Poirier v. Poirier, 2013 NSSC 314

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Poirier v. Poirier, 2013 NSSC 314 Date: 2013-10-8 Docket: 1201-051365; 133109 Registry: Halifax Between: Catherine Jean Poirier Petitioner v. John Robert Poirier Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: September 11 and 12, 2013

Summary: Father sought to terminate child support for older child who was independent and to stop payments to mother when younger child came to live with father. Mother and father both applied to vary child support retroactively. Child support for older child terminated. Retroactive claims dismissed. Younger child became independent while application pending and his support was also terminated.

Key words: Divorce Act , family, child of the marriage, child support - application to terminate, application to vary, retroactive child support, strike affidavit, amend pleadings, late filing Legislation: Age of Majority Act , R.S.N.S. 1989, c. 4, subsection 2(1) Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 15.1(4), subsection 17(3), subsection 17(4) Civil Procedure Rules 5.11, 39, 83.03, Federal Child Support Guidelines , SOR-97/175,

section 12, subsection 14 (

a) THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Poirier v. Poirier , 2013 NSSC 314 Date: 2013-10-8 Docket: 1201-051365; 133109 Registry: Halifax Between: Catherine Jean Poirier Petitioner v. John Robert Poirier Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : September 11 and 12, 2013 Counsel: Catherine Logan on her own Diana M. Musgrave for John Poirier By the court: Introduction [ 1 ] John Poirier and Catherine Logan have both applied to vary the child support terms of their 1997 Corollary Relief Judgment and a 2004 variation order. Each has also claimed costs.

The applications relate to past and future payments of child support and are pursuant to subsection 17(4) of the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3. Background [ 2 ] Catherine Logan and John Poirier have two sons: Kyle was born on May 5, 1993 and Troy was born on January 14, 1995. Ms. Logan and Mr. Poirier were divorced in December 1997. Their Corollary Relief Judgment gave custody to Ms. Logan and fixed the

amount of Mr. Poirier’s child support obligation. [ 3 ] Ms. Logan applied to vary the child support provisions of the Corollary Relief Judgment in 2003. Initially self-represented, she retained counsel when her application was contested. Justice Hood rendered her decision on this application in October 2003 and the variation order was issued in 2004. [ 4 ] On October 4, 2011, Mr. Poirier applied to vary child support. He wanted to terminate child support entirely for Kyle and to stop paying Ms. Logan for Troy. Mr. Poirier said that Kyle was no longer a child of the marriage and that Troy had left Ms.

Logan’s home in March of that year. Mr. Poirier asked to have the variation order take effect on March 1, 2011. [ 5 ] Ms. Logan filed a response to her former husband’s application on December 8, 2011. She said that Kyle remained a child of the marriage and that Troy had unilaterally terminated his relationship with her, thereby disentitling himself to receive child support. Ms. Logan wanted child support to be adjusted effective as of March 20, 2011. [ 6 ] At the pre-hearing conference in March 2012 both Mr. Poirier and Ms.

Logan gave notice of an intention to seek to vary child support payments on a retroactive basis. Mr. Poirier said he’d overpaid. Ms. Logan said that she’d been underpaid. Following the conference, a hearing date was scheduled in November 2012. [ 7 ] At the conference both parents agreed Kyle was not a child of the marriage as of March 1, 2012, so Mr. Poirier’s obligation to pay support for Kyle was terminated as of that date. They disagreed about whether the termination should have occurred at an even earlier date. Because Troy was living with his father, Mr.

Poirier’s obligation to pay ongoing child support for Troy to Ms. Logan was suspended, as was his obligation to repay any arrears that may have accrued after March 2011. [ 8 ] The applications were scheduled to be heard in November 2012. At Ms. Logan’s request they were adjourned. Preliminary and mid-hearing motions [ 9 ] I heard two preliminary motions and one motion during the hearing. At the beginning of the hearing I dealt with Mr. Poirier’s motion pursuant to Civil Procedure Rule 39 to strike portions of Ms. Logan’s affidavit of August 13, 2013, and Ms.

Logan’s request for leave to file additional materials after her filing deadline had passed. During the hearing, Ms. Logan sought leave to amend her pleadings. Motion to strike [ 10 ] I struck paragraphs 5 to 11 of Ms. Logan’s affidavit on the basis that they were pleadings, outlining the relief that Ms. Logan was seeking rather than evidence. I struck paragraphs 12 to 14 which contained historical information that wasn’t relevant to the applications before me. I struck paragraph 15 because it was irrelevant: it dealt with information about Mr. Poirier’s previous divorce. [ 11 ] Mr.

Poirier asked that I strike paragraphs 16 to 20 on the basis that they offered an “unsupported conclusion” and “no court order is referenced or provided”. In paragraph 16, Ms. Logan referred to terms, putatively contained in the Corollary Relief Judgment or the 2004 variation order, dealing with insurance on Mr. Poirier’s life. In each party’s application there’s reference to varying the Corollary Relief Judgment and the 2004 variation order, so I am able to review these orders. Additionally, these documents are attached to Mr. Poirier’s first affidavit. Neither order refers to life insurance.

There was no apparent relevance of paragraph 16 to the claims before me so I struck paragraph 16. I struck paragraphs 73 to 75 on the same basis. [ 12 ] Mr. Poirier sought to strike a number of paragraphs (17 to 20, 23, 24, and 27 to 30) on the basis they didn’t relate to any disputed issue. Paragraphs 17 to 19 outlined the circumstances in which Ms. Logan brought her 2003 variation application. This application resulted in the 2004 variation order which both parties now seek to vary.

The circumstances at the time of an order which is sought to be varied are highly relevant to a variation application because they set the base line from which a change in circumstances is to be determined. This is made clear by the Supreme Court of Canada in L.M.P. v. L.S. , 2011 SCC 64 and R.P. v. R.C. , 2011 SCC 65 . The paragraphs are relevant and were not struck. [ 13 ] Paragraph 20 detailed the expense Ms. Logan incurred in bringing the 2003 variation application and paragraphs 23, 24, 27 to 30 and paragraph 32 contain information about circumstances in Ms.

Logan’s life and the children’s since the 2003 variation application: their health, education and re-location. Ms. Logan seeks a retroactive award of child support. These circumstances may be relevant to her delay in pursuing the current application. I did not strike any of these paragraphs as they may be germane to Ms. Logan’s failure to pursue a variation of child support promptly. [ 14 ] Mr. Poirier objected to paragraph 26, detailing his involvement in caring for Kyle following a motor vehicle accident, on the basis that it didn’t relate to disputed matters.

It is not relevant to the claims before me and it was struck. [ 15 ] In general terms, paragraphs 35, 38, 39, 41 to 46 and 77(

a) relate to Ms. Logan’s relationship with Troy. Ms. Logan has withdrawn the argument to which these paragraphs relate, so these paragraphs are no longer relevant and they were struck. Motion for late filing [ 16 ] Ms. Logan’s filing deadline of August 14, 2013 was provided in the conference memorandum of November 2012. Two weeks after the deadline had passed, she contacted a conciliator about filing additional materials.

