Miller v. Miller, 2021 NSSC 152

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Miller v. Miller , 2021 NSSC 152 ENDORSEMENT May 7, 2021 2021 NSSC 152 Tracey-Lynn Miller v. Thomas Joseph Miller SFHD-1201-071779

(113718) Determine whether appropriate provision has been made for child support under

section 3 and

section 7 of the Nova Scotia Child Support Guidelines . Hearing date: March 29, 2021 Decision: As of June 15, 2020, I find both parties had notice that Nathan had chosen to live primarily with Ms. Miller leading up to the start of his post-secondary program at St. Mary’s University. As of March 1, 2021, on what may be a temporary basis, Avery began living primarily with Mr. Miller. The issue of Avery’s placement is not final. No retroactive child support is ordered between November 15, 2019 and May 15, 2020. Mr. Miller owes retroactive child support of $3,496.00 to Ms.

Miller for the period between June 15, 2020 and April 15, 2021. Assuming Avery continues to live primarily with Mr. Miller, as of May 15, 2021 Mr. Miller must pay prospective s. 3 child support of $415.00 per month (split parenting) to Ms. Miller and retroactive s. 3 child support of $291 per month (until the $3,496 is paid in full) for a total of $706 per month in prospective and retroactive table amount of child support beginning May 15, 2021.

As of July 15, 2022 the parties’ previous year line 150 total annual income for child support included in their T1 General, Assessment and any Re-Assessment will be used to adjust child support on July 15 every year. Both parties must continue to pay their proportionate share of both Nathan’s and Avery’s expenses. Mr. Miller shall continue to pay spousal support of $250.00 per month. Application to Review parenting and child support: 1 . On July 20, 2020, Tracey Miller filed a Notice of Variation Application. Pursuant to

section 17 of the Divorce Act Ms. Miller sought changes to the Corollary Relief Order (CRO) granted on August 26, 2019. Ms. Miller requested the Court change the parenting arrangement for the parties’ eldest child Nathan, change the table amount of child support being paid prospectively and retroactively vary child support to November 5, 2020. Ms. Miller argued there had been a change in Nathan’s circumstances and changes to the parties’ incomes which would both result in a different child support order. 2 . In her brief filed with the Court Ms.

Miller also requested clarification of certain terms included in the CRO regarding holiday parenting time and regular parenting time. I did not grant the CRO and I am not able to clarify the terms without the consent of both parties. 3 . Mr. Miller did not file a Response to the Variation Application. At a conference with the Court held in January 2021 Mr. Miller suggested changes should be made to the terms in the CRO dealing with

section 7 expenses and with spousal support. Background information: 4 . The parties began cohabitating in March 1997, they were married on October 11, 1997 and they separated on March 28, 2017. 5 . In November 2017 Mr. Miller was found to have an income of approximately $82,762 and Ms. Miller to have an income of $24,000. The Order reflects that the parties acknowledged Nathan was living primarily with Ms. Miller and he would continue spend time with each parent as he wished. The parties had a week about parenting

schedule for Avery. Mr. Miller was ordered to pay child support of $946.00 per month to Ms. Miller. Binding Settlement Conference August 2019: 6 . On August 26, 2019, the parties attended a binding judicial settlement conference. A final decision was rendered on all outstanding issues. The parties’ CRO was issued on November 5, 2019 and their divorce was effective December 6, 2019.

7 . Mr. Miller was ordered to continue to pay $946.00 to Ms. Miller for two additional months after the binding settlement conference at the end of August 2019, 15 th of September 2019 and on the 15 th of October 2019. As of November 15, 2019, Mr. Miller was ordered to start paying $505 per month in child support and $250.00 per month in spousal support. Child support was to be adjusted based on their total incomes on July 15 each year. 8 . The Maintenance Enforcement Record for the period March 27, 2018 through to March 1, 2021 reflects that Mr.

Miller paid his child support and spousal support based on the CRO issued November 5, 2019. As of February 17, 2021, there were no arrears owing but also no evidence the parties had adjusted child support July 15, 2020. 9 . The relevant clauses of the parties’ CRO include: … 8. The parties’ son, Nathan’s, parenting time is subject to his wishes, given his age. Currently, Nathan is residing in a week on week off shared parenting schedule. If either parent is aware of a change in Nathan’s regular

schedule they shall notify the other parent. 9. The regular parenting

schedule shall be a week about alternating schedule, with the changeover time to be 7:00 p.m. on Sunday evenings… … 14. If either parent proposes to change the exchange time, this must be discussed only between the parties, and agreed to prior to the change taking place… … 22. Child support shall be based on Tracey Miller’s imputed income of $34,038.00, and Thomas Miller’s income of $71,973.00.

Given the shared parenting arrangement, the table amount of child support owing by Tracey Miller to Thomas Miller is $510.00 per month, and the table amount of child support owing by Thomas Miller to Tracey Miller is $l,015.00 per month. The total set off amount of child support which will be paid each month by Thomas Miller to Tracey Miller, is $505.00. This amount of child support shall commence on November 15, 2019 and will continue on the 15 th day of each month thereafter. 23.

