nan IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Niles v. Munro, 2009 NSSC 318 Date: 20091030 Docket: 1201-56024 Registry: Halifax Between: Michele Debra Niles and David Alexander Munro Respondent Judge: Justice Lawrence I. O’Neil Heard: August 19, 2009, in Halifax, Nova Scotia Counsel: Stephanie Atkinson, for the Petitioner Shawn M. O’Hara, for the Respondent By the Court: Introduction, para. nan First Issue: Oral Decision October 2, 2009, para. 4-24 Jurisdiction: Is the older son child of the marriage? para. nan Evidence, para. 11 Conclusion, para. 18 Second Issue: The period of retroactive support for the younger child, para. 25 Positions of the Parties, para. 26 The Law, para. 28 the commencement date of retroactive support? effective notice; formal notice or time of change in circumstances; para. 32 the meaning of blameworthy conduct, para. 33 the four appeals before the court in D.B.S. D.B.S., para. 35 T.A.R. v. L.R.J., para. 36 Henry v. Henry, para. 37 Hiemstra v. Hiemstra, para. 39 When was formal notice give to Mr. Munro? para. 43 Was there delay by Ms. Niles? If so, what is its effect on the determination of effective notice for the purposes of this application? para. 50 Was Mr. Munro guilty of blameworthy conduct? para 58 Conclusion, para. 75 Introduction [1] The parties married July 24, 1982. On December 12, 2001 the couple divorced and Corollary Relief Judgment was granted. They have two children born June 23, 1986 and January 17, 1990. The subject proceeding is pursuant to an application by Michelle Niles filed May 30, 2008; as amended on September 8, 2008. [2] It was agreed that the court would deal with two significant issues in pre trial hearing and render pre trial rulings. [3] An Oral Decision was delivered October 2, 2009 and addressed the first issue; the court’s jurisdiction to deal with the claim for retroactive child support and s.7 expenses for the parties’ older child. This text at paragraphs 4-24 inclusive essentially repeats the oral ruling. The remainder of this written decision addresses the second issue. It is ruling determining the period for which retroactive child support if any will be calculated for the younger child. First Issue: Oral Decision October 2, 2009 [paragraph 4-24 inclusive] [4] The issues raised by Ms. Nile’s application to vary are retroactive review of the base table amount of child support paid by the Respondent and the Respondent’s contribution to the section 7 ( University) expenses – for the children. [5] Although originally scheduled for argument on May 20, 2009, the court did not hear the preliminary motion on behalf of Mr. Munro until August 19, 2009. He argued that the court did not have jurisdiction to grant any relief respecting the older child because the older child was not, at the time of the application, a child of the marriage. [6] Alternatively the Respondent takes issue with the costs claimed by Ms. Niles with respect to both her claim for retroactive child support and retroactive adjustment to the contribution Mr. Munro must make to the section expenses for the older child. Jurisdiction Is the older son child of the marriage? [7] Was the older child, child of the marriage within the Divorce Act, S.C. 1985, c.3 (2nd Supp.), s.2(1) at the time of the application? Is the court precluded from ruling on the merits of the Applicant’s claim if he was not child of the marriage at the time the application was filed? [8] Section (1) defines “child of the marriage” as follows: child of the marriage” means child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [9] It is settled law that the court cannot entertain an application for retroactive child support and section expenses, if at the time the application is made, the subject child is not “a child of the marriage” within the meaning of section (1) of the Divorce Act supra. This conclusion was reached by The Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII). In the concluding sentence of paragraph 88 in D.B.S. supra, Justice Bastarache stated: “The question then arises when the “material time” is for retroactive child support awards. If the “material time” is the time of the application, retroactive child support award will only be available so long as the child in question is “child of the marriage” when the application is made. On the other hand, if the “material time” is the time to which the support order would correspond, court would be able to make retroactive award so long as the child in question was “child of the marriage” when increase support should have been due.” [10] Justice Roscoe in Smith v. Selig, 2008 NSCA 54 (CanLII) reviewed the law as explained by the Supreme Court of Canada on the issue of retroactive child support. She concluded that the principle regarding retroactive child support also applied equally to section expenses. She stated the following at paragraphs 25-26: 25 There is nothing in the S. (D.B.) decision which restricts the declared principles regarding retroactivity to basic child support. In para. 90 Justice Bastarache indicates that it will not always be possible for court to enforce an unfulfilled child support obligation. There is no attempt to distinguish between basic table amounts and s. expenses. 