Craig Derek Troy Morash Petitioner v. Penny Marie Morash Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : April 21, 2016 Counsel: Patrick MacMillan for Craig Morash Penny Morash, self-represented By the Court: 1. Introduction [ 1 ] Craig Morash has applied to vary child support retroactively v. prospectively and to rescind child support arrears. Penny, 2016 NSSC 112

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Morash v. Morash , 2016 NSSC 112 Date: 2016-05-04 Docket: 1201-063519; SFHD 063970 Registry: Halifax Between: Craig Derek Troy Morash Petitioner v. Penny Marie Morash Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : April 21, 2016 Counsel: Patrick MacMillan for Craig Morash Penny Morash, self-represented By the Court: 1. Introduction [ 1 ] Craig Morash has applied to vary child support retroactively and prospectively and to rescind child support arrears. Penny Morash, his former wife, opposes this and asked that I impute income to him.

The real issue between the two is whether Mr. Morash is able to work. [ 2 ] Each party also wanted to vary the parenting terms of their Corollary Relief Order. They have agreed: Ms. Morash will have sole custody of their son, Derek; Mr. Morash’s access shall be described as reasonable access at reasonable times and upon reasonable notice; and Mr. Morash shall be able to contact Derek’s educators, health care providers and others directly to obtain information about Derek. 2. Varying child support [ 3 ] To vary child support, Mr. Morash must prove there’s been a material change in circumstances as described

section 14 of the Federal Child Support Guidelines , SOR-97/175. When the Corollary Relief Order was granted, he earned an annual income of $40,040.00. [ 4 ] Mr. Morash asked to vary child support effective December 2012. He was injured in a motorcycle accident in June 2012 and hasn’t worked since then. There is no dispute that Mr. Morash’s financial circumstances changed in 2012. Ms. Morash agreed that Mr. Morash should have been off work for six months following his accident.

[5] Ms. Morash argued that Mr. Morash should have returned to work after six months and that I should impute income to him. Shesaid that he works under the table and she disputed his claim that he is unable to work. 2.1 Imputing income [6] Establishing a fair standard of child support to ensure that children benefit from both parents’ financial means after a separation isa goal of the Federal Child Support Guidelines: subsection 1(a). To achieve this goal, each parent must earn what she or he is capable ofearning.

Imputing income is a method for judges to give effect to parents’ joint and ongoing obligation to support their children. [7] A parent cannot avoid the obligation to pay child support by a self-induced reduction in income: Donovan, 2000 MBCA 80 atparagraph 21(6); Duffy, 2009 NLCA 48 at paragraph 35(2). [8] I should not impute income to a parent whose ability to earn is impaired by a disability: Tapper v. Connolly, (NL SCTD) at paragraph 34. [9] There are three questions to be addressed when imputing income under clause 19(1)(

a) of the Guidelines: 1. Is the parent intentionally under-employed or unemployed? 2. If so, is this caused by the health needs of the parent? 3. If not, what is the appropriate income to be imputed? [10] Mr. Morash has not had full-time employment since his accident in June 2012. [11] Mr. Morash must prove that health problems make him unable to work: MacGillivary v. Ross, 2008 NSSC 339 at paragraph 27. Mr. Morash offered his own testimony and medical opinions to prove he cannot work. 2.1.1 Mr. Morash’s testimony [12] Mr.

Morash asked me to rely on his testimony that he hasn’t been able to work since his motorcycle accident. This requires meto consider Mr. Morash’s credibility. [13] Ms. Morash said that Mr. Morash was not truthful in his financial disclosure. A Statement of Income is to disclose a person’scurrent monthly income from all sources. Mr. Morash did not disclose on his Statement that he receives $20.00 each week for lookingafter a property when its occupant (Neil) is away. However, in his affidavit Mr.

Morash swore that he has done some odd jobs and is“lucky to make $100.00 per month doing that.” This estimate is generous considering how much money Neil gives Mr. Morash. [14] Mr. Morash said he cannot work. In cross-examination, he admitted that, while he is not a plumber or an electrician, he was ableto fix Neil’s water supply when it wasn’t working and to fix an electrical problem for Neil. Mr. Morash worked mowing Neil’s lawnusing a ride on mower, until he hit a rock and broke the mower. Mr.

