Levasseur v. Ellis, (2004) 223 N.S.R.(2d) 298 (SC)

• Judge: Hall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 19, 2003
• Jurisdiction: Nova Scotia
• Citations: (2004), 223 N.S.R.(2d) 298 (SC);2004 NSSC 90

Levasseur v. Ellis (2004), 223 N.S.R.(2d) 298 (SC);

 705 A.P.R. 298

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. MY.007

Jill Doreen Levasseur (applicant) v. Todd Graham Ellis (respondent)

(SFHD 001085; 2004 NSSC 90)

Indexed As: Levasseur v. Ellis

Nova Scotia Supreme Court

Hall, J.

April 29, 2004.

Summary:

Parents of two children divorced in 1997. The mother had custody, remarried and lived in Ontario. The father also remarried and obtained employment in Nova Scotia as a financial advisor in May 2003 after being terminated by his previous employer. Upon termination of his previous employment, child support was reduced by consent. The mother now applied to vary child support, submitting that income should be imputed to the father because he was under-employed. The mother also sought a retroactive upwards variation in child support on the basis that she agreed to the support reduction based on misinformation as to exactly what the father earned.

The Nova Scotia Supreme Court fixed the father's present income at $58,000 per year for Child Support Guideline purposes ($780 per month support). Should 2004 income not reach that level, the cause would be the father's underemployment to avoid his child support obligation and the court would impute income for 2004 at the 2003 level ($58,000). The court retroactively increased child support for the years 2001 and 2002 to reflect the level of support that would have been paid on the actual income earned by the father.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The mother of two children consented to a reduction in child support for the years 2000 to 2002 based on the father's disclosed income - In 2003, it was learned that the father's income was in fact much higher - The mother sought a retroactive child support increase on the basis that her consent was obtained by deception - The Nova Scotia Supreme Court retroactively increased child support for the years 2001 and 2002 to reflect the amount that would have been awarded had the father correctly disclosed his income - The children needed and continued to need the support and the father had and continued to have the ability to pay - See paragraphs 19 to 30.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - Parents of two children divorced in 1997 - The mother had custody, remarried and lived in Ontario - The father also remarried and obtained employment in Nova Scotia as a financial advisor in May 2003 after being terminated by his previous employer - Upon termination of his previous employment, child support was reduced by consent - The mother now applied to vary child support, submitting that income should be imputed to the father because he was under-employed - The Nova Scotia Supreme Court fixed the father's present income at $58,000 per year for Child Support Guideline purposes ($780 per month support) - Should 2004 income not reach that level, the cause would be the father's under-employment to avoid his child support obligation and the court would impute income for 2004 at the 2003 level ($58,000) - See paragraphs 1 to 18.

Cases Noticed:

Rafuse v. Conrad (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46 (C.A.), refd to. [para. 22].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 50 R.F.L.(4th) 302 (C.A.), refd to. [para. 24].

Counsel:

Paul Thomas, for the applicant;

Todd Graham Ellis, on his own behalf.

This application was heard on December 19, 2003, at Halifax, N.S., before Hall, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 29, 2004.