] Then I must consider the hardship which would be caused to the children and the recipient parent, Ms. M.P., from not ordering the payment of sums owing but unpaid. I recognized that Ms. M.P. filed a consumer proposal at one point, meaning that she had difficulty meeting her budget.

At this stage, I do not believe the children will suffer a hardship from not granting sums owing but unpaid. [ 68 ] Turning to the issue of “effective notice”, I recognize that the majority of the Supreme Court of Canada in the Michel v. Graydon case agreed that it was appropriate for the hearing judge to award retroactive support dating back to the original consent order, as the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct.

For her part, Justice Martin was of the view that effective notice to the payor parent, that is the default date to which a child support award should be retroactive, is a broad concept going beyond the knowledge of a filed application. As well, Justice Martin goes on to describe that the distinct features of child support reduce the concern pertaining to lack of notice. Further, the payor parents should know what they are liable to pay according to the Federal Child Support Tables given their respective incomes. [ 69 ] The date of effective notice was when the pleadings were filed in this matter.

However, the date of effective notice is not contested as both parties want a retroactive calculation going back a number of years. [ 70 ] For the period of July 2009 to January 2011, the parties had an agreement that Mr. B.R. would pay a partial payment of $200 for the child support. Mr. B.R. then was able to afford to move into an apartment. Mr. B.R. argued that Ms. M.P. was foregoing the extra $335 per month. However, I agree with Ms. M.P.’s

interpretation that the balance of $335 per month was still accumulating as arrears but would be paid at a later date. [ 71 ] Surely, if Ms. M.P. had wanted an increase in child support retroactive to 2006, she would not have made a deal with Mr. B.R. that she would accept a partial payment of $200 per month for the period of October 2008 to February 2011. In the year 2012, Mr. B.R.’s annual income was $29,720, which is not a substantial increase from the annual income on which the original order was based. [ 72 ] In 2013, Mr.

B.R.’s income minus the union dues was $33,193 meaning a $4,000 increase in his yearly income. This amounts to a change in circumstances implying a different table amount. In my view, in the within circumstances it is from this date that the child support should be recalculated. The recalculation showing Mr. B.R.’s monthly child support obligation, considering the date when the children ceased to be dependents and given what he has paid, can be summarized as follows. [ 73 ] On December 31, 2012, Mr. B.R.’s outstanding child support was $16,191.

Year Income- Union dues No. of children Child Support Amount paid 2013 $33,193 3 $631 x 12 months = 7572 $6,968 2014 $33,865 3 $644 x 12 months = 7728 $6,960 2015 $34,051 3 $646 x 12 months = 7752 $7,097

2016 Sept/F.R. independent $33,164 3 2 $631 x 8 months = 5048 $466 x 4 months = 1892 $10,078 2017 Aug. K.R. independent Nov. Tables change $35,285 2 1 1 $497 x 7 months = 3479 $281 x 4 months = 1124 $283 x 1 month = 283 $6,995 2018 $35,675 1 $267 x 12 months = 3204 $6,085 2019 A.R. independent Aug. $36,366 1 $291 x 7 months = 2037 $7,357 2020 0 $3,942 2021 0 $200 Total $40,119 $55,674 [ 74 ] From January 1, 2013 to July 31, 2019, Mr. B.R.’s obligation was $40,119. This amount added to what was owed December 31, 2012 equals $56,310. During this timeframe, he paid $55,674. Consequently, he owes $636 to Ms. M.P..

Special Expenses [ 75 ] Ms. M.P. is asking that Mr. B.R. contribute to special expenses incurred from 2006 to 2017. She is asking that Mr. B.R. pay her $8,473, representing his proportionate share of the special expenses. The first time Mr. B.R. found out about these expenses was around May of 2019, when Ms. M.P. raised this topic in her pleadings. She provided the receipts during the trial of February of 2021. [ 76 ]

Section 7 of the Federal Child Support Guidelines provides that a court may, at the request of a spouse, provide in a child support order for the payment of special or extraordinary expenses, taking into account the reasonableness and necessity of the expenses, having regard to the means of the spouse and to the family’s spending pattern. [ 77 ] Ms. M.P. is requesting a contribution to childcare expenses, dental expenses and psychological expenses. These were incurred from 2006 to 2017. [ 78 ] These expenses were necessary, reasonable and for the benefit of the children. However, given Mr.

B.R.’s limited income, he does not have the means to contribute to these. Also, it is unfair to come forward ten years after the bulk of these expenses were incurred and ask for a contribution from the other parent. [ 79 ] Generally, the other parent should be notified prior to or within a reasonable time, that a parent will be requesting a proportionate sharing to special or extraordinary expenses. [ 80 ] Accordingly, Ms. M.P.’s request for a proportionate sharing to

section 7 expenses from Mr. B.R. is denied. COSTS [ 81 ] Both parties’ success in this matter was about equal. They were both successful on some issues and unsuccessful on other issues. However, Ms. M.P., who was the Respondent on Motion, provided a proper Trial Record, a Book of Exhibits and a Brief, all of which were very helpful. Therefore, I will grant her costs of $750 payable by Mr. B.R..

DISPOSITION [ 82 ] I order as follows:

a) Mr. B.R. shall pay Ms. M.P. the sum of $636 representing the outstanding child support as of February 25, 2021.

b) Ms. M.P.’s claim for a contribution to special expenses is denied.

c) Mr. B.R. shall pay $750 costs to Ms. M.P. DATED at Moncton, N.B., this 12 th day of April 2021. _______________________________________ Colette M. d’Entremont Justice of the Court of Queen’s Bench of New Brunswick