Haile v. Yilm, 2015 NSSC 406

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Haile v. Yilm , 2015 NSSC 406 ENDORSEMENT August 24, 2015 Re: Eligu Haile and Almases Yilm Court File Number: 1201-060311

(43625) Colin M. Campbell, appearing on behalf of the Applicant, Eligu Haile Joyce M. Ruck De Peza, appearing on behalf of the Respondent, Almases Siyum Yilm [ 1 ] A Notice of Variation Application was filed by Eligu Haile on April 14, 2014. Mr. Haile applied pursuant to

section 17 of the Divorce Act seeking to vary the Variation Order issued July 15, 2013, which confirms many of the terms from the Corollary Relief Judgment issued January 12, 2010, (with some new terms consented to by the parties including terms for access and terms for Mr. Haile's contribution to orthodontic expenses for Dinah Ejigu). The Applicant Eligu Haile applied to vary child support, and the number of dependent children he must pay child support for pursuant to the Federal Child Support Guidelines. Eligu Haile claimed undue hardship. Decision : [ 2 ] There was a change of circumstances in that Ms.

Yilm's income has changed since the previous order. Ms. Yilm's income is found to be $49,443.81. Upon reviewing all the evidence with respect to Mr. Haile's income, income is imputed to Mr. Haile pursuant to s.19(1)(a)(t)(

g) and 19(2) of the Child Support Guidelines. The Court did not find the evidence supported a finding of undue hardship with respect to Mr. Haile's financial circumstances. [ 3 ] Mr. Haile's annual gross income is found to be $52,000.00, with business expenses of $20,000.00, resulting in a net income of $32,000.00 for the purpose of determining the child support in accordance with the Child Support Guidelines. This is considered by the Court to be a conservative estimate of what Mr. Haile's actual income is and the amount was chosen as, based on the evidence, Mr.

Haile has apparently been able to sustain himself and meet his financial obligations while paying child support based on an income of $32,000.00 since 2010. Based on an income of $32,000.00, Mr. Haile shall pay $623.00 per month for three children starting September 1, 2015 until April 2016 (last payment April 1, 2016) and thereafter Mr.

Haile shall pay $467.00 per month for two children (first payment of $467.00 shall be made on May 1, 2016). [ 4 ] Almases Yilm's annual gross income for the purpose of determining special or extraordinary expenses in accordance with the Child Support Guidelines is determined to be $49,443.81 for 2014 (Mr. Haile's income has been determined to be $32,000 for both 2013 and 2014). The incomes determined by the Court will be used for the purpose of determining the child support to be paid by Mr.

Haile in accordance with the Child Support Guidelines, and for the purpose of determining the parties' proportionate share of special or extraordinary expenses from April 24, 2014 onward. Mr. Haile had been ordered to pay $100 per month in special and extraordinary expenses as of April 2013. • In April 2013 Ms. Yilm's income, for the purpose of determining special or extraordinary expenses was $36,167.14, Mr. Haile's income was $32,000.00 (both those incomes were included in the Variation Order issued July 15, 2013).

▪ 2013 calculation $36,167.14 and $32,000.00 = $68,167.14 / by his then by hers: ▪ Her share was 53% ▪ His share was 47% and he was ordered to pay $100.00 per month o The Court finds there has been a change of circumstance since the date of Mr. Haile's application. Specifically, Ms. Yilm's income has increased from $36,167.14 (per previous Court Order) to $49,443.81 for 2014. o As of April 2014 Ms.

Yilm's income for the purpose of determining her proportionate share of special or extraordinary expenses shall be $49,443.81. ▪ 2014 calculation $49,443.81 and $32,000.00 = $81,443.81 / his and hers ▪ Her share would be 60% ▪ His share would be 40% o Mr. Haile is entitled to a credit of 7% of $100 per month (a credit toward arrears owing in relation to special or extraordinary expenses), specifically all special or extraordinary expenses owing after April 2014, the date of application (May 2014 to August 2015). ▪ 16 months x $7.00 = $112.00 credit for Mr.

Haile • Special or extraordinary expenses are to be paid on a prospective basis (tuition for Alta Gymnastics only) should be shared on a proportionate basis as between the parties (her income $49,443.81 (60%) and his income $32,000(40 %). o On a prospective basis Ms. Yilm and Mr. Haile shall pay his proportionate share of special or extraordinary expenses (tuition for Halifax Alta Gymnastics only) for Bethelhem Ejigu, born […], 2004. ▪ The tuition cost for 2015 - 2016 will be determined based on a previous years accounting of what was actually paid by Ms.

Yilm to Halifax Alta Gymnastics during the September 2014 - September 2015 period. ▪ Mr. Haile will be required to pay his proportionate share of tuition expenses after official receipts from Halifax Alta Gymnastics for the period 2014 - 15 have been provided to Mr. Haile by Ms. Yilm (receipts to be provided to Mr. Haile by September15, 2015). ▪ If the parties can come to an agreement on the amount owing for tuition Mr. Haile shall pay his proportionate share in equal installments beginning September 2015 and continuing through September 2016.

This Court reserves jurisdiction to hear the parties on this issue. ▪ If the parties are unable to agree to the amount for special or extraordinary expenses for tuition then the expectation would be that Ms. Yilm file all receipts with the Court by September 15, 2015 (in relation to tuition expenses for the period September 2014 - September 2015) and the matter be set down for a conference. ▪ Mr. Haile's proportionate share of tuition expenses for Halifax Alta Gymnastics shall be calculated in the same manner every year thereafter while the child continues to be involved in competitive gymnastics.

