Sims v. Sims, (1996) 158 N.S.R.(2d) 321 (FC)

• Case Date: May 14, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 158 N.S.R.(2d) 321 (FC)

Sims v. Sims (1996), 158 N.S.R.(2d) 321 (FC);

    466 A.P.R. 321

MLB headnote and full text

Patrick Maurice Sims (applicant) v. Joyce Ann Sims (respondent)

(1996 F.H. No. H93-584)

Indexed As: Sims v. Sims

Nova Scotia Family Court

Dyer, J.F.C.

June 24, 1996.

Summary:

A husband and wife divorced. The corol­lary relief judgment incorporated a sepa­ration agreement which granted joint custody of the parties' four children with the wife having day-to-day care and the husband having liberal access. Monthly maintenance was set at $100 per child to be paid by the access parent. Eventually, the children went to live with the husband. The child Vanessa, at age 16, left home and was declared not to be a child of the marriage. Vanessa and her child eventually returned to the husband's home. Court orders resulted in a moratorium on the collection of arrears in child support which had arisen, the continuation of current main­tenance and the wife being directed to verify her income every six months. The husband applied to have the moratorium lifted, for increased child maintenance, for a determi­nation of the arrears quantum and for an access review. The access review was adjourned. The wife sought a retroactive cancellation of maintenance and for custody (since abandoned).

The Nova Scotia Family Court concluded that Vanessa continued not to be a child of the marriage. The court recommended that child maintenance increase to $350 monthly for a six month period and from then onward to $450 monthly. The court deter­mined the arrears owing and recommended repayment by monthly instalments.

Family Law - Topic 3353

Separation agreements, domestic contracts and marriage contracts - Effect of agree­ment - In divorce actions - Corollary relief - Spouses divorced - The corollary relief judgement incorporated their sep­ration agreement which required the access parent to pay monthly support at $100 per child - Eventually, the four children went to live with the husband - One child ceased to be a child of the marriage - Child expense increased and far exceeded $100 per month - Both parties had incomes in the lower $30,000 range - The wife had a $25,000 debt linked to ordinary living costs - The Nova Scotia Family Court concluded that there had been a material change in circumstances and recommended that monthly maintenance increase to $350 for six months and then to $450 and that the wife pay $1,800 in child support arrears in nine monthly instalments of $50 with the balance ($1,350) due by the last instalment - See paragraphs 22 to 70.

Family Law - Topic 4006.1

Divorce - Corollary relief - Maintenance awards - To children - Effect of agree­ments - [See Family Law - Topic 3353 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - A husband and wife divorced - The children lived with the husband and the wife was responsible for monthly child support - In 1994, one of the children, at age 16, left home and was declared not to be a child of the marriage - Eventually, the child returned home with her three year old child - The child, now age 20, had some prospects of part-time work - She wanted to return to school, but had made no firm plans - The father of her child was not paying support - The Nova Scotia Family Court concluded that the child ceased to be a child of the marriage in 1994 and her return did not change her legal status so as to revive any obligation on the wife's part to contribute to her support - See paragraphs 10 to 20.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - In determining whether a child was a child of the marriage within the meaning of the Divorce Act, the Nova Scotia Fam­ily Court stated that dependency might continue after age 16 if there was some "other cause" preventing withdrawal from parental care and control or from obtaining the necessaries of life (e.g. food, clothing, shelter, etc.) - Education was commonly cited as a "cause" of ongoing dependency - However, courts are generally reluctant to order continuing maintenance if a child leaves school or occupational training on her or his own initiative by reason of a personal lifestyle choice - See paragraphs 14 to 18.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 3353 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - [See Family Law - Topic 3353 ].

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - [See Family Law - Topic 3353 ].

Cases Noticed:

Kidston v. Techentin (1994), 129 N.S.R.(2d) 228; 362 A.P.R. 228 (Fam. Ct.), refd to. [para. 15].

Spencer v. Clark (1994), 135 N.S.R.(2d) 283; 386 A.P.R. 283 (Fam. Ct.), refd to. [para. 15].

Butler v. Butler (1996), 148 N.S.R.(2d) 126; 429 A.P.R. 126 (S.C.), refd to. [para. 15].

Giorno v. Giorno (1992), 110 N.S.R.(2d) 87; 299 A.P.R. 87 (C.A.), refd to. [para. 17].

Todd v. Todd (1995), 144 N.S.R.(2d) 340; 416 A.P.R. 340 (S.C.), refd to. [para. 18].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 119 D.L.R.(4th) 405; 6 R.F.L.(4th) 161, refd to. [para. 63].

S.C.C. v. P.P.C. (1993), 122 N.S.R.(2d) 205; 338 A.P.R. 205 (Fam. Ct.), refd to. [para. 66].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2 [para. 10].

Counsel:

Patrick Sims, not represented;

Yvonne LaHaye, for the respondent.

This case was heard at Halifax, Nova Scotia, on May 14, 1996, before Dyer, J.F.C., of the Nova Scotia Family Court, who delivered the following decision on June 24, 1996.