V.C. v. J.D.B., 2009 NSSC 25

Judge:MacDonald, J.
Court:Supreme Court of Nova Scotia
Case Date:January 09, 2009
Jurisdiction:Nova Scotia
Citations:2009 NSSC 25;(2009), 274 N.S.R.(2d) 281 (SC)
 
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V.C. v. J.D.B. (2009), 274 N.S.R.(2d) 281 (SC);

    874 A.P.R. 281

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.068

V.C. (petitioner) v. J.D.B. (respondent)

(1201-52828; SFHD-029700; 2009 NSSC 25)

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

Nova Scotia Supreme Court

Family Division

MacDonald, J.

January 30, 2009.

Summary:

Spouses separated in 1995. They had three children who lived with the mother. The spouses signed a separation agreement in January 1997 which was attached to a consent Varied Corollary Relief Judgment in January 2004. The mother filed an application to vary the Judgment, requesting (a) a retroactive award effective February 1, 2004 for table guideline support and special expenses; (b) an ongoing award for table guideline support and special expenses.

The Nova Scotia Supreme Court, Family Division, determined the issues.

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 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Spouses separated in 1995 - They had three children who lived with the mother - The spouses signed a separation agreement in January 1997 which was attached to a consent Varied Corollary Relief Judgment in January 2004 - The mother filed an application to vary the Judgment, requesting, inter alia, a retroactive award effective February 1, 2004 for table guideline support to reflect the father's increased income - The Nova Scotia Supreme Court, Family Division, considered that there was no delay in respect of the mother's request for an increase in child support (the application was filed in February 2006) - While the father had not strictly complied with the requirement to provide his income tax returns to the mother, she had received his 2004 return and a spreadsheet outlining his 2005 income - When the application was brought in 2006, he sent his returns to the authority in his state under the mistaken assumption that they would send them to the mother - This was not blameworthy conduct - The court declined to grant a retroactive award for 2004 and 2005 - The difference in income was not substantial (from the 2004 judgment, based on the 2001 income) and appeared to fall within the contemplation of the original order - In 2006 and in every year thereafter the situation changed and the father was obligated to share his increased income with his children - A retroactive award would cause the father financial hardship - He had to make financial adjustments to provide additional support to his children as well as to provide the support he should have paid in the past - The mother could not be expected to shoulder the responsibility alone - She also had a financial deficit and this would continue even with additional support from the father - The court calculated the appropriate amount of retroactive support - See paragraphs 59 to 69.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance awards - Awards - Considerations - General - Spouses separated in 1995 - They had three children who lived with the mother - The father moved to the United States - The spouses signed a separation agreement in January 1997 which was attached to a consent Varied Corollary Relief Judgment in January 2004 - The mother filed an application to vary the Judgment, requesting, inter alia, an ongoing award for table guideline support - The father requested that the court take into consideration his unusually high expense to exercise access with his children - The Nova Scotia Supreme Court, Family Division, reviewed what the father paid to exercise access with his children and did not consider that it was unusually high - The father paid approximately $2,400 per year to transport his children to visit him in the United States - A parent in Nova Scotia exercising access with his children could spend up to $1,800 per year - See paragraph 57.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The Nova Scotia Supreme Court, Family Division, discussed s. 7 of the Federal Child Support Guidelines and stated that "[a] section 7 analysis begins with a question; is the claimed expense 'necessary' in relation to the child's best interest? Necessary means something more than desirable. There are many expenditures a parent might wish to make on behalf of a child that the child would enjoy but these may not be 'necessary'. The dictionary definition suggests something that is 'absolutely essential' or is 'needed in order to obtain a desired result'. A review of the case law suggests expenses for medical and dental insurance premiums, health and dental related expenses, and post-secondary education expenditures are generally considered to be necessary and in the best interest of the child. Educational and recreational expenses however are subject to greater scrutiny. For example, acceptance of private school or tutoring as a special expense usually requires evidence that the child has a learning disability or other specialized requirement that can most appropriately be met by sending the child to private school or by providing tutoring. Acceptance of recreational expenses may require evidence that the child has particular skill or talent that should be developed or has a particular emotional or social need that the recreational program will address. Merely suggesting the child enjoys a particular activity or will benefit from that activity does not lead to a conclusion the activity is 'necessary'. The requirement for evidence from which a conclusion of 'necessity' can be made is generally overlooked and this may occur because many of the orders for which variation is requested are consent orders in which a parent has agreed to share these expenses proportionally. Prior agreement may remove the prerequisite that the court determine whether a particular expense is 'necessary'." - See paragraph 32.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - Spouses separated in 1995 - They had three children who lived with the mother - The spouses signed a separation agreement in January 1997 which was attached to a consent Varied Corollary Relief Judgment in January 2004 - The mother filed an application to vary the Judgment, requesting, inter alia, special expenses - The father questioned the reasonableness of the oldest child's university expense because she could have received a university education free of tuition and residence fees if she lived with him in the United States - The Nova Scotia Supreme Court, Family Division, rejected the assertion - Courts should generally be reluctant to second guess decisions made by adult children in respect to the university he or she wished to attend - Everything was relative - A child whose family had very limited means and who was not in receipt of scholarships might be considered unreasonable if he or she rejected an opportunity to attend a university at which he or she had available free tuition and residence - In this situation, the child had scholarships available to her and would maintain those scholarships - In addition she was asked by her father to leave her country and live with him, his new partner and his partner's three young children - Under these circumstances her decision to remain in Canada and attend the university of her choice was not an unreasonable decision nor should it reduce the financial obligations of either of her parents as a result - See paragraphs 44 to 47.

Cases Noticed:

J.P., Re (2008), 266 N.S.R.(2d) 314; 851 A.P.R. 314; 2008 CarswellNS 353; 2008 NSCA 61, refd to. [para. 31].

Selig v. Smith (2008), 266 N.S.R.(2d) 102; 851 A.P.R. 102; 2008 NSCA 54, refd to. [para. 48].

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.), refd to. [para. 59].

I.G. v. R.A., [2009] N.S.R.(2d) Uned. 3; 2009 NSFC 1, refd to. [para. 64].

Authors and Works Noticed:

Canada, Regulatory Impact Analysis Statement, Canada Gazette, Part II, vol. 139, No. 25, generally [para. 19].

Regulatory Impact Analysis Statement - see Canada, Regulatory Impact Analysis Statement.

Counsel:

Colin Campbell, for V.C.;

J.D.B., self-represented.

This case was heard on January 9, 2009, at Halifax, N.S., by MacDonald, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on January 30, 2009.

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