Fillmore v. Graves, 2011 NSSC 417

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Fillmore v. Graves, 2011 NSSC 417 Date: 20111031 Docket: SFH MCA 031740 Registry: Halifax Between: Timothy Lyall Fillmore Applicant v. Donna Marie Graves Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: October 31, 2011 Oral Decision: October 31, 2011 Written Decision: November 12, 2011 Keywords: child maintenance, retroactive child maintenance, imputing income Legislation: Nova Scotia Civil Procedure Rules (1972), Rule 70.28(9) Maintenance and Custody Act , R.S.N.S. 1989, c. 160 Nova Scotia Child Maintenance Guidelines , NS Reg 53/98, sections 3, 7(1) (b), 19(1) (

a) Result: Application to vary child maintenance retroactively dismissed. Income imputed and child maintenance amount varied from previous order.

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: Fillmore v. Graves , 2011 NSSC 417 Date: 20111031 Docket: SFH MCA 031740 Registry: Halifax Between: Timothy Lyall Fillmore Applicant v. Donna Marie Graves Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard: October 31, 2011 Oral Decision: October 31, 2011 Written Decision: November 12, 2011 Counsel: Timothy Fillmore representing himself Donna Graves representing herself

By the Court: Introduction [1] Tim Fillmore has applied to vary the amount of maintenance he pays for his son, Tyler. He asks that this amount be variedretroactively as of January 2008 and that the overpayment he says he has made be credited against future maintenance payments. Hewants the amount of his current payments to reflect his current annual income. Donna Graves opposes any retroactive variation. Shealso asks that Mr. Fillmore’s prospective child maintenance obligation be based on an annual imputed income of $30,000.00. Theapplications are pursuant to the Maintenance and Custody Act, R.S.N.S. 1989, c. 160,

section 8 and the Nova Scotia Child MaintenanceGuidelines, NS Reg 53/98. [2] I gave an oral decision at the end of the hearing. I’m providing written reasons so Mr. Fillmore and Ms. Graves will have arecord of my reasoning and my decision. Retroactive orders [3] When a parent applies to change a child maintenance order retroactively, the application isn’t automatically granted. At the sametime, the application need not be exceptional to be successful. The Supreme Court of Canada outlined how I’m to deal with applicationsto vary child maintenance awards retroactively in its decision, D.B.S. v. S.R.G.; L.J.W. v.

T.A.R.; Henry v. Henry; Heimstra v. Heimstra,2006 SCC 37. [4] In D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Heimstra v. Heimstra, 2006 SCC 37, the Supreme Court addressedretroactive applications in the context of four separate appeals where parents sought to increase the amount of child maintenance theyhad received in the past. Mr. Fillmore’s application is to decrease the amount of maintenance he was required to pay in the past. [5] In Murphy v.

Bert, 2007 NSSC 376, at paragraph 54, Justice Forgeron said that “The factors identified [in D.B.S.] are equallyrelevant to an application made by a non-custodial parent to retroactively reduce the quantum of maintenance payable.” I agree with thisconclusion. [6] Writing the majority decision for the Supreme Court of Canada, Justice Bastarache says I am to take a holistic approach toretroactive awards, balancing the competing principles of certainty and flexibility while respecting the core principles of childmaintenance.

The principle of certainty means that I respect a court order and don’t change it retroactively, only prospectively. Theprinciple of flexibility means that I may change an historic obligation. These principles compete with each other: each pulls in a differentdirection. In determining how to balance these competing principles, I am to respect the core principles of child maintenance which theSupreme Court of Canada articulated in Richardson, (SCC) and Willick, (SCC).

These core principlesare that: 1. child maintenance is the child’s right; 2. the child’s right to maintenance survives the breakdown of the parents’ relationship; 3. child maintenance should, as much as possible, perpetuate the standard of living the child experienced before the parents’relationship ended; and 4. the amount of child maintenance varies, based upon the parent’s income. [7] In determining whether a retroactive award is appropriate, I’m to consider: 1. the reason for the delay in bringing the application; 2. the conduct of the recipient parent; 3. the child’s past and present circumstances; and 4. whether a retroactive award would result in hardship. (I’ve modified the second consideration to reflect that this application is made by a parent paying maintenance, rather than one receivingmaintenance.) Each of these factors must be considered and no single one dictates whether I should make a retroactive award. [8] The order that Mr.

