Johnson v. Downey, 2021 NSSC 2

2008 SFHMCA-056890 IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION ) Citation: Johnson v. Downey , 2021 NSSC 2 BETWEEN: SITESHA JOHNSON Applicant - and – CHANNON DOWNEY Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: January 4, 2021

Summary: Mother applied to vary order, increasing child support and adding health insurance when father found full-time work. Father successfully claimed undue hardship based on his support for his 5 other children and the lower standard of living in his household. Key words: Family, Child support, Table amount, Special or extraordinary expenses, Undue hardship, Household standard of living comparison, Variation, Health insurance Legislation Parenting and Support Act , R.S.N.S. 1989, c. 160,

section 8, subsection 37(1) Nova Scotia Child Maintenance Guidelines , NS Reg. 53/98,

section 6 ,

section 7 ,

section 10 THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Johnson v. Downey , 2021 NSSC 2 ENDORSEMENT Sitesha Johnson v. Channon Downey 2008 SFH MCA 0 56890 January 7, 2021 Sitesha Johnson appeared without a lawyer Channon Downey appeared without a lawyer Application: Sitesha Johnson applied to vary child support and to obtain health insurance coverage. She wanted a proportionate sharing of health and extra-curricular activity costs .

Channon Downey claimed undue hardship and said he shouldn’t pay child support according to the tables or contribute to health or extra-curricular activity costs. He agreed to add Chance to his workplace health insurance. Decision: Reasons: Introduction 1 . Chance Johnson is Channon Downey’s son. Chance lives with his mother, Sitesha Johnson.

2 . The last child support order was made in September 2018. Based on an annual imputed income of $25,000, Mr. Downey was ordered to pay $190 for Chance under the Nova Scotia Child Maintenance Guidelines [1] tables, and $25 toward Chance’s extracurricular activities each month. 3 . Mr. Downey’s annual income has increased by about $20,000 since 2018. This is a change in circumstances that warrants reconsideration of the amount of his child support. [2] 4 . I must decide how much child support Mr. Downey will pay for Chance. Ms. Johnson wants both the table amount, calculated under

section 3 of the Guidelines , and a contribution to Chance’s health and extra-curricular activity costs. Mr. Downey claims undue hardship. 5 . I heard testimony from Mr. Downey and Ms. Johnson. Each filed a sworn Statement of Income. Ms. Johnson also filed an affidavit and Statement of Special or Extraordinary Expenses. Mr. Downey filed a Statement of Property, a Statement of Expenses and a Statement of Undue Hardship Circumstances. His partner filed an unsworn Statement of Income. Mr. Downey confirmed the truth of any unsworn document he filed. Analysis 6 . I’ll address Mr. Downey’s undue hardship claim first.

If I conclude that he’d suffer undue hardship paying the table amount of child support, this will have an impact on my decision about a contribution to Chance’s health and activity costs. 7 . There are two steps in deciding undue hardship claims. First, some circumstance capable of creating undue hardship must exist. Only if such a circumstance exists can I consider the second step: whether the standard of living in Mr. Downey’s household is lower than the standard of living in Ms. Johnson’s household. [3] Mr. Downey bears the burden of proving this. [4] First issue: would Mr.

Downey suffer undue hardship if I ordered him to pay the table amount of child support calculated under

section 3 of the Guidelines ? Is there a circumstance that might cause undue hardship? 8 . Mr. Downey says that his support for his 5 other children is a circumstance that would cause undue hardship. 9 . To qualify as an undue hardship circumstance, the obligation to support the other children must be “a legal duty to support a child, other than” Chance. [5] 10 . As a parent, Mr. Downey has a legal obligation to support his other children. [6] 11 . Mr. Downey said he treats his 5 other children equally, paying $100 each month for each of them. 12 . Mr.

Downey provided copies of letters from the mothers of his other children stating the amount of support he pays each of them. Ms. Johnson agreed to admit these letters into evidence. 13 . The letters from the children’s mothers show that Mr. Downey doesn’t pay the same amount for each child: he pays slightly more for Elijah. Mr. Downey pays $100 for Azian, $100 for Tianna, $200 for Naiziyah and A’Laysha (sisters who live together with their mother), and $130 for Elijah. 14 . Mr.

