IN THE FAMILY COURT OF NOVA SCOTIA
I.G. v. R.A., 2009 NSFC 1
Date:20090106
FNGMCA 05/656
BETWEEN:
I.G.
Applicant
v.
R.A.
Respondent
DECISION
JUDGE: Jamie S. Campbell
COUNSEL: Damian Penny, for the Applicant
Bedford Law
Suite 100, 1496 Bedford Hwy
Bedford, NS B4P 1E5
Peggy Power, for the Respondent
Burchell MacDougall
PO Box 1128
710 Prince Street
Truro, NS B2H 5H1
[1] The exact circumstances surrounding one’s conception, it seems, are one of the few mysteries that human curiosity seems content to leave unexplored. Parents usually maintain discrete silence and their children, despite their age or inquisitive nature, are generally not inclined to look behind the facts of their own birth. There may well be reasons of social or biological evolution for that convention of discretion. It does perhaps serve to confirm that while each person is, of course, the biological product of two parents, he or she is not their creation to be possessed but an individual to be valued as an individual. How one came to be does not diminish the dignity of one’s being.
[2] JG is now 16 years old. She has excelled academically. She appears to have thrived socially. Despite financial limitations her mother, IG has provided for her, not only in material ways but by being an active, involved and caring single parent.
[3] How J came to be is of almost no consequence now, either to J or her mother. She is a person to be valued for her own sake and for who she has become.
[4] This case is, to some extent, about the circumstances of her birth. It is an application for maintenance made 15 years after she was born. The issue is whether, and to what extent, retroactive maintenance should be ordered.
[5] J has never known her biological father, RA. He met IG only once. He was 24 years old. She was 19.The circumstances of that single meeting shed little if any light on the issues that are to be ultimately decided. It is sufficient to say that JG was born to IG and through DNA testing, has been proven to be the child of RA.
[6] RA was married at the time, with one child.
[7] IG did not tell RA about her pregnancy. When J was born, she did not contact RA, whose wife was then pregnant with her second child. She decided to bring her daughter up on her own, and did just that. She appears to have done an admirable job it.
[8] She continued to do seasonal work, and with the support of her mother was able to take night courses to upgrade her education. She is now employed as a teacher’s assistant.
[9] In March 2007, IG applied for child support from RA. When the results of the DNA testing were obtained RA began paying child support and did so retroactive to the date of the application. The issue is the extent to which child support should be granted, on a retroactive basis, before the date of the application itself.
[10] Both counsel have cited the Supreme Court of Canada decision in D.B.S. v. S.R.G.[2006] 2 S.C.R.231, as the leading case on the issue of retroactive child support. The court set out four factors to be taken into account when considering whether such a retroactive order should be made. Those factors seek to provide guidance in how to balance the concern for certainty on the part of the parent from whom support is sought and fairness to the child involved. Children have a right to support from their parents. There is a competing concern that parents not be unfairly encumbered by support obligations arising after the fact.
[11] The court must first consider the reasonableness of the parent’s reason for not making an application on a more timely basis. While it cannot be presumed that a delay in making such an application is justified, courts have to be sensitive to practical concerns. Parents may have real fears about the vindictive reaction of the parent from whom support is sought. A parent may not have the emotional strength or the financial or other means to bring such an application.
[12] The second factor is the conduct of the parent from whom the support is sought. That spouse’s interest in certainty is more compelling when there has been unreasonable delay. It is less compelling when that spouse has engaged in blameworthy conduct. Justice Bastarache provided a definition of blameworthy conduct that could have practical application well beyond this context. He characterized blameworthy conduct as anything “that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”. ( para. 106)
[13] Intimidation, deception or knowingly avoiding or diminishing the amount of the support obligation are each forms of blameworthy conduct.
[14] The circumstances of the child are also a relevant factor. The court made it clear that parents should try to make sure that their children receive support when they need it. A retroactive support order years later does little to help the child who had to make do for years without the kinds of things that a proper level of support might have provided. Yet, a child who now enjoys a high standard of living might benefit less from a retroactive support order than one who is in need.
[15] Finally, the court should consider the hardship caused by making a retroactive award of maintenance. A retroactive award is based on past income which might no longer reflect current reality. The payor parent may have new family obligations to meet. Courts must be aware that retroactive payments disrupt the financial affairs of the payor parent in a way that prospective orders to not.
[16] If a court determines that a retroactive order is appropriate, there is a decision to made about the effective date. Using the date on which legal action is commenced places too much emphasis on the issue of certainty. It fails to take into account the context of the situation. Awarding support from the date on which it could have been claimed does not provide for enough certainty. The date of effective notice is a workable compromise.
[17] The Supreme Court of Canada noted that once the recipient parent raises the issue of child support, discussions should move forward. If they do not, at that point legal action should be considered. A long period of inactivity after effective notice has been given may mean that the payor parent’s reasonable interest in certainty has returned. Even if effective notice has been given, the court held that it would usually be inappropriate to make an award for a retroactive date more than three years before formal notice was given.
[18] Effective notice can cease to have effect if it not followed up with some action. The court considered three years to be a reasonable time. If effective notice is given, and legal action is started within three years, then the date for the retroactive support order may be the date of the effective notice.
[19] In this matter, the issue of whether a retroactive order should be made at all is closely connected to the issue of the date to which any such order should be made. The date of effective notice would seem to be relevant to the issue of whether retroactivity should be ordered at all.
[20] IG decided to bring up her daughter on her own. To spare RA’s wife and new family, IG made no attempts to contact RA for at least the first 6 years of J’s life. There is no evidence to indicate that he knew that he was the father of her child.
[21] The decision to take no action was a significant one, for everyone involved. It meant that no financial support was provided. It also meant that J would not know her father, and RA would not know his daughter. In retrospect some might question the wisdom of such a decision.
[22] Yet, the motives for that decision may have been as complex as the situation itself. It is not to engage in idle speculation to wonder about them, just as, at this stage, it seems inappropriate to judge them. As a young mother, IG may well have sought to simply avoid what she might have then expected to be a difficult fight to secure what might then have been minimal support. Her motives whether or not fully articulated might have included avoiding the potential for ongoing access disputes or even a full custody dispute with a man who already had a small family and presumably some resources to draw upon. As a 19 year old single mother IG had to make a decision, for her daughter and for herself.
[23] IG testified that when J was 6 years old she contacted RA, because she had been told that his father was ill and had expressed an interest in seeing his granddaughter before he died. She said that she spoke with RA about having J see her grandfather. RA was supposed to get back to her. He never did.
[24] RA testified that he had no recollection of that telephone call. It is not the kind of call that one would be likely to forget. He said that his father had indeed been ill at the time. He was not in a condition to be seeing anyone by the time that RA had been called home from western Canada.
[25] If such a call were made, it was made in 1998, six years after J was born, and 9 years before the application was made. IG did not suggest that support was demanded, suggested or even discussed. There was no suggestion that paternity testing be done. RA would have no reason to simply accept that J was his child. Even if the call were made, as IG recalls it, it would hardly qualify as effective notice.
[26] A person in the place of RA, upon receiving such a call would not reasonably assume that he should arrange his financial affairs to prepare for the payment of support. No request for support was even made.
[27] Unlike a situation in which there was an ongoing relationship between the parents, RA and IG were together only once. At most, RA would know that a woman whom he had met once, some six years before, was now claiming that he was the father of her child. It would undoubtedly be startling. It is questionable whether it should qualify as effective notice.
[28] A person such as RA, in those circumstances might well, as it is sometimes said, “wait for the shoe to drop”. Nine years seems an overly long time to wait.
[29] As Justice Bastarache noted in D.B.S. v. S.R.G. at para 123, “ a prolonged period of inactivity after effective notice may indicate that the payor spouse’s reasonable interest in certainty has returned”. Even if effective notice could be considered to have been given by a phone call in 1998, making no claim for maintenance, the failure to take any action to follow up on it, would reasonably entitle RA to assume that the situation had been resolved. If the call had been “serious”, one could reasonably presume that it would have been followed at the very least by another telephone call, if not a more pointed form of contact.
[30] Given IG’s age and circumstances, her failure to pursue the matter aggressively, or even in anything more than the most passive of ways, is at least understandable. It is not a question of the rightness, wrongness or subjective reasonableness of her decision. Nor, at this point, is it a question of balancing the financial circumstances of IG and her daughter against those of RA and his family. If retroactive support were to be ordered, the balancing of fairness and certainty would be achieved by making that order from the date of effective notice. There was no effective notice prior to the formal legal process being commenced.
[31] Child support should be paid from the date on which the application was made, which in fact has been done. Support has been paid, retroactive to the date of the application in amounts that are in accordance with the Child Support Guidelines.
[32] Commencing in July 1, 2008, the amount of support payable will be $1248.00 to reflect RA’s 2007 income. This will require a lump sum payment of $2040.00 to be made to adjust the support payments for the months of July through November 2008. From December 2008 through to and include June 2009 monthly support will be paid in the amount of $1248.00.
[33] RA’s 2008 income tax return will be filed on or before June 1, 2009 and provided to IG. At that time, support to be effective July 1, 2009, will be recalculated based on his 2008 income.
[34] There will be no order for costs in this matter.
J.