Hillier v. Hillier, 2010 NSSC 429

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Hillier v. Hillier, 2010 NSSC 429 Date: 20101123 Docket: 1201-062273 Registry: Halifax Between: Deborah Hillier Petitioner v. Matthew "Kurt" Hillier Respondent LIBRARY HEADING Judge: The Honourable Justice Moira C. Legere Sers Heard: October 27, 2010 in Halifax, Nova Scotia Subject: Divorce , Parenting issues and Division of Debt

Summary: Parents in conflict resolved many shared parenting issues. Remaining issues required court intervention. Issue: Division of reassessed tax debt, RESP contributions and parenting issues regarding child care, mobility and parenting schedule. Result: Fact Specific.

THIS INFORMATION SHEET DOES NOT 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: Hillier v. Hillier, 2010 NSSC 429 Date: 20101123 Docket: 1201-062273 Registry: Halifax Between: Deborah Darlene Hillier Petitioner v. Matthew "Kurt" Hillier Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: October 27, 2010 in Halifax, Nova Scotia Counsel: Jane Lenehan for the petitioner Deborah Hillier Kurt Hillier, Self-represented By the Court:

[ 1 ] The parties were married on April 11, 2001 and separated on June 27, 2007 after a six-year marriage. [ 2 ] They have two children, L. born January 4, 2002 (age 8) and B. born July 1, 2004 (age 6). [ 3 ] The parties agree that they shall continue to share joint custody and have agreed on a regular parenting schedule. [ 4 ] Neither party seeks child nor spousal support. [ 5 ] I am satisfied that all jurisdictional elements have been proven and grant a divorce on the basis of section 8(2) (

a) of the Divorce Act . [ 6 ] The petitioner mother is employed as an x-ray technician with Capital Health and earned $44,581.00 for 2009.

The mother's income was affected by disability income as a result of her illness and subsequent treatment. [ 7 ] The respondent father is a registered nurse and earned $71,153.79 for 2009 year inclusive of his ½ share of the monthly universal child care benefit of $600.00. [ 8 ] While represented by counsel early in the proceeding, for the divorce hearing the respondent was unrepresented; the petitioner was represented by counsel. [ 9 ] The hearing commenced with a recitation of the terms of the parties' consent regarding certain issues. They are as follows:

a) Spousal Support - Neither party shall now nor in the future pay any spousal support to the other.

b) Child Support - Neither party shall pay any child support to the other.

c) Child Tax Benefit - The parties agree to share the child tax benefit, with each receiving the benefit for six months of the year.

d) Child Care Costs - The parties shall each be responsible for all child care costs while the children are in their care.

e) Custody and Access - The parties shall have joint and shared custody of the children.

f) The children shall reside with the parties as follows, commencing October 31, 2010:

i) Week 1 - From Sunday at 6:00 pm until Wednesday at 2:00 pm the children shall be with the mother. From Wednesday at 2:00 pm until Friday at 6:00 pm the children shall be with the father. ii) Week 2 - From Friday at 6:00 pm until Wednesday at 2:00 pm the children shall be with the mother. From Wednesday at 2:00 pm until Sunday at 6:00 pm the children shall be with the father.

g) In addition, the father shall pick up the children every second Monday and Tuesday while the mother is working and shall have them in his care those days from 2:00 pm to 6:00 pm.

h) Notwithstanding the regular parenting

schedule as outlined in paragraph f (

i) and (ii) above, the parties shall share special occasion and holiday times as follows:

i) Spring Break 2011 - parenting time with the children during spring break 2011 shall be divided equally between the mother and the father. ii) Christmas - In even-numbered years the children shall be in the mother's care from December 24 th at 4:00 pm until December 26 th at 9:00 am.

In odd-numbered years the children shall be in the father's care for those times. iii) New Year's - In even-numbered years the children shall be in the father's care from December 31 st at 4:00 pm until January 1 st at 1:00 pm and in odd-numbered years the children shall be in the mother's care for those times. iv) March Break - In even-numbered years the children will be in the father's care from the Friday before March Break at 6:00 pm until the following week on Sunday at 6:00 pm. In odd-numbered years the children will be in the mother's care for these times.

v) Easter - In even-numbered years the children shall be in the mother's care from the Thursday before Good Friday at 6:00 pm until Easter Monday at 6:00 pm.

