MacNeil v. MacNeil, 2012 NSSC 345

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MacNeil v. MacNeil, 2012 NSSC 345 Date: 20121002 Docket: 1201-064040, SFHD-067126 Registry: Halifax Between: Wendell George MacNeil Applicant/Petitioner v. Carla Dawn MacNeil Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: August 30, 2012, in Halifax, Nova Scotia Written Decision: October 2, 2012 Keywords: Family, Child Support Legislation: Divorce Act , R.S. , 1985, c.3 Federal Child Support Guidelines, s. 3(1); s. 3(2); s.7; s. 9

Summary: The parties Corollary Relief Order provided for a review of the amount of child support to be paid when the eldest child who was 18 attended university. The Father was prepared to pay all that child ’ s expenses and those for the remaining two children ’ s extracurricular expenses but he did not want to pay any table guideline child support to the Mother. The Mother requested table guideline support and proportional sharing of the

section 7 expenses. The parties did not have sufficient income to proportionally share all of the

section 7 expenses and some borrowing was required. The Father had already arranged a line of credit for the deficit that may be faced by the child attending university after taking into account her own resources. He was ordered to pay any required interest or principle on that line of credit while the child attended university, the full cost of any hockey expenses for the remaining two children, his proportional to income share of any school trip expenses and table guideline child support based upon the set off for three children from May 1 st until August 31 st and for two children from September 1 st until April 30 th .

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: MacNeil v. MacNeil, 2012 NSSC 345 Date: 20121002 Docket: 1201-064040, SFHD-067126 Registry: Halifax Between: Wendell George MacNeil Applicant/Petitioner v. Carla Dawn MacNeil Respondent Judge: The Honourable Justice Beryl MacDonald Heard: August 30, 2012, in Halifax, Nova Scotia Counsel: William Leahey, counsel for the Applicant/Petitioner Tanya Jones, counsel, for the Respondent

By the Court: [ 1 ] The hearing in this matter was required by the terms of a Corollary Relief Order issued April 26, 2012.

Paragraph 12 of that Order provided as follows: “The quantum of child support payable under this Order together with the issue of special or extraordinary expenses shall be reviewed by this Court at a hearing to be held on the 17 th day of July 2012….This review reflects the fact that the oldest of the children of the marriage is expected to be attending university commencing in September 2012 and therefore the question of the appropriate level of child support will be reviewed at that time which review shall include the incomes of each of the parties.

The current level of periodic child support together with the supplementary lump sum payments are ordered without prejudice to the rights of each of the parties to argue for a different amount of child support on the hearing to be held on July 17, 2012.” The hearing to be held in July was adjourned to this date. I have interpreted the last sentence of paragraph 12 to require a recalculation beginning September 2012 and not as a requirement for a retroactive recalculation of child support to a prior date.

Total Income [ 2 ] The Mother ’ s means of earning her income has been a matter of dispute between the parties in the past but I have no evidence before me upon which I could impute income to her at this time. The Mother is a real estate agent and, as a result, her income is totally dependent upon the vicissitudes of the real estate market and her own ability to attract clients and close sales. This has not in the past been a particularly remunerative employment for the Mother but I must work with the information I have before me.

The Mother has requested an averaging of her last three years of income to arrive at the amount set for this review of child support. I have chosen not to do so. Although her income fluctuates she expects her 2012 income, based on a projection of income to date, will be similar to her 2011 income. An average of the last three years would produce a significantly reduced income from 2011. Using her 2011 income may provide an income more likely to approach her actual income. [ 3 ] Time was spent analyzing the deductions the Mother has claimed as a result of her self employment.

I have reviewed her 2011 income tax return upon which she reported a net income from a small business she operates (which likely will not provide much by way of additional income in future years) of $608.00 and net income from real estate sales of $30,651.00. Her gross real estate commissions after deducting HST, discounts included in sales etc. was $54,349.00. I have accepted as reasonable her deductions for advertising, meals, insurance, interest, business tax, fees etc., office expenses, legal, accounting and other professional fees, telephone expense and for seminars and training.

