MacKay v. Bucher, 2001 NSCA 120

• Judge: Bateman, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 01, 2001
• Jurisdiction: Nova Scotia
• Citations: 2001 NSCA 120;(2001), 196 N.S.R.(2d) 293 (CA)

MacKay v. Bucher (2001), 196 N.S.R.(2d) 293 (CA);

 613 A.P.R. 293

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. SE.007

Shawna Kathleen MacKay (appellant) v. Christian Werner Bucher (respondent)

(CA 169790; 2001 NSCA 120)

Indexed As: MacKay v. Bucher

Nova Scotia Court of Appeal

Bateman, Saunders and Oland, JJ.A.

August 30, 2001.

Summary:

Unmarried parents negotiated a child support agreement respecting a child born in 1990. It was incorporated into a consent order under the Family Maintenance Act (N.S.). The mother received sole custody without access by the father. The father paid a total of $15,000. The mother and child moved to British Columbia. In March 2000, the B.C. Provincial Court provisionally ordered support in accordance with the Child Support Guidelines (B.C.). The order was sent to Nova Scotia for confirmation under the Maintenance Orders Enforcement Act. The trial judge declined to confirm the provisional order but remitted the matter to the B.C. Provincial Court to obtain further evidence with respect to special expenses. The mother appealed.

The Nova Scotia Court of Appeal allowed the appeal, varied child support to conform with the Guidelines and remitted the matter to the Provincial Court of British Columbia for further evidence on special expenses.

Family Law - Topic 2360.1

Maintenance of wives and children - Main­tenance of children - Variation of award or agreement - Unmarried parents negotiated a child support agreement in 1990 - It was incorporated into a consent order under the Family Maintenance Act (N.S.) - The father paid a total of $15,000 - The mother and child moved to British Columbia - In March 2000, the B.C. Provincial Court provisionally ordered support in ac­cordance with the Child Support Guide­lines (B.C.) - A trial judge in Nova Scotia declined to confirm the provisional order - He found, inter alia, that there was no material, unforeseen change in circum­stances - The mother appealed - The Nova Scotia Court of Appeal held that the re­quirement of a "material change in circum­stances" did not apply to a pre-Guideline agreement or consent order - The trial judge erred at law in requiring that there be a material change in circumstances in addition to the implementation of the Guidelines - See paragraphs 31 to 36.

Family Law - Topic 2360.1

Maintenance of wives and children - Main­tenance of children - Variation of award or agreement - Unmarried parents' 1990 child support agreement was incorporated into a consent order under the Maintenance and Custody Act (N.S.) - The father paid a total of $15,000 - The mother and child moved to British Columbia - In March 2000, the B.C. Provincial Court pro­visionally ordered support in ac­cordance with the Child Support Guidelines (B.C.) - A trial judge in Nova Scotia declined to confirm the provisional order - He found, inter alia, that the appli­cation of the Child Maintenance Guidelines (N.S.) would be inequitable because special provision (the lump sum order) had already been made for the child (Main­tenance and Custody Act, s. 10(3)) - The Nova Scotia Court of Appeal allowed the mother's appeal - A lump sum payment for child support con­stituted a "special pro­vision" (Maintenance and Custody Act, s. 10(3)(a)) - However, the application of the Guidelines would not result in an amount of child maintenance that was inequitable given the special pro­vision (s. 10(3)(b)) - The lump sum pay­ment did not remotely compare to the basic Guideline support - See paragraphs 37 to 53.

Family Law - Topic 2360.1

Maintenance of wives and children - Main­tenance of children - Variation of award or agreement - Section 10(3) of the Main­tenance and Custody Act provided that a judge could order maintenance that dif­fered from the Guideline amount where: (1) the order or agreement contained a special provision which directly or indi­rectly benefitted the child; and (2) the application of the Guidelines would result in an amount of child maintenance that was inequitable - The Nova Scotia Court of Appeal stated that "The test is not one of general inequity, but a result that would produce an amount of child support that is 'inequitable'. In my view, this section is so worded to avoid exposing a payor to dupli­cative amounts of child support, re­sulting in excessive awards. For example, where the amount of child support that would re­sult from application of the Guidelines, when added to that which has already been paid by agreement, would result in the payor effectively paying sig­nificantly in excess of the Guideline amount 'inequi­tability' may be found to arise." - See paragraph 42.

Family Law - Topic 2360.1

Maintenance of wives and children - Main­tenance of children - Variation of award or agreement - Section 10(3) of the Main­tenance and Custody Act provided that a judge could order maintenance that dif­fered from the Guideline amount where: (1) the order or agreement contained a special provision which directly or indi­rectly benefitted the child; and (2) the application of the Guidelines would result in an amount of child maintenance that was inequitable - The Nova Scotia Court of Appeal stated that there was no incon­sistency in a court refusing to vary an agreement providing for support exceeding the Guideline amount, yet increasing a lower award to the Guideline level - See paragraph 50.

Family Law - Topic 2384

Maintenance of wives and children - Variation of - Grounds - [See first and second Family Law - Topic 2360.1 ].

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - General (incl. interpretation) - [See all Family Law - Topic 2360.1 ].

Infants - Topic 2564.1

Parentage of children - Support and other claims - Award - Considerations - Support table - [See all Family Law - Topic 2360.1 ].

Infants - Topic 2566

Parentage of children - Support and other claims - Award - Variation - [See all Family Law - Topic 2360.1 ].

Words and Phrases

Special provisions - The Nova Scotia Court of Appeal discussed the meaning of these words as used in s. 10(3)(a) of the Maintenance and Custody Act (formerly the Family Maintenance Act), R.S.N.S. 1989, c. 160 - See paragraphs 38 to 40.

Cases Noticed:

Edwards v. Edwards (1994), 133 N.S.R.(2d) 8; 380 A.P.R. 8; 5 R.F.L.(4th) 321 (C.A.), refd to. [para. 13].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81; [1987] 4 W.W.R. 481; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 14].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699; 17 C.P.C.(2d) 104, refd to. [para. 14].

Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; 2 Y.R. 246; [1987] 4 W.W.R. 522; 7 R.F.L.(3d) 274; 38 D.L.R.(4th) 735; 14 B.C.L.R.(2d) 186, refd to. [para. 14].

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. 15].

Gillis v. Soulis (1990), 101 N.S.R.(2d) 91; 275 A.P.R. 91; 30 R.F.L.(3d) 105 (C.A.), refd to. [para. 17].

Campbell v. Wall (1993), 127 N.S.R.(2d) 383; 355 A.P.R. 383 (T.D.), refd to. [para. 20].

Cane v. Newman, [1998] O.J. No. 1776 (Gen. Div.), refd to. [para. 38].

Hall v. Hall, [1997] B.C.T.C. Uned. 770; 30 R.F.L.(4th) 333 (S.C. Master), refd to. [para. 38].

Wanstall v. Walker, [1998] B.C.T.C. Uned. A72 (S.C.), refd to. [para. 38].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 44].

Holtby v. Holtby (1997), 42 O.T.C. 101; 30 R.F.L.(4th) 70 (Gen. Div.), refd to. [para. 45].

Wang v. Wang (1998), 110 B.C.A.C. 302; 178 W.A.C. 302; 39 R.F.L.(4th) 426 (C.A.), refd to. [para. 49].

Statutes Noticed:

Child Maintenance Guidelines - see Main­tenance and Custody Act Regulations (N.S.).

Maintenance and Custody Act (formerly the Family Maintenance Act), R.S.N.S. 1989, c. 160, sect. 10(3)(a), sect. 10(3)(b) [para. 23]; sect. 10(5), sect. 10(6) [para. 46]; sect. 33 [para. 39]; sect. 37 [paras. 21, 39].

Maintenance and Custody Act Regulations (N.S.), Child Maintenance Guidelines, objectives [para. 43]; sect. 10(1), sect. 11(1)(b) [para. 22]; sect. 14 [para. 34].

Counsel:

Deborah E. Gillis, for the appellant;

Milton J. Veniot, Q.C., for the respondent.

This appeal was heard on June 1, 2001, before Bateman, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. Bate­man, J.A., delivered the following decision for the Court of Appeal on August 30, 2001.