A.W.H. v. C.G.S., 2007 NSSC 181

• Judge: MacDonald, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 16, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSSC 181;(2007), 255 N.S.R.(2d) 338 (SC)

A.W.H. v. C.G.S. (2007), 255 N.S.R.(2d) 338 (SC);

    814 A.P.R. 338

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JN.043

H.(A.W.) (petitioner) v. S.(C.G.) (respondent)

(1201-55478; SFHD-009621; 2007 NSSC 181)

Indexed As: A.W.H. v. C.G.S.

Nova Scotia Supreme Court

Family Division

MacDonald, J.

June 15, 2007.

Summary:

A 2001 interim consent order required a father to pay, inter alia, monthly child support of $570 for the two children of the marriage. In December 2006, the mother applied for an interim order for child support with retroactive application.

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 - A 2001 interim consent order required a father to pay, inter alia, monthly child support of $570 for the two children of the marriage - Their son, now aged 22, was no longer a child of the marriage but could regain that status if he resumed his studies, and daughter, now aged 18, was a child of the marriage because she was still attending university - In December 2006, the mother applied for an interim order for child support with retroactive application - The mother requested that child support be recalculated from January 1, 2002 to May 30, 2007 based upon the father's actual total income for each of those years - The Nova Scotia Supreme Court, Family Division, ordered the father to pay retroactive child support of $6,848 (January 1, 2006 to May 30, 2007) - There was no evidence that the children suffered any economic deprivation as a result of the father's failure to pay the appropriate amount of child support under the Guidelines - The father experienced a significant increase in his income in 2002 - He did increase his child support payment but the increase was not in accordance with what was required pursuant to the table amount of the Guidelines - While the father had on occasion increased child support he also chose to decrease it unilaterally and he stopped paying support for his son altogether at a time when he was not entitled to do so - See paragraphs 29 to 44.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards - To children and children defined - A 2001 interim consent order required a father to pay, inter alia, monthly child support of $570 for the two children of the marriage (including a daughter, now aged 18) - In December 2006, the mother applied for an interim order for child support - Since the fall of 2006, the daughter had been attending university - She lived with her mother - She financed her university education from a combination of student loans, savings and part time employment - The Nova Scotia Supreme Court, Family Division, held that the daughter was a child of the marriage and was entitled to support - See paragraphs 11 to 16.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards - To children and children defined - A 2001 interim consent order required a father to pay, inter alia, monthly child support of $570 for the two children of the marriage (including a son, now aged 22) - In December 2006, the mother applied for an interim order for child support - The son graduated from high school in June 2005 at the age of 20 - He was casually employed until November 2005 when he accepted an opportunity to crew a ship on its sail to Cuba for refitting - He was not paid a wage but his expenses were paid - He returned to his employment until October 2006 - He periodically moved in and out of the mother's home - He had unconfirmed plans to return to school - The Nova Scotia Supreme Court, Family Division, held that the son ceased to be a child of the marriage as at July 2005 - If he resumed his studies, he would regain the status of child of the marriage - See paragraphs 17 to 20.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards - To children and children defined - A 2001 interim consent order required a father to pay, inter alia, monthly child support of $570 for the two children of the marriage - In December 2006, the mother applied for an interim order for child support - Their son, now aged 22, was no longer a child of the marriage but could regain that status if he resumed his studies, and daughter, now aged 18, was a child of the marriage because she was still attending university - The father's income was $60,000 - He paid monthly spousal support of $450 - His monthly expenses, not including spousal or child support was $2,500 - The Nova Scotia Supreme Court, Family Division, ordered the father to pay $734 monthly child support for the daughter - This amount would not change if the son regained his status as a child of the marriage - The combined requirement for support for the two children using a combination of table amounts and proportional sharing under s. 7 of the Federal Child Support Guidelines produced amounts beyond the father's means - See paragraphs 21 to 28.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - [See third Family Law - Topic 4014 ].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - [See all Family Law - Topic 4014 ].

Cases Noticed:

Lewi v. Lewi (2006), 209 O.A.C. 344; 2006 CarswellOnt 3214 (C.A.), refd to. [para. 14].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 CarswellMan 59 (C.A.), refd to. [para. 14].

J.C.R. v. J.J.R., [2006] B.C.T.C. Uned. 735; 2006 BCSC 1422, refd to. [para. 15].

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. 29].

Counsel:

Corinne Corbett, for the applicant;

Gordon Kelly, for the respondent.

This application was heard on April 16, 2007, at Halifax, N.S., by MacDonald, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on June 15, 2007.