Pilotte v. Pilotte, 2013 NSSC 24

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Pilotte v. Pilotte, 2013 NSSC 24 Date: 20130118 Docket: 1201-065704, SFHD-077949 Registry: Halifax Between: Kirsten Jo-Anne Pilotte Applicant/Petitioner v. Joseph Hilaire Julien Joël Pilotte Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: December 3 and 4, 2012 Keywords: Family, Corollary Relief Order, Parenting Plan, Imputing Income, Child Support, Spousal Support, Retroactive Child Support, Retroactive Spousal Support, Division of Matrimonial Property Legislation: Federal Child Support Guidelines , s. 7 Federal Child Support Guidelines , s. 9 Matrimonial Property Act, R.S.N.S. 1989, c.275

Summary: In a Divorce proceeding the parents could not agree about: cancellation of the Father’s insurance policy on the Mother’s life, who was to claim the children as dependents on Income Tax Returns, the division of matrimonial property and debt, the parenting plan for holidays and special events, the Father’s annual income, child support prospective and retroactive, spousal support prospective and retroactive. The Father was to remove insurance on the Mother’s life. The parties were not ordered to redo income tax returns for 2010 or 2011 but were to file their 2012 return in compliance with benefits each may claim in a shared parenting arrangement. Property and debts were

divided. A holiday and special event

schedule was set out. No income was imputed to the Father but there was to be a review of his income status in six months. No retroactive child or spousal support was ordered.

Section 7 expenses for medical expenses were unproven; the expense for private school was unreasonable given the parents incomes, the expenses for extracurricular activities were not proven to be necessary. Prospective table guideline child support was based on the set off. The Mother no longer had a non- compensable entitlement to spousal support but she retained a compensable entitlement. Payment of spousal support was suspended because of the Father’s inability to pay but this was to be reviewed in six months. 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: Pilotte v. Pilotte, 2013 NSSC 24 Date: 2013018 Docket: 1201-065704, SFHD-077949 Registry: Halifax Between: Kirsten Jo-Anne Pilotte Applicant/Petitioner v. Joseph Hilaire Julien Joël Pilotte Respondent Judge: The Honourable Justice Beryl MacDonald Heard: December 3 and 4, 2012 Counsel: Leigh Davis, counsel for the Applicant/Petitioner Joël Pilotte, self-represented By the Court:

[ 1 ] This is a divorce proceeding. I am satisfied that all jurisdictional requirements of the Divorce Act have been met and that 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 Mother requests a change of name so she can return to her maiden name. This request is granted. [ 3 ] The parties separated on April 1, 2010.

They had been together for 16 years. There are four children born of their relationship ranging in age from 17 to 10. The parties have agreed their joint custody of the children should continue as should their shared week on/week off regular parenting schedule.

The parties have been unable to agree upon: - cancellation of the Father ’ s insurance policy on the Mother ’ s life - claiming the children as dependents on Income tax returns - division of matrimonial property and debt - the parenting plan for holidays and special events - the annual income to be assigned to the parties for child and spousal support - child support, including

section 7 expenses, prospective and retroactive to April 1, 2010 - spousal support, prospective and retroactive to April 1, 2010 Life Insurance [ 4 ] As a result of his employment with the military the Father has a $400,000.00 insurance policy on the Mother ’ s life. He is the beneficiary. Because of this she testified she is unable to take out, under a military plan, any insurance on her own life. I do not know whether the Father has a policy on his own life. [ 5 ] The Father wants to have a fund of money under his control from which to support the children in the event of the Mother ’ s death.

The Mother wants her own policy and with it the opportunity to determine who will be the trustee of any funds she bequeaths to the children. That is not an unreasonable request. Usually parents agree that each will obtain life insurance on his or her life for the benefit of the children as long as they remain dependents. The choice of trustee to administer those funds remains with the parent whose life is the subject of the policy. I question whether the Father will have a insurable interest in respect to the Mother once they are divorced.

He may have because of the requirement that she pay child support to him but, as I have said, this is usually resolved by each parent independently obtaining insurance for the benefit of the children in the event of their death. This remains appropriate in this case and the Father is to discontinue or amend the policy in question to remove the Mother. Each parent is to obtain a life insurance policy, of at least $200,000.00, naming the children as beneficiaries and appointing a trustee to administer the funds of any child under the age of majority.

Each is to provide the other confirmation about the existence and details of those policies. Claiming the Children on Income Tax Returns [ 6 ] The Mother objects to the Father claiming the children as his dependents on his income tax returns filed in 2010 and 2011.

The parties had discussed this issue prior to the Father filing his returns and the Mother had delayed filing her returns pending agreement. They never did agree and the Mother filed her returns in October 2012 without claiming the children. [ 7 ] I do not intend to order the parties to redo their tax returns. I have no calculations about how that would impact their present situation. Whatever tax relief was received by the Father was eventually used to support himself and the children.

Although the Mother did not receive tax relief to which she may have been entitled, the cost for each of these parents to attempt to undo the past, with their limited financial resources, presents no advantage from my perspective. [ 8 ] The parties have agreed the children are in a shared parenting arrangement. Their 2012 Income Tax Returns must reflect this reality. They will need advice about what they can claim and if co-operation is required they are to do so to ensure each prepares a return based upon their shared parenting.

Division of Matrimonial Property and Debt [ 9 ] Each party produced a chart for division of the assets and debts. The problem is the accuracy of the information contained in the charts. I have many concerns about those charts. For example no up to date statements for the remaining debts owing were produced by either party. In respect to the amount remaining on the loan for the Toyota Sienna it is listed in the Mother ’ s chart at $25, 922.00 but this is the same amount she cited as owing in her Statement of Property prepared October 27, 2011. The Father suggests the current debt remaining is $15,541.00.

However, no bank statement is attached to confirm this amount. If the Mother ’ s intent was to use this as a separation date value then the market value of the van should have been disclosed in her chart at separation date value instead of current value. As a result I am required to consider each asset separately with any associated debt that can clearly be identified.

There is an additional challenge presented by the Father ’ s bankruptcy that may have relieved both parties of some debt although I have no confirmation the Mother as well as the Father is free from those identified debts. [ 10 ] The parties have a matrimonial home. The Mother has not requested an opportunity to purchase the Father ’ s interest in the home. Both agree it must be sold. There is a real concern the Mother ’ s housekeeping standards may discourage purchasers who view the property.

She suggests the condition of the home in the pictures attached to the Father ’ s affidavit were staged, presumably by him. She offered nothing in proof of that contention. The house had been on the market previously but did not sell. As a result I am placing all authority to sell this home in the hands of the Father and this includes setting the listing price and changing it from time to time on the advice of whatever listing or real estate agent he choses to employ to assist in obtaining offers to purchase.

The Mother ’ s consent to accept an offer is not required and she shall sign all necessary documents to complete the sale to a purchaser whose offer has been accepted by the Father. Given that both parties will be responsible to pay ½ of any deficit resulting after the sale if the proceeds are insufficient to pay the mortgage, real estate fees, legal and other closing expenses, it is expected this will encourage the Mother to keep the home in a presentable state and the Father to obtain the best sale price possible in present market conditions.

While the Mother is occupying the home she shall be solely responsible for paying the mortgage, property taxes, household insurance, utilities, and all other expenses associated with the occupation of this home. If there is any profit from the sale of the home, it shall be divided equally between the parties. [ 11 ] The only vehicles that remain and require consideration are the Toyota Sienna Van, the Kawasaki motorcycle in possession of the Mother and the BMW motorcycle in possession of the Father. The Mother has accepted the Father ’ s values for the motorcycles.

The Kawasaki is valued at $1,500.00 and the BMW at $2,500.00. There is no direct debt associated with these assets. To equalize the value of these assets the Father will pay the Mother $500.00. [ 12 ] The debt against the Van appears to be equal to its current value, as was the case upon the parties separation. No adjustment will be made for the Van. It is to be in the sole possession of the Mother and she shall be solely responsible for paying the debt associated with it. [ 13 ] The Father wanted to include the value of the Mother ’ s jewellery in the asset division.

These are “ reasonable personal effects ” and are exempt from division. ( Matrimonial Property Act, s.4(1) (d)). [ 14 ] Both parties put what I consider to be unrealistic values on the household furnishings, tools, snow blower, and ride-on- lawnmower . Each party suggested “ the cost of disposing of the trailer and lawnmower tractor, ( which appear to have no value ), would be equally shared. ” This shall be the case. There were a number of items of household use the Mother informed the court would be given to the Father.

I did not maintain a complete list but I retain jurisdiction to deal further with this issue if necessary. Once the Father is in

possession of all of the items that he is to receive I am satisfied each will have a fair division of furnishings, tools and other items of ahousehold use or nature. No further adjustment will be made. [15] The Father had an RRSP with Scotia Bank and another with FundEX Investments that were cashed out to pay family debt.There were some small savings in various accounts and there were Canada Savings Bonds. These also were used to pay family debt. Noadjustments are made for these assets or the debts. [16] There is one Scotiabank RRSP remaining in the control of the Mother.

Its present value is approximately $14,000.00. It isunclear whether this is the after tax value. I suspect it is not. The RRSP is to be divided equally with the Father but because he will owethe Mother for his share of the Capital One debt and to equalize the values of the motorcycles, the actual amount of this RRSP is to bediscounted for tax and set off against the debt owed by the Father to the Mother.

I retain jurisdiction to resolve this matter if there areany disagreements about the amount to be deducted for tax and the amount remaining, if any, to be paid by the Father. [17] The Father’s Canadian Forces Pension is a divisible asset. The Mother wants to include the premarital benefits based upon theprinciples expressed in Morash v.Morash, 2004 NSCA 20. There is no dispute that pre marital pension benefits are matrimonial property.The question always is whether there are factors under

Section 13 of the Matrimonial Property Act , R.S.N.S. 1989, c. 275 to support afinding that an equal division of those benefits “would be unfair or unconscionable”. [18] In Jenkins v. Jenkins (1991), (NS SC), 107 N.S.R. (2d) 18 (T.D.), Richard J. reviewed the meaning of unfairor unconscionable as set out in s. 13 of the Matrimonial Property Act : I propose now to deal with the division of matrimonial assets in accordance with the law as set out in Donald, supra, while remainingmindful of the comments of MacDonald, J.A., in Nolet.

To support a finding that a division is "unfair and unconscionable" it seems thatthere must be something more than mere inconvenience. The Random House Dictionary defines "unconscionable" variously as"unreasonable", "unscrupulous", "excessive" and "extortionate". These are strong words, and when coupled with the requirement that"strong evidence" must be produced to support an unequal division the burden upon the party requesting an unequal division ofmatrimonial assets is somewhat onerous. The subsections of

section 13 relevant to this decision are:

d) the length of time that the spouses have cohabited with each other during their marriage

e) the date and manner of acquisition of the assets [19] There appears to be a growing body of decisions suggesting it is generally considered "unfair and unconscionable" to equallydivide premarital asset value in a short relationship. Similarly it is generally considered not to be “unfair and unconscionable” to equallydivide premarital asset value in a lengthy relationship. The exact reason why this should be so is not often discussed. As a result it isdifficult to understand how factors (

d) and (

e) should be applied in marriages greater than 5 years but less than 20. Within that rangeconsiderations that appear to influence the outcome are: - whether children were born of the relationship; - the age of the parties at separation; - whether the owner of the asset that has a premarital value was previously married and shared some portion of that asset with aformer spouse;

- whether the spouse seeking an equal division of premarital value has substantial non- matrimonial assets or will retain substantial matrimonial assets; - whether the spouse seeking an equal division of premarital value was a stay at home spouse who became financially dependent upon the other spouse. - whether the premarital value of the asset was directly or indirectly maintained or increased by the spouse requesting equal division; for example, the premarital value of a matrimonial home may be enhanced as a result of the labour of a stay at home spouse. [ 20 ] The Father ’ s pension entitlement start date is unknown.

He had been in the military 9 years before he met the Mother. This is not a short marriage. It lasted for a significant period of time. Four children were born and, whether or not the Father agreed, the fact is the Mother was, for most of the marriage, a stay at home mother financially dependent upon the Father. Their frequent moves prevented her from fully exploring employment opportunities. Until recently she had no pension plan of her own. The Father ’ s pension, including premarital benefits, is to be equally divided with the Mother. [ 21 ] The parties had debts from Lines of Credit and Visa ’ s.

They have treated these debts as “ paid off ” because of bankruptcy. Only the Father declared bankruptcy. If these debts were in his name alone then the Mother will not be asked by creditors to pay these debts. I assume this is the case since she does not mention these debts in her chart. She does not allege that these were personal as opposed to family (matrimonial) debts. The Father considers these to be family debt. However, much, if not all, of this debt was paid from family assets. There will be no “ equalization ” of those debts. [ 22 ] The Mother wants the Father to share her Capital One credit card debt.

This card is in her name alone. The Father provided statements showing the amount owing on this debt at the separation date, April 2010. The debt was $15,367.00. The Father provided additional statements to November 2010 that clearly show the card was still being used. The balance was $17,372.00. He argues that none of the purchases were to support the children but were personal to the Mother.

That may be so but purchases to support the Mother are still relevant to the family debt issue and I would not exclude this debt because the Mother continued to use the card at a time when no formal child or spousal support was being paid. It becomes more difficult to hold the Father responsible for debt accumulated after payment of formal child and spousal support. I have no documentary information about the purchases on this account after November 2010. The Father ’ s income continued to provide support to this family, although in lessening amounts, until the grant of the Interim Order.

However he made no direct payment on the Capital One credit card debt. The Mother states the present balance is $18,000.00. She says “ I currently make monthly payments of $500.00 to $700.00 on a “ Capital One ” credit card that was used for family purchases prior to separation. The credit card has not been used since separation. (affidavit sworn on November 9, 2012, para.71) This information cannot be correct. The card must have been used after separation and may still be used.

I say this because if the Mother has been paying $500.00 per month (using the lower amount to take interest payments into account ) from November 2010, and using the November 2010 balance, the debt should have reduced to approximately $4,500.00. [ 23 ] Ordinarily the Capital One Credit Card would be considered a family debt. The court rarely reviews years of purchases to separate out those used for the family and those used personally. I do not have the entire record of purchases prior to separation before me nor would I suggest this as appropriate. This family did not live a lavish lifestyle.

Although they lived beyond their means these parents did not acquire assets independent from one another. They were part of a joint venture and the majority of their income paid for purchases of benefit to or required by family members including themselves. They used their incomes to support one another and their children. They were economically dependent upon one another. In doing so they incurred debt for which they both are responsible. The Capital One credit card is a shareable debt but given these circumstances I have decided the amount to be shared is the amount as at November 2010, $17,372.00.

The Father is to pay the Mother $8,686.00 as his share of this debt. Holiday and Special Event Parenting Plan [ 24 ] The Mother wants to share the Christmas holidays and she suggests the children should be in her care every Christmas Eve from 6:00 p.m. until Christmas Day at 7:00 p.m. and in the Father ’ s care every Christmas Day from 7:00 p.m. until Boxing Day at 7:00 p.m. The regular parenting week on/week off

schedule would apply to the remainder of the holiday season. [ 25 ] The Father wants to have an opportunity to have the children in his care for the entire holiday season this year and in subsequent years upon agreement having provided notice three months in advance. He has made this request because his parents live in

Montréal, Québec and he does want to have an opportunity to take the children with him to visit with his family over the Christmas season. [ 26 ] As so often is the case I know very little about these children. I do not have a “ Children ’ s Wishes Assessment ” as it is often called in this court). This is especially troubling when there are, as is the case with these parties, adolescent children whose desire to be with peers rather than family often makes enforcement of court orders difficult.

In this case it may be more appropriate for the Father ’ s parents to come to Nova Scotia to participate in Christmas with their grandchildren than it is to take those grandchildren to Québec. These are decisions that are generally best left to parents who should understand and recognize their children ’ s needs and have persuasive ability to obtain compliance for family visitation even when children may otherwise be reluctant.

Recognizing that these parents have had considerable difficulty accepting the other ’ s point of view all I can do is provide an opportunity for the Father, in the future, to travel to Québec with his children during the Christmas season. I do not consider it appropriate for that to occur this year. [ 27 ] During the 2012 Christmas school break, and in every even numbered year, the children will be in the care of the parent with whom they are to be according to the regular parenting

schedule which is a week on/week off arrangement, except for Christmas Eve from 6:00 p.m. until Christmas Day at 7:00 p.m. when they are to be in the care of the Mother and Christmas Day from 7:00 p.m. until Boxing Day at 7:00 p.m. when they are to be in the care of the Father. [ 28 ] During the 2013 Christmas school break, and in every odd numbered year, the children are to be in the care of the Father for the entire break provided he has given three months notice to the Mother of his intention to travel with the children during their Christmas school break to visit his family in Québec.

If in any uneven numbered year the required notice is not given the children are to be in the care of the Father, Christmas Eve from 6:00 p.m. until Christmas Day at 7:00 p.m. and in the care of the Mother Christmas Day from 7:00 p.m. until Boxing Day at 7:00 p.m. [ 29 ] The parties may agree to different arrangements for any Christmas school break but that agreement must be in writing and for this purpose an exchange of e-mail may be provided as evidence of their agreement. Annual Income [ 30 ] The Father was employed with the Canadian Forces during the marriage.

In 2009 he retired but continued to work with the Canadian Forces Reserves on a full-time Class B contract. That contract terminated May 31, 2012 with no possibility of renewal. As a result, the Father became unemployed on that date. I am satisfied he has made diligent efforts to become re-employed at a salary level commensurate with his training and experience. However, given the nature of his skills he may have to look for employment in other provinces if he is going to be able to support the children adequately.

Of course this would necessitate a change in the parenting arrangements but at some point in time a choice between the children ’ s financial security and less contact with the Father may be required. This will become particularly relevant when the Father ’ s pension is divided. At that time his pension income will likely be $24,000.00 per year. [ 31 ] The Father is also pursuing self-employment opportunities.

He has usable skills in household renovation but, given the likely level of income this will provide, he and his family will be better served by his continuing to pursue more remunerative employment opportunities. [ 32 ] The Mother requested that I impute income to the Father. At the very least he could be working in a minimum wage service job to augment his retirement income.

While that suggestion may have some influence in the future, I consider it important for the Father to have a reasonable opportunity, and time availability, to seek out employment that would provide greater income than would a minimum wage job. As a result I do not find he is intentionally under-employed or unemployed as is required to impute income under

section 19 of the Federal Child Support Guidelines . [ 33 ] The Father ’ s total annual income for the relevant years is: Year Income

2010 $133,394.00 2011 $135,336.00 2012 $64,404.00 2013 $48,088.00 I did not include the money the Father received in 2010 when he cashed out an RRSP. Often these amounts are included for the calculation of child support in the year in which the money was received even though the payment was a “ non-recurring income ” . Those taking this approach argue that the children should benefit from any increase in the payor ’ s income no matter what the source. Others have taken a nuanced approach. In Ewing v Ewing , 2009 ABCA 227 Justice Conrad said: 4 ...

Section 17 of the Guidelines requires a judge to determine whether it is fair to calculate income for the purpose of setting child support by applying

section 16, and where it is not, to set a fair income. It does not matter whether supporters is being set prospectively or retrospectively. In setting a fair income the judge may have regard to the spouse ’ s income over the last three years and assess what is fair having regard to the pattern of income, fluctuations in income or non-reoccurring amounts during those years.... [ 34 ] Applying this approach a court could conclude that the application of

section 16 would not be a fair determination of income because the previous pattern of income did not include the non-reoccurring RRSP income. [ 35 ] Justice Conrad also observed: 33 Thus, the nature of the sale of a capital asset, or other extraordinary gain or fluctuation in income, should always be considered when determining fair income. Frequently the fairest method of income may be to exclude the gain. On the other hand, where a nonrecurring gain is in the nature of an employment bonus, in the sense that it is truly income for work done, its inclusion in

section 16 income may not make that method of calculation unfair. The sale of stock options as part of annual compensation may be such an example. When considering whether to include a non-reoccurring gain in income Justice Conrad suggested the following questions be considered: 35 Is the non-reoccurring gain or fluctuation actually in the nature of a bonus or other incentive payment akin to income for work done for that year? Is the non-reoccurring gain a sale of assets that formed the basis of the payor ’ s income? Will of the capital generated from the sale provide a source of income for the future?

Are the non-reoccurring gains received at an age when they constitute the payor ’ s retirement fund, such that it may not be fair to consider the whole amount, or any of it, as income for child-support purposes? Is the payor in the business of buying and selling capital assets year after year such that those amounts, while the sale of capital, are in actuality more in the nature of income? Is inclusion of the amount necessary to provide proper child support in all the circumstances?

Is the increase in income due to the sale of assets which have already been divided between the spouses, so that including them as income might be a can to redistributing what has already been shared? Did the non-reoccurring gain even generate cash, or was it merely the result of a restructuring of capital for tax or other legitimate business reasons? Does the inclusion of the amount resulting wealth distribution as opposed to proper support for the children? [ 36 ] The money received from the cash out of the RRSP was used to pay family debt.

This in no way particularly improved the family ’ s lifestyle because the debt this family carried was well beyond the combined earnings of the parties. Given that the relief provided to the family was minimal and given that any retroactive recalculation must take into account issues around ability to pay, I have chosen not to include the money received from the RRSP. [ 37 ] The Father did not provide a separation slip or final payment stub showing his year to date 2012 earned income. As a result I have used his 2011 earned income amount, $87,248.00 ÷ 12 x 5, to calculate 2012 earned income to May 31. 2012.

His pension income was calculated at $48,088.00 ÷ 12 x 7. [ 38 ] The Mother ’ s income for the relevant years is: Year Income 2010 $41,069.00 2011 $56,800.00 2012 $74,752.00 2013 $74,752.00 I have not included the small amounts of RRSP income appearing on the Mother ’ s 2010 and 2011 income tax returns. Retroactive Child Support [ 39 ] Both parties want retroactive child support. The Mother requests retroactive child support commencing from the date of separation.

The Father suggests he has overpaid child support and requests it be recalculated from the date of separation including in the calculation all money he paid to support the family prior to the Interim Order. [ 40 ] The Mother alleges the Father paid an amount equal to the mortgage payment and nothing more since the date of separation in April 2010 until the grant of the Interim Order on April 2, 2012. She states she paid “ all household expenses and children ’ s special expenses ” without contribution from the Father. (Mother ’ s affidavit sworn November 9, 2012 paragraph 29).

The Father alleges he paid not only the mortgage, but also credit card payments, car loans, payments for children ’ s activities, and several payments for the non insurable cost of dental and drug expenditures. In proof he offered a list of all payments made out of a bank account leaving the

impression this was an account containing his income only. Later I learned this was a joint account and both parties deposited theirincome into that account. I do note the Mother did withdraw money from this account to transfer into a personal account of her own. Shealso used money from this account for her own personal expenses. I do not know what expenditures she made from her personal account.Those may have been for household utilities because none of those expenses are listed as payments from the joint account.

By reviewingthe activity in the joint account it is clear that both parents were meeting their own and the children’s needs at the time. Since the Fatherhad the greater income it appears he paid the greater proportion of those expenses. Child support is not a wealth transfer mechanism. It’spurpose is to ensure a parent has the financial means to support the children in his or her care by receiving an amount of money from theother parent that is related to that parent’s annual income. However, when a court is asked to do this on a retroactive basis the factorsdescribed in S.(D.B.) v.

G.(S.R.)et. al. 2006 SCC 37 , 2006 Carswell Alta 976 (SCC) must be considered Those are: 1) whether there is or is not an existing court order or agreement 2) status of the child/children 3) delay by the recipient in seeking the award 4) conduct of the payor parent 5) financial circumstances of the child/children 6) hardship imposed by a retroactive award The majority decided that if a retroactive award is justified there are three possible commencement dates: 1) The date when the payor was given “effective” notice that child support or a change in child support was being requested.

Effectivenotice “does not require the recipient parent to take any legal action; all that is required is that the topic be broached.” (para. 121) 2) If there is delay and the matter has not been adjudicated upon, even where effective notice has been given, “it will usually beinappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.”(para.123) 3) However, the presence of “blameworthy” conduct by the payor will “move the presumptive date of retroactivity back to the timewhen circumstances changed materially.” (para. 124).

As a result, the date when the total income of the payor increased may be anappropriate date for the beginning of the retroactive order. [41] The Supreme Court addressed the quantum to be awarded retroactively and agreed that the quantum must fit the circumstances.“Blind adherence to the amounts set out in the applicable Tables is not required ---- nor is it recommended.” (para.128) The presence ofundue hardship can yield a lesser award and there is a suggestion that undue hardship calculations required by

section 10 of the childsupport guidelines are not required to make this finding. Sections 3(2), 4 and 9 are other areas where there is discretion to determinequantum.

The majority also suggested courts could affect the quantum of awards by “altering the time period that the retroactive awardcaptures. ........For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may beappropriate to exclude this period of unreasonable delay from the calculation of the award.” (para 130) The rationale for the Supreme Court’s decision to confirm the court’s discretion when considering a retroactive recalculation is describedin paragraph 95: [95] It will not always be appropriate for a retroactive award to be ordered.

Retroactive awards will not always resonate with thepurposes behind the child-support regime; this will be so where the child would get no discernible benefit from the award. Retroactiveawards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a freestanding obligation tosupport one’s children must be recognized, it will not always be appropriate for court to enforce this obligation once the relevant timeperiod has passed. [42] Although the parties separated in April 2010, the Father did not move out of the matrimonial home until August 2010.

TheMother did not commence the Petition for Divorce until November 2011. In the Petition and in her affidavits filed in this proceeding theMother stated the children resided with each parent on a week on/week off basis since September 2011. By November 2011 the Father

was paying only the mortgage and a few minor expenses for the children. [ 43 ] There is no prior order in this proceeding. There was some delay by the Mother in seeking support. However, during that time the children ’ s financial needs were being met by both parents in fair proportion to their incomes.

There has been no blameworthy conduct by the Father and given his present income and its ’ reduction in the future when his pension is divided, a retroactive award will imperil his ability to continue to share parenting, and support himself. [ 44 ] Typically child support would most appropriately be calculated beginning November 1, 2011. Because the children were in a shared parenting arrangement and I have been provided with insufficient evidence to order anything other than a set off, the monthly child support required to be paid by the Father to the Mother would be $1,432.00.

However, if by November 1, 2011 the Mother ’ s income was no longer paid into the joint bank account and, as a result, only the Father ’ s income paid the mortgage it can be argued he should be given a credit of $1,264.00 per month for November and December 2011. [ 45 ] The Father ’ s income changed in 2012. The set off would require the Mother to pay the Father $209.00 per month beginning January 1, 2012. However, once again the Father may be entitled to a credit because he paid the mortgage in January. Now the Mother would owe him $1,473.00. For February the Mother would owe the Father $209.00.

The Interim Order amounts would have to be adjusted because the Father overpaid based on the income decision I have made. The Mother would need to reimburse him for the overpayments. She is struggling financially as is the Father. There are four children to support. It is difficult to discern the benefit to these children from a retroactive award to either of their parents. I will not make any retroactive award. Payments will be adjusted on a prospective basis beginning January 1, 2013.

Prospective Child Support Table Guideline [ 46 ] Neither party has provided the evidentiary foundation and financial analysis ,as suggested by Contino v Leonelli-Contino 2005 SCC 63 , to determine that using the set off for the calculation of child support would be inappropriate. [ 47 ] Based upon the parents likely 2013 incomes the Mother will, because of the set off, pay the Father Table Guideline child support in the amount of $543.00 per month commencing January 1, 2013.

Because the Father ’ s income will change again when his pension is divided, this matter is to be set down for a review in six months to determine the then appropriate child support to be paid. This will trigger another examination of the Father ’ s income and whether there should be an imputation of income at that time. Special and Extraordinary Expenses [ 48 ] The parents have a child who has learning disabilities. These were first diagnosed in 2006. This child also has required counselling to assist her with anxiety and behavioural problems.

The Psychologist involved has been supportive of this child ’ s attendance at a private school because the child can benefit from “ small class size and the community atmosphere that is inherent in a private school. ” (Tab H to the affidavit of the Father filed December 15, 2011) The Father has enrolled this child in private school and requests the Mother proportionally share this expense.

She has been providing $200.00 per month but resists any requirement to pay more and questions whether the child should be enrolled in private school next year. [ 49 ] The Mother wants any health related expenses exceeding insurance reimbursement by $100.00 annually to be proportionally shared. She also requests proportional sharing of skiing passes, volleyball expenses, and Nova Scotia Community College registration fees. [ 50 ]

Section 7 of the Child Support Guidelines has wording that must be given meaning by decision makers. Several of those words appear in the opening paragraph; I have underlined them.

(1) In a chid support order the court may, ...provide for an amount to cover ...the following expenses... taking into account the necessity of the expense in relation to the child ’ s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family ’ s spending pattern prior to the separation... Additional words requiring

interpretation are: 7(1)(

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child ’ s particular needs 7(1)(

e) expenses for post-secondary education 7(1)(

f) extraordinary expenses for extracurricular activities. Controversy can develop in respect to the “ necessity ” for a child to attend a private school or engage in extracurricular activities. Necessity is to be defined in the “ child ’ s best interest ” . When a child has specific learning disabilities that may be more successfully addressed in a private school setting it may be difficult to suggest private school is unnecessary for that child. Private school has often been considered to be an extraordinary educational expense.

The necessity for a child to engage in extracurricular activities may not be so easy to determine. There may be universal agreement that engaging in extracurricular activities is in a child ’ s best interest. The devil, as they say, is in the details. It may not be in a child ’ s best interest to be engaged in extracurricular activities in situations where the child is living a parent ’ s dream not of the child ’ s own choosing (to be a hockey star, for example). It may be in a child ’ s best interest to spend time with a parent rather than be enrolled in an extracurricular activity.

With older children what the family provided for in the past may be an indicator of what is in a child ’ s best interest in the future but for young children there will be no pattern of enrollment in these activities to use as a guide.

As is the case with all “ best interest ” decisions, everything will be determined based upon the information provided about the child, his or her character, interests, strengths, weaknesses, challenges, and previous and present involvement in extracurricular activities; and about the family, how decisions about these activities were made in the past and presently, the support each parent provided and will provide to permit and encourage the child ’ s participation, and whether the activities may impede a child ’ s opportunity to develop a relationship with a parent. [ 51 ] Once an expense is determined to be a “ necessity ” the next question is whether the cost of the activity is reasonable taking into account the financial means of the parents and the pre-separation spending on these expenses, if any. [ 52 ] The expense of an extracurricular activity, even if necessary and the cost is reasonable, is not shareable unless the expense is “ extraordinary ” .

An amendment was made to the Child Support Guidelines to clarify what an “ extraordinary ” expense may be. First of all Section 7(1.1)(

a) indicates an expense is “ extraordinary ” when it exceeds what the parent, who seeks sharing of the expense, can reasonably pay taking into account that parent ’ s income and the amount of child support he or she will receive. If the parent can ’ t “ reasonably pay ” the expense, it is extraordinary and the court may order the other parent to contribute. However, if it is determined that a parent can pay the expense claimed it may still be an “ extraordinary ” expense. Section 7 (1.1)(

b) indicates that an expense a parent can reasonably pay may still be an “ extraordinary expense ” after consideration of a number of factors. Those are, once again, the relationship of the expense to the requesting parent ’ s income including the amount of child support he or she will receive, the nature and number of the extracurricular activities in which the children participate, the children ’ s special needs or talents, the overall cost of the programs and activities and any other similar factors considered relevant.

The difference between the two “ tests ” is the first appears to be directed to a particular child attending a particular activity while the second takes into account the activities in which all the children participate. Private School [ 53 ] I am satisfied private school is necessary for the child presently attending. However, the cost is not reasonable taking into account the present incomes of these parents. They simply cannot afford private school.

The fact that the Father may be making financial sacrifices to send this child to private school does not mean I must order this to continue with contribution from the Mother. These parents will need to utilize the resources provided by public school for this child in the future if they continue to have their present or lesser incomes. The current arrangement will continue until the end of the school term (with the Mother providing $200.00 per month and the Father paying the balance ) because this arrangement was entered into by the parties on their own initiative and it is best that this

child not change schools for this school year. Medical and Dental Expense [ 54 ] The Mother has not provided sufficient evidence proving she regularly made medical and dental expenditures exceeding insurance reimbursement by $100.00 annually. Some reimbursements that should have been paid to her by the Father were used to pay other family debt for which the Mother was jointly liable. Her claim for a retroactive recalculation, even had she made these payments, would fail for the same reasons I have already expressed under the heading Retroactive Child Support.

If she in fact makes these payments in the future, and can verify the amounts, she may have a future claim. Extracurricular Activities [ 55 ] Neither parent provided sufficient evidentiary basis to suggest the extracurricular activities are necessities. The parents can involve the children in whatever activity he or she can independently afford but if the activity occurs during the other parent ’ s parenting time, that parent ’ s consent is required. Nothing will prevent the sharing of an expense should the parties agree.

Post-secondary Expenses [ 56 ] Post- secondary expenses are a shareable expense if the cost is reasonable taking into account the income of the parents. The only post-secondary expenses to which reference has been made in this proceeding relate to fees required to gain entrance to Nova Scotia Community College. These are affordable based upon the parties incomes and are to be shared in proportion to income. Retroactive Spousal Support [ 57 ] I will not grant retroactive spousal support for the same reason I did not grant retroactive child support.

Spousal Support [ 58 ] At the date of separation the Mother did have some element of compensatory and non-compensatory entitlement to spousal support. She had been out of the work force for a number of years and her then income was less than the Father ’ s. The Father had been advantaged by the Mother staying at home to care for the children because it allowed him to actively pursue his career and education. Unfortunately the career came to an end and his education has not yet provided him with remunerative employment.

The Mother began to pursue her present career while married and she now will begin to accumulate pension benefits. When the Mother entered the marriage she did not have any career that she gave up because of the marriage. The Mother will be compensated, to a degree, for her loss of pension accumulation during her years of marriage as a result of the division of the Father ’ s pension. She now earns more than the Father. She continues to deficit budget. Four children are costly to support and because of the shared parenting arrangement she must pay child support to the Father.

If the Mother only had herself to support her present income would suggest she no longer has a non- compensatory entitlement to spousal support. However, she has other responsibilities and they impact her ability to be self supporting. She still has entitlement to spousal support. Based upon the parties incomes the spousal support guidelines range for support is $0.00 at the low and medium ranges and $346.00 at the high range. Because of the Father ’ s income I consider it inappropriate to use the high range. I have also reviewed the Father ’ s Statement of Expenses.

The Father has no ability to pay spousal support at this time. The requirement that he pay spousal support is suspended as at December 31, 2012. This issue will be reassessed at the review date. Recalculation of Child and Spousal Support

[ 59 ] I understand the Interim Order and the Order to be prepared following this decision, which is to be prepared by counsel for the Mother, are and will be enforced by the Director of Maintenance Enforcement. As a result of this decision only the Mother will be paying money to the Father. If a recalculation results in a credit to the Father (an overpayment), the Mother is to add $50.00 to every monthly child support payment until the credit is paid in full.

If there is a debit to the Father (an underpayment), the Mother is to deduct $50.00 from every monthly child support payment until the debit is paid in full. [ 60 ] If costs are requested by either party and this issue cannot be resolved between them written submissions are to be provided to this court by the Mother, with a copy to the Father no later than February 8, 2013. The Father ’ s submissions are to be filed with this court and copied to the Mother no later than February 22, 2013. ___________________ Beryl MacDonald, J.S.C.