Antony v. Antony, 2009 NSSC 343

• Judge: Dellapinna, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 25, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSSC 343;(2009), 284 N.S.R.(2d) 322 (SC)

Antony v. Antony (2009), 284 N.S.R.(2d) 322 (SC);

    901 A.P.R. 322

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.074

Manonmani Antony (applicant) v. Savarimuthusosai Antony (respondent)

(SFHOTH-059198; 2009 NSSC 343)

Indexed As: Antony v. Antony

Nova Scotia Supreme Court

Family Division

Dellapinna, J.

November 25, 2009.

Summary:

The applicant sought an order under s. 15.1 of the Divorce Act for both prospective and retroactive child support.

The Nova Scotia Supreme Court, Family Division, allowed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - [See both Family Law - Topic 4001.1 ].

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See both Family Law - Topic 4001.1 ].

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance and awards - Jurisdiction of a court to grant maintenance (incl. automatic increases and reservation re future applications) - A couple divorced - The wife applied for retroactive and prospective child support for their two children, university students aged 19 and 20 - The father now lived in Nova Scotia and the mother in Delaware - No child support order was requested or granted at the time of the divorce - The Nova Scotia Supreme Court, Family Division, stated that the wife's application for child support was therefore an application made by a former spouse pursuant to s. 15.1(1) of the Divorce Act and therefore a "corollary relief proceeding" as opposed to a "variation proceeding" - Section 4(1) of the Act provided that a court in a province had jurisdiction to hear and determine a "corollary relief proceeding" if either former spouse was ordinarily resident in the province at the commencement of the proceeding or if both former spouses accepted the court's jurisdiction - The wife's application was filed with the court in May 2008 and served on the husband shortly after - The husband was then ordinarily resident in Nova Scotia - In any event, both parties had accepted the court's jurisdiction - Therefore, the court had jurisdiction to hear and determine the application - See paragraphs 25 to 28.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A couple divorced in 2005 - In May 2008, the wife applied for retroactive and prospective child support for their two children, university students aged 19 and 20 - No child support order had been requested or granted at the time of the divorce - The Nova Scotia Supreme Court, Family Division, found that the wife unreasonably delayed bringing the application - She could have claimed child support in the divorce proceeding - In 2006, she told the husband she intended to bring a legal action for child support but she did not formalize her application for another two years - She blamed the delay on her then lawyer and although the court accepted her evidence that she made efforts to prompt her lawyer along she nevertheless could have done more (ex., retained the services of another lawyer) - The husband, for the most part, ignored his children's needs and chose to profit at their expense - Both children needed their parents' support and had been dependent on them since they separated - The wife had gone into debt to cover the children's university needs - The children had incurred their own debts - The husband had the funds to meet a retroactive award - The court held that although the wife should have brought her application sooner, the husband willfully avoided contributing to the children's needs at a time when they needed it the most - He should not be allowed to profit from his behaviour - See paragraphs 35 to 58.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A couple divorced in 2005 - In May 2008, the wife applied for retroactive and prospective child support for their two children, university students aged 19 and 20 - No child support order had been requested or granted at the time of the divorce - The Nova Scotia Supreme Court, Family Division, held that the husband received effective notice of the application during a telephone conversation between the parties sometime in 2006 - During that conversation the wife told him that she intended to bring a legal action for child support - However, she did not formalize her application for another two years and actual notice was given to the husband in May 2008 - Between the parties' telephone conversations in mid-2006 and the date of service in 2008 they did not communicate - Taking all of the factors into consideration, including that the husband provided support to one child of between $6,000 and $10,000 between 2006 and 2007, the court found it appropriate to order child support retroactive to and including July 1, 2007 - See paragraphs 59 to 65.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - To children and children defined - A mother applied for child support for two children, university students aged 19 and 20 - The father lived in Nova Scotia and the mother in Delaware - Because the children were Canadian citizens and did not have permanent resident status in the United States, their visas did not permit them to work - The Nova Scotia Supreme Court, Family Division, found that even if their visas did permit them to work, it was highly unlikely that they would have been self-sufficient - They attended school full-time most of the year and frequently took summer courses - They both needed their parents' financial assistance - Since both children were the age of majority they could only be considered "children of the marriage" if they were "unable, by reason of illness, disability or other cause", to withdraw from the charge of their parents or to obtain the necessaries of life - "Other cause" had been held to include attendance at school or university - The court held that at the time the application was initiated both children fit within the definition of "child of the marriage" and both continued to be children of the marriage as of the date of the hearing - See paragraphs 29 to 34.