In odd-numbered years the children will be in the father's care at those times. vi) The children's birthdays - Regardless of whose care the children are in for their respective birthdays each year, the parties shall each have a two-hour block on their birthdays. vii) Halloween - In even-numbered years the children shall be in the mother's care on Halloween from 4:00 pm to 8:00 pm and in odd-numbered years the children shall be in the father's care from 4:00 pm to 8:00 pm. viii) Interruption of holidays or special occasion time - If the parenting time is interrupted for special occasion or holiday, the parties will revert back to the regular schedule, with no changes or adjustments, once the special occasion or holiday is over.

i) The mother shall no longer be required to provide her work

schedule to the father.

j) Mobility and school - The children shall continue to attend Hillside Park Elementary School and shall attend the junior high and high schools that Hillside Park Elementary feeds into, unless the parties agree in writing or a court orders otherwise. Neither the mother nor the father shall change the children’s current residential area .

k) Travel and passports - The parties shall each be permitted to enjoy reasonable travel with the children while the children are in their care, whether that travel be in Nova Scotia, Canada or internationally.

l) The parties shall each cooperate with the other in renewing the passports as required and ensuring that the parent travelling with the children has possession of the children's passports and travel consent letters when reasonably required.

m) Health insurance and treatment as recommended, such as counselling.

n) The parties shall agree upon one dentist (currently Bedford Dental Centre) and one family doctor (currently Dr. Lauren Marsh) for the children and neither the mother nor the father shall change the children's dentist or doctor unless they both consent in writing to the change or a court orders the change.

o) All third-party healthcare and service providers shall be authorized by the parties to deal directly with either party and provide any requested information to either the mother or the father with respect to the children.

p) Either party shall be permitted to make health appointments for the children, take the children to health appointments and attend health appointments for the children. Both parties are obliged to keep each other informed with respect to dates for appointments and the outcome of the appointments in the event both parties were not present.

q) Both parties shall follow the recommendations of the children's health care providers unless they agree otherwise or a court orders otherwise. In particular, L. and B. shall both attain counselling as recommended by Dr. Lauren Marsh. Division of Property

r) The parties agree that each shall be the sole owner without claim by the other of any and all registered and non registered investments held in their name alone. (This does not include the RESP.)

s) The parties shall each be the sole owners without claim by the other of any and all pension benefits and rights pursuant thereto earned by each of them through their place or places of employment during the years of marriage.

t) The parties shall each own the balances in any and all bank accounts registered in their name.

u) The parties shall each be sole owner of any and all vehicles registered in their name alone.

v) The parties shall each retain all other property in their possession without claim by the other.

w) The parties shall each be fully responsible to pay the balances owing on any and all debt held in their name alone and any and all debt incurred by them following the date of separation, except that the parties do not agree regarding the debt arising out of the "charitable investment." Matters in dispute [ 10 ] The only matters relating to custody and access that have to be resolved by the court are as follows:

a) Summer Vacation - The mother wants to have a month on and a month off in the summer or two-week block vacation and then return to the original schedule.

b) The mother would like to be able to choose her own care giver for the children when the children are in her care without needing the consent of the father. The father does not agree to that provision.

c) Time at Christmas - The father wishes to have four hours on Christmas on the 24 th or 25 th during the period of time the children are with the mother for Christmas and he is prepared to give the mother four hours when the children are with him for Christmas. Likewise, at Easter he wishes to have four hours on Easter day when the children are in the mother's care.

d) Mobility - the mother is seeking to restrict the father from changing his residential area (which would be the result should he decide to cohabit with his girlfriend) to ensure at least one of the parents continues to reside in the current Hillside Park Elementary School catchment area until the mother and father agree in writing or the court otherwise orders.

Health Insurance [ 11 ] Both parties shall arrange to have the children covered under their employment health insurance and authorize the plan administrators to deal directly with either the mother or the father with respect to coverages used for the children. Mobility and school [ 12 ] The parties separated in 2007, having sold the matrimonial home located in Lower Sackville. The mother moved into a flat in Lower Sackville and the father purchased a home in Lower Sackville.

In October of 2009 the mother was able to purchase a home at Headings Court. [ 13 ] L. commenced school in September of 2007 while B. remained with a babysitter. The mother enrolled L. in the school close to the babysitter's neighbourhood, which allowed both children to continue to be cared for by the same babysitter. L. began grade primary at Beaverbank Monarch School in September and completed grade primary and grade 1 there.

B. was scheduled to start school in September of 2009. [ 14 ] The father, in the summer of 2009 and without consent by the mother, changed the children's school from Beaverbank Monarch to Hillside Park Elementary, which was in his neighbourhood. The mother was opposed to this change but acknowledges the children are now settled in this school. She purchased a home nearby in order to ensure that the children's stability in that neighbourhood.

She was not, however, in the Hillside Park Elementary catchment area. [ 15 ] Both parties have agreed that the parties would remain in that area and the children attend the junior high and high schools, unless they agree otherwise or a court orders otherwise. The mother selected her home close to the children's school yet just outside the catchment area. The children's attendance in this school primarily rests because one parent lives within the catchment area. The father does not wish to be so restricted.

This relates to the fact that he is in a relatively new relationship and his new girlfriend lives in Hubbards, well outside the catchment area. [ 16 ] The mother is anticipating a problem should the father move. Given the parties' agreement in paragraph 9(

j) above, a move might jeopardize this agreement. The parties have agreed for the sake of stability that the children remain in their current school. [ 17 ] The Court does not know what effect a move might have on the children if the father moved outside the Hillside Park Elementary School catchment area. What effect would this have on the parties' current agreement and shared parenting arrangement?

Would the result be that the children were no longer attending Hillside Park Elementary, a school that both parents would like their children to continue to attend? [ 18 ] The father has been in a relationship since October of 2006 with his current partner who lives in Hubbards with her two children. There is some suggestion that the father might want to move to Hubbards.

[ 19 ] The father presents his plan of care living where he is, not in Hubbards.

The parties have entered into considerable negotiations over a protracted period of time to arrive at a settlement which supports the children remaining in their current school, chosen by the father contrary to the mother's wish, to accommodate his then current household. [ 20 ] This agreement is based on the father remaining where he is. [ 21 ] While the mother may not be obliged to immediately make an application to vary, if the father's move adversely affects the children's attendance at the school, then he will have triggered an action that is a material change in circumstances, justifying a review of the current agreement. [ 22 ] Neither parent shall change the children's school without the prior agreement in writing of the parties as to where that change should take place nor court order. [ 23 ] To confirm the terms and condition of their agreement and the court order on other remaining matters, I assume that the father will remain in the same household.

The order is crafted around the parents proximity to the children's school in order to facilitate their attendance at that school. [ 24 ] Therefore, I will not impose a restriction on the father's mobility but simply emphasize that this decision reflects his current situation. He did not put forward an intent to move. The Mother's availability during her parenting time [ 25 ] The father wants the Court to impose a requirement that the mother must be available to care for the children at all times when the children are in her care during holidays, blocked vacation times or any other times?

This would be unreasonable and, without evidence to suggest it is necessary, I decline to direct such a condition. Caregivers [ 26 ] I have also reviewed the emails between the parties and they show certainly an arbitrariness with respect to the father's relationship with the mother and a general tendency by the father to be punitive when dealing with the mother. [ 27 ] If the mother does not agree with the father's proposals or does not, for example, return an

article of clothing, he responds by threatening to deny her contact with the children. [ 28 ] An example of this is the father's email of November 9, 2009 attached to the mother's affidavit of September 15, 2010 (Tab 3, page 11) in which he imposes phone access guidelines as follows: 1. Call once. If the children do not answer, leave message if you wish for them to call back. 2. Recognize that there are times you call when it is inappropriate and therefore the children are not available to speak on the phone. 3.

If you call more than once, that is your choice but you have forfeited your opportunity to speak with the children. 4. Please print this email and discuss with your lawyer. [ 29 ] At the time this email was written, the mother's work

schedule was not as predictable as it is now. The parties were not able to

reach consensus. From his perspective, the father was receiving a significant number of phone calls changing access or parenting arrangements at the last minute. The father decided to put in place a restriction on the phone calls received from the mother. [ 30 ] It is clear in reading through these emails that the parties continue to engage in conflict. It is equally clear that in trying to settle the conflict the mother continues to call to insist on her right to proceed in accordance with her

schedule and the father continue to impose punitive measures, guidelines, directives and threaten to resolve the issue by keeping the children. [ 31 ] The father spoke to the constant interruption and interchange in calls and emails that he was receiving whether the children were in his care or in the mother's care.

He attempted to make a proposal that he felt would "eliminate the harassment and constant tension" the mother was creating with her constant phone calls. [ 32 ] Promoting unnecessary contact between the parents other than for the purposes of ensuring that they keep each other informed as to the children's whereabouts, their health, their education, their welfare is contraindicated. [ 33 ] Both parties are spending a substantial amount of time with the children. They should agree on after school providers and it should be consistent.

For other sitters I will not impose the requirement that either parent obtain the approval of the other parent for occasional babysitters. The child care provider for before and after school will obviously have to be in close proximity to the children’s school. Paternal Grandparents [ 34 ] Should there be a requirement that the mother not allow the children to spend time with their paternal grandparents while the children are in her care? [ 35 ] The father’s request that the mother be prohibited from taking the children to the paternal grandparents is denied.

The father is concerned because the mother has a good relationship with his parents and continues to keep them involved on a regular basis with their grandchildren. The mother indicated she will continue to promote a relationship between the father's parents and the children. [ 36 ] The father is not in a good relationship with his parents at this time.

He wishes to require his parents to move through him in order to have access to his children. [ 37 ] That kind of a condition does not reflect the best interests of the children. [ 38 ] In addition, given the conflict, I would not impose a four-hour period of time at Christmas or a period of time at Easter during which the children would increase their transitions between mother and father, thus exposing them to the possibility of conflict. [ 39 ] The holiday time is set out and will not include an interruption during each parent's Christmas or Easter contact.

Equalizing Parenting Time [ 40 ] The father seeks guidelines to allow him to recover 17.3 days of parenting time from the mother without grief from her. [ 41 ] The father has calculated the hours each parent has the children in their care. He was uncertain when asked whether this includes sleeping time or not. He insists on an equalization of hours to ensure an exact 50-50 split. [ 42 ] Shared parenting arrangements do not require an exact accounting of hours. Co-parenting is not preconditioned on equal time

sharing. To order an equalization prospectively would be to impose a condition that may not reflect the best interests of the children in the future. [ 43 ] It might also be quite disruptive if the father can simply give notice and require the mother to alter a

schedule simply to equalize his time. [ 44 ] I decline to order such an equalization. I note that the father spends significant time with the children. Equalization will not produce any remarkable difference for the children. This reflects more on the father's wishes rather than any identifiable need of the children. [ 45 ] The parties can agree to such changes and terms and conditions as they choose, so long as it is in advance and confirmed in writing. Summer

Schedule [ 46 ] These are still relatively young children who benefit from frequent contact with their parents. One month block access may suit the parents but I am unable to conclude on the evidence provided that a full month with each parent is in the children's best interests. [ 47 ] Unless otherwise agreed upon between the parents in advance in writing, each parent shall be entitled to two weeks uninterrupted vacation period with the children. [ 48 ] The mother will have first option in odd-numbered years and she shall notify the father by May 15 th of her selection.

The father shall then notify the mother by May 30 th of his two week vacation period. For the remainder of the vacation period the regular

schedule will follow. [ 49 ] In even-numbered years the father shall have first option and shall advise in the same manner as above. Property [ 50 ] The father insisted that the mother had an undisclosed savings account. There was no evidence to indicate that there did exist any account which was hidden or undisclosed. [ 51 ] The father alleged that the mother must have had extra monies because the disclosure he required provided that there were extra monies as a down payment. [ 52 ] The mortgage consultant testified.

I am satisfied that any errors in the documents were the result of clerical errors made by the mortgage consultant. The allegations of the father were unfounded. [ 53 ] The father alleged that the mother had significant savings at the time of separation. He has not provided evidence that would allow the Court to conclude that she did in fact have significant savings. She has denied it. Tax Debt

[ 54 ] The father wants the mother to share responsibility for his 2005 and 2006 tax debts which arose as the result of an investment reassessed by Canada Revenue Agency ("CRA"), resulting in a significant tax debt for both of these tax years. [ 55 ] On September 19, 2010, the father received a letter from counsel requesting disclosure with respect to the CRA debt due and payable by him.

Counsel also requested copies of correspondence he received from the CRA with respect to payments options, tax relief or waiver and penalty relief or waiver with respect to his CRA debt, written confirmation of the current balance, details of payment made together with details of the source of those payments and details of any applications made by him for tax relief or waiver, penalty relief or waiver with respect to the CRA debt and copies. [ 56 ] Counsel wrote to the father again on October 4, 2010 requesting this information.

The father did not provide this information in a timely fashion although he did speak to it during the proceedings. [ 57 ] Following the separation in June of 2007, the father's 2005 and 2006 income tax returns were reassessed with respect to a charitable investment scheme. [ 58 ] In 2005, with the knowledge and consent of the mother, the father entered into a tax shelter scheme associated with charitable donations. The refund was used in the household accounting. [ 59 ] The 2005 income tax return shows a balance due as a result of the reassessment of $19,058.01.

From the father's testimony, as a result of the investment, the parties had a net gain of $8,484.77, which went into the matrimonial accounting to be used in managing the household finances. The mother indicates that she is prepared to share the 2005 tax debt. [ 60 ] However, with respect to the tax bill arising in the 2006 year, the mother explicitly withheld her consent and testified that she did not participate in the father's income tax filing for 2006. The parties were in the process of separating their finances.

She was not prepared to take any responsibility for that debt. [ 61 ] A letter dated October 26, 2010 from Revenue Canada sent to the father was disclosed very late in the proceedings. This confirms that the outstanding tax balance for 2006 is $23,100.96 and is under dispute. There have been other figures suggested for the 2006 tax year. I am unable on the evidence to conclude what exactly is the amount currently owing. [ 62 ] The tax department recommended the father pay immediately as interest would be charged.

This debt has not been paid. [ 63 ] The father indicates that he and many others are awaiting the determination of what he believes to be a class action currently being contested before the courts regarding this particular charitable investment scheme.

He wants to await the court's decision before paying the outstanding indebtedness. [ 64 ] All documentation is in the father’s name. [ 65 ] On October 20, 2010, the father notified counsel for the mother that while he had contacted CRA on September 28, 2010 he had still not received the letter that set out the nature of the arrears. [ 66 ] What the father was reluctant to disclose and subsequently did disclose is that he in fact has filed an objection to the reassessment and that objection is dated 08/06/03. [ 67 ] One Notice of Objection is dated 2005 and contains the facts upon which the objection is based.

Briefly, the Notice of

Objection confirms the fact that on December 2, 2005, the father signed certain documents in order to participate in the Parklane Donations for Canada program. This program was registered as a tax shelter under s.237.1 of the Income Tax Act . The father's objection further indicates as follows: 3(

a) I gave a pledge to make a cash donation in the amount of $8,750.00 to Canada Amateur Wrestling Association...and provided my cheque in payment of this amount. (

b) I applied to be designated as a beneficiary of a certain class of donations... and was accepted as a beneficiary. [ 68 ] On September 10, 2008, the father received a letter from CRA confirming that they received his Notice of Objection and would contact him accordingly.

They advised him, however, that if he did not pay that amount, interest would continue to accumulate. [ 69 ] The father has also filed an objection with respect to 2006, and he received a letter on September 1, 2009 indicating that CRA has received his objection with respect to that tax year. [ 70 ] Nowhere in the documentation does it indicate that the mother had any involvement in the actual contracts. [ 71 ] The mother agreed to a division of the 2005 tax debt because she received a benefit from the money in the household account. She objected to the continuation of this investment in 2006.

The discussion between the parties indicated that she would not, therefore, be entitled to the advantage of any income flowing as a result of that. [ 72 ] The mother gave vivo voce testimony that she refused and communicated her refusal to the respondent regarding his intent to invest a second time. The father's testimony is weaker on this point. I accept the mother's testimony that she did not agree to continue the investment in 2006. [ 73 ] I have some difficulty directing the mother to pay one-half of the 2005 reassessment.

The father has not been forthcoming in his disclosure and does not respect the mother's right to know information on a regular basis respecting the tax, despite repeated requests for information. [ 74 ] This information was not disclosed in a timely fashion and indeed was disclosed at the very last minute to the mother’s counsel. [ 75 ] I order a division of the 2005 tax year debt in half, resulting from the reassessment relating to this investment payable by the mother to the father. [ 76 ] The 2006 tax debt shall be the responsibility of the father alone to repay. [ 77 ] However, the father will be required to keep the mother updated regarding each and every piece of correspondence with respect to the 2005 tax year.

Failing a response to reasonable requests, the father shall be responsible for any costs associated with obtaining this disclosure. [ 78 ] If the father is successful in his objection to the 2005 tax year, he shall immediately upon the receipt of the repayment for 2005 repay the mother forthwith in full one-half of the outstanding indebtedness, together with one-half of any interest he receives relating to 2005 . He shall provide her with full particulars of the repayment including a copy of the letter from CRA.

RESP Account [ 79 ] The mother proposes that the RESP account during the marriage (balance at separation $3,676.10) be preserved and, together with any interest that accrues on that amount, used solely for the benefit of the children’s post secondary education as planned. [ 80 ] These funds are currently under the control of the father since the separation and shall be held in trust by the parents for the children and administered by the parties jointly for the children's future education in such a way that these funds are equally divided between the children and made available to the children for post secondary educational pursuits. [ 81 ] The mother wishes to be one of the owners of this plan, if possible without triggering disposition costs or penalty, to allow her some control over the funds.

If not, the mother wishes the Court to direct the father with regard to the application of the funds and to disclose the status of the funds upon reasonable request. [ 82 ] The mother wishes those funds to be considered the child’s contribution and the remaining costs assessed and responsibility for contribution determined when the child commences post secondary education. [ 83 ] Any remaining reasonable costs of such post secondary educational pursuits are to be paid by the father and the mother in proportion to their incomes at the time the cost is incurred. [ 84 ] The father wishes the Court to impose upon the mother an obligation to contribute toward the RESP equal to his contributions post separation and to continue to contribute on a monthly basis. [ 85 ] The father wishes the Court to order the mother to start her own educational savings plan for the children and match the contribution already made by the father to the existing RESP post separation and continue to match the father's monthly contributions of $100.00 per month in her own RESP account, up until the RESPs are required by the children. [ 86 ] If the mother does not match the father's ongoing monthly contributions, the father proposes that when the RESPs are required by the children, the mother must match the contributions used from the RESPs with any remaining reasonable costs of such post secondary education to be paid by the parties in proportion to their incomes at the time the costs are incurred.

Any remaining funds not used by the children for education to be paid solely to the children. [ 87 ] Part of the father's request is speculative and premature. The requirement that the mother match his contribution is denied for two reasons:

(1) The mother's income is lower than the father's. (2) In this shared parenting arrangement, if one were to follow the "guidelines" for the 2009 year, the father would be required to pay the mother a set off amount of $357.00. In large part due to the ongoing conflict between the parties, the mother has agreed at this time to receive no set off. Thus, the father is paying less than the guideline amount. [ 88 ] This is a consideration that ought to be reviewed at such time as the parties' contribution to the children's post secondary education is considered, if not sooner, should there be any change to the shared parenting regime due to a material change affecting the children’s schedule.

[ 89 ] I direct the current RESP be held in trust with the joint control by the mother and the father if possible without disposition costs or penalty and if not possible, the father shall ensure that the terms of the order are enforced and the funds remain for the education of the children. [ 90 ] The father shall provide the mother on a yearly basis an update on the status of the funds by providing her with statements from the fund administrators. [ 91 ] The funds are to be administered jointly for the children's future education such that the funds are divided equally between the children and made available to the children for post secondary educational pursuits. [ 92 ] The order will also contain the usual disclosure of income information and income tax returns on or before May 15 th each year. [ 93 ] Counsel for the mother shall prepare the order.

Legere Sers, J. November 23, 2010 Halifax, Nova Scotia