The Mother has deducted $8,227.00 for her motor vehicle expenses. Presumably she and the person who was assisting her in the preparation of her statement of business or professional activities would have analyzed her motor vehicle expenses for personal use and deducted those. However, the Father has argued this expense is an unreasonable deduction from income. Real estate agents do need to use a motor vehicle in order to pursue their profession and certainly the cost of fuel has risen dramatically in recent years.

However if one paid $65.00 a week to fill a gas tank for every week of the year that would be $3,380.00. I do not know whether the Mother would have needed to fill her gas tank more often than once a week but I do have difficulty with the amount she has deducted for motor vehicle expenses even after considering average maintenance costs and as a result I have added back 20% of those expenses to her income which is an additional $1,646.00. I have also added back the capital cost allowance of $1,491.00 as agreed appropriate by the Mother. The Mother has claimed an expense for management and administration fees.

No questions were asked about this deduction and as a result I have nothing upon which to base an adjustment. After adding back the items mentioned I have determined the Mother ’ s 2011 total income is $34,396.00. Projecting her future income is difficult but the Mother has suggested she expects to earn a similar amount in 2012. She would prefer to have some mechanism for the yearly calculation of support that would not result in a return to court. However, given the shared parenting arrangement and the nature of her income, it is difficult to devise a means by which this goal can be reached.

For example, the reasonableness of her deductions cannot be determined in advance. All that can be said is a recommendation that the parties should not seek a variation unless there are substantial changes in their incomes even though the child support guidelines suggest any change in income can trigger a variation request. [ 4 ] The Father ’ s income in 2011, less union dues, was $93,107.00. He earned more in previous years but there is no indication his income will be more in 2012 than it was in 2011. Child Support

[ 5 ] The parties have three children who are 18, 16 and 14 years of age. The Corollary Relief Order provides for a shared parenting arrangement. The children are in the care of their parents on a week on week off basis. Each of these parents have paid significant expenses relating to the children ’ s extracurricular activities.

They each have disagreed about who has paid for what and each has provided sufficient information during this hearing to satisfy me each has contributed although not as much as the other parent had expected. [ 6 ] The Father suggests he has paid and will continue to pay the majority of expenses relating to the children ’ s extracurricular activities.

However, given the party ’ s past history, there can be disagreement about whether an extracurricular activity is affordable particularly when there are associated incidental costs such as travel and shelter costs associated with out of city tournaments. [ 7 ] The oldest child, who will be attending university in September, may have applied for a Canada Student Loan but I have no details about the amount she may receive. She may work at the local McDonald ’ s at University while attending.

The Father clearly expects her to work part-time to pay for any expenses not covered by the student loan, her summer employment earnings, and from the $2,000.00 scholarship she received from the Fireman ’ s Benefit Association. Receipt of this scholarship is not guaranteed beyond 2012. To cover his daughter ’ s potential shortfall, which is presently unknown, the Father has set up and co-signed a Student Line of Credit with the Royal Bank for $10,000.00 and has indicated he will continue to do so for each year of the child ’ s university attendance. He has provided no details about this line of credit.

The Mother does not agree that this is the appropriate way to pay for their daughter ’ s expense deficit. This is a loan and, unlike a student loan, may not permit the tax deduction of interest to be paid on that loan. She suggests their daughter ’ s deficit should be paid proportional to the parties incomes. However that assumes both she and the Father have the financial capacity to contribute to that deficit after paying expenses relating to their shared parenting arrangement, the children ’ s extracurricular activities, the children ’ s school trips and their personal expenses.

My analysis of the parties financial situation is that neither has the means to do so and any excess expenditures would need to be paid by further borrowing. [ 8 ] The Father suggests the oldest child will return in the summer to live with him full-time rather than in a shared parenting arrangement. He uses this, as well as his commitment to continue to co-sign on the Royal Bank line of credit, and pay the majority of the children ’ s extracurricular expenses, as a reason to request a substantial reduction or elimination of child support payable to the Mother.

The Mother ’ s testimony is that the Father ’ s provision of additional support to their daughter while she is in university is dependent on her agreeing to live with him in the summer. After listening to the Father ’ s testimony I am concerned that he would place his children in the middle of his dispute with the Mother and that he would pressure his children in order to reduce or eliminate a requirement to pay child support to the Mother. I am also concerned that the Father has not indicated whether he is prepared to pay the interest on the loan he has arranged.

I presume he expects the daughter to eventually pay the principle but if any interest is due during the university year the Mother ’ s evidence is that the child ’ s understanding is she will be responsible to pay both principle and interest. [ 9 ] The parties had agreed that a shared parenting arrangement was appropriate for all three children. There is no reason to change that arrangement when the oldest child returns home periodically whether during a university break or during the summer.

I do not intend to countenance any pressure that may be placed upon the oldest child about her living arrangements and I will consider her situation based on the shared parenting arrangement that appeared appropriate to both parties previously and which will remain appropriate during the oldest child ’ s university breaks and during the summer. I will now consider the quantum of child support to be paid as long as there is one child in university and two children who are not. [ 10 ] In this case the child attending university will not be 19 until July 2013. The child support guidelines say : 3.

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is: (

a) the amount set out in the applicable table...; and (

b) the amount, if any, determined under

section 7. The age of majority in Nova Scotia is 19. Nothing in the guidelines suggest I can deviate from the direction in section 3(1). However both parents in this case argue for an analysis based upon section 3(2) of the Guidelines. I have approached my decision with this

section in mind because it provides a practical means by which to consider their financial issues. To use section 3(1) would be to attempt to “ pound a square peg into a round hole ” . The oldest child will not be living with either parent from September until April for the next few

years. Section 3(1) would provide the Mother with an amount of table guideline child support that should be applied to the child ’ s university expenses and this would have to be considered in the

section 7 analysis. But in this case I don ’ t know what the university expense shortfall will be and I am concerned about how either parent could finance that shortfall. However if the Father is to be relieved from paying a table amount of child support to the Mother for this child during the university year, he must provide support to her by some other means. I have decided he is to pay the interest on the line of credit he has established for his daughter and he is to pay any minimum payment toward principle if such a payment is required. This will be his contribution toward this

section 7 expense. The Mother can provide no direct contribution but she will not receive table guideline child support for this child while she is in university. [ 11 ] Neither party has provided the Child Support Guideline

section 9 analysis outlined in Contino v Leonelli-Contino, 2005 SCC 63 although the Mother has indicated she pays for the children ’ s clothing, school supplies and other expenses without contribution from the Father. It is not unusual for one parent in a shared parenting arrangement to find himself or herself struggling financially because so many of the costs of raising children are not in fact shared as they often must be if the set off or other reductions in child support are to be considered appropriate.

There do not appear to be any savings in the Mother ’ s household, nor additional expenses in the Father ’ s household due to the shared parenting arrangement other than a possibly reduced or increased food expense. However, due to the Father ’ s income he will have a greater financial responsibility for

section 7 expenses. Considering all of the circumstances I have decided to require the Father to pay the Mother, for every year while the oldest child is in university, table guideline support for three children from May 1 st until August 31 st and for two children from September 1 st until April 30 th commencing September 1, 2012 on the basis of the set off amounts, which result in a monthly payment to the Mother for three children in the amount of $988.00, and for two children in the amount of $767.00. [ 12 ] Neither of the parties provided the analysis required by

section 7 in respect to whether the children ’ s extracurricular activities are necessary and the costs reasonable. The Father has complained about the cost of many of the activities in which the children are engaged but this was tendered as a complaint not as an analysis about whether he should share any portion of the costs relating to the activities discussed. Indeed the pattern of the children ’ s activities appear to mirror what the parties were providing for their children prior to their separation.

However, because there are now two households instead of one each parent has less money to contribute toward recreational expenses. [ 13 ] The only recreational expenses about which I have evidence relate to hockey, baseball and school trips. Although I do not have a proper analysis before me I am not prepared to leave the parties to continue to bicker about these expenses. As a result the Father is to be completely responsible for any hockey expenses associated with either of the two younger children including all associated expenses such as equipment, tournament registration, transportation, hotel stays etc.

Similarly the Mother shall be completely responsible for any baseball expenses. I have based this decision on the relative cost of each in reference to the parents ’ incomes inclusive of the Mother ’ s child support, child tax benefit and GST credit. The parties are to share the cost of school trips proportional to their income. [ 14 ] If the parties are unable to agree about the quantum of costs, if any, the Father is to provide his submissions no later than October 19 and the Mother no later than November 2, 2012. ___________________ Beryl MacDonald, J.S.C.