26 Many cases dealing with this issue have determined that the principles regarding retroactivity expressed in S. (D.B.) apply equally to s. expenses. See for example: Heatherington v. Tapping, [2007] B.C.J. No. 302, 2007 BCSC 209 (CanLII) at para. 20, Surerus‑Mills v. Mills, [2006] O.J. No. 3839 (Q.L.) (S.C.J.), para. 24 and J.C.R. v. J.J.R., 2006 BCSC 1422 (CanLII), para. 25. agree with the reasoning expressed in these cases in that respect. [11] The parties’ corollary relief judgment provided for shared parenting arrangement and equal sharing of all special and extraordinary expenses. [12] The evidence establishes that the child in question wrote his last exam at Queens University on April 19, 2008. On April 25, 2008 he and his girlfriend/common law partner took up residence in a downtown Toronto apartment. The lease is dated April 23, 2008 and had term of 15 months, requiring the parties to pay $1,575 as rent each month. [13] The subject child commenced full-time employment on May 12, 2008 earning a starting salary of $25,000 plus commissions and benefits. His common-law partner was also employed as legal assistant at Toronto law firm at this time. [14] The older child’s formal graduation was June 4, 2008. [15] Other than for short period in 2009 when both parents assisted this child, the last financial assistance from either parent was on April 28, 2008. At that time, his mother, the applicant gave him $2,000. There is insufficient evidence from which to conclude how that money was used by the son. [16] Mr. Munro maintains that his son was full-time resident of Toronto, as of April 25, 2008 and financially independent on May 12, 2008, the day he commenced full-time employment. In contrast Ms. Niles contends that her son was child of the marriage following his graduation from Queens University on June 4, 2008 and remained so until at least July 2009. Alternatively she argues that he regained his status as “child of the marriage” on March 14, 2009 when he returned to Halifax to study to become financial advisor. He was in Halifax for period of three weeks, portion of which were spent with his father and the remainder with his mother. [17] She argues inter alia that for period of time after beginning work, her son needed help, he could not support himself on his earnings and therefore remained dependent child of the marriage to period beyond the date the application to vary was filed. [18] Justice Boswell in Boomhour v. Huskinson [2008] O.J. No. 2139 at paragraph 75 and 76 discussed considerations of the court when responding to application to determine support for adult children, including post-secondary education expenses. 75 Applications to determine support for adult children, including post‑secondary education expenses, involve consideration of number of relevant factors. These factors are frequently referred to as the "Farden Factors" which were first outlined in Farden v. Farden, 1993 CanLII 2570 (BC SC), [1993] B.C.J. No. 1315. They are: Whether the child is in fact enrolled in course of studies and whether it is full‑time or part‑time course of study; Whether or not the child has applied for or is eligible for student loans or other financial assistance; The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; The ability of the child to contribute to his or her own support through part‑time employment (and in light of subsequent cases, would add "or otherwise"); The age of the child; The child's past academic performance, whether the child is demonstrating success in the chosen course of studies; What plans the parents made for the education of the children particularly where those plans were made during cohabitation; At least in the case of mature child who has reached the age of majority, whether or not the child has unilaterally terminated relationship with the parent from whom support is sought. 76 In view of the lack of guidance otherwise contained in the Minutes, believe it is appropriate to apply the Farden Factors to the determination of the post‑secondary education expenses to be paid by each of the parties hereto. [19] I am satisfied the court does not have jurisdiction to consider the application of Ms. Niles for retroactive variation of child support and a readjustment of the claim for section 7 expenses pertaining to the parties’ older child. The older son clearly left the charge of his parents in April of 2008. He established an independent household without the consent, agreement, approval or financial support of his parents. He did not seek any of these from his parents when doing so. Clearly he had decided that he was independent, financially and otherwise from his parents. He and his partner established their home in April 2008. [20] In the words of Freeman J.A. in Martell v. Height, 1994 CanLII 4145 (NS CA), 1994 CarswellNS 45 (C.A.). at paragraph 8. It is clear from the various authorities cited by counsel that courts recognize jurisdiction under s. 2(1) of the Divorce Act to hold parents responsible for children over sixteen during their period of dependency. How long that period continues is question of fact for the trial judge in each case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier. As general rule, parents of bona fide student will remain responsible until the child has reached level of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry level employment in an appropriate field. In making this determination the trial judge cannot be blind to prevailing social and economic conditions; bachelor’s degree no longer assures self-sufficiency. [21] Justice Beryl MacDonald, in H.(A.W.) v. (C.G.) 2007 NSSC 181 (CanLII) discussed the circumstances that could give rise to child regaining status as child of the marriage and thereby conferring jurisdiction on the court to entertain this application. At paragraph 36 she stated: 36 In this case, as result of the decision have made, the parties son was not dependent child of the marriage at the time the wife commenced her application. However, have also determined that if he follows course of post secondary studies at University or other post secondary institution he will regain his status as dependent child of the marriage. Applying the rationale suggested by Justice Bastarache, the wife would then be entitled to seek retroactive support for her son. This would seem to be an odd result. If she should have received this money for her son's support his entitlement at the time of the application should be irrelevant. However, Justice Bastarache's decision on this point relates primarily to jurisdiction and not to the result. If the court had jurisdiction to make retroactive order for an adult child, the discretion given to court to consider factors such as delay may ultimately lead to no award. What Justice Bastarache's decision makes clear is that jurisdiction to make the award is prerequisite. The Divorce Act confers jurisdiction upon the court to make orders for the support of "children of the marriage" as defined by section 2(1): The question then arises when the "material time" is for retroactive child support awards. If the "material time" is the time of the application, retroactive child support award will only be available so long as the child in question is "child of the marriage" when the application is made. On the other hand, if the "material time" is the time to which the support order would correspond, court would be able to make retroactive award so long as the child in question was "child of the marriage" when increased support should have been due. (para. 88) [22] find that he did not regain his status as “a child of the marriage over the coming year” He did experience some difficulties with his partner and return home for short period of three weeks. His partner was charged with domestic assault upon him and she was prohibited from having contact with him or from going to the Toronto residence for period of time. They subsequently reconciled. He changed jobs over the summer of 2008 and in early 2009 decided to pursue career as financial advisor. He did retrain himself in 2009 and accepted some assistance from his parents so he could do so. They equally shared his rental obligation of $1,575 in April and May 2009 when his partner was prohibited by Court order from residing there and their son accepted sole responsibility for payment of the rent. He may have also been preparing for examinations to become financial adviser. However, the parents were not required to assist him. They were simply helping an adult and independent child at time of crisis, purely discretionary act on their part. Their son continued to live independently with his partner after this short separation. [23] It is telling that neither parent has provided any other significant financial support to their son since April 2008 and could not tell the court how he was meeting his financial obligations or inform the court of his financial circumstances generally. Ms. Niles evidence on the subject was speculative and conjecture. [24] Given my decision on the issue of the court’s jurisdiction it is not necessary for me to consider the alternative issue which is recalculation of all child support and section expenses paid by Mr. Munro for the benefit of the parties’ older child. Second Issue: The period of retroactive support for the younger child [25] The parties agree that Mr. Munro’s child support obligation for the younger child must be recalculated on retroactive basis to reflect Mr. Munro’s actual income. They disagree on: 1. The period for which it is to be recalculated, question that has as sub issue 2. Whether Mr. Munro is guilty of blameworthy conduct which, could impact on the period of retroactivity by lengthening it.. 3. When Mr. Munro received effective notice of Ms. Niles’ claim for variation of the child support and s.7 (special expenses) obligation of Mr. Munro. Positions of the Parties [26] Mr. Munro argues that although the variation application was filed May 30, 2008, his counsel did not receive the relevant documents until October 9, 2008 and the retroactive recalculation should be limited to three years prior to October 9, 2008. He is arguing that he received formal notice of Ms. Niles claim on October 9, 2008. [27] Ms. Niles position is that Ms. Niles gave formal notice of her claim to Mr. Munro directly by letter dated July 8, 2004 (see her affidavit, exhibit 6 at paragraph 28). Alternatively she argues that even if that was not formal notice to Mr. Munro her then counsel raised the issue with Mr. Munro directly by letter dated July 20, 2004 (exhibit 1A page 1). As a consequence the recalculation should be three years prior to July 2004 i.e. to 2001. This is also the year when she says Mr. Munro’s obligation changed but his payments did not. Alternatively she argues that even if the formal notice was received by Mr. Munro much later than 2004 his blameworthy conduct warrants extending the period of retroactivity to more than three years i.e. back to 2001. [28] Section 17 of the Divorce Act provides that child support award may be varied prospectively or retroactively. (1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or Guidelines apply (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. [29] In D.B.S. supra, Justice Bastarache at paragraph 56 stated: “the court’s jurisdiction over child support payments will arise only upon application by person authorized pursuant to the legislation: see s.15.1 of the Divorce Act .” [30] Once seized with jurisdiction over the issue of child support court may enforce an unfulfilled child support obligation. Justice Bastarache described the legal context as follows at paragraph 59: 59. While the payor parent does not shoulder the burden of automatically adjusting payments, or automatically disclosing income increases, this does not mean that (s)he will satisfy his/her child support obligation by doing nothing. If his/her income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by court. [31] The majority in D.B.S. identified three possible commencement dates for retroactive child support order: 1. The date of effective notice that child support was being sought or change in child support was sought at first instance; 2. Within three years of formal notice to the payor parent meaning no more than three years before an application; or 3. The date of the change in circumstances forming the basis of the claim. -the commencement date of retroactive support? (a) effective notice (b) formal notice or (c) when circumstances changed [32] Justice Bastarache’s reasons were concurred in by C.J. McLachlin, Justices Lebel and Deschamps and therefore represent the majority view. At paragraph 123, Justice Bastarache stated that “it will usually be inappropriate to make support award retroactive to date more than three years before formal notice was given to the payor parent” (emphasis added). However, he allowed for different result where the payor parent is guilty of blameworthy conduct. 124 The date when increased support should have been paid, however, will sometimes be more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing material change in circumstances ‑‑ including an increase in income that one would expect to alter the amount of child support payable ‑‑ is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. payor parent cannot use his/her informational advantage to justify his/her deficient child support payments. 125 The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. payor parent should not be permitted to profit from his/her wrongdoing. the meaning of blameworthy conduct [33] Earlier in his decision, Justice Bastarache attempted to define “blameworthy conduct”. At paragraph 106-109 he wrote: 106 Courts should not hesitate to take into account payor parent's blameworthy conduct in considering the propriety of retroactive award. Further, believe courts should take an expansive view of what constitutes blameworthy conduct in this context. would characterize as blameworthy conduct anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support. similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561, at para. 85, where children's broad "interests" ‑‑ rather than their "right to an appropriate amount of support" ‑‑ were said to require precedence; however, have used the latter wording to keep the focus specifically on parents' support obligations. Thus, payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 1994 CanLII 7378 (ON SC), R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307 (CanLII); S. (L.). payor parent cannot intimidate recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425 (CanLII), 178 A.R. 119 (C.A.). And payor parent cannot mislead recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not. 107 No level of blameworthy behaviour by payor parents should be encouraged. Even where payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in blameworthy manner if (s)he consciously chooses to ignore them. Put simply, payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 1997 CanLII 12394 (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208‑9; Chrintz. 108 On the other hand, payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether payor parent is engaging in blameworthy conduct is subjective question. But would not deny that objective indicators remain helpful in determining whether payor parent is blameworthy. For instance, the existence of reasonably held belief that (s)he is meeting his/her support obligations may be good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent's belief that his/her obligations were being met. Equally, where applicable, court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing revised ability to pay. 109 Finally, should also mention that the conduct of the payor parent could militate against retroactive award. court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child new bicycle: see Haisman v. Haisman (1994), 1994 ABCA 249 (CanLII), 22 Alta. L.R. (3d) 56 (C.A.), at paras. 79‑80. But having regard to all the circumstances, where it appears to court that the payor parent has contributed to his/her child's support in way that satisfied his/her obligation, no retroactive support award should be ordered.. -the four appeals before the court in D.B.S. [34] Justice Bastarache applied these principles to the four appeals before the court, all of which raised the issue of retroactive child support. He stated the following at paragraphs 4, and 6: nan Each case involves recipient parent who failed to apply to court for an increase in child support payments in timely manner 5. unreasonable delay by the recipient parent in seeking an increase in support will militate against retroactive award, while blameworthy conduct by the payor parent will have the opposite effect. Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents fair balance between certainty and flexibility. nan Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. [35] D.B.S. was an appeal of decision of the Alberta Court of Appeal and dealt with child support ordered under Provincial legislation. Justice Bastarache found that retroactive support was not justified for the reasons given in paragraph 139-141: 139 On application of the principles and factors discussed above, agree with Verville J. that retroactive support is not justified in these circumstances. While the mother states that she did not know support might have been owed, parents have responsibility to inquire into matters like this. Concerning the circumstances of the child, Verville J. noted that the present household incomes of the two parents were roughly equal. 140 As to the conduct of the father, the mother has made allegations of threatening and/or dominating behaviour with reference to various times in their post‑separation relationship. Yet, the chambers judge made no finding of fact that would support such allegations. That said, further question is what the father revealed about his income to the mother. court must inquire into whether the payor parent was hiding, or failing to reveal, the factual circumstances that would give rise to new or increased support obligation. Again, however, the chambers judge made no such finding. 141 Most important, however, Verville J. held that retroactive order would not necessarily benefit the children. believe this finding to be crucial. In the circumstances of this appeal, where cannot find any blameworthy conduct on the part of the payor father, and where the chambers judge held that retroactive award would be "inappropriate and inequitable", find myself compelled to defer to his original order. [36] T.A.R. v. L.R.J. was also decision of the Alberta Court of Appeal dealing with child support under the same Provincial legislation. Again Justice Bastarache deferred to the conclusion of the chambers judge that no retroactive award should issue, in large part because of the hardship it would cause. He placed importance on the payor parent not having acted deceitfully and the Chambers Judge’s conclusion that the father’s conduct was “far from blameworthy”. [37] Henry v. Henry, third appeal from the Alberta Court of Appeal involved the interpretation of the child support provisions of the Divorce Act. Blameworthy conduct was attributed to the payor parent. In addition, the delay by the recipient parent in pursuing her claim was not unreasonable, given her limited means, lack of legal knowledge and her sense of intimidation. Justice Bastarache upheld the award of retroactive child support. He found the following factors to be significant and basis for finding blameworthy conduct: (1) the father’s misleading communication as to his financial means; (2) the father’s knowledge of the needs of the children; (3) the father’s increase in income since the previous order; (4) the father’s knowledge of the mother’s low income; (5) the children were deprived in significant way; and (6) the retroactive award would not impose too great burden on the father. [38] The Chambers Judge had awarded retroactive support for period of more than five years and based it on the father’s guideline income. [39] Hiemstra v. Hiemstra, fourth decision of the Alberta Court of Appeal, also involved the support provisions of the Divorce Act. Justice Bastarache upheld the retroactive award of child support. In doing so, he considered the following factors as militating in favour of retroactive award: 1. The disparity of incomes of the parties was great; 2. The mother paid disproportionate share of the burden of supporting the children; 3. The mother’s delay in seeking change in support was understandable given the negative effects of previous litigation upon her and her family; 4. The father was well aware that he could afford child support and did not reasonably believe his support obligation was being met; and 5. The father’s failure to respond to an e-mail request for help. [40] The Chambers Judge’s decision to award retroactive child support to January 1, 2003 was upheld. The mother had e-mailed the father seeking financial help on April 3, 2003. The mother’s application was filed May 28, 2004. [41] It is worthy of note that although agreeing with Justice Bastarache’s disposition of the case(s), Justices Abella, Fish and Charron, would not limit child support by reference to “the date of the recipient parent’s notice of an intention to enforce it” (paragraph.162). They describe the obligation of the payor parent to adjust payments in more positive terms at paragraph 161 and 163: 161. The law is clear that separated parents are obliged to pay child support in accordance with their ability to do so. Only the payor parent knows when there has been change in income that would warrant an adjustment to child support. That, therefore, is the parent with the major responsibility for ensuring that child benefits from the change as soon as reasonably possible. system of support that depends on when and how often the recipient parent takes the payor parent’s financial temperature is impractical and unrealistic. 163. So long as the change would warrant different child support from what is being paid, the presumptive starting point for the child’s entitlement to change in support is when the change occurred, not when the change was disclosed or discovered. [42] The various issues and factors to be considered prior to making retroactive award may be outlined as follows: 1. Whether there is an existing court order or agreement (i) parent paying in accordance with court order is generally entitled to rely upon the certainty the order purports to confer; (ii) agreements are accorded some deference but their reasonableness may need to be assessed at the original signing date and application date; 2. Status of the child/children: whether still of the marriage jurisdictional issue 3. Delay by the recipient parent in seeking an award; 4. Blameworthy conduct by the payor parent; 5. Financial circumstances of the child(ren) and whether the award will benefit the children; 6. Hardship imposed by retroactive award; When was formal notice given to Mr. Munro? [43] The parties disagree on whether the retroactive period should be calculated by reference to July 8, 2004; July 20, 2004; May 30, 2008 October 9, 2008 or some date in between. [44] On October 9, 2008, Mr. Munro actually received the variation application when it was delivered to his lawyer. On May 30, 2008 his lawyer received copy of Ms. Niles counsel’s cover letter to the court enclosing the application and related documents. The effect of the communication between the parties from July 8, 2004 to May 30, 2008 is less clear. [45] On July 8, 2004, Ms. Niles wrote Mr. Munro and raised the issue of child support (exhibit 6, para. 28). Her solicitor initiated dialogue on July 20, 2004. Almost four years passed before the application was filed. One must ask whether the July 2004 correspondence is formal notice in the context of this litigation and secondly what effect, if any the passage of time before the filing of the court documents had on the effectiveness of notice. [46] Mr. Munro submits that Ms. Niles’ delay in following up on the July 8, 2004 letter was unreasonable and therefore, can not be taken as effective notice. Presumably this is reference to Ms. Niles alleged tardiness in responding to his inquiries and proposals after this date and secondly to her decision to not more expeditiously pursue the matter in court if she disagreed with his position. [47] The July 20, 2004 letter from Ms. Niles’ counsel to Mr. Munro directly, concluded by serving notice that “an application to the Supreme Court (Family Division) to resolve this matter” would result if she did not have response on or before Friday, August 13, 2004. Ms. Niles, by letter dated July 8, 2004 (her affidavit- exhibit paragraph 28 and his affidavit- exhibit at paragraph 1) had also raised the issue of extraordinary expenses for the two children. [48] Over the next four (4) years, Ms. Niles continued discussions with her lawyer, including the prospect of court action (exhibit paragraph 28). She argues in part that she wanted to have the matter in court before May 30, 2008 She essentially holds her lawyers responsible for the delay in filing the application. [49] In the context of the parties correspondence between 2004 and 2008 on the issue of child support and special expenses for the children there could be no misunderstanding on May 30, 2008 that Ms. Niles was now making serious claim. therefore reject the argument that date as late as October 9, 2008 should be taken as the date of formal notice to Mr. Munro of Ms. Niles’ claim. am satisfied that occurred May 30, 2008. The rationale for this conclusion follows in the form of answers to the questions that arise as part of the pertinent analysis. Was there delay by Ms. Niles? If so, what is its effect on the determination of effective notice for the purposes of this application [50] Justice Bastarache, in D.B.S. at paragraph 102-104 addressed the issue of delay by the recipient parent in formalizing notice of her claim. He described the considerations as follows: 102 Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns. The first is the payor parent's interest in certainty. Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling. Notably, the difference between reasonable and unreasonable delay often is determined by the conduct of the payor parent. payor parent who informs the recipient parent of income increases in timely manner, and who does not pressure or intimidate him/her, will have gone long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In this context, recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met. 103 The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for their children. From child's perspective, retroactive award is poor substitute for past obligations not met. Recipient parents must act promptly and responsibly in monitoring the amount of child support paid: see Passero v. Passero, 1991 CanLII 8165 (ON SC), [1991] O.J. No. 406 (QL) (Gen. Div.). Absent reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children. 104 In deciding that unreasonable delay militates against retroactive child support award, am keeping in mind this Court's jurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson, at p. 869. In fact, am not suggesting that unreasonable delay by the recipient parent has the effect of eliminating the payor parent's obligation. Rather, unreasonable delay by the recipient parent is merely factor to consider in deciding whether court should exercise its discretion in ordering retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent's interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts. [51] In the words of Bastarache, J., the “delay in seeking child support is not presumptively justifiable”. [52] Ms. Niles has not justified the delay in seeking child support as reasonable. [53] Court exhibit 1A, being exhibit to the affidavit of Mr. Munro, includes an exchange of letters between Mr. Munro’s counsel and Ms. Niles’ counsel following July 20, 2004 when the issue was raised by Ms. Niles’ counsel with Mr. Munro. The correspondence supports the conclusion that the parties continued to discuss the merits of the claim of Ms. Niles. Lengthy periods passed between requests for information and the provision of the information. I am satisfied that Mr. Munro did not engage in blameworthy conduct during this period. The correspondence reflects good faith on his part. am satisfied he reasonably believed throughout he was meeting if not exceeding his obligations. [54] In addition, conclude that the cumulative effect of the communication is to leave an impression of acceptance of the status quo by Ms. Niles, notwithstanding her stated claims. [55] Justice Bastarache referred to effective notice as consisting of communication as informal as “broaching” the subject. Clearly the filing of an application is not necessary for there to be effective notice. On the unusual facts of this case I have concluded that communication that represented effective notice in 2004 was voided by the delays of the recipient parent and her failure to prosecute the matter. arrive at this result by balancing the competing need of the payor parent for certainty and fairness to children. The recipient parent’s responsibility was to pursue her claim when negotiations became fruitless from her perspective. Allowing her claim to languish for years represented unreasonable delay on her part. [56] In the circumstances, am persuaded that the potential retroactive period should be determined by reference to Mr. Munro being given formal notice on May 30, 2008 when the application was filed. Ms. Niles counsel’s letter to the court, wherein she requested that the application be filed, was copied to Mr. Munro’s lawyer. The enclosures were not. Notwithstanding Mr. Munro’s requests for the enclosures over the next months, the May 30, 2008 letter dispelled any sense of confidence that matters were settled. In the context in which the May 30 2008 letter was received, Mr. Munro was given formal notice that Ms. Niles was seeking variation of the parties Corollary Relief Judgment. [57] The earliest presumptive commencement date for any retroactive child support award is therefore three years prior to this formal notice. It may be earlier if Mr. Munro is guilty of blameworthy conduct. Was Mr. Munro guilty of blameworthy conduct? [58] In her pre-hearing brief, Ms. Niles argues that Mr. Munro’s blameworthy conduct consisted of the following: 1. strategy to avoid dialogue on the child support issues. 2. strategy that consisted of delaying responses to inquiries and in making payments. 3. Unilateral decreases in child support. 4. Misrepresenting his resources available to assist the older child with his education expenses. 5. Lying to the older child about the use to which his mother was putting child support funds. 6. Breaking promises regarding funding. 7. Instructions to the older boy to not disclose the level of assistance he was receiving from Mr. Munro. [59] would characterize Mr. Munro as responding to inquiries about his income in direct way. There is no evidence of deceit or desire to avoid his responsibilities. In fact, he expended large sums of money on the educational pursuits of his older son, and paid what was an arguably appropriate table amount of support for the younger child. The matter remained in contention because the parties disagreed as to whether certain expenses were justified for the older child. [60] On October 28, 2004, Mr. Munro’s lawyer replied in detail to letter dated July 20, 2004 from Ms. Niles’ counsel. Mr. Munro’s position was reasonable. Although the parties corollary relief judgment provided for equal sharing of special expenses he was agreeable to paying 73% of the older boy’s university expenses and $1,200 per month for child support for the other child who remained at home. The table amount was $1,419.00. Mr. Munro’s position was that the support for the younger child should be reduced to $1,200 to reflect the fact of the younger son spending 40% of his time with him. (Exhibit 1A, p.13) In follow up letter dated November 22, 2004, Mr. Munro’s lawyer sought response to his October 28, 2004 letter. This was received on November 29, 2004. [61] Other communication followed, culminating in letter to Ms. Niles’ counsel on January 21, 2005. This letter reveals that the parties disagreement now revolved around certain expenses for which Ms. Niles was seeking cost sharing. As stated the parties’ corollary relief judgment provided for equal sharing of special expenses. Ms. Niles sought Mr. Munro’s agreement that the cost sharing be proportionate. Mr. Munro was not opposing the change. It is clear that the focus of the parties’ disagreement was the older boy’s university expenses not the quantum of child support for the younger child, The only reference to the younger child is whether child support should be the full table amount of $1,419 or $1,200. By September 2005, Mr. Munro agreed to pay the full table amount, notwithstanding that he was of the view that the younger son spent more than 40% of his time with him. In the context of the money Mr. Munro was paying, the difference was an insignificant amount. [62] Mr. Munro’s counsel wrote September 28, 2005 to Ms. Niles’ counsel with proposal for settlement. The proposal for settlement was reasonable. He wrote again October 26, 2005 and December 8, 2005. [63] On February 14, 2006 he again asked for response to the September 28, 2005 letter (exhibit 1A p.55 and p. 57) As of March 22, 2006, Ms. Niles’ lawyer had not received instructions upon which to base response. period of almost six months had passed. To this was added another 2-3 months before response, dated June 9, 2006 was received by Mr. Munro. This represented the passage of almost nine months. [64] Finally by letter dated January 2, 2007 Mr. Munro offered to settle the disagreement with lump sum payment of $8,000. response was received February 16, 2007. This resulted in an increased offer of $10,000 on behalf of Mr. Munro by letter dated May 11, 2007. Apparently this was not accepted. (Exhibit 1A p.78 83) [65] On December 10, 2007, Mr. Munro’s lawyer was advised that new lawyer had assumed carriage of the file. Mr. Munro’s lawyer immediately sought an outline of Ms. Niles’ position by letter dated December 11, 2007. [66] It appears the response came in the form of copy of covering letter from Ms. Niles’ lawyer to the court, wherein she asked the court to file the application and issue it. On June 2, 2008, June 19, 2008, July 17, 2008 and August 13, 2008 Mr. Munro’s lawyer sought copies of the court documents from Ms. Niles’ lawyer. They were provided October 9, 2008. Mr. Munro’s lawyer sought “missing” documents from Ms. Niles’ lawyer by letter dated October 28, 2008. [67] One of the factors the court must consider when assessing blameworthiness is the disparity between what was paid and what should have been paid. Counsel have asked that assess blameworthiness without considering this aspect of the analysis in detail. believe it is possible to do so based on the evidence and submissions made. Additional submissions may still be made on whether there was an underpayment by Mr. Munro. Given that the older child is not affected by this aspect of my ruling my focus is now on the level of support the younger son received. [68] The evidence establishes that Mr. Munro’s conduct following the July 2004 communication from Ms. Niles and her counsel was “far from blameworthy”. In 2004 he was making substantial child support payments. He was agreeable to making payments based on the child support tables and generous contribution to the post secondary education costs of his older son. He maintained this position over the ensuing period of almost four (4) years and he has in fact done so. [69] He disagreed with some expenses for the older child and for which Ms. Niles sought contribution. Given what those expenses were, his objections were within the range of reasonable concerns parent might raise. He did not seek to avoid his financial responsibilities. [70] It is worth noting that Mr. Munro paid the following amounts of base table child support in the years shown (paragraph 38 of Exhibit #1-Mr. Munro’s affidavit dated May 6, 2009): 2004 $19,200.00 2005 $17,793.00 2006 $16,831.00 2007 $16,829.00 2008 $11,224.00 [71] In addition, he paid the following amounts towards the university education of his sons: 1st year of university 2004/2005 $24,090.00 (para. 42- Exhibit #1) 2nd year of university 2005/2006 4,535.12 (para. 47-Exhibit #1) 3rd year of university 2006/2007 $16,402.80 (para. 54-Exhibit #1) 4th year of university 2007/2008 $21,232.42 1st year younger son 2008/2009 $10,856.90 (1st year at Dalhousie) (para. 65-Exhibit #1) [72] Mr. Munro responded promptly and was diligent in his pursuit of resolution. His offers to settle were meaningful, in good faith and fair given the uncertainties of the parties’ cases. [73] In contrast, it is difficult to avoid concluding that Ms. Niles was unsure of her claim. She must be held responsible for the many months of delay in responding to Mr. Munro’s inquiries. The reasonable conclusion is that she did not have confidence in her claim and was not serious about pursuing it. [74] In the words of Justice Bastarache, Ms. Niles is guilty of “unreasonable delay” in prosecuting her claim. The effect of her failure is to nullify the effective notice of July 20, 2004 and in subsequent correspondence. In my view, the need for certainty for a payor parent weighs in favour of Mr. Munro, given the passage of several years since effective notice was first received; the significant level of support he was providing; his reasonable belief that he was meeting his obligations; the efforts he made to determine Ms. Niles claim, to respond to it and to settle it. It would be very unfair result, if he could now be told that he is guilty of blameworthy conduct and his child support obligation reassessed for period more than three years prior to May 30, 2008. He is agreeable to having his child support obligation over the previous three years before formal notice, examined and if found to be deficient he is prepared to pay the difference. However, he believes he has not been deficient. Counsel will have the opportunity to make further submissions on this point. Conclusion [75] In light of the foregoing conclusion on the issue of blameworthy conduct, the appropriate period of retroactive reassessment should be three years before formal notice, this being the maximum recommended retroactive period absent , in this case, blameworthy conduct. Child support and Section expenses for the younger son will be therefore calculated based on the child support tables for the retroactive period of three years before May 30, 2008. That reassessment may result in finding that the obligation has in fact been satisfied. In addition, s.7 expenses will be calculated on proportionate basis.
The mother applied for retroactive support (table amounts and s. 7 expenses) for two adult children. The father resisted the application in relation to the oldest son on the basis that he was no longer a dependant child when it was filed. The evidence showed the son finished university before the application was filed. His graduation took place after, at which time he was already working full time and living with his girlfriend. He lived with his mother for few months because of relationship problems, but later moved back in with the girlfriend. He also received some assistance from his parents when he took time off work to retrain. The father felt the mother's application in relation to the younger son should be limited because of her unreasonable delay in making it. He argued retroactivity should be limited to three years from the date he received the application (months after it was filed). The mother argued formal notice was given when her lawyer sent a letter requesting additional support several years earlier. She asked the court for support retroactive to three years before that date, or longer (based on what she alleged was blameworthy conduct on the father's part). The evidence showed the mother was slow in responding to the father's request for particulars. Despite threatening legal action several times, it took her years to file the application. The wife's application for retroactive support in relation to the oldest son dismissed. He was no longer a child of the marriage when it was filed. He became independent when his schooling finished and he started working and living with his girlfriend. While his parents provided assistance during his relationship troubles and retraining, they did so voluntarily and not out of any legal obligation. Support for the younger son to be reassessed retroactive to three years from the date the application was filed (as opposed to received). The mother unreasonably delayed her claim by allowing it to languish for years. While normally the letter from her lawyer would be said to constitute effective notice, the notice here was voided by the mother's failure to prosecute the matter. The father did not engage in blameworthy conduct: he made efforts to respond to and settle the mother's claims; he paid a significant level of support; and he reasonably believed he was meeting his obligations. Here, the need for certainty for a payor parent weighs in favour of the father.