SUPREME COURT OF Nova Scotia
Citation: Zenner v. Zenner, 2015 NSSC 16
Date: 2015-01-26
Docket: No. SY DVRO 089304
Registry: Yarmouth
Between:
RAINER ERNST ZENNER
Applicant
v.
DENYSE L., ZENNER
Respondent
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Judge: |
The Honourable Justice Pierre L. Muise, J |
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Heard: |
April 3, 2014 and December 19, 2014, in Yarmouth, Nova Scotia |
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Counsel: |
Matthew Fraser, for the Applicant Murray Judge, for the Respondent |
INTRODUCTION
[1] The parties were divorced in Prince Edward Island in 1990. At that time, Mr. Zenner was ordered to pay $1200 per month for the support of the two children of the marriage, plus $400 per month in spousal support.
[2] On Mr. Zenner’s application, those support provisions were varied provisionally in Ontario in1996. However, the Supreme Court of British Colombia refused to confirm the provisional order.
[3] They were again, on Mr. Zenner’s application, provisionally varied in 2008 by order of Justice Taylor of the Supreme Court of Prince Edward Island. That provisional order was confirmed by Justice Arnold-Bailey of the Supreme Court of British Columbia on September 15, 2011.
[4] In 2013, Mr. Zenner filed another application in Ontario seeking a further variation of the support provisions. On August 15, 2013, Justice Broad, of the Ontario Superior Court of Justice, rendered a decision, finding that there had been a material change in circumstances since the order in 1990, and provisionally: terminating support; ordering rescission of arrears; and, staying the enforcement of any ongoing support or arrears, but refusing to order return of any overpayment of support.
[5] The matter came before me for hearing to determine whether the provisional order of Justice Broad should be confirmed.
[6] The hearing commenced April 3, 2014. It was scheduled for continuation on July 24, 2014, to allow counsel to research and brief the issue of material change in circumstances. Prior to the scheduled continuation date, the matter was adjourned without day so that the parties could address jurisdictional issues related to proceedings in Prince Edward Island. The hearing of the matter was ultimately completed on December 19, 2014.
[7] On that day, I rendered an oral decision refusing confirmation of the provisional order of Justice Broad, and providing the reasons for doing so. Section 19(12) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) requires that written reasons for such refusal be given to the Nova Scotia Attorney General and to the Court that made the provisional order.
[8] These are my reasons in writing.
PRELIMINARY ISSUES
[9] Before a court can consider the merits of a variation application, it must be satisfied that there has been a material change in circumstances since the last order dealing with the issue or issues in question. That principle is not in dispute and is referred to in numerous cases, including Harrison v. MacKinnon, 2010 NSSC 445, at paragraph 4, relying upon Gordon v. Goertz, [1996] 2 S.C.R. 27.
[10] Mr. Zenner takes the position that he need only show a material change in circumstances since the original 1990 order and that there has been a material change in circumstances since then and/or since the 2008 provisional variation which was confirmed. Ms. Zenner takes the position that Mr. Zenner must show a material change in circumstances following the 2008 provisional variation, and has failed to do so.
[11] Therefore, in considering whether or not to confirm the provisional variation order of Justice Broad, I must determine the following preliminary issues:
1. Is Mr. Zenner required to show a material change in circumstances from 1990 or from 2008?
2. Has Mr. Zenner shown a material change in circumstances from the applicable date?
LAW AND ANALYSIS RE PRELIMINARY ISSUES
Preliminary Issue 1: Is Mr. Zenner Required to Show a Material Change in Circumstances from 1990 or from 2008?
[12] Section 17 of the Divorce Act provides:
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; …
….
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.” [Emphasis by underlining added.]
[13] The 2008 provisional order of Justice Taylor, confirmed in 2011 by the British Columbia Supreme Court, was the last variation order. It has not been overturned on appeal. Lowry J.A., of the British Columbia Court of Appeal , on March 16, 2012, dismissed Mr. Zenner’s application to extend time to appeal. On April 19, 2012, the Prince Edward Island Court of Appeal granted Mr. Zenner’s motion to extend time for appeal. However, in its decision in Z.(R.) v. Z.(D.), 2013 PECA 2, it dismissed his appeal on the basis that it had no jurisdiction to hear an appeal from a provisional order made in Prince Edward Island under s. 18 of the Divorce Act.
