M.J.A. Applicant - v. -, 2023 NBKB 075

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FDSJ-680-19 FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN PURSUANT TO THE INTERJURISDICTIONAL SUPPORT ORDERS ACT Neutral Citation: 2023 NBKB 075 Date of Decision: May 19, 2023 BETWEEN: M.J.A. Applicant - and - C.W. Respondent DECISION BEFORE: Madam Justice Chantal N. Daigle AT: Saint John, N.B. DATE OF HEARING: August 29, 2022 FINAL SUBMISSION: December 1, 2022 DATE OF DECISION: May 19, 2023

APPEARANCES: M.J.A., did not appear C.W., self-represented Daigle, J.: I. BACKGROUND: [ 1 ] This matter pertains to a request for child support for the child, L.A.H., born on […], 2005, now 17 years of age. [ 2 ] The child’s biological parents are M.H. (the mother) and C.W. (the Respondent father). [ 3 ] In 2007, an Order was made requiring the father to pay child support of $280 per month to the mother, for the benefit of the child. [ 4 ] In 2008, the mother decided to move to British Columbia with the child.

In September 2008, before the mother moved, the parents signed a Variation Order on Consent (hereafter the “2008 Variation Order”) whereby they agreed to suspend child support as of September 1, 2008 until further Order of the Court, “ due to the excessive travel costs to be incurred by [the father] to have access to the child ”.

The 2008 Variation Order provided that the father would be responsible for all travel expenses associated with his exercise of parenting time, with the exception of one flight in the summer which would be paid by the mother. [ 5 ] At the time the 2008 Variation Order was signed, the father was earning $29,000 per year. As well, L.A.H. could not travel on her own so the father had to accompany her to and from British Columbia, which would have substantially increased the cost of access.

Pursuant to the 2008 Variation Order, he could exercise parenting time at Christmas and March Break, as well as every summer for a period of two months. [ 6 ] After the 2008 Variation Order was signed, the mother moved to British Columbia with the Applicant, M.J.A., with whom she went on to have three more children: C.M.A. (now 16 years of age), T.A.A. (15 years of age) and T.A.A. (13 years of age). [ 7 ] The Applicant M.J.A. is L.A.H.’s step-father. He has stood in the place of a parent to the child since 2005.

He has been the primary caregiver of all four children since November 2013. [ 8 ] According to the materials before the Court, the mother and the Applicant separated around 2012. In July 2013, the Applicant was granted shared parenting time of all four children and in November 2013, he became their primary caregiver. It would appear that the mother is no longer involved in the lives of any of her children and has not been for quite some time. [ 9 ] According to the Applicant, after he obtained primary care of the children, he had to leave his employment and he eventually made an assignment in bankruptcy.

He explained this to the Respondent father who indicated he was in similar financial circumstances and was unable to contribute any support. The Respondent also commented that the child should live with him in New Brunswick where he would be in a better position to support her. [ 10 ] According to the Applicant, he made several requests for the payment of support over the years, both in person and by e-mail. When he asked in person, the Respondent would insist that he was unable to afford it.

When he asked by e-mail, his requests were ignored. [ 11 ] The Applicant resides in British Columbia and for this reason, the matter proceeded under the Interjurisdictional Support Orders Act , S.N.B. 2016, c.102. The Applicant seeks both prospective and retroactive child support. When he first filed his Support Application, the Applicant requested child support retroactive to December 1, 2013. The Applicant later confirmed that he was in fact seeking an order for retroactive child support commencing March 1, 2013.

In his most recent affidavit sworn on September 9, 2022, he suggests that the date of retroactivity should go back further. He argues that a retroactive award dating back to 2013 does not go far enough. He argues that the child was entitled to a proper amount of support regardless of who had custody. Further, he notes that given the rate of inflation, support that should have been paid 10 years ago but only paid now will buy much less than it would have in 2013. In other words, $100 paid 10 years ago would have purchased much more than $100 paid now.

Thus, the child will only receive a fraction of the benefit to which she was entitled. I would also add that the payor has had the benefit of holding on to this $100 for 10 years. [ 12 ] Along with his Answer to Application (Form 16), the Respondent father filed a Request to pay child support different from the Support Guidelines Table Amount (Form 9). The Respondent makes a claim for undue hardship on the grounds that he incurs high travel expenses to exercise parenting time, and he has a legal duty to support two other children who are 13 and 8 years of age. II.

ISSUES: [ 13 ] The issues to be resolved in this matter are as follows:

(

i) What is the amount of support payable by the Respondent father? (ii) Should there be an order for retroactive child support? (iii) What is the appropriate commencement date of the child support order? III.

ANALYSIS: [ 14 ] Although the 2008 Variation Order addressed the issue of child support, the application before this Court is framed as an initial application for child support, and rightly so. [ 15 ] The Court’s ability to vary a child support order is governed by s. 22 of the Family Law Act, S.N.B. 2020 c. 23 which states: 22(1) Subject to this section, if a child support order has been made under subsection 11(1), on application by any person named in the order or the Minister of Social Development, the Court may, by order, (

a) discharge, vary or suspend any term of the order, prospectively or retroactively, (…) [Emphasis added] [ 16 ] Since the Applicant was not a person named in the 2008 Variation Order, he could not apply to vary that order. For this reason, there was no need to establish a material change in circumstances in this case. That said, I note in passing, that a change in circumstances is present given the increase in the Respondent father’s income over the years. [ 17 ] Therefore, the Applicant’s request must be considered as a fresh request under s.11 of the Family Law Act . That

section states as follows: 11(1) On application, the Court may make a child support order ordering a person to provide support for their child and, subject to

section 12, determine the amount of support. 11(2) An application referred to in subsection (1) may be made by the child or a parent of the child or by the Minister of Social Development. [Emphasis added] [ 18 ] The definition of “parent” can be found at

section 1 of the Act . That definition is as follows: “parent” includes a person who has demonstrated a settled intention to treat a child as a child of the person’s family , except where the person is a foster parent or kinship caregiver to that child under the Family Services Act . [Emphasis added] [ 19 ] Here, the Applicant meets the definition of “parent”. There is no question that he has demonstrated a settled intention to treat L.A.H. as his own. He has acted in the place of a parent to the child since she was a toddler. As such, he can advance a claim for child support.

ISSUE 1 – Amount of Support Payable [ 20 ] According to section 12(1) of the Family Law Act , child support must be determined in accordance with the Federal Child Support Guidelines . The presumptive rule relating to the amount of child support to be paid is found in subsection 3(1) of the Guidelines . [ 21 ] In the case of N.C. v. A.L. , 2022 NBQB 21 , d’Entremont, J. explained as follows at paragraph 34 of her decision: [34] (…) [T]rial judges have very little discretion when ordering the payment of child support.

The amount of a child support order for children under the age of majority is the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the payor parent against whom the order is sought.

There may be a set-off of the table amount with respect to special or extraordinary expenses incurred by the obligor, or subject to a finding of undue hardship. [Emphasis added] [ 22 ] In the matter before me, the Respondent father would normally be required to pay prospective child support of $793 per month based on his current estimated annual income of $90,920. The Respondent has asked that I deviate from the presumptive rule on the basis of undue hardship. [ 23 ]

Section 10 of the Federal Child Support Guidelines allows a Court to deviate from the Guidelines in the event of undue hardship. That

section provides as follows: 10

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made,

would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior tothe separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising parenting time with a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if itis of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support underany of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of livingtest set out in

Schedule II. (…) [24] In their textbook, Child Support Guidelines in Canada, 2022, Julien D. Payne and Marilyn A. Payne explain the purpose ofthe Federal Child Support Guidelines and provide some guidance as to what circumstances amount to undue hardship. At pages 359,360 and 379, the authors explain the following: The presumptive rule under

section 3 of the Federal Child Support Guidelines should not be displaced in the absence of specific andcogent evidence why the applicable table amount would cause an “undue hardship”.

Section 10 of the Guidelines is only availablewhere excessively hard living conditions or severe financial consequences would result from the payment of the Guidelines amount. (…) The Federal Child Support Guidelines were designed to provide certainty with respect to the amount of child support to be paid to theparent who is primarily responsible for the care of the children. They are based on prescribed formulae and are not intended to providemuch discretion for a trial judge.

Parliament has severely circumscribed the judicial discretion in determining child support in order topromote consistency, certainty, and an overall increase in the amount of child support. The presumptive rule whereby a custodial parentreceives the applicable provincial table amount of child support is not displaced by economic hardship on the part of the payor spouse,unless that hardship satisfies the stringent requirements imposed by the “undue hardship” provisions of

section 10 of the FederalChild Support Guidelines. (…) Undue hardship is not to be equated with financial difficulty, budgetary cutbacks, restraints, or financial re-evaluations. Undue hardshipsignifies that there is hardship that is excessive, extreme, disproportionate, improper, unreasonable, or unjustified. A parent,who pleads undue hardship on the basis of a co-existing obligation to support the child of a second family, must prove that thehardship is different from that normally experienced by parents of second families.

In the case of a second family, the obligorshould provide clear and cogent evidence, not conjecture or speculation, from which an inference can reasonably be drawn that thechildren in the second family would suffer significant deprivation if the table amount was ordered for the children of the firstrelationship. "Deprivation" means with respect to food, clothing, shelter, or some medical or other health need.

The fact that theobligor’s household standard of living is lower than that of the spouse or former spouse, due in part to his or her legal duty tosupport another child, does not automatically create circumstances of undue hardship. (…) [Emphasis added] See also: Gillespie v. Gormley 2003 NBCA 72 , [2003] NBCA 72, [2003] N.B.J. No. 369 [25] In this particular case, the Respondent father has a legal duty to support two other children. He also has unusually highexpenses in relation to his exercise of parenting time. Therefore, ss.10(2)(d)(

i) and ss.10(2)(

b) of the Guidelines come into play and thefirst part of the test has been met: there exists circumstances in this case which may cause undue hardship. [26] However, showing that circumstances listed in section 10(2) of the Guidelines exist is insufficient to establish unduehardship. The party alleging undue hardship must show that the circumstances relied upon will create undue hardship if the table amountof child support is ordered.[1]

[ 27 ] Here, I have examined the Respondent father’s detailed Financial Statement (Form 72J), including Appendix IV, which shows his actual monthly expenses. Other than the amount listed under “Transportation - Licence and Registration” which seemed high at $400, the rest of his monthly expenses appeared to be beyond reproach. In fact, nothing was budgeted for gifts, vacation, or entertainment and recreation. It is difficult to conceive how the Respondent father could reorganize his finances in order to meet all of his obligations.

He has a monthly deficit, before any child support is paid. [ 28 ] Further, the Respondent thoroughly explained in his affidavit the efforts undertaken by he and his family to make ends meet. The Applicant in one of his affidavits took issue with the fact that the Respondent’s spouse is unemployed. While that argument may have traction in certain cases, I note that in this particular case, one of the reasons why his spouse has left the workforce is due to the fact their youngest child is autistic and non-verbal.

In spite of her age, she is not toilet trained and she has behavioral issues and as such, the couple feels that the public school system is not suited to meet her needs. [ 29 ] Therefore, considering the Respondent’s financial situation and considering the joint operation of subsections 10(2)(

b) and 10(2)(d)(

i) of the Guidelines where high expenses associated with the exercise of parenting time exist in addition to the obligation to support a second family, I find that the Respondent has established undue hardship. Consequently, the second part of the test has been met. [ 30 ] However, the analysis for undue hardship does not end there. Section 10(3) of the Guidelines provides that, even if a finding of undue hardship is made, the Court is still unable to deviate from the Guidelines if the payor’s household has a higher standard of living than the recipient’s household after payment of the normal Guidelines amount.

This is where the analysis fails in this case. [ 31 ] The Court must compare the standard of living in both households. In order to do so, a few additional facts are warranted. Applicant’s circumstances [ 32 ] The materials filed by the Applicant indicate that, from 2013 until September 2021, a friend of the Applicant lived at the home which the Applicant and the children rented. The friend’s name was on the lease and he usually paid $750 per month towards the rent. During winter months, he also paid a portion of the electric bill.

While this individual may have paid his share of living expenses, he was merely a roommate and his income would not have been available to meet the needs of the child. [ 33 ] According to the Applicant, he had a girlfriend that lived with him and the children for approximately one year, around 2013- 2014. She was employed full-time at a fast-food restaurant where she earned minimum wage and she contributed toward household expenses. Later on, the Applicant had another girlfriend who also lived with him and the children for about a year.

She was employed full-time at a coffee shop and also earned minimum wage, although it is my understanding that she may have been unemployed for a few months. [ 34 ] At present, the Applicant simply resides with the four children. He no longer has a friend, or a girlfriend living with him. [ 35 ] The Applicant ’s income is minimal. He is currently attending university in British Columbia. He is hoping to complete a degree in computer science in December 2023.

He receives the Canada child tax benefit, GST credit and student loans. [ 36 ] The Applicant’s earning history is as follows: 2010 - $21,310.00 2011 - $22,799.00 2012 - $26,320.00 2013 - $22,454.00 2014 - $20,505.00 2015 - $18,216.00 2016 - $15,616.00 2017 - $ 9,273.00 2018 - $ 8,514.00 2019 - $ 6,378.00 2020 - $12,000.00 2021 - $ 2,880.00 Respondent’s circumstances [ 37 ] The Respondent has been married to his wife, J.C. since 2012.

They have two children, G.C. who is 13 years of age and A.- M.W. who is 8 years of age. [ 38 ] The Respondent’s earning history is as follows (after deducting union dues where applicable): 2012 - $33,852.00

2013 - $48,932.00 2014 - $70,312.00 2015 - $72,840.00 2016 - $67,275.00 2017 - $78,742.00 2018 - $85,474.00 2019 - $86,777.00 2020 - $85,974.00 2021 - $113,698.00 2022 - $90,920.00 (estimated) [ 39 ] Over the years, the Respondent’s spouse has earned the following income: 2012 - $28,557.00 2013 - $26,960.00 2014 - $19,965.00 2015 - $13,043.00 2016 - $ 1,778.00 2017 - $ 504.00 2018 - $ 627.00 2019 - $ 0.00 2020 - $ 276.00 2021 - $ 0.00 [ 40 ] As stated in ss.10(4) of the Guidelines , the Court may use the Household Standard of Living Test set out in

Schedule II in order to compare the standard of living in both households. I have done so using the Divorcemate Software. (The Court’s calculations have been placed in the Court file and can be viewed by the parties.) The results reveal that from 2013 to present, the Applicant’s household has consistently experienced a lower standard of living than the Respondent’s household. This is not surprising given the disparity in their respective incomes and given the fact that there are four children in the Applicant’s household.

The standard of living remained lower in the Applicant’s household even when I attributed a full-time minimum wage salary to a common law spouse throughout the years in question (as suggested by the Respondent in his affidavit of November 2021). [ 41 ] Given the facts of this case, the last component of the test for undue hardship has simply not been met and as such, the Court does not have the discretion to depart from the table amount. [ 42 ] Finally, I note in passing, that the Respondent attempted to establish that the Applicant was perhaps earning a greater income than had been disclosed.

I reject this argument for two reasons. Firstly, this was never plead by the Respondent. It was simply raised in an affidavit in August 2022. Secondly, the onus was on the Respondent to establish a prima facie case to impute income and there was insufficient evidence presented to convince the Court that the Applicant was receiving income that had not been disclosed. As stated by the authors Payne and Payne: “ Imputation of income must be based on evidence and not on speculation.

Income should not be imputed on the basis of suspicion where relevant evidence is lacking. ” [2] [ 43 ] Therefore, commencing June 1, 2023 and continuing on the first day of each month thereafter until further Order of the Court, the Respondent father shall pay prospective child support of $793 per month for the child L.A.H., based on an estimated annual income of $90,920 for 2023. ISSUE 2 – Retroactive Child Support [ 44 ] The Applicant is seeking child support dating back to March 1, 2013. [ 45 ] The Record is unclear as to whether the child was in the care of the Applicant in March 2013.

The mother and the Applicant separated in 2012. In July 2013, the Applicant was granted shared parenting time and in November 2013, he became the primary caregiver. In fact, at paragraph 3 of the November 2013 Order from British Columbia, that Court varied a previous Order dated November 2012 whereby the Applicant had been required to pay child support to the mother. Thus, until November 2013, the Applicant was responsible to pay child support.

Consequently, I will only consider the Applicant’s request from December 1, 2013 onward. [ 46 ] As the claim for retroactive child support is contained in an initial application (as opposed to an application for variation),

D.B.S. v. S.R.G. , 2006 SCC 37 applies . [ 47 ] In D.B.S. , the Supreme Court of Canada established four factors that Courts must consider before awarding retroactive child support. These factors are as follows:

(1) The reason for the recipient parent’s delay in seeking child support;

(2) The conduct of the payor parent;

(3) The circumstances of the child; and

(4) Any hardship occasioned by a retroactive award. [ 48 ] The exercise is a holistic one. No one factor is determinative or decisive. [ 49 ] In discussing retroactive child support, Brown J. had this to say in Michel v. Graydon , 2020 SCC 24 : [31] (…) When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent's neglect.

Seen in this light, it bears repeating that retroactive child support is not exceptional relief ( D.B.S. , at para. 5 ): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents' indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place.

Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together ( D.B.S. , at para. 38 ), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur. And as this Court recognized in D.B.S. , "courts are not to be discouraged from defending the rights of children when they have the opportunity to do so" (para. 60). [Emphasis added] [ 50 ] I now turn to the four D.B.S. factors.

(1) Delay [ 51 ] Here, the Court must consider why a claimant waited to bring an application. In Michel v. Graydon , the Supreme Court concluded that with respect to the issue of delay in making an application, “ the focus should be on whether the reason provided is understandable ” rather than whether the support recipient had a “ reasonable excuse ” for the delay.

At paragraph 85 of her reasons, Martin J. further explained the following: 85 Jurisprudence similarly shows a vast array of reasons that courts have accepted as justifying a delayed application for child support: fear of reprisal/violence from the payor parent; prohibitive costs of litigation or fear of protracted litigation; lack of information or misinformation over the payor parent's income; fear of counter-application for custody; the payor leaving the jurisdiction or recipient unable to contact payor; illness/disability of a child or the custodian; lack of emotional means; wanting the child and the payor to maintain a positive relationship or avoid the child's involvement; ongoing discussions in view of reconciliation, settlement negotiations, or mediation; and the deliberate delay of the application or the trial by the payor. [ 52 ] As stated in Michel v.

Graydon at paragraphs 113 and 114 , “ a delay will be prejudicial only if it is deemed to be “unreasonable”, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made ”, and “ the longer the delay, the more weight may go against the justification ”. [ 53 ] In this particular case, I note that the Applicant is a single parent raising four children. He is of limited means.

He is located in British Columbia and had to bring forth a claim in New Brunswick under interjurisdictional support legislation which, at best, is a complex and confusing process. [ 54 ] Further, as the Applicant explained, after his separation from the mother, he had to deal with issues of drugs and violence stemming from the mother’s new spouse. At one point, he was assaulted by her new spouse.

He felt that he and the children had been through enough and he was not prepared to take on another battle with the Respondent. [ 55 ] The Applicant states that when he asked for support from the Respondent father, the Respondent argued that the child should live with him since he was better able to support her in New Brunswick. The Applicant states in his original Application that he felt intimidated. He was afraid of incurring legal fees and he was fearful of losing custody of L.A.H. if he battled with the Respondent.

In fact, after the Applicant filed his application for child support, the Respondent father immediately filed an application in New Brunswick, seeking primary care of the child, who by then was 15 years of age and had lived in British Columbia for most of her life. The Applicant was forced to retain counsel in New Brunswick to address that separate litigation, and to incur legal fees which he could ill afford. What he feared would occur if he pursued child support in fact did occur.

(2) Conduct of the payor [ 56 ] Blameworthy conduct is not a prerequisite to a retroactive award of child support. Nevertheless, when considering the propriety of a retroactive award, the Court should consider whether the payor parent has engaged in blameworthy conduct. At paragraph 106 of D.B.S. , Bastarache J. urges courts to “ take an expansive view of what constitutes blameworthy conduct in this context ”, which he characterizes as “ anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support ”.

[57] At paragraph 107, Bastarache J. further states: 107 No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoidhis/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payorparent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from suchconduct: see A. (J.) v. A. (P.) (1997), (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen.

Div.)), at pp. 208-9; Chrintz. [58] In this particular case, the Respondent father never paid child support after the 2008 Variation Order was made, in spite of thefact that his income increased substantially over the years. [59] He was contacted by the B.C. Ministry of Social Development in 2013 seeking child support for L.A.H. on behalf of themother who was in receipt of social assistance benefits at the time. He states that he provided the Ministry with a copy of the 2008Variation Order, at which point he was told that no further action was required.

As a result, he believed he was meeting his obligations. [60] He also argues that he believed he was meeting his child support obligations because the Applicant’s parenting order grantinghim primary care of the children was only an interim order. According to the Respondent, he believed that any claim for child supportwould have to come from the mother, through the Ministry of Social Development. [61] I do not accept the Respondent’s argument when he states that he believed he was meeting his child support obligations. Essentially, the Respondent kept hiding behind the 2008 Variation Order, using it as a shield.

It bears repeating that by 2014, theRespondent was earning more than double the income he had been earning when the 2008 Variation Order was put in place. TheRespondent solely focused on his cost to exercise parenting time. However, this too decreased over time because by 2014, he hadstopped exercising parenting time at Christmas and solely focused on summer visits. [62] More importantly, in Michel v. Graydon, Martin J. reminds us that “the primary focus needs to be on the payor's actions andtheir consequences.

Today, "[t]he payor's subjective intention is rarely relevant -- the real question is whether the payor's conduct hadthe effect of privileging [their] interests over the child's right to support".” (para.118)

(3) Circumstances of the child [63] In this case, the Applicant deposed that there were many times over the years when he struggled financially. He deposed thathe made an assignment in bankruptcy, has been on social assistance, has had to use the food bank, and there have been Christmaseswhere most of the children’s gifts came from donations. Over the years, the children (including L.A.H.) have asked to join sports andclubs with their friends but the Applicant was unable to afford most of those things.

Inevitably, L.A.H. has been impacted by theRespondent father’s lack of financial support. [64] The Respondent father challenged the Applicant’s evidence that he and the children endured financial struggles. However,the Applicant’s 2015 Notice of Assessment confirms that he made an assignment in bankruptcy. Further, while the Respondent arguedthat he saw gaming consoles, brand-name clothing and lots of food when he went to the Applicant’s residence, I note that he attendedonly about once a year and therefore, could offer very little evidence by way of personal observations.

(4) Hardship [65] In her reasons, Martin J. had the following to say with respect to hardship in Michel v. Graydon: 124 This factor takes into account the ease with which the payor might be able to pay the award. If the award would cause the payorundue hardship, and if the other factors do not militate against it, this factor may weigh against an award or affect its temporal scopeto achieve a fair result. It is not necessary that there be no hardship caused by the award for it to be granted.

If there is the potential forhardship on the payor's part, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to thecourts to disregard the presence of undue hardship (D.B.S., at para. 116; Tschudi v. Tschudi, 2010 BCCA 170, 86 R.F.L. (6th) 23, atparas. 4-5). In all cases, hardship may be addressed by the form of payment (Purba v.

Purba, 2009 ABCA 32, 466 A.R. 175, at para.15). 125 While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which wouldbe caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid. (…) [Emphasis added] [66] On the issue of hardship, it is important to recall that the Respondent father currently provides for two more children.

Atpara. 115 of D.B.S., Bastarache J. stated the following when discussing the hardship occasioned by a retroactive award: 115 (…) As well, payor parents may have new families, along with new family obligations to meet. On this point, courts shouldrecognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on thebasis of a "children first" policy where it would cause hardship for the payor parent's other children.

In short, retroactive awards disruptpayor parents' management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact. [67] Overall, the Court must conduct a holistic and relative assessment (Michel v. Graydon, at para. 100, per Martin J.).

Further,Courts should attempt to craft the retroactive award in a way that minimizes hardship (D.B.S., para.116, per Bastarache J.). [68] In light of each of the factors set out in D.B.S., as well as the recent comments of the Supreme Court of Canada in Michel v.Graydon, I am of the view that it is appropriate to make an award for retroactive child support in this case, although the award shouldnot penalize the Respondent’s two other children towards whom he also has an obligation.

Where a retroactive award is warranted basedon the first three factors of D.B.S., the hardship to the payor can be addressed by adjusting the commencement date of retroactivity and

by ordering instalment payments rather than a lump sum payment ( K.R. v. B.M. , 2021 NBQB 251 , at para. 145 ). ISSUE 3 – Commencement Date of Retroactivity [ 69 ] Once a determination is made that an award of retroactive child support is appropriate, the Court must turn its mind to the appropriate date of retroactivity. [ 70 ] In D.B.S. , the Supreme Court of Canada settled on the date of effective notice as the general rule for the date of retroactivity.

Bastarache J. explained the concept of effective notice as follows: 121 (….) By "effective notice", I am referring to any indication by the recipient parent that child support should be paid , or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached.

Once that has occurred, the payor parent can no longer assume that the status quo is fair , and his/her interest in certainty becomes less compelling. [Emphasis added] [ 71 ] Further, once the topic is broached, the recipient must move the matter along. The majority in D.B.S. indicated that it was generally inappropriate to make an award retroactive to a date more than three years before formal notice was given. That said, in Michel v.

Graydon Brown J. concluded that: 36 (…) the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness). Again, in light of such conduct, there is no need to protect [the payor’s] interest in the certainty of his obligations beyond the date when circumstances changed materially ( D.B.S. , at para. 125 ). (…) [ 72 ] In this case, there is evidence of effective notice being given by e-mail correspondence from the Applicant to the Respondent on September 24, 2018.

Formal notice was given in 2020. [ 73 ] In his original Application, the Applicant states that he asked the Respondent for child support “on several occasions” but he does not specify when and there is no evidence to establish when this occurred. Nevertheless, there was blameworthy conduct on the part of the Respondent. [ 74 ] Looking at the totality of the evidence and the overall circumstances of this case, and applying a holistic and fair approach, I conclude it would be reasonable to set the date of retroactivity at January 1, 2015.

I note that the Respondent’s income substantially increased in 2014 and by January 1, 2015, it was unreasonable for him to believe that he was meeting his obligations vis-à-vis the child. [ 75 ] Therefore, the Respondent shall be required to pay child support from January 1, 2015 onward, which I have calculated as follows: Year Respondent Father’s Income Monthly Child Support Payable Annual Child Support Payable Child Support Paid Amount outstanding 2015 $72,840.00 $634/mth $7,608.00 $0.00 $7,608.00 2016 $67,275.00 $583/mth $6,996.00 $0.00 $6,996.00 2017 $78,742.00 $686/mth $8,232.00 $0.00 $8,232.00 2018 $85,474.00 $745/mth $8,940.00 $0.00 $8,940.00 2019 $86,777.00 $757/mth $9,084.00 $0.00 $9,084.00 2020 $85,974.00 $749/mth $8,988.00 $0.00 $8,988.00 2021 $113,698.00 $974/mth $11,688.00 $0.00 $11,688.0 2022 $90,920.00 $793/mth $9,516.00 $5,850.00 $3,666.00 2023 $90,920.00 $793/mth $3,965.00 (to May 31) $2,250.00 $1,715.00 Total $66,917.00 [ 76 ] At paragraph 116 of the D.B.S. decision, supra, Bastarache J. urged Courts to “ attempt to craft the retroactive award in a way that minimizes hardship ”.

Having reviewed the Respondent’s Financial Statement, I find that it would be appropriate to order that the arrears be repaid by making periodic payments. Further, I am cognizant of the fact that he is supporting two other children. [ 77 ] However, this issue was not canvassed with either party and before a payment plan is put in place, it is appropriate to obtain their respective positions. [ 78 ] To that end, I ask that both parties provide a payment plan proposal to the Court within 60 days, failing which I will put a plan in place without their input.

When addressing this issue, I would ask that the Applicant also advise the Court when the child is due to graduate high school and what her plans are post-graduation. [ 79 ] Finally, with regard to the Applicant’s claim for a sharing of orthodontic expenses for the child pursuant to ss.7(1)(

c) of the Guidelines , I have reviewed the information provided by both parties and I am unable to determine what has been paid by the Applicant,

what has been paid by his insurer, what has been paid by the Respondent and what remains outstanding. If the Applicant is still pursuing this claim, I ask that he provide this information to the Court within 60 days. [ 80 ] I shall remain seized of the matter to address these issues: the repayment plan for the arrears of child support and the claim for the sharing of orthodontic expenses. IV.

DISPOSITION: [ 81 ] Commencing June 1, 2023 and continuing on the 1 st day of each month thereafter until further Order of the Court, the Respondent shall pay child support of $793 per month based on an estimated income of $90,920 for 2023. [ 82 ] The Respondent’s arrears of child support are assessed at $66,917.00 for the period of January 1, 2015 to May 31, 2023.

The Office of Support Enforcement shall make the necessary adjustments to their records to reflect these arrears. [ 83 ] Withing 60 days, both parties shall provide the Court with a payment plan proposal for the repayment of the arrears of child support.

In addition, the Applicant shall advise the Court when the child is due to graduate high school and what her plans are post- graduation. [ 84 ] If the Applicant is still pursuing a sharing of orthodontic expenses, he shall, within 60 days, provide the Court with updated information regarding each party’s contribution toward the child’s orthodontic expenses, as well as the amount which has been covered by insurance and the amount which remains outstanding. [ 85 ] Commencing in 2024, the parties shall exchange their respective income tax returns and Notices of Assessment for the previous year by June 1 st each year.

For 2023, that information shall be exchanged by August 1 st . DATED at Saint John, New Brunswick this ______ day of May, 2023. ___________________​​​​​​​​​_____________ Chantal N. Daigle Justice of the Court of King’s Bench of New Brunswick - Family Division