N. N. W. Applicant v. D. L. A., 2018 NBQB 207

File No.: FDM-353-17 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON IN THE MATTER OF an Application under the Interjurisdictional Support Orders Act, R.S.N.B. 2016, c. 102 N.N.W. v. D.L.A. 2018 NBQB 207 BETWEEN: N. N. W. Applicant -and- D. L. A. Respondent DECISION BEFORE: The Honourable Mr. Justice John J.

Walsh AT: Moncton, New Brunswick DATES OF HEARING: March 29, May 18, November 9 and 13, 2018 DATE OF DECISION: November 15, 2018 APPEARANCES: The Respondent, per se Stephen Diamond, Counsel for the Designated Authority ( on November 9 th and 13 th , 2018 ) Walsh J.: I. Background [ 1 ] Trying to resolve issues of child support involving parties of modest means can be just as cumbersome and difficult for a court, and certainly no less important, as those involving parties with much greater means. After all, children are at the centre of any determinations.

It is just that matters are made even more trying when working under a bifurcated procedure such as the Interjurisdictional Support Orders scheme. [ 2 ] The parties separated some years ago while living in Manitoba. By Final Order on consent dated April 4, 2005 a Justice of the Manitoba Queen’s Bench granted the applicant mother sole custody over their son and gave access for the son to the respondent father. That same order required the respondent to pay, inter alia , prospective child support of $50.00 per month commencing July 1, 2015 based on an annual income of $7,700.00.

It appears from the Order that the respondent was unemployed at the time. [ 3 ] The mother and son continue to reside in Manitoba. The father now resides in New Brunswick. [ 4 ] As of December 2017 the applicant was in arrears of child support under the existing Order of $1,891.27, which has since been reduced by federal garnishee of EI Benefits to $469.27 as of November 4, 2018.

[ 5 ] In February 2018 the mother filed an Application to vary the child support order effective January 1, 2017 pursuant to the provisions of

Part III , Division B of the Interjurisdictional Support Orders Act . She seeks an increase to $375.00 per month based on a suspected income of the respondent of $44,044. II. Chronology/ Amicus /Further Participation of Applicant [ 6 ] When the matter first came before this Court, the respondent sought and obtained an adjournment for purposes of retaining counsel and fulfilling the obligations to provide financial information. A new date was set. [ 7 ] There is no requirement in this Province to give applicants under the ISOA notice of hearings in the reciprocating jurisdiction ( Reid v.

Cunningham 2015 NBCA 27 at para. 24 ). This is because of the unusual nature of the procedure: An applicant under an ISO must submit a written application to the appropriate authority in their own jurisdiction, which forwards the application to the corresponding authority in the respondent's jurisdiction. Once the application is received in the respondent's jurisdiction, the matter is set for hearing and the respondent is given an opportunity to be heard in court. An ISO does not require the applicant's attendance in court in the respondent's jurisdiction.

The ISO application forms the whole of the applicant's case, subject to the court directing that additional information be obtained from the applicant to decide the issue. ( Gallant v. Houde 2016 BCSC 1994 at paras 4-5 ) [ 8 ] In this case, though, the applicant somehow learned of the new date of hearing and requested through the Clerk’s office permission to ‘appear’ by telephone. I granted the request, but made clear that to what extent she would be permitted to participate would depend on the circumstances and any legal restrictions that might arise.

In this latter regard I agree with the observations made and directions given in I.B. v. M.M. [2017] B.C.J. No. 1612 : It is important to note that the nature of a hearing conducted under the ISOA is unusual. It is commenced by an applicant completing and submitting a number of documents to the designated authority in the applicant's jurisdiction. Those documents are then forwarded to the jurisdiction in which the respondent resides. The respondent is then given an opportunity to file documents in response and to attend court in his jurisdiction when the matter proceeds.

A hearing is held based on the documentary evidence of the applicant as well as any documentary or viva voce evidence adduced by a respondent. Generally, an applicant will not be present for the hearing and the court will have to rely entirely on the documents provided by the applicant with no opportunity for the applicant to respond to a respondent's documents or evidence. In the present case the applicant was permitted to appear at the hearing by telephone.

However, that allowed her to hear the evidence only and I did not allow her to testify by telephone, nor was she permitted to conduct any cross-examination by telephone. She did however, have the benefit of Paul Reimer appearing as Amicus Curiae to assist her and the court in having the matter properly placed before the court. Mr. Reimer cross-examined the Respondent and made submissions on behalf of the applicant. Mr. Reimer's role was necessarily circumscribed by the nature of his limited role.

In short, the ISOA requires that the court do the best that it can with imperfect evidence and that is what I am required to do in this case. (Emphasis added) (At paras 3-4) [ 9 ] However, unlike in I.B. v. M.M. , there was no counsel or amicus provided in New Brunswick at the time of the initial appearances in this case so as to represent an applicant’s interest under the ISOA , or at least provide some assistance to the Court.

