BERNARD FREDERICK BOUDREAU Applicant v. KARRIE LEE BOUDREAU Respondent Judge: The Honourable Justice John A. Keith, 2020 NSSC 169

SUPREME COURT OF Nova Scotia Citation: Boudreau v Boudreau , 2020 NSSC 169 Date: 20200605 Docket: SYDVRO-091117 Registry: Yarmouth Between: BERNARD FREDERICK BOUDREAU Applicant v. KARRIE LEE BOUDREAU Respondent Judge: The Honourable Justice John A.

Keith Heard: November 7, 2019, in Yarmouth, Nova Scotia Final Written Submissions: December 27, 2019 Counsel: Regan Murphy, for the Applicant Bernard Boudreau Karrie Boudreau, not present, not represented By the Court: THE APPLICATION AND PROCEDURAL HISTORY [ 1 ] The Applicant Bernard Frederick Boudreau (the “Applicant”) filed a Notice of Application in Chambers on August 6, 2019, with his supporting Affidavit sworn May 14, 2019 and Statement of Income. Briefly, he sought a provisional order which would: 1.

Retroactively reduce child support owing from September 3, 2011 forward so as to reflect what he says is his actual income; and 2. Terminate child support for all of his three children on the basis that they passed the age of majority in Alberta (18 years). The children have lived in Alberta since birth. [ 2 ] The Applicant appeared as a self-represented party before the Honourable Justice Pierre Muise on September 5, 2019. [ 3 ] The matter was adjourned to October 10, 2019 for the Applicant to address various evidentiary issues and also to file legal submissions.

The Applicant filed a Supplemental Affidavit on October 3, 2019. [ 4 ] On October 10, 2019, Regan Murphy appeared on behalf of the Applicant. Mr. Murphy indicated that he had additional case law that had not been filed prior to the appearance. The matter was adjourned to November 7, 2019, for Mr. Murphy to file a brief. [ 5 ] On October 18, 2019, the Applicant filed another Supplemental Affidavit together with a Brief and a Book of Authorities. [ 6 ] On November 7, 2019, Mr. Murphy made additional submissions and the matter was adjourned for the Applicant to file evidence of his 2019 income. Mr.

Boudreau provided this additional evidence in a further supplementary affidavit sworn and filed on December 27, 2019.

SUMMARY OF THE EVIDENCE [ 7 ] The Applicant and the Respondent were married on September 27, 1997 in Alberta. They have three children: 1. ABB, born May 30, 1997 and currently 22 years old 2. BEB, born April 25, 1999 and currently 21 years old; and

3. MRAB, born September 28, 2000 and currently 19 years old. [ 8 ] The children were all born in Alberta and have lived there since birth. [ 9 ] I find that the parties separated on September 3, 2011. This date is consistent with the terms of the Order and also roughly corresponds to Mr.

Boudreau’s affidavit sworn May 14, 2019 where he confirms living with his mother in Tusket, Nova Scotia since returning to Nova Scotia in 2011. [ 10 ] As at the date of separation, ABB would have been 14 years old; BEB would have been 12 years old; and MRAB would have been 10 years old. [ 11 ] The Applicant and Respondent were divorced by divorce judgement and corollary relief order (the “ Order ”) issued on January 8, 2014 by Justice D. K. Miller of the Court of Queen’s Bench of Alberta. That Order provided that, among other things, the Respondent shall have sole custody of their three children.

In addition, the Order stated that: 1. The Applicant shall pay to the Respondent $979.00 per month in child support based on an imputed guideline income of $52,000.00; and 2. the Applicant shall further pay to the Respondent retroactive child support for the period from September 3, 2011 to December 2013 in the amount of $25,454.00. [ 12 ] The Order also required that the Applicant pay his share of

section 7 extraordinary expenses. [ 13 ] Under the terms of this Order, all of these payments were to be made to the Director of Maintenance Enforcement for Alberta. [ 14 ] I do not have the evidence before me which Justice Miller relied upon to impute income in the amount of $52,000.00. I also do not have the evidence used to calculate child support arrears in the amount of $25,454.00 owing as of December, 2013. In any event, the Applicant states that his actual income from separation in 2011 forward never approached the level of income which was imputed to him.

The income tax returns filed in connection with this proceeding seem to bear that out. [ 15 ] The Applicant states that he was not aware of the Order until about April 2017, when he was contacted by Nova Scotia’s Maintenance Enforcement Program (“ MEP ”). However, the following additional facts are also material to the Applicant’s knowledge of the Order prior to April 2017: 1. I do not have a copy of the documents filed by the Respondent in support of the Order which may include, for example, proof of service. Nevertheless, the Applicant does not expressly deny knowledge of the divorce proceedings in Alberta.

