D.M.A. v. M.S. et al., (2008) 343 N.B.R.(2d) 264 (FD)

• Jurisdiction: New Brunswick
• Judge: Baird, J.
• Neutral Citation: 2009 NBQB 4
• Citation: (2008), 343 N.B.R.(2d) 264 (FD),2009 NBQB 4,343 NBR(2d) 264,(2008), 343 NBR(2d) 264 (FD),343 N.B.R.(2d) 264
• Date: 17 December 2008
• Court: Court of Queen's Bench of New Brunswick (Canada)

D.M.A. v. M.S. (2008), 343 N.B.R.(2d) 264 (FD);

    343 R.N.-B.(2e) 264; 881 A.P.R. 264

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Temp. Cite: [2009] N.B.R.(2d) TBEd. FE.017

Renvoi temp.: [2009] N.B.R.(2d) TBEd. FE.017

D.M.A. (applicant) v. M.S. (respondent) and Attorney General of New Brunswick (intervenor/respondent)

(FDSJ-2621-92; 2009 NBQB 4; 2009 NBBR 4)

Indexed As: D.M.A. v. M.S. et al.

Répertorié: D.M.A. v. M.S. et al.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Baird, J.

December 17, 2008.

Summary:

Résumé:

The applicant sought a variation of a 2004 court order for child support for one child (L.) as well as contribution toward dental treatments and extracurricular activities. The respondent was a general medical practitioner. He incorporated a professional corporation when he began his medical practice. As a result of the proceedings, the applicant received the respondent's income tax returns from 2004 to 2007, and it was apparent that the income the respondent had available to him at the time the 2004 consent order was executed was much greater than what the applicant believed. The applicant sought a retroactive order on that basis. The respondent was married and had three children of that marriage. He raised a constitutional challenge to the Federal Child Support Guidelines, arguing discrimination on the basis of marital status.

The New Brunswick Court of Queen's Bench, Family Division, rejected the respondent's constitutional challenge to the Guidelines. The court found that the respondent's income for child support purposes was to include his employment income, other income as disclosed on his T1 General income tax return, his dividend income and pre-tax income of the corporation (total of $364,760.89). The court ordered child support of $2,811 monthly, retroactive to May 2006 when the applicant first advanced her request for a change in support to the respondent's counsel. The court found that the uninsured medical and dental expenses that exceeded $100 per annum qualified for reimbursement and would be shared pro rata between the parties. There was no evidence to persuade the court that L.'s cheerleading, volleyball and other athletic activities qualified as "extraordinary" extra-curricular activities qualifying for reimbursement pursuant to the Guidelines and no order was made with respect to those expenses.

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.

Civil Rights - Topic 921

Discrimination - Marital status - General - [See Civil Rights - Topic 5666.1 ].