This can put judges in a particularly difficult position: A Designated Authority may be appointed under s. 37 of the ISOA and is responsible for processing ISO applications received from or sent to appropriate authorities in reciprocating jurisdictions. The role of the Designated Authority is to work with counterpart authorities in reciprocating jurisdictions to give effect to the ISO process. The authorities liaise with one another, the courts and the parties in their respective jurisdictions.

Members of this court have expressed concern about the structure of the ISOA , and in particular about its provision that the applicant need not appear on the application to grant relief in his or her favour. In McBurney v. Saunders , 2015 BCSC 1093 and Leduc v. Leduc ,

2013 BCSC 78 , McEwan J. expressed the view that ISOA applications put this court in the position of potentially having to advocate on behalf of the applicant . In response to those concerns, the Designated Authority's practice is to make amicus curiae available to assist the court in navigating the application materials received from the reciprocating jurisdiction and identifying the legal principles applicable to the application. The Designated Authority takes the position that the role of amicus is not to advocate for either party.

However, as the facts of this case show, it is often difficult to draw the line between reviewing the application materials and authorization and advocating for a particular outcome. (Emphasis added) Gallant v. Houde supra at paras 6-8 [ 10 ] On the return date of the matter the respondent appeared with duty counsel. Because of backlogs he had not yet had his appointment with legal aid to determine if counsel would be assigned. Nor had he filed the necessary financial information. The applicant ‘appeared’ by telephone.

She was advised that although the Court would take information from her, it could not accept any such information as actual evidence, nor would she be entitled to cross-examine. In any event, the hearing was further adjourned to permit the respondent to retain counsel and file the proper financial information. But, as a result of inquiries the Court made of the respondent and certain representations made by the applicant, the Court varied the existing order on an interim basis from $75.00 per month to $192.00 per month based on the Child Support Guidelines and an anticipated annualized EI income of $25,480.

Certain ancillary orders were also made. [ 11 ] The Court also directed that the applicant be given notice of the new hearing date once fixed by the Court Administrator. [ 12 ] That new date was November 9, 2018. The respondent appeared in person, without counsel. The applicant was permitted to again appear by telephone. This time, though, counsel for the Designated Authority under the ISOA, which designated authority is the Registrar of the Court, attended.

Counsel’s role appears equivalent to an amicus curiae , as he did not take a position on the matter but provided assistance to the Court on procedural issues, received pertinent information, introduced materials received from both sides as evidence, elicited some viva voce evidence from the respondent, and made certain financial calculations based on the evidence. [ 13 ] The matter, though, had to be adjourned one final time, over the weekend, to permit the respondent to recover additional financial information required by the Court.

The applicant took this opportunity, with the permission of the Court, to scan and send to counsel a copy of an orthodontic bill in support of a special expense claim and a statement of the respondent’s account from the Manitoba Maintenance Enforcement Program. The parties and counsel for the Designated Authority re-appeared on November 13, 2018 and the hearing was completed. [ 14 ] The Court expresses its gratitude to counsel for the Designated Authority for the assistance he was able to provide. III. The Facts [ 15 ] The mother’s evidence is found in her sworn ISO application materials.

Those materials reveal that the parties had been in a relationship for over 3 years and that their child was 2 years old at separation. At the time of the Court Order she was living at her mother’s home with the child. She wrote that at that time she was not paying rent and her son did not require much, but she has now been on her own with the child since her mother’s death in 2008. Today she incurs considerable living expenses and the child has a number of health issues, including autism and ADHD, requiring “constant support with schooling and social skills”.

She also wrote that the child has been in and out of speech therapy, which she is “unable to afford at this time”. [ 16 ] In regard to her application to vary child support so long after the original order, she variously explained: When the Order was put in place [the respondent] was not working. He has worked several jobs over the years making $18-25 per hour in the construction industry. He moved to NB in September of 2015 and currently lives at home with his father. He has advised he now is employed and has been for quite some time.

He also advised he is making $19.00 per hour and is averaging 100 [sic] per pay period. He likes to brag about having money for the gym, a cell phone, tattoos and traveling. I am asking for retroactive support as the Respondent has now obtained a full time job. He has been working at this job for several

months now. I did not apply earlier as I was unaware of the Respondent’s job situation because he resides in a different province. I did not apply in previous years as I thought I would need a lawyer and prior to me obtaining my current employment I was unable to afford a lawyer. The Respondent has also been inconsistent with his current payments and I felt it was hopeless.

I have communicated with [the respondent] on several occasions to attempt to come up with an agreement to increase the payments. [The respondent] will agree and then get mad at me and change his mind. [ 17 ] The father has had issues in the past with addictions and criminality. He appears to be trying to turn his life around, with the support of his father.

