Jacklin v. Daigle, 2020 NSSC 248

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Jacklin v. Daigle , 2020 NSSC 248 Date: 2020-09-17 Docket: SFHMCA 60560 Registry: Halifax Between: Racheal Arron Jacklin Applicant v. Kyle Joseph Daigle Respondent Judge: The Honourable Justice Elizabeth Jollimore Submissions: September 10, 2020. Counsel: Laura McCarthy for Kyle Daigle Cheryl Arnold for Racheal Stockdale (formerly Jacklin) SUPREME COURT OF Nova Scotia (FAMILY DIVISION) Citation: Jacklin v. Daigle, 2020 NSSC 248 Date: 2020-09-17 Docket: SFHMCA 60560 Registry: Halifax Between: Racheal Arron Jacklin Applicant v. Kyle Joseph Daigle Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore

Submissions: September 10, 2020

Summary: Payor applied to vary child support and rescind arrears. Arrears already fixed: no evidence to support varying them. Child support varied. Key words: Family, Child support, Imputing income, Disclosure, Variation, Legislation Parenting and Support Act , R.S.N.S. 1989, c. 160 Child Maintenance Guidelines , NS Reg 53/98 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) Jacklin v. Daigle , 2020 NSSC 248 ENDORSEMENT September 17, 2020 Rachael Jacklin v.

Kyle Daigle 2008; SFH-MCA 60560 • Laura McCarthy for Kyle Daigle • Cheryl Arnold for Rachael Stockdale (formerly Jacklin) Kyle Daigle applied to vary child support and reduce arrears. Decision: 1 . Mr. Daigle’s application to remit arrears is dismissed. He is ordered to pay monthly child support of $946 for 3 children beginning May 1, 2018. Payments are due on the first day of each month. He must provide annual income disclosure to Ms. Stockdale. Reasons: 2 . Kyle Daigle applied to vary child support in October 2019. He said that the amount he had been ordered to pay was wrong.

He asked to “back date” the variation to 2009. His application is under

section 37 of the Parenting and Support Act , R.S.N.S. 1989, c. 160 . 3 . A conference to organize Mr. Daigle’s application was adjourned because of the province’s state of emergency. When the conference was re-scheduled, the parties agreed to have the application dealt with as a document-only proceeding under Notice 6 (dated April 20, 2020). There is no cross-examination in a documents-only proceeding, so d eadlines were set for each party to file materials in support of their position, and submissions. 4 . Because earlier child support orders imputed income to Mr. Daigle, counsel were reminded of Trang v.

Trang , 2013 ONSC 1980 , and the approach and evidence required for variation applications where a payor’s income is imputed. 5 . Mr. Daigle filed his Statement of Income (with various tax documents from 2010, 2011, 2013, 2014, 2015, 2016, 2017 and 2018), an affidavit, and copies of various paystubs in October 2019 and January 2020. 6 . Mr. Daigle didn’t file any additional materials in support of his position by his July 31, 2020 deadline. 7 . Ms. Stockdale filed her materials supporting her position. Mr. Daigle had until August 31, 2020 to respond to them: he didn’t respond. 8 . Ms.

Stockdale filed her submissions by the mid-September deadline. Mr. Daigle didn’t file any submissions. 9 . Mr. Daigle didn’t request an extension to any of his filing deadlines, so I base my decision on the material he filed in

October 2019 and January 2020 . 10 . Child support was initially ordered in November 2009 by consent. Mr. Daigle had a projected income of $27,400 and was ordered to pay monthly child support of $411 for the couple’s 2 children. 11 . The couple’s third child was born in September 2010. 12 . Child support was varied in July 2016 on a temporary basis by Justice B. MacDonald. Both parties were represented, but Mr. Daigle did not appear in court. Justice B. MacDonald ordered Mr. Daigle pay monthly child support of $1,458 based on his 2015 annual income of $81,010. 13 .

Justice MacDonald’s variation order was subject to a further variation by Justice Jesudason in May 2018. His Lordship imputed an annual income of $81,010 to Mr. Daigle, continued monthly child support of $1,458, and fixed Mr. Daigle’s arrears at $38,378.62 as of April 13, 2018. Mr. Daigle was present when this order was made and did not appeal it. 14 . In Trang v.

Trang , 2013 ONSC 1980 , Justice Pazaratz addressed the question of whether payors could simply rely on their current income (shown on line 150 of their tax return) in a variation application where the order sought to be varied was based on imputed income. His Lordship said, at paragraph 51: When the court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or a further review.

It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on - or wait for - - representations from the payor. 15 . Because Justice Jesudason made a determination of fact, if Mr. Daigle believed that income was wrongly imputed, he had two options: appeal the decision or bring a motion to set aside the order based on mistake or misrepresentation. Mr. Daigle did neither. 16 . A variation application is neither an appeal nor an opportunity to re-litigate the prevailing order: Gaetz v. Jakeman , 2005 NSCA 77 .

A variation application proceeds on the basis that the prevailing order was correct when it was made, and that it has been superseded by later events. 17 . In Trang v. Trang , 2013 ONSC 1980 , Justice Pazaratz considered whether all variation applications involve the same analysis at paragraphs 43 to 60. At paragraph 46, he concluded that where support is based on imputed income “a more comprehensive analysis is required” in variation applications. This analysis compels me to consider: a. Why did income have to be imputed in the first instance? Have those circumstances changed?

Is it still appropriate or necessary to impute income to achieve a fair result? b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable? 18 . Justice Pazaratz said when a payor argues that an imputed income level is no longer appropriate, the payor must “go beyond establishing [his or her] subsequent “declared” income”: Trang v. Trang , 2013 ONSC 1980 at paragraph 52 . The payor must offer evidence of changed circumstances that establishes either: a.

It’s no longer necessary or appropriate to impute income and the payor’s representations as to income should now be accepted, even if they weren’t before; or b. Even if income should still be imputed, a different amount is more appropriate, given changed circumstances. 19 . I accept this is the correct approach for deciding Mr. Daigle’s variation application. Allowing a payor to vary child support based on declared income, after income has been imputed, defeats the purpose of imputing income: Trang v. Trang , 2013 ONSC 1980 at paragraphs 53 - 60 . 20 . Justice Jesudason imputed income to Mr.

Daigle based on his 2015 tax return – meaning there was no more recent financial disclosure from Mr. Daigle in 2018. Income may be imputed where a party fails to provide disclosure: clause 19(1) (

f) Child Maintenance Guidelines , NS Reg 53/98 . 21 . Based on the disclosure Mr. Daigle has provided, it is no longer necessary or appropriate to impute income to Mr. Daigle. I have his tax materials for 2018, and his paystubs and a sworn Statement of Income for 2019. 22 . Justice Jesudason fixed child support arrears as of April 13, 2018. Mr. Daigle has offered no evidence why I should remit these arrears. A judge has already decided Mr. Daigle’s request to rescind arrears and Mr. Daigle may not re-litigate that issue. I dismiss his request to rescind his arrears of child support.

23 . Mr. Daigle’s 2018 income was $49,614 based on his tax return. For 3 children, he must pay monthly child support of $946 from April 13, 2018 onward in 2018. 24 . Mr. Daigle’s 2019 Statement of Income disclosed annual income of $49,614. His paystubs show he earned over $40,000 working for ALS Fisheries Ltd from June 19, 2019 to December 18, 2019. According to his tax returns, he works seasonally – he annually reports Employment Insurance income. I accept his 2019 annual income was $49,614. Based on his 2019 income of $49,614, Mr. Daigle must pay monthly child support of $946. 25 . I order Mr.

Daigle to annually disclose his income tax return, and all schedules and attachments to Ms. Stockdale. Direction: 26 . I have prepared the variation order, which I enclose. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)