Inglis v. Inglis, 2012 NSSC 124

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Inglis v. Inglis, 2012 NSSC 124 Date: 20120418 Docket: SFHDVRO-075823 Registry: Halifax Between: Douglas Jonathon Inglis Applicant v. Susan Gayle Inglis Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: March 23, 2012 Final Submission: April 16, 2012

Summary: Father applied to terminate child support for twenty-three year old son. Application dismissed in absence of proof that son is no longer a child of the marriage. Mother ordered to provide disclosure of child’s circumstances. Key words: Divorce Act , family, child support, variation application, termination, child of the marriage, retroactive, disclosure, jurisdiction Legislation: Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003 (2 nd Sess.), c. 2, sections 4(e), 11 and 12(2)(e), (

f) Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, sections 5(1)(

a) and 17(4) Federal Child Support Guidelines , SOR/97-175

THIS INFORMATION SHEET DOESN ’ T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA(FAMILY DIVISION) Citation: Inglis v. Inglis, 2012 NSSC 124 Date: 20120418 Docket: SFHDVRO-075823 Registry: Halifax Between: Douglas Jonathon Inglis Applicant v. Susan Gayle Inglis Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard: February 23, 2012, in Halifax, Nova Scotia Counsel: Janice E.

Beaton Q.C., for Douglas Inglis No one appearing for Susan Inglis By the Court: Introduction [ 1 ] Douglas Inglis has applied to terminate his child support payments for his son. This obligation is contained in the 1997 divorce judgment of Justice Thompson. This judgment was granted in Ontario. In June 2010, Mr. Inglis registered the divorce judgment as a judgment of this court. [ 2 ] Mr. Inglis filed his notice of variation application on June 7, 2011. In it, he gave Ms. Inglis notice of his request that I terminate his payment of the table amount of child support. Mr. Inglis claimed no other relief.

In his accompanying affidavit, he outlined alternate relief he sought, if his application to terminate was dismissed. The application is pursuant to

section 17 of the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3. [ 3 ] Mr. Inglis’ former wife, Susan Inglis, was served with notice of the variation application and Mr. Inglis’ statement of contact information, affidavit, Statement of Expenses and Statement of Income. Additionally, she was served with certain documents from the court: a notice to appear in court, a personal representation form and an information sheet about Civil Procedure Rule 34. According to Mr. Inglis, Ms. Inglis lives in Benfleet, Essex, United Kingdom. [ 4 ] The application came before me on March 23, 2012. Mr.

Inglis appeared with his counsel. Ms. Inglis did not appear and no one appeared on her behalf. She filed no materials. Written submissions on the issue of my jurisdiction were provided, at my request, following the hearing.

Jurisdiction [ 5 ] The Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003 (2 nd Sess.), c. 2, provides that a court has territorial competence in proceedings against individuals in certain enumerated circumstances. These circumstances are listed in

section 4. Mr. Inglis acknowledges that most of the circumstances listed in that

section aren’t relevant. He says that this is a situation where “there is a real and substantial connection” between Nova Scotia and the facts on which his proceeding against Ms. Inglis is based. According to

section 4(

e) of the Court Jurisdiction and Proceedings Transfer Act , a real and substantial connection between the province and the facts on which Mr. Inglis’ claim is based can provide a foundation for territorial competence. [ 6 ]

Section 11 of the Court Jurisdiction and Proceedings Transfer Act lists circumstances where “a real and substantial connection between the Province and the facts on which a proceeding is based” is presumed. Mr. Inglis acknowledges that none of the circumstances which create the presumption exists here.

Section 11 does allow that Mr. Inglis may prove other circumstances which constitute a “real and substantial connection”. It isn’t necessary that the most real and substantial connection exist for me to have jurisdiction, only that there be a nexus, according to Justice Saunders at paragraph 49 in Bouch v. Penny , 2009 NSCA 80 . [ 7 ] Mr. Inglis argues that Nova Scotia, his province of residence, is the only province with jurisdiction to hear his variation request and he refers me to section 5(1) (

a) of the Divorce Act , which provides that a court has jurisdiction if “either former spouse is ordinarily resident in the province at the commencement of the proceeding”. This, he says, is the real and substantial connection that’s required for territorial jurisdiction. I agree. [ 8 ] The next issue is whether I should decline to exercise jurisdiction on the basis that another state’s court is a more appropriate forum. Section 12(2) of the Court Jurisdiction and Proceedings Transfer Act lists factors I’m to consider in answering this question. Mr.