She wanted to file receipts from Troy (which she received after she had filed her affidavit), material relating to the apprenticeship incentive grant program and material from the Registry of Motor Vehicles. Mr. Poirier didn’t object to the receipts and they were admitted. He questioned the relevance of the apprenticeship incentive grant information and he objected to the material from the Registry of Motor Vehicles on the basis that this information was available and should have been provided earlier. [ 17 ] Applying the Court of Appeal’s reasoning in Darlington v.

Moore, 2012 NSCA 68 , which addressed the late filing of affidavits

under Civil Procedure Rule 5.11, I’m to consider the prejudice that would come to Ms. Logan if the material isn’t admitted, the prejudice to Mr. Poirier if it is and, if an adjournment would be required to alleviate the prejudice to Mr. Poirier, and the public interest in optimizing the use of public resources (judges, courts and court staff). [ 18 ] There was some apparent relevance to the apprenticeship incentive grant information, and there would be prejudice to Ms. Logan if it was not admitted. Mr. Poirier had addressed this in his evidence, and it might be addressed further in questioning.

I admitted this information. I declined to admit the information from the Registry of Motor Vehicles. The information is only relevant if certain circumstances exist, and it’s unclear whether those circumstances will come to pass. By offering the evidence now, Ms. Logan has constrained Mr. Poirier’s ability to respond to it. Amending response to variation [ 19 ] Prior to the conclusion of her cross-examination of Mr. Poirier, Ms. Logan asked for leave to amend her pleadings to make a claim that Mr. Poirier maintain life insurance. [ 20 ] When Ms.

Logan made this request, I questioned whether I had authority to grant such relief in a variation application. If I could not, then there would be no point to amending the pleadings to include this request. At first instance, the request for life insurance to secure support is supported by subsection 15.1(4) of the Divorce Act which allows me to impose terms, conditions or restrictions on a child support order.

On a variation application, like this, pursuant to subsection 17(4) I may include in a variation order any provision that could have been included in the order in respect of which variation is sought according to subsection 17(3) of the Divorce Act .

Section 12 of Federal Child Support Guidelines , SOR-97/175 also allows that child support may be secured in some fashion. So, I have jurisdiction to make such an order. [ 21 ] While I have jurisdiction to make an order, at issue was whether I should permit Ms. Logan to amend her pleadings to include this claim. Certainly, Mr. Poirier has had some notice of the retroactive claim relating to life insurance: it’s first mentioned in Ms.

Logan’s August 13, 2013 affidavit, and he responded to it in his August 23, 2013 affidavit. [ 22 ] Civil Procedure Rule 83.03 allows for pleadings to be amended by consent or with my permission. Mr. Poirier does not consent. The test to be applied in deciding whether to grant permission to amend pleadings is whether the party seeking the amendment is acting in bad faith, or whether the other party will suffer serious prejudice as a result of the requested amendment which could not be compensated by costs. There is no suggestion that Ms. Logan is acting in bad faith. [ 23 ] In Jeffrie v.

Hendrikson, 2012 NSSC 335 , Justice Wood allowed a party to amend his pleadings in an application. The amendment was “very late and not a matter of housekeeping”. His Lordship was able to ameliorate any prejudice to the respondents by allowing them to adduce additional evidence. It was an application, so the respondents’ additional evidence would be provided by affidavit. [ 24 ] Ms. Logan’s proposed amendment is not a matter of housekeeping. It is a claim for new relief. While I am dealing with applications, as Justice Wood was in Jeffrie v. Hendrikson, 2012 NSSC 335 , Ms.

Logan’s amendment could not be responded to by allowing Mr. Poirier to adduce additional affidavit evidence and further submissions: the hearing had begun, Mr. Poirier’s case in chief had been completed, he was under oath and on the stand awaiting the conclusion of his cross-examination unable to consult with his counsel about his evidence. There was serious prejudice to him that would not compensable by costs if I granted Ms. Logan leave to amend the pleadings. As a result, I dismissed her request for permission to amend her pleadings.

Prevailing order [ 25 ] Outside this application, the most recent order addressing Kyle and Troy’s support is Justice Hood’s 2004 variation order. At the time of Her Ladyship’s decision in October 2003, both boys were dependent. Kyle was ten and Troy was eight. They lived with Ms. Logan. Her annual income was $70,776.00 and Mr. Poirier’s was $58,661.56 according to the variation order. Ms. Logan incurred child-care expenses for the boys as a result of her employment: she had monthly post-tax child-care expenses of $728.00 for a live-in nanny. Justice Hood ordered Mr.

Poirier to pay monthly child support of $787.00 pursuant to

section 3 of the Federal Child Support Guidelines and $182.00 pursuant to clause 7(1)(

a) of the Guidelines as a contribution of twenty-five percent of the boy’s child-care costs. She dismissed his undue hardship application. Change in circumstances [ 26 ] Now, neither son lives with Ms. Logan. Her income and that of Mr. Poirier have both changed. Child-care is a thing of the past. Pursuant to subsection 17(4) of the Divorce Act and subsection 14 (

a) of the Federal Child Support Guidelines , there has been a change in circumstances sufficient to allow me to make a variation order. [ 27 ] I intend to deal with the claims relating to each son in turn, starting with Kyle. Kyle Terminating Kyle’s support The March 2012 order

[ 28 ] During cross-examination, Ms. Logan said that she wished to argue that Kyle remained entitled to child support until a date after March 2012. She said she didn’t understand that her consent to an order terminating Kyle’s child support as of March 2012 was not subject to review at this hearing. [ 29 ] A pre-hearing conference was held in late March 2012. At it, the parties agreed Kyle’s support would end as of March 1, 2012. Following the conference, a memorandum was prepared and sent to the parties. The memorandum said “Child support from Mr. Poirier to Ms.

Logan for Kyle shall terminate as of March 1, 2012 ” and “The parties have agreed that child support from Mr. Poirier to Ms. Logan for Kyle shall terminate no later than March 1, 2012.

Whether it should terminate at an earlier date will be determined at trial .” (The emphasis in these sentences is mine and was not contained in the original memorandum.) The memorandum concluded with a paragraph stating, “If you believe there are any errors and omissions to this memorandum, please contact me immediately in writing.” The memorandum made no reference to reviewing whether the date when Kyle’s support should terminate might be later than March 1, 2012. Ms. Logan didn’t write to me to me suggesting there was an error in the memorandum. [ 30 ] An order was prepared terminating Kyle’s support.

It was issued on April 18, 2012. One recital clause said, “The parties have agreed that the issues [sic] as to whether Kyle Poirier was a child of the marriage prior to March 1, 2012 shall be an issue for Trial.” Again, the emphasis is mine, added now. The single operative paragraph states, “Kyle Poirier, born May 6, 1983, is no longer a child of the marriage effective March 1, 2012.” Ms. Logan didn’t object to the form or content of the order. [ 31 ] When the hearing was adjourned in November 2012, a new memorandum was prepared and sent to the parties.

It provided new filing deadlines and stated, “Child support from Mr. Poirier to Ms. Logan for Kyle was terminated as of March 1, 2012.” The memorandum also stated that Ms. Logan “contests the date Kyle ceased to be [sic] child of the marriage, she says this was March 1, 2012”. Again, the parties were directed to contact me if there were any errors or omissions in the memorandum. Ms. Logan didn’t object. [ 32 ] Troy’s situation contrasts with Kyle’s. Support payments for Troy weren’t terminated, they were suspended. The memoranda refer to suspension of these payments.

A discrete order suspended Troy’s child support and directed “the child support payable with respect to Troy Poirier shall be suspended effective March 1, 2011, pending the Decision in the trial of this matter presently scheduled for November 13, 2012.” This order also repeated that Kyle’s support “shall terminate effective March 1, 2012.” [ 33 ] Ms. Logan acts on her own behalf in this hearing. She is not a typical self-represented litigant. She has graduated from law school and was called to the bar in 2011.

The multiple conferences, memoranda and orders accurately reflected the parties’ agreement and made clear that Kyle’s child support would terminate effective March 1, 2012 and that the issue for me to resolve is at what date – no later than March 1, 2012 – his support should terminate. [ 34 ] I find that the circumstances of the termination of Kyle’s support were clear. There were repeated statements, either actually accepted by Ms. Logan or not rejected by her, that Kyle’s support would end as of March 1, 2012. As a result, I will not re-visit the parties’ agreement that support ends no later than that date.

When did Kyle cease to be a child of the marriage? [ 35 ] Mr. Poirier offered various dates at which child support for Kyle should terminate. In his evidence he said that child support for Kyle should terminate as of August 1, 2011 because Kyle, though eighteen years old at that time, had completed his post-secondary training (a course in crane operation and his class 3 driver’s license) as of July 15, 2011 and was working full-time. In submissions, he argued the date was September 2011 and then December 2011. [ 36 ] Ms.

Logan, too, has offered various dates when child support for Kyle should terminate. [ 37 ] According to subsection 2(1) of the Divorce Act , a child of the marriage is a child of two former spouses who is under the age of majority and who has not withdrawn from their charge. At the conference on March 23, 2012 Ms. Logan agreed that Kyle was not a child of the marriage on March 1, 2012. Kyle was born on May 5, 1993. He was still eighteen years old at time of the conference.

In Nova Scotia, the age of majority is nineteen, according to subsection 2(1) of the Age of Majority Act , R.S.N.S. 1989, c. 4 . [ 38 ] Kyle didn’t turn nineteen until May 5, 2012, so it’s clear that at some point while he was still under the age of majority he’d withdrawn from his parents’ charge. The question is when did he withdraw from his parents’ charge? Ms. Logan’s position when the termination order was made was that Kyle had withdrawn from her charge on March 1, 2012, when Kyle found full-time work in his chosen field. Mr.

Poirier says it was sometime in the latter part of 2011 because Kyle had earned sufficient income to be independent by the end of 2011. [ 39 ] Kyle completed high school in January 2011. He completed his training at the Union of Operating Engineers School in Falmouth over nine weeks from the beginning of February until the end of March, 2011. He completed a three week course for his class 3 driver’s license over the period from the end of June until July 15, 2011. [ 40 ] In the weeks between his courses, Kyle worked full-time at Princess Auto.

He returned there to work full-time in July 2011when he finished his courses and he maintained some level of employment at Princess Auto for portions of the remainder of 2011. For example, Ms. Logan said that after two, three or four weeks following his completion of the driver’s license course, Kyle decided that working full-time at Princess Auto was impeding his job search, so he reduced his hours. During the fall of 2011, Kyle worked full-time for T. Fraser Crane Services Limited for a few weeks.

He left this job because it offered little by way of crane operation experience and turned out to be more “yard work”. Similarly, he left a job in Lake Echo after just “days”: the work wasn’t full-time. [ 41 ] By mid-December 2011, Kyle had been accepted into the Crane Operators’ Union but he hadn’t found work that he wanted in that field. He found full-time work on February 28, 2012 as a crane operator. He was living, rent-free, with his mother. Kyle moved out of his mother’s home in July 2013 when he purchased his own home. [ 42 ] According to Ms.

Logan, while living at her home, Kyle was responsible for paying the costs associated with his truck (which

he’d owned for a few years), his cellphone, and his social life. He did his own laundry. He was, on occasion, responsible for making family meals. Ms. Logan says that as of six months following the completion of his education, Kyle was spending the majority of his time at his girlfriend’s home. His girlfriend now lives with him in the home he’s purchased. [ 43 ] Kyle filed an affidavit and a Statement of Income, attaching his 2011 income tax return which showed income of $21,318.88. Mr. Poirier says that Kyle earned $19,769.00 of this sum after completing his education in July 2011.

This isn’t borne out by Kyle’s tax materials. According to Kyle’s T4 slips, he earned $19,769.38 from Princess Auto in 2011. He worked there at various times in 2011: part-time while he was still in high school in January 2011, part-time on weekends when he took his crane operation course in February and March, full-time in April, May and June until his driver’s license course began and full-time following the completion of his driver’s license course until he decided to scale back his hours to focus on his job search. Otherwise, Kyle earned $445.50 from T. Fraser Crane Services Limited.

He received an apprenticeship incentive grant of $1,000.00, and I expect the remaining $104.00 on his tax return came from the few days he worked in Lake Echo. [ 44 ] In Brown , 2011 NSSC 148 at paragraph 15 , Justice B. MacDonald addressed a mother’s argument that she should not be required to pay support for a seventeen year old who was neither working nor attending school. According to Her Ladyship, the teen was struggling and not seriously pursuing the opportunity to become educated.

She wrote: Even children who are no longer in school, and who are not pursuing skills or job training, are given some transition time to find employment to become self supporting. During this transition child support may still paid [sic]. A transition period will generally come to an end upon the child obtaining reasonable regular employment or when the evidence reveals the child has become a “lay about”, disinterested in becoming self-supporting with an expectation his or her parents will continue to provide financial support.

A parent may chose [sic] to support such a child, but the court will rarely require child support to be paid under those circumstances. [ 45 ] In Patriquen v. Stephen , 2010 NSSC 248 at paragraph 19 , Justice Williams declined to award child support for a seventeen and one-half year old who was “simply doing what she wants”. The girl had not attended school at all in two and one-half months and her attendance in the three months prior to that was “spotty”.