Since January 1, 2017 (the time from which the Applicant is seeking increased support) the respondent has had regular employment, a period of EI benefits, some temporary employment, a short period of employment for which he was not paid, and periods of no employment with no benefits. It appears as a struggle. [ 18 ] The greatest financial stability experienced by the respondent was in 2017, reporting Line 150 income of $30,390.03, derived from employment earnings with a construction company and EI benefits. 2018 has not been anywhere near as productive.

His EI benefits ran out early in the year, his employer from the year before did not call him back to work, and up until the end of August he earned only approximately $3,000 at a paving company until laid off because of shortage of work. [ 19 ] However, he obtained somewhat regular employment with a concrete company beginning at the end of September this year. His work involves “concrete finishing” at $17.50 per hour; the number of hours dependant on the work available, which depends on the week. For example, a pay stub in evidence for the first week of October shows he worked 19.50 hours.

It appears from his evidence, and by extrapolating from bank records, that this is approximately the average number of weekly hours he has worked since he began, some weeks higher, some lower. But, he also testified that his next pay will be based on 37 hours, which I understood is what he is hoping will occur more often. In my view, whether it will is highly speculative. IV. Analysis i.) Prospective Support [ 20 ] The uncertainty surrounding the respondent’s present earning potential makes determination of the child support to order going forward difficult.

At minimum, though, the respondent should be able to earn at the present rate an annualized income of $22,750; based on projecting 25 average hours per week at $17.50 per hour. At least it is the best prediction the Court can make on the evidence. [ 21 ] Therefore, effective October 1, 2018 the original Manitoba Order is varied as to child support; to require the respondent to pay support for his son, I.P.A-W, in the amount of $175.00 per month in accordance with the New Brunswick Table of the Child Support Guidelines , payable on the first of each month until further Order.

Payments shall be made through the Office of Support Enforcement (OSE). For the purposes of garnishment, the respondent’s present employer is noted to be Champion Concrete & Flooring Inc., 147 Pacific Ave., Moncton, N.B., E1E 2G2. [ 22 ] The Manitoba Order also required a contribution of $25.00 per month towards the special expense of child care. In her ISO application the mother did not seek a variation of special expenses. However, as mentioned, during the hearing she filed a receipt for the child’s orthodontic treatment, seeking contribution.

The Court, perhaps, went too far in permitting this claim during the hearing (in the nature of an amendment to her original application and admission of the supporting evidence), given the special procedural nature of ISOs.

At the time the Court’s thoughts had turned to the concept of “proportionality” expressed in Rule 1.02.1 of the Rules of Court . [ 23 ] In hindsight, that Rule could not apply (questions of whether it extends to permitting the admissibility of evidence aside) because it is predicated on there not being another procedure in an Act (See: Rule 1.02 ) and the ISO is a procedural code (See: Interjurisdictional Support Orders Act , s. 28 ).

I mention it only to illustrate how figuratively maddening it can sometimes be for a judge sitting in family court dealing with bifurcated procedures such as here and like procedures such as under the Divorce Act (See: C.A.E. v. M.D. 2011 NBCA 17 at para. 15 ) [ 24 ] In any event, I need not explore further whether, if pressed, there is enough elasticity in the ISO procedure to permit what occurred, because there is simply not enough money realistically available to pay more than the special expense amount previously ordered; not and also make a retroactive order, which this Court intends to do.

Small solace I know, but the applicant can seek a variation of special expenses in the future once the respondent’s financial picture becomes clearer. ii.) Retroactive Support

[25] The Court has some empathy for the respondent’s present economic situation and his ostensibly sincere efforts to be gainfullyemployed in the face of his personal problems of the past, hence the rather modest requirements imposed above. But, the Court has nosympathy for the respondent when it comes to what he earned in 2017, without having taken it upon himself to increase his child supportpayments above the even more modest child support required under the Manitoba Order.

Instead, he left it to the mother, when she gotwind of his employment, to figuratively chase him half way across the country to try and get more money from him for his son. [26] The law as to when to make retroactive orders was explained in Brown v. Brown: The majority of the Supreme Court in D.B.S v.

S.R.G. [2006 SCC 37] outlined and discussed the factors to be considered beforeawarding a retroactive increase in child support: (1) the reason for the recipient parent's delay in seeking child support; (2) the conduct ofthe payer parent (blameworthy conduct); (3) the past and present circumstances of the child including the child's needs at the time thesupport should have been paid; and (4) whether the retroactive award might entail hardship to the payor. We are told that none of thefactors is decisive.

