Garnier v. Garnier, 2021 NSSC 116
Justice Theresa M. Forgeron

Issues: Child support for children in post-secondary | Variation of child support | Retroactive child support | Spousal support

The parties were married 24 years, and have two adult children. When they divorced, terms for spousal and child support were set out in a Corollary Relief Order. Ms. Garnier applied to change the amount of child support when the circumstances of their children changed. As a result of COVID-19, one child moved in with Ms. Garnier and will complete their education remotely. The parties' other child now has a graduation later than anticipated. Justice Forgeron found that these changes were a material change in circumstances. Mr. Garnier was ordered to pay retroactive child support for the child who moved home. This was based on the fact that the parties previously agreed to a reduced amount of child support when the child lived independently out of province. The new retroactive amount was based on the amount of child support Mr. McKay agreed to pay when the child returned home for summer breaks etc.

Ms. Garnier also made a claim for the children's tuition but she received no order for these amounts given that post-secondary expenses are considered Section 7 expenses and she did not provide sufficient documentation for one child's expenses, and their other child was considered financially independent enough to cover this expense. It was also noted that Mr. McKay had no ability to pay additional expenses.

Ms. Garnier applied to have the Corollary Relief Order enforced since the parties disagreed on terms relating to spousal support payments. Justice Forgeron considered the wording of the Order and how the parties interpreted it. It was determined that spousal support was payable by Mr. Garnier to Ms. Garnier until she had access to her share of his divided pension as income. The Order used language that indicated spousal support would continue until "payment" of pension funds were received rather than on "division" the pension and Ms. Garnier managed her finances with the expectation of receiving spousal support or access to her share of the divided pension.

P.W. v. C.M., 2021 NSSC 127
Justice Lee Anne MacLeod-Archer

Issues: Child support variation | Income for child support | Retroactive child support

P.W. applied to change his child support amount due to changes in his income. When the original order was granted, P.W. provided inadequate financial information. The Court used a higher income than he reported to calculate his child support payments. This was due to the belief that P.W. could earn more money than he reported. Justice MacLeod-Archer considered P.W.'s new income information a material change in circumstances. However, his income was again increased for child support calculations, based on the belief that P.W. could earn more income.

In coming to this decision, Justice MacLeod-Archer considered why P.W.'s income was initially increased and how the increase was determined. P.W. has marketable skills and qualifications which could increase his earnings and P.W.'s past earnings were higher than his reported income at the time the order was granted. P.W. was ordered to pay child support based on his new determined income and he was also ordered to pay retroactive child support since he did not adequately report his income initially. He is required to make monthly payments of $200 to C.M. until all amounts owed were paid. P.W. is also required to obtain Court permission before bringing any applications related to parenting or support since he has made numerous applications in the past.

Best v. MacKay, 2021 NSSC 124
Justice Theresa M. Forgeron

Issue: Retroactive child support

The parties were in a long-term relationship and have two teenage sons. In 2007, Mr. McKay was ordered to pay child support according to the Child Support Tables. Since that time, Mr. McKay's income has increased. Ms. Best sought retroactive child support and a new child support order reflecting this increased income. In deciding whether to award retroactive child support, Justice Forgeron considered factors such as: the reason why this application was delayed; whether Mr. McKay had any blameworthy conduct; the needs of the children and any hardship experienced by the children or Mr. McKay.

Ms. Best's application was delayed because Mr. McKay refused to provide her with his updated income information and she did not have the financial resources to bring the application. Mr. McKay was found to have engaged in blameworthy conduct since he refused to provide updated income information. The needs of the children were considered significant, given that Ms. Best is a single mother who struggles financially, and Mr. McKay had avoided paying adequate child support. Lastly, Justice Forgeron decided Mr. McKay should not be allowed to benefit from avoiding his financial obligations to his children. Any hardship he may suffer from a retroactive award should be addressed by Mr. McKay making lifestyle changes.

A retroactive change in child support was awarded, beginning in 2008 when Mr. McKay's income increased. Mr. McKay was responsible for paying $59,113.18 in retroactive child support. $15,016.35 of this amount was attributed to Maintenance Enforcement Program arrears. The remaining amount was determined based on the child support table amount that Mr. McKay should have paid when his income increased. His retroactive child support payment is $300 per month until the children become ineligible for child support, at which time Mr. McKay's retroactive child support payments must increase. Mr. McKay's future child support payments were also increased to reflect his increased income, based on the child support tables.

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This case summary was prepared with contributions from Dominique Perinchief, Articled Clerk.

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