(FAMILY DIVISION)
Citation: Best v. Best, 2010 NSSC 148
Date: 20100419
Docket: SFHISOS38993
Registry: Halifax
Between:
Kevin George Best
Applicant/Petitioner
v.
Brenda Lee Best
Respondent
Judge: The Honourable Justice Moira C. Legere Sers
Heard: April 12, 2010
Counsel: Kevin George Best, self-represented
Brenda Lee Best, self-represented (absent)
By the Court:
[1] This matter came before the court by way of variation application on April 12, 2010 under Section 17 of the Divorce Act. Mr. Best filed his application February of 2010 after seeking from the respondent a voluntary termination of child support and having been refused.
[2] The applicant gave in‑court evidence in addition to the affidavit evidence, which indicates that his oldest child finished school in June of 2006 and his youngest in June of 2009. Neither child went to post‑secondary education and both children continue to work at various jobs.
[3] The applicant testified that he is in contact with the children on a regular basis and was aware of their graduation and the fact that they did not pursue post-secondary education. Both were currently employed.
[4] The address for the respondent is not available to the applicant. Her contact information is sealed on the court file.
[5] The applicant has been advised by the court and has confirmed that he has attempted to have all monies paid in trust pending his application before the court.
[6] The Maintenance Enforcement statement indicates the deductions continue which assumes the children are continuing to be dependent as of February 2009. Arrears have accumulated in the amount of $7,341.00 with fees outstanding of $683.25.
[7] These arrears need to be recalculated to reflect the variation in order to determine what was actually owing based on the varied amounts from June 30, 2006 on and what was actually owing (i.e., in arrears) as of June 2009, given the payment for the one child terminated as per this order from June 30, 2006 and the amount owing for the remaining child reflects the base amount owing based on the applicant's actual salary from June 2006 to June 2009, the date of termination of his obligation.
[8] The Maintenance Enforcement statement appears to indicate that not only has a garnishee been in effect but some time in July of 2008 the Maintenance Enforcement commenced on a regular monthly basis to add $170.00 to the $556.00 ordered in the child support order dated 2003.
[9] There is no other order indicating any other application has been filed by either party in this proceeding since 2003.
[10] A recalculation has been done by both the respondent and the court separately effective July 1, 2006 for the period July 1, 2006 to December 2006 based on the applicant's then annual income of $51,575.76 to reflect a payment according to the Prince Edward Island tables of $447.00 per month. The applicant herein should have paid during that period of time $2,682.00 rather than $3,336.00, plus other payments collected by way of garnishee on outstanding arrears based on a monthly payment of $556.00.
[11] For the year January 1, 2007 to December 31, 2007, based on his annual income given in evidence of $53,129.96, the respondent should have paid $462.00 for one child, amounting to $5,544.00 for that twelve-month period, rather than a total of the base amount $6,672.00 based on $556.00, plus whatever payments were collected against arrears for the 2007 year.
[12] For January 1, 2008 to December 31, 2008, the applicant earned $55,068.74 and ought to have paid $478.00 for a twelve-month period for an amount of $5,736.00 as opposed to an amount of $6,672.00 based on a payment of $556.00, plus whatever additional payments were garnisheed with respect to arrears.
[13] For the 2009 year, the annual income was $56,562.48 from January to June of 2009, yielding $490.00 for a six-month period of $2,940.00.
[14] The total that should have been paid between July 1, 2006 to July 1, 2009 was $16,902.00 based on the varying base monthly amounts as opposed to $20,016.00 per base monthly amount if calculated on $556.00, in addition to whatever was collected by garnishee against the arrears.
[15] In addition, Maintenance Enforcement continued to garnishee the applicant after June 2009 when the last child was determined to be independent. Payments made after that time from July 1 to December 31, 2009 and from January 1 to the date of this hearing for a total of ten (10) months, at the 2009 rate of $490.00. That is a straight overpayment of $5,560.00. In addition they also garnisheed a payment of $170.00 per month to go toward arrears.
[16] Once the Maintenance Enforcement office determines what, if any, arrears existed as of June 2006 and subsequently based on the variation, they can determine what, if any, amount of the arrears collected in addition to the base amount remains after all proper arrears are calculated.
[17] I am satisfied that the applicant has had conversations with his children and visits them on a regular basis sufficient to know that they have graduated at the dates indicated and that they have not undertaken any post secondary education. They have continued on with their part time work and secured other employment from the date of their graduation forward.
[18] Maintenance Enforcement will have to calculate how much money was owing as of June 30, 2009 in order to determine what arrears existed as of that date.
[19] All arrears shown to be accumulated subsequent to that commencing July 1, 2009 to the date of the hearing and forward ought to be determined null and void entirely, as well as the termination of base child support effective the dates noted (i.e., June 2006 and June 2009).
[20] Any amounts held in trust by Maintenance Enforcement after the recalculation shall be returned forthwith to the applicant and any overpayments made to the respondent shall be paid by the respondent to the applicant.
Legere Sers, J.
April 19, 2010
Halifax, Nova Scotia