Fewer v. Fewer, 2016 NSSC 310

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Fewer v. Fewer , 2016 NSSC 310 Date: 20161116 Docket: 1201-065341 Registry: Halifax Between: Barry Paul Fewer Petitioner v. Colleen Ann MacNeil (formerly: Fewer)) Respondent Judge: The Honourable Justice Beryl A. MacDonald Heard: August 10 and 11, 2016, in Halifax Nova Scotia Counsel: Barry Paul Fewer, self-represented Colleen Ann MacNeil, self-represented By the Court: [ 1 ] This is a divorce proceeding. I am satisfied all jurisdictional requirements of the Divorce Act have been met and there is no possibility of reconciliation.

I am further satisfied there has been a permanent breakdown of this marriage. The parties have lived and they continue to live separate and apart from one another for a period in excess of one year from the commencement date of this proceeding. A divorce judgment will be issued. [ 2 ] The parties married on August 31, 1991. They separated on August 15, 2008. They have two children. Their oldest child is 17 and is severely disabled due to his affliction with cerebral palsy. The youngest child is 14 years old. [ 3 ] On September 16, 2008 the parties signed a comprehensive Separation Agreement.

They each had independent legal advice at the time. Since then they have argued about how to interpret many of the provisions of that agreement. They have argued about whether some of the terms of the agreement have been ignored or unilaterally changed. [ 4 ] On May 18, 2011 the Father filed a Petition for Divorce. On September 15, 2011 the Mother filed an Answer but no affidavit of service of this document is in the court file. In these documents both parties wanted to change many of the provisions of the Separation Agreement.

They acknowledge the provisions for the division of property have been concluded except for the division of each party’s pension. It appears that no orders have been prepared to effect the intended division. [ 5 ] Although initially there was a request from the Mother to retroactively recalculate child support from the date of the Separation Agreement, she abandoned that claim at trial. She does want table guideline child support calculated from June 1, 2015.

Decision Making [ 6 ] The Mother is alleging the parties are unable to co-operatively make the joint decisions required for the welfare of their children and in particular for the oldest child. She requests that she either have sole decision-making authority for all issues involving both children or at the very least final decision making authority in respect to the oldest child’s medical treatment and residence and in respect to the youngest child’s religious upbringing.

She requests an order that would compel the Father to take the younger child to his religious study classes and to church services when the child is in his care. [ 7 ] The Father does not want to change the provisions in respect to joint custody and believes the youngest child should not be compelled to attend religious studies or services when he is in the Father’s care. [ 8 ] Because the Mother’s work

schedule is more flexible than the Father’s she has been the primary contact between physicians,

schools and other service providers. I disagree with the Father’s comment in paragraph 62 of his affidavit sworn October 29, 2015 (Exhibit 3) that, “ The Respondent and I both

schedule the children for their medical appointments when they are in our care. We both take the children to the appointments that are scheduled on our time.” I accept the Mother’s evidence that she is the person who makes all the arrangements. She then contacts the Father to determine whether he can take the children to an appointment. She makes accommodation in her work life. He rarely does so. She does all the heavy lifting.

He accommodates when it is convenient for him. [ 9 ] This pattern also applies to confirming vacation requests, arranging for the children’s extra-curricular activities including their transportation, and arranging for their respite care. The Mother is exhausted and frustrated. Because most of their communication is by e- mail it is subject to delayed response and does not permit the type of interactive discussion necessary to successful joint decision making. However, the parties have coped under the present arrangement and I have no evidence suggesting any negative impact on the children.

Some of the Father’s requests, with which the Mother disagreed, were not unreasonable. I am not prepared to change the joint custodial arrangement but I will provide some direction that I expect the parties to implement. If they are not implemented and either party returns to this court that fact will be considered in any subsequent ruling about decision making. [ 10 ] Many provisions contained in the Separation Agreement will be changed based upon what I consider to be in the best interest of these children.

Any provisions not changed will continue to be enforceable as an order of this court. [ 11 ] In this decision the word “children” includes “child” and the wording is to be changed as the context may require.

Joint Custody [ 12 ] Subject to the other terms of this decision, the Father and the Mother shall have joint custody of the children meaning that both parents must agree about decisions that have significant or long lasting implications for the children or that impose responsibilities on a parent - for example, decisions about physical or mental health, dental care; counseling; education; and enrollment in recreational activities. [ 13 ] Should the parents be unable to agree about a decision that is to be made jointly they are first to consider following the recommendations made by professionals (doctors, teachers, counsellors, dentists, etc.), but if no professional is involved or if they still cannot agree, they must engage in mediation before commencing litigation.

Day to Day Decisions [ 14 ] With respect to daily decisions, including non-emergency medical care, the parent who has care of the children according to the parenting plan is to be the decision-maker with the other parent being advised about non-emergency medical care decisions made. Emergency Decisions [ 15 ] With respect to emergency decisions, the parent who has care of the children according to the parenting plan is to be the decision-maker with the other parent being advised as soon as possible about the emergency and the decision made.

Information Sharing [ 16 ] The parents must provide each other with all information either receives at any time that will affect the physical, or emotional health of the children, the education of the children, or affect the social development or the children. [ 17 ] The parents must provide each other with up to date addresses, telephone numbers (home and cellular), e-mail addresses, work place addresses, workplace phone and e-mail with an emergency contact if the parent cannot be reached.

Religious Instruction and Attendance [ 18 ] The Mother must arrange for and transport the youngest child so that he may receive instruction in the Roman Catholic faith as considered appropriate by that faith for a child of his age.

The Father must accommodate this and the child must go with the Mother when required even though the Father may be caring for the child according to the parenting schedule. [ 19 ] The youngest child must accompany the Mother to attend one significant Christmas and Easter Roman Catholic service and this must be accommodated by the Father even though he may be caring for the child according to the parenting schedule. [ 20 ] If the Father agrees, the Mother may take the youngest child to a regular church service during the Father’s parenting time but she must provide the transportation to and from the church service.

Recreational and Other Activities [ 21 ] Neither parent shall

schedule or enrol the children in an activity (such as, but not limited to organized sports, lessons, summer camps and other recreational activities, or social activities such as birthday parties or sleepovers) during the time that the children are scheduled to be in the care of the other parent without the consent of that parent, who must not unreasonably refuse to give consent. The parent must consult in advance of scheduling these activities and before indicating to the children whether or not they are attending any particular activity. [ 22 ] Either parent may

schedule or enroll the children in a recreational or other activity that does not take place during the other parent’s scheduled time to care for the children.

[ 23 ] Neither parent is required to contribute to any recreational or other activity in which the children are enrolled unless that parent agrees to contribute. That agreement to share an expense must not be unreasonably refused. [ 24 ] When a parent has the children in his or her care he or she is to ensure the children attend all recreational activities in which they are enrolled including games and practices, and attend other children’s birthday parties and sleep overs to which the children have been invited. Parenting

Schedule [ 25 ] Both parties want changes to the parenting schedule. However the changes requested relate, once again, to their different

interpretations about how that

schedule should work. [ 26 ] The parties’ agreement described the parenting arrangement as primary care to the Mother. However, the residential arrangements in fact placed the children in a shared parenting arrangement. The Mother explained this was done to provide her with the child tax credit as well as the disability credits. She earned less than the Father. In order to ensure the children had somewhat equivalent homes this arrangement was meant to maximize income in her home. This arrangement relieved the Father from the obligation to pay the full amount of table guideline child support.

It also relieved the Father from any obligation to pay spousal support although her entitlement to receive spousal support was acknowledged in the agreement and that issue was to be reviewed by December 31, 2010. The parties never did undertake this review. The Father does not “remember” this rationale. I accept the Mother’s evidence on this point. [ 27 ] The regular parenting

schedule is described in the parties Separation Agreement. It will not be changed. It is somewhat difficult to describe in words. I have attached as

Schedule “A” to this decision the two month example that was attached to the Separation Agreement. The ongoing regular parenting

schedule is to continue the pattern outlined in those examples. This is a shared parenting arrangement. [ 28 ] The parties have argued about whether “Summer Vacation” extends beyond a period from June 21 st to September 20 th and about whether a parent can take a vacation without the children, or one of the children, at times when one child or both children are to be in the other parent’s care. The parties have also argued about the extent of notice that must be given for vacation with or without the children, or one of the children, and the timely provision of consent to travel documentation.

Vacations and Other Exclusive Parenting Time [ 29 ] When a parent is to have vacation or other exclusive parenting time with the children, according to the terms of this decision, this time must be provided even though it will or may change the regular parenting schedule. The regular parenting

schedule will revive when the vacation or other exclusive parenting time ends. [ 30 ] When a parent is to travel with the children and the travel requires a children’s passports, the parent in possession of the passports must provide them and all necessary consents to travel, no later than two days after receiving the request for the passports and consent to travel. [ 31 ] The Mother or the Father may choose to take “vacation” time available at times other than summer with or without the children or one child.

If either does so she or he must find other persons to care for the child or the children if they intend to vacation without a child or the children. That person may be the other parent if he or she consents to provide that care. I do not intend to micro manage this issue. However, I will require the parent who plans a vacation without a child or both children to give no less than 30 days’ notice of that intention with information about who will care for the child or children if the other parent is not prepared to do so.

No later than 2 days after receiving this notification the parent to whom the notification is sent must inform the vacationing parent about whether she or he will care for the child or both children. [ 32 ] Most parents travel with their children when the children are not required to be in school. However, there are parents who want to take their children out of school for special trips they can arrange. If the children’s educational progress can be maintained there is no particular reason why children should be denied these opportunities.

Parents are expected to make these decisions based upon their knowledge and understanding about their children, particularly about whether or not a week or two out of school will negatively impact their educational progress. The Mother and the Father have disagreed about trips that occur during the children’s school year. Once again I do not intend to micro manage this issue except to require the parent, who plans a trip with one or both children when they are to be in school, to give the other parent no less than 30 days’ notice of that intention, with an itinerary.

If only one child is to accompany the parent, information about who will care for the other child must be provided. No later than 2 days after receiving this notification the non-traveling parent must inform the travelling parent about whether she or he objects to the child or children travelling for the purposed trip.

If only one child is involved the non-traveling parent must inform the traveling parent whether she or he will care for the child who is not traveling. [ 33 ] The parties have had disagreements about vacation time with the children when they are not required to be in school, in particular for the summer and the March school break. Some of this occurs because the parents do not always know when he or she is able to book summer vacation. The problems may also have occurred because they do not respond quickly to e-mail or possibly e-mail has been ignored.

The evidence suggests each of these explanations may be credible. I am satisfied both should know, by May 1 st in any year, what vacation time he or she has available. Summer Parenting Time [ 34 ] In 2018 and in every subsequent even year the Father shall have first choice of his exclusive summer parenting time with the children. He must inform the Mother of the month and dates of his choice no later than May 1 st in that year. If he does not inform her by May 1 st , she must inform him of her choice of the month and dates for her summer parenting time with the children no later than May 15 th in that year.

The Father must accept these dates. His summer parenting time must then be on dates different from those chosen by the Mother.

[ 35 ] In 2017 and in every subsequent odd year the Mother shall have first choice of her exclusive summer parenting time with the children. She must inform the Father of the month and dates of her choice no later than May 1 st in that year. If she does not inform him by May 1 st , he must inform him of his choice of the month and dates for his summer parenting time with the children no later than May 15 th in that year. She must accept these dates. Her summer parenting time must then be on dates different from those chosen by the Father.

March School Break Parenting Time [ 36 ] The March School Break is defined to include the five week days when the children are not required to attend school and the weekend immediately before and after those five days. [ 37 ] In 2017 and in every subsequent odd year the Father shall have first choice of exclusive parenting time with the children during the March School Break. He is to inform the Mother of the dates he requests no later than February 1 st in that year.

If he does not inform her by February 1 st , she must inform him of her choice of dates no later than February 15 th and he must accept these dates. [ 38 ] In 2018 and in every subsequent even year the Mother shall have first choice of exclusive parenting time with the children during the March School Break. She is to inform the Father of the dates she requests no later than February 1 st in that year. If she does not inform him by February 1 st , he must inform her of his choice of dates no later than February 15 th and she must accept these dates.

Changes to Parenting Time [ 39 ] The parents may rearrange the regular parenting

schedule and the vacation and other exclusive parenting time arrangements upon agreement but that agreement must be in writing. An exchange of e-mail communication providing the request and the acceptance will be a “written agreement” for that purpose. Child Support [ 40 ] Unfortunately the root cause of much of the parental discord in this family rests with the Father’s resentment about the money the Mother received because of terms in the agreement relating to the child tax and disability credit which she was permitted to claim.

He also wants a minute accounting for every penny of the respite care money she receives from the Department of Community Services although they both receive 50% of the money available. He complains that she does not properly reimburse him from her respite money for time when their oldest son is in his care although the

schedule requires him to be in her care. He complains that she does not pay him for any extra respite care required. This can happen when the Mother is ill or on vacation. After reviewing the evidence of both parties I am satisfied the Mother has properly reimbursed him whenever these events have occurred. [ 41 ] In 2010 the Father contacted the Canadian Revenue Agency and informed it the children were in fact in a shared parenting arrangement. As a result the Mother’s entitlement to the child tax credit was reduced significantly. [ 42 ] The Mother’s income is less than the Father’s income.

I cannot order the Canadian Revenue Agency to allow, disallow or divide a tax credit. If the Mother cannot have the benefit of the disability tax credit it may effect a future proceeding in respect to child or spousal support. [ 43 ] When the Separation Agreement was negotiated the Father was earning $62,500.00. The Mother was earning $46,440.00. Notwithstanding the shared parenting arrangement the table guideline amount he could have been ordered to pay was $884.00. He in fact paid the set off amount which was $218.00 per month. This amount has not changed since then.

The Agreement sets out arrangements for the proportional share of other expenses, clothing, child care, recreational expenses and the cost of respite care not covered by monies provided by the Nova Scotia Department of Social Services. However, the parties have disagreed about how the cost of extra respite care and child care should be shared if one party parents the children when the other is on vacation or is ill at times when the children, according to the parenting schedule, were to be cared for by the vacationing or ill parent.

At the hearing both agreed it would be appropriate for the vacationing parent to pay all of this extra cost and the ill parent to pay 50% of that extra cost. A parent would also pay 50% of the cost of any additional respite care or child care an ill parent may require when the other parent cannot take care of the children. However, both appeared to be agreeing to this on the understanding that their incomes were equal or almost equal. They are in fact not equal and I will require them to share the extra cost of respite care required because a parent is ill on a proportional to income basis.

This is what they had determined to be appropriate in other situations described in paragraph 68 of their Separation Agreement. They will need to work out the appropriate percentages based on their total yearly incomes and these may change over time. [ 44 ] The Father requested a reduction in the amount of child support he must pay when the Mother is ill or on vacation. Child support is paid so that a parent can provide a home for the children. The expenses continue even when the child is not in the home. The variable costs are few.

There will be no reduction in child support when the Mother is unable to care for the children on her scheduled days. [ 45 ] The Mother’s requests a retroactive and prospective calculation of the set off amount for table guideline child support from June 1, 2015. She had stopped accepting payments from the Father on that date because she believed the amount was in error.

Whether she has accept those and other payments since that date I do not know but I expect the parties will be able to do the necessary accounting to give effect to this decision. [ 46 ] Because the Mother was ill in 2015 her total annual income was $46,616.00, a reduction from her historic annual income which was approximately $61,000.00. In 2015 the Father’s total annual income was $74,978.00.

The set off amount the Father must pay the Mother from June 1, 2015 to and including December 1, 2015 is $380.00 monthly. [ 47 ] For 2016 child support I have decided the Mother’s total annual income is $61,000.00 and that the Father will likely earn the same as he did in 2015. The set off amount the Father must pay the Mother from January 1, 2016 and ongoing is $185.00 monthly.

Special Expenses [ 48 ] There are significant health and equipment purchase expenses associated with the care of the parties’ oldest child. After taking into account the provisions of paragraph 13 of this decision the parents are to share payment of these expenses proportional to their income. It is expected that each will be able to claim the proportion of this expense he or she has paid on his or her income tax return.

If one parent pays this expense and seeks reimbursement from the other he or she will be responsible for determining what the net after-tax cost of this expense will be in requesting his or her proportional reimbursement. Life Insurance [ 49 ] Each parent must obtain and maintain life insurance in the amount of $150,000.00 to be paid to or for the benefit of the children until the parent is no longer required to pay child support. The parent may designate any person to act as trustee in the administration of the life insurance proceeds for the benefit of the children or a child.

Division of Matrimonial Property [ 50 ] Neither party satisfied me that the agreements they reached in respect to the division of Matrimonial Property were completely implemented. For example neither was able to confirm that instructions were sent to each of their pension administrators to divide the pensions as described in paragraphs 33 to 38. As a result the Corollary Relief Order that will be issued will incorporate by reference the matrimonial property division provisions. The parties may then take all necessary steps to ensure the pensions are divided as contemplated.

If the Mother has not received her share of any severance or long service award paid out to the Father she remains entitled to receive her share of the amounts he has been paid. Spousal Support [ 51 ] The parties did not address this issue. I am not prepared to deny the Mother a future opportunity to argue her entitlement to receive spousal support. For this reason it can be the subject of a review. I will not specify a date for that review. The Mother may make application for the review at a time she deems suitable. ________________________ Beryl A. MacDonald, J. Attached:

Schedule “A”