[14] Mr. Zenner argues, based on Olaitan v. MacDougall, 2014 PECA 5, that the 2008 Order of Justice Taylor was a nullity and void ab initio, because he:
1. failed to consider the provisions of the Federal Child Support Guidelines and Section 17 of the Divorce Act;
2. did not have evidence that the children had ceased to reside with Ms. Zenner many years before 2008, which Ms. Zenner made known to the British Columbia court; and,
3. did not have Ms. Zenner’s income information
[15] In my respectful view, I do not have authority to declare Justice Taylor’s provisional decision, nor the decision of Justice Arnold-Bailey confirming it, a nullity and void ab initio. That jurisdiction is limited to the relevant appeal court.
[16] As stated by Justice Forgeron, in MacKeigan v. Reddick, 2007 NSSC 300, at paragraph 14, based on Gordon v. Goertz:
“An application to vary is not an appeal of the original order, nor is it an opportunity to retry a prior proceeding. I must treat the existing order as correct as of the time the order was made. I can only vary the existing order if Mr. MacKeigan has proved that a material change in the circumstances exists … .”
[17] In the 2008 provisional proceeding, Justice Taylor, as revealed in the published decision of R.Z. v. D.Z., 2008 PESCTD 41, made the following determinations:
1. Mr. Zenner’s reported income did not accurately reflect his actual income.
2. The new evidence regarding Mr. Zenner’s suspension by the Prince Edward Island Association of Optometrists, including the fact that an uninsured lawyer had been negligent and deceitful in handling the matter of Mr. Zenner’s suspension, did not constitute a material change in circumstances warranting a variation.
3. Mr. Zenner’s request for elimination of arrears was dismissed, except to the extent that it was effected by a retroactive variation of child and spousal support. That was on the basis that he had been found to have had the capacity to pay in the past and his refusal to pay had “prevented his children and his ex-wife from becoming self-sufficient”. Justice Taylor also added that Mr. Zenner still had the ability to earn an optometrist’s income and make significant payments on arrears before reaching the age where he would be unable to work.
4. The children ceased to be children of the marriage June 1, 2005 and June 1, 2006 respectively. Child-support ceased effective those dates. He made this determination, without any information regarding whether or not the children continued to be dependent at the time of the hearing. He based it on the assumption of two years of post-secondary education. Spousal support also ceased effective June 1, 2006. These retroactive terminations of support reduced arrears by $55,200.
[18] Justice Taylor also noted, at paragraph 30, that the Divorce Judgment was granted before the coming into force of the Child-Support Guidelines. However, he noted that the initial support order was upheld on a variation application in 2000, after MacDonald, C.J. (as he then was) found that Dr. Zenner was intentionally under-employed. As noted at paragraphs 14 and 15, Justice MacDonald dismissed the application as it related to forgiveness of arrears and termination of spousal support; but, remitted the matter to British Columbia to determine whether the children were still children of the marriage. On January 31, 2001, Justice Warren, of the Supreme Court of British Columbia, found that both children remained children of the marriage and remitted the matter back to Prince Edward Island. That resulted in the child support provisions also remaining unchanged.
[19] Justice Taylor did not have specific information regarding when the children ceased to be children of the marriage and did not have Ms. Zenner’s financial information. However, that is the type of information gap which flows from the nature of a provisional hearing. That is why it is sent to the applicable court in the jurisdiction where the other party resides for a confirmation hearing. The missing information can be provided to the confirming court. As noted, the British Columbia Supreme Court did confirm Justice Taylor’s order with the benefit of additional information.
[20] So Justice Taylor clearly considered the existence of the Federal Child Support Guidelines and noted that Justice MacDonald, who had to determine the variation application following the coming into force of those Guidelines, had refused the variation request.