Morash said that he put knick knacks and flowers on Neil’s yard toprepare for Neil’s return for the summer of 2015. [15] Ms. Morash testified that Mr. Morash was able to spend two to three hours cutting her lawn using a “very large bush whacker”. She said he cut down a tree that was 25 feet tall and more than a foot in diameter using a chain saw that required both hands to operate,cut the tree into lengths and dragged them to a fire pit to burn. She said he also moved a 250 pound work bench from her basement to histruck. [16] Mr.

Morash reported income in his affidavit that wasn’t disclosed on his Statement of Income and he minimized his ability to dophysical labour and handyman tasks. This does not cause me to disbelieve his evidence, but I do approach it on the basis that he hasshaded it to his advantage. 2.1.2 Medical opinions about Mr. Morash’s neck, shoulders and back [17] Since he began this litigation, Mr. Morash has been challenged by his former wife to prove he is unable to work. [18] Mr. Morash provided three medical opinions: one from his orthopedic surgeon, Dr. O’Brien; and two from family physicians:Dr. Harris Crook and Dr.

Jeffrey Colp. None of the doctors testified. [19] Mr. Morash failed to comply with Civil Procedure Rule 55 relating to expert reports. I am overlooking the failure to filestatements of qualifications for Dr. O’Brien and Dr. Colp (Rule 55.09) and the failure to file the reports on time (Rule 55.03(4)). Thefailure to comply with Rules 55.04(2) and (3) is more problematic. Rule 55.04 dictates the contents of an expert’s report. These contentsare required to outline the premises for the opinion and to explain how the expert formed the opinion: these element enable me to assessthe opinion. 2.1.2.1 Dr. O’Brien [20] Dr.

O’Brien saw Mr. Morash on January 21, 2016 for a re-check following shoulder surgery on July 24, 2015. Mr. Morash toldDr. O’Brien that if “he tries to stand up at all he cannot actually elevate his shoulders in a standing position”, and said “he feels betterwhen he leans forward with his head down”. In contrast, Dr. O’Brien was able to move Mr. Morash’s shoulders through a full range ofmotion. X-rays of Mr. Morash’s neck done that day showed “nothing that could explain the multiple pain issues that he experiences withstanding upright.” [21] Dr.

O’Brien’s report concluded: “I cannot really explain the nature of symptoms except maybe he has some components offibromyalgia or psychosomatic pain.”

2.1.2.2 Dr. Crooks [ 22 ] Dr. Crooks has been Mr. Morash’s family physician for more than thirty years. Mr. Morash’s lawyer asked Dr. Crooks to prepare a report “outlining Craig’s health issues and to provide an opinion on his ability to work”. Dr. Crooks interviewed Mr. Morash and conducted a complete examination of Mr. Morash’s neck, shoulders and back on January 26, 2016. By the time he wrote his report, Dr. Crooks had received Dr. O’Brien’s report. [ 23 ] According to Dr. Crooks, Mr.

Morash had “complaints of back pain going back 20 years and on one occasion had a prolonged lay off from work because of back pain.” [ 24 ] Dr. Crooks reported all the ways that Mr. Morash says his shoulder injury has impacted his daily life. According to Dr. Crooks, neither he nor any specialist placed any limitations on Mr. Morash “once he had recovered from his surgery”. [ 25 ] Dr. Crooks reported that when Mr.

Morash entered his office this past January, he “was behaving in a very bizarre way”: There was constant posturing with contraction of multiple muscle groups, rigidity, grimacing and grunting and finally bending down at the waist with his arms hanging to the floor in order to gain release of the rigidity of all his muscle groups. [ 26 ] While Mr. Morash had “great difficulty” in moving his neck and shoulders, Dr. Crooks was able to move them and to achieve a full range of motion. Dr. Crooks noticed no weakness in any muscle groups and said there was “no evidence of any neurological disorder”. Dr.

Crooks said he was “unable to place any functional limitations” on Mr. Morash. [ 27 ] Dr. Crooks’ report makes clear that he found no physical or neurological problem with Mr. Morash’s neck, shoulders and back. [ 28 ] Dr. Crooks is also the doctor for Penny Morash, the couple’s son Derek, and Ms. Morash’s parents. Mr. Morash argued that Dr. Crooks’ report was “ambiguous” so Dr. Crooks wouldn’t have to take sides for or against any of his patients. [ 29 ] I disagree: Dr. Crooks’ observations and conclusions about Mr. Morash’s physical complaints are clear. They are consistent with Dr. O’Brien’s.

There is no identifiable physical or neurological basis for Mr. Morash’s complaints about his neck, shoulders and back. Like Dr. O’Brien, Dr. Crooks speculated Mr. Morash’s pain has some other origin. [ 30 ] Dr. Crooks identified five barriers to Mr. Morash’s return to work: 1. the fact that Mr. Morash hasn’t worked for three years; 2. Mr. Morash suffers from a “longstanding anxiety disorder and depressed mood”; 3. Mr. Morash suffers from chronic pain disorder; 4. Mr. Morash lacks a strong connection to the workplace; and 5. the litigation between Mr. Morash and Ms. Morash. [ 31 ] If the only reasons keeping Mr.

Morash from working are his history of unemployment, his lack of connection to work and this litigation, I should impute income to Mr. Morash. These are not sufficient reasons for not working and failing to meet the obligation to support Derek. [ 32 ] In contrast, Mr. Morash’s anxiety disorder and depressed mood, along with chronic pain disorder may mean I should not impute income to him. These circumstances may disable someone from work. 2.1.2.3 Dr. Colp [ 33 ] Dr. Colp works at the Hatchet Lake Medical Centre where Dr. Crooks also works. Mr. Morash said he’d seen Dr.

Colp “on several occasions” in the past when Dr. Crooks was on vacation or otherwise unavailable, but he couldn’t remember when these occasions were. Mr. Morash testified that his previous appointments with Dr. Colp were not for his current complaints. [ 34 ] Most recently, Mr. Morash visited Dr. Colp on April 13 and April 20, 2016 (the day before the hearing). He said that Dr. Colp did a “physical and visual examination” which he described as more thorough than Dr. Crooks’ because Dr. Colp “took time to observe me”. Mr. Morash did not say how long he was with Dr. Colp or if Dr. Colp had reviewed his file.

The file was available in the medical office. [ 35 ] One day before the hearing, Dr. Colp wrote a letter which said, in full: “This patient was seen in clinic today and in my opinion is not capable of working at the present time due to neck and shoulder pain.” As Ms. Morash said, this is the sort of note one would expect for a person who is missing a day or work. It is not the detailed opinion that would support the conclusion that a person is completely and permanently disabled from all work. [ 36 ] Dr. Colp did not explain the basis for his opinion so I can’t assess whether this opinion is valid.

There’s no basis for accepting Dr. Colp’s opinion over the opinions of Dr. O’Brien and Dr. Crooks. [ 37 ] I am satisfied from his report that Dr. Crooks examined Mr. Morash and brought his understanding of Mr. Morash’s health, gained over thirty years as his primary physician, to the examination he did and the conclusions he reached.

[ 38 ] The medical opinions I accept agree that there is no identifiable physical or neurological basis for Mr. Morash’s complaints about his neck, shoulders and back. They speculate on other causes: components of fibromyalgia, psychosomatic pain, anxiety disorder, depressed mood, and chronic pain disorder. [ 39 ] Dr. Colp also gave Mr. Morash samples of the drug, Cymbalta. Mr. Morash testified that he was given the drug to assist with nerve pain in his shoulder and neck. He said that Dr. Colp told him “specifically” the drug was for pain, though Mr.

Morash was aware that it is also used to treat anxiety or fibromyalgia. 2.1.3 Are there other explanations for Mr. Morash’s condition? [ 40 ] Dr. O’Brien and Dr. Crooks speculated on other explanations for Mr. Morash’s condition: components of fibromyalgia, psychosomatic pain, anxiety disorder, depressed mood, and chronic pain disorder. [ 41 ] In a September 2014 report to Dr. Crooks, Drs. McPherson and Trenholm noted Mr.

Morash’s “past history is significant for mood disorder” and that his medications included citalopram and clonazepam, drugs used to treat depression and anxiety. [ 42 ] In his January 2016 report, Dr. Crooks said that Mr. Morash: suffers from a long-standing anxiety disorder and depressed mood. He was seen by a mental health worker for these problems in 2010. He did not respond well to medications and at that time because of work commitments he was unable to attend other types of therapy sessions. [ 43 ] Mr. Morash recognized that the Cymbalta samples Dr.

Colp gave him are also used for treating anxiety and depression, though Mr. Morash was clear that Dr. Colp “specifically” told him that Cymbalta was being given to him to treat his pain. 2.2 Should income be imputed to Mr. Morash? [ 44 ] Neither Dr. O’Brien nor Dr. Crooks could find anything physically wrong with Mr. Morash’s neck, shoulders and back. [ 45 ] I reject Mr. Morash’s claim that he has a physical condition related to his neck, shoulders or back that prohibits him from working. [ 46 ] The evidence suggests that Mr. Morash may have a health condition which might prohibit him from working.

If this is so, it would be wrong to impute income to Mr. Morash. The burden of proving, on a balance of probabilities, that he has a health condition which reasonably prevents him from working is Mr. Morash’s. [ 47 ] There is no evidence that Mr. Morash has made any effort investigate his health complaints from any perspective other than the physical or neurological. Without this, there is no way to know whether his reasonable health needs actually require that he not work, or whether they might be resolved with some sort of treatment.

Certainly, there is no evidence that he has attempted other types of therapy since 2010. [ 48 ] Because the medical reports of Dr. O’Brien and Dr. Crooks are so recent, and their comments are speculative, I am prepared to allow Mr. Morash six months to collect and offer evidence about whether he has any of the conditions suggested by Dr. O’Brien or Dr. Crooks – or some other condition, its treatment and his prognosis. [ 49 ] The onus is on Mr. Morash to prove that he has some other condition which cannot be treated sufficiently to permit him to work. This may require that Mr.

Morash engage in treatment so that I can assess its efficacy. I anticipate that an expert’s opinion will be required to make this proof. The opinion of any expert must be supported by a curriculum vitae and a report which complies with Civil Procedure Rule 55.04 and is filed with at the court and provided to Ms. Morash four weeks before the review date. [ 50 ] If Mr. Morash fails to make this proof, I will impute income to him. 3. Rescinding arrears of child support [ 51 ] Records from the Maintenance Enforcement Program show Mr. Morash owes arrears of child support of $13,928.75.

The parties agree that these accumulated between September 2011 and April 2016. [ 52 ] Mr. Morash was injured in a motorcycle accident in June 2012. Ms. Morash agreed that was unable to work for six months following his accident and should have paid no child support during that time. [ 53 ] Mr. Morash had surgery in July 2015. Ms. Morash agreed that Mr. Morash was unable to work for six months following his surgery and that he should have paid no child support during that time. [ 54 ] Ms.

Morash’s agreement to forgive one year of child support payments reduces the arrears by $4,596.00 (12 x $383.00), bringing the arrears owed to $9,332.75. Arrears may be further addressed after hearing evidence when this application returns for review and completion. 4. Conclusion [ 55 ] The parties shall return to court for a one hour review hearing in November 2016 when Mr.

Morash is to offer evidence, if any exists, of a health condition which cannot be sufficiently treated so as to permit him to work. [ 56 ] The opinion of any expert must be supported by a curriculum vitae and a report which complies with Civil Procedure Rule 55.04 and is filed with at the court and provided to Ms. Morash four weeks before the review date.

[ 57 ] Mr. Morash’s arrears of child support are fixed at $9,332.75 as of April 21, 2016. __________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia