Baldwin v. White, 2015 NSSC 404

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Baldwin v. White, 2015 NSSC 404 Date: 2015-08-14 Docket: SFH-MCA 65949 Registry: Halifax Between: Terri-Lynn Baldwin Applicant v. Peter Lee White Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: August 12, 2015

Summary: Application to vary child support retroactively and prospectively. Arrears fixed and moratorium placed on MEP collection efforts. Student loan excluded from calculation of income for child support purposes. Key words: Family, child support, arrears, variation THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . ENDORSEMENT CITATION: Baldwin v. White , 2015 NSSC 404 August 14, 2015 Terri-Lynn Baldwin v. Peter Lee White SFH MCA 065949 • Damian J. Penney for Peter White • Tanya R. Jones for Terrr-Lynn Baldwin

Mr. White applied to vary an order for child maintenance, retroactive to November 26, 2011. Prospective child maintenance was also atissue. Decision: Mr. White owes arrears of child maintenance of $7,274.00. Mr. White’s arrears shall be reduced by the amounts received by the Maintenance Enforcement Program as a result of its garnishmentfunds payable to him. A moratorium is placed on the collection of arrears. The parties shall return to court for an hour long review hearing in late March or April, 2016 to review child maintenance and themoratorium on arrears collection. Two weeks prior to the hearing, Mr.

White shall file information relating to his income and employment at the court and with Ms.Baldwin’s counsel. Reasons: 1. In May 2010, Mr. White was ordered to pay monthly child maintenance of $300.00, commencing on June 2010. This amountwas based on his annual income of $34,000.00. His 2010 tax return showed his annual income to be $34,271.00 after deducting hisunion dues. 2. In March 2014, Ms. Baldwin declared there were arrears of $4,200.00 owing for the period from February 15, 2013 until March15, 2014. 3. No arrears were declared for any period prior to February 15, 2013. 4. Mr.

White applied to vary child maintenance retroactively and to address arrears on August 25, 2014. 5. Ms. Baldwin has not sought a retroactive adjustment of child maintenance. 6. In Smith v.

Helppi, 2011 NSCA 65 at paragraph 21, the Court adopted the statement that . . . the jurisdiction to order a partial or full remission of support arrears is dependent on the answer to two discrete questions: Was there amaterial change in circumstances during the period of retroactivity and, having regard to all other relevant circumstances during thisperiod, would the applicant have been granted a reduction in his or her support obligation but for his or her untimely application?

As ageneral proposition, the court will be asking whether the change was significant and long lasting; whether it was real and not one ofchoice. 7. Mr. White was unemployed as a result of being incarcerated for a number of months in 2013. His income in 2013 andsubsequently, has been lower than the amount on which his child maintenance payments were based. This change is significant and longlasting. 8. Ms. Baldwin argues that the change does not qualify as “real and not one of choice” since the change in Mr. White’s incomeresults from his incarceration for committing a criminal offence. 9.

Courts elsewhere have held that criminal conduct which prevents a parent from earning an income is self-inducedunderemployment: Courchesne, (ONSC); Hutchinson v. Gretzinger, (on appeal from the OntarioCourt of Justice); and TV v. KJV, 2010 ONSC 220. Imprisonment affects the parent’s ability to pay, but ought not affect the obligation. Mr. White’s decreased employment income results from his actions and I find it is a change of his making. 10. I conclude that I would not grant Mr. White a reduction in his child maintenance but for his untimely application.

The changewhich has occurred, while significant and long lasting, was one of his making. 11. Based on an annual income of $34,000.00 in each of 2013 and 2014, Mr. White should have paid monthly child maintenance of$286.00. Notably, this amount is lower than the amount ordered in 2010 because the Child Maintenance Guidelines, NS Reg 53/98,were changed in 2011. 12. Mr. White has paid no child maintenance since February 2013. For the twenty-three months from February 2013 to December2014 (including each of the named months), Mr. White owes child maintenance of $6,578.00. 13. In 2014, Mr.

White worked at a cleaning company. He now works at Simply Living Inc. and earned $11,465.50 as of June 20,2015. This change in employment has increased his income. Mr. White has worked hard to improve his income since his release. 14. Mr. White’s hours are variable, typically between thirty-five and forty hours per week. He is paid bi-weekly. On average, his bi-weekly pre-tax earnings are $862.50. 15. Mr. White will begin a program to train as an Oil Heat Systems Technician on September 8, 2015. This program will end onFebruary 16, 2016. This, too, he hopes will improve his income. 16.

From June 20, 2015 until his training program begins, Mr. White has five and one-half more pay periods. I estimate that hisadditional earnings from June 20, 2015 until September 5, 2015 will be $4,743.75.

17 . Mr. White anticipates receiving a student loan of between $6,000.00 and $7,000.00 which will cover the cost of his tuition and any needed educational materials. Student loans are not income as defined by the Income Tax Act , R.S.C. 1985 (5 th Supp.), c. 1 so any funds Mr. White receives as a student loan will not comprise his “total income” on line 150 of his income tax return. These funds are not considered in calculating his income for the purpose of calculating his child maintenance. 18 . Mr. White’s 2015 income is estimated to be approximately $16,200.00. 19 . Ms. Baldwin has not argued that Mr.

White will be intentionally unemployed or underemployed as a result of his training to become an Oil Heat Systems Technician. I find this is a reasonable educational need. 20 . Based on his estimated 2015 income of $16,200.00, Mr. White shall pay Ms. Baldwin monthly child maintenance of $87.00. This amount shall be paid for each month in 2015. Future payments start on September 1, 2015. 21 . Total arrears from February 2013 to the end of August 2015 are $7,274.00. 22 . Moneys received as a result of a garnishee have been credited against his child maintenance obligation.

I have not been provided with this information, but the parties’ counsel agree that the amounts recorded as received by the Maintenance Enforcement Program shall be deducted from arrears as I have calculated them. 23 . A moratorium is placed on the collection of arrears. This shall be reviewed when the parties return before me in 2016. Directions: Mr. Penny shall prepare the order. Costs: There shall be no costs. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)