Symes v. Symes, 2016 NSSC 30

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Symes v. Symes, 2016 NSSC 30 Date: 20160122 Docket: 1201-067345 Registry: Halifax Between: Arthur Dean Symes Petitioner and Selena Elizabeth Symes Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O ’ Neil Heard: November 17 and 18, 2015 at Halifax, Nova Scotia Issues: 1. What is the appropriate parenting arrangement for the parties ’ children? 2. Should income be imputed to the mother? 3. Should child support be payable by either parent? 4. Is Ms. Symes entitled to spousal support? If so, what is the quantum and duration?

Summary: The Court continued primary care of the children with the father; imputed minimum wage income to the mother and ordered the payment of child support on that basis. The Court found Ms. Symes entitled to receive spousal support on both a compensatory and non compensatory basis and for an indefinite period. The Court declined to order retroactive spousal support because Mr. Symes had assumed the repayment of a high level of family debt and his past and ongoing responsibility for all three children and to a lesser extent, his grandchild. The Court did order ongoing

spousal support of $900 per month, increasing to $950 per month on March 1, 2017. A review of spousal support was scheduled for October 2020. A Divorce Order also issued. Keywords: Spousal Support; imputed income; debt payments; Spousal Support Guidelines ; third party payments; review Legislation: Child Support Guidelines, P.C., 1997-469 Spousal Support Advisory Guidelines Cases Considered: Godin v. Godin , 2013 NSSC 316 Kerr v. Baranow , 2011 SCC 10 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: Symes v. Symes, 2016 NSSC 30 Date: 20160121 Docket: 1201-067345 Registry: Halifax Between: Arthur Dean Symes Petitioner and Selena Elizabeth Symes Respondent Judge: Associate Chief Justice Lawrence I. O ’ Neil Heard: November 17 and 18, 2015 at Halifax, Nova Scotia

Counsel: Alex Embree, Counsel for Arthur Symes Selena Symes, Self Represented By the Court : Introduction [ 1 ] This is a decision in the matter of Arthur Dean Symes and Selena Elizabeth Symes. The matter came before the Court on November 17, 2015 for a final divorce hearing. [ 2 ] The Petition for Divorce was filed by Mr. Symes on September 23, 2013. An Answer was subsequently filed by Ms. Symes. Mr. Symes is 42 years of age and Ms. Symes is 43 years of age. [ 3 ] A settlement conference held on June 26, 2014 resulted in the settlement of property issues flowing from the parties ’ separation.

Issues [ 4 ] The issues still before the Court were the parenting arrangement to govern the parties ’ three (3) children; child and spousal support. The Court was asked to issue a Divorce Order. [ 5 ] The children are aged eighteen (18), sixteen (16) and fourteen (14). The oldest child has a child. All three (3) children live with their father and his new partner. Ms. Symes lives with her new partner. Divorce [ 6 ] The Court is satisfied it has jurisdiction to issue a divorce order; the grounds exist for doing so and no bars to the issuance of the order exist.

A divorce order will therefore issue as provided by ss.8 - 11 of the Divorce Act , 1985, c.3 (2 nd Supp.). Parenting [ 7 ] The parenting dispute pertains to the living arrangement for the two (2) younger children. The parties accept that the oldest child will live where she chooses. [ 8 ] Mr. Symes would like the current parenting arrangement to continue. That arrangement has the two (2) younger children with their mother every other weekend and overnight on Tuesday. Ms.

Symes, however, would like 50/50 parenting or primary care of the children. [ 9 ] The Court rendered a partial decision orally at the conclusion of evidence on November 18, 2015 and directed that the existing

parenting arrangement continue for the children. Support [ 10 ] The remaining issues for the Court ’ s consideration pertain to child and spousal support. Mr. Symes seeks child support from Ms. Symes. Although Ms. Symes does not declare any income, Mr. Symes submits income should be attributed to her. [ 11 ] Ms. Symes says that she has been unable to locate or unable to perform work and therefore has no income through no fault of her own. She also claims in her Answer that she is entitled to spousal support. Mr. Symes says that Ms. Symes is not entitled to spousal support.

He argues also that if she were found to be entitled to spousal support, than his having assumed a disproportionate share of the matrimonial debts should be taken as satisfying whatever obligation he had to Ms. Symes. ∙ Child Support [ 12 ] A parent who has primary care of the children is entitled to receive, on behalf of the children, child support from another parent who is in a position to pay it because they have income or because they could have income but choose not to earn it. I am satisfied that Ms. Symes does not have an income upon which the Court could assess a child support obligation.

I must now determine if income should be imputed to her and if so, at what level. [ 13 ] Section 19(1)(

a) of the Child Support Guidelines provides as follows: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 14 ] I have considered the guidance of our Court of Appeal as articulated in White v. White , 2015 NSCA 52 on the meaning of this guideline. I am satisfied that Ms. Symes should be assessed a minimum wage income. I place that income at $21,000 per annum and her child support obligation for the two (2) children in Mr.

Symes ’ care will be assessed based on that income level. It is $297 per month. [ 15 ] I have come to this conclusion because Ms. Symes testified that she is capable of working. It is clear that she has not been seeking work and she does not feel she has an obligation to work. Her statements of limitation with respect to employability were inconsistent and unreliable. I am satisfied that she has not offered evidence that should satisfy the Court on a balance of probabilities that she is incapable of being employed. Ms. Symes has two (2) years of university completed as a young adult.

She has the intellectual and physical capacity to work but chooses not to seek employment. [ 16 ] The parties ’ partial Corollary Relief Order issued September 15, 2015 provided, at clause 10, that Ms. Symes “ is entitled to 50% of Dean Symes accumulated pension with DND between September 1, 1995 and August 15, 2012". The Court was not told whether this pension interest generates any current income. I will therefore assume it does not.

A pension division order also issued September 22, 2015. ∙ Spousal Support Principles [ 17 ] The parties lived in a common law relationship beginning in September 1994; married April 27, 1996. The partial Corollary

Relief Order issued September 22, 2015 declares they separated on August 15, 2012. The parties had a relationship of approximatelyeighteen (18) years in duration. [18] I have frequently been called upon to review the legal principles governing entitlement to a spousal support. For ease ofreference, I reproduce the text of my discussion of these principles as put forward in the case of Godin v. Godin, 2013 NSSC 316 atparagraph 73-84: [73] The principles governing spousal support are well known. [74] The issue of spousal support has two potential aspects: entitlement and quantum if entitlement is established. [75]

Section 15.2 (4) (a) (c), (5) & (6) (a) (

d) of the Divorce Act, supra, requires the court to consider the condition, means andcircumstances of each spouse and provides that a spousal support order should address four statutory objectives: 15.2(1) Spousal support order A court of competent jurisdiction may, on application by either or both spouses, make an order requiringa spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinksreasonable for the support of the other spouse

(4) Factors In making and order under subsection (1) or an interim order under subsection (2), the court shall take into consideration thecondition, means, needs and other circumstances of each spouse including: (

a) the length of time the spouses cohabited (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse . . . . .

(6) Objectives of spousal support order An order made under subsection (1) or an interim order under subsection (2) that provides forthe support of a spouse should: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self sufficiency of each spouse within a reasonable period of time. [76] The words of Justice McLaughlin in Bracklow (SCC), [1999] S.C.J. No. 14 at paras. 30 - 31 are on point:

(30) The mutual obligation theory of marriage and divorce, by contrast, posits marriage as a union that creates interdependencies thatcannot be easily unravelled. These interdependencies in turn create expectations and obligations that the law recognizes and enforces ...

(31) The mutual obligation view of marriage also serves certain policy ends and social values. First, it recognizes the reality that whenpeople cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly.When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely).

Second, itrecognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to theabsolute independence status of single life, indicating the potential necessity to continue support, even after the marital "break". Finally,it places the primary burden of support for a needy partner who cannot attain post marital self sufficiency on the partners to therelationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistancerolls. [77] Justice L'Heureux Dube in Moge v.

Moge, (SCC), [1992] S.C.J. No. 107 directed that spousal support muststrive to achieve some equitable sharing upon the dissolution of the marriage. At paragraph 73, she stated: The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution which, in myview, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes suchsacrifices and the economic advantages conferred upon the other spouse [78] Nevertheless, in the words of Justice McLachlin in Bracklow: 21.

When a marriage breaks down, however, the situation changes. The presumption of mutual support that existed during the marriageno longer applies. Such a presumption would be incompatible with the diverse post marital scenarios that may arise in modern societyand the liberty many claim to start their lives anew after marriage breakdown. This is reflected in the Divorce Act and the provincialsupport statutes, which require the court to determine issues of support by reference to a variety of objectives and factors. [79] I am satisfied that entitlement to spousal support has been established.

Spousal support does not arise solely by virtue of or as aproduct of cohabitation and economic disparity between separating partners. [80] The January 2008 order of Justice Gass (flowing from the hearing before her on October 17, 2007 provided (tab 24, Volume 2of Exhibit 16): 6. Marc Godin shall not pay spousal maintenance to Cindy Godin at this time as he has primary care of the children and is responsible forpaying significant matrimonial debt.

Marc Godin shall continue to make the car payments on the 2007 Ford in the possession of CindyGodin. [81] In her final decision dated November 1, 2010, Justice Lynch ordered as follows (tab 27, Volume 2 of Exhibit 16): 14. There is no direction of the Court for either party to pay spousal support at this time. Future entitlement and any quantum may beaddressed at a time in the future after the matrimonial assets and debts have been divided. 15. There shall be no retroactive spousal maintenance ordered. [82] This is a divorce hearing. Justices Gass and Lynch had applications pursuant to the 'MCA' before them.

[83] The applicable principles for determining entitlement to spousal support and quantum are essentially the same. [84] I am satisfied that there is a non compensatory basis for spousal support. The parties had a medium length relationship of thirteen years. They began cohabitation in April 1994 and separated April 8, 2007. (

a) Entitlement [ 19 ] I am satisfied that Ms. Symes is entitled to spousal support both on a compensatory and a non compensatory basis. [ 20 ] Ms. Symes left her undergraduate university program at Memorial University and travelled with Mr. Symes to Halifax where he continued to pursue his career in the Canadian navy. Once in Halifax, Ms. Symes devoted the majority of the ensuing years to raising the parties ’ three (3) children. [ 21 ] Mr. Symes spent many of these years away from home, often for months at a time. [ 22 ] As a member of the Canadian Navy, Mr.

Symes testified he was away, on average, three (3) months a year and in some years, he was away for periods of five (5) months. Ms. Symes disputed his evidence on this point and testified that Mr. Symes was away for longer periods of time and more frequently than he testified to. Regardless, I am satisfied that the overwhelming percentage of the work in the home fell to Ms. Symes over the course of the parties ’ relationship. [ 23 ] She suffered career wise as a result and Mr.

Symes career was enhanced. [ 24 ] I find also that there was an implicit and expressed understanding between the parties that they would support each other through their adult life and raise the children together. [ 25 ] I am therefore satisfied that Ms.

Symes was entitled to spousal support at the time of the parties ’ separation in August of 2012. [ 26 ] I am not satisfied that events since the parties ’ separation more than three (3) years ago have resulted in a loss of entitlement to spousal support. [ 27 ] The question becomes what the quantum of spousal support should be and when it should be found to be effective. (

b) Quantum Spousal Support Advisory Guidelines [ 28 ] The Spousal Support Advisory Guidelines (SSAG) provide the following range of spousal support, i.e. a low of $1,063; a mid range of $1,244 and a high point of $1,403; all figures being approximate. [ 29 ] The foregoing range assumes an income of $21,000 for Ms. Symes; an income of $85,398 for Mr. Symes; primary care of the parties two children with Mr. Symes and a child support obligation of Ms. Symes in the amount of $297 per month. [ 30 ] The SSAG are advisory. They are not binding.

Ultimately, the Court must determine the quantum of spousal support by reference to s.15.2 of the Divorce Act , S.C. 1985, c.3 (2 nd Supp.) ( supra paragraph 17).

[ 31 ] The User ’ s Guide accompanying the SSAG offers some guidance when determining the quantum of spousal support. The 2010 User ’ s guide and the draft 2015 User ’ s Guide provide a non exhaustive list of seven factors to assist. They are:

(1) Strength of any compensatory claim

(2) Recipient’s needs

(3) Age, number, needs and standard of living of children

(4) Needs and ability to pay of payor

(5) Work incentives for payor

(6) Property division and debts

(7) Self-sufficiency incentives [ 32 ] As stated, Ms. Symes ’ Answer gave notice of her claim for spousal support. Retroactive spousal support has not been expressly pleaded. I will address the issue, nevertheless. [ 33 ] The partial corollary relief order at paragraph 8 provides: 8. The parties agree that all of the outstanding matrimonial debts total more than all of their matrimonial assets. The parties agree that Dean Symes’ assumption of all of the joint debts constitutes an unequal division in Selena symes’ favour resulting in her being debt free. [ 34 ] As part of Mr.

Symes affidavit at tab E, (exhibit 2) filed September 25, 2015, Mr. Symes detailed the debts he has retired on behalf of the family from August 2012 to September 15, 2015. He says the debt payments over this period amounts to $107,209.40. Mr. Symes states further at paragraphs 341-348: 341. Attached as Exhibit F, is a chart I prepared for the amount of money I have spent on marital debt from August 2012 to September 15, 2015. 342. I have paid all marital debt with no money given to me by Selena or any assistance in the paying down any of the debt. 343.

Additionally, in order to pay off the debt I applied for a financial distress loan of $25,000 from the Military Financial Assistance Program in order to pay all of the credit cards and line of credit debt. Attached is a list of marital debt paid since 15 Aug 2012. 344. This financial loan I received from the military is automatically being removed from my pay at $450 a month for 5 years. Ending Sept 2019. 345. This amount can be seen on my pay stub.

346. As well I am continuing to pay for the 2010 Mazda 5 that Selena has had in her possession since July 2012. 347. I pay $522.41 a month. 348. There is still approx. 2.5 years left to payout the car loan. Therefore I have not and will not see $972.41 a month for that period oftime. This is not including all other associated bills i.e. mortgage etc. [35] The analysis the Court must undertake when asked to order retroactive spousal support was outlined by the Supreme Court inKerr v.

Baranow, 2011 SCC 10 beginning at paragraph 207: [207] While D.B.S. was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerationsto those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support.Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and anyhardship the retroactive award may occasion on the payor spouse.

However, in spousal support cases, these factors must be consideredand weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mentionsome of those differences briefly, although certainly not exhaustively. [208] Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship ofpresumed dependency and the obligation of both parents to support the child arises at birth.

In that sense, the entitlement to child supportis “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Childsupport is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under theDivorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payorand not on a highly discretionary balancing of means and needs.

These aspects of child support reduce somewhat the strength ofconcerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should beaware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s andtherefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking childsupport: see D.B.S., at paras. 36-39, 47-48, 59, 80 and 100-104.

In contrast, there is no presumptive entitlement to spousal support and,unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus,concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see, e.g., M.

L.Gordon, “Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era” (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and291-92. [209] Where, as here, the payor’s complaint is that support could have been sought earlier, but was not, there are two underlyinginterests at stake. The first relates to the certainty of the payor’s legal obligations; the possibility of an order that reaches back into thepast makes it more difficult to plan one’s affairs and a sizeable “retroactive” award for which the payor did not plan may imposefinancial hardship.

The second concerns placing proper incentives on the applicant to proceed with his or her claims promptly (seeD.B.S., at paras. 100-103). [210] Neither of these concerns carries much weight in this case. The order was made effective the date on which the proceedingsseeking relief had been commenced, and there was no interim order for some different amount. Commencement of proceedingsprovided clear notice to the payor that support was being claimed and permitted some planning for the eventuality that it was ordered. There is thus little concern about certainty of the payor’s obligations. Ms.

Kerr diligently pursued her claim to trial and that being thecase, there is little need to provide further incentives for her or others in her position to proceed with more diligence. [211] In D.B.S., Bastarache J. referred to the date of effective notice as the “general rule” and “default option” for the choice of effectivedate of the order (paras. 118 and 121; see also para. 125). The date of the initiation of proceedings for spousal support has beendescribed by the Ontario Court of Appeal as the “usual commencement date”, absent a reason not to make the order effective as of thatdate: MacKinnon v.

MacKinnon (2005), (ON CA), 75 O.R. (3d) 175, at para. 24. While in my view, the decision toorder support for a period before the date of the order should be the product of the exercise of judicial discretion in light of the particularcircumstances, the fact that the order is sought effective from the commencement of proceedings will often be a significant factor in howthe relevant considerations are weighed. It is important to note that, in D.B.S., all four litigants were requesting that child supportpayments reach back to a period in time preceding their respective applications; such is not the case here.

[ 36 ] This is not an appropriate case to order retroactive spousal support. Priority must be given to the payor parent ’ s obligation to support children. Mr. Symes or his extended family have supported his children and continue to do so with a minimal contribution from Ms. Symes currently and in the past. This financial obligation has been substantial since 2012 and continues to be substantial. [ 37 ] Nor has Ms. Symes met her past responsibility to contribute to her own support, post separation. [ 38 ] Significantly, Mr.

Symes has assumed responsibility for an unequal share of responsibility to service and to retire the parties ’ matrimonial debt including debts that resulted from Ms. Symes gambling habit. This significant obligation continues to be met by him. [ 39 ] These factors weigh against an award of retroactive spousal support. [ 40 ] Several of these factors also weight in favour of a prospective spousal support award on the lower end of the range. The spousal support obligation of Mr.

Symes will also reflect his ongoing support of the third and eldest daughter and her child. [ 41 ] The Court has not been provided complete household financial information by Ms. Symes. Her partner ’ s financial information has not been provided. This information is relevant to an assessment of her needs and circumstances. In cases where spousal support arises from a compensatory claim, this is not essential to an adjudication but it would be helpful when assessing the condition, needs and means of both parties. Given the difficulties Mr. Symes has faced when Ms.

Symes cooperation was required to implement agreements or to follow earlier orders; and his need for certainty, one can understand his proceeding in the absence of complete disclosure by Ms. Symes and her partner. [ 42 ] Spousal support in the amount of $900 per month effective March 1, 2016 is ordered. For reasons already referenced, ordering this obligation to be effective at an earlier date would represent a hardship for Mr. Symes and have negative consequences for the children. This shall increase to $950 effective March 1, 2017, at which time Mr.

Symes indebtedness will be reduced but still not eliminated. [ 43 ] The ongoing payment of the loan on the Mazda is a credit against the quantum of spousal support to be paid by Mr. Symes. [ 44 ] If that third party payment continues at $522.41 per month, this amount will be partial payment of the spousal support obligation herein. [ 45 ] A review of the spousal support obligation is to be scheduled for October 2020 at the instance of either party. Notice of a review is to be given by the party seeking the review on or before the last business day of June 2017.

In addition, each party is to disclose his/her income tax return and notice of assessment to the other party on or before June 1 st of each year; for the preceding year. [ 46 ] Ms. Symes is further directed to provide Mr. Symes with summaries of her efforts to find employment; to obtain training and to generally improve her income producing capacity. These reports are to be provided on or before the last business day of December of each year and on or before June 1 st of each year.

They will pertain to the six months preceding these dates. [ 47 ] Nothing in the foregoing precludes either party from seeking a variation of the spousal support obligation herein should there be a change in circumstances for either party. The division of “ Mr. Symes ” pension and receipt of the benefit of that division will represent a change warranting a review. [ 48 ] Finally, Ms. Symes is directed to increase her child support obligation following any increase in her income.

The increase is to be consistent with the child support tables. [ 49 ] I reserve jurisdiction to address matters not addressed herein but subject to the hearing and to clarify and to assist in resolving

issues that may arise and relating to implementation of this decision. ACJ