Fillmore seeks to vary was granted on February 15, 2005. An amended version, which corrected an error inthe original order, was granted on November 9, 2005. The order obliged him to pay monthly maintenance of $315.00 pursuant to section3 of the Nova Scotia Child Maintenance Guidelines and $29.37 pursuant to section 7(1)(

b) of the Guidelines. The latter amount was an

equal contribution to the cost of health insurance premiums for Tyler. Additionally, Mr. Fillmore was ordered to share equally receipted expenses for Tyler’s childcare and his sports activities. No amounts were specified as his contribution to these expenses. The reason for delay in bringing the application [ 9 ] Where a parent wants to vary the amount of maintenance paid, the parent has a positive obligation to make a variation application on a timely basis. In D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Heimstra v.

Heimstra , 2006 SCC 37 , Justice Bastarache said, at paragraph 100, that “The circumstances that surround the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified.” His comment is modified only by virtue of the fact that, in this case, it’s not the “choice” of Ms. Graves, but Mr. Fillmore that’s my focus. [ 10 ] When asked about the delay in bringing his application, Mr. Fillmore explained that he tried to change the order “a few times”.

He said that the change would be “just a little change” and “it’d get thrown over”. [ 11 ] In 2006 Mr. Fillmore wrote to the court about varying the order. He was directed to file a Variation Application and Intake form, a self-representation form and to pay the court’s filing fee. He didn’t pursue this. In 2007, Mr. Fillmore met with an intake worker and was directed to file a Parenting Statement and a record of his payments from the Maintenance Enforcement Program. He didn’t do this. In 2008, both Mr. Fillmore and Ms. Graves applied to vary the amount of child maintenance. According to court’s file, Mr.

Fillmore was notified that if he didn’t file the material necessary to advance his claim, it would be discontinued. The material wasn’t filed, so his claim was discontinued pursuant to Rule 70.28(9) of the Civil Procedure Rules then in force. Ms. Graves withdrew her application. [ 12 ] Mr. Fillmore’s child maintenance obligation in 2005 was based on annual income of $37,500.00. The information Mr. Fillmore has provided shows that in 2008 his income was $35,157.00. His income in 2009 was $29,083.00. In 2010, Mr.

Fillmore’s income was $19,495.00: his income was $18,005.00 less than the amount on which his child maintenance payments were based. [ 13 ] In the spring of 2011, Mr. Fillmore applied to vary child maintenance. This is the application I have. Mr. Fillmore has offered no explanation for his delay. He was not thwarted in any way from pursuing his earlier applications: he failed to follow through with them. [ 14 ] Not varying the child maintenance order retroactively responds to Ms. Graves’ interest in certainty. Ms. Graves testified that despite a court-ordered obligation to provide annual income disclosure, Mr.

Fillmore did not disclose his annual tax filings. She had no knowledge that his income had declined. Ms. Graves’ conduct [ 15 ] Blameworthy conduct is

an act or omission that puts the parent’s interests before the child’s right to an appropriate amount of maintenance. At paragraph 105 of D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Heimstra v. Heimstra , 2006 SCC 37 , Justice Bastarache said that this factor, combined with whether there was reasonable excuse for the delay in seeking the variation “establish that each parent’s behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case.” [ 16 ] I’ve considered Mr.

Fillmore’s behaviour in the context of his delay in bringing his variation application. Now, I consider Ms. Graves’ conduct. If her conduct interfered with Mr. Fillmore’s decision or efforts to pursue a variation application, this could promote making the retroactive order Mr. Fillmore seeks. For example, Mr. Fillmore might have testified that the reason he didn’t apply to vary earlier was because of something Ms. Graves did or said which dissuaded him from acting. To be clear, this is an example only: there’s no evidence of blameworthy conduct by Ms. Graves. [ 17 ] While this consideration focuses on Ms.

Graves’ conduct, she argues there is blameworthy conduct on Mr. Fillmore’s part. She says that he’s investing in his own future before investing in their son’s and he’s purchased expensive equipment for the business he plans to open rather than pay child maintenance. Mr. Fillmore says that his purchases have been funded by proceeds from a mortgage placed on his home.

[ 18 ] Until October 2010, Mr. Fillmore continued to pay child maintenance at the level ordered when his annual income was $37,500.00, even though his income was less than that in 2008, 2009 and 2010. Since October 2010, Mr. Fillmore has paid no child maintenance. [ 19 ] Mr. Fillmore has made contributions to Tyler in excess of what he was ordered to do. He equally shared the cost of a saxophone for Tyler and has assisted with buying school supplies. Ms. Graves acknowledges she had no health insurance plan for Tyler for approximately three years and, regardless of this, Mr.

Fillmore continued to pay approximately $30.00 each month for a health insurance plan for Tyler. [ 20 ] Mr. Fillmore wants to start a business and, while he does this, he’s bringing in a reduced income. He’s participating in a program funded by the government that assists individuals in starting businesses. He receives an income while he participates in this program and he is, as well, expected to earn some money to contribute to starting his business. In the long term, his decision to start the business may be a wise one.

Right now, the consequences of this decision are to deprive him of the ability to work at employment that would earn him greater income than he receives from the government program and to render him unable to pay the child maintenance he was ordered to pay. Tyler’s circumstances [ 21 ] I am to consider both Tyler’s needs at the time the child maintenance was paid and at the present. [ 22 ] Tyler, I’m told, is a talented and well regarded young man. He’s fifteen. He plays the guitar and is involved in wrestling at his school. Both Mr. Fillmore and Ms. Graves are proud of Tyler.

It seems that, whatever their disagreements about child maintenance, Tyler has been shielded from these disagreements. As I’ve said, there have been instances where both parents have co-operated to provide Tyler with extras. I cannot commend both parents enough for their co-operation. No doubt this has much to say about why Tyler is successful and well regarded. [ 23 ] Ms. Graves says that it’s been a struggle to support Tyler in his activities and that Tyler’s involvement in different activities has been limited by lack of money.

She has borne the burden of financing activities such as his Grade 9 class trip to Quebec and Ontario. She says that, as a young man, Tyler’s needs have become more expensive and it’s difficult to afford things and to ensure that the basics are provided. [ 24 ] If Tyler was well provided for during the time when the retroactive variation is sought, a retroactive order might be made. If he is currently well provided for, this, too, suggests that Mr. Fillmore’s application be granted. I’ve heard uncontradicted evidence that Tyler wasn’t able to take

part in certain activities because his mother didn’t have enough money to afford them in the past. Ms. Graves works at two jobs: she works as a bus driver and as a school monitor. During the summer months, she is unemployed and receives employment insurance benefits. Both in the past and right now, Tyler relies on his mother to meet his needs and, of the parents, she shoulders a greater share of the burden of supporting Tyler. Hardship [ 25 ] This final consideration relates to whether hardship would result from a retroactive award. Mr. Fillmore isn’t seeking return of the money he’s already paid to Ms.

Graves, so there is no issue of whether Ms. Graves and Tyler would suffer as a result of Ms. Graves having to repay Mr. Fillmore the amount he says he’s overpaid. [ 26 ] Mr. Fillmore asks that any amount he’s overpaid should be “on account” and credited against future payments. As a result, a retroactive variation would mean that Tyler’s future child maintenance payments would be underfunded. This would constitute a hardship for Tyler. Should the order be varied retroactively? [ 27 ] I’ve reviewed each of the four factors identified by Justice Bastarache in D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v.

Henry ; Heimstra v. Heimstra , 2006 SCC 37 . Mr. Fillmore has not provided a reasonable excuse for his delay. There is no blameworthy

conduct by Ms. Graves that suggests it’s appropriate to vary the order retroactively. Mr. Fillmore’s work to establish a new business, intentionally or not, impairs his ability to sustain his child maintenance payments. There’s been no evidence that the planned business will result in greater income for Mr. Fillmore, though certainly this is Mr. Fillmore’s hope. Tyler’s circumstances indicate that, even with additional assistance from his father in the past, he has been deprived. A retroactive variation would continue that deprivation, constituting hardship. [ 28 ] I understand Mr.

Fillmore’s motivation to start a business and hope that he realizes his goal of improving his circumstances by doing this. Child maintenance is intended to finance a child’s present needs. Mr. Fillmore’s pursuit of his plan to start a business puts Tyler’s immediate needs in second place, behind starting the business. This is the wrong priority. [ 29 ] As a result of these considerations, I conclude that it is not appropriate to vary the amount of child maintenance to be paid for Tyler retroactively. The November 2005 order is in effect for the past.

Imputing income [ 30 ] The second part of this application relates to Mr. Fillmore’s current child maintenance obligation. Ms. Graves hasn’t filed a Statement of Special or Extraordinary Expenses, so I’m only concerned with maintenance pursuant to

section 3 of the Child Maintenance Guidelines . [ 31 ] Ms. Graves asks that I impute income of $30,000.00 to Mr. Fillmore, based on his past tax returns. [ 32 ] Imputing income is governed by

section 19 of the Nova Scotia Child Maintenance Guidelines . I can only impute income in certain circumstances that relate to the paying parent’s income. In her testimony and submissions, Ms. Graves raised concerns about the parties’ property division and her own bankruptcy. These circumstances aren’t relevant to imputing income to Mr. Fillmore. Section 19(1) of the Guidelines says that I may impute income where I consider it appropriate. Some circumstances where imputing income might be appropriate are listed, but the list isn’t complete.