Inglis admits that proceeding in Nova Scotia or in England would, necessarily, inconvenience one of the parties. The applicable law is the Divorce Act and Mr. Inglis argues that this “weighs strongly” in favour of having his application decided in Nova Scotia. Ms. Inglis is aware of this application and there’s no indication that she has brought a competing application, so there is no prospect of duplicate litigation or a conflicting decision. [ 9 ] Section 12(2)(

e) requires me to consider “the enforcement of an eventual judgment”. Mr. Inglis submits that if his child support payments are terminated, this decision will be recognized in Nova Scotia (where the judgment is registered) and in Ontario (where the garnishment of his wages initiated). I accept this. Other relief he requested in his affidavit or submissions places obligations on Ms. Inglis. It may be difficult for him to enforce this relief, if it is granted. Mr.

Inglis appears to accept this difficulty as an offshoot of his choice to proceed in Nova Scotia, rather than attempting an equivalent application in the United Kingdom. [ 10 ] With regard to the “fair and efficient working of the Canadian legal system as a whole” which is referred to in section 12(2)(f), Mr. Inglis asks me to consider delays which occurred in scheduling the hearing. He also asks me to consider his former wife’s failure to participate. [ 11 ] I conclude that I ought not decline to accept jurisdiction. As Mr.

Inglis suggests, I attach considerable weight to the fact that the Divorce Act governs this application. Termination application [ 12 ] Section 17(4) of the Divorce Act provides that before I make an order varying child support, I must be satisfied that a change of circumstances, as provided for in the applicable guidelines, has occurred since the last child support order was made. Here, there is only one child support order: the divorce judgment granted by Justice Thompson on February 4, 1997.

I do not treat the registration of the divorce judgment in Nova Scotia as a variation of Justice Thompson’s judgment. [ 13 ] The applicable guidelines are Federal Child Support Guidelines , SOR/97-175 . [ 14 ] Mr. Inglis argues that there ’ s been a significant change as provided for in the applicable guidelines because Kyle is no longer a child of the marriage. In response to questions from his counsel, Mr. Inglis said that Kyle completed high school seven years ago: the educational system in the United Kingdom differs from that in Nova Scotia.

He said that his contact with Kyle is generally by email and while this had been fairly frequent, in the last few years contact is once every three to four months. [ 15 ] Mr. Inglis testified that he doesn ’ t know the name of any educational institution Kyle has attended since completing high school, he doesn ’ t know the names of any courses Kyle has completed or whether he ’ s earned any degrees, diplomas or certificates. [ 16 ] Mr. Inglis says he sent a letter to Susan Inglis asking for information about Kyle on October 7, 2010.

The document provided as a copy of that letter is undated and bears no address to show where it was mailed. In the letter, Ms. Inglis was given thirty days either to contact the Maintenance Enforcement office and ask that Mr. Inglis ’ child support payments cease or to provide information about Kyle ’ s education, educational progress and expenses. There ’ s no indication the letter was ever received. Mr. Inglis says he received no reply. [ 17 ] According to Mr. Inglis ’ affidavit, Kyle is attending school. Mr.

Inglis doesn ’ t know exactly what Kyle is studying: “ [Kyle ’ s] descriptions have ranged from engineering to computer science to most recently, cooking. ” Kyle continues to live with Ms. Inglis. [ 18 ] In his submissions, Mr. Inglis argued that there is “ no presumption that Ms. Inglis was in need ” . [ 19 ] The model for the payment and quantification of child support presented by the Federal Child Support Guidelines is not premised on the need of a parent who receives support. One of the core principles of child support, identified by the Supreme Court of

Canada in Richardson, (SCC) and Willick, (SCC), and endorsed by it in D.B.S. v. S.R.G.; L.J.W. v.T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 at paragraph 38 is that “the specific amount of child support owed will varybased upon the income of the payor parent”. It isn’t necessary for Ms. Inglis to prove need to be entitled to receive support for Kyle. [20] Mr. Inglis asserted there was “no evidence to prove [Kyle]’s still a child of the marriage”. [21] To the contrary, I have Mr. Inglis’ affidavit in which he swears that Kyle lives with Ms. Inglis and is attending school. WhileMr.

Inglis is unaware of the exact nature of his son’s studies and his educational progress, this doesn’t diminish the fact that Kyleappears to be pursuing an education and residing with his mother. [22] Mr. Inglis’ argument that there is no evidence to prove Kyle is still a child of the marriage suggests that the burden of proof is nothis, but Ms. Inglis’. In this, I disagree. Mr. Inglis seeks to terminate child support payments, so it is for him to prove that Kyle is nolonger a child of the marriage. If Mr. Inglis doesn’t discharge the burden, his application fails. [23] In F.H. v.

McDougall, 2008 SCC 53, a civil action arising from a historic sexual assault, Justice Rothstein wrote at paragraph 49: I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civilcases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged eventoccurred. [emphasis added] [24] Mr. Inglis has not met the burden of proving that Kyle is not a child of the marriage. I dismiss his application to terminate childsupport for Kyle. Application for disclosure [25] Mr.