For the months of September and October, 2019, the Holding Order, issued on February 7, 2018, shall remain in full force and effect, as it relates to child support, but not as it relates to parenting and the home equity line of credit. 24. The parties shall share proportionately based on their incomes, in ( sic )

section 7 expenses for the parties’ children… … 26. The parties agree that as of the date of issuance of the order, there is no outstanding retroactive child support or

section 7 expenses. 27. Mr. Miller shall maintain his current life insurance policy, which is valued at the value of one year of his salary. He will maintain this plan for the children, with Tracey Miller as Trustee, for as long as the children are children of the marriage. 28. No later than June 1 of each year, the parties must provide each other with a copy of his/her income tax return, completed and with all attachments, even if the return is not filed with the Canada Revenue Agency, and also provide each other with all Notices of Assessment the Canada Revenue Agency, immediately after they are received. 29.

An adjustment in the set-off amount of child support shall be calculated to commence as of July 15 th each year. Given the fact that Tracey Miller’s income as set out in this order, is imputed, if her income increases above $34,038.00, the increased income amount will be used for the purposes of determining the set-off, but if her income in any subsequent year is below $34,038.00, then the amount of $34,038.00 will be used as Tracey Miller’s imputed income. 30.

Commencing November 15, 2019 and continuing on the 15 th day of each month thereafter, Thomas Miller shall pay Tracey Miller spousal support in the amount of $250.00 per month. This amount shall be tax deductible for Thomas Miller, and shall be taxable income to Tracey Miller. … Change in circumstances: 10 . The parties’ both acknowledge a change in the parties’ parenting arrangement for Nathan and a change in their incomes since the CRO was granted in August 2019. 11 .

The parties acknowledge that when the CRO was granted in August 2019 their stated understanding of Nathan’s intentions was that he would be living with both parents in a week about parenting arrangement.

12 . However, in Mr. Miller’s Parenting Statement, signed on or about September 3, 2020, Mr. Miller indicated Nathan was “currently living mainly with mom and visiting dad as he wishes” and he proposed “Avery will live in a shared parenting arrangement between Tracey Miller’s home and my home while Nate resides primarily with his mother and visits with me as he wishes.” Law Shared Care/Hybrid cases/Split Care 13 . The case of Contino v. Leonelli-Contino , 2005 SCC 63 has been recognized by judges for the following propositions about shared parenting arrangements: a.

Justice Bastarache determined that an equitable division of the costs of support for children in shared custody situations is a difficult matter; and is not amenable to simple solutions. He found that any attempt to apply strict formulae would fail to recognize the reality of various families. He directed trial judges to use a contextual approach which must take into account all three factors enunciated by Parliament in s. 9 of the Guidelines . Contino v. Leonelli-Contino , 2005 SCC 63 , paragraph 82 . b.

Justice Bastarache directed that consideration be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs, resources and situation of the parents and any child. He stated that a full consideration of the situation would allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family were properly accounted for. He found that this approach was meant to ensure a fair level of child support. Contino v. Leonelli-Contino , supra , paragraph 27. c.

Justice Bastarache recognized that it was quite possible that after a careful review of all the factors in s. 9, a trial judge would come to the conclusion that the Guidelines amount would remain the proper amount of child support (see, e.g., Berry v. Hart (2003), 233 D.L.R. (4 th ) 1 , 2003 BCCA 659 ). Thus, Justice Bastarache found that not only was there no presumption in favour of awarding at least the Guidelines amount under s.3, there was no presumption in favour of reducing the parent’s child support obligation downward from the Guidelines amount ( Wensley , at pp. 89-90). Contino v.

Leonelli-Contino , supra , paragraphs 30-31. d. Justice Bastarache found that the underlying principle of the Guidelines is that “spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” ( Divorce Act , s.26.1(2) . Contino v. Leonelli-Contino , supra , paragraph 32. This principle also applies to dependent children under the Parenting and Support Act . e.

Justice Bastarache has directed that judges must consider the objectives of predictability, consistency, and efficiency on the one hand, and balance those objectives with those of fairness, flexibility and a recognition of the actual condition(s), means, needs and other circumstances of the child. f.

Justice Bastarache commented that Parliament, in adopting s.9, deliberately chose to emphasize the objectives of fairness, flexibility and recognition of actual conditions, means and needs and other circumstances of each spouse and any child for whom support is sought, even to the detriment of predictability, consistency and efficiency to some degree. Contino v. Leonelli-Contino , supra , paragraph 33. (my emphasis) 14 .

