Parnell v. Hubley-Parnell, 2012 NSSC 437

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Parnell v. Hubley-Parnell, 2012 NSSC 437 Date: 20121217 Docket: SFH MCA 037750 Registry: Halifax Between: Patrick Robert Parnell Applicant v. Nadine Elizabeth Hubley-Parnell Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: December 10, 2012

Summary: Variation of child maintenance payments. Income imputed to mother. Consideration and calculation of various expenses under

section 7 of the Nova Scotia Child Maintenance Guidelines . Key words: variation, child maintenance, special or extraordinary expenses , extracurricular activities, health related expenses, insurance premiums attributable to the child, imputing income Legislation: Maintenance and Custody Act , R.N.S.N. 1989, c. 160 Nova Scotia Child Maintenance Guidelines, NS Reg 53/98,

section 3 ,

section 7 ,

section 19 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: Parnell v. Hubley-Parnell, 2012 NSSC 437 Date: 20121217 Docket: SFH MCA 37750 Registry: Halifax Between: Patrick Robert Parnell Applicant v. Nadine Elizabeth Hubley-Parnell Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : December 10, 2012 Counsel: Sheena R. McCarthy for Patrick Parnell J. Gary G. Jewett for Nadine Hubley-Parnell Introduction [ 1 ] In May 2009 Patrick Parnell applied to vary his child maintenance obligation pursuant to an order of February 2007.

His wife, Nadine Hubley-Parnell, filed a Response, seeking to vary child maintenance payments retroactive to March 1, 2007. All payments relate to their daughter, Jasmine, and are pursuant to the Maintenance and Custody Act , R.S.N.S. 1989, c. 160 and the Nova Scotia Child Maintenance Guidelines , NS Reg 53/98 . [ 2 ] In the 2007 order, Justice Gass imputed an annual income of $28,000.00 to Mr. Parnell. Her order required him to pay monthly child maintenance payments of $249.00 pursuant to clause 3(1)(

a) of the Guidelines and $30.00 toward the costs of Jasmine’s child care expenses, pursuant to clause 7(1)(

a) of the Guidelines. While the order didn’t specify the total amount of Jasmine’s child care expense, the transcript of Justice Gass’s reasons makes clear that Mr. Parnell was not contributing to child care expenses in proportion to his income. Agreements [ 3 ] There is no dispute that there has been a change in circumstances which warrants revising the terms of the 2007 child maintenance order. The parties participated in a settlement conference earlier this fall where Ms.

Hubley-Parnell agreed that her retroactive claim for child maintenance would be restricted to 2011. [ 4 ] At the conclusion of the hearing before me, Mr. Parnell agreed that his income should be fixed at $29,745.00 for the purpose of determining his child maintenance obligation for 2011. Ms. Hubley-Parnell agreed that she would contribute to the cost of the health and dental insurance that Mr. Parnell maintains for Jasmine through his employment.

Matters in dispute [5] I’m asked to determine the child maintenance that Mr. Parnell should pay for Jasmine currently and since 2011. The requestfor child maintenance includes a request that Mr. Parnell contribute to certain expenses which Ms. Hubley-Parnell claims are special orextraordinary and I must calculate the amount Ms. Hubley-Parnell contributes to Jasmine’s health insurance costs. [6] I’ll begin with the claim pursuant to clause 3(1)(

a) and then turn to the claim for a contribution to Jasmine’s other costs. Child maintenance pursuant to clause 3(1)(

a) of the Guidelines 2011 [7] The parties agreed that Mr. Parnell’s 2011 income was $29,745.00. Based on this annual income, Mr. Parnell’s childmaintenance payment pursuant to clause 3(1)(

a) of the Guidelines in 2011 should have been $265.00 per month. [8] In 2011, Mr. Parnell paid monthly child maintenance of $249.00. Therefore he underpaid his child maintenance obligation by$16.00 each month. For 2011, the shortfall was $192.00. 2012 [9] Mr. Parnell began to work at Metro Suzuki on March 19, 2012. He earns an hourly wage of $14.00. He isn’t paid for hislunch hour and the number of hours he works each week varies. If Mr. Parnell works a full week and takes off his lunch, he’s paid for37.5 hours. I was given four paystubs for Mr. Parnell.

