H.M.T. v. T.W.L., 2016 NSSC 270

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: H.M.T. v. T.W.L. , 2016 NSSC 270 Date: 2016-10-19 Docket: Halifax No. SFHISOV-099056 Registry: Halifax Between: H. M. T. Applicant v. T. W. L. Respondent Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Moira Legere Sers Heard: September 6 th , 2016, in Halifax, Nova Scotia Written Release: October 19 th , 2016 Counsel: H. M. T., Self-Represented Applicant T. W.

L., Self-Represented, Respondent By the Court: [ 1 ] This is an Interjurisdictional Support Application originating out of London, Ontario on July 22 nd , 2015. Notice of Proceedings [ 2 ] Following this 2015 ISO application I directed that both parties be provided notice of the hearing and an opportunity to be present in some appropriate and realistic form. [ 3 ] For the initial proceeding and Consent Order the Ontario Applicant and her counsel were present by phone for the determination of the initial hearing.

They were permitted to give evidence and submissions. [ 4 ] Both parties were able to provide evidence, to hear and speak to the issues. Each party was self- represented. [ 5 ] The child who is the subject matter of this proceeding was born October 29 th , 2000. He is just shy of 16 as of the writing of this decision.

[ 6 ] The first order in this matter was a Consent Order out of Nova Scotia in 2004. The Respondent was ordered to pay $256 per month plus

Section 7 expenses for childcare of $62.50. [ 7 ] In 2009 the mother moved to Alberta. [ 8 ] In 2010 the flow of child support payments stopped. [ 9 ] The Applicant commenced an application in Alberta and was granted a final order for sole custody on November 24 th , 2010. [ 10 ] In 2011 the Applicant commenced an application to reinstate child support and arrears in Alberta. [ 11 ] The Applicant contacted the Nova Scotia authorities to discover that a hearing had taken place on the issue of support without notice to her. [ 12 ] In February 2013 the Nova Scotia court decided as follows; • The Respondent has an annual income of $42,807 and the Applicant an annual income of $48,500 based on 2011 income tax forms. • The Respondent was to pay child support in the amount of $380 commencing January 1 st , 2013. • This was conditional on the Respondent father being permitted to exercise block periods of access to the child on March break, the summer and ½ Christmas vacation. • The Applicant was to pay 2/3 of the costs of access in the amount of $170 per month resulting in a reduced child support payment of $210 commencing January 2013. [ 13 ] There was also a previous order June 2012 setting arrears and

Section 7 expenses. [ 14 ] The evidence leading to the February 5 th , 2013 order and in particular the evidence relating to the calculation of access costs was not available to me. [ 15 ] The mother moved, in 2013, to London, Ontario for family reasons. Unfortunately, the enforcement of child support continues to be routed through Alberta. [ 16 ] The Applicant mother is seeking a retroactive variation of the Nova Scotia support order dated February 5 th , 2013.

Partial consent order [ 17 ] A Consent Order resulted on August 15 th , 2016. [ 18 ] The August 15 th , 2016, court order recognized that access did not proceed as originally planned and that no adjustments had been made historically to reflect income changes. [ 19 ] This order directed as follows: [ 20 ] Access was stipulated for March break, summer and Christmas. [ 21 ] In September 2016 the mother anticipated returning to work which would mean she would no longer be in receipt of Ontario assistance. [ 22 ] Based on an annual income of $55,000, child support was varied and increased to $463 without conditions or deductions relating to access costs, payable on the 1 st day of September 2016 and every month thereafter until further order of the Court. [ 23 ] Arrears from July 1 st , 2015, to April 2016 were fixed at $992.88 on the table amount. [ 24 ] The parties agreed that commencing September 1 st , 2016, thereafter, the Respondent was to pay $50 towards those arrears into an RESP for the child until the balance of those arrears were paid in full. [ 25 ] The Respondent’s income was found to be $19,242. [ 26 ] The Respondent was to pay 74% and the Applicant 26% of the uninsured medical expenses. [ 27 ] Commencing September 1 st , 2016, the Respondent was to pay 74% of the total cost of monthly braces directly to the dental office as set out in accordance with the payment schedule. [ 28 ] In the interim commencing April 1 st , 2016, the Respondent was to pay $253 per month towards the cost of the child’s braces directly to Riverpark Dental in accordance with the monthly payments

schedule set out by the doctor as submitted in evidence. [ 29 ] Up until September the Respondent was to continue to pay $210 directly to the Applicant for child support. [ 30 ] The parties referred the matter of further retroactive recalculation to a further hearing on September 6 th , 2016.