This Court reserves jurisdiction to hear the matter if the parties cannot agree. ▪ Ms. Yilm shall provide Mr. Haile with all relevant receipts for tuition only for 2015 / 16 by July 1, 2016 or earlier and by July 1 or earlier, every year thereafter (receipts from previous year). [ 5 ] Salome Ejigu, born […], 1994 (21), turned 19 on May 13, 2013 and therefore there has been a change of circumstance. The evidence has been considered and Salome Ejigu has been found to be a dependent child until she finishes her current program as anticipated in April 2016.

Child support for Solme Ejigu shall terminate May 1, 2016. [ 6 ] The parties did agree to reduce the arrears in child support owed by Mr. Haile in the amount of $633.00 as a credit for Mr. Haile caring for the children for a period of approximately one month. Reasons:

1. The Court found there were inconsistencies in the evidence and weaknesses in the testimony of both Mr. Haile and Ms. Yilm. 2. The Court finds that based on the evidence presented Mr. Haile is underreporting his actual income earned, and / or he has incurred unreasonable expenses, and / or he is underemployed and income should be imputed to him. There is no credible evidence before the Court to support a finding that Mr. Haile's health may impact on his ability to work. 3. The Court considered factors which should be considered when assessing a parent's capacity to earn an income as outlined in Smith v.

Helppi, 2011 NSCA 65 , Oland J.A and Justice Forgeron's decision in the Parsons case, 2012 NSSC 239 , which sets out the law on imputation of income at paragraphs 32 - 35. 4. The Court considered not only Mr. Haile's reported income earned (and as noted there was significant concern about whether all actual income earned from all sources was reflected in Mr. Haile's financial documents and / or concern whether expenses were "reasonable"). Mr. Haile has argued his income was never as high as what it has been deemed to be by the Court in the past and that he is not managing to meet his financial obligations.

Reported Income vs. Actual Income [ 7 ] The evidence presented in documents and in data gathered from Mr. Haile's transponder (which is affixed to his taxi/limousine), was obtained by way of Order for Production from the Ground Transportation Department of the Halifax Stanfield International Airport. The information contained therein reflects that Mr. Haile has a business known as Air Star Limo & Taxi and he holds a license to operate his limousine at the Halifax Stanfield International Airport. There is also evidence that Mr.

Haile benefits from an income as a result of "renting out" another roof light to a family member. [ 8 ] The documentation supports the conclusion Mr. Haile made a monthly average of 65 trips per month in 2010, an average of 69 trips per month in 2011, an average of 78 trips per month in 2012. Based on the figures available for 2013 Mr. Haile made an average of 79 trips per month and for 2014 an average of 79 trips. Mr.

Haile has suggested he had a car accident in December 2013 and as a result was unable to work much in December 2013 - 2014, there is no evidence presented of any car accident or injury sustained as a result of a car accident for the period in question. There was some evidence presented that Mr. Haile lost his driver's licence (Maintenance Enforcement Program) in and around December 2013 for non-payment of child support. [ 9 ] Mr. Haile's Notice of Assessment for 2010 taxation year indicates Mr. Haile earned $5,376.00 and his 2011 Assessment indicates he earned $2,185.00.

In 2010 the Court issued a Corollary Relief Judgement ordering Mr. Haile to pay child support to Ms. Yilm in the amount of $733.00 per month consisting of the table amount of $633.00 per month plus special or extraordinary expenses of $100.00 per month. The Maintenance Enforcement Program of Nova Scotia Record of Payments for 2011 and 2012 reflects that for the most part Mr. Haile was able to pay Ms. Yilm between $633.00 or $733.00 ($733 per the Court Order) during 2011 - 2012, despite the reported earnings noted above. [ 10 ] Those same records also reflect that Mr.

Haile mostly paid his monthly child support payment throughout 2013 but the Court did note there was a significant decline in the amounts of the monthly child support payments after Mr. Haile filed his Variation Application in April 2014. [ 11 ] There is no evidence to support the change in Mr. Haile's ability to pay child support as ordered by way of the Corollary Relief Order issued January 12, 2010 and confirmed by way of Variation Order issued July 2013. There is no credible evidence to support a finding that Mr.Haile's work circumstances have changed or his income has changed.

Unreasonable Expenses [ 12 ] The Court finds that on a balance of probabilities Mr. Haile has either not fully represented his actual income to the Court. In addition, the Court finds that if Mr. Haile is experiencing financial hardship due to his past / current work circumstances then he cannot continue to run a business which he claims has not been profitable for several years and will likely be even less profitable into the future,

so although Mr. Haile may have legitimate expenses, (there is a lack of evidence about those expenses), it is this Court's position that the expenses cannot be deemed "reasonable" and therefore a portion of the expenses should be added back to income. Ill Health [ 13 ] The Court considered evidence related to Mr. Haile's income earning capacity, having regard to his age, health, education, skills, employment history, history of working at the Halifax International Airport and his current circumstances. Mr.

Haile asserted that his income had been reduced or his income earning capacity was compromised by ill health and / or a past injury. The evidentiary burden therefore shifted to Mr. Haile. Mr. Haile provided no medical evidence with respect to his reported illnesses. Directions: [ 14 ] If there are further concerns with respect to the Court's decision with respect to special and extraordinary expenses then the parties should file position letters and all supporting documentation by September 15, 2015. Costs: [ 15 ] Having regard to the parties financial circumstances there shall be no costs of the application.

Cindy G. Cormier, J.S.C.(F.D.)