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The Court of Appeal dismissed the appeal after refusing to hear it because the appellant had persistently failed to comply with support orders and costs awards.
The court varied child and spousal support, found the father’s income had materially changed, and rejected rescission of arrears and cancellation of interest.
Notice is the operative trigger for arrears; the Notice of Discontinuance filed May 17, 2019 precluded looking back past the later effective notice, confusion over jurisdiction contributed to delay but did not justify ignoring the discontinuance, and effective notice to the payor was personal service of the 2019 PSA application on January 29, 2020; accordingly table child support was ordered from February 1, 2020 and arrears computed to $16,059 with a structured payment plan, while retrospective claims earlier than the effective notice were denied and administrative recalculation was not avai…
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The Court upheld the trial judge’s discretionary determination that Line 150 net income distorted income for support because significant business losses resulted from a voluntary side venture; the trial judge properly exercised discretion under ss.16-20 of the Guidelines to base support on employment income (less union dues) and to limit retroactivity to Jan 1, 2016 after weighing D.B.S. factors; absence of a pleaded and evidenced s.10 undue hardship claim precluded further reduction; appellate interference was unwarranted absent palpable and overriding error.
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The court dismissed an application to terminate spousal support, finding no material change in circumstances and continuing the $900 monthly order, subject to review at age 65.
The court found beyond a reasonable doubt that the Florida order was clear, that respondent had actual knowledge, and that he intentionally failed to pay ordered child and spousal support; no discretionary or procedural reason justified withholding a contempt finding; prior Director enforcement and prior Florida contempt or contempt-related proceedings did not bar a Nova Scotia contempt finding; accordingly a declaration of contempt was entered and a penalty/purging hearing was scheduled with directions to pay arrears and take immediate steps to purge contempt.
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The court accepted CRA Line 150 income evidence, imputed the father's incomes (2013 $63,430; 2014 $52,570.27) and ordered retroactive variation effective January 1, 2013. Basic child support was set at $536/month for 2013 and $441/month for 2014 with ongoing $441/month from January 1, 2015. Most section 7 claims were dismissed for lack of evidence except the 2014 BMX camp expense for which the court fixed a net expense of $3,493 and ordered the father to pay his 75% share of $2,620 within three months. The court drew adverse inference for disclosure failures, ordered registration with the MEP…
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The applications judge erred in principle by failing to apply the Family Law Act, the Child Support Guidelines s.10 and the D.B.S. factors when ordering retroactive support; a proper application of those principles shows the consent August 2009 order, the father’s compliance with it, the comparable magnitude of access costs and the lack of sufficiently pronounced income change do not justify a retroactive variation, so the December 17, 2012 retroactive award must be set aside and the appeal allowed.
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The court held that retroactive variation is available only for children who were dependant at the time of the application (here, the youngest child) and, because there is insufficient evidence about how Maintenance Enforcement applied garnished payments in 2008 and 2009, the court will not arbitrarily apportion those collected payments itself but will refer the recalculation and application of payments to Maintenance Enforcement to apply its ordinary formula; after Maintenance Enforcement determines amounts applied to current support those amounts for each then-dependant child shall be divid…
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The court dismissed an application to vary child support and cancel arrears, finding the applicant intentionally underemployed and not entitled to undue hardship relief.
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