Johnson v. Johnson, 2019 NSSC 222

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Johnson v. Johnson , 2019 NSSC 222 Date: 2019-07-19 Docket: 1201-069363 Registry: Halifax Between: Darryl Wayne Johnson Petitioner v. Yolanda Lynn Johnson Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: October 18, 2018, February 19-20, 2019 Submissions : April 12 and 24, 2019 – Darryl Johnson April 23, 2019 – Lynn Johnson

Summary: Parenting and child support review. No contribution to prospective s. 7 expenses made where payor’s income too low after table amount of child support awarded.

Key words: Family, Parenting, Custody, Access, Shared parenting, Child support, Table amount, Special or extraordinary expenses, Imputing income, Review application Legislation: Age of Majority Act , R.S.N.S. 1989, c. 4, subsection 2(1) Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 2(1), subsection 16(1) Federal Child Support Guidelines, SOR/97-175, subsection 3(1) , subsection 3(2) , subsection 7(1) , clause 7(1)(d), subsection 7(1.1) , subsection 7(2) THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS INFORMATION SHEET.

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Johnson v. Johnson , 2019 NSSC 222 Date: 2019-07-19 Docket: 1201-069363 Registry: Halifax Between: Darryl Wayne Johnson Petitioner v. Yolanda Lynn Johnson

Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : October 18, 2018 February 19-20, 2019 Submissions : April 12 and 24, 2019 – Darryl Johnson April 23, 2019 – Lynn Johnson Counsel: Darryl Johnson, self-represented Lynn Johnson, self-represented Introduction [ 1 ] This is a review application relating to parenting and child support for 19 year-old Brooklynn and 15 year-old Breyona.

There are three issues: • What parenting arrangement is in the girls’ best interest? • What child support should be paid prospectively? • What adjustment, if any, should there be to child support from June 2017 to the present? [ 2 ] In deciding these issues, I have ignored the new information each party offered in his or her final written submissions. This information is not sworn and cannot be tested through cross-examination, so it is not proper for me to consider it. Context of review [ 3 ] In June 2017, the parties resolved all issues in their divorce at a settlement conference.

They agreed on a 9-month trial period of shared parenting after which they’d return to court for another settlement conference to review the shared parenting arrangement. They agreed neither would pay any child support based on the child support tables and they would share special or extraordinary expenses based on a defined percentage. [ 4 ] The Divorce and Corollary Relief Orders were finalized one year later, well past the end of the 9-month trial period.

By that time the parties had already returned to court and begun their progress toward this review hearing which began in October 2018 and was adjourned for completion to February 2019. Written submissions were filed in April 2019. Mr. Johnson’s new claims [ 5 ] When the review hearing began, Mr. Johnson raised an undue hardship claim. This claim wasn’t identified at the pre-hearing conference. Mr. Johnson had not filed a Notice of Undue Hardship Claim and he only filed a Statement of Undue Hardship Circumstances as the hearing began.

The Statement of Undue Hardship Circumstances and other materials he filed didn’t identify the basis for his claim or provide the evidence to support it. Ms. Johnson had no notice of the claim and had no opportunity to respond to it. I dismissed Mr. Johnson’s request for a finding of undue hardship. [ 6 ] The Corollary Relief Order specifically said that neither party was required to pay spousal support to the other. However, Mr. Johnson claimed spousal support in the post-hearing submissions he filed in April 2019. This was the first time he identified a claim for spousal support.

His affidavits and financial statements didn’t identify the claim or provide evidence to support it. Ms. Johnson had no notice of the claim and no opportunity to respond to it. I dismiss Mr. Johnson’s claim for spousal support. [ 7 ] The lateness of Mr. Johnson’s claims meant that Ms. Johnson had no opportunity to lead evidence, cross-examine, and make submissions on them. Allowing these claims would deny Ms. Johnson fundamental fairness and constitute an error of law: Slawter v. Bellefontaine , 2012 NSCA 48 .

What parenting arrangement is in the girls’ best interest? [ 8 ] The Corollary Relief Order acknowledged that their daughters were “old enough to choose whether to follow the access order or not” and that “social, school and extra-curricular activities, etc and work schedules would take precedence over the parenting schedule.” [ 9 ] The parenting arrangement was based on a 2-week

schedule and contained specific terms about Christmas, Mother’s Day, Father’s Day, and block summer access. During the first week, the girls would be with their father overnight on Tuesdays and Thursdays, and during the second week, they would be with him on Tuesday and from Thursday until 3 p.m. on Sunday. The arrangement required the girls to move from one home to the other eight times during the two-week period. [ 10 ] Mr. Johnson says that Ms. Johnson undermined the

schedule and interfered with his parenting time. In his final submissions, he claimed she has alienated the children.

Brooklynn [11] Brooklynn is 19 and a full-time student finishing her first year at St. Francis Xavier University. During the school year, she livesin Antigonish. In his evidence, Mr.

Johnson said that time with Breyona was his greater concern given that Brooklynn is away at school. [12] Brooklynn is an adult under the Age of Majority Act, R.S.N.S. 1989, c. 4, subsection 2(1). [13] I can make an order for custody and access of an adult under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, subsections 16(1) and2(1). [14] Courts elsewhere in Canada have, on occasion, declined to make custody decisions where children have reached the age ofmajority and can, on their own, decide where they live and who they see: Rausch, 2004 SKQB 81; and MacIntosh, (ON SC). [15] It is appropriate that I do not fix a parenting

schedule for Brooklynn. For much of the year, she lives away from both of herparents. I don’t know when she’s able to spend time with either of her parents. The existing order recognized her ability to choose thetime she would spend with each parent, given the precedence of social, school, extra-curricular commitments and work. Brooklynn canmaintain her own relationship with each parent and determine the time she will spend with each. Breyona [16] Breyona is 15 and has just finished grade 9. She will be 16 this November. There is no evidence that she has any special needs.

Her parents live in the same school district. Mr. Johnson describes her as “extremely bright” and says she does well academically. Theparents agree Breyona is intelligent and mature. [17] The Divorce Act requires that I consider Breyona’s best interests in determining her time with each parent and that I maximize thetime she spends with each parent, to the extent this is in her best interests: subsection 16. [18] Both parents want to provide Breyona with her primary home. Each proposes a fixed

schedule for spending time with the other. These proposals contrast with the parents’ views, two years ago, that Breyona was old enough to choose the time she spent with eachparent. [19] The text messages and emails between the parents show Breyona is caught in the middle of her parents’ conflict, trying to keepthe peace between them. When Breyona took

part in the preparation of a Child’s Wishes Report in 2015, one of her wishes was that herparents be respectful to each other. [20] Most of the evidence I heard was focused on complaints the parents had with each other, rather than Breyona’s best interest. Mytask is to focus on Breyona’s best interests and to maximize her time with each parent, to the extent this is in her best interests. Ms.Johnson believes she is the superior parent, but the evidence does not persuade me that there is any reason to restrict Breyona’s time withher father. [21] I do not accept Mr. Johnson’s view that Breyona has been alienated.

The evidence does not show that Breyona demonstrates thetypical behaviours of an alienated child. Here I am referring to the research of Fidler, Bala, Birnbaum and Kavassalis, “Child CustodyAssessments, Recommendations, and Judicial Remedies Regarding Alienated Children” in Challenging Issues in Child CustodyDisputes: A Guide for Legal and Mental Health Professionals (Toronto: Carswell Thomson, 2008). [22] Fidler, Bala, Birnbaum and Kavassalis identify 14 typical behaviours of alienated children. In general, alienated children haveone-dimensional views of each parent: one is idealized and the other, vilified.

The child’s hatred of the vilified parent is not tempered byany ambivalence, guilt or reason. The child may openly display and express their hatred for the vilified parent. This is not the wayBreyona treats her father. [23] Breyona spends time with her father and communicates directly with him. She is not universally critical of him. Her wish that herparents were respectful to each other shows that her view of her mother is not idealized.

Breyona’s time is limited by her school, social,extra-curricular and work activities – as the parents anticipated, and as one might reasonably expect with a 15-year old. [24] The Corollary Relief Order suspended the regular parenting

schedule for certain special occasions: Christmas, Mother’s Day,Father’s Day and block summer access. Ms. Johnson proposed that these arrangements continue and Mr. Johnson, largely, agreed. Mr.Johnson proposed that the timing of the Christmas visit shift by three hours: he offered no reason why that should happen. I make nochange to the Corollary Relief Order’s terms relating to December 24 – December 26, Mother’s Day, Father’s Day, and block summeraccess. [25] Mr. Johnson will have first choice of the two summer weeks he wants in even-numbered years and must make his choice beforeJune 1. Ms.

Johnson will have first choice in odd-numbered years and must make her choice before June 1. They will communicatetheir choice by email. If the choice is not communicated before June 1, the other parent may make his or her choice. [26] Both agreed that Breyona’s March Break should be divided equally and she will move from one home to the other at noon onWednesday. Breyona will be with one parent from Friday after school until Wednesday at 12 noon and with the other parent fromWednesday at 12 noon until school resumes the following week.

The parent with whom Breyona is regularly scheduled to spend thefirst weekend, in accordance with the usual weekend rotation, will keep Breyona until Wednesday at noon. In this way, the weekendrotations will not be disturbed over the March Break. [27] The Easter break will be divided and alternated annually. In even-numbered years, Breyona will be with her mother from afterschool on Thursday until 6 p.m. on Saturday. The rest of the weekend (until school resumes) will be with her father. This will alternatein odd-numbered years.

[28] Each parent will make his or her own arrangements for celebrating Breyona’s birthday during his or her time with her. [29] I am adjusting Breyona’s

schedule with her father. I do this for 3 reasons: • to provide an easier

schedule by reducing the number of transitions between homes • to extend the duration of Mr. Johnson and Breyona’s together so they can develop a routine of life together and their time togetheris less fragmented • to maximize Mr. Johnson’s available time with Breyona in the context of his work schedule. [30] Mr. Johnson doesn’t work on Mondays. He works alternate Saturdays. He will have parenting time with Breyona starting afterschool on the Friday during the week when he does not work on Friday and Saturday. His time will continue until Breyona returns toschool on Tuesday.

He doesn’t work during this period, though he is involved in coaching basketball one evening during the schoolyear. Breyona need not attend the basketball practice: she is old enough and responsible enough to stay home alone. [31] Each parent may attend Breyona’s activities and may speak with Breyona no more than once each day while she is at the otherparent’s home. [32] If Breyona’s parenting time does not start or end at school, the parent whose time with Breyona is beginning will pick her up.

Prospective child support [33] Meeting children’s current financial needs has priority over meeting their past needs: Staples v. Callender, 2010 NSCA 49 atparagraphs 41-42. So, I begin with the prospective claim for child support. How should I calculate child support for Brooklynn? [34] Because Brooklynn is over the age of majority, I must first decide what approach to take in calculating child support: should childsupport be calculated under subsection 3(1) or under clause 3(2)(

b) of the Guidelines? Support is to be calculated under subsection 3(1)unless its approach is inappropriate. [35] Neither party objected to calculating Brooklynn’s support under subsection 3(1)(

a) of the Guidelines. [36] The closer a child’s circumstances match those of a child under the age of majority, the less likely the approach in clause 3(2)(a)will be inappropriate: Rebenchuk, 2007 MBCA 22, at paragraph 30. The relevant circumstances include whether the child lives at home,and whether the child earns an income or is dependent on the parents. If the child lives at home, the parent who provides the homemakes a significant contribution to the child’s support by providing the home: Wesemann, (BCSC) at paragraph 9. [37] Brooklynn does not live with either parent for most of the year.

Before she started university, Brooklynn spent most of her timeat her mother’s home. I have no evidence Brooklynn has any income to contribute to her own support, though I know she has had part-time employment in high school. Ms. Johnson’s evidence shows that she paid for Brooklynn’s university costs, her clothing, and her hairstyling. Mr. Johnson provided no evidence that he paid any of Brooklynn’s expenses. [38] The evidence shows Brooklynn is financially dependent on her mother.

On the evidence I have and in the absence of anyobjection by the parties, I conclude it is not inappropriate to approach Brooklynn’s support under subsection 3(1) of the Guidelines. What child support should be paid prospectively? [39] Having concluded that I should calculate Brooklynn’s support under subsection 3(1), I must determine the table amount ofsupport Mr. Johnson should pay for two children. [40] Mr. Johnson’s income is $31,778.00. Based on this amount, he must pay monthly child support of $481.00 based on the tables.

His payments will begin on the last day of July 2019 and will be due on the last day of each month. [41] With her affidavit, Ms. Johnson provided proof that the portion of the family health and medical insurance premiums relating tothe girls was $20.58 each month. This is a special expense under clause 7(1)(

b) of the Guidelines. Mr. Johnson didn’t have insurancecoverage for the girls at the time of the divorce and hasn’t arranged any since then. He says he can’t afford it. [42] The guiding principle for sharing special and extraordinary expenses is that they should be shared in proportion to each parent’sincome. This is a principle that guides. It is not mandatory. [43] Based on Ms. Johnson’s 2018 income of $81,480.00 and Mr. Johnson’s 2018 income of $31,778.00, Mr. Johnson should pay 28%of the monthly insurance cost. Starting on July 31, 2019 and on the last day of the following months, Mr.

Johnson must contribute $5.76to the girls’ health and medical insurance premium. [44] The monthly insurance premium is the only prospective special or extraordinary expense Ms. Johnson identified and estimated. [45] Having dealt with prospective child support, I can now look to the past. What adjustment, if any, should there be to child support from June 2017 to June 2019? During the 9-month trial period: June 2017 – March 2018 [46] The parties’ Corollary Relief Order provided there would be no “table child support” paid by either of the parents for 9 months

while they tried a shared parenting arrangement. Ms. Johnson, they agreed, would keep all taxable benefits relating to the girls. [ 47 ] The Order acknowledged that the girls’ social activities, school, extra-curricular activities, and work would take precedence over the parenting schedule. The Order also acknowledged that the girls might not follow the shared parenting arrangement at all. If that happened, either parent might have the girls in their primary care and receive no child support.

The parties accepted this possibility when they agreed that neither would pay the other “table child support” during the trial period. Their agreement was not explicit that the review of child support was to include the trial period. [ 48 ] Ms.

Johnson has offered no evidence to show that their agreement that there should be no payment of child support during the trial period should be changed so I do not order either parent to pay table child support to the other for the 9-month trial period. [ 49 ] The parents were ordered to share their daughters’ special and extraordinary expenses, and each was required to maintain health insurance for the girls. Ms. Johnson was ordered to pay 60% of the after-tax cost of the expenses and Mr. Johnson was to pay 40%. [ 50 ] Ms.

Johnson says she’s owed money for special and extraordinary expenses she financed during the 9-month trial period. [ 51 ] Special and extraordinary expenses are defined by subsection 7(1) of the Guidelines .

Special expenses are childcare costs; the portion of+ medical or dental insurance premiums attributable to the children; health-related expenses that exceed insurance reimbursement by at least $100.00 annually; and expenses for post-secondary education. [ 52 ] Extraordinary expenses are those costs relating to primary or secondary school education or other educational programs that meet a child’s particular needs, and costs for extra-curricular activities.

These costs must meet the requirements of subsection 7(1.1) of the Guidelines . [ 53 ] With her affidavit and in her Statement of Special or Extraordinary Expenses, Ms. Johnson provided receipts for clothing, footwear, and hair styling. In no way can these be considered a special or extraordinary expense. They do not fall into any of the special or extraordinary expense categories. [ 54 ] Ms. Johnson provided proof that the girls’ portion of the family health and medical insurance premiums is $20.58 each month. This is a special expense under clause 7(1)(

b) of the Guidelines . [ 55 ] Under subsection 7(1) of the Guidelines , I may order a spouse contribute to some, all or none of a child’s special or extraordinary expenses.

I am to consider the necessity of the expense in relation to the child’s best interest, the reasonableness of the expense in relation to the spouses’ means and the child’s means, and the reasonableness of the expense in relation to the family’s pre-separation spending pattern. [ 56 ] The guiding principle for sharing special or extraordinary expenses is that they should be shared in proportion to each parent’s income: subsection 7(2) of the Guidelines . Ms. Johnson’s income is more than twice Mr. Johnson’s.

Because of the discrepancy in their incomes, I find it is appropriate that he should contribute proportionately (but no more than proportionately) to the health and medical insurance Ms. Johnson maintained for the girls during the trial period. [ 57 ] Based on Ms. Johnson’s 2017 income of $ 82,368.00 and Mr. Johnson’s 2017 income of $ 40,131.00 , a proportionate sharing of the premiums means that Mr. Johnson would pay 33% of the monthly insurance cost for the 6 months in of the retroactive period that were in 2017 (July – December).

He owes $6.79 per month, and a total of $40.74 for this 6-month period. [ 58 ] Based on Ms. Johnson’s 2018 income of $81,480.00 and Mr. Johnson’s 2018 income of $31,778.00, Mr. Johnson would pay 28% of the monthly insurance cost for January through March 2018 (the last three months of the retroactive period). At a monthly contribution of $5.76, Mr. Johnson owes a total of $17.28 for these three months. [ 59 ] Ms.

Johnson also provided receipts for expenses that arise because the girls attend school: school supplies (pens, pencils, notebooks, and binders at a cost of $85.60); a ticket to the semi-formal ($10.00); student fees and locker fees ($75.00); and prom and graduation dresses and alterations ($693.99). The expense for school supplies, and student and locker fees are secondary school education costs while the dance and special occasion outfits (prom and graduation dresses) are not. [ 60 ] One of Ms. Johnson’s receipts was for Brooklynn’s tutoring ($45.00).

This cost falls into the category of “educational programs that meet the child’s particular needs”. [ 61 ] I can order that secondary school education costs and educational program costs be shared only if the costs are “extraordinary”. To be “extraordinary”, the expense must exceed what Ms. Johnson can reasonably afford or be extraordinary when I consider the cost, the nature and number of the children’s programs or activities, the children’s special needs and talents, the overall costs, and any other similar relevant factor: subsection 7(1.1) of the Guidelines. [ 62 ] Ms.

Johnson’s gross 2017 income was $81,480.00 and her gross 2018 income was $83,280.00. Expenses of $205.60 for school supplies, student fees and lockers, and tutoring are ones Ms. Johnson can reasonably cover, so these expenses are not extraordinary under clause 7(1.1)(

a) of the Guidelines . [ 63 ] Because Ms. Johnson can reasonably afford these costs, I must consider whether the costs are extraordinary according to clause 7(1.1)(

b) of the Guidelines. [ 64 ] There was no evidence of any other educational programs for the girls and no evidence of any particular needs or talents the girls have. The costs are typical ones for secondary school students. [ 65 ] I conclude that the expense for school supplies, student fees, lockers and tutoring are not extraordinary expenses that should be shared.

[ 66 ] Mr. Johnson owes Ms. Johnson $58.02 for special or extraordinary expenses of health insurance during the 9-month shared parenting trial period. After the 9-month trial period: April 2018 to June 2019 [ 67 ] The trial period ended in March 2018. From then until the present day, Breyona has spent more than sixty percent of her time living with her mother. [ 68 ] Brooklynn spent more than sixty percent of her time living with her mother until September 2018 when she moved to Antigonish and started university.

While she hasn’t lived in her mother’s primary care since September 2018, I have already determined that I should calculate Brooklynn’s support as if she was still under the age of majority. [ 69 ] Mr. Johnson’s 2018 income for child support purposes was $31,788.00. Under the tables, he must pay monthly child support of $481.00. I order him to pay this monthly amount from April 2018 until June 2019. Child support for this 15-month period totals $7,215.00. [ 70 ] Ms. Johnson wants Mr. Johnson to contribute to special or extraordinary expenses during this timeframe.

I have already established the proportionate sharing of the girls’ health insurance premiums in paragraph 43. Based on this, Mr. Johnson would owe $86.40 ($5.76 per month for health insurance premiums for the 15 months from April 2018 to June 2019). [ 71 ] Ms. Johnson wants Mr. Johnson to share the costs of dental care, university expenses, hair styling and secondary school supplies. I have concluded, at paragraphs 53 and 59-65, that hair styling and secondary school supplies are not special or extraordinary expenses, and I dismiss Ms.

Johnson’s claim for a contribution to these costs. [ 72 ] Dental care is a special expense under clause 7(1)(

b) of the Guidelines . I can order Mr. Johnson to share this cost where it annually exceeds insurance reimbursement by $100.00. Here, the 2017 dental care cost is $112.00 and a proportionate sharing means Mr. Johnson would pay 33% of it: $36.96. In 2018, Breyona had dental costs of $355.00. A proportionate sharing of this would require Mr. Johnson to pay 28% of it: $99.40. [ 73 ] University costs are also a special expense according to clause 7(1)(

e) of the Guidelines . Ms. Johnson has provided receipts for post-secondary education costs of $1,425.87, which relate to application fees, books and supplies, and a residence deposit. Unlike primary or secondary education costs, post-secondary education costs do not need to be extraordinary under the Guidelines. [ 74 ] Based on a proportionate sharing, Mr. Johnson would pay 33% of these university costs ($1,425.87 x .33 = $470.53). [ 75 ] Mr. Johnson owes Ms.

Johnson $7,215.00 for historic child support (the monthly table amount) and I have calculated an additional $693.29 proportionate contribution for health and medical insurance, dental expenses, and university costs. [ 76 ] These are large amounts for a person who earns less than $32,000.00 annually. According to his Statement of Expenses, Mr. Johnson already runs a significant deficit of $1,500.00 each month on an income of $2,649.00, though most of his expenses are modest. [ 77 ] Subsection 7(1) of the Guidelines tells me to consider the former spouses’ means when ordering a contribution.

As I have noted in paragraph 54, I can order that a contribution of some, none or all to a special or extraordinary expense. [ 78 ] Mr. Johnson’s annual income is $31,778.00. His annual Canada Pension Plan, Employment Insurance and other insurance premiums total $4,642.10. His annual income taxes are approximately $5,139.00. His annual table support payments are $5,772.00. Once these obligations are paid, he is left with $16,224.80 to support his own needs. [ 79 ] In light of his means, I conclude that Mr.

Johnson should make no contribution to the children’s prospective special or extraordinary expenses. [ 80 ] This still leaves me with the $7,215.00 that Mr. Johnson owes for his daughters’ support during the period from April 2018 to June 2018. Mr. Johnson will need time to repay this amount, but this time should not be long. The girls’ ages and their needs mean the demand for ongoing child support will increase. [ 81 ] I order that in the next three years (2020, 2021, 2022), by July 31 of the year, Darryl Johnson must pay Lynn Johnson $2,400.00 toward the past child support debt of $7,215.00.

In August 2022, Darryl Johnson must pay Lynn Johnson the final $15.00 which will fully retire the past child support of $7,215.00. Conclusion [ 82 ] With my decision, I am sending the parties my order, which is also being forwarded to the Maintenance Enforcement Program. ________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia