Wong v. Wong, 2012 NSSC 430

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Wong v. Wong, 2012 NSSC 430 Date: 20121211 Docket: 1201-064846 Registry: Halifax Between: Lee-Anne Dawn Wong Petitioner and James Ping Wong Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Hearing: October 4, 2012 Issues: 1. Should the father have telephone access with his young daughter, while he is incarcerated? What level of contact is appropriate in the circumstances? 2. Should the father be ordered to pay a lump sum amount in lieu of or as child support while he is incarcerated? 3. What is the appropriate division of the debts and assets of the parties?

Summary: The father was sentenced for a sexual offence, to a period of five years in jail. He sought telephone access and other contact with the parties’ three year old child. The mother opposed his application and sought lump sum child support while the father was incarcerated. The Court denied telephone access and denied lump sum child support. The father was entitled to information concerning the child’s well being and regular updates including a photo every three months. A determination of access was adjourned sine die but to a date prior to his release.

Keywords: incarceration; lump sum child support; telephone access Legislation: Matrimonial Property Act , R.S.N.S., 1989, c.275 Divorce Act , R.S.C., 1985, c.3 (2 nd Supp.) Federal Child Support Guidelines , P.C., 1997-469 Cases Considered: Jovcic v. Jovcic, 2005 NSSC 183

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: Wong v. Wong, 2012 NSSC 430 Date: 20121211 Docket: 1201-064846 Registry: Halifax Between: Lee-Anne Dawn Wong Petitioner and James Ping Wong Respondent Judge: Associate Chief Justice Lawrence I. O ’ Neil Date of Hearing: October 4, 2012 Counsel: Patrick Eagan, counsel for Ms. Wong Tanya Jones, counsel for Mr.

Wong By the Court : Introduction [ 1 ] Evidence in this matter was heard October 4, 2012. [ 2 ] The parties were married April 14, 2001, separated in August 2010 and have a child born in 2009. Ms. Wong filed a Petition

for Divorce on September 21, 2010. [ 3 ] An Order flowed from the Interim Hearing on November 30, 2010. The interim order provided inter alia that (1) primary care of the parties ’ child would rest with Ms. Wong; (2) that Mr.

Wong would have supervised access; (3) that he would pay child support of $294 per month; (4) that the matrimonial home would be listed for sale; (5) that identified bills would be paid from the proceeds of the sale of the home; and (6) that funds remaining from the sale of the home would be held in trust pending a further order of the Court or an agreement between the parties. [ 4 ] An amending order made on January 30, 2012 suspended the collection of child support arrears until further order of the Court. [ 5 ] Mr. Wong was incarcerated in late 2010 for a period of approximately one year, on remand.

In April 2012 he received a sentence of several years after credit for remand time. [ 6 ] As per paragraph 17 of Exhibit #1, more than $37,000 from the sale of the matrimonial home remains in trust and will be distributed following resolution of several issues before this Court. Issues - Custody, Access, Child Support [ 7 ] This is a final divorce hearing. Mr.

Wong seeks (1) structured telephone access to his daughter while he remains incarcerated; (2) access to information and professionals serving his daughter while he is incarcerated; (3) current photos of his daughter on a monthly basis while he is incarcerated; (4) an adjournment of the issue of his “ in person ” access to his daughter to a time closer to his release date; (5) a suspension of the obligation to pay child support while incarcerated; and (6) cancellation of arrears of child support. [ 8 ] The Court rendered an oral decision on the parenting issues following the conclusion of the evidence on October 4, 2012.

The Court concluded that Mr. Wong would not have telephone access with his daughter; that he would receive current photos of his daughter every three months; that he was entitled to and would be provided relevant information concerning his daughter. [ 9 ] Although he is entitled to information about his daughter ’ s development, interests and health care; he is prohibited from contacting professionals providing services to her. [ 10 ] The Court deferred the issue of in person access to a date to be determined but in advance of his release date.

Either party may return the matter to Court to have that issue addressed. - unequal division, ongoing child support and arrears [ 11 ] I am not persuaded that Mr. Wong should be liable for child support when he is incarcerated. He does not have an income and I have no basis for imputing income. Nor do I have a basis in fact or in law for concluding that his share of the parties ’ matrimonial property or part thereof should be set aside to meet a child support obligation. [ 12 ] There are important policy reasons for dividing matrimonial property and for determining when and how child support should be calculated.

I believe it is unwise to confuse the two regimes.

[ 13 ] The Matrimonial Property Act , R.S.N.S. c.275 at s.13(

h) and (

i) describes the basis upon which an unequal division of matrimonial assets may be ordered. I do not find either of these headings to have application. [ 14 ] However, Mr. Wong did underpay child support by $1,756.00 for the period December 2010 to June 2011. Ms. Wong claims $1,756.00 as the underpayment over this period. I agree that this is a liability of Mr. Wong to Ms. Wong based on his actual income. [ 15 ] The Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.) at s.15.1 empowers this Court to make an order for support of children subject to a wide range of terms, conditions and restrictions. Pursuant to this authority,

Section 11 of the Child Support Guidelines provides: 11. The Court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments. [ 16 ] I agree with the analysis of Dellapinna, J. in Jovcic v.

Jovcic , 2005 NSSC 183 at paragraph 101 and conclude that there is no basis upon which to order lump sum child support because there is no basis upon which to order child support. [ 17 ] The cases where lump sum child support have been ordered often involved a payor parent who was found to have a child support obligation but could not be relied upon to meet the obligation or who had not met the obligation and arrears accumulated. There are also a group of cases where the parties agreed on the payment of lump sum child support. [ 18 ] I have considered the case law offered by counsel for Ms. Wong.

Each of these cases dealt with the proposition that arrears should not be forgiven simply because a payor is incarcerated. However, herein the Court is asked to cancel arrears because they should not have arisen. [ 19 ] The arrears shown on the records of the Maintenance Enforcement Office are cancelled because they accrued after Mr. Wong was incarcerated in June 2011. He lacked an income during this period.

Given that an order requiring a repayment to him of any over payment would negatively impact on the child ’ s circumstances, I would not have ordered a repayment, had I found one to have existed. - HBC, Aliant and Bell accounts [ 20 ] As of September 21, 2010, the HBC credit card had a balance of $199.07. This debt is a matrimonial debt. It was incurred by the parties in the context of their lives together and as a family obligation. [ 21 ] I reach the same conclusion about the Aliant debt of $123.12 and the Bell debt of $102.33. Ms.

Wong correctly listed these debts on her Statement of Property, filed on September 21, 2010. - expenses incurred to prepare the home for sale [ 22 ] Each of the parties shall be responsible for the out of pocket costs, each incurred to prepare the home for sale. Neither party will be paid for their personal labour expended to prepare the home for sale. [ 23 ] Mr. Wong made the following out of pocket expenditures valued at $1,080.64: oil $408.00; paint and supplies $504.80; and carpet cleaning $167.64. [ 24 ] Mr. Wong alone lived in the home after August 7, 2010 until the house sold on April 5, 2011.

He is solely responsible for

these debts. [ 25 ] Ms. Wong claims $1,856 being one half of expenses for maintenance of the matrimonial home. These expenses are itemized at paragraph 20 and Exhibit G to Exhibit 1. [ 26 ] The Court was not provided with documents to support these expenditures and is not satisfied on a balance of probabilities that these expenses were or should be considered matrimonial debts. - pensions [ 27 ] The pensions of both parties are to be divided equally. - home buyer ’ s plan [ 28 ] The parties withdrew $20,000 from Mr.

Wong ’ s RRSP and used the funds to purchase the matrimonial home. [ 29 ] I am satisfied that the RRSP account of Mr. Wong must be repaid from the proceeds of the sale of the matrimonial home. The RRSP is then equally divisible. This will permit a rollover of the RRSP in part and extinguish the potential tax liability for Mr. Wong should the funds not be repaid to the RRSP account. [ 30 ] The unpaid balance in Mr. Wong ’ s RRSP account is $10,086 as per Mr. Wong ’ s 2010 Notice of Assessment. This is the amount to be repaid. The repayment on the Home Buyer ’ s Plan was missed in 2010 and 2011.

This resulted in the required repayment in each of these years being declared taxable income in the hands of Mr. Wong. I make no order with respect to whether Ms. Wong is responsible for any part of these two years. The Court does not have the evidence that would permit it to make such an order. [ 31 ] The foregoing logic applies to that portion of Ms. Wong ’ s RRSP contributed to the home buyer ’ s program and that remains unpaid. Ms. Wong places that amount at $1,212 (paragraph 29 of Exhibit #1). This shall also be repaid to her RRSP account from the proceeds of the sale of the matrimonial home.

Conclusion [ 32 ] The parties will be divorced by an order of this Court. They have lived separate and apart for more than one year; there is no possibility of reconciliation and there has been a permanent breakdown in the relationship. [ 33 ] Primary care of the parties ’ child, D.O.B. in 2009, will remain with Ms. Wong. The issue of Mr. Wong ’ s in person access to the child is deferred to a date prior to his release from custody. Either party may institute proceedings to have the issue of ‘ in person ’ access addressed. [ 34 ] Mr.

Wong will receive current photos of his daughter every three months and he shall be provided relevant information about his daughter ’ s development, interests and health care at regular intervals, which intervals will not be more than six weeks apart. Exhibit #7 is an e-mail from Ms. Wong dated August 13, 2012, which e-mail was directed to her lawyer for the benefit of Mr. Wong. The e-mail is a report on the child ’ s circumstances and is a good example of the report the Court envisages for Mr. Wong at regular intervals. [ 35 ] Mr. Wong is not required to pay ongoing child support.

The suspension of child support ordered January 30, 2012 is continued until further order of this Court. He is assessed an underpayment of child support in the amount of $1,756.00 for the period December

2010 to June 2011. [ 36 ] Arrears accrued by the Maintenance Enforcement office are cancelled because they accrued after Mr. Wong was incarcerated in June 2011. [ 37 ] Each party is responsible for one half of the HBC credit card balance ($199.07); the Aliant debt ($123.12) and the Bell debt ($102.33). [ 38 ] Each party is responsible for any out of pocket costs each incurred to prepare the matrimonial home for sale. [ 39 ] The unpaid balance in each party ’ s RRSP account and attributable to the home buyer ’ s program, must be satisfied from the proceeds of the sale of the matrimonial home. ACJ