O’Brien v. O’Brien, 2011 NSSC 42

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: O’Brien v. O’Brien, 2011 NSSC 42 Date: 20110202 Docket: SFPAF-12268 Registry: Port Hawkesbury Between: Laurie Lynn O’Brien Applicant v. John Allan O’Brien Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: December 20, 2010, in Port Hawkesbury, Nova Scotia Counsel: Laurie Lynn O’Brien, self represented Wayne MacMillan, for the respondent By the Court: [ 1 ] This is an application by the mother of two children to retroactively vary an order of the Court dated March 20, 2002.

It is also an application to fix arrears and determine the enforcement and payment of arrears. [ 2 ] The respondent is the natural father of the children Cathy, born September 25, 1983; Kelly, born May 30, 1988; and John, born April 6, 1990. [ 3 ] The arrears, as shown as of September 20, 2010, are $9,603.55. [ 4 ] The mother is seeking arrears in child support. She acknowledged that the 2005 order had never been varied and that her three children were now adults.

[ 5 ] The child born May 30, 1988, went to Nova Scotia Community College in 2006, and left on or about the end of April, 2007. The child whose birth is dated April 6, 1999, went to Nova Scotia Community College in September, 2008, leaving the end of May, 2009. [ 6 ] The youngest child was 20 as of September 20, 2010, and was more or less independent although he was attending school on and off for six week intervals. At the time, he was in receipt of employment insurance.

He takes five or six week courses at a time to obtain his licence. [ 7 ] His mother admits he is, for the most part, independent, although he lives with her and she helps to support him as he gets on his feet in his trade. [ 8 ] The original order between the applicant and the respondent noted that the respondent had an income at that time of $18,000.00 for the purposes of determining the table amount of maintenance for three children. [ 9 ] The respondent was ordered to pay maintenance in the amount of $354.00 per month starting on March 1, 2002, payable thereafter in accordance with the provincial guidelines as long as the children remained dependant. [ 10 ] The mother was granted sole custody with reasonable access to the father. [ 11 ] The father was ordered to provide the mother with a complete copy of his income tax return with all attachments even if not filed and any Notices of Assessment received from Revenue Canada on or before the first of June of each year. [ 12 ] An interim order followed on the 2 nd of July, 2002, wherein the father was ordered to pay in accordance with the Child Support Guidelines, the amount of $296.00 for the support of the two children commencing July 1, 2004, and payable thereafter.

The matter was adjourned until October 7 th for further review. [ 13 ] A garnishee had been issued in order to collect the monthly maintenance. That was held pending the adjourned date. [ 14 ] On December 16, 2004, a further order issued requiring the respondent to pay the amount of $135.00 per month for the support of the two children commencing January 1, 2005. [ 15 ] The collection of arrears was to be held in abeyance until the matter was reviewed.

The father was to provide the mother full financial particulars about his employment along with a Statement of Income from his 48 hours after becoming employed. [ 16 ] At the father’s request, a moratorium was placed on collection because of his assertion that he was not working. He was required to report to the mother within 24 hours of obtaining employment. [ 17 ] He did not report. As a result further arrears accumulated. [ 18 ] The respondent was ordered to provide his income tax returns on or before June 1 st of each year. [ 19 ] He admits he provided no confirming information on an ongoing basis.

In his own words, he did not want to have anything to do with the mother of his children after the separation and did not feel it was relevant to keep her informed of his income.

[ 20 ] The matter was scheduled for a Pre Trial Conference as a result of this application before the Court. That Pre Trial Conference Memorandum is dated September 20, 2010. [ 21 ] Mr. O’Brien advised he would be making an application for undue hardship. He was currently employed in Fort Mac Murray for less than a year and advised at one point he was making approximately $70,000.00. That has not been confirmed. [ 22 ] His counsel agrees that the undue hardship application would only be applicable for January 1 to May, 2009.

Had the father been paying according to his actual income he should have been paying $350.00. [ 23 ] The order stands at $135.00 and he did not keep his payments current. [ 24 ] The mother’s application sought a retroactive variation in accordance with subsequently filed disclosure. According to her calculations, the difference between what the respondent ought to have paid had he disclosed his true income and what he actually paid is approximately $18,000.00. [ 25 ] Mr.

O’Brien was to file statements of expenses, income and property by November 12, 2010, and an affidavit in support of his undue hardship application. [ 26 ] His income for November 12, 2010, in his income statement shows annual income of $38,064.00. [ 27 ] He is living common law with a person who has two children, aged 15 and 17, who are presently attending school. His common law spouse shows income of $9,650.00.

I have little information as to why her income is at this level. [ 28 ] The father’s total income for 2009 backward to 2004 is as follows: 2009 - $40,205.00; 2008 - $25,544.00; 2007 - $22,890.00; 2006 - $22,063.00; 2005 - $18,421.00; 2004 - $16,115.00; 2003 - $ 6,435.00; 2002 - $13,629.00; 2001 - $32,796.00. [ 29 ] The 2002 order was based on an income of $18,00.00.

From 2005 forward, he clearly earned income in excess of $18,000.00 which would have resulted in an increase of child support during the period of time the children were dependant. [ 30 ] The applicant has also filed her income as required in reference to the respondent’s application for undue hardship.