The majority went on to conclude that once the court decides a retroactive order is warranted, the order should bemade effective, as a general rule, to the date the support recipient gave effective notice of an intention to enforce the change in support(the presumptive date). Finally, the majority held, as a general rule, retroactive orders are time limited to three years... Apparently, thegeneral rule is not applicable if there is blameworthy conduct on the part of the payer. (2010 NBCA 5 , 2010NBCA 5 at para. 24) [27] His son has special needs, then and now. The single mother is doing the best she can.

She provided a very understandable andreasonable explanation for why she did not chase the respondent down earlier. The respondent had to have known that his modest childsupport payment was only because of his very limited income at the time the Order was made and needed to be changed if he made moremoney. In 2017 he earned very significantly more than what the original order was based on.

At an annual income of $30,390.03 andbased on the New Brunswick Child Support Table, the respondent’s child support payments for the first 11 months of that year shouldhave been $234.00 per month and $237.00 per month in December (because of a statutory revision of that Table in late November 2017). [28] Yet, the respondent did nothing about it. It was not the mother’s money; it was the son’s money that he was denying him of bythat inaction: A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the childarises at birth.

In that sense, the entitlement to child support is "automatic" and both parents must put their child's interests ahead of theirown in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child'sbehalf … (Kerr v. Baranow 2011 SCC 10 , [2011] 1 S.C.R. 269 at para. 208) [29] In 2017 the respondent deprived his son of a sorely needed $2,211.00 ($2,811.00 less the $600 paid under the then existingorder) by reason of underpaid child support. This was blameworthy conduct envisioned by the Supreme Court.

The result is that anyfinancial hardship now caused to the respondent by a retroactive order has little resonance with the Court. [30] The Court, therefore, also varies the Manitoba Order to require the respondent to pay child support for his son for the year 2017at the rate of $234.00 per month for the first 11 months of the year and $237.00 per month for the last month of that year, totaling$2,811.00.

After credit for the $600.00 paid under the existing order, the arrears created are $2,211.00, which are to be paid in monthly installments of $100.00 per month on the 15th of each month commencing December 15, 2018. This Order for payment towards thesearrears includes any other arrears created by this Order, but shall not prevent provincial or federal garnishment for the total balance ofarrears. iii.) Interim Order [31] As alluded to before, on the respondent’s second appearance before this Court an Interim Variation Order was made, which wasintended to be effective March 7, 2018.

I note there was a slip error in the Order by referring to 2017. In any event, the term of the orderrelated to child support required the respondent to begin paying monthly support of $198.00 per month, based on anticipated bi-weeklyEI benefits of $980.00. The Order was made because the respondent anticipated that his EI benefits, which had been cut-off by then,would be re-instated. As it turned out, those benefits were not re-instated because his period of entitlement had actually expired. [32] The consequence is that the Interim Order was rendered moot, and is hereby vacated.

Moreover, the respondent’s total earningsprojected for 2018 would not otherwise justify varying the Manitoba Order’s requirement that he pay $50.00 per month for the months ofMarch through to and including September 2018.

VI.

Summary [ 33 ] The Court has determined that the Final Order made on consent by a Justice of the Manitoba Queen’s Bench and dated April 4, 2005 is hereby varied to the following extent only: 1. Effective October 1, 2018, the respondent father shall pay support for his son I.P.A-W (d.o.b. April 7, 2003) in the amount of $175.00 per month in accordance with the New Brunswick Table of the Child Support Guidelines , based on projected annualized income of $22,750, payable on the first of each month until further Order. Payments shall be made through the Office of Support Enforcement (OSE).

For the purposes of garnishment, the respondent’s present employer is noted to be Champion Concrete & Flooring Inc., 147 Pacific Ave., Moncton, N.B., E1E 2G2; 2. The respondent father shall also pay retroactive support for the first 11 months of 2017 of $234.00 per month and $237 for the month of December. As a consequence, arrears for 2017 are fixed at $2,211.00 (i.e. $2,811.00 minus $600 paid under prior order), to be paid through OSE in monthly installments of $100.00 on the 15 th of each month commencing December 15, 2018.

This order for payment towards these arrears includes any other arrears created by this Order, but shall not prevent Provincial or Federal garnishment for the total balance of any arrears; 3. OSE is directed to make the necessary bookkeeping adjustments; 4. The respondent father shall provide the applicant mother with a copy of his Income Tax return and any Notices of Assessment or Reassessment on or before May 1 st of each year, commencing May 1 st 2019 for the 2018 taxation year; 5.

For greater clarity, all other terms of the original Manitoba order are confirmed. [ 34 ] Counsel for the Designated Authority is requested to draft a corresponding Order for the Court’s signature and submit it to the Clerk’s office within 7 working days from today. DATED at the City of Moncton this 15 th day of November 2018 ________________________________ Mr. Justice John J. Walsh Judge of the Court of Queen’s Bench