Kelly v. Harvey, 2014 NSSC 387

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Kelly v. Harvey, 2014 NSSC 387 Date: 2014-10-30 Docket: SFSNMCA-043315 Registry: Sydney Between: ELISABETH KELLY APPLICANT v. GEORGE WILLIAM HARVEY RESPONDENT LIBRARY COVER SHEET Judge: The Honourable Justice Theresa Forgeron Heard: September 23, 2014 in Sydney, Nova Scotia Oral Decision: October 20, 2014 Written Decision: October 30, 2014 Counsel: Candee McCarthy for the Applicant, Elisabeth Kelly Carolyn Ann MacAulay for the Respondent, George W.

Harvey Topic: Family Law Issues: Mobility and Retroactive Child Support Result: The mother’s request to relocate with her 14 and 10 year old sons was granted. The children’s relationship with their mother was stronger than their relationship with their father. The mother’s parenting skills were exemplary, while the father’s ability to meet the children’s educational and health needs was unknown. The father had no experience as a primary care parent. The children had educational challenges. The mother was proactive in ensuring educational resources were

available. The father was not. The children did not spend many overnights with their father. The mother’s relocation plan was not ill-conceived. Transitional difficulties would be mitigated because of the mother’s due diligence. The father son relationship would be maintained through a joint custody order and frequent contact, including during March break, the summer, and Christmas. Air fare costs to be equally shared. Retroactive support was granted. The children should not be penalized for the systematic delay in having the mother’s 2005 application for child support processed.

The father engaged in blameworthy conduct by failing to adjust maintenance as his income increased. The children would benefit from the payment of a retroactive order. No hardship proven as the father inherited significant assets and any financial difficulty was self induced. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Kelly v. Harvey, 2014 NSSC 387 Date: 2014-10-30 Docket: SFSNMCA-043315 Registry: Sydney Between: ELISABETH KELLY APPLICANT v.

GEORGE WILLIAM HARVEY RESPONDENT Judge: The Honourable Justice Theresa Forgeron Heard: September 23, 2014 in Sydney, Nova Scotia Oral Decision: Written Decision: October 20, 2014 October 30, 2014 Counsel: Candee McCarthy for the Applicant, Elisabeth Kelly Carolyn Ann MacAulay for the Respondent, George W. Harvey By the Court:

[ 1 ] Introduction [ 2 ] Fourteen year old Matthew and 10 year old Austin are the children of William Harvey and Elisabeth Kelly. Ms. Kelly seeks to relocate with the children to British Columbia. She also requests retroactive and prospective child support. In response, Mr. Harvey wants the children to live with him in the CBRM.

He resists the payment of retroactive child support. [ 3 ] Issues [ 4 ] The following issues will be determined in this decision: ➢ Should the children be permitted to relocate with their mother to British Columbia? ➢ Should retroactive child support be awarded? ➢ What is the appropriate award of prospective child support? [ 5 ] Background Information [ 6 ] On November 8, 2005, Ms. Kelly filed an application seeking custody and child support. On June 20, 2006, Ms. Kelly filed another application seeking custody. [ 7 ] The first court hearing was scheduled about three years after the initial application was filed.

Instead of finalizing the matters, an interim consent order was reached, and issued on September 26, 2008. Ms. Kelly was granted interim custody, while Mr. Harvey was provided with specified access, every second weekend. Further, Mr. Harvey was ordered to pay child support of $579 per month, based upon a total annual income of $40,000. Finally, the interim order stated that neither party was prejudiced from advancing claims at the final hearing for custody, access, retroactive child support, ongoing child support, and

section 7 expenses. [ 8 ] The matter was not scheduled for a final hearing. No further court action was taken until Mr. Harvey filed an ex parte application, six years later, on August 19, 2014. Although the court denied the ex parte motion, the matter was nonetheless brought forward on an expedited basis on August 25, 2014 because of the urgency. Mr. Harvey filed a motion to prevent the children from relocating to British Columbia. On August 25, 2014, the court scheduled the final hearing, and deadlines for the filing of affidavits. [ 9 ] On September 5, 2014, Ms.