The girl was living at home with her father. [ 46 ] In Roose , 2010 NSSC 180 , I determined that a young woman who had completed her education and was working, though not at a job in her field of study, was no longer a child of the marriage. [ 47 ] I find that Kyle ceased to be a child of the marriage as of August 1, 2011. At that point he had completed his education and was working full-time. His past work history meant that he did not need “transition time to find employment to become self supporting”, to borrow Justice MacDonald’s language in Brown , 2011 NSSC 148 .

Though Kyle did not work full-time throughout 2011, his earnings for that year exceeded what could be earned by someone working full-time and earning minimum wage. He was capable of withdrawing from his mother’s charge. [ 48 ] I do not accept Ms. Logan’s submission that Kyle was entitled to child support until he secured the job he wanted. As Justice MacDonald noted in Brown , 2011 NSSC 148 , the entitlement continues until the child obtains reasonable regular employment. Kyle had done so by August 1, 2011. [ 49 ] I order that Mr. Poirier’s child support payments for Kyle end on August 1, 2011.

Retroactive claim [ 50 ] Determining the date when Kyle ceased to be a child of the marriage is important not only because it identifies when Mr. Poirier’s obligation to pay child support terminates, but because it also determines whether I have jurisdiction to vary child support on a retroactive basis. Jurisdiction to award child support retroactively is limited to cases where the person for whom support is sought was entitled to support at the time the application was filed.

If the person was not a child at the time of the application’s filing, there is no jurisdiction to make a retroactive order for support, according to Justice Bastarache at paragraphs 86 to 90 of DBS v. SRG, LJW v. TAR, Henry v. Henry, Hiemstra v. Hiemstra , 2006 SCC 37 . I have jurisdiction to make a retroactive award of child support with regard to Kyle only if he was a child of the marriage at the time the application for a retroactive variation was filed. [ 51 ] Ms. Logan filed her response in December 2011. It contained no reference to a claim for support on a retroactive basis. Both she and Mr.

Poirier gave notice of their retroactive claims at the March 2012 conference. Regardless of which date I use as the date when Ms. Logan filed her claim (December 2011 or March 2012), Kyle was not a child of the marriage. As a result, I have no jurisdiction to hear Ms. Logan’s application to vary child support for Kyle on a retroactive basis, and I dismiss this claim. [ 52 ] As a result of dismissing the retroactive claim, the amount of the child support that Mr. Poirier has paid for Kyle is unchanged. However, his payments shall end with the payment made on August 1, 2011.

Troy [53] There are a number of issues to be determined with regard to Troy. First, Mr. Poirier seeks child support for Troy from March 2011 until March 2013. This claim involves both the child support tables and special expenses. Second, both parents claim a retroactive

variation of Troy’s support. Third, Ms. Logan seeks prospective child support for Troy while Mr. Poirier says that Troy has been independent since March 2013. March 2011 to March 2013 [54] Mr. Poirier says that Troy has lived with him on a full-time basis from March 2011 until July 2013 when Troy moved in with Kyle. Ms. Logan doesn’t disagree, beyond stating that Troy moved to his father’s home on March 19. Mr. Poirier didn’t remember the date when Troy arrived when cross-examined, but he stated this date in his affidavit of September 9, 2011. While Ms.

Logan had, initially, argued that Troy had unilaterally terminated his relationship with her and disentitled himself from support, she has withdrawn this argument. Ms. Logan admitted that she paid no child support to Mr. Poirier while Troy lived with him. So, Ms. Logan owes child support to Mr. Poirier. [55] The basic amount of child support depends, in part, on the payor’s annual income, so I will determine Ms. Logan’s obligation on an annual basis. I will then calculate each parent’s share of Troy’s special expenses. Child support pursuant to

section 3 of the Guidelines [56] Troy came to live with his father on March 19, 2011. At the time, he was sixteen and attending high school. He remained at his father’s home and attending high school throughout 2011. [57] Ms. Logan’s total income in 2011 was $70,569.15. From this, according to

Schedule III, subsection 1(

g) of the Federal Child Support Guidelines , I am to deduct $1,801.62 for her professional dues. This leaves the sum of $68,767.53 as her income for child support purposes according to

section 16 of the Guidelines . Based on the child support tables in place in 2011, Ms. Logan owes Mr. Poirier monthly child support payments of $597.00 for the months of April to and including December 2011. [58] Throughout 2012, Troy remained with his father and in high school. He worked part-time. [59] Ms. Logan’s total income in 2012 was $91,566.38. The

Schedule III, subsection 1(

g) deduction is $630.88, leaving the sum of $90,935.50 as her income for child support purposes. According to the child support tables in place in 2012, Ms. Logan owes Mr. Poirier monthly child support payments of $765.00 for every month in 2012. [60] Troy completed high school in January 2013. Mr. Poirier claims child support for Troy until March 2013. There is no contest that Troy was living with Mr. Poirier and entitled to receive child support during this time. According to Ms.

Logan’s August 14, 2013 Statement of Income, her income for child support purposes is $94,348.20 (her total earnings and pension benefits of $96,472.44 less her professional fees of $2,124.25). The prevailing child support tables dictate a monthly child support payment of $792.00. Ms. Logan owes Mr. Poirier this amount for each of January and February 2013. Child support pursuant to

section 7 of the Guidelines [61] Each parent has claimed a contribution to a special expense pursuant to

section 7 of the Guidelines . Mr. Poirier claims a contribution to health expenses (a vision exam and glasses) and for post-secondary education costs. Ms. Logan’s claim relates to health and dental insurance premiums. [62] Preliminarily, in dealing with requests for a contribution to special expenses, I am to determine the necessity of the expense in relation to the child’s best interests, the reasonableness of the expense in relation to the parent’s means (and the child’

s) and the family’s pre-separation spending pattern. This analysis is mandated by subsection 7(1) of the Guidelines . Neither parent has questioned any of these considerations. I assume they agree the expenses are necessary in relation to Troy’s best interests, reasonable having regard to the means of Mr. Poirier, Ms. Logan and Troy and the family’s spending pattern before the separation. [63] Clause 7(1)(

c) addresses expenses for health-related expenses, such as glasses and vision exams. It provides that the portion of the expense which I may order be shared is that portion which exceeds insurance reimbursement by at least $100.00 annually. [64] Mr. Poirier incurred an expense of $78.00 for Troy’s vision exam in 2012. This is the only health-related expense for 2012. Since the expense doesn’t exceed the annual threshold of $100.00, it isn’t an expense covered by clause 7(1)(

c) of the Guidelines . [65] In 2013, Mr. Poirier incurred an expense of $378.00 for Troy’s glasses. He didn’t indicate whether this amount was reduced by any insurance reimbursement. In fact, he revised the Statement of Special or Extraordinary Expenses to delete the portion of the form referring to amounts that reduce special expenses. His paystub shows an expense for health insurance and this is noted on his Statement of Expenses, but there’s no expense shown for “children’s medical or dental insurance premiums”. I conclude Mr. Poirier received no reimbursement. While Ms.

Logan has health coverage, it seems that this was never made available to Mr. Poirier: according to each parent, aside from one meeting in March 2011 when Troy moved to his father’s home, there’s been no contact of any sort between them for many years. Ms. Logan testified that she would let the Troy know if he had dental or optical appointments, for example, and Troy “would know” that drug costs would be paid directly to the dispensing pharmacy. However, she provided no information to Mr.

Poirier about the availability of health insurance. [66] Reducing this cost by $100.00 as required by clause 7(1)(c), means that Mr. Poirier is asking that I order a proportionate sharing of $278.00. [67] I’ve previously found that Ms. Logan’s 2013 income is $94,348.20. [68] Mr. Poirier’s income is derived from earnings, pension benefits and Old Age Security payments. He began unpaid medical leave on August 19, 2013 and had not returned to work at the time of the hearing. He was scheduled to be re-assessed one week after the hearing concluded.

Based on his receipt of his pension and OAS payments throughout 2013 and his salary for sixteen pay periods (he’s paid bi-weekly), I calculate his 2013 income to be $55,925.88.

[69] A proportionate sharing of the glasses expense results in Ms. Logan paying sixty-three percent or $175.14 to Mr. Poirier. [70] Mr. Poirier has asked that Ms. Logan contribute to costs for Troy’s post-secondary education. These are listed in clause 7(1)(

f) of the Guidelines . They are not subject to any threshold or reimbursement, but are to be adjusted for any available tax benefit, credit or deduction according to subsection 7(3) of the Guidelines . Here, I note that Mr. Logan has supported his claim with copies of two cheques he provided to Troy to cover the cost of an “education expense” and a tuition deposit at the Akerley Campus of the Nova Scotia Community College. These cheques are dated March 28 and April 19, 2013. However, according to Mr. Poirier, Troy ceased to be dependent and entitled to child support as of the beginning of March 2013.

At this point, I’ve made no determination whether Troy remained entitled to child support after March 1, 2013. That will be determined when I consider Ms. Logan’s claim for prospective child support. I’ll defer discussion of these expenses until later in my reasons. [71] For her part, Ms. Logan asks that Mr. Logan contribute to the cost of health insurance premiums for Troy. She also asked for a contribution to the health insurance premiums her partner, Michael Tops, paid because he named Troy (and Kyle) as beneficiaries under his health insurance policy. Of course, only Troy is my concern at this point. [72] Ms.

Logan testified that the cost of a family premium did not depend on the number of members in the family: there was one amount for single coverage and another amount for family coverage, no matter the size of the family. Since Mr. Tops was already maintaining coverage for his children, there was no additional expense in adding Troy to this policy. I dismiss her request for a contribution to Mr. Tops’ health insurance premiums. [73] Health insurance premiums attributable to children are a special expense listed in clause 7(1)(

b) of the Guidelines . Ms. Logan’s monthly health insurance premium for Troy was $26.64, according to her August 14, 2013 Statement of Special or Extraordinary Expenses. Her earlier Statement, filed on March 21, 2012, provides greater information about health and dental insurance coverage costs. Attachment G identifies the cost of family and single health coverage and attachment I identifies the dental insurance cost: the monthly health insurance premium attributable to one child is $20.98 and the monthly dental insurance premium attributable to one child is $15.96.

According to this detailed information from the Treasury Board of Canada, the total monthly insurance cost is $36.94. I prefer the Treasury Board information to the amount shown in Ms. Logan’s August 14, 2013 Statement of Special or Extraordinary Expenses which is not supported by any documentation. [74] For the period from March 2011 to the end of the year, Troy’s health and dental insurance cost was $369.40. Ms. Logan’s income was $68,767.53 and Mr. Poirier’s was $89,628.00. Proportionately shared, Mr. Poirier should pay fifty-seven percent of the cost or $210.56. [75] In 2012, Mr.

Poirier’s income was $81,895.28 and Ms. Logan’s was $90,935.50. Total insurance costs were $443.28 in 2012. Shared proportionately between them, Mr. Poirier should pay forty-seven percent of the cost or $208.34. [76] For the first two months of 2013, the health and dental insurance cost will be proportionately shared with Mr. Poirier paying thirty-six percent or $26.60 of the 2013 cost. Whether there is any contribution to costs for the remainder of the year will depend on my decision as to whether Troy remained dependent and entitled to child support. Retroactive claims [77] Mr.

Poirier argues that he has overpaid child support since August 2003 and he wants this adjusted retroactively. Ms. Logan claims that she was underpaid and she wants this adjusted retroactively. Ms. Logan’s claim is governed by the Supreme Court of Canada’s decision in D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 . In his submissions, Mr. Poirier refers me to the Court of Appeal’s decision in Smith v. Helppi , 2011 NSCA 65 . [78] Mr. Poirier is the applicant so I’ll address his claim first. Mr. Poirier’s claim [79] Mr.

Poirier says that he overpaid support in the past, paying for child-care well after the point where this expense ended. [80] At paragraph 20 of the Court of Appeal’s reasons in Smith v. Helppi , 2011 NSCA 65 Justice Oland (with whom Justices Fichaud and Farrar concurred) distinguished between retroactive child support awards and retroactive child support reductions. The former, she explained, awards a payment. A retroactive child support award is governed by D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 .

A retroactive child support reduction, Justice Oland said “reduces support, whether it takes the form of forgiveness of arrears or a retroactive decrease in support payable and recalculation of arrears.” [81] Smith v. Helppi , 2011 NSCA 65 was an appeal from a variation application in which Mr. Smith sought to vary his child maintenance payments and thereby reduce his accumulated arrears. In her reasons, Justice Oland quoted with approval Justice Robertson’s comments at paragraph 21 of the New Brunswick Court of Appeal’s decision in Brown , 2010 NBCA 5 (now cited as P.M B. v.

M.L.B . ) , which outline the analysis of claims to reduce arrears retroactively: 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. [82] In P.M B. v.

M.L.B ., 2010 NBCA 5 at paragraph 3 , Justice Robertson said that it was unnecessary to “address why the applicant failed to make a timely application for retroactive variation” and “the reasons underscoring the support recipient’s failure to pursue timely enforcement measures”. He acknowledged that this “appears to deviate from” the analysis of D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 . His Lordship explained the deviation by distinguishing between ordering an

increase in support and ordering a reduction of arrears: “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 .” D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 is considered when a retroactive variation seeking support is claimed and the analysis I’ve outlined in paragraph 81 (taken from paragraph 21 of P.M B. v.