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - To children and children defined - A mother applied for child support for two children, university students aged 19 and 20 - The father lived in Nova Scotia and the mother in Delaware - The husband submitted that whereas the children chose not to have a relationship with him they should be denied child support - The Nova Scotia Supreme Court, Family Division, disagreed - When the husband left for Ontario in 2001, the children were approximately 14 and 13 years old - After he moved, his communication with his family lessened - As of 2003, his communication ceased - He said that his wife asked him not to communicate with her further - If the wife prevented the husband from speaking with the children he had recourse to the court - The reality was that the husband made no real effort to maintain a relationship with his children - It was not accurate to say that the children unilaterally terminated their relationship with their father - See paragraphs 66 to 68.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - A couple divorced - The wife applied for retroactive and prospective child support for their two children - The Nova Scotia Supreme Court, Family Division, found that a prospective order was only needed in relation to the youngest child - The court held that it would be pointless to grant an order requiring the parties to calculate and share proportionately her university related expenses less whatever she was able to contribute herself - The nature of the relationship between the parties would make such an order unworkable - Therefore it was best to fix a specific dollar figure that the husband was to pay - See paragraph 105.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother applied for child support for two children, university students aged 19 and 20 - The father and mother were both doctors - The father worked out of two hospitals and as a result his professional expenses were modest - He incorporated his practice in September 2007 - The Nova Scotia Supreme Court, Family Division, found that the husband's disclosure was incomplete and possibly inaccurate - The court stated that the husband's corporation had no other shareholders or employees - All of its income was a result of the husband's services - The court attributed to the husband as income for child support purposes the company's net income for income tax purposes, plus the employment income paid to the husband - In 2009 the husband had continued in his medical practice in the same fashion as he did in 2008 - In the absence of any explanation as to why his practice would be any less productive in 2009 than in 2008, the court found that the fairest determination of his 2009 income for child support purposes was his 2008 figure - See paragraphs 73 to 81.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother applied for child support for two children, university students aged 19 and 20 - The father lived in Nova Scotia and the mother in Delaware - Both were doctors - Section 19(1)(c) of the Federal Child Support Guideline provided that: "The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;" - Section 20(1) provided that: "Subject to subsection (2), where a spouse is a non-resident of Canada, the spouse's annual income is determined as though the spouse were a resident of Canada." - The Nova Scotia Supreme Court, Family Division, taking into account the circumstances of which it was aware, declined to impute a higher level of income to the wife - No expert evidence was provided comparing the income tax regimes in Delaware and Canada, or the relative standards of living in the two jurisdictions and how they might be reconciled - It was apparent from reviewing the wife's income tax returns that she was entitled to certain deductions in the United States that did not apply to Canadian residents, but on the other hand there were expenses that could be claimed in Canada that could not be claimed in the U.S. (ex., the children's tuition and education expenses could not be transferred to her for tax purposes) - Further, certain expenses in the U.S. tended to be higher (ex., medical insurance) - See paragraphs 82 to 87.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - A mother applied for child support for two children, university students aged 19 and 20 - The father lived in Nova Scotia and the mother in Delaware - Both were doctors - A wife sought the table amount for the two children for the summer months when they were living at home but only a contribution to their university and other expenses that fell under s. 7 of the Guidelines for the remainder of the year - The Nova Scotia Supreme Court, Family Division, stated that "There is nothing in the evidence to convince me that the amount determined under section 3 of the Guidelines is inappropriate simply because the income of the husband exceeded $150,000 per year. However, given that the children are both over the age of majority and are both attending university away from home much of the year, I find that it would be inappropriate to strictly apply subsection 3(1). Because their residence and other costs include, to a large extent, expenses normally expected to be covered by the 'table amount' it would be inappropriate in this case to order that the husband pay both the table amount and the amount determined under section 7. Rather, the approach proposed by the wife is appropriate in these circumstances." - See paragraphs 71 and 91.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where income over $150,000 - [See Family Law - Topic 4045.11 ].

Cases Noticed:

Arsenault v. Arsenault (2006), 242 N.S.R.(2d) 340; 770 A.P.R. 340 (C.A.), refd to. [para. 28].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, appld. [para. 30].

Yaschuck v. Logan (1992), 110 N.S.R.(2d) 278; 299 A.P.R. 278 (C.A.), refd to. [para. 32].

Martell v. Height (1994), 130 N.S.R.(2d) 318; 367 A.P.R. 318 (C.A.), refd to. [para. 33].

Marsland v. Gibb, [2000] B.C.T.C. 194; 5 R.F.L.(5th) 406; 2000 BCSC 471, refd to. [para. 66].

Bitterman v. Weaver, [2002] N.B.R.(2d) (Supp.) No. 1; 2002 NBQB 9 (Fam. Div.), refd to. [para. 66].

Law v. Law (1986), 2 R.F.L.(3d) 458 (Ont. H.C.), refd to. [para. 66].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 90].

Counsel:

D. Penny, for Manonmani Antony;

P. Power, for Savarimuthusosai Antony.

This application was heard in Halifax, Nova Scotia, on October 19 and 20, 2009, by Dellapinna, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on November 25, 2009.