[ 31 ] Both parties insisted on the recalculation to reflect what they considered their issues regarding childcare overpayments (the Respondent), access cost overpayment (the Applicant) and the lack of annual readjustments (both). Current proceedings [ 32 ] This hearing in September then, is restricted to the issue of any further retroactive recalculation arising out of the fact that: 1. The parties agreed that after October 2012 there was no childcare costs incurred; and, 2. The mother continued throughout, to experience a deduction in her child support as per the order notwithstanding the actual

schedule did not reflect the frequency of visits or costs anticipated in the February 2013 order. [ 33 ] Both parties had notice of the adjourned date and an opportunity to be heard and both were present without counsel on the final date. Childcare costs [ 34 ] The Respondent would like credit for overpayments made to childcare.

Both agree there ought not to have been a deduction for childcare costs after October 2012. [ 35 ] The records of the Nova Scotia Maintenance Enforcement Office and the Alberta Justice Maintenance Enforcement program are before me. [ 36 ] The Nova Scotia records reflect payments from January 29 th , 2013, to and including, April 13 th , 2016. [ 37 ] The Alberta records run from November 17 th , 2011, to and including, April 20 th , 2016. [ 38 ] The collection of childcare costs arises out of the earlier Nova Scotia order wherein childcare costs were awarded at $31.25 twice monthly or $62.50 monthly. [ 39 ] The Alberta records run for a longer period of time and indicate a deduction of $31.25 from November 1 st , 2012, to April 20 th , 2016, for 84 payments amounting to $2,625. [ 40 ] For ease of reference this

Section 7 deduction is shown as a deduction of $31.25 in the Alberta records and as one payment of $31.25 and a second payment as an add-on to child support in the Nova Scotia records. [ 41 ] The collection for childcare shall be terminated. [ 42 ] The Respondent will be given credit for these overpayments in the final analysis. [ 43 ] The Respondent is to be credited with any childcare paid since April 20th, 2016. Retroactive recalculation regarding the access costs [ 44 ] The mother was in Ontario and was not present at the February 5 th , 2013, hearing. She learned of the results afterwards.

Her evidence was not considered. [ 45 ] Based on the Respondent’s representations as to anticipated access and the costs related thereto, the February 5 th , 2013, order anticipated a level of travel that included Christmas, March Break and summer. [ 46 ] The order assigns a value to the cost and ordered the mother to absorb 2/3 of the access costs resulting in a payment (a deduction in the child support table amount to which she would have been entitled based on the Respondent’s income) of $170.

This reduced her child support entitlement to $210.00 monthly. [ 47 ] The order also reflects that the Applicant mother would bear the greater portion of access costs by deducting the amount from the table amount of child support. Proof of past access and receipts [ 48 ] The Respondent has been given ample opportunities to provide up-to-date income statements and proof of access costs. [ 49 ] The Respondent’s only reliable/verified evidence allows me to conclude that access trips took place once a year in 2012, 2013, 2014 and twice in 2015 for a total of five trips.

The Respondent indicates he is unable to pay for the access costs to Nova Scotia since that time in spite of the subsidy provided by the mother through the court order. [ 50 ] He has provided the printed itinerary for five trips with only three of the five receipts attached. [ 51 ] Generally, the trips took place during the summer. However, in 2015 he made the extra trip at March Break. [ 52 ] The Applicant’s evidence is that these trips took place in 2013, 2014 and 2015 the last being in summer 2015.

She also gave evidence that in 2013 she had to commence court action to have her son returned to her care after a summer visit. [ 53 ] The Applicant also provided evidence that the Respondent did not absorb all costs associated with travel; rather he paid the ticket from airport to airport. The Applicant mother was responsible to arrange transportation for the child from London to Toronto and

return. [ 54 ] At the time of the 2013 order the child lived in Alberta and later moved to Ontario. The distance was reduced considerably. Given the lack of receipts I am unable to conclude how that affected costs. [ 55 ] I have averaged the cost of five trips based on the cost of three receipts provided as the only way to obtain an approximate cost of five trips on the best evidence before me. [ 56 ] The total costs of the airfare for the three trips for which there are receipts was $1,893.83. Five (5) trips would have cost $3,156.38 . [ 57 ] The mother lost $170 monthly from her support payments.

She received $170 less than the table amount for 44 months from January 1 st , 2013, to and including, August 2016 when the new order came into play. [ 58 ] That equals a reduction in her child support ordered payments of $7,480. [ 59 ] Her actual contribution based on estimated five trips with airfare costs of $1,893.83 actually made should have cost her $2,083.21 as her 2/3 share according to the court order. [ 60 ] The difference between what she paid and what she should have paid based on actual trips is $5,396.79. [ 61 ] This figure should be reduced based on the Respondent’s overpayment of childcare in the amount of $2,625 resulting in a balance of $2771.79, less any further deductions made for childcare after April 1 st , 2016.

Historical income [ 62 ] I approach this calculation with full awareness of the requirements set out in DBS v. SRG; TAR v. LJW; Henry V. Henry; Hiemstra v. Hiemstra 2006 SCC 37 .

This includes weighing the evidence on the period of retroactive adjustment , the efforts made to seek disclosure and adjustments, the blameworthy conduct, if any, and the benefit to the children as well as the burden of a retroactive award. [ 63 ] In making this retroactive calculation it is more equitable to make a global reassessment rather than a readjustment to one element without considering other factors. [ 64 ] One factor includes the fact that the Respondent has re-partnered and since separated. One child was born of this union. There is no further evidence as to their arrangements.

As of the date of this hearing there are no orders relating to support. The Respondent indicates he has a shared parenting arrangement. [ 65 ] The Applicant has two other children in her care. She testified she would continue on Ontario assistance up to September 2016.

She has completed her Bachelor Degree previously and intends to further her education in September which will bring an end to Ontario assistance. [ 66 ] No adjustments were made since the 2013 order and the current hearing despite the Applicant’s efforts to bring the matter forward through the ISO process. [ 67 ] The Applicant’s income is comprised of social assistance UCB and CTC for a total of $28,740. For

Section 7 expenses her income is $12,240. Her line 150 income for 2012 was $47,673; for 2013 -$24,735 and for 2014 - $19,240. [ 68 ] The 2013 order was based on the 2011 tax returns which apparently disclosed the Respondent’s income as $42,807.

The order came before the Court in June 2012 and was effective January 2013. [ 69 ] The Respondent’s actual for 2012 income was $ 44,881. • The Respondent’s 2013 income of $40,629 would have yielded a table amount of $341.92; • The Respondent’s 2014 of $39,807.71 would have yielded a payment of $334.11; • His 2015 income of $53,653 would have yielded a payment of $451.88; and, • His projected 2016 income of $55,000 yields an income of $463. [ 70 ] Had he paid according to his actual income in accordance with the guidelines, the table amount for 2013 would have been 341.92; for 2014 it would have been $334.11; for 2015 it would have been $451.88 and for 2016 it is $463. [ 71 ] Giving the Respondent credit for his overpayment of $1,007.64 for the years 2013 and 2014 and considering his underpayment in 2015 and 2016 up to the end of August 2016 of $1,526.56 based on the ordered amount of $380 monthly, there is a balance owing in the amount of $518.92. [ 72 ] Therefore, adjusting the monthly award in accordance with the income provided; adjusting for an end to childcare expenses effective October 31 st , 2012, forward, adjusting for the actual trips versus the deductions from her child support award the Respondent owes the Applicant $3,290.71 to clear all past obligations. [ 73 ] This includes the finding of arrears in the August 15 th , 2016, order.

Method of payment [ 74 ] While the Respondent is actively paying the orthodontic bill for his child in the Applicant’s care the collection of arrears shall be suspended except for the $50 towards the RESP toward the arrears of $992.88 he agreed upon in the August 2016 order. [ 75 ] Upon the Applicant providing proof that the Respondent is not paying the orthodontic bill as ordered previously, the suspension on enforcement of the total arrears shall be lifted and the Applicant is free to enforce the arrears resulting from this order though Maintenance Enforcement and in any other legal manner available to her including attachment. [ 76 ] Once the Respondent’s share of the orthodontic bills is paid or proof provided that he is not paying as ordered has been provided the arrears herein shall be enforced in the ordinary manner in full. [ 77 ] Once the orthodontic bill is paid in full the enforcement of the arrears shall be reinstated until the arrears are paid in full. [ 78 ] Should the Respondent refuse to pay as agreed into the RESP the arrears of $992.88 shall be collected with the balance of arrears and paid to the Applicant.

Conclusion [ 79 ] The arrears contained in the August 15 th , 2016, order were found/agreed to be $992.88. The balance of the entire retroactive award inclusive of the $992.88 is $3290.71. [ 80 ] The only recalculation Maintenance Enforcement needs to complete is the further deduction of any childcare costs made after April 1 st , 2016 forward.

Enforcement [ 81 ] The two complicating factors with this case is that the maintenance is still routed through Alberta rather than between Ontario and Nova Scotia. [ 82 ] There are arrears that remain unexplained. [ 83 ] The collection and enforcement of this order shall be routed through the two provinces in which the parties live. Currently, that is Nova Scotia and Ontario. [ 84 ] The collection of child support through Alberta shall cease. [ 85 ] The Applicant shall bear no responsibility for fees associated with enforcement of child support. Legere Sers, J.