Scallion v. Biggs, 2020 NSSC 173

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Scallion v. Biggs , 2020 NSSC 173 Date: 20200603 Docket: SFHISOV 111431 Registry: Halifax Between: Anthony Edward Scallion Applicant and Catherine Felicity Biggs Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Hearing: December 5, 2018; January 22, 2019; September 11, 2019 and March 30, 2020 Issues: Recalculation of past child support

Summary: The Applicant was under an obligation to pay child support for his son, D.O.B. June 21, 1998. He applied to terminate that obligation pursuant to the Interjurisdictional Support Orders Act of Saskatchewan and asked that his past obligation be recalculated to reflect his earnings at the time. He then attorned to the jurisdiction of the Nova Scotia Courts to rule on the matter. The Court found the child was no longer eligible for child support and terminated the obligation effective April 2018. The child had completed his education and working full time at the end of April 2018. Keywords: Retroactive calculation Legislation: Interjurisdictional Support Orders Act, S.N.S. 2002 c.9

Cases Considered: DBS, 2006 SCC 37 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Scallion v. Biggs , 2020 NSSC 173 Date: 20200603 Docket: SFHISOV 111431 Registry: Halifax Between: Anthony Edward Scallion Applicant and Catherine Felicity Biggs Respondent Judge: Associate Chief Justice Lawrence I.

O’Neil Heard: December 5, 2018; January 22, 2019; September 11, 2019 and March 30, 2020 Counsel: Anthony Scallion, Self-Represented Catherine Biggs, Self-Represented By the Court : [ 1 ] This matter began as an Interjurisdictional Support Orders Act, S.N.S. 2002 c.9 ‘ISO’ proceeding initiated by Mr. Scallion, a resident of Saskatchewan, who believed his son was no longer dependent. As a result, Mr. Scallion wanted termination of his obligation to pay child support.

He has attorned to the jurisdiction of this Court and asks that his child support obligation be recalculated on a retroactive basis to 2017 and that his ongoing obligation to pay child support be terminated. [ 2 ] The subject child, born June 21, 1998 has lived with Ms. Biggs since at least 2014, when Ms. Biggs became his primary caregiver. He began employment after completing an engineering certificate program in April 2018. [ 3 ] When the matter was first in Court in January 2019, Ms.

Biggs said the child was not in school, was working since the end of April 2018 and was expected to continue his engineering studies at Dalhousie University beginning in September 2019.

[ 4 ] In the circumstances, effective April 2018, the Court suspended Mr. Scallion’s obligation to pay $1,040 each month as ongoing child support. However, the Court ordered that Mr. Scallion pay $500 each month towards child support arrears assessed against him in 2016. The Court set the matter for a review in September 2019 to determine whether the child returned to university. In September 2019, the Court learned he did not. [ 5 ] The parties were directed to exchange relevant records and to calculate arrears of child support each believed were owed by Mr. Scallion.

Through 2019 and into early 2020, the parties did not have complete copies of financial documents from the other as required to complete the necessary calculations of the past child support obligation. A return date in February 2020 was confirmed. This had to be put over to March 30, 2020 to provide the parties more time to prepare their calculations. [ 6 ] As of March 2020, the child’s status was unchanged. He continued to work and was not attending school. The only issues outstanding are the calculation of Mr.

Scallion’s past obligation to pay child support and his request that his ongoing obligation to pay child support be terminated. Mr. Scallion’s Calculations [ 7 ] Mr. Scallion agrees he should be responsible for the Saskatchewan table amount of child support until his son became independent. He argues his income varied subsequent to the 2016 order and his monthly obligation was therefore less than $1,040 per month for some of the subsequent period and his child support obligation should be recalculated. Mr. Scallion says his resulting unfulfilled obligation, based on the Saskatchewan tables is less than $10,000.

The financial conclusions in his submission filed October 10, 2019 differ slightly from his calculations filed February 19, 2020. Ms. Biggs’ Calculations [ 8 ] Ms. Biggs calculates Mr. Scallion owes ongoing child support of $14,220 to February 2020 based on Mr. Scallion being subject to an obligation to pay $1,040 per month as child support from April 2016 – April 2018 inclusive. She does not agree with a recalculation of his ongoing quantum of child support after 2016 to April 2018. She does agree the child has been independent since April 2018 and there is no obligation to pay ongoing child support.

Conclusion [ 9 ] The court concludes the child became independent at the end of April 2018 and no child support obligation existed after that date. Until then the child was attending university. [ 10 ] I have considered the guidance of the Supreme Court as communicated in DBS 2006 SCC 37 . I exercise my discretion to set Mr. Scallion’s child support obligation as the table amount based on his previous year’s income. He is not guilty of blameworthy conduct and moved in a timely way to have this issue addressed. He did not sit on his rights.

His application herein was filed in 2018. [ 11 ] I am not prepared to go behind the April 2016 order of Justice Legere Sers. The order of Justice Legere Sers dated April 2016 will therefore govern the child support calculations to the end of March 2017. As a consequence, Mr. Scallion’s child support obligation was $1,040 per month x 12 to March 31, 2017. This equals an obligation of $12,480 for this period. [ 12 ] However, I am satisfied Mr. Scallion’s ongoing child support obligation since the last order should be adjusted effective April 1, 2017 to reflect his line 150 income for the preceding year.

The table amount of child support must be based on the Saskatchewan child support tables. In 2016 his line 150 income was $80,641, which resulted in a monthly child support obligation of $685 per month. This equals an obligation of $8,220 for the period ending March 31, 2018. [ 13 ] In 2017 Mr. Scallion earned $123,742. This resulted in a child support obligation of $1058 for the month of April 2018.

[ 14 ] The total child support obligation of Mr. Scallion since the last order is shown below: April 1, 2016 -March 31, 2017 12 x $1,040 = $12,480 April 1, 2017 -March 31, 2018 12 x $ 685 = $ 8,220 April 2018 1 x $1058 = $ 1,058 Total $21,758 [ 15 ] Coincidental with his obligation to pay ongoing child support Mr. Scallion was required to pay $160 each month on the arrears of child support of $12,480.00 as per the 2016 order of Justice Legere Sers. At the time of my January 2019 suspension of his obligation to pay ongoing child support I increased his payment on the arrears to $500 per month.

An order to this effect issued January 28, 2019 following a court appearance on January 22, 2019 to reflect these changes. [ 16 ] I do not have the evidence to permit me to determine whether the foregoing obligations are unfulfilled. The court believes the respective Maintenance Enforcement offices are however able to do the necessary calculations that are now necessary. [ 17 ] The Court will prepare the Order. ACJ