The list includes, in section 19(1)(a), circumstances where “the parent is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child [ . . . ] or by the reasonable educational or health needs of the parent”. [ 33 ] The “intention” in section 19(1)(

a) refers to the parent’s intention to be in his or her current circumstances, not an intention to defeat his or her child maintenance obligation. At paragraph 35 of the Court of Appeal’s decision in Montgomery , 2000 NSCA 2 , Justice Pugsley wrote: “Section 19 does not establish any restriction on the court to imputing income only in those situations where the applicant has intended to evade child support obligations, or alternatively, recklessly disregarded the needs of his children in furtherance of his own career aspirations. [my emphasis]” [ 34 ] I have no evidence that Mr.

Fillmore’s current employment circumstances are required by his reasonable health or educational needs. I recognize that Mr. Fillmore is involved in a program designed to assist him in starting his own business. I have no evidence that he is unable to work, unable to find work or otherwise in need of participating in this program. Based on Montgomery , 2000 NSCA 2 , at paragraph 37 , the issue of reasonableness isn’t limited to Mr.

Fillmore’s circumstances, but includes all the circumstances, including Tyler’s financial circumstances, so that, in deciding whether to impute income, I ensure that Tyler receives a fair standard of maintenance as set out in the Guidelines ’ objectives . [ 35 ] I understand Mr. Fillmore is working to establish a business hoping it will lead to greater future income. Ms. Graves says this is Mr. Fillmore using Tyler’s child maintenance “to make a better future for Mr. Fillmore”. [ 36 ] A core principle of child maintenance is that it is the child’s right.

As a parent, one’s first obligation is to support one’s child. Children’s needs are immediate: they need sneakers, school supplies, shelter and food and they need these things now. They don’t need better sneakers, nicer school supplies, more luxurious shelter and fancier food at some future point. Meeting today’s needs cannot be postponed to the future. I understand Mr. Fillmore’s desire to improve his circumstances. This ought not to be in priority to meeting his obligation to maintain Tyler. [ 37 ] I am prepared to impute income to Mr. Fillmore.

I find he is intentionally underemployed and this isn’t necessitated by his reasonable educational or health needs.

[ 38 ] Ms. Graves asks that I impute an annual income of $30,000.00 to Mr. Fillmore, based on his income. In 2007, Mr. Fillmore had taxable income of $37,582.00. In 2008, his annual income was $35,157.00. In 2009, his annual income was $29,083.00 and in 2010, while he’s been involved in the government program, his annual income was $19,495.00. [ 39 ] Certainly, until he became involved in the government program, $30,000.00 was an appropriate amount for Mr. Fillmore’s income. Accordingly, I impute an annual income of $30,000.00 to Mr. Fillmore and I order him to pay monthly child maintenance for Tyler of $268.00 pursuant to

section 3 of the Nova Scotia Child Maintenance Guidelines . Conclusion [ 40 ] The order which is currently in place requires monthly child maintenance payments of $344.37. This amount is comprised of monthly maintenance of $315.00 pursuant to

section 3 of the Nova Scotia Child Maintenance Guidelines and a monthly contribution of $29.37 toward medical insurance premiums. Additionally, Mr. Fillmore was ordered to reimburse Ms. Graves for one-half the cost of receipted child care expenses and sports expenses. The order was granted on the basis of the parties’ consent. [ 41 ] In the application before me, there was no request for a contribution to special or extraordinary expenses for Tyler. My decision relates to child maintenance pursuant to

section 3 of the Nova Scotia Child Maintenance Guidelines . I have imputed an annual income of $30,000.00 to Mr. Fillmore pursuant to section 19(1)(

a) of the Guidelines and, on this basis, I order him to pay child maintenance of $268.00 each month for Tyler, pursuant to

section 3 of the Nova Scotia Child Maintenance Guidelines . The new payment amount will begin on November 2, 2011. [ 42 ] The order arising from this hearing will be prepared and sent to Mr. Fillmore, Ms. Graves and to the Maintenance Enforcement Program. The order will require each parent to provide the other with a copy of his or her complete income tax return, including copies of all schedules and attachments, and the Notice of Assessment and any Notice of Reassessment received from the Canada Revenue Agency each year. _______________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia