Parsons v. Parsons, 2012 NSSC 239

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Parsons v. Parsons, 2012 NSSC 239 Date: 2012/05/01 Docket: 1206-5452 Registry: Sydney Between: Rhonda Parsons Petitioner v. Jason Parsons Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: February 13, 2012 and April 18, 2012 in Sydney, Nova Scotia Written Decision: July 5, 2012 Oral Decision: May 1, 2012 Counsel: Alan Stanwick, for the Petitioner William Burke, for the Respondent By the Court: [ 1 ] Introduction [ 2 ] Rhonda and Jason Parsons separated after approximately two years of marriage.

Their children, 18 year old Joshua, and nine year old Tyler, have been in the split and joint custody of the parties for several years. Joshua lives primarily with his father; Tyler lives primarily with his mother.

[ 3 ] The parties were able to resolve several issues arising from their separation, including those involving parenting, division of property, and spousal support. The parties were unable to reach agreement on child support issues. [ 4 ] Issues [ 5 ] The following issues will be determined in this decision:

a) Is Joshua a child of the marriage?

b) Should income be imputed to Mr. Parsons?

c) What table amount of child support is to be paid?

d) Should child care expenses be shared between the parties? [ 6 ] Background [ 7 ] The parties were married on August 2, 2003 at Glace Bay, Nova Scotia, following approximately two years of cohabitation. The marriage was not a happy one, and separation occurred on September 15, 2005. [ 8 ] On April 12, 2007, an order issued under the provisions of the Maintenance and Custody Act and the Matrimonial Property Act . Pursuant to this order, Mr. Parsons had primary care of Joshua, while Ms. Parsons had primary care of Tyler. Mr. Parsons was ordered to pay Ms.

Parsons $25 per month, as the table amount of child support. This was based upon Mr. Parsons having an annual income of $18,500. Ms. Parsons was in receipt of social assistance income at the time. [ 9 ] On July 27, 2007, the Petition for Divorce issued on behalf of Ms. Parsons, and the relief claimed included child support. Mr. Parsons did not file an Answer until September 8, 2011. [ 10 ] Ms. Parson returned to school in 2006. She eventually became a licenced practical nurse. She began to incur child care expenses in 2008.

She filed a Statement of Special Expenses on May 5, 2010 which detailed the particulars of the child care expenses. [ 11 ] The pretrial conference was held on March 23, 2011. The divorce trial was scheduled for February 13, 2012. Just prior to the trial, Mr. Parsons made a last minute claim for undue hardship. Ms. Parsons objected. The court proceeded with the divorce trial and provided an additional court date to determine the undue hardship claim, provided Mr. Parsons perfected his application by February 27, 2012. The trial was scheduled to be concluded on April 18, 2012. [ 12 ] Mr.

Parsons did not file the documentation on time. The undue hardship claim was not perfected until April 11, 2012, many weeks after the specified deadline. No extension had been requested or granted. [ 13 ] On April 18, Mr. Parsons confirmed his intention to proceed with the undue hardship claim. In the circumstances, the court provided Mr. Parsons with two options. Option one, was to discontinue the undue hardship application. Option two, was to proceed with the undue hardship application, adjourn the trial, and have Mr. Parsons pay costs of $1,000 to Ms. Parsons. Mr.

Parsons elected to discontinue the undue hardship application. [ 14 ] The divorce trial was concluded on April 18, 2012. The matter was adjourned for decision. The oral decision was delivered on May 1, 2012. [ 15 ] Analysis

[ 16 ] Is Joshua a child of the marriage? [ 17 ] Position of the Parties [ 18 ] Ms. Parsons states that Joshua is not a child of the marriage. He is 18 years old and is no longer attending school. Joshua completed all necessary credits to graduate from high school by February 2012, although his defacto graduation will not occur until June 2012. Ms. Parsons indicates that Joshua is working full time, and Mr. Parsons was no longer supporting him. [ 19 ] Mr. Parsons submits that Joshua remains a child of the marriage. Joshua continues to live with Mr. Parsons. Mr.

Parsons continues to pay shelter related expenses and other costs for Joshua. Mr. Parsons states that Joshua plans to attend community college, although he had not yet applied to any program. [ 20 ] Decision [21] Section 2(1) of the Divorce Act defines a child of the marriage as follows: “child of the marriage” means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [22] Under this definition, to be classified as a child of the marriage for support purposes, Joshua must not have withdrawn from parental charge because he is under the age of majority. [23] Although Joshua is working full time, he still remains in the home of Mr. Parsons. Mr. Parsons provides shelter and other expenses for Joshua. Joshua will not be graduating until June 2012.

He may, or may not, pursue post secondary education in September. [24] I have reviewed the submissions of the parties, and the case law stated in those submissions, as well as s. 2(1) of the Divorce Act . I find that Joshua remains a child of the marriage at this time because his life is in transition. He is not yet 19 years of age. He has not graduated from high school. His long term plans are not yet confirmed. [25] In addition to Joshua ’ s educational pursuits being in a state of flux, there were also concerns raised about Joshua ’ s living arrangements.

There was some discussion that Joshua may move out of his father ’ s home and into an apartment, which he may share with another person. If that occurs, while Joshua is working on a full time basis, then Joshua ’ s status may change. [26] Because Joshua ’ s circumstances are so unsettled at the present time, the court will

schedule a review hearing in October, 2012 to determine Joshua ’ s ongoing status. However, at present, he remains a child of the marriage because he is under the age of majority, is living with his father, and has yet to graduate from high school. There is no suggestion that Joshua is involved with drugs, alcohol, or any other unhealthy lifestyle. Rather, the evidence confirms that Joshua is in transition. He is attempting to determine his future. In such circumstances, a review date is appropriate. In the meantime, child support obligations will continue for Joshua. [27] Should income be imputed to Mr. Parsons?

[28] Ms. Parsons seeks to impute income to Mr. Parsons for two reasons. First, she states that Mr. Parsons is under-employedbecause he quit a more lucrative job for employment that paid less money. Second, Mr. Parsons earns income on a “cash basis” in hisparents’ garage and does not report this income to Revenue Canada. [29] Mr. Parsons denies these claims. He states that his health has negatively impacted on his employability. Mr. Parsons statesthat he has serious health problems that prevent him from bending, lifting, and working to the degree that was required at the higherpaying job. Mr.

Parsons indicates that he has experienced back problems for the past 15 to 16 years, that he usually takes Tylenol for hispain, and that he has seen medical doctors for treatment from time to time. Mr. Parsons says that he is not under-employed. [30] Mr. Parsons also denies that he engages in the cash economy. [31] Law [32]

Section 19 of the Guidelines provides the court with the discretion to impute income in specified circumstances. The followingprinciples are distilled from case law: a. The discretionary authority found in s.19 must be exercised judicially, and in accordance with rules of reasons and justice, notarbitrarily. A rational and solid evidentiary foundation, grounded in fairness and reasonableness, must be shown before a court canimpute income: Coadic v. Coadic 2005 NSSC 291. b. The goal of imputation is to arrive at a fair estimate of income, not to arbitrarily punish the payor: Staples v. Callender, 2010 NSCA49. c.

The burden of establishing that income should be imputed rests upon the party making the claim, however, the evidentiary burdenshifts if the payor asserts that his/her income has been reduced or his/her income earning capacity is compromised by ill health:MacDonald v. MacDonald, 2010 NSCA 34; MacGillivary v. Ross, 2008 NSSC 339. d. The court is not restricted to actual income earned, but rather, may look to income earning capacity, having regard to subjective factorssuch as the payor's age, health, education, skills, employment history, and other relevant factors.

The court must also look to objectivefactors in determining what is reasonable and fair in the circumstances: Smith v. Helppi 2011 NSCA 65; Van Gool v. Van Gool,(1998), (BC CA), 113 B.C.A.C. 200; Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532 (S.C.);Saunders-Roberts v. Roberts, 2002 NWTSC 11; and Duffy v. Duffy, 2009 NLCA 48. e. A party's decision to remain in an unremunerative employment situation, may entitle a court to impute income where the party has agreater income earning capacity. A party cannot avoid support obligations by a self-induced reduction in income: Duffy v. Duffy, supra;and Marshall v.

Marshall, 2008 NSSC 11. [33] In Smith v. Helppi 2011 NSCA 65, Oland J.A. confirmed the factors to be balanced when assessing income earning capacityat para. 16, wherein she quotes from the decision of Wilson J. in Gould v. Julian 2010 NSSC 123. Oland J.A. states as follows: 16 Mr. Smith argues that the judge erred in imputing income as he did. What a judge is to consider in doing so was summarized inGould v. Julian, 2010 NSSC 123 (N.S.S.C.), where Justice Darryl W.

Wilson stated: Factors which should be considered when assessing a parent's capacity to earn an income were succinctly stated by Madam JusticeMartinson of the British Columbia Supreme Court, in Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532, asfollows:

1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor". ... 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances.

The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability to work, freedom to relocate and other obligations. 3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at a lower end ofthe wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply becausethe parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6.

As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. ... [33] In Nova Scotia, the test to be applied in determining whether a person is intentionally under-employed or unemployed isreasonableness, which does not require proof of a specific intention to undermine or avoid child maintenance obligations. [34] In Gill v. Hurst 2011 NSCA 100, Bryson J.A. affirmed the trial judge's decision, [2010] N.S.J. No. 645, to impute incomewhere the father's attempt to justify his under-employment for health and educational reasons was rejected: paras. 30 and 31.

In addition,Bryson J. held that the trial judge made no error by imputing the "modest sum" of $25,000 to the father. [35] In reviewing the under-employment issue, this court will follow the three pronged analysis suggested in Drygala v. Pauli, (ON CA), [2002] O.J. No. 3731. First, I will determine whether Mr. Parsons is under-employed. Second, I willcanvas whether this is caused by the health needs of Mr. Parsons. Third, if not, I will decide what quantum of income should beimputed. [36] Step One: Under-Employment Findings [37] Ms. Parsons has proven on a balance of probabilities, that Mr.

Parsons is, and was, under-employed for a number of reasons,including the following:

a) Mr. Parsons is earning about $10,000 less in 2012 than he did in 2010, when he worked full time with J. S. Lewis Sales Limited.J.S. Lewis Sales Limited had been Mr. Parson’s employer for over five years. In 2010, Mr. Parsons earned $36,845.39; in 2009, $32,277;and in 2008, $34,407.

b) Mr. Parsons quit his job with J. S. Lewis Sales Limited in 2011. He was not fired or laid off. Mr. Parsons said that his employerwas fully satisfied with his performance.

c) In 2011, Mr. Parsons earned $26,881. His current income is approximately $27,000.

d) Mr. Parsons’ reduction in income is self-induced.

d) Mr. Parsons ’ reduction in income is self-induced.

e) The evidence produced does not support a finding that Mr. Parsons engages in the cash economy. Suspicion does not displace the balance of probabilities ’ burden. [38] Step Two: Reasonable Health Needs of a Parent [39] Mr. Parsons did not prove that his reasonable health needs prevented him from working to his capacity. In M.(L.A.) v. M. (K.G.) 2000 ABQB 80 , Smith J. stated that an applicant must show a meaningful link connecting that party's health needs to the inability to work, at para. 33.

Smith J. imputed income of $25,000 despite the father's serious heart condition because the relevant evidentiary nexus was lacking. [40] In MacDonald v. Pink , 2011 NSSC 421 , this court held that a father did not prove that his reasonable health needs prevented him from working to his capacity in the absence of credible medical evidence. [41] In McKinnon v. Serroul 2011 NSSC 386 , MacLellan J. imputed income to a father where he failed to produce medical evidence to support his contention that he was unable to work because of health problems. [42] In MacGillivary v.

Ross 2008 NSSC 339 , this court imputed income to a father in the absence of medical evidence confirming an inability to work. Income of $24,000 was imputed. [43] In Vanbeek v. Vanbeek [2008] O.J. No. 2004 (Ont. S.C.J.) , the court held that the father did not establish that health issues prevented him from working full-time, although the medical evidence did corroborate pain and physical limitations. Income in the amount of $25,000 was imputed. [44] In Dicks v. Dicks [2001] N.S.J.

No. 302 , Murphy J. imputed income in the amount of $21,000 where the medical evidence confirmed that the father would have to limit his employment choices to those involving "non-strength activities." The evidence did not prove that the father was incapable of work. [45] In Pamma v. Pamma , 1999 CarswellBC 2227 (B.C.S.C.) , Loo J. refused to "make a quantum leap" and say that the father could not work based on the evidence. The evidence consisted of a list of medications being taken, together with the viva voce evidence supplied by the father. No medical opinion was proffered.

Income of $50,000 was deemed. [46] An opposite result is found in Bourque v. Gerlach , [2006] B.C.J. No. 677 (C.A.) . In that case, Rowles J.A. reversed the trial decision, which imputed income to a parent, because of the expert opinions from psychiatrists, including an independent examination, which confirmed that the parent suffered from long standing panic disorder, anxiety, and recurrent depression which was not amenable to treatment. In light of the substantial medical evidence, a link connecting the health needs to the inability to work had been made. [47] Likewise, Mr.

Parsons did not produce any independent medical evidence linking his health difficulties to an inability to work. The limited evidence which was produced came from Mr. Parsons. The evidence was far from clear, convincing, and cogent as required by C.(R.) v. McDougall , 2008 SCC 53 , per Rothstein J. Mr. Parsons did not lead credible evidence to displace the burden upon him. [48] Step Three: Amount of Income Earning Capacity [49] The burden once again falls upon Ms. Parsons to prove the quantum of Mr. Parson ’ s income earning capacity. The evidence is clear that Mr.

Parsons earned approximately $37,000 in 2010, his last year of full time employment with J.S. Lewis Sales Limited. I therefore find that Mr. Parsons has an income earning capacity of approximately $37,000 per annum.

[50] What table amount of child support is to be paid ? [51] This is a split custody situation and so recourse must be made to s. 8 of the Guidelines which states as follows: 8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses. [52] Ms. Parsons ’ income is approximately $40,000 per annum. Ms. Parsons is employed as an LPN with Taigh Na Mara and New Dawn.

Her position is casual, although there have been times when she has obtained temporary, full time postings. She pays union dues, and has no set employment schedule. [53] Ms. Parsons is diligently seeking full time employment. She is working to capacity by taking all shifts that become available. Further, Ms. Parsons was unemployed for a period of time because of injuries she sustained in a motor vehicle accident. She received various insurance benefits, as well as a lump sum payment during her convalescence. I am satisfied that Ms. Parsons ’ s income is $40,000 per annum. [54] Ms.

Parsons is thus required to pay $336 per month to Mr. Parsons for Joshua, while he remains a child of the marriage. Mr. Parsons ’ current income is $37,000 per annum. He is required to pay child support of $311 to Ms. Parsons for Tyler. The set off between the two payments is $25 per month due from Ms. Parsons to Mr. Parsons, subject to the s. 7 child care expense claim.

This payment is due on the 15 day of each month, commencing July 15, 2012. [55] Neither party pursued a retroactive claim for the payment of the table amount of child support. [56] Should child care expenses be shared between the parties? [57] Ms. Parsons seeks s. 7 child care expenses for Tyler. She is seeking a retroactive reimbursement from 2008 onward. Mr. Parsons disagrees with the figures presented, and with the claim. [58]

Section 7 of the Guidelines provides the court with the jurisdiction to grant a discretionary award. The burden rests upon the party asserting the claim. Proof is on a balance of probabilities, and based upon clear, cogent, and convincing evidence. The s. 7 analysis is fact specific, and must be determined on a case by case basis, taking into consideration the necessity and reasonableness of the expense, and the obligation of the noncustodial parent to contribute to the expense: Staples v.

Callender , 2010 NSCA 49 , at para. 32 . [59] I find that the child care expenses are necessary in relation to Tyler ’ s best interests. Tyler is unable to care for himself while Ms. Parsons works. The child care expenses are, and were, reasonable in the circumstances. It is appropriate that both parties contribute to the child care expenses on a pro rata basis, based upon their incomes, less the income tax benefit associated with the claim. [60] I also find that a retroactive award is appropriate in the circumstances of this case for the following reasons:

a) Ms. Parsons raised the issue of child support under the Divorce Act once she filed the Petition in 2007.

b) Ms. Parsons did not unreasonably delay making the claim. She is not responsible for the systemic delay in having the divorce processed.

c) Mr. Parsons was aware that Ms. Parsons was paying child care expenses, yet refused to contribute after Ms. Parsons requested contribution. In so doing, he acted in a blame worthy fashion. Ms. Parsons had reentered the work force and required child care.

d) Ms. Parson ’ s budget was limited. I infer this negatively impacted on Tyler. Mr. Parsons, on the other hand, was living in an apartment in his parents ’ home and was in a position to contribute to the child care expenses.

e) Mr. Parson will be able to pay for his share of the retroactive claim, if the payment is distributed over time. Mr. Parsons will contribute $100 per month towards the retroactive child care expenses. [61] The exact quantum of child care to be paid is dependant upon three factors: the incomes of the parties; the quantum of the child care expenses; and the income tax benefit associated with the child care deduction. The income and child care expenses are set out in the following charts. [62] The income of the parties since 2008 for child support purposes is: Ms. Parsons Mr.

Parsons 2008 $26,501 2008 $34,407 2009 $24,124 2009 $32,277 2010 $40,790 2010 $36,845 2011 $40,000 2011 $37,000 2012 $40,000 2012 $37,000 [63] The child care expenses incurred by Ms. Parsons from 2008 onward are as follows: 2008 Sherry Parsons $150 x 12 = $1,800 Town Daycare $483.30 Subtotal $2,283.30 2009 Sherry Parsons $150 x 8 = $1,200 Katie Hillman $725 Town Daycare $1,569.25 Subtotal $3,494.25

2010 Sherry Parsons $210 Katie Hillman $1,600 Town Daycare $2,169.74 Subtotal $3,979.74 2011 Katie Hillman $1,465 Town Daycare $2,363.52 Subtotal $3,828.52 Total Child Care To 2011 $13,585.81 [64] Ms. Parsons works shifts, overtime, and has an unpredictable work schedule. As a result, the quantum of child care required monthly will vary. Child care for 2011 was less than would be expected because Ms. Parsons was off work for a period of time. [65] Despite these variances, I must nonetheless set an appropriate child care figure based upon the evidence before me.

I find that $4,300 per annum is a reasonable figure in the circumstances. If child care expenses change to any significant degree, either party may seek a variation. [66] After the oral decision was rendered, counsel provided the court with calculations for the pro rata distribution of the child care expenses. There was substantial agreement on the figures for 2008 and 2009. Based on counsels ’ calculations, Mr. Parsons owes Ms. Parsons child care expenses as follows: 2008 $ 910 2009 $1,332 Based upon the software program, Mr.

Parsons ’ share of the child care expenses, after deducting the tax savings, is as follows for each of the remaining years: 2010 $ 940 2011 $ 972

2012 $ 580 (January to June) The total retroactive, child care contribution due from Mr. Parsons to Ms. Parsons is $4,734. This will be paid in monthly installments of $100 until the award is paid in full. In addition, the ongoing monthly contributions for child care is $97 commencing July 28, 2012, and continuing monthly thereafter. Ms. Parsons will supply Mr. Parsons with proof of the child care payments in June of each year. Ms. Parsons will also notify Mr. Parsons, in writing, when there is a substantial change in the child care expense. [67] Conclusion [68] The following relief is hereby granted:

a) A divorce based upon a permanent breakdown in the marriage, as evidenced by the one year separation.

b) A shared and joint custody arrangement pursuant to the agreement of the parties.

c) An order confirming no spousal support will be payable by either party.

d) An order imputing income to Mr. Parsons in the amount of $37,000, and confirming an annual income of $40,000 to Ms. Parsons.

e) An order requiring Ms. Parsons to pay Mr. Parsons $25 per month in child support to be set off against the $97 owed to Ms. Parsons by Mr. Parsons, such that the net payment due is $72 per month, commencing July 15, 2012 and continuing monthly thereafter.

f) An order confirming the retroactive payment of child care expenses in the amount of $4,734 to be paid by Mr. Parsons, in monthly installments of $100, commending July 28, 2012 and continuing monthly thereafter.

g) An order confirming that each party will continue to name both children on their medical, dental and drug plans available through their present or subsequent employers, and they each must ensure that the other party is reimbursed without delay after a receipt is delivered by the other party for submission to the insurer.

h) A review date will be assigned to determine Joshua ’ s status as a child of the marriage. Affidavits will be filed by the parties 14 days prior to the court hearing, as well as briefs in support. Counsel are to contact scheduling to arrange for the court date.

i) The usual disclosure requirements and enforcement provisions will apply and will form part of the corollary relief order.

j) If an application is to be made on the issue of costs, written submissions are to be provided by July 18, 2012. [69] Mr. Stanwick will prepare the order. If drafting issues arise, counsel may contact the court to arrange for a brief chamber ’ s appearance.

Forgeron, J.