Atwood v. Stoddard

Atwood v. Stoddard Court Court of Appeal Date 2001-04-30 Citation 2001 NSCA 69 Docket CA 167893 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Flinn, Edward J. (Honourable Justice); Oland, Linda L. (Honourable Justice) Document Type Decision Relations Library Sheet - Atwood v. Stoddard - 2001 NSCA 69 - 2001-04-30 - Library Sheet Decision Content Date:20010430 Docket: CA 167893 NOVA SCOTIA COURT OF APPEAL [Cite as: Atwood v. Stoddard, 2001 NSCA 69] Bateman, Flinn and Oland, JJ.A. BETWEEN: STACEY TREVOR STODDARD Appellant - and - WENDY JOY ATWOOD Respondent REASONS FOR JUDGMENT Counsel: Appellant in person Timothy D. Landry for the respondent Appeal Heard: April 6, 2001 Judgment Delivered: April 30, 2001 THE COURT: Appeal dismissed per reasons for judgment of Bateman, J.A.; Flinn and Oland, JJ.A. concurring. BATEMAN, J.A.: [1] This is an appeal from an Order of Chief Judge John Comeau of the Family Court wherein he found the appellant, Stacey Trevor Stoddard, to be a possible father of Justin Blake Atwood born March 31, 1984. The judge ordered him to pay child support in the Provincial Child Maintenance Guidelines amount of $247 per month. [2] Mr. Stoddard had a brief relationship over several months with Wendy Joy Atwood, the mother of Justin. In the summer of 1983 Ms. Atwood told him that she was pregnant and that he was the father. He had no further contact with her or the child until her claim for child support which was initiated in July of 2000. At the hearing, Mr. Stoddard declined the opportunity to request a blood test in order to establish or disprove paternity. He does not dispute that he is Justin's biological father. [3] Mr. Stoddard was not represented by counsel at the Family Court hearing. He advises us that he had consulted with counsel prior to the hearing. It is Mr. Stoddard's understanding that since the birth of the child Ms. Atwood has twice lived in a common law relationship of some duration. He further understands that she subsequently married and divorced a third partner. He says that he wanted to argue that the men in these relationships stood in loco parentis to the child and that Ms. Atwood should be obliged to seek support from them in addition to him. He says that the counsel with whom he consulted discouraged him from doing so. [4] On this appeal he complains of inadequate assistance of counsel and seeks leave of the court to argue the in loco parentis issue, here, or at a new trial. He submits, as well, that the Chief Judge erred in not accepting Mr. Stoddard's argument that his obligation to pay child support should be eliminated or reduced on the basis of undue hardship. He says that the judge could not properly assess his claim in this regard because Ms. Atwood did not file complete financial information. [5] Mr. Stoddard chose not to be represented by counsel at trial, although he consulted with a lawyer preparatory to the proceeding. He cannot now make an argument that he did not have effective assistance of counsel. We have no record from which to evaluate the content and the quality of the advice he received. Additionally, it is far from clear at law that Mr. Stoddard's position would have been improved had he advanced and the court accepted the argument that Ms. Atwood must seek support from those who stood in loco parentis to the child. [6] Section 10 of the Family Maintenance Act, R.S.N.S. 1989, c. 160 requires a court, in fixing child support, to do so in accordance with the Child Maintenance Guidelines: 10 (1) When determining the amount of maintenance to be paid for a dependent child, or a child of unmarried parents pursuant to Section 11, the court shall do so in accordance with the Guidelines. 11 (1) Upon application during the pregnancy of a single woman or after a single woman gives birth to a child, or at any adjournment thereof, a court may order the possible father or the single woman or both of them to pay . . . (b) towards the maintenance of the child for so long as the child is a dependent child; (Emphasis added) [7] Under the Act a "possible father" includes any one or more persons who have had sexual intercourse with a single woman who is the mother of a child and by whom it is possible that she was pregnant. A "parent" includes, in the case of a child of unmarried parents, a person who has been ordered by a court to pay maintenance for the child. "Maintenance" means financial support. [8] Once a judge has decided, pursuant to s.11, to order that a possible father pay maintenance, the court's discretion to deviate from the Guidelines amount is limited. Section 10(3) of the Act provides: 10(3) A court may award an amount that is different from the amount that would be determined in accordance with the Guidelines if the court is satisfied that (a) special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or special provisions have otherwise been made for the benefit of a child; and (b) the application of the Guidelines would result in an amount of child maintenance that is inequitable given those special provisions. [9] Mr. Stoddard does not qualify for relief under the above section as there are no other special provisions made for the child. [10] Nor would Mr. Stoddard find relief within the Guidelines themselves. There is a presumption that the amount of maintenance payable is the table amount: 3 (1) Unless otherwise provided under these Guidelines, the amount of a child maintenance order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent against whom the order is sought; and (b) the amount, if any, determined under Section 7. [11] There is no discretion to depart from the Guidelines amount, where the payor is a parent, save in the case of undue hardship. On the other hand, where the payor is not a parent, pursuant to s. 5, the court does have discretion to order an amount less than that provided in the Guidelines: 5 Where a person against whom a child maintenance order is sought stands in the place of a parent for a child, the amount of a child maintenance order is, in respect of that person, such amount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to maintain the child. [12] Thus, the judge's discretion to order less than the Guidelines amount is limited to circumstances where the payor can demonstrate that he or she would suffer undue hardship as a result of the support order. Undue hardship is defined in s.10(1) of the Guidelines. It requires the court to consider the relative standards of living of the parties. This claim is most commonly evaluated using the Comparisons of Household Standards of Living Test set out in Schedule II of the Guidelines. That is what was done here. I am not satisfied that the court erred in its application of the test to the circumstances of these parties. According to the 1999 Notice of Assessment filed on behalf of Ms. Atwood, her total income for that year was $639. Her Statement of Financial Information reveals a total current monthly income of $889.82, comprised of spousal support of $97, support for another child of $403 and a child tax benefit of $389.82. Mr. Stoddard's income for Guidelines purposes is about $28,500. On this information it is clear that his undue hardship claim could not succeed. While Ms. Atwood did not file her income tax information for the two years preceding the hearing, there is no suggestion that her actual current income was misrepresented. I am not satisfied that the additional information would have altered the result of the undue hardship claim. [13] Accordingly, being unable to establish undue hardship, even had Mr. Stoddard demonstrated that there were others who stood in loco parentis to the child and could respond to a support order, it would not have reduced the table amount that he is required to pay. [14] Delay in seeking maintenance for a child is not a barrier to an order. The maintenance is the entitlement of the child who is not held accountable for a parent's delay. (P.A.D. v. L.G. (1989), 89 N.S.R. (2d) 7 (Fam.Ct.); Middleton v. Christianson (1995), 140 N.S.R. (2d) 288 (S.C.)). [15] At the hearing of the appeal Mr. Stoddard indicated that his financial circumstances had worsened since the time of the Family Court hearing. If that is the case, he can apply to the Family Court for a variation in the child support. [16] Accordingly, I would dismiss the appeal. In the circumstances, there shall be no order for costs. Bateman, J.A. Concurred in: Flinn, J.A. Oland, J.A.