Kelly filed a variation application requesting relief, including access, child support, retroactive support, and costs. [ 10 ] The final hearing was held on September 23, 2014. Mr. Harvey and Ms. Kelly testified and were cross examined on their affidavits. Post hearing submissions, which were received on October 9, 10, and 14, 2014, were reviewed.

Counsel are commended on the quality of their submissions, as well as the caliber of the presentation of their cases. [ 11 ] The oral decision was given on October 20, 2014. [ 12 ] Analysis [ 13 ] Should the children be permitted to relocate with their mother to British Columbia? [ 14 ] Position of Ms. Kelly [ 15 ] Ms. Kelly is seeking to relocate with the children to British Columbia. In support of her position, she notes as follows: ➢ She maintained primary care and custody of the children since separation.

She was an exemplary custodial parent, attending to the children’s emotional, physical, educational, medical and social welfare needs, with limited involvement from Mr. Harvey. ➢ Ms. Kelly is settled in a relationship with Mr. Archer who resides in British Columbia. The relationship between Ms. Kelly and Mr. Archer developed slowly. Approximately six months ago, Ms. Kelly and Mr. Archer decided to live together. She gradually introduced Mr. Archer into the lives of the children and discussed the possibility of moving to British Columbia with the children before definitive plans were solidified. ➢ Ms.

Kelly was not aware that Mr. Harvey opposed the move. She was surprised when she was served with the emergency application. ➢ Ms. Kelly’s financial circumstances will improve when she moves to British Columbia because she found a job, and will be sharing expenses with Mr. Archer. Ms. Kelly’s improved financial circumstances will benefit Austin and Matthew. ➢ Ms. Kelly made all necessary arrangements to ensure a smooth and appropriate transition for Matthew and Austin. ➢ Mr. Harvey never acted as a primary care parent.

The children will experience significant adjustment difficulties if they are forced to remain in the CBRM. ➢ Ms. Kelly will ensure that the children continue to communicate with their father as frequently as possible. She arranged a long distance telephone plan. The children will have access to a computer so that they can communicate with their father via face time and skype. In addition, Ms. Kelly will facilitate physical contact during the summer and extended holidays, or if Mr. Harvey visits the area. [ 16 ] Position of Mr. Harvey

[17] Mr. Harvey says that it is in the best interests of Matthew and Austin to live in the CBRM with him, given that Ms. Kelly isrelocating to British Columbia. Mr. Harvey outlines a number of reasons in support of his position, including the following: ➢ There is no presumption in favor of Ms. Kelly’s move. ➢ Mr. Harvey has been a consistent and involved parent. The children visit him every second week-end and on most days afterschool. ➢ The children will be negatively affected if they are forced to move. They need stability and routine. They are currently coping withthe loss of their grandmother.

Further losses could be traumatic. The children have always lived in CBRM. Their friends, school, andhome are here. The children derive stability here. The children love the family farm where Mr. Harvey will be moving once the estatematters move forward. A move to British Columbia will be too disruptive, especially at this time. ➢ The children’s relationship with Mr. Harvey will be harmed if Matthew and Austin are forced to move across the country. Thechildren need to have a solid relationship with their father. ➢ Ms. Kelly has not, and will not, encourage his relationship with the children.

She attempted to exclude him by failing to advise ofsignificant issues affecting the children. For example, when the school recently conducted psycho-educational assessments of bothchildren, Ms. Kelly did not inform Mr. Harvey. Further, Ms. Kelly did not mention anything about the proposed move until after thechildren had been informed, and a decision made. In contrast, Mr. Harvey will ensure that Ms. Kelly is part of the decision makingprocess. ➢ Mr. Harvey has a positive relationship with Matthew and Austin. ➢ Mr. Harvey is concerned that the type of access proposed by Ms.

Kelly will not meet the needs of the children and will result in aloss of the father son bond. Telephone, skype or face time access is a poor substitute for the regular access which the boys have enjoyedwith him for the past two years. ➢ Mr. Harvey is willing and able to meet all transition needs that the children may experience in the event they are placed in his care. Mr. Harvey is open to counselling and seeking professional help if such becomes necessary. ➢ The children had little exposure to Mr. Archer. The move and Mr. Archer are unknown quantities.

In contrast, the children areconnected with him, his long term partner, and the CBRM. ➢ Mr. Harvey is open to significant access between the children and Ms. Kelly in the event the children are placed in his care. [18] Law [19] The court authority to create parenting orders is found in s.18 of the Maintenance and Custody Act. When crafting a parentingorder, the court must review the plan of rival claimants, and choose the course that will best provide for the healthy development of thechild: K. (K.) v. L. (G), [1985] S.C.R. 87 (S.C.C.); and s. 18 (6)(

d) of the Act. [20] I am also mindful that s. 18 (4) of the Act confirms that both parents are joint guardians and are equally entitled to the care andcustody of their children unless otherwise provided. This statutory provision has not been diluted or compromised by the interim order,which is a temporary order. An interim order does not provide the interim custodial parent with a tactical advantage at trial: Marshallv. Marshall (1998), (NS CA), 168 N.S.R. (2d) 48 para 27, per Roscoe, J.A. A change in circumstance need not beproven.

These statements are underscored in the specific provisions of the interim order which state that “there is no prejudice to eitherparty to assert their legal rights in relation to custody, …”. Both parties are therefore presumptively entitled to custody of Matthew andAustin. [21] In addition , court decisions involving children must be based on their best interests as stated in s. 18(5) of the Act. In assessingevidence related to best interests, this court must have regard to the standard of proof and must make credibility determinations. In C.(R.) v.

MacDougall, 2008 SCC 53 (S.C.C.), Rothstein J. confirmed that there is only one standard of proof in civil cases – that is proofon a balance of probabilities. In every civil case, the court must scrutinize the totality of the evidence. The evidence must be clear,convincing, and cogent to satisfy the balance of probabilities test. In making credibility determination I have reviewed and applied thefactors outlined in Baker-Warren v. Denault, 2009 NSSC 59 (S.C.), as approved in Hurst v.

Gill, 2011 NSCA 100 (C.A.). [22] Further, the Maintenance and Custody Act specifies the factors that compose the best interests test in the context of parentingplans. These factors focus on relationships, communication, stability, violence, views of the children, parenting strengths andweaknesses, and the parent’s ability to meet the physical, emotional, social welfare, educational, health, and safety needs of children. Inaddition, I must examine the factors outlined by the Supreme Court of Canada in Gordon v. Goertz, (SCC), [1996] 2S.C.R. 27 (S.C.C.). Although Gordon v.

Goertz, supra, involved proceedings under the Divorce Act, the same legal principles apply toapplications made pursuant to the Maintenance and Custody Act: Rafuse v. Handspiker, 2001 NSCA 1 (C.A.). [23] In Gordon v. Goertz, supra, the Supreme Court of Canada listed the factors to be applied in relocation applications, at paras 49and 50 which state, in part, as follows: … 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interests of the child in the particular circumstances ofthe case.

6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community.

The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [ 24 ] I will now review the factors which compose the best interests test so that I can properly resolve the parenting dispute. [ 25 ] Relationship Between the Children and Ms. Kelly [ 26 ] Matthew and Austin enjoy a positive, strong relationship with their mother. They lived in her primary care for many years. Ms. Kelly met the needs of Austin and Matthew in an exemplary fashion. The evidence is replete with examples of Ms.

Kelly’s care, including her ability to engage with professionals and attend to the special educational needs of the children, and ensuring their medical needs are met. Ms. Kelly is a dedicated mother. Because of her care, the children, not surprisingly, have developed well. They have, and will continue to derive stability, nurture, and guidance from their mother. This relationship forms a healthy foundation for the children to branch out and ultimately develop into well-adjusted young men. [ 27 ] Relationship Between the Children and Mr. Harvey [ 28 ] The children and Mr. Harvey enjoy a loving relationship.

I find, however, that this relationship does not match the strength and maturity found in the relationship between Ms. Kelly and the children. [ 29 ] Further, Mr. Harvey’s parenting skills are not as strong as those exhibited by Ms. Kelly. An example of this conclusion is found in Mr. Harvey’s failure to appreciate the educational challenges and needs of the children. Mr. Harvey attended one meeting at Austin’s school where Ms. Kelly, the guidance counsellor, teacher, principal, and teaching assistant were present. The meeting did not go well. Mr. Harvey became belligerent. Mr.

Harvey did not appear to do much follow-up after that meeting. Rather, he was content to allow Ms. Kelly to organize that aspect of Austin’s life. In addition, Mr. Harvey’s involvement with homework and school projects was limited. He said the children often became upset when he attempted to help them with homework. He did assist with two school projects, which is a minimal amount, given the ages of the children. Other examples are found in Mr. Harvey’s difficulty in getting the boys to bathe or finding foods that met Austin’s nutritional needs and tastes. In the past, Mr.

Harvey relied upon his mother to assist with the meal preparation and in meeting the day to day needs of the children. [ 30 ] Another troubling feature is the fact that overnight access is not frequent for Matthew, and is nonexistent for Austin. Mr. Harvey states that overnights do not occur because he does not want to place pressure on Austin or Matthew. That sentiment is commendable. However, Mr. Harvey did not present a concrete plan to address Austin’s reticence in the context of his proposal to have the children live permanently with him.

The court infers that it is indeed an unusual situation when a 10 year old child does not enjoy overnight access with his father, and a 14 year old child enjoys infrequent overnights. [ 31 ] In

summary, the father son relationship is not as robust as the mother son relationship; Mr. Harvey’s parenting skills are not as strong as Mr. Kelly’s parenting skills. [ 32 ] Promotion of Parental Contact [ 33 ] Matthew and Austin will benefit from ongoing contact with both parents. Austin and Matthew will necessarily have to make adjustments regardless of the decision I make. Adjustments are inevitable because their mother will be living in Prince Rupert and their father in Cape Breton.

The children, however, are at an age where they can communicate by telephone, skype, face time, as well as in person during the summer and school holidays. [ 34 ] Both parents are committed to facilitating contact with the other parent. I reject the submission that Ms. Kelly failed to foster the father son relationship in the past. She did not. Mr. Harvey has enjoyed unrestricted access with the children, indeed more than that specified in the body of the interim order. [ 35 ] Communication Between Parents [ 36 ] Communication is a significant issue. In the past, Mr. Harvey’s mother facilitated communication. Mr.

Harvey’s mother and Ms. Kelly spoke regularly and they enjoyed a good working relationship. Since the grandmother’s passing, a communication void developed. Both parties appear to use the children to transfer information and messages. This must stop. The children should not be placed in the middle and are not to be used as messengers.

[ 37 ] Mr. Harvey wants to play a more active role in decision making that impacts upon the children. His input will benefit the children. The parenting order will outline how communication will be transferred in a respectful and child-focussed fashion. [ 38 ] Views of the Children [ 39 ] The court has no independent evidence about the views of Matthew and Austin in relation to the relocation application. This factor is therefore neutral. [ 40 ] Disruption to the Children if Relocation Granted [ 41 ] The children will experience disruption if they are relocated.

A move will mean that Austin and Matthew will stop having after school, and week-end access with their father; and that they will have to attend a new school, make new friends, and adjust to a new home and community. This will likely pose transitional difficulties. [ 42 ] Disruption if there is a Change in Custody [ 43 ] The children will also experience difficulty if the relocation application is refused. If relocation is refused, the children will be placed in the primary care of their father and will have access to their mother. [ 44 ] The children will likely experience great disruption if Mr.