[21] Justice Taylor made reference to Section 17 of the Divorce Act, at paragraphs 26, 40, and 52. At paragraphs 26 to 29, he discussed in detail the principle of material change in circumstances. At paragraph 36, he concluded that the new evidence regarding Dr. Zenner’s suspension did not constitute a material change in circumstances. That decision was, at least in part, based upon the fact that Dr. Zenner had not shown why he could not have continued his optometrist practice in Ontario, where he was authorized to practice during the time of his suspension in Prince Edward Island. He concluded that Mr. Zenner’s decision not to continue his practice in Ontario was made for the purpose of avoiding paying child support. In my view, he clearly considered Section 17 of the Divorce Act.
[22] In the provisional proceedings heard by Justice Broad of the Ontario Superior Court of Justice on August 15, 2013, Dr. Zenner requested:
1. retroactive termination of child and spousal support resulting in arrears being set at zero and overpayments, including those garnished, be refunded; and,
2. credit for fines and fees collected.
[23] Justice Broad found a material change in circumstances and did provisionally reduce ongoing support to zero, rescind arrears, and stay enforcement of arrears and ongoing support. He declined to order refund of any overpayment due to an insufficient evidentiary basis.
[24] However, in doing so, he considered whether there had been a material change in circumstances since 1990, not 2008. He used 1990 as the applicable date from which to assess material change because Mr. Zenner misled him into believing that no provisional variation order had been confirmed. At page 3 of the transcript of the hearing and of his decision, Justice Broad specifically asked Mr. Zenner whether the decision of Justice Taylor of the Prince Edward Island Supreme Court had been confirmed by the Court in British Columbia. Mr. Zenner responded: “No, it wasn’t”.
[25] Dr. Zenner gave that answer approximately one year and five months after the British Columbia Court of Appeal dismissed his application to extend time to appeal the order confirming Justice Taylor’s order, and six months after the Prince Edward Island Court of Appeal dismissed his appeal from the provisional decision of Justice Taylor. The Prince Edward Island Court of Appeal decision stated that Justice Taylor’s order had been confirmed by the Supreme Court of British Columbia. In addition, it would be illogical to conclude that Mr. Zenner would have sought to appeal the confirmation if he had been unaware of its existence. Therefore, Mr. Zenner was well aware of the existence of the confirmation order.
[26] In my view, his response to Justice Broad’s question was deliberately engineered to hide the fact that Justice Taylor’s decision had been confirmed, because it was not favorable to him. In contrast, he included with the materials that he filed in the Ontario Superior Court of Justice, the 1996 provisional order from the Ontario reducing ongoing support to zero, rescinding arrears, and staying enforcement of ongoing support and arrears, even though it was not confirmed, as that order was favorable to him.
[27] This is in keeping with Justice Taylor’s finding, at paragraph 55, that Mr. Zenner “continues to be a person who is not credible; he lies to the court about his income; or is intentionally underemployed, or both … .” It is also in keeping with the finding of the judge who rendered the Divorce Judgment, Justice McQuaid. He also found that Mr. Zenner understated his income and was not credible.
[28] In my view, issues relating to retroactive termination or elimination of support obligations were addressed by Justice Taylor in 2008. Therefore, any material change in circumstances warranting a determination, on the merits, of the relief requested by Dr. Zenner before Justice Broad, would be a material change occurring after 2008. In my view, Justice Broad would have taken 2008 as the applicable date had he been correctly informed that Justice Taylor’s provisional decision had been confirmed.
Preliminary Issue 2: Has Mr. Zenner Shown a Material Change in Circumstances from the Applicable Date?
[29] Mr. Zenner puts forward the following circumstances as constituting changes warranting a determination of his variation application on the merits:
1. he moved to Ontario and is living with his mother;
2. he is now 67 years of age and is collecting the CPP and old-age pensions;
3. Ms. Zenner has been able to seize one-half of his pension entitlement, with an unsupported representation of some seizure or garnishment on a 100% basis;
4. both children are no longer residing with Ms. Zenner and have not been for some time;
5. Ms. Zenner did not provide any financial information to the Court before her appearance in the Nova Scotia Supreme Court, Justice Taylor having declined to order her to produce it; and,
6. his support obligations have never been fixed in accordance with his income or the Guidelines.
[30] I will address them in that order.