[ 31 ] From 2006 onward, her income was less than that of the respondent’s. She bore the bulk of the financial responsibility for the then still dependant children of the marriage. [ 32 ] The respondent did not comply with the court order. No formal application was made to seek disclosure of his income. [ 33 ] The mother did give evidence that she did contact the Maintenance Enforcement Program a number of times. Due to the nature of Mr.

O’Brien’s fluctuating income and seasonal employment, they were unable to effectively enforce payment without his disclosure as to when he became employed and information concerning him employment,. They could not help her [ 34 ] Absent his willingness to provide the information as directed, Ms. O’Brien’s only source of information would have resulted from a court application or by having her children inform her as to his current status. She choose not to do either of those. As a result, she can not get the benefit of a retro active variation given the age of her children [ 35 ] The children are now adults.

An application to vary retroactively is not permissible in accordance with the decision of the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231 , 2006 SCC 37 . [ 36 ] Had the actual child support payment been based on the respondent’s actual income in the year 2005 instead of $135.00 per month, he should have been paying $276.00. [ 37 ] For 2006 he should have been paying $321.00. [ 38 ] For 2007 he should have been paying $335.00 up to the end of May, 2007.

At that time due to the independence of the oldest child he should then have been paying from June 1 st forward to December 31 st , 2007, $191.00 per month. [ 39 ] In 2008, he should have been paying $222.00 per month for the remaining dependant child up to and including May of 2009. [ 40 ] In January 1, 2009, to end of May, 2009, he should have been paying $350.00. [ 41 ] In fact, he did not pay in accordance with the guidelines or in accordance with the court order. [ 42 ] Even with the reduced court order that did not reflect his ability to pay; ie: that was based on lesser income he said he earned; he accumulated arrears as of December 17, 2010, in the amount of $9,603.55. [ 43 ] The father began his common law relationship in 2009.

The statement of undue hardship filed by Mr. O’Brien indicates that he believes his legal duty to support the two dependant children in his current household and his obligation to support his current partner places him in a position where he is unable to pay. This, at the very time, when his income is the highest it has been. [ 44 ] He has not verified his income as stated by him in his previous proceedings relating to the income from Fort McMurray. [ 45 ] He is the sole owner of the home and land in Cape Breton.

There is no indication of an outstanding mortgage although I note there is a car loan and two general loans with Citifinancial and Mabou Credit Union.

[ 46 ] I note that in spite of the fact that this was his highest earning year, Mr. O’Brien paid only one payment in 2009 of $135.00. [ 47 ] There’s no information that would suggest undue hardship should apply for the 2009 year. [ 48 ] I have very little information about the respondent’s circumstances historically that would justify a conclusion that he could not pay in accordance with the order. He lived with his parents for a number of years after the separation.

I am unaware of his expenses during that period of time. [ 49 ] While he indicates his income did not fluctuate greatly, in fact he was in a position to pay considerably more than he was ordered to pay in 2004 when he asked the Court to hold on the payment of arrears. [ 50 ] He has not paid voluntarily.

The Maintenance Enforcement payment statement shows that what has been received results from garnishees and not as a result of his willingness to pay on a regular basis. [ 51 ] When asked on cross examination by the Court to fill in the details with respect to his historical information, his memory was vague. [ 52 ] He has been able to purchase the mobile home in which he currently lives for approximately $5,000.00.

He has a camper trailer which he indicates was given to him by a friend, which he uses in the summer, and has been able to buy a piece of land in the Mabou area. [ 53 ] He has indicated that he is going back out West this year to supplement his income. [ 54 ] The burden of proof is on Mr.

O’Brien on the balance of probabilities to support a forgiveness of arrears or a moratorium on collection. [ 55 ] He has not satisfied the Court on a balance of probabilities on the totality of the evidence that there is any reason to suggest that he can not address the arrears. [ 56 ] In fact, there is no information regarding his other indebtedness or other debts not being paid as a result of his current financial circumstances which were, in fact, better this year than they have been previously. [ 57 ] The applicant has the benefit of the law which does not allow Ms.

O’Brien to ask for a retro active review simply because her children are now independent. [ 58 ] The latest court order was made at a time when Mr. O’Brien was unemployed. He has benefitted from his failure to provide information. [ 59 ] There shall be no change in the regular due amount, the amount shall terminate completely effective April 1, 2009, and any arrears accumulated since that time shall be placed against the then outstanding arrears as re-calculated effective May 31, 2009. [ 60 ] I have no evidence to indicate that Mr. O’Brien is unable to pay off the arrears.

I note he pays $400.00 towards his GMAC car loan; $330.00 towards his credit union loan; and $420.00 towards his Citifinancial loan. [ 61 ] His application for undue hardship for 2009 is dismissed on its merits.

[ 62 ] He is ordered to pay $200.00 per month towards the outstanding arrears. In addition, by May 15, 2011, and continuing thereafter on May 15 th of each succeeding year, he shall pay $1,000.00 towards the outstanding arrears until the arrears are paid in full. [ 63 ] Counsel for the respondent shall prepare the order. Moira C. Legere Sers, J.