Harvey becomes the primary care parent. The children have been in the primary care of their mother since separation in 2005. Ms. Kelly is attuned to the needs of Austin and Matthew. Although the children love their father, they are more closely aligned with their mother. Adjustment difficulties will be pronounced, especially for Austin, if custody changes. [ 45 ] The type of parental commitment and skill set required from a primary care parent is significantly different from that of an access parent.

Given the children’s longstanding positive relationship with their mother, the court envisages long term negative effects flowing from a change in the primary care parent. [ 46 ] In contrast, the court does not harbour any reservations about the stability of Ms. Kelly’s plan to relocate to British Columbia. The plan is not haphazard, impetuous, or ill-conceived. Ms. Kelly formed a relationship with Mr. Archer slowly, over time. Ms. Kelly was diligent in finding appropriate schools, a home, and a job in Prince Rupert. Transitional difficulties will be mitigated because of Ms.

Kelly’s due diligence. [ 47 ] Children’s Physical Needs [ 48 ] I am satisfied that both Mr. Harvey and Ms. Kelly can meet the physical needs of the children. They are both capable of ensuring appropriate housing in safe neighbourhoods. The children’s nutritional and clothing needs will likely be met in the care of either parent, although the court recognizes that Ms. Kelly was primarily responsible for these needs in the past, and that Mr. Harvey may require assistance in ensuring the hygiene and nutritional needs of the children are met. [ 49 ] Educational and Medical Needs [ 50 ] Ms.

Kelly was the parent who primarily met the educational and medical needs of the children. Ms. Kelly displayed appropriate skills and judgement in relation to the children’s educational and medical needs. [ 51 ] Unfortunately, Mr. Harvey has a limited history of meeting and maintaining the educational and medical needs of the children. Mr. Harvey has taken a “hands off” approach to the children’s education and medical needs. Mr. Harvey was content to leave these matters in the capable hands of Ms. Kelly. [ 52 ] Mr.

Harvey must assume some responsibility for failing to obtain basic information about the children’s learning deficits and educational needs. Mr. Harvey exercised regular access with the children for about two years. He had ample opportunity to observe the children’s educational challenges. In addition, Mr. Harvey attended one educational meeting where several professionals were present. Yet despite these facts, Mr. Harvey did little to ascertain the extent of the ongoing educational needs of his sons. Children with educational challenges require parents who are proactive. Mr.

Harvey is not such a parent. [ 53 ] Whether Mr. Harvey has the ability to meet the educational needs of the children is unknown. The court has no concerns about Ms. Kelly’s ability. [ 54 ] Activities [ 55 ] The children were involved in unstructured activities with both parents. The court acknowledges that the children, especially Matthew, enjoy spending time on the farm property, a property which Mr. Harvey inherited and where he will ultimately move. [ 56 ] The children are not currently involved in structured activities because of Ms. Kelly’s finances.

In the past, they attended swimming when their paternal grandmother assisted with the expense. Ms. Kelly was the parent who primarily ensured the children’s attendance at swimming. [ 57 ] Ms. Kelly made arrangements in Prince Rupert to enrol the boys in structured activities. Financially, Ms. Kelly will be in a more secure position when she moves to Prince Rupert and can once again afford specialized activities. [ 58 ] Availability

[ 59 ] Employment will impact upon the time that each parent is available to care for the children. Mr. Harvey said that the hours he spends at work are extensive at times – 12 and 14 hour days, if there is a need. Mr. Harvey expressed concerns about his ability to exercise access should the children move to Prince Rupert because of his potential work

schedule during Christmas, March break, and the summer. [ 60 ] I find that Ms. Kelly had greater exposure to juggling work and personal time commitments, and is in a better position to continue to do so. [ 61 ] Violence [ 62 ] There is no evidence of violence and this factor is neutral. [ 63 ] Role Model and Moral Development [ 64 ] Both parties have strength and weaknesses. Both are good role models for their children. This factor is neutral. [ 65 ] Discipline [ 66 ] There is no evidence that either party negatively disciplines the children. This factor is neutral. [ 67 ] Conclusion on Relocation and Parenting