[31] Justice Taylor found that Mr. Zenner was able to practice optometry in Ontario even though he was suspended from practicing in Prince Edward Island. Therefore, if anything, returning to Ontario would allow him to more freely practice optometry as he would be away from the jurisdiction in which he was suspended. Living with his mother, more likely than not, would diminish his living expenses, freeing up more money to pay arrears of support. Therefore, that change, though one which might warrant a determination on the merits in relation to whether more stringent enforcement mechanisms should be put in place, is not one which would warrant a determination on the merits in relation to whether there should be a reduction or an elimination of arrears.
[32] Justice Taylor already terminated all support effective June 1, 2006. Mr. Zenner was 61 at the time of the decision and approximately 59 at the effective termination date. Justice Taylor also already considered the fact that Mr. Zenner would reach the age where he could no longer continue working as an optometrist. Therefore, Mr. Zenner’s retirement, and receipt of pension income, is not a change in circumstances that was not foreseen by Justice Taylor. Consequently, as noted at paragraph 5 of Harrison v. MacKinnon, it does not constitute a material change.
[33] Also, the fact that a portion of Mr. Zenner’s pension is now being garnished ought not qualify as a material change warranting a determination, on the merits, of an application to rescind arrears. In my view, such a result would bring the administration of justice into disrepute. Mr. Zenner has been repeatedly found to be misrepresenting his actual income and/or deliberately underemployed, and to have the ability to pay the support ordered in 1990, even as recently as 2008, which is after the effective termination of support which was confirmed in 2011. However, since 1990, Ms. Zenner has been having great difficulty enforcing payment. In 2008, Justice Taylor noted that a document filed by the Director of Maintenance Enforcement on June 4, 2008, indicated outstanding arrears in the amount of $192,665.06. Consequently, it appears that, more likely than not, the opportunities for garnishment had been limited. She now finally has the opportunity to garnish his pension income. Mr. Zenner is now attempting to use that newly arisen opportunity as a material change in circumstances to justify a determination of whether or not the arrears of support should be rescinded. To consider that a material change in circumstances would, in my view, make a mockery of the multiple decisions finding that he had the ability to pay.
[34] In addition, the Court in Brown v. Brown, 2010 NBCA 5, at paragraphs 18 and 21, stated the following in relation to establishing material change to warrant retroactive variation:
“18 As a general proposition, it is safe to conclude that under both the federal and provincial legislation, the right to a retroactive variation with respect to reducing or eliminating arrears of either spousal or child support, is dependent on the applicant payer establishing a material change in circumstances during the period of retroactivity. …
….
21 In summary, the jurisdiction to order a partial or full remission of support arrears is dependent on the answer to two discrete questions: Was there a material change in circumstances during the period of retroactivity and, having regard to all other relevant circumstances during this period, would the applicant have been granted a reduction in his or her support obligation but for his or her untimely application? As a general proposition, the court will be asking whether the change was significant and long lasting; whether it was real and not one of choice.”
[35] Our Court of Appeal, in Smith v. Helppi, 2011 NSCA 65, in the context of an application dealing with reduction or forgiveness of child support arrears, at paragraph 21, quoted with approval this approach in Brown. In my view, it is also applicable to applications dealing with reduction, rescission or forgiveness of spousal support arrears.
[36] Further, as noted at paragraph 6 of Brown, though ability to pay is relevant to enforcement, it is not relevant when “the relief sought is forgiveness of arrears”, and “support recipients are entitled to cling to the faint hope of a future ability to pay”.
[37] In the case hand, Mr. Zenner has been found to have had an ability to pay throughout the period to which his support obligations related. More than 20 years after the initial support order, Ms. Zenner, having sacrificed providing for her own retirement to make ends meet, has finally started collecting some of the unpaid support. Mr. Zenner is seeking retroactive termination and rescission of arrears. He did not apply for an order dealing with enforcement. Justice Broad did include, in his decision and order, a provision staying enforcement of ongoing support and/or arrears. However, that was merely ancillary to his reducing ongoing support to zero and rescinding all arrears. It was not in response to a request to suspend or otherwise deal with enforcement.
[38] Therefore, the impact of current garnishment of Mr. Zenner’s pension is not a relevant or material change in circumstances.
[39] This same requirement for a material change during the period of retroactivity also renders the first two changes in circumstances, which I already addressed, immaterial.