M.L.B . , 2010 NBCA 5 ) applies when a payor wants to reduce or rescind arrears retroactively. [83] At paragraph 28, Justice Robertson said that it’s not difficult to justify treating applications to increase support retroactively differently from applications to decrease support: Orders falling within the latter group [decreasing support] 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 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 . Thus, the policy objectives of certainty and 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. [my emphasis] [84] While Justice Robertson referred to orders decreasing support, his remarks make clear that he is, more specifically, referring to orders reducing or rescinding arrears of support: orders that will result in “neither party being asked to pay or repay monies”. [85] On its own, Mr. Poirier’s application seeks repayment of amounts overpaid to Ms. Logan.

As a result, I believe that the analytic framework of D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 is the appropriate framework for analysing his claim, not the framework of Smith v. Helppi , 2011 NSCA 65 . [86] I take some comfort from Justice Bastarache’s words, at paragraph 98 in D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 that “these factors are not meant to apply to circumstances where arrears have accumulated”. Mr. Poirier’s claim is not one where arrears have accumulated.

If he is successful, the result will be akin to the success of a support recipient: it will displace the certainty created by the existing order, it will create an amount owed to him, it will create unpredictability that does not result from the conduct of the parent required to pay. [87] I’m explicit in outlining my thinking on this point so the parties may understand it. There are many decisions addressing applications to increase child support retroactively and many addressing applications to reduce or rescind arrears retroactively.

My research has located only one decision where a payor asks to vary child support retroactively so as to receive a repayment from the support recipient. It, too, involved a putative overpayment of child-care expenses. In Bury v. Beaton , 2012 NSSC 37 , Justice Wilson considered Mr. Bury’s claim using the same analysis I propose. [88] Retroactive awards are discretionary ones that are neither automatic nor exceptional. In exercising my discretion to make a retroactive award, I’m to balance the competing principles of certainty and flexibility, while respecting the core principles of child maintenance.

Certainty protects Ms. Logan’s interest in respecting the prevailing order, rather than re-writing the rules for child support years later so that she must repay money she has likely spent. Flexibility honours Mr. Poirier’s interest in paying the appropriate amount of child support.

The core principles of child support are that: child support is the child’s right; the child’s right to support survives the breakdown of the parents’ relationship; child support should, as much as possible, perpetuate the standard of living the child had before the parents’ relationship ended; and the amount of child support varies, based upon the parent’s income. [89] In determining whether to grant Mr. Poirier’s request, I’m to consider: the reason for his delay in making this claim; Ms. Logan’s conduct; Troy’s past and present circumstances; and whether a retroactive award would result in hardship.

All of these factors must be considered and none on its own dictates my decision, according to Justice Bastarache in D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 at paragraph 99 . Mr. Poirier’s delay [90] Mr. Logan’s claim dates from 2004. He’s offered no evidence to explain why he did not pursue a variation application until 2011. He exercised regular access with the children and was aware of their residence: he knew where to find Ms. Logan.

As the boys aged, he could surmise (if he didn’t actually know) of their decreasing need for child-care and the reduction and ultimate elimination of this expense. It appears he made no requests for the disclosure Ms. Logan had been ordered to provide which would have made clear that child-care costs had ceased. Ms. Logan’s conduct [91] It is blameworthy conduct that’s relevant to my consideration of Mr. Poirier’s variation application. At paragraph 106 of D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v.

Hiemstra , 2006 SCC 37 , Justice Bastarache characterized this as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”. In this context, it is not the payor whose conduct interests me, but Ms. Logan’s. [92] The Corollary Relief Judgment contained an express provision requiring that before the end of January of each year Ms. Logan provide Mr. Poirier with “a record of her day care expenses for the children of the marriage for the previous calendar year.” Ms. Logan has never complied with this term of the Corollary Relief Order.

Nor did she disclose her tax return to him as she was ordered to do. Providing her tax return would have revealed the change in child-care expenses. She allowed Mr. Poirier to continue to finance the child-care expense after it ended. Troy’s circumstances [93] I’m to consider Troy’s past and current circumstances in determining whether a retroactive award is justified.

[94] I have no evidence of Troy’s past circumstances that assists me in this decision. There’s no suggestion that he was without any needed or desired items in the past. Currently, he lives with Kyle and Kyle’s girlfriend in a home which Kyle purchased in West Porters Lake. Troy has completed high school and has completed training that enables him to work. [95] It appears a retroactive award to Mr. Poirier would not provide for Troy, who no longer lives with his father. Hardship [96] My final consideration is whether a retroactive award would result in hardship. I am to consider whether Ms.

Logan is able to satisfy a retroactive award. “Hardship” is to be considered broadly, not within the confines of

section 10 of the Guidelines . Ms. Logan’s Statement of Property shows she is joint owner of a home which is more than fully encumbered by a mortgage: she states its value at $229,500.00 while it carries a mortgage of $255,799.43. There are four vehicles, none worth more than $6,000.00 and all more than five years old. She has begun to accumulate a small pension as the result of her two years’ employment by the federal government. There are savings of less than $1,300.00 and debts of $132,275.35 (of which approximately $55,000.00 is jointly owed by Mr. Tops).

There are two life insurance policies with cash surrender values of less than $25,000.00 (in total). One policy is on Troy. [97] Ms. Logan’s Expense Statement overstates her CPP and EI premiums. Adjusting these and deducting an amount she admits is actually Mr. Tops’ support payment for his children, she has monthly expenses of $11,086.40. Her monthly income is $7,862.35 (after consideration of her professional dues), so her monthly deficit is $3,224.05. I don’t know how much of this deficit might be met by Mr. Tops’ income. [98] I am aware that Ms. Logan continues to provide money to Troy on an informal basis.

This isn’t reflected in her Statement of Expenses. [99] Ms. Logan’s net worth suggests a retroactive payment would create hardship. Her income and expenses suggest the same. It would only be Mr. Tops’ contribution to the household that would avoid hardship resulting from a retroactive award and I have no information about his current financial circumstances. Conclusion with regard to Mr. Poirier’s retroactive claim [100] Mr. Poirier was prompted to make his retroactive claim by Ms. Logan’s retroactive claim.

He was, until that point, apparently content with the payments he made, though he must have been aware that his sons no longer needed child-care. Ms. Logan, for her part, did nothing to dissuade Mr. Poirier from making these payments. There is no benefit to Troy from a retroactive payment at this point and it may jeopardize his mother’s informal assistance. I dismiss Mr. Poirier’s claim. Ms. Logan’s retroactive claim [101] Ms. Logan’s claim that Mr. Poirier for a retroactive award of child support is clearly governed by D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 .

Ms. Logan’s delay [102] Ms. Logan’s claim dates to 2004. In July 2005, Ms. Logan and the boys moved from Greenwood to Cole Harbour. The Armed Forces had granted her twelve months to complete her undergraduate degree. She began classes in September 2005 and had completed nine credits by August 2006. The move also facilitated physiotherapy for Kyle, who’d been in a car accident. [103] Ms. Logan states that in November 2005 she developed chronic pain which continues to this day. She says she began part-time studies at law school in September 2006 while she was working full-time with the Canadian Armed Forces.

She was released from the Armed Forces in December 2008 and received a vocational rehabilitation subsidy for her last year and one-half of law school. She says she hasn’t had permanent work since her release from the Armed Forces and works on a term basis. This work is full-time. Her current term will end in December 2013. [104] She says that although there were changes in circumstances (increased child-care costs, the departure of her live-in nanny, a reduction in Mr. Poirier’s access costs and an increase in his income), there were a number of reasons why she didn’t pursue child support.

These reasons were listed: her past experience in applying to vary child support, she “could not afford legal assistance” to vary child support, she “did not feel confident at the time to do this on my own” and she “had no mental, emotional or financial reserves to deal with going to court to pursue Mr. Poirier for a variation in child support.” [105] The Corollary Relief Judgment contains a provision requiring the parties to exchange completed copies of their tax returns (whether filed or not) and any notices of assessment annually, starting with their 1997 tax returns being exchanged on May 15, 1998.

Additionally, each party was specifically directed to provide the other with a record of his or her employment earnings for the previous calendar year before January 31 of each year. This exchange was to begin in January 1998. Ms. Logan was ordered to supplement information about her earnings with a record of her annual child-care expenses. [106] At minimum, pursuing child support would involve Ms. Logan asking Mr. Poirier to provide the income disclosure that he was ordered to provide. She was silent as to whether she had ever made such a request. [107] Ms.

Logan was represented by counsel when the Corollary Relief Judgment was obtained. Initially she represented herself in the variation application. She retained counsel when Mr. Poirier opposed it. It’s her evidence that she spent less than $5,000.00 to vary the child support terms of the Corollary Relief Judgment. According to her 2003 tax return, she had total income of approximately $71,000.00 that year and she was able to deduct legal fees of $3,695.07 in calculating her taxable income of $54,842.00. A further $514.88 in legal fees was deducted from her 2004 total income of approximately $75,500.00.

Her taxable income was $61,650.00 that year. Based on her tax materials, her actual legal expense was $4,209.95.

[108] The table below shows Ms. Logan’s total and taxable income in the years since 2004. Year Total Income Taxable income 2005 88,788.00 83,619.00 2006 87,199.00 81,617.00 2007 90,425.00 83,933.00 2008 98,956.00 92,247.00 2009 96,275.00 95,275.00 2010 72,565.00 75,088.00 2011 70,569.15 65,941.18 2012 91,566.38 86,360.09 Ms. Logan says she couldn’t afford legal assistance and lacked the financial reserves to go to court. Her total income in every year since 2003 exceeded her income in 2003, when she last sought to vary child support. [109] By 2005, Ms. Logan was cohabiting with a common law partner, Michael Tops.

They continue to cohabit. Form T778 (the child-care expense deduction form attached to Mr. Tops’ tax return) disclosed his 2005 annual earned income to be $66,436.21. While Ms. Logan says she had “no financial reserves” to deal with going to court, her income level throughout this period would have been adequate for her to retain counsel for this purpose. [110] Ms. Logan asserts that she “had no mental, emotional or financial reserves to deal with going to court to pursue Mr.

Poirier for a variation in child support”, but offers no evidence that allows me to assess these claims. [111] During this time she completed nine undergraduate courses and law school and articled. While attending law school part-time basis, she managed full-time employment. Ms. Logan was capable of juggling multiple demands. It appears she gave these other matters priority over pursuing appropriate child support. [112] There is no indication that Ms. Logan feared retribution against herself or the boys if she applied to vary child support.

Nor is there any indication that she was ill advised against making a variation application. [113] Ms. Logan was very busy dealing with her education and professional training in the years following Justice Hood’s decision. She filed her request for a variation only in response to Mr. Poirier’s application to terminate support for Kyle and to end his payments to her for Troy. At one point in her cross-examination, she explained that she had no receipts for an expense because she “had no intention of having to do this”.

By “this” I take her to mean that she had no intention of having to contend with a variation application. [114] I find that Ms. Logan’s delay in seeking a variation is not reasonable. Mr. Poirier’s conduct [115] It is blameworthy conduct that is relevant to my consideration of Ms. Logan’s variation application. At paragraph 106 of D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 , Justice Bastarache characterized this as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”.

Blameworthy conduct promotes a retroactive award and the absence of blameworthy conduct militates against one. Blameworthy conduct is

an act or omission that puts the payor’s interests before the child’s right to an appropriate amount of maintenance. On its face, it isn’t blameworthy for a payor to adhere to the terms of the prevailing order. However, if a payor receives a significant increase in income and doesn’t disclose it, this is blameworthy conduct. Justice Bastarache wrote, at paragraph 106 of D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v.

Hiemstra , 2006 SCC 37, that “a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments”. [116] A presumption that abiding by the prevailing order is not blameworthy “may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay” according to the Supreme Court at paragraph 108 of D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 . [117] Mr.

Poirier has failed to meet the disclosure obligations imposed by Justice Saunders’ Corollary Relief Judgment. His income at the time of the 2004 variation order was $58,661.00. His annual income in 2010 was $78,400.00. In 2011, it was $89,628.00. I have no tax or income information from earlier than 2009, when Mr. Poirier’s income was $70,351.00. Mr. Poirier had seen his child support increase in 2003 when his income was found to be approximately $20,000.00 more than it was when the Corollary Relief Judgment was granted in 1997.

He would have known that an increase in his income would result in increased child support. He neither disclosed his tax returns nor did he seek to adjust his payments. Troy’s circumstances [118] I’ve reviewed Troy’s circumstances in paragraphs 92 to 94. Hardship [119] Mr. Poirier has filed a Statement of Property. In addition to a home (which has no equity after disposition costs and its mortgage are deducted), there are household contents with a modest value ($6,500.00), various vehicles (none less than fourteen years old or worth more than $4,000.00).

He has a Canada Savings Bond worth $1,000.00, a chequing account with an unknown balance and debts of $20,000.00. He has a new family. His spouse is employed. [120] Mr. Poirier’s Statement of Expenses indicates that he has a monthly deficit of $1,778.00. As was revealed in his cross-

examination, the calculation of this deficit resulted from an understatement of his income. There is at least one additional error in the Statement: Mr. Poirier’s monthly CPP expense is stated to be $669.18. The maximum monthly CPP premium is $196.35. [121] Based on an annual income of $81,895.32 and adjusting Mr. Poirier’s expenses to correct the overstatement of his CPP premiums, Mr. Poirier’s actual monthly deficit is $93.28. This calculation is based on Mr. Poirier’s full-time employment throughout the year. I don’t know how much of his deficit is financed by his wife’s earnings. I have already noted that Mr.

Poirier is on medical leave from his employment. [122] Mr. Poirier is seventy years old. He has no savings or assets from which a retroactive payment could be financed. His income meets his expenses when he is employed. I have no information about his wife’s contribution to the family’s finances. It is unclear whether a payment of a retroactive award could constitute a hardship for Mr. Poirier. It would only be saved from creating a hardship by virtue of Ms. Poirier’s contribution. Conclusion with regard to Ms. Logan’s retroactive claim [123] I have found that Ms.

Logan’s delay in pursuing a retroactive award of child support is not reasonable. Mr. Poirier’s conduct in failing to provide annual disclosure of his income and failing to adjust his child support payments was blameworthy. Both parents appear to have adopted the approach of leaving well enough alone. There is no evidence of Troy’s past or present circumstances which assists me, one way or the other, in deciding whether to make a retroactive award. Finally, Mr. Poirier’s circumstances are such that a retroactive award may occasion some hardship. [124] At paragraph 133 of D.B.S. v. S.R.G. , L.J.W. v.

T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 , Justice Bastarache said that when deciding whether to award support retroactive award, I need to look at Mr. Poirier’s interest in certainty and I must balance this with the need for fairness and for flexibility. Ms. Logan’s delay inclines me toward providing certainty for Mr. Poirier. Until 2012 he had no notice that Ms. Logan was looking for any greater amount of child support. Neither party provided income disclosure to the other. Mr.

Poirier didn’t adjust his child support payments to reflect his increasing income, but he didn’t take steps to reduce it at any point when he could have reasonable assumed the boys no longer required child-care. The goal of support is not achieved where Troy is living on his own. [125] I decline to make a retroactive child support award and dismiss Ms. Logan’s application. Prospective support [126] Troy initially planned to attend Ravensburg College when he finished high school this past January, but changed his mind and decided to take a course at the Nova Scotia Community College.

Following graduation, Troy worked and returned to high school to take a physics course that was a prerequisite for the Community College. He didn’t complete the physics course and opted for alternate training. [127] Since July 2013 Troy has lived with Kyle, beyond the charge of either parent. According to Mr. Poirier, Troy saved enough to pay for a heavy equipment operator course in Falmouth in August 2013. [128] Ms. Logan says that she paid Troy’s tuition and bought him work boots. She says she arranged for a place where Troy could stay during the week while he was training in Falmouth.

The tuition and boots cost $9,500.00 and $183.99, respectively. Ms. Logan says that she agreed (presumably with Troy) to provide him with $300.00 each week while he attended the training course: $150.00 for his room and board in Falmouth and $150.00 for travel and other expenses. [129] It emerged in cross-examination that Troy’s maternal grandfather established savings when each of his grandsons were born. These were “to assist” Ms. Logan and her brother in providing for his grandchildren. Ms.

Logan received $10,000.00 from these savings in January 2011 to assist in Kyle’s education and, after Troy made a presentation to Mr. Logan about his educational plans, Mr. Logan gave Troy’s mother a cheque for $10,000.00 on July 23, 2013. Troy’s boots were purchased the day before Ms. Logan received the cheque and she wrote her cheque for Troy’s tuition the day she received her father’s cheque. [130] Mr. Poirier says that Troy has not been entitled to child support since March 2013 and, thought Troy continued to live with him until July, Mr.

Poirier doesn’t seek support for Troy during that period (beyond claiming a contribution to the educational expense). [131] Ms. Logan says that Troy remains entitled to support: he was entitled to support while he took the heavy equipment operator court in August and he remains entitled in case he wishes to pursue his class 1 driver’s license next year. Troy is not yet old enough to obtain a class 1 license. [132] Troy remains under the age of majority: he will turn nineteen on January 14, 2014. He is not currently attending any educational program. He does not reside with either parent.

He has received money or other financial benefits from his parents since leaving his father’s home in March: Mr. Poirier pays for Troy’s cellphone and Ms. Logan has been providing Troy with money. Each parent has given Troy money toward his educational costs. [133] According to Mr. Poirier’s affidavit of July 29, 2013, “Troy has make it clear to me that he does not wish us as his parents to be involved in fighting over his schooling and has taken the position he will cover these costs.” Mr. Poirier says that Troy told both his parents that he’d saved enough for his education.

In her affidavit of August 14, 2013 Ms. Logan says that Troy saved approximately $4,000.00 from working between February and August 2013 and he was going to use this money to cover his living costs during his course. [134] Troy’s circumstances are singular ones: he is under the age of majority, he has completed high school, he lives independent of both his parents, and he claims that he is able to finance his own post-secondary education costs (after, of course, the contribution by his grandfather).

Troy’s independent residence with Kyle isn’t for the purpose of his education: his course is elsewhere and he lived elsewhere from Monday to Friday while taking his course.

[135] Troy is pursuing the same educational course his brother did. I anticipate he will be equally able to find employment. Like his brother, he is ambitious and energetic. Both completed high school on an accelerated basis, worked as hard as their schedules allowed, saved and contributed to their own expenses. [136] Mr. Poirier doesn’t seek child support for Troy after March 2013, though he continued to provide Troy with a home until July. Ms. Logan asks that Troy be treated as a child throughout.

I don’t accept that Troy has been a child throughout: he’s removed himself from his parents’ charge and is living independently. There are decisions, such as Justice Dellapinna’s in Mason-Cramm v. Cramm , 2008 NSSC 308 and Justice B. MacDonald’s in A.W.H. v. C.G.S. , 2007 NSSC 181 , whish support the proposition that a young person can regain the status of “child of the marriage” upon returning to school. I accept that and find that Troy, particularly given his age, did regain the status of child of the marriage when he returned to school. [137] As I say, Troy’s circumstances are singular.

His grandfather has financed his course costs. While Troy said he had $4,000.00 which was sufficient to cover his living costs (travel, room and board) during the course, I am prepared to find that Troy is entitled to child support while studying. I order that Ms. Logan and Mr. Poirier proportionately share these costs: Ms. Logan shall pay lump sum child support of $2,520.00 to Troy, and Mr. Poirier shall pay $1,480.00, also to Troy. [138] As a result of determining that Troy was not a child during the period from March 2013 until he resumed his education in August, I am dismissing Mr.

Poirier’s claim for a contribution to Troy’s enrolment at the Community College (which Troy didn’t pursue) and Ms. Logan’s claim for a contribution to health and dental insurance premiums and other educational costs. Conclusion [139] Mr. Poirier’s counsel will prepare the order providing that Mr.

Poirier’s support for Kyle terminated with his final payment on August 1, 2012, outlining the payments each parent owes the other for Troy during the period from April 1, 2011 to March 2013, dismissing the retroactive support claims and ordering each parent to make a lump sum child support payment to Troy. [140] Each party has asked to be heard on costs. Mr. Poirier’s submissions are due by October 25, 2013 and Ms. Logan’s by November 8, 2013. __________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia