Levesque v. Meade, (2010) 363 N.B.R.(2d) 183 (FD)

• Judge: Athey, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 23, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 363 N.B.R.(2d) 183 (FD);2010 NBQB 270

Levesque v. Meade (2010), 363 N.B.R.(2d) 183 (FD);

    363 R.N.-B.(2e) 183; 936 A.P.R. 183

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Temp. Cite: [2010] N.B.R.(2d) TBEd. AU.022

Renvoi temp.: [2010] N.B.R.(2d) TBEd. AU.022

Johane Levesque (respondent/moving party) v. Jeffrey Meade (petitioner/respondent on motion)

(FDF-344-09; 1301-54995; 2010 NBQB 270; 2010 NBBR 270)

Indexed As: Levesque v. Meade

Répertorié: Levesque v. Meade

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Athey, J.

August 23, 2010.

Summary:

Résumé:

A mother moved for a retroactive and prospective variation of the child support provisions of a corollary relief order and a contribution to special expenses. The issues raised included the father's income for child support purposes, whether there had been a material change in circumstances, the mother's income for the purpose of sharing special expenses, what constituted special expenses, and what the father should contribute to special expenses.

The New Brunswick Court of Queen's Bench, Family Division, determined the issues.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - A father was required to pay Guideline support for his four children pursuant to an October 2006 corollary relief order - In May 2007, the mother broached the subject of increased support - The father had begun negotiations with a new prospective employer and refused to renegotiate support - The father filed copies of his income tax returns with the court and in 2006, 2007 and 2008 he explained why he felt his line 150 total income should not be used for child support purposes - His position was incorrect for two of those years - The mother had not known that she had access to the tax returns - The father voluntarily increased his payment in accordance with his contract income when he changed jobs in 2007 and again in 2010 - He assumed that the increases were agreeable to the mother when he heard nothing to the contrary - Although he had not realized it, after December 2007 the mother had actively sought to retain legal aid counsel to pursue increased support - There was no evidence of steps taken by her counsel or what his instructions were until she filed a motion in May 2009 for a retroactive variation of support - From 2005 to 2007, the father had access costs of approximately $35,100 - Both parties had undergone financial distress - The New Brunswick Court of Queen's Bench, Family Division, stated that a retroactive variation was warranted - A variation retroactive to the original order, would result in a total $7,273 owing - Such an award would cause the father hardship and impact his fifth child who was from a second marriage - The court varied the support payable retroactive to January 2008 based on its determination of the father's Guideline income - The award, after credit for any increased voluntary payments, was to be retired by monthly payments of $200 - See paragraphs 8 to 53.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4045.3

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Child care expenses - A mother of four children (Emilie, age 7; Sophie, age 9; Julie, age 12; and Marie, age 14) obtained employment in April 2009 - She placed Emilie and Sophie in daycare - During the summer, she placed all four children in summer camps despite the father having advised her that he would not pay for Marie - In the fall she registered Emilie and Sophie in an after school program - The mother claimed a pro rata contribution to the child care expenses - The father asserted that his contribution should be limited to the costs associated with having Emilie in after school care from September to December 2009 and that expenses incurred earlier should be considered as a retroactive claim - The New Brunswick Court of Queen's Bench, Family Division, held that the $1,260 paid for ½ of April to June for Emilie and Sophie's daycare was reasonable and necessary and was to be shared proportionately - The $2,161.46 paid for their after school care from January to April 2010 and like amounts spent to the end of the school year in June 2010 met the requirements of s. 7(1)(a) of the Guidelines and were to be proportionately shared - The father was also responsible for his pro rata share of the $2,550 paid for the summer camp for Emilie, Sophie and Julie - The court denied the claim for Marie where she did not require care, particularly where she had taken a babysitting course and was described as responsible - The court rejected an assertion that it was unnecessary for Emilie and Sophie to have attended summer camps since Julie and Marie could have cared for them - It was not reasonable to leave that responsibility with Julie and Marie - With respect to the summer of 2010, the court found that neither Marie nor Julie would require further child care - Further, after school child care would not be required for Sophie as Marie and Julie would be capable of supervising her for the required 1.5 hours - Child care would continue to be necessary for Emilie and the father was to pay his pro rata share of the expense - See paragraphs 58 to 86.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A mother claimed a pro rata contribution to the uninsured portion of the parties' four children's 2007 dental expenses ($298) and to orthodontic expenses ($918) - The dental expenses were incurred for services such as examinations, cleaning and fluoride treatments - The New Brunswick Court of Queen's Bench, Family Division, held that the expenses were reasonable and necessary for the children's health - The court concluded that $198 of the unpaid dental expense was to be shared by the parties on a pro rata basis - The court denied the claim for a pro rata share of the orthodontic expense where the mother had not established either the necessity or reasonableness of the expenses - See paragraphs 56 and 57.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A mother claimed a pro rata contribution to the expense of orthodontic work for one of the parties' children (Sophie) and she proposed that a local orthodontist start the work right away - The mother introduced the orthodontist's standard information form into evidence - The starting date of active treatment was marked ASAP - The estimated fee was $5,700 plus LAB - At the father's request, Sophie was examined by a second orthodontist - A letter signed by the second orthodontist's treatment co-ordinator was placed in evidence - The letter provided that they would call Sophie in nine months to assess time for treatment - No estimate of the cost was provided - The father classified the expense as a luxury that he would like to provide, but could not afford - Neither orthodontist was called to give evidence - The New Brunswick Court of Queen's Bench, Family Division, noted the conflicting opinions about when treatment should begin and stated that the court had no means to resolve the issue - Also, neither document excluded cosmetic reasons as the purpose of the treatment - The court concluded that the mother had not established the necessity of the expense and denied the claim - See paragraphs 87 to 90.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother moved for a retroactive and prospective variation of the child support provisions of a corollary relief order and a contribution to special expenses - In 2006, as a result of an arbitral award, the father received retroactive pay dating back several years - He asserted that this non-recurring amount should be deducted from his 2006 income for child support purposes (Federal Child Support Guidelines, s. 17) - The New Brunswick Court of Queen's Bench, Family Division, rejected the father's assertion - Section 16 of the Guidelines stipulated that subject to ss. 17 to 20, annual income was determined using the sources of income set out under the heading "total income" in the T1 General, subject to adjustments which had no application here - Retroactive pay was one of those sources and was included as income for child support purposes - The father did not meet the high onus of establishing that the amount should be excluded from his income - See paragraphs 9 to 13.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother moved for a retroactive and prospective variation of the child support provisions of a corollary relief order and for a contribution to special expenses - The father's total income in his notice of assessment for 2007 included an amount for severance pay - The father asserted that the non-recurring amount should be deducted from his income for child support purposes (Federal Child Support Guidelines, s. 17) - The New Brunswick Court of Queen's Bench, Family Division, rejected the assertion - See paragraph 14.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother moved for a retroactive and prospective variation of the child support provisions of a corollary relief order and for a contribution to special expenses - The father's total income in his notice of assessment for 2008 included $18,127.45 which was a portion of his pension plan with the federal public service - The $18,127.45 was placed into an RRSP in the name of his current spouse - He had retained the pension as part of the division of property between the parties - The New Brunswick Court of Queen's Bench, Family Division, stated that although there was no specific evidence respecting what portion of the pension accumulated after the parties' separation, it was fair and reasonable that the $18,127.45, which had not been expended by the father, be deducted from his 2008 income for child support purposes - See paragraphs 15 and 16.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The New Brunswick Court of Queen's Bench, Family Division, concluded that it was appropriate to include contributions by the husband's employer to a "group RRSP" (3% of his 2010 base salary) in the husband's income for the purpose of determining Guideline child support - See paragraph 18.

Droit de la famille - Cote 4001.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances rétroactives - [Voir Family Law - Topic 4001.1 ].

Droit de la famille - Cote 4017

Divorce - Mesures accessoires - Ordonnances alimentaires - Modification d'une pension alimentaires ou d'une somme global - [Voir Family Law - Topic 4017 ].

Droit de la famille - Cote 4045.3

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur le pensions alimentaires pour enfants (y compris les cas hors-divorce) - Frais de garde d'enfant - [Voir Family Law - Topic 4045.3 ].

Droit de la famille - Cote 4045.4

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur le pensions alimentaires pour enfants (y compris les cas hors-divorce) - Dépenses spéciales ou extraordinaires - [Voir Family Law - Topic 4045.4 ].

Droit de la famille - Cote 4045.5

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

Cases Noticed:

J.H.A. v. C.G.A., 2008 CarswellMan 126 (Q.B.), folld. [para. 10].

Hamonic v. Gronvold, [1999] Sask.R. Uned. 5; 1999 CarswellSask 29 (Q.B. Fam. Div.), folld. [para. 10].

Gibson v. Gibson, 2002 CarswellOnt 1647 (Sup. Ct.), folld. [para. 11].

Gagnier v. Gagnier, 2002 CarswellOnt 5056 (Sup. Ct.), folld. [para. 12].

Steeves v. English, [2004] A.R. Uned. 94; 2004 CarswellAlta 736 (C.A.), folld. [para. 14].

MacDonald v. MacDonald (1997), 209 A.R. 178; 160 W.A.C. 178 (C.A.), folld. [para. 14].

Scory v. Scory (1999), 180 Sask.R. 152; 205 W.A.C. 152 (C.A.), folld. [para. 14].

Miller v. Volk, 2009 CarswellOnt 4586 (Sup. Ct.), folld. [para. 14].

Loran v. Loran (2009), 352 Sask.R. 15; 2009 CarswellSask 834 (Q.B.), folld. [para. 14].

A.L. v. M.M. (2009), 351 N.B.R.(2d) 86; 904 A.P.R. 86; 2009 CarswellNB 541 (Fam. Div.), folld. [para. 14].

Brown v. Brown (2010), 353 N.B.R.(2d) 323; 910 A.P.R. 323; 2010 CarswellNB 30 (C.A.), folld. [para. 14].

Jenson v. Jenson, [1998] B.C.T.C. Uned. 765 (S.C.), 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 CarswellAlta 976 (S.C.C.), appld. [para. 22].

Scott v. Scott (2004), 278 N.B.R.(2d) 61; 728 A.P.R. 61; 2004 CarswellNB 588 (C.A.), refd to. [para. 40].

Lee v. Lee (1998), 167 Nfld. & P.E.I.R. 176; 513 A.P.R. 176; 1998 CarswellNfld 222 (C.A.), refd to. [para. 40].

R.E.L. v. S.M.L. (2007), 409 A.R. 57; 402 W.A.C. 57; 2007 CarswellAlta 690 (C.A.), refd to. [para. 40].

Lewi v. Lewi (2006), 209 O.A.C. 344; 2006 CarswellOnt 2892 (C.A.), refd to. [para. 71].

S.L.C. v. K.G.C., [2010] B.C.T.C. Uned. 349; 2010 CarswellBC 647 (S.C.), refd to. [para. 71].

J.A.M. v. D.L.M. (2006), 306 N.B.R.(2d) 35; 793 A.P.R. 35; 2006 CarswellNB 593 (Fam. Div.), refd to. [para. 71].

MacKinnon v. MacKinnon (2005), 199 O.A.C. 353; 2005 CarswellOnt 1536 (C.A.), refd to. [para. 71].

Tapuska v. Tapuska, [2009] A.R. Uned. 808; 2009 CarswellAlta 2024 (Q.B.), refd to. [para. 71].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2009), p. 244 [para. 81].

Counsel:

Avocats:

Misty Matthews-Emery, for respondent/moving party;

Ferne M. Ashford, for petitioner/respondent on motion.

This motion was heard on April 22 and 27, 2010, by Athey, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following decision on August 23, 2010.