These showed his hours are variable: on occasion he has worked more than 37.5hours during a week and on occasion he’s worked less. [10] Mr. Parnell asks that I determine his annual income to be $27,500.00. At an hourly rate of $14.00, this equates to workingapproximately 1,964 hours. Assuming a 37.5 hour work week, 1,964 hours translates to fifty-two weeks of work annually. Mr. Parnelllives in his parents’ home where he assists with their care: both have health needs which can, sometimes, take him away from his work. Mr.

Parnell claims his responsibility for his parents impinges on his ability to work, but he is willing to accept an annual wage rate that’sequivalent to full-time work without any holidays. [11] In her affidavit, Ms. Hubley-Parnell suggested that when Mr. Parnell’s last job ended he should have returned to school oraccepted a sales position that was offered to him. Mr. Parnell acknowledged that the Native Council of Nova Scotia would havesupported him in furthering his education.

He said that he’d be more than forty-four years old when the proposed course was finishedand that he wasn’t a very good student and his marks were poor when he was in school. Concerned about “where [furthering myeducation] would put me”, he chose not to undertake further studies. He rejected the offer of a sales position because the remunerationwas entirely commission-based. Both of these decisions were reasonable ones. [12] I accept Mr. Parnell’s submission that his 2012 income should be deemed to be $27,500.00.

Based on this, I order him to makemonthly child maintenance payments of $228.00, based on clause 3(1)(

a) of the Guidelines. [13] This year, Mr. Parnell has paid monthly child maintenance of $249.00. He has overpaid his child maintenance by $21.00 eachmonth. For 2012, his overpayment was $252.00. Child maintenance pursuant to

section 7 of the Guidelines [14] According to subsection 7(1) of the Guidelines, one parent can ask that I order the other to pay all or any portion of certainenumerated expenses in addition to the child maintenance due pursuant to clause 3(1)(

a) of the Guidelines. The amount of the expenseclaimed may be estimated. In making an order under

section 7, I am to consider the necessity of the expense as it relates to the child’sbest interests and the reasonableness of the expense in relation to the parents’ and child’s means and the family’s pre-separationspending pattern. [15] In L.K.S. v.

D.M.C.T., 2008 NSCA 61 at paragraph 27, Justice Roscoe, with whom Justices Saunders and Oland concurred,said that it’s “preferable to deal first with s. 7(1) to determine whether the expenses are necessary in relation to the child’s best interestsand reasonable in relation to the means of the parents before dealing with the definition of extraordinary expenses in s. 7(1A).” Leave toappeal the Court of Appeal’s decision to the Supreme Court of Canada was denied at D.M.C.T. v. L.K.S., (S.C.C.). While L.K.S. v.

D.M.C.T., 2008 NSCA 61 dealt specifically with a claim for a contribution to extraordinary secondary school expenses,the requirements of subsection 7(1) apply to all the expenses listed in

section 7. [16] It’s important for those seeking a contribution to special or extraordinary expenses to adduce evidence of the necessity of theexpense as it relates to the child’s best interests, the reasonableness of the expense in relation to the means of the parents and the childand the family’s pre-separation spending pattern. All too often, a Statement of Special or Extraordinary Expenses is partially completedand filed as if this, alone, is sufficient to meet the requirements of subsection 7(1) of the Guidelines. It is not.

A Statement of Special orExtraordinary Expenses merely identifies the categories in which claims are advanced and the amount of the expenditure. All too often,as here, the Statement does not does not identify the available subsidies, benefits and tax deductions or credits and no effort is made tocalculate their impact on the gross cost. [17] So, before I may order a contribution to an expense, I must be satisfied the expense is necessary as it relates to the child’s bestinterests.

I must also be satisfied the expense is reasonable in relation to the means of the parents and the child, and to the pattern ofspending that existed for the family prior to the separation. Once I have completed that analysis, if I determine the expense is necessaryand reasonable pursuant to subsection 7(1), I must then look to whatever additional requirements exist. For example, child care expensesmust be incurred as a result of the parent’s employment, illness, disability, education or employment training. Health-related expensesmust exceed insurance reimbursement by at least $100.00 annually.

Educational expenses (other than university costs) and extra-curricular activity expenses must be extraordinary, as defined by subsection 7(1A).

[ 18 ] The guiding principle in ordering a contribution to special or extraordinary expenses is that it be in proportion to the parents’ incomes, according to subsection 7(2) of the Guidelines . Once I’ve determined which expenses are to be shared and the amount to be shared, I’ll determine how the parents shall contribute to the cost. The necessity of the expense as it relates to the child’s best interests [ 19 ] The first consideration in subsection 7(1) of the Guidelines is whether an expense is necessary as it relates to Jasmine’s best interests.

Overall, I’ve been given scant evidence as to Jasmine’s best interests. In some regards, this means I cannot conclude that an expense is necessary as it relates to her best interests. In other regards, I am able to conclude that the expense is necessary without direct evidence on the point. The reasonableness of the expense in relation to the means of the parents and the child [ 20 ] The second consideration in subsection 7(1) is the reasonableness of the expense in relation to the means of the parents and the child. This means looking at the financial situation of Jasmine and her parents. Mr.

Parnell’s means [ 21 ] It’s agreed that Mr. Parnell’s income in 2011 was $29,745.00. His Statement of Property shows him to have extremely limited means: he is buying a car from his mother, he has a pension, $300.00 - $400.00 worth of mechanical tools and approximately $13,900.00 in debt. He lives with his parents. Ms. Hubley-Parnell’s means [ 22 ] Mr. Parnell asks that I impute income to Ms. Hubley-Parnell. He argues that if Ms. Hubley-Parnell was a child maintenance payor she would surely have income imputed to her. [ 23 ] According to her tax returns and her testimony, Ms.

Hubley Parnell is running a business as a personal trainer which is all but failing. She testified that she works sixty hours each week and described her normal work day as requiring her to get up at 4:30 a.m. so she could be on the road at 5:40 a.m. She said that she sees clients until two or three o’clock or four or five o’clock in the afternoon and, at another point in her testimony, testified that she might see a few clients between 6:30 and 8:00 in the evening.

She testified that during her downtime she works at business development (advertising, creating a newsletter and website, planning group fitness lessons), which she does until 10:30 or 11:00 p.m. [ 24 ] Ms. Hubley-Parnell has been self-employed as a personal trainer for the past three years. Regardless of her long hours, Ms. Hubley-Parnell’s annual net income has never exceeded $7,800.00: in 2009, her net income was $4,936.00; in 2010, it was $7,368.00; and in 2011, it was $7,701.00.

Historically, her own records of her gross earnings and business expenses are less favourable than the accounting on her personal tax return. To the end of September 2012, she calculates she’s earned net income of $1,762.62. [ 25 ] Admittedly, her self-employment allows her to deduct costs related to her home, car and clothing. In her own records, she deducts ninety percent of the cost of her car and thirty-three percent of the cost of her mortgage, property tax, property insurance, electricity, oil, water, household maintenance and internet expenses. [ 26 ] In the past, Ms.

Hubley-Parnell supplemented her self-employment earnings by working as a gymnastics coach. She stopped doing this in June 2012. [ 27 ] Ms. Hubley-Parnell says she and Jasmine make crafts and have yard sales. The money they earn from doing this is intended to pay for a cruise which they plan to take in the spring of 2013. This income doesn’t appear on her Statement of Income. [ 28 ] Ms. Hubley-Parnell has been a member in a bartering group, called All Trade. Through this group she provided personal training services to other members and was paid for her services with services the other members could provide.

She says that in this way she paid for a trip to Cuba and consultation with an interior designer. She says she’s done only “a little bit” of work through All Trade this year. [ 29 ] For four months this year Ms. Hubley-Parnell rented out a portion of her home to a “roomer” who paid her $475.00 per month. She is undecided whether she wants to do this again. [ 30 ] Ms. Hubley-Parnell described her financial circumstances. She says that she was behind on her mortgage payments “for a couple of months” and that she’s accessed Nova Scotia Power’s program to assist those who cannot afford their electricity bills.

She was very upset when describing the fact that she’s had to go to the food bank. [ 31 ] Ms. Hubley-Parnell says she’s thought about doing other work and that she hasn’t decided how long she’ll continue her personal training business. She believes it can be a success and says she has some ideas she wants to try. [ 32 ] Mr. Parnell argued that Ms. Hubley-Parnell could earn more if she worked at a job where she earned minimum wage. Ms. Hubley-Parnell agreed there is no reason why she couldn’t work full-time at a minimum wage job. [ 33 ]

Section 19 of the Guidelines allows me to impute an amount of income to a parent as I consider appropriate in the circumstances. Suggested circumstances include where a parent’s intentionally under-employed, except where this is required by the child’s needs or the parent’s health or education needs. Ms. Hubley-Parnell’s underemployed without such justification. [ 34 ] Ms. Hubley-Parnell’s evidence is that she is working extremely hard. Her gross earnings as a personal trainer have ranged from $14,294.00 to $20,788.00 in the past three years.

Accepting that she works sixty hours each week for forty-eight weeks each year, she is earning an hourly wage in the range of $4.96 and $7.22 – based on her gross earnings. Looking at her net earnings (which range

between $4,936.00 and $7,701.00), she is earning between $1.71 and $2.67 per hour. [ 35 ] Ms. Hubley-Parnell is distressed by her inability to provide for Jasmine’s basic needs, however she didn’t explain why she continues to work as a personal trainer rather than looking for more profitable work. Perhaps she has not focussed on how hard she is working and how little she is earning for all her efforts. [ 36 ] I believe this is an appropriate circumstance to impute income to Ms. Hubley-Parnell. Working 37.5 hours for forty-eight weeks each year at the current minimum wage rate of $10.15 would provide Ms.

Hubley-Parnell with annual income of over $19,000.00 – more than twice as much as she has earned from her self-employment – though she would be working significantly less than her current sixty hour work week. [ 37 ] In considering the means of the parents and all other analysis where I’m required to consider Ms. Hubley-Parnell’s income, I impute to her an annual income of $19,000.00. [ 38 ] Ms. Hubley-Parnell’s means are not limited to her income. According to her Statement of Property, she and her parents own a home valued at $225,000.00. The first mortgage is $85,000.00.

She says there is also a “lien type mortgage” on the house, but she didn’t indicate the amount borrowed. She testified that she pays the full amount of the mortgage. She owns a car. Her business has $5,800.00 in its savings account comprised of training fees her clients have paid in advance. She has $9,200.00 in debt in addition to her mortgage. Jasmine’s means [ 39 ] Jasmine is eleven. She has no means. The family’s pre-separation spending pattern [ 40 ] The third consideration arising in subsection 7(1) is the history of the family’s pre-separation spending. [ 41 ] I don’t have this history.

For this family, this is not surprising. The parents married in 1996. The separated seven years later when Jasmine was approximately two years old. (I have taken these dates from Justice Gass’s order: in various other documents, such as intake forms and affidavits, other dates are used.) In any event, the couple’s spending during these years would not tell me much about their expenditures for Jasmine. 2011 [ 42 ] For 2011, Ms. Hubley-Parnell seeks a contribution from Mr.

Parnell to expenses for child care, health-related expenses (osteopathic treatment, orthotics, dental care, and an eye exam) and extra-curricular activities (soccer). [ 43 ] As I analyse Ms. Hubley-Parnell’s claims it appears that some of them have no basis in the Guidelines . Child care expenses: clause 7(1)(

a) of the Guidelines [ 44 ] There was no dispute that Jasmine’s enrolment in the Excel program was a result of Ms. Hubley-Parnell’s work. Child care is necessary as it relates to Jasmine’s best interests. [ 45 ] According to Ms. Hubley-Parnell’s 2011 tax return, she paid $751.50 for child care in 2011. Subsection 7(3) of the Guidelines tell me that I must take into account “any subsidies, benefits or income tax deductions or credits” relating to expenses. I’ve imputed an annual income of $19,000.00 to Ms. Hubley-Parnell’s income. At this annual income, Ms.

Hubley-Parnell’s marginal tax rate is approximately twenty-nine percent. In the absence of calculations of the net of tax cost of Jasmine’s child care from Ms. Hubley- Parnell’s counsel, I estimate the after-tax cost of Jasmine’s child care to be $533.56. [ 46 ] The cost is reasonable in all regards. Health related expenses: clause 7(1)(

c) of the Guidelines [ 47 ] Ms. Hubley-Parnell seeks a contribution to a number of health related expenses: osteopathic treatment, orthotics, dental care, and an eye exam. I’ll review each expense in turn. Osteopathic treatments [ 48 ] I’ve been provided with a receipt from Beech Street Health Centre indicating that Jasmine had one-half a massage session and three osteopathic treatments (each lasting half an hour) in 2011. The total cost of these treatments was $297.50. There was no explanation of the nature of these treatments or why Jasmine required them. Mr.

Parnell suggested that Jasmine could receive treatment at private clinics which could be accessed through the Dartmouth General Hospital at no cost. [ 49 ] There was no evidence that Ms. Hubley-Parnell attempted to pursue the option of no cost treatments at any point. If treatment was necessary for Jasmine, I would expect that Ms. Hubley-Parnell would at least attempt to obtain no cost treatments when she found she was unable to continue to afford treatments in 2011. [ 50 ] In the absence of an explanation for these treatments and efforts to provide Jasmine with these treatments at no cost when Ms.

Hubley-Parnell said she couldn’t afford them, I conclude that they were not necessary for Jasmine’s best interests. Orthotics [ 51 ] The orthotics expense relates to a single purchase of orthotics which occurred in 2010. According to Mr. Parnell, Jasmine has

worn these once when she got them two years ago and she typically wears sandals or flip flops. [ 52 ] Ms. Hubley-Parnell has limited her claims to those in 2011 and after. This expense was incurred in 2010. According to Mr. Parnell, his health insurance coverage covered the cost of the orthotics. [ 53 ] Clause 7(1)(

c) of the Guidelines says that I may order a contribution to a health related expense that exceeds insurance reimbursement by at least $100.00 annually. It appears that the cost of the orthotics was fully reimbursed by the insurance, so there is no amount that qualifies for a contribution by Mr. Parnell. Dental care [ 54 ] The receipt relating to Jasmine’s dental care detailed two semi-annual visits to the dentist. The total charge for 2011 was $567.20. The detailed invoice shows that insurance coverage paid $499.40 of this cost, leaving an expense of $67.80. Eye exam [ 55 ] The eye exam expense was for $95.00.

According to the reporting letter, Jasmine was seen by an optometrist in June 2011. Her vision was 20/20 in both eyes, there were no abnormalities in her ocular health and she had no need for glasses. Because her eyes didn’t turn in (“converge”) as much as they could when Jasmine reads, it was recommended that she be monitored annually, though this situation wasn’t causing any symptoms. [ 56 ] It appears the annual examination fee of $95.00 was not covered by Mr. Parnell’s health insurance. The expense may have been incurred just as he left his employment and his insurance was discontinued. Mr.

Parnell provided a receipt, signed by Ms. Hubley- Parnell, indicating that he gave her $50.00 for this. [ 57 ] In total, I find that Jasmine had health related expenses of $162.80 for dental care and an eye exam that were necessary in her best interests and reasonable in light of the family’s financial circumstances. This amount is after any insurance reimbursement. [ 58 ] Clause 7(1)(

c) limits sharing to those expenses which exceed insurance reimbursement by $100.00. Accordingly, where Jasmine’s health related expenses were $162.80, I consider only $62.80. [ 59 ] I must also consider the medical expense tax credit as required by subsection 7(3) of the Guidelines . Because the federal and provincial tax brackets are not identical, calculating this tax credit must be done in two steps. The federal credit applies to eligible medical expenses that exceed the less of $2,052.00 or three percent of the taxpayor’s net income.

The Nova Scotia credit applies to eligible medical expenses that exceed the lesser of $1,637.00 or three percent of net income. [ 60 ] Net income is found on line 236 of the individual tax return. Where I have imputed income of $19,000.00 to Ms. Hubley- Parnell, her net income is calculated by deducting child care expenses of $751.50. [ 61 ] Ms. Hubley-Parnell’s 2011 net income is $18,248.50. Three percent of this figure is $547.45, an amount less than both the federal and the provincial threshold: the tax credit applies to those medical expenses which exceed $547.45. On her 2011 tax return, Ms.

Hubley-Parnell didn’t make any medical expense claim for herself. Jasmine’s 2011 medical expenses total $460.30 (her osteopathic treatments, her uninsured dental costs and her eye exam), an amount too low to qualify for the medical expense tax credit. This means that Jasmine’s dental care and eye exam expenses are not discounted by this tax credit and the amount that’s the subject of Ms. Hubley- Parnell’s claim is $62.80. Extraordinary expenses for extracurricular activities: clause 7(1)(

f) of the Guidelines [ 62 ] Jasmine played soccer in 2011 and Ms. Hubley-Parnell seeks a contribution to the expense of soccer registration. Mr. Parnell says that the expense for soccer registration is not an extraordinary expense. Again, I have no information about the necessity of the expense as it relates to Jasmine’s best interest, so if I was required to determine whether this was an expense which should be shared, I’d be unable to complete the analysis required by subsection 7(1).

However, for an entirely different reason, I don’t need to consider this claim: this expense simply doesn’t qualify for a contribution. [ 63 ] According to Ms. Hubley-Parnell’s Statement of Special or Extraordinary Expenses and the receipt for Jasmine’s soccer, it cost $150.00. Again, no reference was made in the Statement of Special or Extraordinary Expenses to available subsidies, benefits, tax deductions or credits which would have an impact on the expense. Had that been done, it would be apparent that the Children’s Fitness Tax Credit of $500.00 would entitle Ms.

Hubley-Parnell to a tax credit equivalent to the entire cost of the soccer registration, with the result that there is no cost to be shared. Conclusion regarding

section 7 expenses in 2011 [ 64 ] In 2011 the next cost of Jasmine’s child care was $533.56. She had expenses of $62.80 for dental care and an eye exam. Mr. Parnell’s income in 2011 was agreed to be $29,745.00 and I’ve imputed income of $19,000.00 to Ms. Hubley-Parnell. A proportionate sharing of these expenses would result in Mr. Parnell paying sixty-one percent of each: $325.47 for child care and $38.30 for dental care, for a total payment of $363.77. That parents share expenses proportionately is a guiding principle stated in subsection 7(2) of the Guidelines .

I’ve not been offered, by either party, any reason to depart from this guiding principle, so I order that Mr. Parnell pay sixty- one percent of these costs for 2011. [ 65 ] Justice Gass’s 2007 order required Mr. Parnell to pay $360.00 annually toward Jasmine’s child care expense and he paid $50.00 toward her eye exam. Accordingly, he’s paid $410.00 toward special or extraordinary costs and he owed $363.77. He’s overpaid $46.23 for

section 7 expenses in 2011. 2012

[ 66 ] For 2012, Ms. Hubley-Parnell seeks a contribution to expenses for child care and voice lessons. Mr. Parnell seeks a contribution to the portion of health and dental insurance premiums attributable to Jasmine. Child care expenses: clause 7(1)(

a) of the Guidelines [ 67 ] Ms. Hubley-Parnell pays $180.00 each month for Jasmine to be in the Excel program. This is only during the school year, so the total cost is $1,800.00. With an annual imputed income of $19,000.00 and a marginal tax rate of twenty-nine percent, child care expenses of $1,800.00 have an after-tax cost of $1,278.00. [ 68 ] Child care is a necessary expense for Jasmine and this cost is a reasonable one in the circumstances. [ 69 ] In 2012, I have found Mr. Parnell’s income to be $27,500.00. Ms. Hubley-Parnell’s income has been imputed at the annual rate of $19,000.00. Mr.

Parnell’s income is fifty-nine percent of the parents’ total income and Ms. Hubley-Parnell’s income is forty-one percent. Accordingly, Mr. Parnell’s proportionate share of the child care expenses for 2012 is $754.02. Health and dental insurance premiums attributable to the child: clause 7(1)(

b) of the Guidelines [ 70 ] Mr. Parnell pays $791.44 annually to maintain health and dental insurance coverage for Jasmine. He began this coverage in September, so he’s paid for four months’ coverage in 2012. Since Mr. Parnell and Ms. Hubley-Parnell are not divorced, the family insurance package he buys enables him to provide coverage for Ms. Hubley-Parnell at no extra cost. There is no subsidy, benefit, tax deduction or credit for this expense. Mr. Parnell seeks a contribution from Ms. Hubley-Parnell to this cost. [ 71 ] In response to cross-examination and to questions from her own counsel, Ms.

Parnell agreed to share this expense. She testified that it was in Jasmine’s best interest to have health and dental insurance and that, if it came to choosing between insurance and voice lessons, she would choose insurance. [ 72 ] In light of the health expenses that Jasmine has had in the past, I find that insurance premiums are a necessary expense in relation to Jasmine’s best interests and reasonable in light of her parents’ incomes. [ 73 ] Shared proportionately, the $263.81 expense for insurance premiums attributable to Jasmine during the period from September to the end of 2012 would require Ms.

Hubley-Parnell to contribute $108.16. Extraordinary expenses for extracurricular activities: clause 7(1)(

f) of the Guidelines [ 74 ] Ms. Hubley-Parnell asks for a contribution to voice lessons and swimming lessons for Jasmine. Mr. Parnell objects to this, arguing the expenses are not extraordinary. Ms. Hubley-Parnell testified that she didn’t want Jasmine “not to have what I feel she has the right to have” and that Jasmine “should have the right to do it all”. Voice lessons [ 75 ] Jasmine participated in voice lessons for approximately three months in 2012. The cost of these lessons was $426.00. The Children’s Art Tax Credit of $500.00 means that, effectively, there was no cost for the lessons.

Swimming lessons [ 76 ] Jasmine was not enrolled in swimming lessons in 2012 and there was no indication she’d ever taken swimming lessons. I will not order a contribution to this expense for 2012. Conclusion regarding

section 7 expenses for 2012 [ 77 ] The net cost of Jasmine’s special costs in 2012 is $1,278.00 for child care and $263.81 for insurance premiums. I’ve determined Mr. Parnell’s income to be $27,500.00 and I’ve imputed income of $19,000.00 to Ms. Hubley-Parnell. A proportionate sharing of child care expenses results in Mr. Parnell paying fifty-nine percent of the cost or $754.02. A proportionate sharing of the $263.81 expense for insurance premiums attributable to Jasmine for four months requires Ms.

Hubley-Parnell to contribute $108.16. [ 78 ] Again, I have had no reason to deviate from the guiding principle stated in subsection 7(2) of the Guidelines that expenses should be shared proportionately. [ 79 ] Since we are at the end of 2012, Mr. Parnell’s $754.02 should be offset against Ms. Hubley-Parnell’s $108.16. The result ($645.86) should be reduced by the $360.00 Mr. Parnell has already paid toward child care pursuant to Justice Gass’s order, leaving Mr. Parnell owing $285.86. Future special or extraordinary expenses [ 80 ] Ms.

Hubley-Parnell would like to enroll Jasmine in voice and swimming lessons in 2013. Mr. Parnell will continue health and dental insurance coverage for Jasmine. [ 81 ] Based on the annual insurance cost of $791.44 and the same income figures and proportions as I used for 2012, Ms. Hubley- Parnell will make monthly payments of $27.04 toward Jasmine’s health and dental insurance premiums. [ 82 ] The annual cost of voice lessons is $864.00. The Children’s Art Tax Credit of $500.00 will reduce this cost to $364.00. [ 83 ] In her Statement of Special or Extraordinary Expenses, Ms.

Hubley-Parnell says the cost of swimming lessons is $132.83 each month ($1,593.96 annually). The information attached to her Statement from the Sackville Sports Stadium, indicates the cost “ranges between $98 and $110 for a 10 week course.” Based on this letter, the maximum cost charged by the Sports Stadium if Jasmine took

lessons throughout the entire year is $550.00. [ 84 ] This will be reduced by $500.00 for the Child Fitness Tax Credit to an annual cost of $50.00. Are these expenses extraordinary? [ 85 ] Mr. Parnell disputes that the cost of voice and swimming lessons is extraordinary and he argues for cheaper alternatives. Whether the expense for an extracurricular activity is an extraordinary expense may be determined either under clause 7(1A)(

a) or clause 7(1A)(

b) of the Guidelines . Pursuant to clause 7(1A)(a), extraordinary expenses are those which are too great for Ms. Hubley-Parnell to reasonably cover, considering her income and the child maintenance she receives. Where the expenses can reasonably be covered, I am to determine if the expenses are extraordinary by considering the five factors listed in clause 7(1A)(b). If the expenses cannot reasonably be covered, I don’t need to conduct the analysis under clause 7(1A)(b). [ 86 ] Whether Ms. Hubley-Parnell can reasonably cover these expenses (which total $414.00) depends on the other expenses she has.

She hasn’t filed a Statement of Expenses, but she has filed a listing of her business expenses from which I can calculate some of her costs. To the end of September 2012, her expenses have been as follows: Expense Annual amount Electricity 2,221.21 Oil 1,000.00 Water 281.79 Mortgage (including taxes) 5,752.53 Property insurance 1,233.00 Household maintenance 232.44 Internet 360.00 Telephone 853.40 Transportation 256.00 Total 12,190.37 [ 87 ] Ms. Hubley-Parnell travels to see her clients.

She treats ninety percent of the cost of operating her car as a business expense, so I treat only ten percent of this cost as a personal one. [ 88 ] If I extrapolate Ms. Hubley-Parnell’s costs to the end of September to an entire year, the costs are $16,253.82. Of course, Ms. Hubley-Parnell will have expenses for income tax, CPP and Employment Insurance premiums which I estimate these at $2,000.00, considering her tax credits and deductions. [ 89 ] With an annual income of $19,000.00 and child maintenance (pursuant to clause 3(1)(

a) of the Guidelines ) of $2,736.00, paying the expenses noted in the table at paragraph 86, her income taxes, CPP and Employment Insurance premiums will leave Ms. Hubley-Parnell with less than $3,500.00 with which to pay all her remaining expenses. I conclude that expenses for swimming lessons and voice lessons are ones which Ms. Hubley-Parnell cannot reasonably afford: they are extraordinary expenses pursuant to clause 7(1A) (

a) of the Guidelines . As a result, I don’t need to consider clause 7(1A)(b). [ 90 ] Again, I conclude that there’s no reason to share the costs for extracurricular activities other than in proportion to the parents’ incomes, so I order Mr. Parnell to pay fifty-nine percent of the extraordinary expense of $414.00 for Jasmine’s extracurricular activities. Each month, this adds $20.35 to his child maintenance cost.

Summary regarding child maintenance claims [ 91 ] In 2011, based on an income of $29,745.00 Mr. Parnell underpaid his child maintenance obligation pursuant to clause 3(1)(

a) of the Guidelines by $199.56. [ 92 ] Mr. Parnell shall contribute, in proportion to his income, to Jasmine’s 2011 expense for child care, dental care and an eye exam. None of the other expenses claimed (for osteopathic treatment, orthotics and soccer) are special or extraordinary expenses. [ 93 ] Mr. Parnell’s proportionate contribution to the expense of child care is $325.47 and $38.30 for dental care, for a total payment of $363.77. He paid $410.00 toward these costs already: he’s overpaid $46.23 for special or extraordinary expenses in 2011. [ 94 ] In total, Mr.

Parnell owes child maintenance of $153.33 for 2011. [ 95 ] Starting in January 2012 and continuing until varied by another order or the parties’ agreement, Mr. Parnell’s basic child maintenance obligation is $228.00 each month based on an income of $27,500.00. He has overpaid his child maintenance obligation pursuant to clause 3(1)(

a) of the Guidelines by $252.00 for 2012. [ 96 ] Mr. Parnell shall contribute, in proportion to his income, to Jasmine’s 2012 expenses for child care and Ms. Hubley-Parnell shall contribute, in proportion to her income, to the health and dental insurance premiums attributable to Jasmine for 2012. Mr. Parnell’s child care expense contribution of $754.02 should be offset against Ms. Hubley-Parnell’s insurance contribution of $108.16. The result ($645.86) must be reduced by the $360.00 Mr. Parnell has already paid toward child care pursuant to Justice Gass’s order, leaving Mr.

Parnell owing $285.86 for special or extraordinary expenses for 2012. [ 97 ] Considering all the amounts, for Mr. Parnell to bring his obligations current to the end of 2012, he must pay Ms. Hubley- Parnell $187.19. [ 98 ] Mr. Parnell asked that he be given time to pay, in recognition of his financial circumstances. Recognizing Mr. Parnell’s debt

and the increased amount of his monthly payments, I order that he must retire this debt in full by December 31, 2013. [ 99 ] Beginning in January 2013, Mr. Parnell’s child maintenance payment will be comprised of the following elements: $228.00 pursuant to clause 3(1)(a); $71.68 for child care pursuant to clause 7(1)(a); and $20.35 for extraordinary expenses for extracurricular activities pursuant to clause 7(1)(f). Against this amount of $320.03 is offset Ms. Hubley-Parnell’s child maintenance payment of $27.04 for health insurance premiums attributable to Jasmine pursuant to clause 7(1)(b). Mr.

Parnell’s monthly payment to Ms. Hubley-Parnell, as of January 1, 2013, will be $292.99. Since this amount has been reduced to reflect the amount that Ms. Hubley-Parnell owes for insurance premiums, so she doesn’t need to pay any amount to Mr. Parnell. Other matters [ 100 ] Neither party has claimed costs, so I award none. [ 101 ] Ms. McCarthy shall prepare the order.

I ask that it be specific in noting where I have imputed income and where I have dismissed claims for a contribution to expenses and in identifying the total and net of tax cost (if any) of any expense that I am ordering be shared. [ 102 ] The dates when Mr. Parnell’s payments are due shall be unchanged from the March 2007 order. [ 103 ] The order shall compel each parent to provide the other with a complete copy of his or her income tax return before June 1 of the year in which it’s filed and a copy of his or her Notice of Assessment within two weeks of its being received.

Even though a tax return is filed electronically, the complete copy of the tax return and all attachments must be provided. ______________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia