Matthews v. Burns, 2014 NSSC 76

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Matthews v. Burns, 2014 NSSC 76 Date: 20140227 Docket: SFPAF-008965 Registry: Port Hawkesbury Between: Sheila Matthews Applicant v. Carl Burns Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: October 8, 2013 and December 5, 2013 in Port Hawkesbury, Nova Scotia Counsel: M. Louise Campbell, Q.C., for the applicant Rejean Aucoin, for the respondent By the Court: [ 1 ] This Application for a retroactive review and variation of child support is dated April 11 th , 2012.

The respondent was served with this Application on May 11 th , 2012. [ 2 ] Both parties are represented by counsel. [ 3 ] The parties operated under a Consent Variation Order dated May 24 th , 2005. [ 4 ] There is one child of this union: a girl, born February 7 th , 1995. She is currently 18 years of age. [ 5 ] The applicant first sought disclosure of the respondent ’ s income retroactively to 2005. Based on that disclosure, she then sought a retroactive variation back to 2005.

[ 6 ] The respondent argues undue hardship. He claims an inability to pay due to changes in his employment status, a high level of debt and the fact he has three other children to support from a previous relationship (a marriage) lasting approximately four years from August 2001 to 2004. [ 7 ] The respondent has accumulated large arrears owing to both recipients. [ 8 ] His previous existing obligation to pay child support for three children of his marriage arose in British Columbia. The mother of his three children, Ms.

Burns (now MacPhee) subsequently moved to Nova Scotia. [ 9 ] The respondent ’ s counsel confirmed that the respondent lived in British Columbia from 2001 to April 2011, when he moved to Cape Breton, Nova Scotia. [ 10 ] For reasons unknown to the Court, the original order was based on Nova Scotia tables. This recalculation, as ordered by the Court, is based on the British Columbia tables until the respondent moved back to Nova Scotia. [ 11 ] The calculation of arrears has been problematic in part due to the fact that arrears were calculated based on information provided by both recipients many years ago.

Disclosure [ 12 ] The conciliation process documents the efforts to obtain disclosure from the respondent. [ 13 ] The respondent was served with a Direction to Appear and Disclose his income and expenses. [ 14 ] Delays were incurred in moving this application forward in large part due to the respondent ’ s request for delay and his lack of response to the conciliation process. [ 15 ] As a result of his failure to comply, the respondent was served a Notice to Appear in Court on October 17 th , 2012. [ 16 ] On October 17 th , 2012 he appeared in court without disclosure and without counsel.

He was directed to seek counsel though Nova Scotia Legal Aid. He was advised of the disclosure requirements and the matter was further adjourned to give him additional time to obtain counsel and provide full disclosure and information supporting his undue hardship argument. [ 17 ] The recipient, the Maintenance Enforcement Program and the Court have experienced difficulty in obtaining full disclosure from the respondent. [ 18 ] The evidence of the recipient is that she made numerous requests on many occasions for the respondent ’ s income information.

Failing receipt, she sought enforcement through Maintenance Enforcement and the Court. [ 19 ] Maintenance Enforcement confirmed her efforts to obtain information, seek enforcement and of her pro-active attempts to keep them informed as to what she knew of the respondent ’ s employment. [ 20 ] The evidence supports a finding that the recipient attempted to enforce the order diligently.

[ 21 ] The respondent admits he did not annually disclose his Income Tax Returns and has offered no excuse or explanation as to his failure to provide timely disclosure or to respond to reasonable enquiries. [ 22 ] Even as of October 2013, the Court was not in possession of accurate 2013 income other than estimates. [ 23 ] The respondent testified he asked that his wages be garnished. He then assumed that this was sufficient to address his responsibilities.

He assumed the professionals (the Maintenance Enforcement Program) would look after collection. [ 24 ] This is an unsatisfactory explanation for failure to disclose. [ 25 ] This failure to disclose could be considered blameworthy. Financial Responsibility to Other Children [ 26 ] The respondent argues that his significant unpaid child support owing to his former wife and children makes a retroactive payment in this case a hardship. [ 27 ] The Burns v.

Burns 2008 Order was based on the respondent ’ s reported income of $94,093, payable for his other three children in the monthly amount of $1,811. [ 28 ] The Record of Arrears in relation to his former wife, Ms. Burns (MacPhee), shows as owing as of October 7 th , 2013, the sum of $67,289.70. [ 29 ] The matter of Burns v. Burns is not before me. However, Ms. Burns (MacPhee) has testified in this proceeding. [ 30 ] The respondent has advised he is seeking a variation and forgiveness of arrears in relation to Ms. Burns (MacPhee). [ 31 ] Mr. Burns alleges he paid substantial payments directly to Ms.

Burns (MacPhee) for which he has not been given credit. He has no receipts. [ 32 ] Ms. Burns (MacPhee) testified that the respondent paid “ a few payments perhaps $2,000 in 2004 ” by cheques through his ex- girlfriend. [ 33 ] Ms. Burns testified that Mr. Burns made $300 direct deposit payments in 2004. [ 34 ] Ms. Burns (MacPhee) testified that what direct payments were paid went into her Bank of Montreal account. She supplied proof that this account was closed in 2004. [ 35 ] She recalls no direct payments in 2005. [ 36 ] She suggests there might have been three payments in 2006.

[ 37 ] When the respondent stopped paying, she pursued payments through the Maintenance Enforcement Program. [ 38 ] Due to the time that has passed and the lack of documentation, Ms. Burns (MacPhee) and Mr. Burns cannot give accurate figures. The respondent admits he does not have an accurate memory of what he purports he paid directly. [ 39 ] Ms.

Burns (MacPhee) testified that he made no regular payments between 2006 and 2009. [ 40 ] She reported what she could remember to the Maintenance Enforcement Program. [ 41 ] The respondent believed he was not credited with all direct payments made by him. [ 42 ] The Maintenance Enforcement Record shows that the file was withdrawn from the program on December 3 rd , 1997 and again on March 23 rd , 1999. [ 43 ] Ms. Burns (MacPhee) does not recollect how this came about although she acknowledges Mr.

Burns was initially good to pay and then stopped regular payments. [ 44 ] Whether the respondent successfully challenges the arrears on that account remains to be seen. I am informed by his counsel subsequent to the hearing that the parties are close to a settlement. [ 45 ] The Court is required by statute to accept the Record of Payments unless successfully challenged. The burden of proof is on the applicant to establish that the record is incorrect.

Current Operative Order [ 46 ] The Order with which I am concerned in this application is an Order issued on May 25 th , 2005 (a Consent Order) wherein arrears at that time were determined to be $2,573.13. [ 47 ] The respondent ’ s income was determined to be $56,078 for a monthly payment of $463 for the one child of the relationship. [ 48 ] Arrears were to be paid monthly at a rate of $100 with an Order requiring annual disclosure of Income Tax Returns. [ 49 ] The applicant seeks a retroactive order to 2005 based on actual income. The respondent seeks to further reduce his arrears on the basis of undue hardship.

Status of the Child [ 50 ] The child finished high school and graduated June 2013. The evidence of the mother is that the child enrolled in a college program in September 2013, that will train her for personal care work. The second term started January 2014. [ 51 ] On graduation she received a bursary of $1,350. Tuition was $4,057. She lives at home with her mother.

[ 52 ] In November 2013 she started the practice portion and required transportation to attend work sites. [ 53 ] While there is some suggestion that the child is considering transferring to an LPN program in September 2014; that is a matter for a future application. For the purposes of this application, she was a dependant child of the union.

Income History [ 54 ] In 2005 the Order in this proceeding was based on the respondent ’ s own information that his income was $56,078. [ 55 ] The disclosure he has produced for this application yields different information: - His actual 2005 annual income was $74,707(less union dues of $791.) I have used B.C. tables for 2005 even through they did not come into force until May 2006. The income, for child support purposes, of $73,916 would have produced a child support award of $688; - His actual 2006 annual income of $72,360 (-$806) = $71,554.

Would have produced a child support payment of $667; - 2007 annual income of $105,918 (-$5,280) = $100,638 for a child support payment s of $911.00; - 2008 annual income of $109,999 (-$5,066) = $104,933 for a child support payment of $946; - 2009 annual income of $96,734 (-$4,473.) = $92, 261 for a payment of $841; - 2010 annual income of $87,842 without proof of union dues = a payment of $805; - 2011 annual income of $51,939 without proof of union dues = a payment of $483 for four months (British Columbia tables) and $436 for the remaining eight months according to the Nova Scotia tables; and - 2012 $32,939 without proof of union dues = a payment of $278 according to the 2011 tables.

His affidavit reported income of $26,351.52. [ 56 ] The respondent projects his 2013 income to be $41,473 for a payment for one child of $348. [ 57 ] Where evident I have considered union dues. [ 58 ] The Maintenance Enforcement Record for Ms. Matthews (the subject of this proceedings) indicates that arrears under the existing order are $14,425.88 as of October 2013. This is based on no retroactive adjustment and relying on the old order. [ 59 ] Maintenance Enforcement have advised that a recalculation as requested by the applicant Ms.

Matthews back to 2005, based on the respondents true income, would result in arrears of $34,424.56 as of December 31, 2013.

