J.D. v. J.C., 2016 NSSC 38

• Judge: Forgeron, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 17, 2015
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 38;(2016), 370 N.S.R.(2d) 50 (SC)

J.D. v. J.C. (2016), 370 N.S.R.(2d) 50 (SC);

    1165 A.P.R. 50

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.002

J.D. (applicant) v. J.C. (respondent)

(Sydney No. 43290; 2016 NSSC 38)

Indexed As: J.D. v. J.C.

Nova Scotia Supreme Court

Family Division

Forgeron, J.

January 29, 2016.

Summary:

A mother applied for table child support for two children (born in 2004 and 2007), on a retroactive and prospective basis. She also asked the court to impute income to the father.

The Nova Scotia Supreme Court, Family Division, imputed income to the father of $48,000 annually. The court ordered the father to pay ongoing support in the table amount and retroactive child support of $26,796, payable at a rate of $175 per month.

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 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - A mother applied for child support for two children and asked the court to impute income to the father - The Nova Scotia Supreme Court, Family Division, imputed income to the father of $48,000 annually - The court considered, inter alia, that: the father had skills to earn more than a nominal income; he quit his job with Xerox in 2014 to help his father-in-law liquidate his business assets and to conduct an investigation on his father in-law's behalf; he stated that he received no remuneration for his work and that his sole source of income was EI benefits; in 2013, the father earned $48,050 as a technical support worker employed on a full-time basis by Xerox; and his lifestyle was not in keeping with a person who earned a nominal income - The father did not prove that his reasonable health needs prevented him from working - See paragraphs 11 to 21.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - A mother sought table child support for two children, on a retroactive and prospective basis - She also asked the court to impute income to the father - The Nova Scotia Supreme Court, Family Division, imputed income of $48,000 annually and ordered ongoing support in the table amount ($715/month) - The court also ordered the father to pay retroactive child support of $26,796, at a rate of $175/month - In ordering retroactive support, the court considered that: the mother sought child support from the father as early as 2012 in keeping with their earlier discussions to resolve issues amicably; instead of providing child support, he threatened her by stating that she would regret making a court application; the mother filed the court application in June 2013; and she should not be penalized, nor should the children, because of the systemic delay in having her application processed in an efficient and timely fashion - Further, the father engaged in blameworthy conduct by: threatening to make life difficult for the mother if she proceeded to court; seeking to delay the application by seeking paternity tests and then failing to follow through when each of two paternity testing orders issued; failing to disclose financial information until the day of the hearing; and failing to provide any support for the children since the parties' 2011 separation - The children would benefit from retroactive support where they did without extras because of the mother's financial circumstances and she would use it for their benefit, including paying for special expenses - The court rejected the father's hardship claim; any hardship was self-induced - Further, the retroactive claim would be payable in monthly instalments, alleviating potential financing difficulties - See paragraphs 22 to 27.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See Family Law - Topic 2211 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See Family Law - Topic 2210 ].

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - [See Family Law - Topic 2211 ].

Cases Noticed:

Baker-Warren v. Denault (2009), 277 N.S.R.(2d) 271; 882 A.P.R. 271; 2009 NSSC 59, refd to. [para. 14].

Parsons v. Parsons, [2012] N.S.R.(2d) Uned. 173; 2012 NSSC 239 (Fam. Div.), refd to. [para. 15].

Drygala v. Pauli (2002), 164 O.A.C. 241 (C.A.), refd to. [para. 16].

St-Jules v. St-Jules (2012), 321 N.S.R.(2d) 133; 1018 A.P.R. 133; 2012 NSCA 97, refd to. [para. 18].

Ferguson v. Ferguson, [2014] N.S.R.(2d) Uned. 198; 2014 NSSC 350, refd to. [para. 18].

Deveaux v. Deveaux, [2013] N.S.R.(2d) Uned. 171; 2013 NSSC 246, refd to. [para. 18].

Wetzel v. O'Quinn (2013), 334 N.S.R.(2d) 54; 1059 A.P.R. 54; 2013 NSSC 301, refd to. [para. 18].

Mitansky v. Mitansky (2000), 258 A.R. 188; 2000 ABQB 80, refd to. [para. 18].

MacDonald v. Pink (2011), 311 N.S.R.(2d) 31; 985 A.P.R. 31; 2011 NSSC 421, refd to. [para. 18].

McKinnon v. Serroul, [2011] N.S.R.(2d) Uned. 242; 2011 NSSC 386, refd to. [para. 18].

MacGillivary v. Ross (2008), 271 N.S.R.(2d) 37; 867 A.P.R. 37; 2008 NSSC 339 (Fam. Div.), refd to. [para. 18].

Pamma v. Pamma, 1999 CarswellBC 2227, refd to. [para. 18].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 24].

Counsel:

Candee McCarthy, for the applicant;

J.C., on his own behalf.

This application was heard in Sydney, N.S., on December 17, 2015, by Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on January 29, 2016.