Schedule [ 68 ] I reviewed all of the evidence. I only considered the evidence that was properly before the court by way of exhibits, or as elicited while a witness testified. I did not consider any factual information that was provided in submissions or contained in other documents filed, or hearsay evidence, or otherwise inadmissible statements. I have considered the law and the legal submissions of the parties. [ 69 ] After considering the evidence and the law, I am granting the relocation request of Ms. Kelly in the best interests of Matthew and Austin.

The relocation plan is stable and can be accomplished in a way that minimizes the disruption between the children and their father. Although the relocation plan will end the current access regime, the father son bond will be maintained through telephone, email, texting, skype, and face time, together with extensive access during holidays. Further, Mr.

Harvey will be provided with particulars surrounding the children, and is encouraged to have communication with all professionals involved in the children’s care. [ 70 ] I also determined that the father son relationship will be strengthened by a joint custody order. A joint custody order is in the best interests of Matthew and Austin. They will benefit if both parents are actively involved in decision making concerning them. The evidence does not suggest that the parties are incapable of communicating in a healthy and reasonable fashion.

Joint custody is viable, and is the optimal parenting arrangement. [ 71 ] Order [ 72 ] The terms of the parenting order are as follows: [ 73 ] Joint Custody : Elisabeth Kelly and George Harvey will have joint custody of their children, George Matthew Kelly-Harvey born *; and William Austin Kelly-Harvey, born *. [ 74 ] Primary Residence : Elisabeth Kelly will have primary care and residence of the children. [ 75 ] Consultation : Elisabeth Kelly must consult with George Harvey about important decisions affecting the health, education, and general welfare of the children, according to the provisions outlined in this order.

If, after meaningful consultation, the parties are unable to reach agreement, Elisabeth Kelly will have final decision making authority. [ 76 ] Third Party Communication : Each party has the right to communicate with all professionals involved in the children’s care, and each has the right to obtain information and documentation respecting the children from all medical professionals, educators, and social welfare professionals involved with the children, without the prior consent of the other party.

Elisabeth Kelly must keep George Harvey informed of the names, telephone numbers, and contact information of all professionals involved with the children, and any changes thereto. [ 77 ] Parental Communication : Matters relating to the children’s health, education and general welfare, will be the subject of communication between the parties. All communication must be respectful and child focused and will be primarily facilitated by e-mail. E-mail communication will be compellable for court purposes.

Each party must provide the other party with an up-to-date e-mail address where she/he can be reached, and any changes thereto, on a timely basis. Each party must maintain internet access, and a current e-mail address, so that child focused communication can be facilitated. Each party must review his/her e-mail on a regular basis, unless health or other commitments make regular access impossible. Telephone contact will be used in the event of an emergency.

Elisabeth Kelly must provide George Harvey with updates about the children’s health, education and general welfare about once every ten days. [ 78 ] Contact Information : The parties must advise each other of her/his residential address, telephone numbers, and changes thereto on a timely basis. [ 79 ] Communication in Presence of Children : Each party must speak respectfully of the other and of her/his extended family, in the children’s presence. [ 80 ] Long Distance Access: Elisabeth Kelly must facilitate regular contact between the children and George Harvey by telephone, skype, face time, e-mail, or through the use of other social media. [ 81 ] In Person Access : George Harvey will have access to the children at the following times:

➢ Spring Break ; Spring Break is deemed to cover a ten day period from 9:00 am on Friday, on the last day of school, until Sunday at noon, before school recommences. George Harvey will have the children in his care every spring break.

The children must be placed on an airplane for transportation to George Harvey on the Friday before spring break commences, to be returned to Elisabeth Kelly’s care in British Columbia, no later than noon on the Sunday prior to school recommencing. ➢ Summer Vacation : For six weeks during the school summer vacation, at times to be agreed upon between the parties. ➢ Christmas: For seven days during the Christmas school break, at times to be agreed upon between the parties. ➢ Other Access : Such other access as agreed to by the parties in the event Mr.

Harvey attends British Columbia, or in the event the children are in Cape Breton. [ 82 ] Cost of Plane Fare : The cost of the plane fare to transport the children between British Columbia and Sydney, Cape Breton, return, during the Christmas break, spring break, and summer vacation will be equally shared by the parties. George Harvey must pay his share of the cost of the plane tickets to Elisabeth Kelly within 15 days of being presented with proof. [ 83 ] Should retroactive child support be ordered? [ 84 ] Ms. Kelly seeks a retroactive child support order. [ 85 ] Mr. Harvey objects for two reasons. First, Mr.

Harvey states that the matter is not properly before the court. Second, if the court assumes jurisdiction, then Mr. Harvey states that Ms. Kelly has not proven her claim. [ 86 ] I will address the jurisdiction issue before delving into the merits of the claim. [ 87 ] Jurisdiction [ 88 ] The issue of retroactive child support is properly before the court for three reasons. First, Ms. Kelly’s application dated November 8, 2005 remains outstanding. A final order was never entered. In 2005, Ms.

Kelly requested child maintenance pursuant to the provisions of the Maintenance and Custody Act . [ 89 ] Further, the interim order dated September 26, 2008, specifically notes that a claim for retroactive child support can be advanced. The order states as follows: It is understood that the provisions contained herein are interim only, and there is no prejudice to either party to assert their legal rights in relation to custody, access, child support – table amounts (retroactive); child support table amount (ongoing); and

Section Special Expenses (retroactive and ongoing) at a Final Hearing. [ 90 ] Finally, the notice of variation application filed on September 4, 2014, also highlights the request for retroactive child support. [ 91 ] Merits [ 92 ] Overview of the Law [ 93 ] I will now address the merits of the claim. Ms. Kelly has proven on a balance of probabilities, that retroactive child support is appropriate in the circumstances. In so doing, I reference the decision of the Supreme Court of Canada in S. (D.B.) v. G. (S.R.) , 2006 SCC 37 (S.C.C.) .

The following principles were reviewed by Bastarache J., for the majority: ➢ Child support is the right of the child and such right survives the breakdown of the relationship of the child’s parents [para 38]. ➢ The child loses when one of his/her parents fails to pay the correct amount of child support [para 45]. ➢ Parents have an obligation to support their child according to his/her income and this obligation exists independent of any statute or court order [para 54]. ➢ The payment of a retroactive award is not an exceptional remedy [para 97]. ➢ A retroactive maintenance award should be payable from the date the custodial parent gave effective notice to the non-custodial parent [para 118].

It is generally inappropriate to make a retroactive award more than three years prior to the date when formal notice was provided to the noncustodial parent [para 123]. ➢ The quantum of a retroactive award must be tailored to fit the circumstance of the case [para 128]. ➢ The court must examine and balance four factors when determining the issue of retroactivity.

The first factor concerns the reasonableness of the custodial parent’s excuse for failing to make a timely application in the face of the nonpayment of child support or in the face of an insufficient payment of child support: paras 101 and 104. ➢ The second factor relates to the conduct of the non-custodial parent. If the noncustodial parent engages in blameworthy conduct, then the issuance of a retroactive award is usually appropriate.

The determination of blameworthy conduct is a subjective one based upon objective indicators [para 108] and the court should take an expansive view as to what constitutes blameworthy conduct in the face of the nonpayment or insufficient payment of child support: paras106 and 107. ➢ The third factor to be balanced focuses on the circumstances, past and present [para 110] of the child, and not of the parent [para 113], and include an examination of the child's standard of living [para 111].

➢ The fourth factor requires the court to examine the hardship which may accrue to the noncustodial parent as a result of the noncustodial parent's current financial circumstances and financial obligations [para 115], although hardship factors are less significant if the noncustodial parent engaged in blameworthy conduct [para 116]. [ 94 ] I will now apply the law to the facts of this case. First, Ms. Kelly did not delay in making the application for child support. She filed her request in November 2005, and confirmed the request during the interim proceeding in September 2008. Mr.

Harvey had direct knowledge that Ms. Kelly was seeking retroactive child support. Ms. Kelly should not be penalized, nor should the children, from the systemic delay in having her application processed in an efficient and timely fashion. [ 95 ] Second, Mr. Harvey engaged in blameworthy conduct in that he did not disclose his income to Ms. Kelly, nor did he adjust the child support when his income increased. I make this finding even though the order did not state that Mr. Harvey must provide Ms. Kelly with income information.

The payment of child support is not one based upon a game of cat and mouse, wherein you only pay if you get caught. Child support, as noted by the Supreme Court of Canada, is the right of the child. The interim order clearly stipulates that child support is based upon Mr. Harvey’s income of $40,000 and the applicable child support table. Mr. Harvey knew, or ought to have known, such would require adjustment when his income increased. In addition, the order squarely addressed the retroactive support claim. [ 96 ] Third, the children will benefit from a retroactive payment of support.

The children did without extras because of the financial circumstances of Ms. Kelly, including the reduced child support payment. Ms. Kelly struggled financially. At times she worked two jobs in an effort to improve the standard of living for her children. Ms. Kelly will use the retroactive child support for the children’s benefit. [ 97 ] Fourth, the hardship claim did not succeed for two reasons. First, any hardship was self-induced in that Mr. Harvey failed to adjust child support as his income increased. Second, Mr. Harvey inherited an estate, composed of both liquid assets and real property.

Although there may be a delay in the finalization of the estate, Mr. Harvey ultimately will receive a substantial amount of real and personal property. He therefore has the ability to pay retroactive child support. [ 98 ] Retroactive child support is awarded from January 2009 to present, and such a retroactive award will be based upon the income of Mr. Harvey and the Child Support Guidelines which were in effect at the time, with credit for all child support paid. In the event counsel are unable to reach agreement on this calculation, further written submissions are to be provided before October 31. Mr.

Harvey will pay Ms. Kelly the retroactive child support award no later than December 12, 2014. [ 99 ] What is the appropriate award of prospective child support? [ 100 ] The court must determine Mr. Harvey’s income for 2014 for the purposes of calculating the ongoing amount of child support. Information supplied to the court indicates that Mr. Harvey’s 2014 income is composed of EI and employment income from a landscaping company. In 2013, Mr. Harvey earned $24,703. He will earn more in 2014, partly due to the additional employment income earned during the heavily snow laden months between January and April 2014.

I set Mr. Harvey’s income for 2014 at $40,000. Child support of $570 must be paid monthly. [ 101 ] The order will be subject to automatic adjustment on June 1 st of each year, and based on the prior year’s income. Because Ms. Kelly will be residing in British Columbia, the order cannot be subject to the automatic recalculation regime. The parties will therefore obtain a chambers date to register the adjusted child support payment. A docket appearance is to be secured. This provision does not limit the ability of either party to make an application to vary. [ 102 ] The order will also specify that Mr.

Harvey must supply Ms. Kelly with a copy of his income tax return, together with all attachments, whether filed with Revenue Canada or not, together with all Notices of Assessment or Re-Assessment, on an annual basis, no later than May 1 st each year, beginning on May 1, 2015, in relation to the 2014 income information. [ 103 ] Conclusion [ 104 ] The court disposes of the 2005 application and all other applications filed thus far. Ms. Kelly is permitted to relocate with the children to British Columbia pursuant to the provisions of the joint custody order outlined in this decision. Mr.

Harvey must pay retroactive child support as well as ongoing child support. [ 105 ] Thank-you. Ms. McCarthy is to draft and circulate the order. Forgeron, J.