[ 60 ] They also advise that a recalculation as requested by the respondent Mr. Burns based on his actual income back three years only to June 1 st , 2010 would result in arrears of $13,057.8. [ 61 ] I will leave any actual recalculation based on my findings to the Maintenance Enforcement Program as they are in the best situation to adjust their records and accurately accounting for all payments.

Hardship - Enforcement of Both Orders [ 62 ] In September 2010, the first order for the three children not at issue in this proceeding was in active enforcement mode. [ 63 ] Due to provincial regulations that determine how income received by the program is to be divided when more than one order exists, the applicant ’ s portion of the income received by the program was significantly reduced to very minimal amounts of child support. [ 64 ] This minimal payment contribution continued up to the date of the most recent record in February 2013. [ 65 ] Had the order reflected his true 2010 income, the respondent should have been paying $786. [ 66 ] At that time, the child who is the subject matter of this proceeding of the union would have been 15 years old.

Undue Hardship Application [ 67 ] A Statement of Undue Hardship circumstances was filed May 22 nd , 2013. [ 68 ] The respondent argues that his child support obligations to three other children, his arrears under that order, his reduced income when he moved to Cape Breton in 2011and his $22,000 visa debts are reasons for his failure to pay and support his request for forgiveness of arrears. [ 69 ] He advises he has visa debts but does not explain their origin or current status.

He has not paid on these debts for 2-3 years and advises they are in collection. [ 70 ] The respondent advises he has little to no contact with the other three children. This would minimize any access costs. [ 71 ] He admits he should have filed an Application to Vary; but did not. [ 72 ] Mr. Burns lives with his parents.

The household income, inclusive of his parents ’ CPP and OAS income, as well as his own, is projected to be $69,107. [ 73 ] On November 29 th , 2013 he filed an incomplete calculation of household members to compare standard of living. [ 74 ] At first blush, living with his parents who are both recipients of CPP and OAS may evoke some sympathy; if not for the respondent ’ s circumstances, for his parents who are assisting him by providing him residential support.

[ 75 ] However, he does admit they were recipients of a half million dollars in lotto winnings in late 1980's. Their current circumstances are unknown to the Court, are not relevant and they are not liable in any event to support the child. [ 76 ] The applicant ’ s income has been disclosed revealing an income of $17,980 for 2010; $18,345 for 2011 and $20,100 for 2012. [ 77 ] The respondent failed to prove undue hardship.

Knowledge and Familiarity with Application Process [ 78 ] The history of this file starts in September 1997. [ 79 ] The Orders throughout require the respondent to disclose his Income Tax Returns on an annual basis. [ 80 ] There are a multiplicity of applications by both parties throughout the years requiring an Application to Vary when either the respondent ’ s income was reduced or the applicant became informed of his new employment. [ 81 ] Each have had extensive access to the courts.

Each have been involved with the conciliation process, the rules of disclosure and repeated efforts by the applicant and the Court to obtain the respondent ’ s annual disclosure. [ 82 ] There are multiple reminders of his obligation to disclose on an annual basis. [ 83 ] The evidence supports the applicant ’ s testimony that she made many attempts to continue to be informed of his income and employment situation and when unsuccessful, as she frequently was, turned to the Court and to Maintenance Enforcement to obtain disclosure and enforce the Order. [ 84 ] I do not need to list for this Decision the date and time of the applications other than to acknowledge what counsel has argued, that forced appearances and Orders to Appear and Disclose were the single most successful method of obtaining disclosure from the respondent. [ 85 ] Unless required by the Court, voluntary disclosure was not the norm. [ 86 ] I conclude that the respondent was reminded through the years that he had an annual obligation to disclose his income. [ 87 ] He did not voluntarily make yearly adjustments to adjust his child support payment to reflect an increased ability to support his children. [ 88 ] It is only in the last three years (for which he seeks relief) that his income has declined below the income in 2005, on which this current support order was based. [ 89 ] The applicant had equal access to the courts.

There has been a considerable delay in putting forward an Application to Vary. [ 90 ] This has to be balanced with the fact that the respondent has not voluntarily disclosed his income.

[91] These requests for extensive retroactive adjustments are compounded by frail memories, including the MaintenanceEnforcement Records. This places a strain on the Court’s ability to reconstruct history and arrive at a just and appropriate award,reflecting actual circumstance. [92] The child had a right to support in accordance with her parents means. The child is now very close to independent. Hardship [93] Clearly, the recipient’s income, to support herself and one child, is minimal.

The respondent’s failure to pay in accordancewith his ability from 2005 onward up to the recent decline has placed an unfair onus on the mother. Benefit [94] There is evidence that the child will continue to benefit from child support and her

Section 7 educational needs are notaddressed in this process. However, a payment against arrears may assist in her transportation costs and other educational costs. [95] The Court may retroactively vary behind the three year presumptive rule based on the blameworthy conduct of the respondentand a failure to disclose and to respond to reasonable enquiries. [96] It is recognized, however, that going beyond the three year presumption “will not always resonate with the purposes behind thechild support regime”, (D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v.

Hiemstra, 2006 SCC 37 , [2006] 2S.C.R. 231). [97] The Supreme Court instructs that the consideration of the four principle factors in assessing retroactive child support was notnecessarily available to erase arrears where blameworthy conduct exists. [98] Failure to provide proper and current documentation and failure to adjust your support obligations, when there have beenmaterial changes in income to which the children are entitled, constitutes blameworthy conduct. (Paragraph 106) [99] I must look to the benefit that the dependant child will receive and the hardship to the payor parent with a significant retroactiveaward that will create a debt more than double that which currently exists. [100] The benefit to this dependant can be achieved by enforcing the current arrears and by assessing on a prospective basis whatcontribution the payor will be obliged to make should she continue with her studies. [101] The applicant was well aware of the process to be followed in an application to vary and was never prohibited from accessingthe courts. [102] The respondent knew well his obligations to disclose and failed to comply.

[ 103 ] The creation of a debt, now in the amount of $34,424.56 given the current income of the respondent and his obligations for three other children and a declining income, would be onerous. [ 104 ] To effect the retroactive review back three years would profit the respondent yet it would also cover that period of time starting in September 2010 when the enforcement of two orders seriously eroded what contribution was applied to the child support for the child who is the subject matter of this proceeding. [ 105 ] I am reluctant to reach back eight years to create a debt of $34,424 with little hope of recovery given the matter was not brought back to the Court to create some certainty as to financial responsibility. [ 106 ] In this circumstance, this retroactive award would amount to a windfall given the child is close to the last few years of her dependancy.

It would in fact benefit the recipient more so than the child. [ 107 ] I am concerned about the fact that the respondent has three young children he is required to continue to support and sizeable arrears on that account even though he can be placed on a payment schedule. [ 108 ] The applicant herein has suffered during her child ’ s teenage years as a result of the prorating of income seized from the respondent and paid to support the other children; thereby diminishing what was available for the child herein. [ 109 ] The application was commenced in April 2012; however, the respondent did not provide the required disclosure until 2013. [ 110 ] On all counts, the respondent ’ s conduct is blameworthy in that he did not disclose and did not adjust his payments to avail his child of his standard of living. [ 111 ] However, both were familiar with and had access to the courts.

A retroactive re-assessment back to 2005 would produce a sizable award, which had it been ordered by yearly reviews, would have created a known obligation on which both parties could operate.

To award in excess of $34,000 retroactively would create a windfall, particularly in circumstances where the payor has a declining income and other children to support. [ 112 ] Should the child continue in college or post secondary education, the three year retroactive award will benefit her and would be in addition to a monthly amount of child support and the respondent ’ s share of her educational costs on a go forward basis. [ 113 ] The award should take into consideration the obligation to ensure old arrears are paid. [ 114 ] I grant the request for a retroactive assessment to June 2010 as the amount of arrears payable is on balance a realistic retroactive review and would indeed be useful and of benefit to the dependant child as she decides which course she should pursue. [ 115 ] This will use his actual and projected income for 2012 and 2013. [ 116 ] Effective from January 2013 to December 2013 the respondent ’ s income would reflect a payment of $348.00 on a projected income of $41,473. [ 117 ] The payment shall be $348 per month.

[ 118 ] Proof of the respondent ’ s actual income MUST be provided to the applicant and Maintenance Enforcement. Monthly payments will continue unless altered by agreement of the parties and incorporated into a court order. [ 119 ] Costs may be awarded in the event of non compliance and any reasonable costs associated with obtaining this disclosure. [ 120 ] This matter is to be sent to Maintenance Enforcement to recalculate the arrears based on the conclusion of the Court. [ 121 ] Mr.

Burns must file with the Court immediately a total verified Statement of his 2013 income from all sources. [ 122 ] He shall also provide a copy of his T4's immediately upon receipt and other income tax slips and a full and complete copy of his 2013 Income Tax Return, whether filed or not. [ 123 ] He shall continue to provide disclosure of his income until all arrears and support obligations relating to this child have been completed. [ 124 ] Should his income as disclosed not be accurate, either party can apply for a readjustment. [ 125 ] Failing the provision of this information, the parties may apply to the Court for a termination of child support. [ 126 ] Counsel for the applicant shall draft the Order.

Moira C. Legere Sers, J.