DB Applicant And: HMB Respondent, 2019 NLSC 105

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation: DB v. HMB 2019 NLSC 105 Date: May 17, 2019 Docket: 201102F1067 Between: DB Applicant And: HMB Respondent Before: Justice Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 20, 21 and 22, 2019 Appearances: Sandra M. Burke, QC Appearing on behalf of the Applicant HMB Self-Represented Authorities Cited: CASES CONSIDERED: Drygala v. Pauli (2002), (ON CA), 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, (Ont.C.A.); Lavie v. Lavie, 2018 ONCA 10; D.(D.R.) v.

M.(J.), 2004 ABQB 194; Moge v. Moge, (SCC), [1992] 3 S.C.R. 813,99 D.L.R. (4th) 456 (SCC); McKenzie v. McKenzie, 2014 BCCA 381; Nadeau v. M.N.R. (S.C.A.), 2003 FCA 400; D.B.S. v. S.R.G., 2006

SCC 37 (S.C.C.); Kerr v. Baranow, 2011 SCC 10; MacKinnon v. MacKinnon (2005), (ON CA), 199 O.A.C. 353,256 D.L.R. (4th) 385, (Ont. C.A.); Locke v. Goulding, 2012 NLCA 8; Fisher v. Fisher, 2008 ONCA 11 STATUTES CONSIDERED: Children’s Law Act, R.S.N.L. 1990, c. C-13; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D. (Family Law Rules); Federal Child SupportGuidelines, S.O.R./97-175 OTHER: Spousal Support Advisory Guidelines REASONS FOR JUDGMENT MacDonald, J.: INTRODUCTION [1] DB is an instructor at a postsecondary institute. He is now 46.

HMB is a registered nurse with Healthcare. She is now 45. [2] DB and HMB married on […], 2001 after a short cohabitation. They separated on November 25, 2011 and divorced onOctober 23, 2017. They had two children, JB who was born on […], 2003, and GB, who was born on […], 2008. DB is the children’sprimary parent. [3] In 2016, HMB began cohabitating with her new partner, KM. The couple have a son, who was born on […], 2017. [4] The parties agreed on basic child support from the date of separation to and including June 1, 2014 and matrimonial propertyissues. [5] I am to decide: (

a) What amount of basic child support should HMB pay DB from July 1, 2014 to December 31, 2018? On what basis shouldshe pay basic child support from then? (

b) What amount of

section 7 expenses should HMB pay DB from January 1, 2012 to December 31, 2018? On what basis shouldthe parties pay

section 7 expenses from then? (

c) Is HMB entitled to spousal support from DB and, if so, in what amount and for what duration? (

d) Should HMB pay a different amount of child support because she suffers undue hardship? [6] DB asks me to impute additional income to HMB because Healthcare fired her in 2013 for a breach of its confidentialitypolicies. She worked as a nurse in indigenous health facilities in northern Manitoba in 2014, 2015 and 2016 until Eastern Heath reinstatedher in 2017. [7] HMB asks me not to impute income and to conclude her child support obligations to her first family as it has caused her tosuffer undue hardship. [8] I find that: (

a) HMB shall pay DB $14,856.00 for basic child support from July 1, 2014 to December 31, 2018. She shall pay DB basic childsupport of $1,205.00 per month from January 1, 2019; (

b) HMB shall pay DB $11,713.00 for

section 7 expenses and cell phone expenses from January 1, 2012 to December 31, 2018.She shall pay DB 37 percent of all 2019 childcare, dental and health insurance, medical, dental, sporting and cultural extracurricularactivities and JB’s cell phone expenses. For reimbursement purposes I cap the pretax cost of the extracurricular activities at $800.00 perchild per year; (

c) DB shall pay HMB $20,700.00 for spousal support from January 1, 2012 to December 31, 2016; and (

d) I dismiss HMB’s claim for undue hardship. [9] I will now turn to the procedural history of this matter. PROCEDURAL HISTORY

[ 10 ] On May 24, 2018, LeBlanc, J. set this trial for February 18, 2019. HMB said she did not have a lawyer and was attempting to retain Legal Aid. LeBlanc, J. indicated that nine months was more than enough time to obtain counsel. [ 11 ] On January 14, 2019, HMB told me she did not have a lawyer. She asked for a postponement. I reminded her of LeBlanc, J.’s comments. I told her that it would not postpone the trial. She did not indicate she had any health concerns that could affect the trial. [ 12 ] Three days before the trial she wrote the court seeking a postponement.

She submitted a letter from a doctor indicating she was suffering from post-traumatic stress syndrome and she could not attend the trial alone. [ 13 ] Duty counsel represented her on February 18, 2019. I told the parties that in the circumstances the parties had four choices: (

a) proceed with the trial; (

b) proceed by

summary trial and I would

schedule a future time for delivery of affidavits and a half-day hearing; (

c) proceed with a binding settlement conference; or (

d) proceed by way of informal trial under Rule F31. [ 14 ] The parties agree agreed to proceed by way of an informal trial. I explained Rule F31 of Rules of the Supreme Court, 1986 , S.N.L. 1986, c.42, Sch. D ( Family Law Rules ). Both parties confirmed that they understood the process. Both confirmed they had elected an informal trial with the knowledge and understanding of the provisions of Rule F31 and no one threatened them, or promised them anything to do so. [ 15 ] I adjourned the matter until February 20, 2019 to allow the parties to prepare evidence.

At the start of the trial, both parties executed a written consent to proceed by informal trial. [ 16 ] I will now turn to the issue of basic child support. What amount of basic support expenses should HMB pay DB from July 1, 2014? On what basis should HMB pay basic child support from then? [ 17 ] HMB shall pay DB $14,856.00 in retroactive basic child support. She shall pay DB $1,205.00 a month in basic child support from January 1, 2019.

The parties will recalculate this amount annually starting on July 1, 2020. [ 18 ] I will now discuss why I made this decision. [ 19 ] The couple married on […], 2001 shortly after they began living together. HMB had a child by a previous marriage, AM, who DB adopted. They had two more children, JB, who was born on […], 2003 and GB, who was born on […], 2008. [ 20 ] AM moved out of the family home in 2010 and lives with her maternal grandparents. There is no evidence that she ever again lived with her parents other than for short visits.

I find that her grandparents support her and HMB has no claim for child support. By all accounts, she is a successful young woman and is now pursuing postsecondary education in the United Kingdom. [ 21 ] The couple separated in November 20, 2011. The separation was unpleasant and confrontational. The parents contested custody and access, but at all times material to this case, the children lived primarily with DB. HMB has regular access.

Justice Leblanc, J. issued a final parenting order on October 23, 2017. [ 22 ] The order provides that DB has sole legal custody of the children and has final decision rights with respect to the children’s medical care, educational programming and psychological assessments. HMB has access to the children. At no time relevant to this proceeding did she have 40 percent or more parenting time. [ 23 ] The parties settled all property issues and retroactive child support up to and including June 1, 2014 by way of a consent order filed on June 25, 2014.

Pursuant to an interim order filed December 6, 2017, she pays $1,027.00 a month payable on the first of each month and $250.00 a month until she paid arrears of $1,152.99. The court ordered she pay specified

section 7 expenses. [ 24 ] The issue is, what child support should she have paid from July 1, 2014 to the end of December 2018? To determine this I must determine her income. [ 25 ] HMB’s line 150 income is set out in Table 1. Table 1 HMB Income Line 150 ($) Year Line 150 $ Union Dues $ Net Income $ Employer 2010 72,045 762 71,283 Healthcare 2011 75,946 1,155 74,791 Healthcare 2012 66,822 1,155 65,667 Healthcare 2013 77,640 1,155 76,785 Healthcare 2014 42,275 709 41,566 Indigenous Manitoba Health Authorities and EI 2015 60,247 1,681 58,566 Same as 2014 2016 52,737 467 52,270 Same as 2014 and 2015 2017 52,623 1,182 51,441 EI and Healthcare 2018 84,946 1,155 83,791 Healthcare Pay stubs

[26] HMB has no other source of income. However, DB claims she was deliberately underemployed because of incidents with heremployer, Healthcare, in 2012 and 2013. [27] In 2012, Healthcare suspended HMB for four weeks because of a breach of patient confidentiality policies. HMB testified sheasked a mutual acquaintance how she was doing after Healthcare cancelled her scheduled procedure. She was not in the circle of care forthat patient. [28] A second breach occurred in 2013. HMB says that it involved communication with a friend of her daughter who was having amedical procedure.

Again, she was not in the circle of care of this friend. [29] Because of these infractions, and her inconsistent evidence during the investigation of the incidents, Healthcare fired her inDecember 2013. [30] Her union grieved the termination. In 2017, Healthcare agreed to rescind her termination. Healthcare agreed that HMB was ona without pay suspension from December 18, 2013 to June 9, 2015 and a without pay approved leave of absence from June 9, 2015 toSeptember 11, 2017.

Healthcare rehired her in a full-time nursing position on September 11, 2017. [31] Because of this termination, she says that she was unable to obtain nursing employment in Newfoundland and Labrador in2014, 2015 and 2016. She commuted to Manitoba at a variety of nursing jobs. She says she returned home periodically to visit herchildren. She earned income in each of those years partially from contract work and partially from employment insurance benefits. [32] On May 15, 2016[1], she started cohabitating with her common-law partner KM.

She returned to Newfoundland and Labradorin the summer of 2016 because her then lawyer told her Healthcare would rehire her before September 2017. The more likelyexplanation is that she was pregnant. She gave birth to the couple’s son on […], 2017. In September, she returned to Healthcare. [33] DB says HMB’s income in 2014-2017 was too low. He says this because: (

a) she knew or ought to have known that these breaches of confidentiality could result in serious consequences to her. This ismore obvious because she received a warning and short suspension for her first breach; (

b) she was evasive about the reasons for termination and one of the reasons for her termination was her inconsistent evidenceduring the investigation of the incidence; (

c) she was evasive about the reasons for her layoffs from her Manitoba jobs. She failed to provide separation slips which couldprovide documentary evidence; (

d) she was evasive about when and why she returned to Newfoundland and Labrador in the summer of 2016. Accordingly, sheshould have worked in the last half of 2016 and in January 2017 until her son was born; and (

e) she knew that having a child would affect her ability to earn income to support her other children. [34] Accordingly, he says I should conclude that she is deliberately underemployed and pursuant to

section 19 of the Federal ChildSupport Guidelines, S.O.R./97-175 (“Guidelines”), impute income to her. [35] The question is, was she intentionally underemployed or unemployed for any of these reasons? [36] The Ontario Court of Appeal in Drygala v. Pauli (2002), (ON CA), 219 D.L.R. (4th) 319, 29 R.F.L. (5th)293, (Ont. C.A.), discuss the meaning of the word intentionally. It discussed the two prevalent

interpretations of the term. Oneinterpretation is that the intention referred to is a deliberate course of conduct to undermine support obligations. [37] It found this approach overly onerous and concluded there is no need to find a specific intent. It concludes that intentionallymeans a voluntary act. HMB is intentionally underemployed if she chooses to earn less than she is capable of earning. [38] The Ontario Court of Appeal also observed in Lavie v.

Lavie, 2018 ONCA 10, that “There is no requirement of bad faith orintention to evade support obligations inherent in intentional underemployment: …The reasons for underemployment are irrelevant. If aparent is earning less than she…could be…she is intentionally underemployed” (at paragraph 26). [39] HMB testified that her breaches of patient confidentiality were unintentional. She says that Healthcare accepted this when itagreed to the settlement agreement. She says Healthcare would not rehire her if she deliberately breached confidentiality. I find that shedid not choose to leave Healthcare.

I accept her explanation that her confidentiality breaches were unintentional. [40] She says that her contract work in Manitoba ended for reasons beyond her control. She says that she had a valid reasonreturning to Newfoundland and Labrador and denies it was because she was pregnant. [41] I find that she reacted to her termination by commuting to remote locations. She earned significant income. I find that herability to earn income is more difficult when Healthcare dismissed her for cause. [42] I conclude she did not chose not to work and, she was therefore, not intentionally underemployed.

I find no reason to imputeadditional income to HMB from 2014 up to July 1, 2016. [43] I find she returned to Newfoundland and Labrador in the summer of 2016 because she was pregnant. She gave no reason whyshe could not work for the remainder of that year. Her 2016 income was $6,296.00 less than in 2015. In the absence of a reason why shedid not work, I will impute to her additional taxable income of $6,296.00 in 2016.

[ 44 ] I will not impute income in January 2017 leading up to the birth of her child. I will not impute income from after his birth until she returned work in September. [ 45 ] I do not believe a woman’s choice to have a child can be considered a decision to not work which would give rise to an imputation of income. I agree with the Alberta Court of Appeal in D.(D.R.) v. M.(J.) , 2004 ABQB 194 . It observes at paragraph 12, “There are many possible reasons for the decision to have a child.

One cannot presume that the desire to avoid the payment of child support is the sole, or even a likely, reason for pursuing further parenthood. [ 46 ] Furthermore if the pregnancy is unplanned, as alleged by HMB, imputing income to the mother would be akin to punishing her for an unplanned biological event. [ 47 ] I distinguish the cases on this topic relating to situations where the mother decides to stay at home to care for the children of a second family. This is not what happened here.

HMB returned to work with Healthcare less than nine months after the birth of her son. [ 48 ] Therefore, her income for child support purposes is as is set out in Table 1, as is her basic child support obligations from July 1, 2014 to December 31, 2018.

Table 2: HMB Child Support 2014 -2018 ($) Year Income [2] Monthly CS Annual CS 2014 41,566 606 3,636 [3] 2015 58,566 841 10,092 2016 58,566 841 10,092 2017 51,441 740 11 mon 757 1 mon 8,140 757 2018 83,791 1205 14,460 Total Support Due 47,783 Support Paid 32,927 [4] Balance Due 14,856 [ 49 ] HMB shall pay DB child support of $14,856.00 for January 1, 2014 to December 31, 2018. [ 50 ] I now turn to the child support HMB shall pay from January 1, 2019. [ 51 ] I order that HMB pay basic child support in as set out in the Guidelines , based on her 2018 income of $84,946.00 less union fees of $1,155.00.

She shall pay $1,205.00 a month. The parties shall recalculate this amount on July 1, 2020 and every year thereafter, based on the previous year’s Canada Revenue Agency (“CRA”) Notice of Assessments (“NOA”). [ 52 ] I will now discuss why I made this decision. [ 53 ] Healthcare employed HMB in 2018. She submitted pay stubs to support her income. She alleged at trial that she is off work on both paid and unpaid sick leave. She says she has applied for EI benefits and is considering whether to apply for long-term disability. [ 54 ] She submitted no medical evidence of any kind to support this claim.

I find she has not established she is unable to work or that she is in fact on permanent or temporary sick leave. [ 55 ] I now turn to the issue of

section 7 expenses. What amount of

Section 7 Expenses should HMB pay DB from January 1, 2012 to December 31, 2018? [ 56 ] I order that HMB pay DB $11,713.00 for

section 7 expenses and cell phone expenses from January 1, 2012 to December 31, 2018. [ 57 ] I will now discuss why I made this decision. [ 58 ] Under

section 7 of the Guidelines , I may order a parent to pay expenses by taking into account the necessity of expense relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses. I am to consider the family spending pattern prior to separation. [ 59 ] The Guidelines specifically identify childcare expenses, medical and dental expenses and health insurance premiums, and extraordinary expenses for extracurricular activity. [ 60 ] The parties generally agree on expenses for dental and health costs, insurance premiums and daycare expenses.

HMB disagrees with the number of the children’s activities. She does not see the value of children participating in elite sports, particularly, if they must travel outside of the St. John's area to do so. [ 61 ] DB provided comprehensive records of his expenses. He lists many expenses of less than $20.00. I am concerned that parents cannot become accountants recording every small expense incurred while the children are in each other’s care. I will not undertake a line-by-line accounting of each of these expenses.

I will instead deal with the categories of costs. [ 62 ] I find that the daycare and afterschool expenses for both children are reasonable and necessary given the needs and means of the parties. These costs are contained in Table 3:

Table 3: DayCare and After School Expenses 2012-2018 [5] ($) Year Amount Year Amount 2012 11, 480 [6] 2016 3,514 2013 9,462 2017 4,309 2014 6,831 2018 3,063 2015 2,714 TOTAL 41,373 [ 63 ] I find that the health and dental insurance expenses for both children are reasonable and necessary given the needs and means of the parties.

These costs are contained in Table 4: Table 4: Health and Dental Insurance [7] ($) Year Amounts Year Amount 2012 438 2016 423 [8] 2013 420 2017 457 2014 423 2018 492 2015 423 TOTAL 3,076 [ 64 ] I find that the medical and dental expenses for both children are reasonable and necessary given the needs and means of the parties. I have disallowed the charges described in paragraph [67].

These costs are contained in Table 5: Table 5 Medical and Dental Expenses [9] ($) Year Amount $ Year Amount $ 2012 nil 2016 989 2013 21 2017 2,680 2014 nil 2018 1,900 2015 nil TOTAL 5,590 [ 65 ] The children, particularly JB are active in sports and music. JB is and has been involved in soccer, swimming, skating, dancing, basketball and music with piano, flute and violin.

She was not involved in all of these activities prior to the separation, nor did DB consult with HMB on enrolling in these activities. [ 66 ] DB says that he enrolled the children in these activities to allow them relief from their chaotic relationship with their mother. He says it improves their self-esteem and says their counsellors believe they should participate. [ 67 ] This may be so, but given the means of the couple, I will cap these pre-tax extracurricular activity expenses at $800.00 per child per year. Reimbursement shall be limited to DB’s actual after tax and insurance out-of-pocket payments.

The expenses can include travel, memberships, instruction and training fees, uniforms and camps, instruments and rentals. There will be no reimbursement for over the counter medications, ice packs, clothing (other than uniforms), sneakers and repairs to any of these items. [ 68 ] I find that the activity expenses for both children described in paragraph [67] are reasonable and necessary given the needs and means of the parties.

These costs are set out in Table 6: Table 6: Activity Expenses January 1, 2011 to December 31, 2018 [10] / [11] ($) Year JB GB Year JB GB 2012 800 [12] NIL 2016 800 800 2013 800 NIL 2017 800 800 2014 800 800 2018 800 800 2015 800 800 Total 5,600 4,000 [ 69 ] The total

section 7 expenses are contained in Table 7: Table 7: Total

Section 7 Expenses [13] ($) Item Daycare Insurance Dental Activities TOTAL Amount $41,373 $3,076 $5,590 $9,600 $59,639 [ 70 ] The parties then will share $59,639.00 in

section 7 expenses incurred from January 1, 2012 to December 31, 2018. I shall now determine what, after tax proportion of these expenses, each party should bear. This requires me to determine DB’s income. [ 71 ] DB’s line 150 income, as determined in his NOA, is set out in Table 8 below: Table 8: DB’s Line 150 Income 2012-2108 ($)

Year Line 150 Union Dues Income 2012 108,820 NA [14] 108,196 2013 111,353 624 110,729 2014 110,115 624 109,491 2015 115,495 624 114,871 2016 115,655 624 115,031 2017 115,636 624 115,012 2018 [15] 115,636 624 115,012 [ 72 ] HMB alleges that during the marriage DB tutored and received cash income. DB said that he typically earned nontaxable income of $5,000.00 a year from tutoring but he stopped after the separation because of the chaos in the children’s lives. [ 73 ] HMB testified that a person at DB’s employer told her that it still lists DB as a member of facility available to tutor students.

However, I have no documentary evidence that he is in fact doing so. I will not impute any income to him for tutoring after 2011, the year of separation. [ 74 ] DB owns two houses. He lives in one and he rents a basement apartment to third parties. The second is a two-unit rental unit. [ 75 ] For purposes of child and spousal support, I will add to his income any vehicle and cell phone as he uses both for personal purposes. I will also add capital cost allowance [16] . He is entitled to deduct maintenance and interest [17] costs.

I will not allow any loss with respect to the house in which he resides as an adjustment to his income. [ 76 ] Therefore, his income for child support purposes is set out in Table 9: Table 9: DB’s Deemed Income 2014-2015 ($) Year Line 150 [18] Tutoring [19] Rental CCA Rentals Cell and car 2011 108,196 [20] 5,000 2012 108,196 2013 110,729 2014 109,491 5,870 4,585 2015 114,871 3,134 3,955 2016 115,031 4,936 4,171 2017 115,012 17,892 3,092 2018 [21] 115,012 7,958 3,951 [ 77 ] I will now calculate the after-tax amounts due from HMB using DivorceMate software.

The results are in Table 10: Table 10: Calculation of amount of

Section 7 Expenses payable by HMB [22] ($) Year Daycare Activities Insurance Medical Due 2012 6,320 [23] 5,160 [24] 50 [25] 750 [26] 438 NIL 794 2013 9,462 1,600 420 NIL 2,750 2014 6,831 1,600 423 21 1,521 2015 2,714 1,600 423 NIL 1,106 2016 3,514 1,600 423 989 1,510 2017 4,309 1,600 457 2,680 1,672 2018 3,063 1,600 492 1,900 2,089 TOTAL 11,442 [ 78 ] JB has a cell phone. In 2017, the cost was $251.00, and in 2018, $562.00. HMB testified that she found this a convenient way to stay in touch with her daughter. I believe that contact should be encouraged and I find this expense necessary and reasonable. [ 79 ] I order that HMB reimburse DB $11,442.00 in

section 7 expenses. She shall also pay 25 percent [27] of the cost of J.B.’s 2017 cell phone and 37 percent [28] of her 2018 cell phone being $271.00, for a total reimbursement of $11,713.00. [ 80 ] I will now turn to the basis on which HMB will pay

section 7 expenses from January 1, 2019. [ 81 ] I order that the parties share

section 7 expenses for childcare, dental and health insurance, medical and dental expenses, activities and JB’s cell phone. HMB shall pay 37 percent and DB shall pay 63 percent [29] . The parties shall recalculate this ratio on July 1, 2020 and, thereafter, on that date each year. [ 82 ] I will now discuss why I made this decision.

[83] Any reimbursement for

section 7 expenses and cell phone expenses shall be limited to DB’s actual cash payments. Expensesfor activities will be consistent with the provisions of paragraph [67]. [84] Cost of any cell phone used by GB after she reaches the age of 15 shall be a reimbursable expense. [85] For child support purposes in years after 2019: (

a) HMB’s income shall be her previous year’s line 150 income less union dues as is reported in her NOA; and (

b) DB’s income shall be his previous year’s line 150 income less union dues as is reported in his NOA. For support purposes, hewill not deduct any capital cost allowance and cell phone and vehicle expenses. He shall not adjust his line 150 for any loss with respectto his principle residence. [86] I will now turn to the issue of spousal support. Is HMB entitled to Spousal Support from DB and, if so, in what amount and for what duration? [87] I find that HMB is entitled to spousal support of $345.00 per month, for a duration of five years from January 1, 2012[30].

Iwill now discuss why I made this decision. [88] I find that HMB is entitled to spousal support on a compensatory basis. [89] The parties were married for 10 years. HMB took parental leave for one year for each child, while DB did not. Both work forgovernment agencies. HMB returned to her nursing career without a reduction in pay but she suffered a salary reduction during theparental leave. DB continued to work while his wife took time off to care for the children. He continued to earn his nontaxable tuitionincome. Children do not raise themselves. HMB took time off to do so for two years.

This conferred a benefit on him. [90] DB did assume significant childcare responsibilities during the marriage. He was off each summer. He had more flexibility inhis work hours. He took the children to most of their medical appointments. HMB claimed he never changed a diaper. She minimized hisparenting role. [91] I find DB’s view is more likely correct. HMB did shift work, which started between 7:00 a.m. and 9:00 a.m. each weekday. Sheended the day on some shifts at 7:00 p.m., and sometimes later.

DB worked 9:00 a.m. to 5:00 p.m. and looked after the children duringthe summer and during the hours when he and the children were home and HMB was not. [92] Although HMB was the predominant child caring parent for two of the ten years of the relationship, I find in the other eightyears each party contributed significantly and likely equally, to parenting. [93] Therefore, I consider HMB’s compensatory entitlement weak.

This would lead me to conclude that any amount and duration ofsupport should be on the low end of the range. [94] I also find that HMB has an entitlement to spousal support on non-compensatory basis. [95] HMB earned $75,946.00 in 2011, the year the couple separated. I have determined that DB earned $118,820.00[31] in 2011.HMB’s income was 64 percent of DB’s. [96] A difference in income alone does not automatically lead to entitlement. Non-compensatory claims involve need. Need meansa significant decline in standard living from the marital standard.

Non-compensatory support reflects the economic interdependence ofmarried couples summed up in the phrase ‘merger over time’. [97] The Supreme Court of Canada discussed this concept in paragraph 85 of Moge v. Moge, (SCC), [1992] 3S.C.R. 813, 99 D.L.R. (4th) 456 (SCC). It directs me to keep in mind the doctrine of equitable sharing.

It observes that the doctrineequitable sharing does not guarantee either party the standard of living enjoyed during the marriage, but this standard is far fromirrelevant for support entitlement. [98] I should regard marriages “…as a joint endeavour, the longer the relationship endures, the closer the economic union, thegreater will be the presumptive claim to equal standards of living upon its dissolution” (Moge paragraph 85). [99] The authors of the Spousal Support Advisory Guidelines (“SSAG”) observes that judicial principles emphasize that incomedisparity does automatically mean entitlement to support.

In practice, however, a court will find entitlement where there is significantincome disparity at the time of the application. [100] HMB’s income dropped substantially post separation while DB’s income increased significantly. [101] I consider the salary difference significant. The difference increased in 2012 and in 2014, 2015, 2016 and 2017. Anydisproportionate sharing of matrimonial assets did not ameliorate the difference. [102] I have considered whether the property settlement between the parties on June 25, 2014 and December 16, 2014 could affect myanalysis on entitlement.

There is no reason to conclude that this was anything other than a 50 percent division of matrimonial assets. I donot consider the property settlement a factor in my analysis. [103] I consider HMB has established need but her non-compensatory entitlement is weak. This also would lead me to conclude thatany amount and duration of support should be on the low end of the range. [104] I will not consider HMB’s decline in income after separation when I determine the amount and duration of spousal support.

HMB’s decline related to her disciplinary action. There is no causal connection or link between the roles assumed in the marriage and thesubsequent salary decrease. [105] Similarly, I do not take into account DB’s increase in income. His income increased because of his business skills.

There is nocausal connection between the roles assumed in the marriage and his subsequent salary increase. [106] Based on their incomes on separation and their eight-year relationship, the SSAG indicate a range of spousal support from$345.00 – low and $391.00 – mid and $471.00 – high with a duration of 5 to 10 years.[32] The DivorceMate calculations are a guide tome and the range could vary depending on assumptions I made of tax treatment of

section 7 expenses. [107] HMB’s cohabitation with KM started in 2016. I consider this a factor to set the duration at the low end of the suggested range. [108] I order DB pay HMB spousal support of $345.00 a month for 5 years from January 1, 2012. The total spousal support thereforedue is $20,700.00. [109] In this decision, I intend to create an obligation to pay retroactive periodic partner support for a specified period prior to thisjudgment (see: CRA Tax Folio S1–F3–C3).

DB may be entitled to deduct legal fees he incurred to obtain this support order Nadeau v.M.N.R. (S.C.A.), 2003 FCA 400. [110] I will now turn to the retroactive nature of both parties claims. Retroactive Claims [111] DB claimed child support and

section 7 expenses in his Originating Application filed December 5, 2011. HMB’s claim forspousal support was made in her Response on December 16, 2011 [112] Am I to consider these claims “retroactive” and apply the analysis described in D.B.S. v. S.R.G., 2006 SCC 37 (S.C.C.)? Neitherparty asked me to do so. [113] The Supreme Court of Canada and our Court of Appeal both suggest that any claim for support arising prior to the trial is aretroactive one.

However, the widespread practice of litigants before this court is that a claim is retroactive only to the extent it is prior toparty claiming the relief in a pleading. [114] There are good reasons for this approach. A litigant is aware that other party is making a claim when they file a pleading.Furthermore, the time a party takes to bring their claim to trial is dependent on many factors. The parties may seek interim relief orattempt to resolve the matter through negotiation or settlement conference. Settlements should be encouraged not discouraged.

Finally,prompt trial dates are often not available to litigants. To a large degree, the date of the trial is not in the parties’ control. [115] The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, upheld a trial decision ordering partner support effective to thedate the claimant had commenced proceedings. The Court concluded that the trial judge had discretion to award support effective thedate the proceedings.

Although the case involved a non-married couple governed by British Columbia legislation, I have similarjurisdiction under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp). [116] Furthermore, the Supreme Court of Canada supported the conclusion of the Ontario Court of Appeal in MacKinnon v.MacKinnon (2005), (ON CA), 199 O.A.C. 353, 256 D.L.R. (4th) 385, (Ont.

C.A.), that the usual commencementdate is the date of initiation of the proceeding (at paragraph 24). [117] I am of the view that while a claim arising prior to the trial may be retroactive it would be a rare case where DBS factors arerelevant to the time after the claim is plead. That being said, I have considered the following factors is making my order: (

a) DB has established a need for child support from the date of his Originating Application. Child support is a benefit of hischildren and not for him. The children participated in the activities described in this judgment. I concluded that some are reasonable andnecessary given the means of the parties. Both parents knew their children were engaging in these activities; (

b) HMB has established a need for spousal support from the date of her Response; (

c) HMB has an ability to pay the child support. She will not suffer any undue hardship. I have ordered that she receive spousalsupport and she may use these funds to offset any obligation for child support; (

d) DB has an ability to pay the spousal support; (

e) I do not find that either party engaged in blameworthy conduct which would affect my decision; and (

f) Although the couple made their claims in 2011, they took 29 interim applications. They participated in two settlementconferences. The court made interim child support orders. To the extent there was an unreasonable delay, both parties bear someresponsibility. [118] In these circumstances, I consider the date of the commencement of child and partner support orders appropriate. [119] I will now turn to the issue of undue hardship.

Should HMB pay a different amount of basic child support because she suffers undue hardship? [120] HMB has claimed that she should pay a different amount of child support because payment would cause undue hardship. Iconclude that she has not established undue hardship. I will make no changes to the child support she is to pay. I will now discuss why I

made this decision. [ 121 ] HMB claims undue hardship under

section 10 of the SSAG. The Newfoundland and Labrador Court of Appeal decision of Locke v. Goulding , 2012 NLCA 8 , directs that I analyze this claim in several steps. [ 122 ] I first determine support otherwise payable under

section 3.1 of the SSAG. Then, I determine if HMB has established the existence of any circumstances that would cause her to suffer undue hardship. [ 123 ] HMB must establish undue hardship with respect to the circumstances in section 10(2) of the SSAG. The list is not exhaustive. She must overcome a high threshold. Her claim must establish that payment is more than difficult or inconvenient. [ 124 ] The payment must be excessive, extreme, improper, unreasonable or unjustified. It is not simply a matter of her saying, I have other obligations or I have high expenses.

She must show that she cannot reasonably manage her obligation to pay child support. [ 125 ] I will now consider the circumstances that may cause her undue hardship. [ 126 ] There is no evidence that HMB received anything other than a 50 percent division of matrimonial assets.

There is no evidence that HMB assumed responsibility for a high-level of debt. [ 127 ] I find that she has not established that an assumption of a usually high level of debt caused her to suffer undue hardship. [ 128 ] HMB says it was expensive to exercise access to her children when she was working in Manitoba and while she resides on the Southern Shore. She provided no evidence of any such expenses. [ 129 ] She testified that her employers in Manitoba paid her return travel to St. John’s.

She suggested that sometimes her employers flew her to Halifax but she testified that this occurred only when there was inclement weather in St. John’s. Her employer was responsible to return her to St. John’s but she sometimes paid to return home more quickly. [ 130 ] I find that she has not established that high costs of access caused her to suffer undue hardship. [ 131 ] She has a legal obligation to provide child support and

section 7 expenses pursuant to this judgment. However, the child support is consistent with the G uidelines and, I adjusted the

section 7 expenses to account for the means of the parties. [ 132 ] HMB lives in a home owned by her partner KM. She says she pays him $1,000.00 a month in rent. KM testified that he pays utilities and other operating costs for the home. He and HMB share the cost of groceries.

KM testified that she rarely, if ever, pays him rent. [ 133 ] KM earned line 150 income in 2016 of $120,364.00 and in 2017, $77,789.00 He testified that he agreed to pay the household expenses and most groceries and in exchange, HMB would pay for childcare and would not claim child support or contribution for expenses. [ 134 ] I find that there is no consistent rent payment and KM pays for housing and other living expenses and HMB pays childcare expenses. [ 135 ] The Ontario Court of Appeal in Fisher v.

Fisher , 2008 ONCA 11 , discussed impact new obligations of the second family on a payer’s ability to pay support for the first family. The court observed that, generally speaking, the “first family first” principle means that HMB’s obligations to her first family take priority over the second [ 136 ] The obligation to support the second family rests entirely with HMB and KM.

There is no evidence that HMB’s obligations to her first family will impoverish her second family. [ 137 ] I find that she has not established that her obligation to support any person causes or caused her to suffer undue hardship. [ 138 ] HMB filed a Statement of Expenses, which show her monthly expense as $5,185.00 a month. She also filed

Schedule II of the Guidelines to both show her income and expenses for 2017 and as a tool to compare the parties’ standards of living in that year. She provided no expense information for the years 2014, 2015 and 2016. [ 139 ] Her evidence on this budget was inaccurate in a number of respects. [ 140 ] She told me that her current child support obligation was $1,083.40 higher than it actually is. She said that deductions of $499.57 biweekly of “Misc garnishee” from her 2018 paystubs was for child support.

This was, she said, in addition to the deduction of $598.25 biweekly paid to “Family Court”, which in fact is the amount of the interim ordered child support. [ 141 ] She claims to have made no inquiry to her employer Healthcare about this miscellaneous deduction. I find she likely knew that this amount was not for child support. [ 142 ] She gave a different characterization of her common-law relationship with KM than he did. She said their relationship was a “business arrangement”.

She suggested that relationship was on the verge of ending and that they could break up at any time. [ 143 ] KM did not confirm these characterizations even when prompted to do so by HMB. [ 144 ] HMB filed a Monthly Statement of Expenses to support a claim for undue hardship. However, the statement is inaccurate. In particular: (

a) she includes $600.00 a month in groceries and other food and $1,000.00 a month rent, when KM’s evidence is that he paid

much of these costs; (

b) she does not adjust annual daycare costs $13,392.00 to include any tax benefit, nor does she allow for any in-kind contribution by KM. Furthermore, she provided receipts for only $870.00. She did not claim any childcare costs in her 2017 income tax return; and (

c) she also claims expenses of $150.00 a month for school lunches without any evidence she actually incurs these costs. [ 145 ] All of these omissions lead me to conclude that she has overstated her expenses by at least $2,000.00 a month if not more. I conclude she has not established that her living expenses would support her claim that she suffered undue hardship. [ 146 ] Finally, HMB became bankrupt in September 2017.

She listed, in her Form 79 Statement of Liabilities, $60,000.00 in outstanding debt to law firms relating to the various court proceedings in Family Court and $51,000.00 in consumer debt. [ 147 ] She filed a Form 65, Statement of Monthly Income and Expenses in which she again overstates her living expenses for rent and food and groceries. She does not include any KM child support obligations. [ 148 ] She testified that her parents lent her $500,000.00. She says that her total legal fees for her family court matters were $480,000.00.

Her ongoing legal dispute with DB is the underlying cause of her financial problems and the subsequent bankruptcy.

Her alleged undue hardship did not relate to living expenses and child support and these costs did not cause her bankruptcy [ 149 ] I find that her expenditures relating to parenting and support legal actions are not ones that would support her claim that she suffered undue hardship. [ 150 ] I find, therefore, that she has not established that she has suffered or will suffer undue hardship. [ 151 ] I note that had she succeeded in establishing that she suffers or suffered undue hardship, she must also establish that her household standard of living is equal to, or less than, DB’s.

HMB’s evidence omits KM’s income and overstates DB’s income. Using the correct figures for 2016, 2017 and 2018 [33] , her household standard of living is in fact, higher than DB’s in two of those three years. DISPOSITION [ 152 ] I hereby Order that: (

a) HMB shall pay DB $14,856.00 for basic child support for January 1, 2014 to December 31, 2018 and $11,713.00 for

section 7 expenses and cell phone expenses for JB (DOB: […], 2003) and GB (DOB: January 9, 2008) from January 1, 2012 to December 31, 2018; (

b) DB shall pay HMB $20,700.00 for retroactive spousal support; (

c) HMB shall pay any net amount due to DB pursuant to paragraphs (

a) and (

b) in 48 monthly installments, starting on July 1, 2019; (

d) From January 1, 2019 HMB shall pay DB: (

i) basic child support for JB and GB from January 1, 2019 of $1,205.00 per month; and (ii) 37 percent of all 2019 childcare, dental and health insurance, medical, dental, extracurricular activities and JB’s cell phone expenses. Reimbursement will be limited to actual cash payments made by DB, and will not include the costs referred to in paragraph [67]. I cap the pretax reimbursable cost of the extracurricular activities at $800.00 per child per year.

Section 7 expenses will include the cost of any cell phone used by GB after she reaches the age of 15; (

e) HMB shall continue making payments under LeBlanc, J’s Order until July 1, 2019 when she will begin paying the revised amounts set out in paragraph (

d) and will pay any arrears accrued between January 1, 2019 and July 1, 2019 in 12 equal monthly installments; (

f) The parties will recalculate basic child support and the ratio of sharing of

section 7 expenses annually starting on July 1, 2020. HMB’s income shall be her NOA line 150 income less union dues. DB’s income shall be his NOA line 150 income less union dues. For support purposes, he will not deduct from his income: (

i) any cell phone or vehicle expenses or capital cost allowances; and (ii) any loss with respect to his principle residence; and (

g) HMB shall pay all amounts due pursuant to this Order through the Support Enforcement Agency. [ 153 ] Either party has leave to come before this Court to make representations on costs. Otherwise, the parties will bear their own costs. _____________________________ Alexander MacDonald Justice

[2] Line 150 less union dues [3] 6 months [4] From DB’s brief [5] Before any income tax credits or deduction [6] $11,480 of which $5,160 Paid by HMB, evidenced by receipts dated August 8, 12 and 22 and October 12, 2012 in HM#10 $6,320 paid by DB. [7] Ibid note 5 [8] Not included in DB#13 2016 expenses but allowed [10] Ibid note 5 [11] Capped [12] $1,465 paid by HMB for dance and $98 by DB for other activities. Cap applied pro rata so HMB expenses are $750 and DB’s $50 [13] Ibid note 5 [14] Used for spousal support purposes so no deduction for union dues [15] Paystubs (estimated) [16] See

Schedule III,

section 11 of the Guidelines [17] See

Schedule III,

section 8 of the Guidelines [18] Less union dues [19] Nontaxable $5,000 in 2011 [20] In absence of other evidence I assume his income is the same as his 2012 Notice of Assessment [21] Average of 2014 -2017, not incurring any losses [22] DivorceMate calculated include spousal support from DB to HMB of $345/month for five years from January 1, 2012 [23] DB paid [24] HMB paid. I assumed that she was able to deduct child care costs from CRA tax filings [25] DB Capped expenses [26] HMB capped expenses [27] Ratio of 2017 adjusted incomes [28] Ratio of 2018 adjusted incomes [29] Ibid Note 30