In considering this matter I must keep in mind that the framework of s. 9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support. 15 . Step one:

section 9(

a) a. I must determine the set-off – the amount each parent would pay the other pursuant to

section 3. However, Justice Bastarache has clearly found that the set-off amount has no presumptive value. Contino v. Leonelli-Contino , supra , paragraph 49. b. In the context of his comments about subsection 9(

a) of the Guidelines , Justice Bastarache adopted the following assumptions regarding the Table amount: the Table amount is the average expenditure of parents with the referable income, the Table amount is based on the average expenditure of parents and consideration of the ability to pay of parents, and that the set-off assumes each parent has an

equal share of variable expenses. c. Justice Bastarache determined that judges retain discretion to modify the set-off amount if, considering the parents’ financial realities, the set-off would “lead to a significant variation in the standard of living experienced by the children as they move from one household to the other” because “one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households.” Contino v. Leonelli-Contino , supra , paragraph 51. d.

Justice Bastarache has found that the simple set-off is preferable to the pro-rated set-off as a starting point for the s. 9 analysis in… as it disproportionately impacts the lower income spouse (see Green v. Green , at para 32). Contino v. Leonelli-Contino , supra , paragraph 44. Step two:

section 9(

b) e. Justice Bastarache directed that if there is an actual change in the amount of time a payor parent spends with a child this would give rise under s. 9(

b) to an inquiry in order to determine what are, in effect, the additional costs incurred by the payor as a result of the change in the custodial arrangement. 16 . I am directed to consider the exact nature of either child’s shared parenting arrangement. I must consider whether there are additional expenses for transportation or duplication of items? 17 . In shared parenting, the amount of child support usually includes special expenses and extraordinary expenses (section 7), and I must consider these, including available subsidies and benefits, tax deductions and credits. 18 . Under s.9(

b) the court is called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. 19 . In March 2019, prior to the CRO being granted, Ms. Miller referenced certain expenses either she had or both she and Mr. Miller had contributed to for Nathan and for Avery. For instance, for Nathan Ms.

Miller reported contributing toward his curling expenses, his Goodlife membership, his driver training, and expenses related to a surgery, dental services, prescriptions, glasses, gas, and parking. For Avery Ms. Miller reported contributing to summer camp (she claimed she paid $333.00, 100%), curling expenses, guides (she claimed she paid $250, almost 100%), school home alone program (she claimed she paid $40.00, 100%), dental expenses, psychological services, gas and parking. 20 . In August 2019, the parties presented their evidence and their arguments at a binding settlement conference.

The Court made a decision in relation to all outstanding corollary relief issues: property was divided, Mr. Miller was ordered to pay the set off of $505 per month in s. 3 child support, both parties were ordered to pay their proportionate share of s. 7 expenses, and Mr. Miller was ordered to pay $250 per month in spousal support. The Court considered the shared parenting arrangement in place for both children and determined the above noted child support would ensure the children were supported by both parents according to their means. 21 . When Ms.

Miller filed her Notice of Variation Application on July 30, 2020, Ms. Miller was claiming that only Avery was in the parties’ shared care. In her Statement of Expenses. Ms. Miller indicated she was covering the cost for Nathan’s cellular telephone ($28.75), Nathan’s car insurance, 32% of Nathan’s post secondary expenses and Nathan’s expenses for glasses if purchased that year. With respect to Avery, Ms. Miller indicated she was paying for Avery’s cellular telephone ($40.25) and that although Avery’s braces are covered by Blue Cross Ms. Miller suggested “at home maintenance is not covered”. 22 .

On September 4, 2020, Mr. Miller filed his Statement of Expenses and he indicated he was covering expenses related to transporting Nathan and Avery, that he was paying the children’s medical and dental premiums, and that he was contributing to the costs for Avery’s curling. I understand Mr. Miller was also paying 68% of any of Nathan’s outstanding post-secondary expenses. 23 . I understand the parties’ have some savings to assist Nathan with his post-secondary expenses and they share extra post-secondary expenses proportionately. Mr. Miller continues to pay Ms. Miller spousal support of $250 per month and Ms.

Miller receives the Canada

Child Benefit. Step three:

section 9(c) 24 . This subsection vests judges with “a broad discretion for conducting an analysis of the resources and needs of both the parents and the children”: paragraph 68, Contino v. Leonelli-Contino , supra . I am directed to consider the children’s standard of living in each household and each parent’s ability to manage the costs of maintaining the appropriate standard of living: paragraph 68, Contino v. Leonelli-Contino , supra . 25 . It is open to me to find that a shared parenting arrangement may not result in any saving.

It’s possible to presume, in the absence of evidence to the contrary, that the parent with the lower income may have fixed costs that are unchanged and variable costs that have been reduced only modestly: paragraph 54, Contino v. Leonelli-Contino , supra . I am obligated to consider the conditions, means, needs and other circumstances of each parent and of any child for whom support is sought. 26 . The Court’s decision in August 2019 was based on a shared parenting arrangement for both children and the disclosure available at that time. The parties consented to the binding settlement conference.

If full disclosure of income, expenses, and property (which comprises the parties’ “means”) was not complete at that time it is not possible for either party to complain about lack of disclosure after the fact. I cannot reconsider evidence could have been available at the time of the binding settlement conference but was not. 27 . I have considered the financial disclosure available to the Court and the Partial Agreement and Minutes of Settlement incorporated by the Court into the CRO granted on August 26, 2019.

The goal at that time was to “avoid a disparity between the standards of living the children have in each household and enabling each parent to manage the cost of maintaining an appropriate standard of living for the children”. The Court’s decision is presumed to be correct until child support was scheduled to be adjusted as of July 15, 2020, based on any changes to the parties’ incomes. Hybrid Cases 28 . In “Hybrid” cases, where only some of the children fall within

section 9 but not all the children, courts have calculated the set-off considering how many children are with each parent and then worked through s. 9(

b) and (

c) exercising discretion in fixing a final amount for support. Between June 15, 2020 and February 15, 2021, I find both parents were aware Nathan was residing primarily with Ms. Miller. Avery continued sharing her time between both homes. Split Custody 29 . Where each party has care of one child, the amount of child support is the difference between the amount that each party would otherwise pay if a child support order was sought against each of the parties pursuant to

section 8 of the Child Support Guidelines . As of March 1, 2021, Nathan continued to live primarily with his mother Ms. Miller and Avery began living primarily with Mr. Miller. Relief Requested Retroactive Variation Parenting and Child Support (DBS factors) 30 . Ms. Miller has asked me to use my discretion to consider evidence about Nathan’s parenting arrangement and vary child support retroactively to November 2019. When deciding whether or not to retroactively vary the terms of an Order I must consider the following: Ms. Miller’s delay in seeking to change Mr. Miller’s child support payments; whether Mr.

Miller has acted in a blameworthy way; Noah and Avery’s circumstances when the child support ought to have been paid; and whether a retroactive award would cause Mr. Miller any undue hardship. 31 . While the words “undue hardship are used in the context of a retroactive child maintenance claim, they do not have the strict meaning provided by

section 10 of the Child Support Guidelines in this context. 32 . The parties’ CRO specifies that Nathan’s “parenting time is subject to his wishes, given his age” and that “if either parent is aware of a change in Nathan’s regular

schedule they shall notify the other parent”. According to the terms of the CRO “the regular parenting

schedule was a week about alternating schedule, with the changeover time to be 7:00 p.m. on Sunday evenings”. 33 . In July 2020, Ms. Miller filed a Notice of Variation Application. She claimed Nathan had been living primarily with her as of October 2019 and she argued that child support should be adjusted to reflect Nathan had been living with her “100% effective November

5, 2019”. As of November 15, 2019 Mr. Miller’s regular child support payment of $946.00 per month was scheduled to be reduced to $505 per month in child support and $250 per month in spousal support for a total support payment of $755.00 per month. 34 . Mr. Miller objected to Ms. Miller’s claim that Nathan was living 100% with her. He stated that Nathan was “back and forth” between his and Ms. Miller’s homes “as he wished” according to the terms of the CRO granted in August 2019. Mr. Miller indicated that he did not “keep count” between the date the CRO was granted and the date when Ms.

Miller filed her Notice of Variation Application in July 2020. 35 . Mr. Miller argued that previously (after an Order was granted in 2017) her continued to pay child support as ordered despite Nathan choosing to live primarily with Mr. Miller for a period. He argued that until September 2020, child support for Nathan should continue to be based on a shared care arrangement and specifically the set-off child support based on the parties’ respective incomes and a proportionate sharing of expenses. 36 . Ms. Miller attached as exhibits to her affidavit numerous electronic messages she sent to Mr.

Miller on the following dates: October 7, 10, 11, 12, 24, 25, 26; November 3, 4, 5, 6, 8, 9, 17, 18, 19, 20, 22, 23; December 1, 2, 3, 4, 5, 6, 7, 15, 16, 17, 18, 19, 20, 21, 2019, when Nathan was scheduled to be with Mr. Miller. These messages to Mr. Miller simply state “Nate is spending the night at my home tonight, and not at your place”. Ms. Miller does not specify whether Nathan had been at his father’s home earlier on any of the specified dates and she did not give Mr. Miller any notice that she expected a change in the payment of child support. 37 . If I accept Ms.

Miller’s evidence that Nathan spent the dates identified in October, November and December 2019 with Ms. Miller, and I attribute those days as Ms. Miller’s parenting days instead of Mr. Miller’s for the purposes of determining if there was a shared parenting arrangement, I still find it is more likely than not that Mr. Miller had care of Nathan at least 40% of the time between January 2019 and December 2019. It is not necessary that I find Mr. Miller had Nathan 50% of the time in 2019, the CRO allowed for Nathan to choose to be with either parent. 38 . Ms. Miller delayed notifying Mr.

Miller of any expectation there would be a change in child support. Given Nathan’s history of care and the expectations of the parties after the CRO was granted, I am not prepared to retroactively adjust child support before I find Mr. Miller knew, or should have know, that Nathan had made an explicit choice to live primarily with his mother. 39 . The CRO does not contemplate an immediate change in child support payments to recognize where Nathan was spending most of his time.

I find that under the circumstances the parties were obligated to give clear notice to the other of any expected change to the child support arrangements. I find that the set-off child support ordered by the Court on August 26, 2019 continued to be a fair apportioning of the parties’ financial responsibilities until June 15, 2020, when I find Mr. Miller ought to have known a change in his child support payment was anticipated. Avery 40 . Both parties acknowledge: Mr. Miller had regular shared parenting time with Avery November 15, 2019 through March 14, 2020; that Ms. Miller denied Mr.

Miller parenting time with Avery and Nathan between March 15, 2020 and June 14, 2020; and that Mr. Miller’s regular parenting time with Avery resumed around June 15, 2020. 41 . Ms. Miller stated that she denied Mr. Miller parenting time with both children between March 15, 2020 and June 14, 2020 due to concerns related to Covid 19. I do not accept Ms. Miller’s decision to deny Mr. Miller’s court ordered in person parenting time was a valid decision supported by her evidence or any direction from the Nova Scotia Health Authority regarding exceptions for court ordered parenting time. 42 .

Considering Avery’s circumstances between January 2020 and December 2020, I find that although Ms. Miller denied Mr. Miller his court ordered 50% in person parenting with Avery between March 15, 2020 and June 14, 2020, it is still more likely than not that Mr. Miller had at least 40% parenting time with Avery in 2020. Nathan 43 . Ms. Miller attached as exhibits to her affidavit several electronic messages she sent to Mr. Miller in the month of January 2020. Once again, her messages mostly stated, “Nate is spending the night at my home tonight, and not at your place”.

For some of the same reasons noted above at paragraphs 34, 36, and 37, I am not prepared to place much weight on the electronic messages Ms. Miller sent to Mr. Miller in January 2020.

44 . However, Mr. Miller reported that Nathan told him he preferred to live primarily with his mother for convenience while he was attending Saint Mary’s University. It is unclear when Mr. Miller and Nathan had their conversation. I find it is more likely than not that Nathan communicated his intentions to live with his mother to both his mother and to Mr. Miller before Ms. Miller made her application to the Court in July 2020. 45 . In deciding whether to exercise my discretion to award retroactive child support for the period before Ms.

Miller filed her application in July 2020, I have kept in mind the Court’s emphasis on the objectives of fairness, flexibility and recognition of actual conditions, means and needs and other circumstances of each spouse and any child for whom support is sought when considering the factors from D.B.S. v. S.R.G . [2006] 2 S.C.R. 231 , 2006 SCC 37 : a. Ms. Miller delayed seeking to change Mr. Miller’s child support payments: Given the past history between the parties and the lack of reference to any change in child support dependent on where Nathan chose to live, I find Ms. Miller’s online messages to Mr.

Miller were insufficient notice to change the child support arrangements. b. Before the CRO was granted and after, Mr. Miller paid his child support. Mr. Miller acknowledged Nathan’s choice to live with his mother due to her proximity to St. Mary’s University. I do have concerns about Mr. Miller’s disclosure of his total income for child support, including any bonus’. c. It is of concern to me that Ms. Miller would expect the Court to retroactively change the terms of the CRO just over two months after it was granted and just a few days before child support was set to decrease. I am also concerned that Ms.

Miller unilaterally decided Mr. Miller could not have contact with the children between March 15, 2020 and June 14, 2020. Ms. Miller made it impossible for Mr. Miller to offset costs during that period and Ms. Miller now wants to recover those costs. d. Mr. Miller’s child support will be adjusted based on Nathan being in Ms. Miller’s primary care as of June 15, 2020, and as of July 15, 2020 Mr. Miller’s child support will be adjusted based on Mr. Miller’s actual 2020 annual income for child support between July 15, 2020 and April 15, 2022. Given the above noted changes to s. 3 child support, Mr.

Miller’s responsibility to pay a larger portion of all the children’s expenses and his responsibility to pay spousal support, Mr. Miller may pay off the $3,496.00 retroactive award by paying an extra $291.00 as of May 15, 2021 and every month thereafter until the full amount is paid off. 46 . I am prepared to use my discretion to retroactively vary child support based on Nathan living primarily with his mother as of June 15, 2020. The parenting provisions in the CRO will continue to allow Nathan the flexibility to live with either parent. 47 .

Effective June 15, 2020, child support will be adjusted to reflect the Hybrid nature of the parenting arrangement with Nathan living primarily with Ms. Miller onward and then adjusted again to account for a split care arrangement as of March 15, 2021, with Avery living primarily with Mr. Miller. It is yet to be determined whether it is in Avery’s best interests to change the parenting arrangement outlined in the CRO. 48 . The parties have acknowledged there have been some unhappy differences between Avery and her mother. Mr.

Miller observed Avery refused to return to her mother’s home following his parenting time between February 17 and February 20, 2021. Mr. Miller claimed that Avery has been seeing a child psychologist due to issues in her relationship with Ms. Miller. Mr. Miller suggested child support should be adjusted to account for a split parenting arrangement as Avery is living primarily with him. 49 . Ms. Miller suggested Avery’s move to her father’s home would be temporary. Ms.

Miller argued that the Court should not adjust Avery’s primary place of residence as of March 1, 2021, but instead the Court should offset this period (when Avery has been residing primarily with Mr. Miller), with the period when Ms. Miller would not allow either children to have in person contact with Mr. Miller March 15 and June 14, 2020. I am not prepared to retroactively vary child support for the period between March 15, 2020 and June 14, 2020. 50 . Mr. Miller is expected to encourage Avery to comply with the parties’ court ordered shared parenting arrangement.

The issue of Avery’s placement has not been determined. Two weeks in advance of any further conferences the parties must file a pre-conference

summary outlining their position regarding Avery only. They may file an Affidavit, or any Reports from Avery’s service providers including her psychologist, which they wish to have before the Court. All materials must be filed two weeks in advance.

51 . If the parties would like the Court to have information about Avery’s stated wishes, then with the consent in writing from both parties, the Court will grant an Order for a Voice of the Child Report. With a Voice of the Child Report Avery would get a “voice” and not a “choice”. Avery would have an opportunity to speak with a professional about any factors influencing her preference either way. I am not prepared to place a great deal of weight on what Avery relays to either party in circumstances when there is ongoing conflict. 52 .

If the parties both consent to a Voice of the Child Report, the court will use their most recent financial information and divide the cost of the Report proportionately between the parties. The Court would need both parties’ consent in writing. The parties can read more about Voice of the Child Reports on the Supreme Court of Nova Scotia’s website. Thomas Miller’s income 53 . Mr. Miller argued that the Court should use the parties’ “base” salaries for 2021, his of $71,297 and hers of $39,603 when determining child support, “spousal support, and any special or extraordinary expenses”. Mr.

Miller’s 2016 income was used for the Holding Order. Based on Mr. Miller’s tax reassessment he earned $84,761.00 in 2016. In 2017 it appears Mr. Miller earned $73,966.00; in 2018 Mr. Miller had income of $93,973.00 including RRSP income of $22,000.00 which he suggested was used to pay legal fees. 54 . In August 2019, after considering all Corollary Relief issues, the Court determined it would use Mr.

Miller’s previous year (2018) total income for child support of $71,973.00 (without RRSP income) to determine child support starting November 15, 2019 with an adjustment planned based on any change of income as of July 15, 2020. 55 . In 2019 Mr. Miller had a total income for child support of $123,010 with income from RRSP’s of $39,500 for an annual income for child support of $83,510.00. 56 . Ms. Miller argued that the Court should not have used Mr. Miller’s “base” salary to calculate his annual income for child support. I am not prepared to revisit the Court’s decision to use Mr.

Miller’s previous year’s income from 2018 to determine his child support beginning November 15, 2019 through July 15, 2020. The Order granted in August 2019 is presumed to be correct and I am not prepared to adjust either party’s annual income for child support between November 15, 2019 until July 15, 2020. 57 . Mr. Miller provided his T4 for 2020 indicating his employment income was $87,666.59. He did not provide his T1 General, his Notice of Assessment or any Notice of Reassessment. Mr.

Miller stated that his 2020 employment income included: “his base salary, 1time bonus and Covid 19 bonus for continuing to work during a pandemic”. He argued the Court should use his “base salary” of $71,297. 58 . Mr. Miller’s total annual income for child support for 2020 is $87,666.59 and will be used to calculate child support owing between July 15, 2020 and June 15, 2021. I find that in August 2019 Mr. Miller underestimated his income and I further find that I do not have sufficiently reliable information to determine what Mr.

Miller’s total annual income (including any bonus) will be for 2021, therefore I have decided to use the most current and reliable information I have which is Mr. Miller’s previous year’s (2020) total income of $87,666.59 for the period between July 15, 2021 and June 15, 2022. 59 . As of July 15, 2022, the parties use their line 150 total income for child support from the previous year to determine the total annual income for the table amount of child support.

Both parties must provide the other party with all T4’s, their T1 General with all attachments, their Notice of Assessment and their Notice of Reassessment for 2021 and every year thereafter when child support is owing. 60 . Any children’s expenses shall be shared proportionately (income – spousal support for Mr. Miller / income + spousal support for Ms. Miller). Tracey Miller’s Income 61 . Ms. Miller argued that the Court should not have imputed her annual income for child support at $34,038.00 at the time the CRO was granted in August 2019.

She claimed that the imputed income “does not reflect her actual income” at that time. Ms. Miller’s line 150 income in 2017 was $24,473.00; and in 2018 it was $24,814.00. Ms. Miller’s financial information was before the Court at the time the binding settlement conference was held in August 2019. 62 . The Court chose to impute income to her despite her actual known income. In August 2019, the Court determined Ms. Miller was making a choice to not be fully employed. The Court imputed an income closer to what Ms. Miller would earn on a full-time basis, it imputed an income of $34,038.00.

63 . The term imputing Ms. Miller’s income reads as follows: “unless her income increases above $34,038.00”, and then the “increased income amount will be used for the purposes of determining the set-off but if her income in any subsequent year is below $34,038.00, then the amount of $34,038.00 will be used as Tracey Miller’s imputed income”. 64 . Ms. Miller’s line 150 income in 2019 was $25,761.00 and based on her T4 for 2020 her income was $25,686.00. In March 2021, Ms. Miller started a full-time position with a salary of $39,603.00 per year. I have adjusted Ms.

Miller’s annual income for child support to $39,603.00 as of March 15, 2021. 65 . As of March 1, 2021, Ms. Miller has been working full time and she is now earning more than the income the Court imputed to her in August 2019. 66 . At trial Mr. Miller questioned what other income Ms. Miller may have received in 2020, including any CERB benefits she may have received or any disability payments she may have received or may be scheduled to receive. I am satisfied that Ms.

Miller’s imputed income, at approximately $8,000.00 above her actual salary, is a fair representation of the income which was or could have been available to her. 67 . Mr. Miller requested the Court include spousal support as income for Ms. Miller. I am not able to consider spousal support paid by Mr. Miller to Ms. Miller when determining the amount of child support payable pursuant to s.3 of the Child Support Guidelines (table amount). However, I must consider spousal support paid by Mr. Miller to Ms.

Miller when determining each parties’ income when assigning a proportionate sharing of the children’s expenses and I have done so. 68 . In considering Ms. Miller’s application to vary child support I have prioritized child support over spousal support. I do not intend to change any of the provisions originally included in the party’s CRO. The Variation Order will include a

preamble explaining the children’s circumstances (Nathan choosing to live with Ms. Miller on a go forward basis and Avery choosing to live with Mr. Miller temporarily). 69 . The following chart depicts the adjustments I have made to child support based on the existing terms of the CRO and my findings of fact. Time Frame Mr. Miller’s income MS. Miller’s income Child support paid Child support November 15, 2019 – May 15, 2020 Shared care Mr. Miller’s income s. 3 $71,973 ($1015 two children) 2018 per CRO August 2019 used previous year income Income for s.7 subtract spousal support per CRO Ms.

Miller’s income for s.3 imputed at $34,038 per CRO ($510 two children) $1015 - $510 = $505 Income for s. 7 includes spousal support Mr. Miller paid set off s. 3 child $505.00 per month s. 7 - 68% for Mr. Miller, 32% for Ms. Miller Sec 3 $505 until adjust income July 15, 2020 Mr. Miller Also ordered to pay spousal support of $250 per month) $0 owed

June 15, 2020 – hybrid case: Mr. Miller’s two child amount – Ms. Miller’s one child amount = set off Mr. Miller’s income s. 3 $71,973 ($1015 two children) 2018 per CRO August 2019 used previous year income Mr. Miller’s Income for S. 7 subtract spousal support per CRO Ms. Miller’s income for s. 3 imputed at $34,038 per CRO ($291 one child) $1016 - $291 = $725 Ms. Miller’s income for S.7 includes spousal support per CRO Mr. Miller paid $505.00 per month, difference: $725 – 505 = $220 Mr. Miller underpaid s. 3 by $220 Continue proportionate sharing s. 7 Must continue to pay spousal of $250 July 15, 2020 Adjust parties’ incomes per CRO parties’ income / set off / 9(

b) and 9(c) – July 15, 2020 – June 15, 2021 Mr. Miller’s income s. 3 $87,666.59 ($1228 two children) at trial use 2020 most accurate income vs previous year” Mr. Miller’s 2020 income - spousal for s. 7 = $84,666.59. Ms. Miller’s income for s. 3 imputed at $34,038 per CRO ($291 one child) $1228 - $291 = $937 Ms. Miller’s imputed income + spousal for s. 7 = $37,038 Mr. Miller paid $505 per month difference: $937 - $505 = $432 Mr. Miller 69% of s. 7, Ms. Miller 31% Mr.

Miller underpaid s. 3 by $432 Continue proportionate sharing s. 7 Must continue to pay spousal of $250 August 15, 2020 – February 15, 2021 Hybrid case continued - One child shared and other primarily with Ms. Miller Mr. Miller’s income for s. 3 $87,666.59 for 2020 ($1228 two children) Mr. Miller’s 2020 income – spousal for s. 7 $84,666.59. Ms. Miller’s income for s.3 imputed at $34,038 per CRO ($291 one child) $1228 – 291= $937 Ms. Miller’s imputed income + spousal $37,038 Mr. Miller paid $505 per month difference: $937 - $505 = $432 x 7 = Mr. Miller must pay 69% of s. 7, Ms. Miller 31% of s. 7 Mr.

Miller notionally underpaid s. 3 by $3,024.00 . Proportionate sharing continues difference for

section 1% Spousal $250 March 15, 2021 – April 15, 2021 Split parenting - Nathan continuing to live with his mother and Avery is living with her father Mr. Miller’s income for s. 3 $87,666.50 for 2020 ($753 one child) Mr. Miller’s income for s. 7 expenses – spousal support is $84,666.59 (67%) Ms. Miller’s income for s. 3 adjusted to $39,603.00 new full-time employment ($338 one child) $753 - $338 = $415 Ms. Miller’s income for s. 7 expenses + spousal support is Mr. Miller paid $505 per month difference: $505 - $415 = $90 overpayment x 2 = $180 Mr. Miller pays 67% Ms. Miller pays 33% Mr.

Miller overpaid s. 3 by $180.00 Proportionate sharing continues Spousal support at $250.00 Time Frame Mr. Miller’s income MS. Miller’s income Child support paid Child support

$3,496 underpayment s. 3 child support May 15, 2021 and June 15, 2021- Assuming Nathan remains with Ms. Miller and Avery remains with Mr. Miller Mr. Miller’s income for s. 3 $87,666.50 for 2020 ($753 one child) Mr. Miller’s income for s. 7 expenses is $84,666.59 (67%) Ms. Miller’s income for s. 3 adjusted to $39,603.00 new full-time employment ($338 one child) Ms. Miller’s income for s. 7 expenses is $42,603.00 (33%) Mr. Miller must pay s. 3 child support of $415.00 per month.

Both parties must pay their proportionate amount of s. 7 expenses s. 3 $415 per month s.7 proportionate share of expenses continues for both Avery and Nathan spousal $250.00 July 15, 2021 – June 15, 2022 Mr. Miller failed to file income information for 2020 imputed to $90,000.00. Mr. Miller’s income use 2020 income (previous year’s income per CRO) $87,666.50 ($753 one child) If Avery returns to shared care use ($1228 two child amount) either one or two child amount until June 15, 2022 Mr. Miller’s 2020 income – spousal is $84,666.59 Ms.

Miller’s income for s. 3 use 2020 (previous year’s income per CRO) $39,603.00 ($338 one child) $753 - $338 = $415 Ms. Miller’s income for s.7 is 2020 income + spousal $42,603.00 Mr. Miller must pay s. 3 child support of $415.00 per month Both parties continue to pay their proportionate share of s. 7 expenses Mr. Miller pays 67% and Ms. Miller pays 33% s. 3 $415 per month + s. 7 proportionate share of expenses continues for both Avery and Nathan Spousal support of $250 continues Time Frame Mr. Miller’s income MS. Miller’s income Child support paid Child support Directions : 70 .

Please advise the Court by May 31, 2021, if there is agreement between the parties to proceed with a Voice of the Child Report. Please file your Affidavit with any Exhibits (Reports) and your pre-conference letter explaining your position at least two weeks before the conference to address ongoing parenting arrangements for Avery. 71 . The Court will prepare the Variation Order. It will include: 72 .

Preamble: a. Findings with respect to the party’s incomes: i. Mr. Miller’s income for child support continues to be $71,973 until June 15, 2020. His income for child support is $87,666.59 between July 15, 2020 and June 15, 2022, to be adjusted based on his previous year’s line 150 income (including any bonus’ or settlements on July 15, 2022 and every year thereafter; ii. Ms. Miller’s income for child support continues to be $34,038 until February 15, 2021.

Her income for child support is $39,603.00 between March 15, 2021 until June 15, 2022, to be adjusted based on her previous year’s line 150 total income (including any bonus’ or settlements) on July 15, 2022 and every year thereafter; Parenting terms from the Corollary Relief Order granted in August 2019 continue: b. Nathan has chosen to live primarily with his mother but may choose to reside wherever he chooses.

c. Mr. Miller’s and Ms. Miller’s parenting time with Avery has not been fully considered and the parenting terms included in the CRO remain effective. Child support d. As of May 15, 2021, Mr. Miller must pay prospective child support to Ms. Miller pursuant to s. 3 based on a split parenting arrangement at $415 per month. The child support shall be adjusted based on a hybrid parenting arrangement the month after Avery begins residing with her mother at least 40% in any month; e. Mr. Miller’s child support has been adjusted retroactively based on Nathan being in Ms. Miller’s primary care as of June 15, 2020. Mr.

Miller’s child support has also been adjusted as of July 15, 2020, based on Mr. Miller’s actual 2020 total annual income for child support for the period between July 15, 2020 and April 15, 2021. f. Mr. Miller shall pay Ms. Miller $3,496.00 for the period between June 15, 2020 and April 15, 2021. As of May 15, 2021, he shall pay an extra $291.00 per month until he has paid the entire $3,496.00 to Ms. Miller. g. As of May 15, 2021, Mr.

Miller’s monthly table amount of child support payment shall be $415 (split care) + $291 in retroactive child support for a total of $706 per month in prospective and retroactive table amount of child support. h. As of May 15, 2021, both parties shall continue to pay all children’s expenses proportionate to the line 150 total income (- spousal support for Mr. Miller / + spousal support for Ms. Miller). i. Maintenance Enforcement provisions will be included in the Variation Order. Costs: 73 . If either party wishes to be heard in relation to costs, they may file a brief with the Court. Ms.

Miller must file her brief by May 31, 2021, Mr. Miller may file his brief by June 15, 2021, and Ms. Miller may file any reply by June 22, 2021. _____________________________ Cindy G. Cormier, J.S.C.(F.D.)