He simply states that he “was not present as [he] could not afford to attend in Alberta”; 2. The Order was issued in Alberta on or about January 18, 2014 but was then issued in the Nova Scotia Supreme Court (Yarmouth Justice Centre) on May 3, 2014; 3. Between September 3, 2011 and May 2017, according to the Nova Scotia MEP records filed in support of this application, the Applicant made some very modest payments to MEP for child support. In particular, he paid $1,564.25 on January 5, 2015; $130.75 on March 24, 2015 and $15.28 on May 20, 2015 for a total of $1,710.28.

The Applicant did not explain why he suddenly made these three anomalous payments to Nova Scotia’s MEP or how these payments reconcile with the statement that he was not aware of the Order until 2017; 4. According to MEP records, the monthly child support amounts due from the Applicant immediately prior to May, 2017 was $733.00 even though the Order confirmed monthly child support of $979.00 per month. It appears that MEP may have reduced the amount payable although I was not provided with any evidence or explanation as to how/when/why that reduction in child support occurred.

As of May 1, 2017, the monthly child support amount was dropped again to $424.00. [ 16 ] Based on the evidence before me, I infer that the Applicant had notice of the Alberta proceedings which resulted in the 2014 Order but did not respond.

The Applicant also became aware of the need to make payments to Nova Scotia’s MEP by at least January, 2015 (about 6 months after the Order was issued in Nova Scotia) because he was actually made modest payments to MEP. [ 17 ] Beyond that, from 2011 until about April, 2017, it appears that the Applicant largely disregarded the potential consequences of the 2014 Alberta divorce proceedings. It must also be said that during this same period of time (2011 – April, 2017), the Applicant also largely disregarded his obligation to financially support his children – either by way of monthly payments or contribution to

section 7 extraordinary expenses. It was only upon more forceful collection efforts by Nova Scotia’s MEP in 2017 that the Applicant finally began to make regular support payments. [ 18 ] In his evidence, the Applicant offered no explanation and focussed on his personal financial circumstances and sought to reconcile his support obligations with his actual financial circumstances. [ 19 ] As of April, 2017, the Applicant began making regular, monthly payments based on a monthly amount due of $424.00.

I also note the Applicant attached as Exhibit B to his May 14, 2019 Affidavit a letter from Maintenance Enforcement dated August 27, 2018, attaching a Notice of Garnishment/Seizure that would garnishee $424.00 per month commencing September 1, 2018. [ 20 ] The Applicant’s affidavit evidence also includes the following additional information which is germane to the issue of child support arrears and the Applicant’s actions from April, 2017 forward: 1. April 11, 2017: Nova Scotia’s MEP prints a record of payments and outstanding arrears covering the period April 28, 2014 – April 11, 2017.

At that time, the outstanding arrears totalled $57,491.72. If there was any other information exchanged between the Applicant

and MEP during that period of time, it was not disclosed; and 2. April 12, 2017: The Applicant’s legal counsel sends a letter to the Respondent personally requesting a call to discuss child support, among other things. The letter states that the Applicant only recently became aware of the Order. In his affidavit evidence filed in support of this proceeding, the Applicant testifies that the Respondent did not respond to this letter; 3.

May 1, 2017 forward: Immediately after Nova Scotia’s MEP printed out the arrears owing and the Applicant reached out to the Respondent to initiate discussions, additional MEP records confirm that the Applicant began making regular payments towards child support. Between May 1, 2017 and October 3, 2019, he paid a total of $16,950.06. According to Nova Scotia’s MEP records, the outstanding arrears were reduced to $49,459.94. [ 21 ] As to the current status of the parties’ three children, the Applicant’s affidavit evidence includes the following information: 1.

ABB: On May 30, 2016, ABB turned 19 years old, which is the age of majority in Nova Scotia. He is now almost 23 years old. The Applicant testifies that ABB moved out of his mother’s home on August 1, 2017 – just after his 20 th birthday. He lived for a time in Edmonton before relocating to Medicine Hat and moving in with his maternal grandmother. ABB then moved into his own apartment in Medicine Hat during the summer of 2019 and his current annual income is $19,800.00. 2. BEB: BEB turned 19 years old on April 25, 2018 and is now 21 years old.

He continues to reside with the Respondent but works full-time as a manager with Subway where he earns $33,407.00 per year plus a monthly bonus based on performance. 3. MRAB: MRAB turned 19 on September 28, 2019. The Applicant states that MRAB works full-time with Subway where she earns about $23,400.00 per year. MRAB also continues to live with the Respondent and is in the process of completing the two courses necessary to graduate from high school.

The Applicant is not aware of MRAB’s career plans after high school. [ 22 ] Finally, the Applicant offers the following additional information regarding the circumstances he says have arisen as a result of his current child support obligations. However, the evidence is limited and certainly does not address any of the factors for undue hardship identified in section 10(2) of the Federal Child Support Guidelines , SOR/97-175 (the “ Guidelines ”). The Applicant merely states: I have not been able to pay the amount of child support payments due per month and am not able to pay arrears due to income level.

Unfortunately, these arrears keep accruing each month and, due to the high level of arrears, my drivers license was revoked, and I cannot put license plates on the vehicle. This has substantially impacted my ability to provide for myself and have sufficient income to pay any arrears. [ 23 ] That said and in fairness, the Applicant ultimately states that he primarily seeks a recalculation and reduction of arrears based on his actual income and in keeping with the applicable law – not based on allegations of hardship. ANALYSIS Jurisdiction [ 24 ] The Applicant has applied for this variation under

Section 17, Provisional Orders of the Divorce Act , R.S.C. 1985, c. 3, as amended, which states: [ 25 ] Provisional Orders

Definitions 18

(1) In this

section and

section 19, Attorney General , in respect of a province, means (

a) for Yukon, the member of the Executive Council of Yukon designated by the Commissioner of Yukon, (

b) for the Northwest Territories, the member of the Executive Council of the Northwest Territories designated by the Commissioner of the Northwest Territories, (b.1) for Nunavut, the member of the Executive Council of Nunavut designated by the Commissioner of Nunavut, and (

c) for the other provinces, the Attorney General of the province, and includes any person authorized in writing by the member or Attorney General to act for the member or Attorney General in the performance of a function under this

section or

section 19; ( procureur général ) provisional order means an order made pursuant to subsection (2). ( ordonnance conditionnelle ) Provisional order

(2) Notwithstanding paragraph 5(1)(

a) and subsection 17(1), where an application is made to a court in a province for a variation

order in respect of a support order and (

a) the respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of

section 17.1 in respect of the matter, and (

b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this

section and

section 19, the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under

section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it. [ 26 ] Thus, my findings in this proceeding are provisional only. The matter (including this decision) will be sent to Alberta for a confirmation hearing. At that point, the Respondent will have notice and an opportunity to make representations before the Court. Income [ 27 ] Income is obviously an important factor for determining both the "table amount" of monthly child support payable under the Guidelines and for calculating a parent's contribution to

section 7 extraordinary expenses. There are other factors which may affect the result, but income is a preliminary, critical variable. [ 28 ] The calculation of income for child support purposes is not simply a matter of adopting and mechanically transposing whatever figure a party may have declared on Line 150 of their income tax return. Adjustments may be appropriate. For example, adverse inferences may be drawn where a party fails to make the necessary financial disclosure ( s. 23 of the Guidelines , and MacGillivary v.

Ross , 2008 NSSC 339 ). [ 29 ] In this case, the Applicant has been self-employed throughout the entire period in question. I have reviewed his income tax returns to assess the revenues claimed and the deductions used to calculate his Line 150 income. I am not prepared to accept the Line 150 income because it has been reduced by the Capital Cost Allowance. As such and in accordance with

section 11 of

Schedule III of the Guidelines , I am increasing the Applicant’s Line 150 income to add the Capital Cost Allowance claimed each year.

I conclude: Year Line 150 Capital Cost Allowance Adjusted Income 2011 $21,401.18 $4,191.91 $26,321.09 2012 $3,886.01 $3,886.01 2013 $4,728.60 $4,728.60 2014 $12,262.87 $2,984.74 $15,247.61 2015 $29,000.10 $2,410.76 $31,410.86 2016 $22,526.66 $1,687.53 $24,214.19 2017 $11,965.47 $11,965.47 2018 $29,068.62 $3,681.53 $32,750.15 2019 $30,207.36 $617.41 $30,824.77 Children of the Marriage [ 30 ] I turn now to the question of prospective child support and, more specifically, the question of whether the Applicant must continue to pay child support for any of his children – having regard to the fact that all three children are now beyond the age of majority. [ 31 ] I begin with several key legal principles which inform the analysis in this case: 1.

S ection 15(1) of the Divorce Act confers upon this Court the jurisdiction to order a spouse to "pay for the support of any or all children of the marriage"

Section 2 (

b) of the Divorce Act defines a "child of the marriage" as including a child who "is the age of majority or over and under their c harge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life." 3. The evidentiary burden of proving a child over the age of majority remains a "child of the marriage" is on the person who contends that the child remains under the parents' charge ( Rebenchuk v. Rebenchuk , 2007 MBCA 22 (“ Rebenchuk ”) and MacLennan v. MacLennan, 2003 NSCA 9 (“ MacLennan ”)).

In this case, the onus would be on the Respondent although that is somewhat problematic in a provisional decision such as this where the Respondent has not been given either notice or a proper opportunity to respond. As such, I am limited to the evidence submitted by the Applicant alone. 4. I am guided by the following passage from the often-quoted decision of the Manitoba Court of Appeal in Rebenchuk at paragraph 30 : The best approach, it seems to me, and one now widely used is summarized by James C. MacDonald, Q.C. and Ann C.

Wilton, Child Support Guidelines: Law and Practice , 2 nd ed., vol. 1 (Toronto: Carswell, 2004) (at pp. 3-11, 3-12): ... The usual Guidelines approach is based on factors that normally apply to a child under the age of majority; that is the child resides with one or both parents, is not earning an income and is dependent on his or her parents. It is also based on the understanding that, though only the income of the person paying is used to calculate the amount payable, the other parent makes a significant contribution to the costs of that child's care because the child is residing with him or her.

The closer the circumstances of the child are to those upon which the usual Guidelines approach is

based, the less likely it is that the usual Guidelines calculation will be inappropriate. The opposite is also true. Children over the age of majority may reside away from home and earn a significant income. If a child is not residing at home, the nature of the contribution towards the child's expenses may be quite different. 5. Children enrolled in high school or post-secondary studies are typically considered "children of the marriage" beyond the age of majority (see: H. (A.W.) v. S. (C.G.) , 2007 NSSC 181 (" H(AW) )), at para. 10); 6.

Generally speaking, a parent should only be entitled to receive child support for those months when the child is actually resident at home (see , for example: Gandy v. Gandy, 2015 NSSC 300 with clarifying reasons in 2016 NSSC 44 ; Strecko v. Strecko, 2013 NSSC 49 , upheld 2014 NSCA 66 ; Provost v. Marsden, 2009 NSSC 365 (" Provost ") I also refer to B. (D.M.) v.

B. (D.B.), 2012 SKQB 400 (" B(DM) ") which stands for the proposition that the usual Guidelines approach will be inappropriate where a child lives away from the home for most of the year. [ 32 ] Applying these principles to each of the parties three children, I conclude: 1. ABB ceased being a child of the marriage on August 1, 2017 : The Applicant agrees that ABB ceased being a child of the marriage on August 1, 2017. I am prepared to accept that concession and note that this is a few months after his 20 th birthday (May 30, 2017).

In other words, it is beyond his turning the age of majority in either Alberta (18) or Nova Scotia (19). I am satisfied by the evidence before me that he lacked the means or resources to withdraw from his mother’s care prior to this time. As of August 1, 2017, he moved out of his mother’s house and begin to live more or less independently; 2. BEB ceased being a child of the marriage on May 14, 2019 : The Applicant submits that BEB ceased to be a child of the marriage on April 25, 2017, the day he turned 18 which, as indicated, is the age of majority in Alberta (it is 19 years in Nova Scotia).

I note that a person is deemed to cease being a child of the marriage upon reaching the age of majority subject to proof to the contrary. In this case, again, the Respondent does not have notice of these proceedings as is permitted in this type of provisional decision. Having said that, the evidence before me confirms: i. BEB continues to live at home with the Respondent. To that extent, he relied upon his mother to help provide for the necessities of life upon turning the age of majority – in either Alberta or Nova Scotia. ii.

While the Applicant states that BEB has worked with Subway for the past three years, he only confirms full time employment as of May 14, 2019. Prior to that, he not only lived at home with his mother but also worked part-time. The Applicant provided further details regarding BEB’s employment and current salary on October 3, 2019 in a supplementary affidavit. However, again, the specific evidence offered regarding BEB’s employment and self-sufficiency is only current. In my view the evidence establishes, on a balance of probabilities that BEB remained under his mother’s care until May 14, 2019.

On this issue, I also note that the Applicant’s evidence is silent on the issue of when BEB completed his education. Given BEB’s ongoing reliance on the Respondent for shelter and the incomplete information provided by the Applicant, the evidence before me is such that BEB remained unable to withdraw from his mother’s care until May 14, 2019 which is the date of the Applicant’s original affidavit providing current information. It is also a few weeks after his 20 th birthday which makes this conclusion for BEB consistent with the Applicant’s position regarding his eldest child ABB.

Given the evidence before me, the circumstances surrounding ABB and BEB are not so different as to require that I adopt a significantly different approach. Having said that, I acknowledge that BEB was earning significant income as of April 25, 2018, when he turned 19, the age of majority in Nova Scotia. This has a bearing on the amount of child support payable in my view. I return to that issue below. 3.

MRAB remains a child of the marriage until September 28, 2020 : The Applicant submits that MRAB ceased being a child of the marriage as of September 28, 2018 even though, again, she still lives with her mother and is still trying to finish high school. He states that MRAB is currently earning about $23,400.00 annually working about 30 hours a week at Subway. Based on that employment alone, the Applicant states that MRAB is now in a position to “withdraw from her parents’ charge”. Respectfully, I disagree.

In my view, MRAB is unable to withdraw from the care of her mother based on the evidence before me and remains a child of the marriage while she is diligently and legitimately attempting to finish high school and lives with the Respondent to do so. As with BEB, MRAB was earning significant income as of September 28, 2019, when she turned 19, the age of majority in Nova Scotia. Again, this has a bearing on the amount of child support payable in my view. I return to that issue below. Prospective Child Support [ 33 ] The default method for calculating child support is found in section 3(1) (

a) of the Guidelines . However, where a child is over the age of majority, section 3(2) allows the Court to make necessary adjustments if the default approach results in support payments which are "inappropriate" or unsuitable. The same basic methodology is applied to both prospective and retrospective awards when assessing whether a parent has overpaid or underpaid in the past (see Gillis v. Gillis, 2013 NSSC 251 ). [ 34 ]

Section 3 of the Guidelines states: 3(1) Unless otherwise provided under these Guidelines , the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to which the order relates and the income of the spouse against whom the order is sought; and

(

b) the amount, if any, determined under

section 7.

(2) Unless otherwise provided under these Guidelines , where a child to whom a child support order relates is the age of majority or over, the amount of the child support is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) If the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [ 35 ] As a preliminary issue, I do not have any evidence regarding

section 7 expenses and make no determination with respect to that issue – prospectively or retrospectively. [ 36 ] As to prospective child support, as indicated, only MRAB still remains a child of the marriage. Using $30,824.77, the income figure determined in paragraph 28 above, the Guidelines indicate that the Applicant would pay the Respondent monthly child support for MRAB in the amount of $264.76. [ 37 ] However, as discussed below (see paragraphs 61 forward), MRAB is beyond the age of majority and capable of contributing to her ongoing care.

For that reason, I conclude that the Applicant is only required to pay prospective child support for MRAB in the reduced amount of $100.00 per month. Those amounts shall be paid until September 28, 2020 when MRAB turns 20. [ 38 ] Obviously, this conclusion is subject to any materials filed by the Respondent in the Confirmation Hearing. In addition, this conclusion might be subject to further review in the future should MRAB’s circumstances materially change (e.g. MRAB decides to permanently withdraw from continuing education).

Retroactive Reduction in Arrears and Retroactive Child Support [ 39 ] In this case, the Applicant appears to accept the amount of arrears established as at the date of the Order ($25,454.00). As well, he appears prepared to accept additional arrears based on the terms of the Order from January, 2014 – April, 2014 at which point the total amount of arrears owing was $29,370.00. The reasons the Applicant chose April, 2014 as the transition date for terminating any continuing effect of the original Order (and recalculating outstanding arrears) are addressed below.

Briefly, April, 2014 is three years before the date upon which the Applicant says he first notified the Respondent of his concerns regarding the accruing child support arrears. [ 40 ] However, the Applicant then seeks a retroactive reduction in child support from April, 2014 forward subject to the following additional qualifications: 1. Credit for the amounts of child support he actually paid over the years; and 2. A determination that any child support obligations under the Guidelines ceased: a. For ABB when he turned 20; b. For BEB when he turned 18; and c.

For MRAB turned she turned 18. [ 41 ] I make the preliminary and obvious point that 18 years of age is the age of majority in Alberta and not Nova Scotia. In Nova Scotia, the age of majority in 19. In any event, the Applicant argues that this remedy would confirm the Applicant’s obligation to pay child support based upon his actual financial circumstances and not inflated income figures.

Based upon all of these assumptions, the Applicant states that the outstanding arrears owing as of October, 2019 should be recalculated and retroactively reduced to $24,847.69. [ 42 ] The preliminary, threshold issue is whether there has been a change in circumstance sufficient to vary the existing order ( s. 17(4) of the Divorce Act ). I am satisfied that a material change of circumstances has occurred as provided for under the Guidelines .

Specifically, all three children of the marriage identified in the Order have now passed the age of majority. [ 43 ] The Supreme Court of Canada in S. (D.B.) v G. (S.R.) , 2006 SCC 37 (“ S. (D.B.) ”) outlined the principles governing applications for retroactive awards of child support – as opposed to a retroactive reduction in child support. [ 44 ] This distinction (i.e. the differences between a retroactive award versus a retroactive reduction) was highlighted in Smith v Helppi , 2011 NSCA 65 (“ Smith v Helppi ”) [ 45 ] Writing for the majority, Oland, J.A. wrote at paragraph 21 that "an order to retroactively vary downwards could be based on many factors".

Justice Oland then adopted the following conclusions from the New Brunswick Court of Appeal at paragraph 21 of Brown v. Brown, 2010 NBCA 5 (" Brown "): In

summary, the jurisdiction to order a partial or full remission of support arrears is dependent on the answer to two discrete questions: Was there a material change in circumstances during the period of retroactivity and, having regard to all other relevant circumstances during this period, would the applicant have been granted a reduction in his or her support obligation but for his or her untimely application? As a general proposition, the court will be asking whether the change was significant and long lasting; whether it was real and not one of choice. [ 46 ] In Brown , the New Brunswick Court of Appeal explained the differences between cases involving a reduction in support and

relief from arrears versus cases involving retroactive increase in support and payment of arrears: Specifically, the court need not address why the applicant failed to make a timely application for retroactive variation. Correlatively, the court need not be concerned with the reasons underscoring the support recipient's failure to pursue timely enforcement measures thereby thwarting the accumulation of arrears.

In short, the notion of "fault" plays no role in the decision to grant retroactive variation orders involving support arrears. (at para 3) [ 47 ] The New Brunswick Court of Appeal continued: It is one thing to demand immediate payment of monies with respect to a past obligation that only recently matured and quite another to seek an order that recalculates and reduces the amount owing with respect to a debt never paid. (at para 3) [ 48 ] At paragraph 28 of the same decision, the New Brunswick Court of Appeal described the underlying policy considerations: From a policy perspective, it is not difficult to justify the differential treatment accorded to variation orders that seek a retroactive increase in arrears from those that seek a decrease in either child or spousal support.

Orders falling within the latter group require the court to confirm that a lower amount of support was payable despite the failure to pay the higher amount. Neither the applicant payer nor the support recipient is prejudiced by the granting of the retroactive variation order. Thus, the policy objectives of certainty and in the sense that neither is being asked to pay or repay monies which they may or may not have at the time of the application for variation predictability in the law are fully respected. This is not necessarily so in cases where the retroactive variation seeks an increase in support.

The payer is being asked to pay money that he or she may not presently have or may have difficulty in paying. Hence, a plea of hardship or unfairness cannot be ignored and that is why it is necessary to look at a number of factors before ruling on a retroactive variation order that seeks an increase in support. [ 49 ] Pausing here, I note that the Alberta Courts have taken a different approach on this issue.

The test in S. (D.B.) is applied, with necessary modifications, for both retroactive awards of child support and a retroactive reduction in child support (see, Anderson v Laboucan , 2017 ABQB 642 (“ Anderson ”) and SCF v SSS , 2019 ABQB 648 ). No distinction is made between these two different types of retroactive relief and, indeed, at paragraph 33 of Anderson Read, J. specifically disagrees with the

interpretation of the New Brunswick Court of Appeal in Brown . [ 50 ] Both the Alberta and Nova Scotia jurisprudence recognize the underlying principle that a payor parent should only be required to pay (and a recipient parent should only receive) child support based on the actual income which the payor parent earned.

To that extent, any retroactive reduction in child support simply sets the record straight and clarifies the debt a payor parent would have been required to pay in reality and under the Guidelines – all based on actual (not inflated) income. [ 51 ] That said, in Nova Scotia, there is a more focussed attempt to calculate support based on the payor parent’s financial reality as confirmed in the evidence – and retroactively reduce child support to the extent reasonably necessary to reflect that reality.

Delay in bringing forward an application for retroactive reduction in arrears assumes less emphasis than ensuring fairness based on the actual, proven reality of the payor parent’s financial circumstances. Thus, the payor parent’s conduct may become relevant but primarily where it bears upon assessing the actual financial circumstances of the payor parent. Thus, for example, a payor parent can expect little sympathy from the Court if there is evidence of an effort to unduly depress income figures through, for example, insufficient financial disclosure or a choice to remain under-employed.

This was the case in Smith v Helppi where Oland, J.A. upheld the trial judge’s decision to deny retroactive relief from outstanding arrears because: [22] …the judge was not satisfied with Mr. Smith's frankness, his repeated failure to report employment and income, and his efforts in gaining and retaining full employment in the trucking field. Not having accepted Mr. Smith's arguments regarding his reduced income and Mr. Smith having acknowledged the lack of full disclosure regarding his income, the judge refused to waive the arrears of child maintenance arrears.

In these circumstances, I am unable to accept that the judge erred in not forgiving the arrears. [ 52 ] Similar considerations around financial disclosure is also relevant in Alberta. However, applying the S.(D.B.) analysis to retroactive reduction in arrears, a broader assessment emerges in terms of analysing the payor’s conduct. There is a greater emphasis on the issue of delay or, more specifically, the reasons for a payor parent’s delay in seeking a reduction in arrears.

The underlying policy consideration appears to be that a payor parent should not be permitted (or encouraged) to shirk their support obligations, ignore an existing Order to pay support, and/or decide to belatedly request a reduction in child support. Similarly, parents who care for their children and rely upon support payments should be entitled to expect that Court Orders will be honoured or enforced in a timely fashion. [ 53 ] I do not know whether these distinctions in the jurisprudence may actually influence the final result. For one thing, as indicated, the age of majority in Nova Scotia is 19.

In Alberta, it is 18. Thus, in Nova Scotia, there is an additional year of child support due before the Guidelines cease to apply by default. Regardless, I am compelled to apply the law in Nova Scotia as confirmed in Smith v Helppi . [ 54 ] In the Notice of Application in Chambers filed August 16, 2019, the Applicant sought to erase all support arrears from September 3, 2011 forward. However, in written submissions dated October 18, 2019, the Applicant clarified his position and requested that any arrears be extinguished from April 2014 forward.

At that time, outstanding arrears were approximately $29,370.00. [ 55 ] As alluded to above, the Applicant chose April 2014 as the date upon which retroactive arrears ought to be recalculated because it is exactly three years before a letter dated April 12, 2017 from the Applicant’s legal counsel. In this letter, the Applicant’s counsel effectively asks the Respondent to call and discuss child arrears, among other things. [1] [ 56 ] The Applicant submits that this letter put the Applicant “on notice in relation to his child support arrears”. The Applicant

further submits that it would be reasonable in the circumstances to extinguish arrears from three years before that point and he relies on NW v RP , 2018 ABQB 392 (“ NW v RP ”) for this proposition. [ 57 ] I am not prepared to terminate the effect of the Order as of April, 2014 and begin re-calculating child support arrears on the basis of the Applicant’s tax returns from that point forward. [ 58 ] Smith v Helppi confirms that the income change which gives rise to a request to vary must be “significant and long lasting”.

Applied to the present case, the Applicant implicitly accepts the terms of the Order as at the date it was issued (January 8, 2014). Given that, an income change for the purposes of child support just three months later (as of April, 2014) is not sufficiently long-lasting. [ 59 ] If payor parents were entitled to retroactively reduce child support based on only 3 months of reduced income, there would be no finality, stability or certainty arising out of legal proceedings designed to promote those goals and to determine support obligations.

Moreover, payor parents who work seasonally would be entitled to constantly seek to adjust child support and the Courts would risk becoming inundated with constant attempts to alter support based on temporary fluctuations in income. [ 60 ] In addition, given the circumstances of this case, allowing a retroactive shift so quickly after the original Order was issued would unduly diminish the income findings made in the Order itself – findings which, I note, the Applicant himself is prepared to accept albeit only until April 2014.

On this point, I am compelled to also note that parties who disregard Court proceedings should not be entitled to a strategic advantage denied litigants who actually participated in the judicial process. A party who actively participated in a Court proceeding setting child support would clearly not be entitled to alter that award a mere three months later when, in some cases, appeal proceedings might even still be ongoing. [ 61 ] In all the circumstances, I am prepared to recalculate and reduce arrears from August, 2014 forward.

The outstanding arrears at that time would be $32,307.00 calculated as follows: 1. $25,454.00 owing under the Order as of December, 2013; 2. Plus, an additional $6,853.00 calculated in accordance with the terms of the Order ($979.00/month) for the period January, 2014 – end of July, 2014 inclusive. [ 62 ] There is one final issue to address before summarizing my conclusions regarding child support. I have found that child support was payable in respect of all the children beyond the age of majority in Nova Scotia.

However, where a child is beyond the age of majority and still entitled to support, the Court is not bound to the Guidelines but retains the discretion to determine what amounts are appropriately payable "having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child" ( Divorce Act ,

section 2 (b)). [ 63 ] I have carefully reviewed the conditions, means, and needs of the children to the extent possible given the evidence submitted and have carefully noted the means of each child. I have also considered the Applicant’s financial circumstances. [ 64 ] The evidence before me confirms that while neither BEB nor MRAB were able to withdraw from the care of their mother, their respective annual incomes were not insignificant, and they were capable of contributing to their upkeep in a manner which justifies a reduction.

I do not make the same finding with respect to ABB as the evidence before me was insufficient to do so. The evidence also indicates that ABB’s income never achieved the same levels. [ 65 ] I conclude that BEB and MRAB should have contributed to their own care after they turned 19 until the date that I have determined that they ceased to be a child of the marriage.

To reflect this, I have reduced the Applicant’s child support obligation to $100.00 per month for each of BEB and MRAB from the date they turned 19 years of age forward (i.e. the date they turned the age of majority in Nova Scotia). [ 66 ] Based on the adjusted income figures contained in paragraph 28 above; my conclusions as to when the children ceased to be children of the marriage; and the adjustments made with respect to BEB and MRAB from the dates of their 19 th birthdays forward, I find the arrears owing are: Arrears as of August 2014 $32,307.00 Remainder of 2014 Commencing August 1, 2014, based on an income of $15,247.61, the Applicant should have paid $210.33 per month for the three children for 4 months (August to December 2014) $841.32 2015 Based on an income of $31,410.86, the Applicant should have paid $611.64 per month for three children for 12 (January to December 2015) $7,339.68 2016 Based on an income of $24,214.19, the Applicant should have paid $479.54 per month for three children for 12 months (January to December 2016) $5,754.48 2017 Based on an income of $11,965.47, the Applicant should have paid $98.18 per month for three children for 8 months (January to August 2017) $785.44 Based on an income of $11,965.09, the Applicant should have paid $91.09 for two children for 4 months (September to December 2017) $364.36 2018

Based on an income of $32,750.15, the Applicant’s child support obligation under the Guidelines is $493.90 per month for two children. However, BEB turned 19 on April 25, 2018 and was earning a significant income while still unable to withdraw from the care of his mother. In the circumstances, I conclude that BEB should have contributed $113.45 towards his upkeep.

That figure ($113.45) reduces the monthly child support payable by the Applicant in respect of BEB to $100.00 per month and results in total monthly child support payable by the Applicant for BEB and MRAB of $380.45 per month for 12 months (January to December, 2018) $4,565.40 2019 Based on an income of $30,824.77, the Applicant’s child support obligation under the Guidelines is $469.05 per month for two children. However, BEB continued to earn a significant income while still unable to withdraw from the care of his mother. In addition, I found that BEB ceased being a child of the marriage as of June 2019.

In the circumstances, I again conclude that the support payable by the Applicant for BEB from January to June 2019 should be reduced to $100.00 per month on the basis that BEB should be contributing to his upkeep.

As a result, the monthly child support payable by the Applicant for both children is reduced to $364.76 per month for 6 months. (January to June, 2019) $2,188.56 Based on an income of $30,824.77, the Applicant should have paid $264.76 per month for MRAB for 3 months (July to September, 2019) $794.28 Commencing October 1, 2019, the Applicant’s child support obligation for MRAB would be reduced to $100.00 per month in recognition of the facts that she turned 19 (the age of majority in Nova Scotia) and was capable of contributing to her ongoing care. (October, 2019) $100.00 Total arrears without deductions for amounts paid $55,040.52 [ 67 ] It is now necessary to deduct the amounts actually paid by the Applicant for child support from those amounts which I have determined above were properly due.

Based on the MEP Records produced by the Applicant as Exhibit A to his May 14, 2019 Affidavit and Exhibit B to his October 3, 2019 Affidavit, showing the amounts paid by the Applicant to October 18, 2019, the total amount of child support payable is reduced as follows: Total arrears without deductions for amounts paid $55,040.52 Less “Received Amount” shown on the MEP Records 16,950.06 Total Due as of October 18, 2019 $38,090.46 [ 68 ] In sum, the amount of child support arrears owing from the Applicant to the Respondent as of October 18, 2019 is provisionally set at $38,090.46.

I am of the firm opinion that this figure reflects the reality of the Applicant’s historic financial circumstances as well as the law in Nova Scotia. I am also of the firm opinion that this figure reflects the Applicant’s obligation to financially support his children – an obligation which has been long standing but not consistently honoured. [ 69 ] To this amount, must be added $100.00 per month of child support payable in respect of MRAB for November 2019 to June 2020 (totalling $800.00).

Thus, total arrears owing as June 1, 2020 are $38,890.46. [ 70 ] Finally, in setting these arrears as of June 2020 ($38,890.46) I did not have any evidence of any payments by the Applicant from October 18, 2019 forward. For example, if the Applicant paid the monthly amount of $434 being garnished for the 8 months between November 1, 2019 and June, 2020, these arrears would have been reduced by a further $3,472.00 ($434 x 8 months) Keith, J.