Civil Rights - Topic 5666.1

Equality and protection of the law - Particular cases - Child support legislation - The applicant sought a variation of support for one child, L. - The respondent had married after L.'s birth and had three children of that marriage - The respondent raised a constitutional challenge to the Federal Child Support Guidelines - The respondent submitted that if all four children resided with the applicant, his child support obligation per child would be markedly different - He submitted that this difference created a distinction based on his marital status, i.e., because he was married and had three children, they were not considered in the support given to L. and therefore the financial support reserved for them was significantly less than if they were considered together with L. for the purposes of the Guidelines Table - The respondent submitted that the children of his marriage were less worthy of consideration as they had not been considered and were being punished financially - The New Brunswick Court of Queen's Bench, Family Division, held that there was no evidence to support the argument of discrimination based on marital status - Whether the respondent was married or unmarried, the Guidelines required him to pay the same amount - There was no evidence to support the respondent's argument that his children had been punished or had not received an equivalent level of support or benefits in his household compared to the applicant's household - The Guidelines did not draw a distinction between the respondent as a payee parent and others who were married or not married - The Guidelines treated payor spouses/parents the same - See paragraphs 34 to 68.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - The applicant sought a variation of a 2004 court order for child support for one child (L.) - The respondent was a general medical practitioner - He incorporated a professional corporation when he began his medical practice - As a result of the proceedings, the applicant received the respondent's income tax returns from 2004 to 2007, and it was apparent that the income the respondent had available to him at the time the 2004 consent order was executed was much greater than what the applicant believed - The applicant sought a retroactive order on that basis - The New Brunswick Court of Queen's Bench, Family Division, found that the respondent's income for child support purposes was a total of $364,760.89 - The court ordered child support of $2,811 monthly, retroactive to May 2006 when the applicant first advanced her request for a change in support to the respondent's counsel - The court stated that it had not been supplied with any clear or compelling reason why it should depart from the Guideline amount - See paragraphs 105 to 116.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The applicant sought a variation of child support - The respondent held a professional corporation through his medical practice, from which he took draws on an annual basis - The respondent maintained significant retained earnings in the professional corporation for retirement purposes - They were not needed for operational purposes - The New Brunswick Court of Queen's Bench, Family Division, held that the respondent's income for child support purposes was to include his employment income, other income as disclosed on his T1 General income tax return, his dividend income and pre-tax income of the corporation for a total of $364,760.89 - See paragraphs 117 to 135.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The New Brunswick Court of Queen's Bench, Family Division, stated that "In New Brunswick at least, it is fair to say that the weight of judicial authority is to apply section 18 [of the Guidelines], add retained earnings to the income available for child support purposes absent any legitimate business use argument from the payor owner, which as I said previously, is the responsibility and onus of the payor owner" - See paragraph 126.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Where income over $150,000 - [See Family Law - Topic 2353 ].

Droit de la famille - Cote 2353

Entretien des épouses et des enfants - Entretien des enfants - Rétroactivité - [Voir Family Law - Topic 2353 ].

Droit de la famille - Cote 4045.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices (y compris les cas hors-divorce) - Calcul ou attribution du revenu - [Voir Family Law - Topic 4045.5 ].

Droit de la famille - Cote 4045.12

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices (y compris les cas hors-divorce) - Revenu dépassant 150 000 $ - [Voir Family Law - Topic 4045.12 ].

Droits et libertés - Cote 921

Discrimination - ༄༅tat civil y compris l'état matrimonial - Généralités - [Voir Civil Rights - Topic 921 ].

Droits et libertés - Cote 5666.1

༄༅galité et protection égale de la loi - Cas particuliers - Législation sur les pensions alimentaires pour enfants - [Voir Civil Rights - Topic 5666.1 ].

Cases Noticed:

H.C. v. New Brunswick (Minister of Family and Community Services) (2003), 263 N.B.R.(2d) 106; 689 A.P.R. 106; 2003 NBQB 196, refd to. [para. 8].

Newman v. Tibbetts (2005), 283 N.B.R.(2d) 63; 740 A.P.R. 63; 2005 NBCA 37, refd to. [para. 10].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 38].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 38].

Giroux-Gagné et autres v. Nouveau-Brunswick, [2000] N.B.R.(2d) Uned. 54 (C.A.), refd to. [para. 39].

Charlebois v. Nouveau-Brunswick et al. (2002), 252 N.B.R.(2d) 335; 658 A.P.R. 335 (T.D.), refd to. [para. 39].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, appld. [para. 42].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 46].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 46].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 49].

Reference Re Family Services Act Amendment Act (1994), 157 N.B.R.(2d) 241; 404 A.P.R. 241 (C.A.), refd to. [para. 57].

R. v. Brown (A.R.R.) (1993), 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163; 83 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 59].

A.A. v. B.B. et al. (2007), 220 O.A.C. 115; 2007 CarswellOnt 2 (C.A.), refd to. [para. 81].

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; 61 Alta. L.R.(4th) 1; 2006 SCC 37, refd to. [para. 83].

Hiemstra v. Hiemstra - see D.B.S. v. S.R.G.

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201; 50 R.F.L.(4th) 228, consd. [para. 87].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 90].

S.R.M. v. I.A.M., [2001] B.C.T.C. 713; 2001 BCSC 713 (S.C. Master), refd to. [para. 93].

S.R.M. v. I.A.M. (2002), 162 B.C.A.C. 285; 264 W.A.C. 285; 97 B.C.L.R.(3d) 28; 2002 BCCA 46, refd to. [para. 95].

Canada v. Canada-Somers (2008), 228 Man.R.(2d) 106; 427 W.A.C. 106; 2008 MBCA 59, refd to. [para. 96].

R.E.L. v. S.M.L. (2007), 409 A.R. 57; 402 W.A.C. 57; 76 Alta. L.R.(4th) 47; 2007 ABCA 169, refd to. [para. 112].

Chalifoux v. Chalifoux (2008), 425 A.R. 361; 418 W.A.C. 361; 2008 ABCA 70, refd to. [para. 112].

Esligar v. Esligar (1999), 211 N.B.R.(2d) 188; 539 A.P.R. 188; 1999 CarswellNB 132 (C.A.), refd to. [para. 112].

Newman v. Tibbetts (2004), 272 N.B.R.(2d) 337; 715 A.P.R. 337; 2004 NBQB 81, refd to. [para. 112].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 1999 CarswellBC 1402; 1999 BCCA 393, refd to. [para. 114].

Baum v. Baum (1999), 27 B.C.T.C. 219; 182 D.L.R.(4th) 715 (S.C.), refd to. [para. 117].

Wildman v. Wildman (2006), 215 O.A.C. 239 (C.A.), refd to. [para. 118].

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 CarswellNB 59; 2008 NBCA 87, refd to. [para. 120].

Hebb v. Hebb (1991), 103 N.S.R.(2d) 147; 282 A.P.R. 147 (C.A.), refd to. [para. 121].

MacElwain v. MacElwain (2006), 294 N.B.R.(2d) 111; 765 A.P.R. 111; 2006 NBQB 19 (Fam. Div.), refd to. [para. 121].

Kowalewich v. Kowalewich (2001), 155 B.C.A.C. 143; 254 W.A.C. 143; 2001 BCCA 450, refd to. [para. 123].

Vance v. Kovacs (2005), 295 N.B.R.(2d) 165; 766 A.P.R. 165 (Q.B. Fam. Div.), refd to. [para. 125].

Brophy v. Brophy, [2002] O.T.C. Uned. 779 (Sup. Ct.), refd to. [para. 128].

Nesbitt v. Nesbitt (2001), 156 Man.R.(2d) 238; 246 W.A.C. 238; 2001 MBCA 113, refd to. [para. 130].

Verway v. Verway (2006), 207 Man.R.(2d) 41; 2006 MBQB 149, refd to. [para. 130].

O'Neil v. O'Neil, [2007] O.J. No. 1706, refd to. [para. 130].

MacPhee v. Ryan, [2002] N.S.J. No. 574 (S.C.), refd to. [para. 131].

Earle v. Earle (1999), 3 B.C.T.C. 334; 1999 CarswellBC 437 (S.C.), refd to. [para. 145].

Starr v. Starr, [2008] B.C.T.C. Uned. E06; 2008 CarswellBC 2349; 2008 BCSC 1519 (S.C.), refd to. [para. 146].

C.B. v. M.P.K., [2006] N.B.R.(2d) Uned. 104; 2006 NBCA 72, refd to. [para. 147].

Bowes v. Mattie (2003), 258 N.B.R.(2d) 191; 676 A.P.R. 191; 2003 NBQB 80, refd to. [para. 147].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [para. 40].

Authors and Works Noticed:

MacDonald, James C., and Wilton, Ann C., Annotated Child Support Guidelines: Law and Practice (2nd Ed.), generally [para. 82].

Counsel:

Avocats:

Corry A. Toole, for the applicant;

Jillian E. Jordan, for the respondent;

Richard Williams, for the intervenor via teleconference.

This application was heard on November 25 and 26, 2008, before Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following oral decision on December 17, 2008.