Downey said that he also responds to requests for additional financial help from the children’s mothers to the tune of another $460 each month. 15 . In total, Mr. Downey’s monthly child support for his other children is $990: this is $430 less than the table amount for his other children. In doing this math, I haven’t considered the $100 Mr. Downey pays for Azian because Mr. Downey lives with Azian and Azian’s mother. 16 . For hardship to be “undue” it must be “more than awkward or inconvenient. It must be exceptional, excessive, or disproportionate in the circumstances.” [7] 17 . Mr.

Downey’s income for child support purposes is $44,561.99 (his gross income of $45,239.81 less his union dues of $677.82 ). His expenses are reasonable. He doesn’t have costs for a car or any transportation. His deficit derives from his child support and his payroll deductions, particularly his pension. His deficit anticipates the cost he will have for his children’s health insurance.

18 . Mr. Downey shares his household expenses with Azian’s mother. 19 . At his current rate of child support, Mr. Downey has a monthly shortfall of $325, before deducting his income taxes. I estimate his taxes at about $725 each month. Increasing his child support to the table amount would add $164, giving him a total monthly deficit of $1,214. 20 . Mr. Downey’s discretionary costs (phone, cable, toiletries, clothing, hair and grooming, gifts, holidays and entertainment) total $405. Covering his monthly deficit would require cutting into necessities such as his rent ($797.50) and food ($300). 21 .

Where his expenses are reasonable and shared, a monthly shortfall that equals 1/3 of his gross income is excessive. 22 . Because there is a circumstance which would cause undue hardship, I must compare household living standards. [8] Is the standard of living in Mr. Downey’s household lower than the standard of living in Ms. Johnson’s household? 23 . The Guidelines outline how to calculate and compare household living standards in

Schedule II. To do this, I must know the annual income of each person in each household. Ms. Johnson is the only person with an income in her household. In Mr. Downey’s household, his partner also has an income. 24 . On the Sunday before the Monday morning hearing, Mr. Downey emailed his partner’s unsworn Statement of Income to the court. He didn’t provide a copy to Ms. Johnson. She received it from the court shortly before the hearing began. Regardless, Ms. Johnson agreed to admit the Statement into evidence. 25 . Mr.

Downey’s partner didn’t provide proof of the $20,880 she said she receives as her maternity leave EI benefit. This benefit will likely stop at the end of March 2021, when her son turns 1. 26 . Mr. Downey doesn’t know what his partner’s job is. He said he doesn’t know what her income is. He estimated her income to be in the range of $40,000 - $50,000 because she works for the federal government. 27 . Without information about the income in Mr. Downey’s household, I can’t do the comparative standard of living calculation in

Schedule II . 28 . Where evidence is “insufficient to provide the information required to complete the standard of living comparison from

Schedule II of the Guidelines or to make any other meaningful assessment of the parties’ relative standards of living” I can dismiss an undue hardship application. [9] 29 .

Schedule II “may” be used to compare household standards of living. [10] It isn’t the only method of comparison. There’s another view about comparing household standards of living. [11] In a case where the mother’s annual household income was $112,000 and the father’s was imputed to be $35,000, Justice Campbell said this disparity “was sufficient for [him] to reach the conclusion that the [father] has the lower household standard of living.” [12] 30 .

Because I must use common sense and reason in applying the Guidelines , [13] I can compare household standards of living even without complete financial information from Mr. Downey’s partner. 31 . Ms. Johnson’s income for child support purposes is $124,801.75 (her gross annual income of $128,661.79 less her union dues of $3,860.04). 32 . For Mr. Downey’s household to have a standard of living higher than Ms. Johnson’s, his partner must contribute over $77,000 (after

Schedule II adjustments) to the household. This means she’d need to have an annual gross income of at least $111,000. She receives less than the maximum EI benefit of $30,940, so her income must be lower than the maximum insurable amount of $56,300. 33 . I conclude that the standard of living in Mr. Downey’s household is lower than that in Ms. Johnson’s. So, I “may” [14] deviate from the table amount of child support: I’m not required to do so. 34 . The table amount of child support for Chance at Mr. Downey’s current income is $383. 35 . On average, Mr. Downey provides $247.50 each month to his other children. This is $7.50 more than what he pays for Chance,

though in Chance’s case, this amount includes repayment of arrears. 36 . Mr. Downey said he spends $200 each month in access costs, in addition to the money he provides to his children’s mothers. He doesn’t spend time with Chance because of the tension between himself and Ms. Johnson about child support. 37 . There is a cost when a parent doesn’t have access with a child. The residential parent doesn’t have the resulting free time so there may be childcare costs if she needs child-free time to work or meet household responsibilities.

As well, a parent having access may meet some of the child’s costs, by providing meals or through other spending. 38 . I order Mr. Downey to pay monthly child support of $297.50 for Chance. $50 of this will be directed to repaying his arrears. Once the arrears are fully repaid, child support of $297.50 will continue, with the total amount as current child support. This brings Mr. Downey’s spending on Chance to the same level as his spending for his other children. It increases his deficit, but not to a point that is excessive. 39 .

The existing order restricted the Maintenance Enforcement Program to $25 each month in collecting child support arrears. This limit is increased, and the Maintenance Enforcement Program is restricted to $50 each month in collecting child support arrears. 40 . Putting Chance’s support at the same level as his half-siblings means Mr. Downey is treating the children equally, which is important to him. 41 . Starting on January 31, 2021 and continuing the last day of each following month, Mr. Downey must pay child maintenance of $297.50 for Chance Johnson. Second issue: whether and, if so, how much Mr.

Downey should contribute to Chance’s special or extraordinary expenses? 42 . Ms. Johnson says Chance’s annual extra-curricular activity cost is $2,615 and his annual health cost (glasses, braces) is about $1,240, after reimbursement from Ms. Johnson’s health insurance. Ms. Johnson doesn’t pay for her insurance coverage. Glasses are an ongoing cost, while braces are temporary. 43 . Mr. Downey is eligible to enrol his children into a family health and dental insurance plan at his workplace. He intends to do this during the next enrolment period in March 2021. This will cost $4,056.52 annually.

He has already budgeted for this in his Statement of Expenses so it will not increase his deficit. 44 . I may order a contribution to special expenses (such as health care costs [15] ) or extraordinary expenses (such as extra-curricular activities [16] ), if the expense is necessary in relation to Chance’s best interests, reasonable in relation to the parents’ means (and Chance’s), and it bears some relation the family’s pre-separation spending pattern. [17] 45 . The expenses are necessary, but the amount is not reasonable, considering Mr. Downey’s income and his expenses. So, I decline to order Mr.

Downey to contribute to them. 46 . I do order that Mr. Downey enrol Chance in the family health and dental insurance program at his workplace [18] and, within 14 days of enrolment, provide Ms. Johnson with: a. Details of the health and dental insurance coverage for Chance Johnson, b. Any health and dental insurance membership card, and c. Claim forms for the health and dental insurance. 47 . Channon Downey must provide Sitesha Johnson with any assistance required in processing health and dental insurance claims for Chance Johnson. 48 .

If reimbursement for any health or dental expense paid by Sitesha Johnson is paid to Channon Downey, he must provide the reimbursement to Sitesha Johnson within 48 hours of receiving it. Conclusion I allow Mr. Downey’s undue hardship claim. I order Mr. Downey to pay monthly child support of $297.50, of which $50 will be

directed toward repaying child support arrears. Once the arrears are fully repaid, the $297.50 will be entirely for current child support. I dismiss Ms. Johnson’s claim for an additional amount as a contribution to her expenses for Chance’s health and extra-curricular activities. I order Mr. Downey to add Chance to his workplace health and dental insurance coverage during the 2021 enrolment period. Mr. Downey must provide Ms. Johnson with information and documents relating to the coverage and assist her, as needed, in accessing it.

Support payments will be made through the Maintenance Enforcement Program to Sitesha Johnson. Annually, starting on June 1, 2021 and by June 1 of every year, Channon Downey and Sitesha Johnson will provide each other with a copy of his or her personal income tax return and all attachments, regardless of whether the tax return is filed. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)