BARRIE COURT FILE NO.: FC-19-653 FRO: 0764560

DATE: 20191009

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher Lee Nason, Applicant

and

Julie Lynn Macdonald, Respondent

BEFORE: Madam Justice R.A. Wildman

HEARD: In Chambers

ENDORSEMENT

OVERVIEW

[1] This is an ISOA (Interjurisdictional Support Orders Act, S.N.B. 2002, c.I-12.05) variation application. Mr. Nason, who lives in New Brunswick, is requesting a termination of his child support obligations for his two children. He would like support for Joshua to end as of July 2015 and support for Zachary to end as of July 2018. He would also like me to set his arrears at $3,000 (as of February 1, 2019).

[2] His former spouse, Ms. MacDonald, lives in Ontario. Both parties have filed written material and asked me to deal with this matter in chambers, rather than schedule an oral hearing.

[3] Mr. Nason’s application is sometimes difficult to follow, as is Ms. MacDonald’s response. They have both included narrative about the conduct of the other, which is not relevant to the support issues. As they are both self-represented, I know it is difficult to understand how to fill out the forms, so I have tried to identify the legal issues that they seem to want addressed, even if they are not clearly identified in the “Claims” section of the Application and Answer. It appears that Mr. Nason’s claims relate to child and, possibly spousal, support. Ms. MacDonald’s issues relate to enforcement of the arrears, once the proper amount is determined.

[4] These parties were married on September 17, 1994 and were divorced on October 2, 2007. They have three children: Jordan Christopher Nason born January 10, 1993; Joshua Michael Nason born November 27, 1995; and Zachary Robert Nason born October 15, 1999.

[5] Unfortunately, I do not have a copy of the full court file between this couple or even all the court orders. I know that there are other court orders because, as will be seen below, there is reference to them in the orders that I did receive.

[6] I have elected to try to provide a partial decision based on an assumption that there are no other court orders that affect the issues I am deciding. However, I need confirmation from the parties that there have been no other relevant orders before I can finalize the remaining issues.

[7] I am particularly concerned about the issue of spousal support. Mr. Nason wants spousal support to end, as Ms. MacDonald has remarried. It appears that FRO (“the Family Responsibility Office”) has already adjusted their records to terminate spousal support, however I have no evidence to establish whether that was as a result of a court order or because Ms. MacDonald voluntarily agreed to a termination. It is not also not clear what is the effective date for the termination. Absent information about how the termination came about, it is impossible for me to determine what needs to be done to finalize all the issues related to spousal support.

[8] There are a number of other adjustments that have been made to the FRO Statement of Arrears, without any real explanation for the basis for the adjustments. As I am being asked to fix the amount of arrears owed by Mr. Nason, both the parties and I need to receive evidence from FRO about how the arrears have been calculated. This is particularly important because the NBOSE (the “New Brunswick Office of Support Enforcement”) Statement of Arrears shows a different figure for arrears than does the Ontario FRO office.

[9] The ISOA process can be cumbersome, with delays of months, or even years, if there are requests for further information being sent between the Court and the parties, who are in different jurisdictions. In order to try to expedite a conclusion to this litigation as soon as possible, I am going to address the issues that I can on the evidentiary record before me. I am then going to schedule a supplementary hearing, at which Ms. MacDonald and FRO counsel can attend before me to sort out the rest of the evidence. Mr. Nason, and possibly NBOSE counsel, may participate in the hearing by phone. Hopefully, by the end of that process, we will have a final order to address all outstanding issues and calculate the resulting arrears.

THE FACTS

The Past Orders

[10] All court proceedings appear to have taken place in Ontario. I have been provided with two orders. The first is the order of Justice Mazza, dated July 2, 2009, which was obtained by 23C. This means that it was obtained on the evidence of Ms. MacDonald only. Mr. Nason was not present, presumably because he had failed to respond to Ms. MacDonald’s application or defaulted in the proceedings in some other way. Amongst other things, Justice Mazza ordered:

1. Arrears of support as of April 30, 2009 were fixed at $3,400.

2. Mr. Nason was to pay child support for Joshua and Zachary of $783 per month commencing May 1, 2009, based on an imputed income of $52,000 per year. (There was no mention of child support for Jordan.)

c. Mr. Nason was to pay Ms. MacDonald spousal support of $217 per month commencing May 1, 2009. There was no termination date or event specified.

[11] The only other court order that I received is the order of Justice A. Pazaratz dated September 14, 2012, in which he changed the order of Justice C. Brown dated December 14, 2010 (I do not have Justice C. Brown’s order, nor am I aware of the terms). The matter before Justice Pazaratz proceeded as a written hearing on Mr. Nason’s application. Justice Pazaratz terminated support for Jordan, effective May 31, 2012. Thereafter Mr. Nason was to pay support for Joshua and Zachary in the amount of $707 per month, beginning on June 1, 2012. The child support was based on Mr. Nason earning $46,800 per year. There was no mention of spousal support in this order.

[12] It would have been helpful if I had received all of the court orders, including the original divorce order and the order of Justice Brown dated December 14, 2010. However, given the lack of a copy of either order, and the fact that Mr. Nason’s application only says that he wants to change child support and arrears, I am going to presume that Justice Pazaratz’s order is the most current order and that it accurately sets out Mr. Nason’s current child support obligations.

[13] As mentioned in paragraph 7, I am not clear whether I am being asked to terminate the spousal support order. Mr. Nason does not indicate in the claims section of his application at Tab 1 that he is asking that spousal support be terminated, but he does make submissions about spousal support in his supporting material. He sets out that Ms. MacDonald was married in September 2014 and believed to have been cohabiting with her current husband since 2013. In Tab 3, Appendix B, he says that he was ordered to pay spousal support in 2007, and he would like the court to remove arrears of spousal support from 2009 to 2014, because he believes that Ms. MacDonald did not try to obtain skills to become employable.

[14] Ms. MacDonald has responded with submissions about the issue of spousal support, so she seems to understand that Mr. Nason may be asking the court to change his spousal support obligations. However, Ms. MacDonald seems to suggest that the spousal support order has already been terminated.

[15] As mentioned, I am aware of the difficulties with processing these matters between two jurisdictions, so I wish to simplify the process as much as possible for these parties. I am prepared to deal with Mr. Nason’s request to remove spousal support arrears from 2009 to 2014, despite his failure to clearly indicate that request in the claims section of his Application at Tab 1. It appears that, although both parties may be confused about how to fill out the forms properly, they both wish me to make a ruling about Mr. Nason’s claim for a retroactive elimination of his spousal support arrears, so that all issues may be addressed in a final order and they will not face any further court proceedings. As will be discussed below, Mr. Nason’s claim regarding the elimination of arrears between 2009 and 2014 has no merit, so I see nothing to be gained by subjecting the parties to yet another ISOA application to tell the court the same facts that they have already set out in this application.

Mr. Nason’s Application and Current Financial Situation

[16] It is clear from the material filed that both parties are struggling financially.

[17] Mr. Nason’s financial statement, completed on February 28, 2019, indicates that he currently earns $48,616 per year, which is also the income noted on his 2017 tax return. He says he works seasonally and collects EI (“Employment Insurance”) in the winter. He says his spouse, Julia Nason, earns $26,000 and pays for about 40% of the household expenses. Mr. Nason owes $93.45 on his Canadian Tire Master Card and $20,081.83 on his TD Canada Trust Line of Credit. He also indicates that his support arrears were $31,220.99 as of January 11, 2019, according to the NBOSE Statement of Account filed at Tab 3.

[18] Mr. Nason filed a number of T4s or T4As for 2018. The total income from these slips is $46,621.55. I am prepared to accept this, on an interim basis, as his 2018 income for the purpose of this decision, as Mr. Nason would not have completed his 2018 Income Tax Return at the time that he filed this Application. However, I am also making an order that Mr. Nason must provide the Court, Ms. MacDonald and the Ontario Family Responsibility Office (“FRO”) with a copy of his 2018 Notice of Assessment (“NOA”) at least five days before the next hearing. If his 2018 Line 150 income is not $46,621.55, I will adjust his child support obligations for 2018 accordingly.

[19] Mr. Nason has also filed several Notices of Assessment or Tax Summaries. In the absence of any better evidence, I am prepared to accept these as evidence of his income for the years in question. They indicate that his Line 150 income has been:

• 2017 - $48,616
• 2016 - $58,315
• 2015 - $57,322

[20] As mentioned, the material is a little difficult to follow but Mr. Nason seems to set out a number of reasons why he feels the support order, or his arrears, should be changed:

(a) He says he made some direct payments to Ms. MacDonald, which should reduce his arrears.

(b) He says his spousal support obligations should now be over as Ms. MacDonald has remarried. He also says that Ms. MacDonald did not work hard enough to obtain skills to become self-supporting, so the court should retroactively eliminate his spousal support arrears for the period between 2009 and 2014.

(c) He says that Joshua and Zachary are now over the age of majority and not in full-time attendance at school, so they are no longer eligible for child support.

(d) He says he has a reduced income.

Ms. Macdonald’s Response

[21] Ms. MacDonald has filed responding material, in which she tried to address the things that Mr. Nason says in his application and supporting material. Her material is also difficult to follow but, in this decision, I have tried to organize her responses under each of Mr. Nason’s grounds for changing support.

[22] Ms. MacDonald also makes various claims for court orders. Most of them seem to boil down to a request that arrears be fixed and continue to be enforced by garnishment until paid in full. She is, understandably, frustrated that the arrears are so high and she has not received all of the money that is owing to her.

[23] However, the court has no jurisdiction to make orders related to enforcement of an order that is filed with the Family Responsibility Office, nor can it make an order that “FRO New Brunswick be held accountable for the prompt collection of Arrears”. Neither FRO nor NBOSE is a party to this action and the court cannot make orders against them, or direct how they are to go about enforcing the support order that I will be making. The current proceedings are between Mr. Nason and Ms. MacDonald, so they are the only people that I can make orders against.

[24] For example, Ms. MacDonald requests that the court make an order that Mr. Nason pay $903 per month towards his arrears, which is the amount set by the child support tables for child support for three children, for a payor with Mr. Nason’s income. I cannot make that order. The court cannot use the Federal Child Support Guidelines to determine the monthly amount that Mr. Nason should pay towards his arrears.

[25] Once I give direction about the appropriate child support each year, FRO or NBOSE will calculate the proper amount of arrears that are owing and determine how much they can properly collect from Mr. Nason each month, pursuant to their governing legislation and regulations. Collection of arrears is exclusively the domain of the FRO and NB Enforcement agencies. The court cannot make an order about how the arrears are to be enforced, unless the issue of enforcement is brought before the court by, or with the involvement of, the enforcement agencies, so that they can participate in the process.

[26] Ms. MacDonald filed a financial statement dated June 25, 2019. Although her income is not relevant to the determination of Mr. Nason’s child support obligations, there appears to be a possible underlying theme in the material filed by both parties about spousal support and/or a reduction of support due to an undue hardship claim. As Ms. MacDonald’s financial situation would be relevant to both of those issues, I will set out a summary of what she has told the court.

[27] Although Mr. Nason is obviously struggling financially, Ms. MacDonald’s situation is also grim. She indicates that she works at Pizza Delight, earning $10,224 per year. Her total debts are $52,500, including $10,000 that she says is owed on a Canadian Tire Mastercard for the time that she was married to Mr. Nason.

[28] Ms. MacDonald’s 2018 Notice of Assessment shows that she had total Line 150 income of $7,827. Her total 2017 income was $2,040. Her 2016 income was $481.

[29] Ms. MacDonald does not set out the income of her new spouse. However, this omission is understandable, as that section of the Financial Statement form indicates that it need only be completed if “you are making or responding to a claim for undue hardship or spousal support”. As noted, Mr. Nason’s material does not clearly identify either of these issues in the claims section of his Application, so it is understandable that Ms. MacDonald did not complete that section.

[30] In any event, the period of time for which Mr. Nason is requesting that spousal support be eliminated was long before Ms. MacDonald married her new partner. I am prepared to decide the issues without any information regarding Ms. MacDonald’s new partner. As will be seen below, his income would not be relevant.

[31] Ms. MacDonald objects to any reduction in Mr. Nason’s arrears. She indicates that he has a very poor payment history, despite having worked steadily over the last several years. She says that she has accumulated credit card debt and she and the children ended up at a shelter for two months. She says that this is the second time that she has been “pulled into court by the applicant in an attempt to get out of paying his child support Retro payments (sic)”.

[32] Ms. MacDonald filed a FRO Statement of Arrears, indicating that, as of May 28, 2019, Mr. Nason’s arrears were $25,134.76.

[33] For some reason, the FRO figures are different than the NBOSE Statement of Account. For example, NBOSE shows a balance for Mr. Nason’s arrears on the last date of their statement, January 11, 2019 of $31,220.99. The FRO Statement of Arrears shows a balance owing by Mr. Nason on January 1, 2019 of $18,654.76. There are a number of adjustments to the FRO statement after January 11, 2019, so it may be that there has now been a reconciliation between the figures of two enforcement agencies. In any event, once we determine the accurate number for arrears at the supplementary hearing, FRO will be asked to ensure that NBOSE is informed of the proper amount for enforcement.

[34] The difference between the FRO and NB Arrears Statements may account for some of the problems between Mr. Nason and Ms. MacDonald. It seems that Mr. Nason may have been given some credits on the FRO Statement that have not made their way to NBOSE. Hopefully, we can ensure that all the proper credits are captured and reflected in the final arrears figure, once it is adjusted according to my order.

Direct Payments

[35] Mr. Nason says that he made several direct payments to Ms. MacDonald between 2007 and 2009. He has provided proof of the payments, which he says total $9,140. He says that he has sent proof of these payments to FRO but, as Ms. MacDonald would not acknowledge receipt of them, FRO has refused to deduct this amount from his arrears.

[36] Ms. MacDonald’s response is that she did acknowledge the direct payments. She notes that there was an adjustment on the FRO records on February 7, 2011 for $4,000 and December 2, 2011 for $1,300.

[37] The FRO Statement of Arrears begins with a zero balance as of December 1, 2009. Mr. Nason may have been making direct payments prior to December 1, 2009 but that would have been to cover support or arrears up to December 1, 2009. There are no support accruals for the period prior to December 1, 2009 included on his current Statement of Arrears.

[38] If Mr. Nason made payments AFTER December 1, 2009, he should receive credit for them in calculating the amount of support he owes for the period AFTER December 1, 2009. He is not entitled to any reduction in his post-December 1, 2009 arrears for payments he made BEFORE December 1, 2009.

[39] The chart provided by Mr. Nason at Tab 3, Appendix D, shows that he made direct payments to Ms. MacDonald between December 3, 2009 and April 22, 2010 totaling $5,300. I accept this evidence, as it is supported by proof of payments coming out of Mr. Nason’s account by online banking, as well as a letter from the Investigation Officer at the RBC Contact Centre, confirming that the payments went to Julie MacDonald.

[40] It appears that Ms. MacDonald accepts the $5,300 figure as well. She correctly points out that Mr. Nason has already received a reduction in his arrears to reflect these payments. As noted in paragraph 36, the FRO statement shows that $4,000 was credited against Mr. Nason’s arrears on February 7, 2011 for Direct Payments and a further $1,300 for Direct Payments on December 2, 2011.

[41] This means that Mr. Nason has already received credit for the $5,300 in direct payments that were made between December 3, 2009 and April 22, 2010.

[42] As noted previously, part of the confusion appears to be that this information is not reflected on the NBOSE records. Although there was an adjustment for $5,300 in direct payments made on the FRO records, there appears to have been no credit given to Mr. Nason for these payments on the NBOSE records. Even more confusing, although there was a credit given by NBOSE on January 12, 2012 for $4,000 for direct payments, this was reversed on July 21, 2015. I have no idea why this would be.

[43] Ms. MacDonald has acknowledged that Mr. Nason should receive a credit of $5,300 for direct payments. She agrees that the credits on the FRO Statement of Arrears are correct. The NBOSE records should have been adjusted to show the $5,300 credit to Mr. Nason for direct payments. Hopefully, this can be remedied at the end of these proceedings by having FRO calculate a proper current figure for arrears, including this $5,300 credit, and advising NBOSE to adjust their records accordingly.

Spousal Support

[44] As previously mentioned in paragraph 10, Mr. Nason was ordered to pay spousal support in 2007. He wants the court to make an adjustment to his arrears for spousal support. The first ground is that Ms. MacDonald has remarried. The second is that he does not feel he should have been required to pay spousal support from 2009 to 2014 because Ms. MacDonald was not trying hard enough to obtain skills to support herself.

[45] Neither party’s material refers to any order terminating spousal support, which is confusing. However, on January 21, 2016, there is a reduction shown on the FRO Statement of Arrears, reducing Mr. Nason’s arrears by $13,880. The FRO coding states “ADJ TERMINATED”. Ms. MacDonald has put a handwritten note on this entry “Adjustment to remove SS”. Immediately thereafter, the payments drop from $924 per month to $707 per month and Ms. MacDonald has written “CS ONLY”.

[46] I assume that this means that there was either a court order or an agreement by the parties that Mr. Nason was no longer responsible for spousal support after January 21, 2016. The support thereafter was the $707 per month child support owing under Justice Pazaratz’s September 14, 2012 order.

[47] As Mr. Nason was to pay $217 per month in spousal support, according to Justice Mazza’s July 2, 2009 order, the $13,880 credit equates to an elimination of approximately 64 months, or 5 years and 4 months of spousal support prior to January 21, 2016. If this were correct, the effect would be that Mr. Nason was retroactively excused from any obligation to pay support from approximately October 2010 forward.

[48] However, there are also several subsequent entries adding back various amounts after this adjustment is made. So, it is not at all clear from the Statement of Arrears what the effective termination date was and how it was determined.

[49] In order to address the spousal support issues, the Court needs to know how this termination of spousal support came about. Was it by agreement or court order? Was there a hearing? What was the evidence? What is the effective date for the termination of spousal support?

[50] However, it is helpful to know that spousal support already appears to have been terminated. I need confirmation from the parties about this but, if so, Mr. Nason’s submissions about spousal support being adjusted, due to Ms. MacDonald’s new relationship, appear to have already been addressed by a termination in the spousal support order.

[51] Turning to Mr. Nason’s claim that he should have spousal support arrears between 2009 and 2014 eliminated, I find that there is no merit to this argument. First, I note that he brought a motion to change before Justice Pazaratz in 2012. If there was an issue about the spousal support payments, it should have been raised then. He cannot wait almost 10 years and then ask for Ms. Nason’s entitlement to spousal support to be revisited. She relied upon the existence of the order during this time to make decisions about how to conduct her life. For example, she may have devoted more time to childcare than she might have been able to, if she were not entitled to spousal support. She now has no opportunity to go back and adjust her life to generate more income, so it would be unfair to retroactively remove her spousal support entitlement, when Mr. Nason did not raise the issue with the court for so many years.

[52] That is why the Supreme Court of Canada has indicated that the starting point for “retroactive” adjustments of child support is usually three years prior to the date that the other side is put on notice that a claim for an adjustment is being made[^1]. An analogous argument can be made for requests to adjust spousal support entitlement “after the fact”. The court would be unlikely go back to make an adjustment more than three years prior to the other party being put on notice that a claim was being made. In this case, that would be 2016.

[53] I also note that these parties were married in 1994 and separated in 2007. They had three children. Although I do not know what Ms. MacDonald’s income was at the time, I take it that it was non-existent or minimal, as Mr. Nason says she was not trying hard enough to obtain skills to become employable. Mr. Nason, on the other hand, had income imputed to him of $52,000 per year.

[54] Given the discrepancy in their incomes, the length of the marriage, and the fact that Ms. MacDonald was the primary (if not sole) parent responsible for the care of the children following separation, a spousal support obligation of $217 per month is not out of the acceptable range. The duration, which appears to have been for about seven to nine years, is at the low end of the guideline of 6.5 to 13 years on a 13-year marriage (which would increase if there were pre-marriage cohabitation, which appears likely as Jordan was born before this couple married). Given Ms. MacDonald’s childcare responsibilities and lack of job skills, I suspect, if they were separating today, Mr. Nason would have been ordered to pay support for at least the number of years that he did.

[55] Given the passage of time and the facts of this case, there is no merit to Mr. Nason’s claim that spousal support arrears should be further reduced as a result of Ms. MacDonald’s perceived lack of effort to obtain employment skills earlier. There will be no further reduction in Mr. Nason’s arrears on this ground.

[56] However, as noted, I do need more evidence about whether the spousal support has now been terminated as a result of Ms. MacDonald’s new relationship and, if so, how the termination date was chosen.

[57] Hopefully, FRO can help the Court with this at the supplementary hearing but both parties should also be ready to give oral evidence on that point, if necessary. I will also need to hear submissions about whether they are asking me to make an order to confirm that Mazza J.’s spousal support order of July 2, 2009 is terminated and, if so, the effective date of the termination.

Boys no Longer Eligible for Support

Joshua

[58] As previously noted, Joshua’s date of birth is November 27, 1995. Mr. Nason says that Joshua completed his Grade 12 in June of 2015 and was of the age of majority in Ontario. This is confusing, as the age of majority in Ontario is 18, so Joshua would have turned 18 on November 27, 2013. However, Mr. Nason is not asking to terminate support for Joshua until June of 2015, so I assume that Mr. Nason accepts that Joshua was eligible for support until then.

[59] Ms. MacDonald’s response about Joshua seems to say that she agrees that Joshua’s support should terminate as of July 1, 2015. I do not see where the FRO records have been adjusted to accomplish this. There is an “ADJ TERMINATED” entry on January 15, 2019, crediting Mr. Nason with $924, although Ms. MacDonald makes no notation about what this might be.

[60] There is a statement in Ms. MacDonald’s affidavit at Tab 7, Appendix A, page 4 as follows:

Although the Family responsibility office indeed removed Joshua as of current date, there has been an oversite by them to remove Joshua’s child support payment for a deration of time; which starts in July of 2015 through to June of 2019. The total amount that needs to be adjusted off of the applicant’s debt is $7,206.84 this adjustment has been made based on the applicant’s recent income taxes that he has finally provided. (Sic)

[61] I take this to mean that Ms. MacDonald agrees that Joshua’s child support should be terminated effective July 1, 2015 and support should be paid for one child (Zachary) thereafter on Mr. Nason’s actual income, according to the Federal Child Support Guidelines, until Zachary is no longer eligible for support.

[62] I agree. I will make the requested order.

[63] However, I am not going to wade into specifying to FRO the amounts that should be adjusted to the arrears as a result. They will receive my order and a Support Deduction Order and can then make the necessary adjustments, taking into account amounts that they have already credited to Mr. Nason. Hopefully, they can provide the parties with a new Statement of Arrears to review prior to the supplementary hearing. If the parties disagree with FRO’s calculations, or need an explanation, we can review the adjustments at the supplementary hearing, and I will make any necessary orders to determine items in dispute.

Zachary

[64] Mr. Nason says that, at the time of the application in March of 2019, Zachary was one credit away from completing his Grade 12 and not enrolled in school full-time since June of 2018. He says that Zachary is working full-time and of the age of majority. He wants support for Zachary terminated effective July 2018.

[65] Ms. MacDonald agrees that Zachary completed full-time high school on June 22, 2018 and was only continuing part-time studies thereafter. On April 15, 2019, she faxed FRO a letter asking them to terminate child support for Zachary as of June 22, 2018. She says that the FRO records were adjusted accordingly. There is an entry on April 17, 2019 reducing Mr. Nason’s arrears by $7,070 (which would equate to the prior 10 months of support). The FRO statement codes this entry “ADJ TERMINATED” and Ms. MacDonald’s note is “Removal of CS from July 2018”.

[66] So, this issue appears to have been resolved. For clarity, I will make an order confirming that support for Zachary is terminated effective July 1, 2018.

Child Support for Zachary from July 1, 2015 to July 1, 2018

[67] Child support from the date of termination of Joshua’s support to the date of termination of Zachary’s support should be paid according to the Child Support Guidelines for New Brunswick for Mr. Nason’s income in those years. I am basing the support on Mr. Nason’s actual income, as set out in paragraphs 18 and 19. Although support is often based on the prior year’s income, that is because it is often the best predictor of what the next year’s income will be, when a support order is being made before income tax returns have been filed for a current year. However, where, as here, the actual income is known for the year in which the child support obligation accrues, it is the income on which the child support is based.

[68] Mr. Nason’s income for 2015 was $57,322. His monthly child support for one child under the Guidelines for New Brunswick in effect at the time would be $492.90.

[69] On his 2016 income of $58,315, his monthly child support would be $501.77.

[70] On his 2017 income of $48,616, his monthly child support would be $411.16 from January to November. As the Child Support Guidelines were updated November 22, 2017, his support for the month of December would be $409.04.

[71] On his 2018 income of $46,621.55, his monthly child support from January 1 to and including June 1 would be $390.84[^2].

[72] Although I understand Mr. Nason’s submissions that he and his wife are struggling financially, Ms. MacDonald is in a worse position than he is, particularly given the inconsistent support payments she has received in recent years. Mr. Nason has not established that he is entitled to any reduction in support below the Guideline amount on the basis of “undue hardship”, as the evidence does not establish that the household standard of living in his home is lower than that of Ms. MacDonald. (See s. 10(3) of the Federal Child Support Guidelines).

Final Issue

[73] There is one final issue that I do not understand. Neither party has referred to it in their evidence but, on January 16, 2019, there is an increase to Mr. Nason’s arrears as a result of a $3,038 charge noted by FRO as “Adj crt order”.

[74] I have no idea why this amount is included or whether or not it is correct. It is possible that this means that there was some sort of court order on January 16, 2019, which concerns me. I would need to know what this adjustment is about in order to determine if the Statement of Arrears sets out the correct amount or not.

[75] A representative from the FRO has kindly agreed to attend an oral hearing to help us all sort this out. That hearing will be scheduled for December 2, 2019 at 11 a.m. in Barrie. FRO is requested to make the changes resulting from my orders below and calculate the arrears accordingly. They should come prepared to explain the calculations that they have made throughout the life of these orders, so that the parties and the Court can understand the final figure for arrears. If either of the parties wishes to make submissions about any perceived errors, or about the appropriate termination date for spousal support (if it is not pursuant to a Court order or agreement), I will receive those submissions and make a final decision for the parties on December 2.

[76] I am not clear about the involvement of NBOSE. If FRO counsel is simply able to advise them of the final result, that is fine. If NBOSE should be part of the next hearing, FRO is requested to have them phone in as well.

ORDER

[77] Subject to paragraph 8 and 9 below, an order shall issue as follows:

1. Joshua’s child support should be terminated effective July 1, 2015.

2. From July 1, 2015 to December 1, 2015, Mr. Nason is to pay child support for one child (Zachary) of $492 per month according to the New Brunswick Child Support Guidelines, on his 2015 income of $57,322.

3. From January 1, 2016 to December 1, 2016, Mr. Nason is to pay child support for Zachary of $501.77 per month on his 2016 income of $58,315.

4. From January 1, 2017 to November 1, 2017, Mr. Nason is to pay child support for Zachary of $411.16. For December 1, 2017, Mr. Nason is to pay child support of $409.04. Both are based on his 2017 income of $48,616.

5. From January 1, 2018, to and including June 1, 2018, Mr. Nason is to pay child support for Zachary of $390.84 on his 2018 income of $46,621.55. This is subject to readjustment at the supplementary hearing, if Mr. Nason’s Line 150 income for 2018 was not $46,621.55. Mr. Nason is to produce his 2018 Income Tax Return and Notice of Assessment to FRO, Ms. MacDonald and the court as soon as possible. It should be produced no later than five days before the next hearing.

6. Support for Zachary is terminated effective July 1, 2018.

7. The parties and FRO are to participate in a supplementary hearing on December 2, 2019 at 11 a.m. in Barrie. Ms. MacDonald and FRO counsel should attend in person. Mr. Nason should arrange to call in by contacting the Trial Coordinator IN ADVANCE at 1-800-410-1061 or barrie.scj.tc@ontario.ca to make the necessary arrangements.

8. The parties and FRO counsel should ensure that, for the supplementary hearing, the court has a copy of all court orders made in this file relating to support, as well as details about whether or not spousal support has been terminated and, if so, how that was done (court order or agreement) and the effective date of the termination.

9. This order is not final until the Court has an opportunity to review all of the prior orders, to ensure that there are not orders that the Court was unaware of, which affect the merits of this decision. The Court reserves the right to amend this decision, upon review of the prior orders, if necessary.

[78] Staff are requested to prepare the order as soon as possible and relay it to the parties and FRO, so that everyone will be ready for the supplementary hearing on December 2, 2019.

WILDMAN J.

Date: October 9, 2019

[^1]: See DBS v SRG, 2 SCR 231, 2006 SCC 37

[^2]: As set out in paragraph 18, this amount is subject to verification of Mr. Nason’s 2018 income at the supplementary hearing.