[40] The fact that both of the children are no longer residing with Ms. Zenner and have not been for some time is not a material change in circumstances having occurred since 2008. Justice Taylor already determined that the children ceased being children of the marriage in June of 2005 and 2006 respectively. That determination was confirmed by Justice Arnold-Bailey after receipt of additional information from Ms. Zenner. As noted at paragraph 27 of R.Z. v. D.Z., June 27, 2011, Supreme Court of British Columbia New Westminster Docket # E003619, that additional information included the evidence that the oldest child “since he was 15 years old (in 1997) … [had] been on the street, in jail, or in treatment due to a serious heroine and crack cocaine addiction”. That is essentially the same evidence Mr. Zenner put before Justice Broad on August 15, 2013, as part of the basis for a retroactive termination of support which would eliminate arrears.
[41] Consequently, information of that change is not new information and is no longer material. It has already been considered and a final determination has been made based on it. Further, the effective date of termination of support based upon that information predated the provisional order and its confirmation.
[42] Mr. Zenner points to the financial information which Ms. Zenner supplied to the Nova Scotia Supreme Court as being new information which constitutes a material change in circumstances. Newly discovered information can be used to establish a material change in circumstances. However, the new financial information provided to Nova Scotia Supreme Court is composed of Ms. Zenner’s notices of assessment for 2008 through to 2012. That is financial information which postdates the effective date of the termination of spousal support. As such, it is immaterial to a retroactive variation of spousal support as it does not relate to the period of retroactivity.
[43] Mr. Zenner also cites Tremblay v. Daley, 2012 ONCA 780, in support of his submission that the new financial disclosure by Ms. Zenner in this confirmation proceeding constitutes a material change. However, in my respectful view, that decision is distinguishable for the following reasons. The financial disclosure in question was that of the payor. The trial judge had had to impute income because of the lack of financial information provided by the payor. He had not previously rejected the payor’s evidence regarding his income level. On the motion to vary, the Court recalculated the payor’s actual income based upon that new information. It also found that there was a material change in circumstances due to a serious injury suffered by the payor, in which he lost several fingers on his hand, impairing his ability to engage in manual employment. That is the only type of work he had ever done. The case at hand does not involve a similar situation where there is a valid reason for reduced employment income and the payor supplies appropriate documentation to substantiate an income at a level that has not been voluntarily diminished. Justice MacDonald had rejected Mr. Zenner’s evidence regarding his inability to work as an optometrist. In addition, Ms. Zenner’s, and Mr. Zenner’s, post-2008 income have become immaterial to variation of support because it postdates the termination of support.
[44] Further, Ms. Zenner already supplied, to Justice Arnold-Bailey, information about her financial circumstances from the time of the divorce in 1990 until the time of the confirmation hearing, prior to her confirming Justice Taylor’s provisional order. That information included, among other things, that Ms. Zenner was diagnosed with cancer in 2006 and became unable to work.
[45] Section 14 of the Federal Child Support Guidelines, established pursuant to section 26.1 of the Divorce Act, provides:
"14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997)."
[46] Mr. Zenner argues that no court has fixed Mr. Zenner’s child support obligations in accordance with the Child Support Guidelines and that constitutes a material change in circumstances pursuant to Section 14(b).
[47] The child-support obligations which were in effect until terminated by Justice Taylor were ordered before May 1, 1997. Therefore, the coming into force of the Guidelines constituted a material change in circumstances which existed in the course of the variation application before Justice MacDonald of the Prince Edward Island Supreme Court in 2000. That gave him the discretion to vary the child-support amount to make it consistent with the guideline amount. However, it is appropriate, that, in such a situation, the court exercise its discretion not to vary the order unless there is a material change in the “condition, means, needs or other circumstances” of a relevant family member: Wang v. Wang, [1998] B.C.J. No. 1966 (C.A.).
[48] Justice MacDonald, in Zenner v. Zenner, 2000 PESCTD 59, declined the request to vary the support amount because he concluded that the change in circumstances affecting Mr. Zenner’s ability to pay support had resulted “voluntarily” by his own “free will”. He had the discretion to arrive at that conclusion. He was not obligated to determine Mr. Zenner’s actual or imputed income at the time and order child-support in accordance with the Guidelines. The coming into force of the Guidelines was a material change in circumstances that existed at that time. It has already been dealt with. It is not a material change which postdates Justice Taylor’s provisional order, nor one which arose between Justice MacDonald’s order and that of Justice Taylor.
[49] Section 14(b) does not create an automatic material change in circumstances simply because child support has never been determined in accordance with an applicable table under the Guidelines. It still requires a “change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. Justice Taylor already terminated child and spousal support with effective dates preceding his decision by approximately 2 ½ and 3 ½ years respectively. Therefore, following his provisional decision and its confirmation, there was no longer any child entitled to support, and the condition, means, needs or other circumstances of either party became irrelevant or immaterial because there was no longer any support obligation for that post-decision period of time to vary. Justice Taylor’s decision already considered the change in “condition, means, needs or other circumstances” following Justice MacDonald’s decision. Consequently, in my view, the mere fact that child support has never been set in accordance with the guidelines does not constitute a material change in circumstances.
[50] I also disagree with Mr. Zenner’s related argument that “the confirming Court in Nova Scotia is obliged to accept the income of the Applicant as reported on line 150 of his tax returns”. Justice Taylor, in 2008, considered the tax return information provided by Mr. Zenner. However, he did not accept that it accurately reflected Mr. Zenner’s actual income. It was within his authority to so find. Further, since Justice Taylor retroactively terminated support, Mr. Zenner’s income tax information post-2008, as already noted, is immaterial.
[51] Mr. Zenner, cites Trang v. Trang, 2013 ONSC 1980, for the proposition that, where the original support order was based upon imputed income, Mr. Zenner need only establish a change in income, which he has done. With respect, in my view, Trang does not support this argument. That is revealed in the following passages, at paragraphs 45, 46, 50. 52, 56, 59 and 60.
“45 If support was initially calculated based on the court's acceptance of a payor's "declared" income, then changes in declared income in subsequent years may be persuasive. If the court was prepared to rely on things like T4 slips and tax returns when it made the original order, T4 slips and tax returns for subsequent years may be sufficient evidence of changed circumstances. This of course would be subject to other considerations, such as the possibility that employment levels or income were deliberately manipulated by the payor.
46 But if the original support order was based upon "imputed" income, a more comprehensive analysis is required on a motion to change. The court must consider:
a. Why did income have to be imputed in the first instance? Have those circumstances changed? Is it still appropriate or necessary to impute income, to achieve a fair result?
b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable?
….
50 In most variation proceedings, it should be possible to establish why (and how) income was imputed in the original order. Those factual findings and calculations are usually set out in affidavits or transcripts (in uncontested proceedings) and written endorsements or judgments (in contested proceedings). This is relevant information which should be presented to the court on a motion to change. It is essential to an understanding of what factors the court considered when the previous order was made - and whether those factors have changed.
….
52 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:
a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.
b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate
….
56 If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.
….
59 If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.
60 But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct - and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.”
[52] Justice MacDonald found that Mr. Zenner had the ability to practice optometry in Ontario and earn the income commensurate with such a practice. Therefore, he refused to vary the support amount which was ordered based on when Mr. Zenner was engaged in an optometry practice. Justice Taylor arrived at the same conclusion. Even though Mr. Zenner had provided evidence before Justice Taylor relating to his suspension by the Prince Edward Island Association of Optometrists, he provided no reasonable reason why he could not have returned to Ontario to set up a practice there. In those circumstances, it would have been illogical for Justice Taylor to find that Mr. Zenner’s absence from the practice of optometry constituted a material change. Further, after Justice Taylor terminated support, it became immaterial to variation of support provisions whether or not Mr. Zenner was so engaged.
[53] In Trang, about two years after the initial imputation of income, the husband was injured in a motor vehicle accident which impaired his ability to work. That was accepted as a material change in circumstances warranting a variation of the support provision to reflect his actual income, effective the time of the accident. In the case at hand, there was no such intervening event impairing Mr. Zenner’s ability to work, since, even if his license was suspended in Prince Edward Island, he could still practice optometry in Ontario.
[54] After considering all of the information she gained from the provisional hearing in Prince Edward Island, and from the confirmation hearing before her, Justice Arnold-Bailey, at paragraphs 35, 36, 40, and 41, stated:
“It is a shocking tragedy that the spousal and child support owing in this matter have not been paid over the years. The hardship this has caused to D.Z. and the two children of the marriage has been very significant.
The current application brought by R.Z. to terminate child and spousal support obligations and cancel the huge amount of outstanding arrears verges on a serious abuse of process.
….
I considered not confirming the provisional order because of the applicant’s history of flagrant non-compliance with the court orders that required him to pay child and spousal support, but he has in essence ‘worked the system’ to avoid his obligations until sufficient time has elapsed that his ongoing child and spousal support obligations are past.
This Court states emphatically that the arrears R.Z. has accrued are not varied now and were not varied by the provisional order of Justice Taylor. Indeed, it is hard to imagine any circumstances in which they should or could be varied.”
[55] As already indicated, I must take Justice Arnold-Bailey’s decision as being correct. In my view, this proceeding brought by Mr. Zenner, and his deliberate erroneous representation to Justice Broad that Justice Taylor’s provisional decision had not been confirmed, show a continued attempt at manipulation and abuse of the justice system on his part.
[56] However, now that it has been revealed that the most recent variation arose from the 2008 provisional order, the question of material change in circumstances must be determined against a backdrop which differs from that against which Justice Broad determined it. In my view, there has been no material change in circumstances established.
[57] In the case at hand, there is evidence that Mr. Zenner is an only child who can anticipate receiving an inheritance. In addition, Mr. Zenner has commenced an action against the lawyer who was negligent in representing him in relation to his suspension by the Prince Edward Island Association of Optometrists. More likely than not, his claim would include a claim for lost income. Those are future potential sources of revenue to which Ms. Zenner can cling with hope of ultimate payment of the support which Mr. Zenner has failed to pay most of the duration of the support obligations.
CONCLUSION ON PRELIMINARY ISSUES
[58] Based on the foregoing, I conclude the following in relation to these preliminary issues. Mr. Zenner must establish a material change in circumstances since the provisional order of Justice Taylor in 2008. He has failed to do so. Therefore, his application cannot be determined on the merits.
[59] This conclusion is supported by the result in Lavoie v. Tisserand, 2008 NWTSC 80, which dealt with circumstances bearing some similarity to those in the case at hand. In that case, the mother had abandoned her appeal from a refusal to confirm a provisional order expunging arrears of support owed by her. She later obtained another provisional order varying the amount of arrears. However, the application to confirm the provisional order was dismissed. At paragraph 31, the court summarized its reasoning as follows:
“Ms. Tisserand’s application is based on the same grounds, and seeks the same relief, as an earlier application that she made and on which she was not successful. It is essentially an attempt to present the same case a second time, hoping for different result. This cannot be allowed. If Ms. Tisserand’s position is that the refusal to confirm the 2005 Provisional Order was the result of a misapprehension of the evidence or of the law, she should have pursued her appeal of that decision.”
[60] In my view, in the case at hand, Mr. Zenner is also attempting to present the same case a second time, hoping for a different result. He allowed his time for appeal to lapse and was not granted an extension. He should have pursued his appeal more diligently.
[61] This conclusion is also supported by the principle enunciated by our Court of Appeal in Gaetz v. Jakeman, 2005 NSCA 77, at paragraphs 16 to 18. That principle is that an issue of retroactive variation of child and spousal support that has already been fully litigated ought not be re-litigated. That would constitute a waste of resources and undermine the importance of litigation finality.
[62] In my view, the issue of retroactive variation of child and spousal support has already been fully litigated in this matter and ought not be re-litigated.
OTHER ISSUES
[63] In light of this conclusion, I will not determine any issues relating to the merits of the application.
RESULT
[64] Consequently, I refuse to confirm the provisional decision and order of Justice Broad dated August 15, 2013.
COSTS
[65] Counsel for Ms. Zenner, who is a staff lawyer with the Nova Scotia Legal Aid Commission, chose not to seek costs on the basis that it would be a waste of the Commission’s resources to attempt to enforce their payment. Therefore, the parties are to bear their own costs.
Pierre L. Muise, J.