Inglis asked that, if his application to terminate child support was dismissed, Ms. Inglis be ordered to produce certaininformation within thirty days. He did not make specific reference to this claim in his notice of variation application, but he did clearlyrefer to it in his affidavit.

From her, he seeks: a. the names of all educational courses that Kyle has attended since turning eighteen; b. the name, address and phone number of each educational facility Kyle has attended; c. the results of courses Kyle has attended, his attendance record and the intended completion date; d. proof of any educational costs that Ms. Inglis has paid; and e. information relating to the costs for the remainder of Kyle’s current educational course and Kyle’s career plan upon completionof his studies. [26] Kyle has just turned twenty-three. Ms. Inglis may not be able to obtain some of the information Mr.

Inglis wants her to disclose. She may need a court order or Kyle’s permission to obtain some of this information. Kyle is not a party to this application and I have noauthority to order him to disclose information in this proceeding. [27] I appreciate Mr. Inglis’ dilemma: he has insufficient contact with and information from Kyle to apply successfully to terminatechild support. It appears that Ms. Inglis hasn’t responded to his requests for information. All this hampers his ability to bring asuccessful application. [28] Only Ms.

Inglis is governed by my order and what she is able to do may be limited by confidentiality policies at the educationalinstitutions Kyle attended or privacy legislation. Recognizing this, I order that she provide the following information to Mr.

Inglis: a. the names of all courses and courses of study in which Kyle has been a student from January 26, 2008 to the current date; b. the names, addresses and telephone numbers of all educational institutions that Kyle has attended from January 26, 2008 to thecurrent date; c. a list of all educational costs that she has paid for Kyle since Kyle completed public school (high school) and proof of payment ofthese costs; and d. information relating to the costs for the remainder of Kyle’s current educational program; and e. information relating to Kyle’s future education plans and the plan for his career upon completion of his studies. [29] The extent to which Ms.

Inglis can respond to the last item depends on the extent to which Kyle confides in her. He may not haverevealed his future education and career plans to her. [30] Mr. Inglis asked that Ms. Inglis be ordered to produce information within thirty days. I order that she have ninety days from thedate on which my decision and the order arising from it are served upon her to produce the information listed in paragraph 28. Repayment and termination of insurance obligations

[ 31 ] In his submissions, Mr. Inglis asked for relief which was not mentioned in his notice of variation application or his affidavit. He asked that his obligation to maintain health, medical and dental benefits for Kyle (and to promptly process claims for these benefits) for so long as Kyle remained a child of the marriage, be terminated.

He asked that his obligation to designate Kyle as a beneficiary of a life insurance policy in the minimum amount of $100,000.00 be terminated. (This obligation was not tied to Kyle ’ s status as a child of the marriage or the beneficiary of child support: the judgment stated that Mr. Inglis “ is to designate the child, Kyle Douglas Inglis, a beneficiary of a life insurance policy in the amount of at least $100,000.00. The child shall be named as beneficiary with his uncles [sic], Steven Inglis, to be designated as adult trustee. ” ) Lastly, Mr. Inglis asked that Ms.

Inglis be ordered to repay all child support she ’ d received from him, dating from September 2008 when he wanted his child support payments to terminate. [ 32 ] None of these claims was made known to Ms. Inglis. They were not identified in the notice of variation application. They were not mentioned in Mr. Inglis ’ affidavit. [ 33 ] In the written submissions on jurisdiction, Mr. Inglis “ withdrew ” his request that I terminate his obligations to provide life, health, medical and dental insurance. From my perspective, since this relief was never pleaded, it cannot be withdrawn. [ 34 ] Mr.

Inglis ’ current monthly child support obligation is $1,483.80. The obligation is subject to a cost of living provision and the amount he paid in previous years was less. I have Mr. Inglis ’ 2008, 2009, 2010 and 2011 personal income tax returns. Using these and the information Mr. Inglis has provided about the recent adjustment to his monthly child support payment, I estimate that Mr. Inglis is asking me to order Susan Inglis pay him approximately $60,000.00. Ms. Inglis is totally unaware of this claim. [ 35 ] Since I am not terminating Mr.

Inglis ’ child support payments, there is no factual basis on which to order Ms. Inglis to repay Mr. Inglis. Regardless, I do want to express my view that it is inappropriate to request relief at a hearing where the opposing party has received no notice of the claim. None of the materials filed by Mr. Inglis would give Ms. Inglis the slightest hint that, if Mr. Inglis was successful, she might be ordered to pay him approximately $60,000.00. Costs [ 36 ] Mr. Inglis has asked to speak to costs. Costs, like the requests to terminate insurances and for a repayment of child support, were not requested by Mr.

Inglis in his pleadings. I decline to hear his request for costs. _________________________________ Elizabeth Jollimore, J.S.C.(F.D.) Halifax, Nova Scotia