Gill v. Janes, 2021 NSSC 294

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Gill v. Janes , 2021 NSSC 294 ENDORSEMENT October 18, 2021 Tessa Marie Gill and Mark Christoper Janes, Court File No,: 1201-69326

(99737) Application: Ms. Gill’s requests: Tessa Gill filed a Notice of Application in January 2020. She requested the court vary the Recalculated Order dated December 9, 2019, then later requested recalculation back to December 2017. The order originally authorizing recalculation of child support was issued on December 12, 2017. - Ms. Gill claimed Mr. Janes had avoided paying the appropriate amount of child support by undereporting his income for two years. Ms.

Gill sought a retroactive award of $2,357.40 for 2018; $2,673.64 in 2019; $1,808.64 for 2020; and $2,457.28 for the period between January 2021 and August 2021, for a total of $9,296.96. - Ms. Gill requested the Court adjust Mr. Janes’ payment for the Boys and Girls before and after club, accounting for full time enrollment in the summer, suggesting a yearly cost of $5119.00 for 2020, in November 2018 she had agreed her “gross average payment for child care was $304.00 each month”. - Ms. Gill requested Mr. Janes be ordered to pay a share of their son’s portion of medical and dental insurance premiums. Mr.

Janes’ requests: Mr. Janes filed a Response to Variation Application on July 21, 2021. He requested I vary the Consent Corollary Relief Order dated April 24, 2017. Parenting - Mr. Janes requested I vary the parenting arrangement to a week on, week off parenting arrangement, ordering the parties’ son to live with the parties equally. Mr. Janes also requested I adjust other specified parenting time and that I grant an order changing the school the parties’ son was attending. At trial Mr. Janes stated he was no longer requesting a change in the child’s school placement. - Mr.

Janes argued that his circumstances had changed since the parties had separated and as evidence of a change of circumstances he reported having a stable job and wanting to see the parties’ son more frequently. He further stated: o He could not drop their son at his school after his current parenting time, presumably during any week day parenting time, and that he would need to drop the parties’ son at Ms. Gill’s’ home, with her spouse, as Mr. Janes needed to be at work by 7:00 am. o I dismissed Mr. Janes’ application to vary parenting, finding that Mr.

Janes had not proven a change to the “child’s circumstances” and / or that it was in “child’s best interests” to vary the parenting arrangement based on the history of care and Mr. Janes’ representations. Child support - Mr. Janes indicated he could not afford to pay a retroactive award of child support. He did not file a Statement of Expenses or provide sufficient information to support his claim. - Mr. Janes argued that in November 2018 there was an agreement between the parties regarding his income and the Court should not disturb that agreement. I find the agreement reached setting Mr.

Janes’ income at $17,440 in November 2018 was in reference to s.7 expenses only “for the purpose of making an order for payment of special or extraordinary expenses”. - Mr. Janes sought to retroactively adjust payments for child care while day care facilities were closed during the pandemic. I found

there were no child care expenses between March 2020 and June 2020. Decision: Parenting: 1. Mr. Janes’ application to vary the existing parenting arrangements is dismissed. Prospective child support (September 1, 2021, onward) 2. As of September 1, 2021, based on Mr. Janes’ 2020 annual income for child support of $40,416.17, Mr. Janes shall pay the table amount of child support of $344.67 per month, or $159.08 every two weeks, and a share of child-care expenses of $135.00 per month, or $61.31 every two weeks, for Aidan’s before and after school care, for a total monthly payment of $479.67. 3. Mr.

Janes shall also pay Aidan’s portion of medical and dental insurance premiums. Prospective child support (January 1, 2020 – August 31, 2021) 4. Between January 1, 2020, and August 31, 2021, based on Mr. Janes’ 2020 annual income for child support of $40,416.17, Mr. Janes should have paid the table amount of child support of $344.67 per month, and $135.00 per month for child-care January 1, 2020, through March 31, 2020, and July 1, 2020, through August 31, 2021. There were no child-care expenses between April 2020 and June 2020. For the period of January 1, 2020, through August 31, 2021, Mr.

Janes owes child retroactive child support of approximately $3,493.04 . 5. The Maintenance Enforcement Program shall adjust the approximate amount owing of $3,493.04, by deducting any further child support payments paid by Mr. Janes after June 1, 2021, and on or before August 31, 2021 . A copy of the Maintenance Enforcement Program record shall be sent to the Court and to the parties. Retroactive recalculation (January 1, 2019, through December 31, 2019) 6. Between January 1, 2019, and December 31, 2019, based on Mr. Janes’ 2019 approximate annual income for child support of $45,689, Mr.

Janes should have paid the table amount of $388.93 per month from January 1, 2019, through December 31, 2019, and $135 per month for child-care throughout 2019, for a total retroactive award of $3,462.16 in 2019. Retroactive recalculation (January 2018, through December 31, 2018) 7. Between January 1, 2018, and December 31, 2018, based on the parties’ agreement, by Consent Variation Order issued December 12, 2017, Mr. Jane’s approximate annual income for child support beginning December 1, 2017, was $25,769.00. Mr.

Janes would have owed seven payments of $25 to pay off a previous retroactive award, $200 per month for the table amount of child support, and $135 per month for 2 months for a total owing of $14. 8. The total retroactive amount owed by Mr. Janes is $6,970.16 minus any payments he has made between after June 1, 2021 up to and including payments made August 31, 2021. Reasons: Introduction 1 . The parties were married in August 2009, and they separated August 12, 2015. The parties have a 9 year old son born in September 2012. 2 . A Consent Corollary Relief Order and a Divorce Order were both granted in April 2017.

In part, Mr. Janes was ordered to “notify Ms. Gill immediately upon obtaining employment for the purposes of determining the table amount of child support”. On September 22, 2017 Mr. Janes filed a Notice of Variation Application claiming Mr. Janes started work in June 2017. 3 . On November 21, 2017 the parties attended a conciliation meeting. A Consent Variation Order was granted and issued on December 12, 2017.

a. On November 2, 2017, Mr. Janes filed a Statement of Income suggesting his income would be around $33,037.55. However, he argued that his estimated income did not account for “fluctuating work hours over the course of a full year”. b. The parties agreed to a finding that Mr. Janes had an “estimated annual income for the table amount of child support of $25,769.00”. Mr. Janes was ordered to pay

section 3 table amount child support of $200.00 per month or $92.31 every two weeks commencing December 1, 2017, with a provision for enrolment in the recalculation program. 4 . On August 10, 2018 Ms. Gill filed a Notice of Variation Application. She sought to vary child support: specifically special or extraordinary expenses only. A Consent Variation Order was granted and issued November 8, 2018. 5 .

The November 8, 2018 Consent Variation Order stated in part: “For the purpose of making an order for payment of special and extraordinary expenses … Mark Janes’ 2017 income is $17,440” and “The terms of the Corollary Relief Judgement issued on April 24, 2017, and the Consent Variation Order issued December 12, 2017, continue to be in force and effect except where changed by this Order.” 6 . On September 17, 2018 Mr. Janes filed his T4 for 2017 indicating his employment income was $17,440.56. On September 28, 2018 Mr.

Janes filed a Statement of Income suggesting an approximate income of $30,414.72, however he claimed that amount did not necessarily reflect what he would earn that year. In November 2018 Mr. Janes was ordered to pay child care expenses of $135.00 per month based on an income of $17,440, or $62.00 every two weeks starting November 2, 2018. Mr. Janes’ income for 2018 was $32,207. 7 . Ms. Gill was asked to file two tax returns (one with and one without child care included).

She filed two federal tax summaries indicating that in a “typical year” her refund without child care included was $4,866.67 and with child care approximately $7,030.13, for a difference of $2,163.46. Ms. Gill claimed in her Statement of Special or extraordinary expenses that the overall cost for child care was approximately $5,119.00 per year. 8 . After subtracting Ms. Gill’s child care tax refund of approximately $2,163.46 per year, the approximate real cost for child care is $2,955.54.

The parties have similar incomes, and I find the payment by both parties of approximately $135 per month for child care was adequate in the past, and will be adequate to meet Aidan’s ongoing needs until he no longer requires before and/or after school care. Retroactive recalculation/Recalculated Orders Order December 2018 9 . A Recalculated Order was issued in December 2018. The recalculation program used Mr. Janes 2017 Notice of Assessment to fix his income for the table amount of child support, despite the parties’ agreement to use $25,769 as of December 2017. 10 . The recalculation clerk adjusted Mr.

Janes’ income from the estimated $25,769.00 for 2018 to $17,440 for 2017, to adjust the prospective table amount of child support payable by Mr. Janes. Mr. Janes’ table amount payments were reduced from $200 per month to $110 per month or $50.76 every two weeks beginning December 28, 2018 onward. 11 . Mr. Janes’ income for 2018 was $32,207 attracting a table amount child support payment of $275.78 per month. It would be unfair to allow the Recalculated Order issued in December 2018 to stand as is. I find Mr. Janes was aware of his income at that time and should have paid

section 3 child support accordingly. Order December 2019 12 . A further Recalculated Order was issued in December 2019. It was issued after Mr. Janes failed to disclose his financial information as requested by the recalculation clerk. The recalculation program relied, once again, on his reported income of $17,440 for 2017. However, this time the recalculation clerk added 10% due to Mr. Jane’s failure to disclose his financial information. The recalculation clerk found his income to be $19,184.00 for a table amount of child support payment of $135 per month or $62.30 every two weeks. 13 . In January 2021 Mr.

Janes filed his Notice of Assessment for 2019. Mr. Janes’ income for 2019 was $45,689, (including the net amount of Worker’s Compensation Benefits received). His income of $45,689 attracts a table amount child support payment of $388.93 per month. It is contrary to public policy for Mr. Janes to benefit by not filing his financial information or to be permitted to pay less

than the table amount owing as agreed or according to his actual income. 14 . At trial I must use the most accurate income information available for each year. I allowed the parties agreement to set his income as $25,769.00 for 2018 to stand, but I used Mr. Janes actual income, not the “previous year method” available by agreement or used by the recalculation cleark, to recalcuate the table amount of child support owing for 2019 and 2020. Prospective child support 2020 15 . On March 17, 2020 Mr. Janes filed a sworn Statement of Income claiming his income for 2020 would be $24,373.44.

However, on January 25, 2021, he provided his three most recent paystubs. His pay stub from his employer dated December 24, 2020 indicated he had earned $40,416.51 up to his pay period ending December 19, 2020. Mr. Janes mislead the Court when filing his Statement of income in March 2020. Analysis Should I order retroactive child maintenance? 16 . At trial Ms. Gill asked that I order Mr. Janes to pay retroactive child support from November 2017 to date. Retroactive child support was previously dealt with for the period between July 2017 and November 2017. 17 . Ms.

Gill is requesting I consider a period less than three years before she filed her application in January 2020. Her request is supported by case law including DBS v. SRG; LJW v. TAR; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , at paragraph 123 , and most recently the S.C.C. case of Michel v. Graydon, 2020 SCC 24 . 18 . In deciding whether to exercise my discretion to award retroactive child support, I must consider: Ms. Gill’s delay in seeking to change Mr. Janes’ child support payments; whether Mr.

Janes has acted in a blameworthy way; Aiden’s circumstances when the child support ought to have been paid; and whether a retroactive award would cause Mr. Janes any undue hardship. 19 . While the words “undue hardship” are used in the context of a retroactive child support claim, they do not have the strict meaning provided by

section 10 of the Child Support Guidelines in this context. Ms. Gill’s delay 20 . Ms. Gill formally asked for disclosure of Mr. Janes’ yearly income and his employer information “on a number of occasions”, including when the parties were before the court in the spring and fall of 2017, in the summer of 2018 and fall of 2018, and when Ms. Gill filed her Notice of Application in January 2020. 21 . In 2019 the recalculation program sought financial disclosure from Mr. Janes and was forced to rely on information which was clearly dated. Mr.

Janes did not challenge this evidence but argued in essence a deal is a deal, and if they relied on the wrong information so be it. 22 . Ms. Gill has shown that she did not unreasonably delay seeking increased support from Mr. Janes. Mr. Janes’ conduct 23 . When Ms. Gill asked Mr. Janes about his income and increasing the table amount to child support he told her he would only discuss the issue in the context of discussing Mr. Janes having more time with their son. Mr. Janes did not challenge this evidence. 24 . Mr.

Janes was directed to provide the recalculation clerk with his full financial information near the end of 2018 and 2019. Mr. Janes’ income information for 2018, 2019, and 2020 is more than likely incomplete, and was incomplete when the recalculation clerk was tasked with recalculating the Orders. The Recalculation Orders were not a fair representation of Mr. Janes’ real income in 2018 and 2019. Mr.

Janes Statement of Income filed in late 2020 was not a fair representation of his income that year, and his direct deposit document may not fully reflect all benefits he receives including any Employment Insurance Benefits or Worker’s Compensation Benefits. 25 . Mr. Janes did not voluntarily increase his child support payments when he knew his income had increased in 2019. However, he did increase his child support payments somewhat after Ms. Gill filed her Notice of Application in January 2020.

26 . Mr. Janes has advanced his interest over Aiden’s by failing to adjust his payments as his income has increased. 27 . I conclude that Mr. Janes’ conduct has put his interests ahead of his son’s in failing to disclose his income and increase his child maintenance amount. The child’s circumstances during the retroactive period 28 . Mr. Janes argued that he can not afford to pay a retroactive award. Mr. Janes did not provide a Statement of Expenses or sufficient detail regarding his personal financial circumstances or his families’ financial circumstances, for me to assess his ability to pay. As noted above, Mr.

Janes did start paying additional child support in or around January 2020, and I have no reason to believe he cannot pay child support as ordered. 29 . Ms. Gill works at Northwood. She did not file a Statement of Expenses either. She did file documentation indicating she earned $38,127 in 2017; $37,749 in 2018; $38,332 in 2019. Her income is lower than but comparable to Mr. Janes’ income. 30 . Ms. Gill filed Statements of Special or Extraordinary Expenses on January 10, 2020, and on February 26, 2020. She requested Mr. Janes contribute to child-care expenses, suggesting a yearly cost of approximately $5119.00.

After considering the parties’ respective incomes, and the tax refund available to Ms. Gill for child-care, I have found that Mr. Janes was making an appropriate contribution to Aidan’s child-care needs and that a contribution of $135.00 per month is sufficient going forward. 31 . I find that Aidan’s circumstances, during the retroactive period, support making a retroactive award dealing with the table amount of child support only and not child care. Whether Mr. Janes would experience undue hardship if he was ordered to pay retroactive child maintenance 32 . Mr.

Janes said it would cause undue hardship if he was forced to pay the correct amount of child maintenance from January 2019 to August 2021. As noted above, Mr. Janes did not provide sufficient information for me to assess his family’s regular expenses or any undue hardship. 33 . I have found that the parties earn comparable incomes, and their family circumstances appear to be relatively similar. 34 . Based on Mr. Janes actual annual income in 2018, 2019, and 2020, Mr. Janes’ past child support obligation would be $18,350.12 to August 2021. Up to June 1, 2021, Mr. Janes paid $11,379.96.

The shortfall, without accounting for payments made later in June, or in July or August 2021 is $6,970.16. Year Income Monthly child support Annual amount due 2018 December 2017: Agreed his income for s. 3 was $25,769 November 2018: Agreed his Income for s. 7 special expenses was $17,440 . Actual income $32,207 Ordered to pay $250 retro (7 x 25) retro = $175;

Section 3 $200 x 12 s. 3: $2,400. Child-care as of November 2018 $135 s.7 x 2 = $270 = $2,845; paid $2,859.96 = paid $2,859.96 – 2,845 = $14.96 owing 2019 $45,689 estimated (including $7,850 WCB): Ordered to pay ($110 x 12 s.3) = $1,320 as of December 28, 2018 – December 13, 2019; ($135 x 12 s.7) = $1,620; paid $2,825 Should have paid: ($388.93 x 12) = $4,667.16 + ($135 x 12) = $1,620 = $6,287.16 - $2,825 = $3,462.16 owing

2020 $40,416.51 estimated Ordered to pay ($135 x 12 s.3) = $1,620 + ($135 x 12 s.7) = $1,620 = $3,240; paid $4,315.00 Should have paid: ($344.67 x 12 s.3) = $4,136.04 ($135 x 9) $1,215 = $5,351.04 – paid $4,315.00 = $1,036.04 owing 2021 $40,416.51 estimated Ordered to pay $135 x 8 s.3 = $1,080 to August + $135 x. 8 s.7 = $1,080 to August = $2,160 to August 2021, paid $1,380 to June 2021 Should have paid to August 2021: ($344.67 x 8 s.3) = $2,757.36 ($135 x 8) $1,080 = $3,837 – $1,380 = $2,457 owing Total amount due (minus payments made after June 1 – Aug 31, 2021 $18,350.12 to Aug 2021 Less amounts paid $11,379.96 to June 2021 Unpaid shortfall $6,970.16 35 .

I find it is appropriate to order Mr. Janes to pay retroactive child support. I fix the amount at $6,970.16 minus any payments made after June 1, 2021, in July 2021 or in August 2021. I order that Mr. Janes pay the adjusted amount to Ms. Gill. Additional terms: 36 . Finally, I order that Mr. Janes annually provide Ms. Gill with a copy of his personal income tax return and all schedules and attachments each year by October 31. This will begin October 31, 2021. 37 . This order shall be subject to automatic recalculation. 38 .

This order shall be registered for enforcement through the Maintenance Enforcement Program. Cindy G. Cormier, J.S.C.(F.D.)