A.D.B. v. S.A.M.,

• Jurisdiction: Nova Scotia
• Judge: B. MacDonald, J.
• Neutral Citation: 2006 NSSC 201
• Citation: (2006), 245 N.S.R.(2d) 91 (SC),2006 NSSC 201,245 NSR(2d) 91,(2006), 245 NSR(2d) 91 (SC),245 N.S.R.(2d) 91
• Date: 23 May 2006
• Court: Supreme Court of Nova Scotia (Canada)

A.D.B. v. S.A.M. (2006), 245 N.S.R.(2d) 91 (SC);

    777 A.P.R. 91

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. JN.038

A.D.B. (applicant) v. S.A.M. (respondent)

(SFH D 005693, 1201-54663; 2006 NSSC 201)

Indexed As: A.D.B. v. S.A.M.

Nova Scotia Supreme Court

Family Division

B. MacDonald, J.

June 23, 2006.

Summary:

The parents of a child divorced in 2001. The father agreed to pay child support under the Federal Child Support Guidelines based on the estimated Canadian value of his American income. At the time, the exchange rate was high (1.157021). As the Canadian dollar strengthened against the American dollar, the father's "Canadian" income shrank. Both the father and mother applied to prospectively and retroactively vary child support. The father relied on less "Canadian" income. The mother relied on the "significantly" lower United States income tax rate.

The Nova Scotia Supreme Court, Family Division, allowed the father's application in part, reducing prospective support to adjust for the exchange rate discrepancy. Child support was retroactively decreased only for 2005. The mother's application was dismissed, as the tax rate discrepancy was not "significant".

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 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The Nova Scotia Supreme Court, Family Division, held that the decision whether to retroactively vary child support based on greater or lesser income than anticipated was a discretionary decision that applied equally to awards involving the guideline table amount and the amounts calculated as a result of the application of other guideline provisions - See paragraph 19.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation of - Jurisdiction - A support-paying father submitted that a child support order could not be varied absent a material change in circumstances that was not within the reasonable contemplation of the parties at the time that the order was made - The Nova Scotia Supreme Court, Family Division, held that notwithstanding the amended s. 17(4)(a) of the Divorce Act did not require a "material" change in circumstances, "I have determined that a variation of a child support award based upon provisions of the Guidelines requiring the exercise of discretion does require a finding that the change justifying the variation is 'material'" - See paragraphs 10 to 18.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - A father was ordered to pay child support based on his American income converted into Canadian dollars - The father sought a variation of child support based on lower income resulting from a changing exchange rate and a strengthening Canadian dollar - The Nova Scotia Supreme Court, Family Division, held that the father's "Canadian" income, for the purpose of calculating income for child support purposes, was to be calculated yearly by applying the average yearly exchange rate - See paragraph 24.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - A father was ordered to pay child support based on his American income converted into Canadian dollars - The mother sought an upwards variation of child support based on a significantly lower effective rate of income tax in the United States - At issue was whether the tax rate differential was "significant" and whether consideration was to be also given to cost of living discrepancies, including such things as the extra cost of health care, etc. - The Nova Scotia Supreme Court, Family Division, held that in calculating the father's income, cost of living discrepancies were not to be considered to adjust income - The court held that a tax rate difference of less than 10% was not "significant" and did not warrant an adjustment to the father's income - See paragraphs 31 to 38.

Cases Noticed:

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 10].

Conrad v. Rafuse (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46 (C.A.), refd to. [para. 19].

Lu v. Sun (2005), 235 N.S.R.(2d) 353; 747 A.P.R. 353; 2005 CarswellNS 338 (C.A.), refd to. [para. 19].

Ward v. Ward, [2001] B.C.T.C. 847; 19 R.F.L.(5th) 232 (S.C.), refd to. [para. 25].

L.S.P. v. J.R.P. (2002), 215 Sask.R. 265; 25 R.F.L.(5th) 150 (Q.B.), refd to. [para. 26].

McGouran v. Connelly (2006), 207 O.A.C. 368 (C.A.), refd to. [para. 27].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(4) [para. 13]; sect. 17(6.1) [para. 14].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 14 [para. 16]; sect. 19(1)(c), sect. 20 [para. 22].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Counsel:

A.D.B., applicant, on his own behalf;

Myrna Gillis, for the respondent, S.A.M.

These applications were heard on May 23, 2006, at Halifax, N.S., before B. MacDonald, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on June 23, 2006.