Downey v. Downey, 2017 NSSC 354

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Downey v. Downey , 2017 NSSC 354 Date: 2017-04-11 Docket: 1201-052751 Registry: Halifax Between: Sandra Downey Petitioner v. Cramer Downey Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore

Summary: Successful application to determine each party’s share in the equity of the former matrimonial home determined and to offset the Respondent’s share against his arrears of child support. Key words: Family, Child support, Arrears, Matrimonial property Legislation: Matrimonial Property Act , R.S.N.S. 1989, c. 275 THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Downey v. Downey , 2017 NSSC 354 ENDORSEMENT Sandra Downey v.

Cramer Downey 1201-052751 April 11, 2017 Bryen Mooney appearing for Sandra Parker (formerly Downey) David Dalrymple appearing for Cramer Downey Sandra Parker asks to have Cramer Downey’s share in the equity of the former matrimonial home determined and offset against his arrears of child support. Decision: Mr. Downey’s share of the equity in the matrimonial home is $24,070.90. Mr. Downey owes Ms. Parker arrears of child support of

$21,865.96. Mr. Downey shall execute a quit claim deed transferring his interest in the matrimonial home to Ms. Parker and provide this deed to her before April 28, 2017. Reasons: 1 . Sandra Parker filed her application on June 30, 2016. 2 . A conference was held on October 7, 2016 and the hearing was scheduled for April 7, 2017. At the conference, filing deadlines were assigned. Ms. Parker was to file any updated affidavit by February 17, 2017. Mr. Downey was to file his affidavit (and possibly a Property Statement) by February 24, 2017. Each party was to file its brief by March 24, 2017. 3 .

On March 17, 2017, Ms. Parker’s counsel wrote to me asking that filing deadlines be adjusted. I agreed, so Ms. Parker was to file her updated affidavit by March 10, 2017; Mr. Downey was to file his affidavit (and possibly a Property Statement) by March 17, 2017 and each party was to file its brief by March 24, 2017. I was advised that Mr. Downey’s counsel had agreed, by email, to these revised filing dates. 4 . In the weeks before the hearing, counsel were contacted by telephone to determine if the hearing would proceed. The fact that no materials had been filed by Mr.

Downey created the impression that the parties’ settlement discussions might have been successful. While Ms. Parker’s counsel responded, there was no response by Mr. Downey’s counsel. 5 . At no point prior to the commencement of the hearing was there any request by Mr. Downey to adjust filing deadlines, to file materials late or to adjourn the hearing. 6 . At the beginning of the hearing, Mr. Downey’s counsel sought leave to file Mr. Downey’s affidavit and brief. Ms. Parker opposed this. I did not grant leave. 7 . Mr. Downey then sought to have the hearing adjourned. Ms. Parker opposed this.

An adjournment would effectively allow Mr. Downey to file his materials late. It could prejudice Ms. Parker as the former matrimonial home already bears a judgment registered by one of Mr. Downey’s creditors. Ms. Parker is not implicated in this debt. I did not grant the adjournment. What is the value of Mr. Downey’s fifty percent equity in the matrimonial home? 8 . The parties’ Corollary Relief Judgment was granted in September 2000. It incorporated their 1997 Separation Agreement which provided Mr.

Downey would retain a property interest in the matrimonial home “equivalent to fifty percent of the equity accrued as of May 1, 1999, and shall recover such an amount (less applicable expenses) upon the sale of the Matrimonial Home.” 9 . Ms. Parker offered evidence that Mr. Downey’s fifty percent of the equity accrued as of May 1, 1999, is $24,070.90. 10 . Mr. Downey did not challenge Ms.

Parker’s evidence and conceded in closing submissions that the evidence before me disclosed no other possible conclusion than that his share of the equity in the matrimonial home was $24,070.90, which amount considered the 2012 judgment against him registered against the matrimonial home. What amount of arrears of child support should be offset against Mr. Downey’s equity in the matrimonial home? 11 . Ms. Parker asked to have Mr. Cramer’s arrears of child support offset against the $24,070.90 which she owes him for his fifty percent of the home’s equity. 12 . Ms. Parker testified that Mr.

Downey owed arrears of $56,203.53 and that he has reduced this amount by paying her $721.31 recently, so his arrears are $55,482.22. She said if Mr. Downey’s equity in the matrimonial home is offset against this amount, Mr. Downey owes arrears of child support of $31,411.32. 13 . Mr. Downey was required to pay monthly child support of $300.00 from May 1, 1997 until May 1, 2016. The total support owed is $68,700.00 (229 months x $300.00). 14 . Ms. Parker offered records from the Maintenance Enforcement Program, as evidence showing that Mr. Downey had paid $18,991.67. These records didn’t meet the requirements of

section 48 of the Maintenance Enforcement Act , S.N.S. 1994-95, c. 6,

however there was no objection to their admissibility or challenge to the truth of their contents. 15 . Ms. Parker testified that Mr. Downey had paid a further $3,771.47, in addition to the amounts shown on the Maintenance Enforcement Program records. 16 . I find that the arrears owed are $45,936.86 ($68,700.00 - $22,763.14), based on the current orders (the Corollary Relief Judgment and the Interim Order terminating child support which was issued on November 16, 2016). 17 . Offsetting the amount Ms. Parker owes Mr. Downey for his equity in the matrimonial home against the arrears of child support means Mr.

Downey would owe arrears of $21,865.96 ($45,936.86 - $24,070.90). 18 . Mr. Downey argued that the calculation of arrears was based on a requirement that he pay child support for two children from May 1997 until May 2016 and that this results in him paying too much child support because he shouldn’t be required to pay child support for the couple’s older daughter after she left Ms. Parker’s home. 19 . The couple’s younger daughter was born in 1992 and completed her post-secondary education in May 2016. Their older daughter was born in 1986.

She completed high school around the time of her nineteenth birthday and left her mother’s home. This would have been in 2005, considering the fact she required an extra year in high school to earn her final credit for graduation. The evidence does support Mr. Downey’s contention that he should not be required to pay child support for this child after she turned nineteen. 20 . The contentious issue is the amount of child support Mr. Downey should have paid when he was supporting only the couple’s younger daughter. 21 . Child support is based on the payor’s income.

This is a fundamental principle of child support repeated in the jurisprudence and stated in clause 3(1) (

a) of the Federal Child Support Guidelines , SOR/97-175. 22 . “The responsibility for providing accurate and full disclosure with respect to financial documentation rests on the person who possesses the information”: Cameron-Masson v. Masson , 1997 Carswell NS 199 (NSFC) at para 25 . 23 . Mr. Downey did not provide any evidence of his income, so I am unable to determine the amount of support he ought to have paid for the couple’s younger daughter from 2005 until May 2016. If Mr.

Downey’s annual income was in the range of $34,000.00 to $35,700.00, a monthly payment of $300.00 was the appropriate amount, having regard to the child support tables at the time. 24 . I was told that Mr. Downey owned and operated his own business, Soul Clippers. I was provided with no other information about his employment or income. 25 . Mr. Downey argued that his child support should be adjusted to reflect the decrease from two children to one, based on the income level disclosed at the time the parties signed their Separation Agreement or when the Corollary Relief Judgment was granted. 26 .

This proposal is unworkable. The parties’ 1997 Separation Agreement stated that Mr. Downey’s income was $1,400.00 each month. He was in Ohio and it is not clear whether his income was in American or Canadian dollars. In 2000, when the divorce was granted, the Corollary Relief Judgment explicitly stated that Mr. Downey’s income was “unknown”. Neither circumstance provides me with a baseline from which I can infer Mr. Downey’s income in the years from 2005 – 2016. 27 . I have no evidentiary basis to vary Mr. Downey’s child support payments retroactively from 2005 to 2016 and I dismiss this request. 28 .

I conclude that Mr. Downey owes arrears of child support of $21,865.96 to Ms. Parker. Arrears are fixed in this amount. Title to the matrimonial home 29 . Mr. Downey shall execute a quit claim deed before April 28, 2017, transferring all his interest in the matrimonial home to Ms. Parker. Directions: Ms. Mooney shall prepare the order for review by Mr. Dalrymple. The order shall be filed no later than May 1, 2017.

Ms. Mooney shall prepare a quit claim deed for execution by Mr. Downey and provide it to Mr. Dalrymple no later than April 17, 2017. Costs: No later than April 28, 2017 counsel may contact my office to advise if they wish to be heard on costs and how they wish to be heard, orally or in writing. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)