Spencer v. Purcell, 2019 NSSC 184

supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Spencer v. Purcell , 2019 NSSC 184 Date: 20190610 Docket: SFHCNA-109081 Registry: Halifax Between: Janet Nadine Spencer Applicant v. Jordan Ross Purcell Respondent Library Heading Judge: The Honourable Justice Carole A. Beaton Heard: April 8, 2019 in Halifax, Nova Scotia Final Written Submissions: Respondent – April 29, 2019 Applicant’s Reply – May 9, 2019 Written Decision: June 10, 2019 Subject: Calculation of Income; Child Support – prospective; retroactive Legislation: Parenting and Support Act , RSNS 1989, c.160 Provincial Child Support Guidelines , NS Reg.83/2017 Issues:

(1) What is the correct calculation of income for 2018 and 2019?

(2) What amounts of child support are due prospectively and retroactively? Result: The Respondent to pay table amount of child support of $356.00 per month based on 2019 income of $41,656. The Respondent owes retroactive child support totalling $2,924.96. THIS INFORMATION SHEET DOES NOT 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: Spencer v. Purcell , 2019 NSSC 184 Date: 20190610 Docket: SFHCNA-109081 Registry: Halifax Between: Janet Nadine Spencer Applicant v.

Jordan Ross Purcell Respondent Judge: The Honourable Justice Carole A. Beaton Heard: April 8, 2019, in Halifax, Nova Scotia Final Written Submissions: Respondent – April 29, 2019 Applicant’s Reply – May 9, 2019 Written Release: June 10, 2019 Counsel: Kaitlin L. Gauvin for the Applicant Eugene Y.A. Tan for the Respondent

By the Court: [ 1 ] On August 1, 2018 the Applicant filed an Amended Notice of Application under the Parenting and Support Act , RSNS 1989, c. 160 adding a claim for child support. On August 30, 2018, the Court issued a Consent Order pursuant to Civil Procedure Rule 83.03 allowing the filing of the Amended Notice.

On the same date the parties agreed at a Settlement Conference that among other matters, the Respondent would file his income disclosure with the Applicant on or before September 10, 2018 and pay interim child support based on his income as calculated by that disclosure. [ 2 ] On December 11, 2018 an Interim Consent Order issued under the Act identifying the Respondent’s annual income at $28,187 and requiring a without prejudice payment of periodic child support of $237.00 per month effective December 1, 2018.

To that date, the Respondent had not provided his income disclosure despite the direction of the Court at two earlier appearances to do so, and despite an Order for Costs (October 11, 2018) having been imposed for failure to file the required financial information. [ 3 ] Following the Interim Order, the Respondent was again directed by the Court on January 28, 2019 to file his financial information in anticipation of a final hearing scheduled for April 8, 2019.

A second Costs Order was made on the same date, and the Respondent was advised if the Court did not receive any financial information for the hearing, income would be imputed to him pursuant to s.23 of the Provincial Child Support Guidelines, NS Reg. 83/2017. [ 4 ] On March 18, 2019, the Applicant filed an Affidavit in which she testified the Respondent had not yet made the required disclosure, had not paid child support per the Interim Order and had not honored either Costs Order. [ 5 ] On April 5, 2019 the Respondent filed a Statement of Income prepared and sworn on September 7, 2018 showing an annual income of $28,187.18 and attaching: a. a 2017 tax year Notice of Assessment – line 150 income of $28,076; b. a 2016 tax year Notice of Assessment – line 150 income of $20,956; c. a 2015 tax year Notice of Assessment – line 150 income of $9,480; d. a 2014 tax year Notice of Assessment – line 150 income of $9,118; e. a one-page document (unidentified) with a series of entries from June 7, 2018 through to August 30, 2018 in varying dollar amounts, each with the notation “Payroll Deposit – Sambro Fisherie ( sic)” or “Payroll Deposit – ITS”. [ 6 ] I note that none of the above constituted complete disclosure as contemplated in s.21 of the Guidelines, and revealed nothing about the Respondent’s total annual income for 2018, nor any income for year-to-date to April 5, 2019.

Counsel for the Respondent, in a letter to the Court on April 5 th reported that the Statement of Income had previously been forwarded to counsel for the Applicant on September 10, 2018, and the Income Tax Notices of Assessment were forwarded to counsel for the Applicant on January 25, 2019. [ 7 ] At the April 8 th appearance for final hearing, the Applicant had travelled from the Province of Newfoundland and Labrador to be present; neither party sought to cross-examine the other.

Counsel for the Respondent sought an adjournment on the basis he (not his client) had just been placed on medical leave by his physician.

While wanting to respect the situation in which counsel for the Respondent found himself, and balancing that against the Applicant having travelled and the Respondent not having provided complete disclosure, I opted to allow counsel for the Applicant to make oral submissions, and to adjourn the filing of written submissions on behalf of the Respondent to a later date. [ 8 ] Subsequently, written submissions were filed by counsel for the Respondent, followed by a written Reply filed by counsel for the Applicant.

In his written submissions, counsel for the Respondent reported the Respondent currently earns $25,556.79 and attached the Respondent’s 2018 tax return with T4’s and three pay stubs from February-March 2019. I note the tax return documentation that supports the return was not filed with Canada Revenue Agency until April 9, 2019, the day following the scheduled hearing. [ 9 ] Counsel for the Respondent also reported the Respondent gained new employment “on approximately December 1, 2018” and provided the mathematical calculations to support the following assertions: a.

That the Respondent should have been paying child support from September to December 2018 of $197.24 per month (based on 2018 income of $25,556.79); b. That the Respondent should have been paying child support from January to May 2019 of $221.33 per month (based on a projected 2019 income of $27,457.69).

I note the Respondent did not argue the validity of the Applicant’s retroactive claim for support commencing September 2018, the month after the date of filing the amended claim. [ 10 ] The Applicant’s Reply argument asserted that while the Applicant did not object to the Respondent in effect having filed further evidence (as detailed in paragraphs 8 and 9 above) without leave of the Court “… her consent to the documents forming part of the Court Record is not to be considered as waiving the Respondent’s ability to make costs submissions in relation thereto.” (pg.2 Reply Submissions). [ 11 ] The Applicant challenged the Respondent’s calculation of his projected 2019 annual income on the basis it did not include certain earnings shown on the pay stubs (e.g. statutory holidays) and it did not average year-to-date income and union dues payable.

I agree with the calculations of projected 2019 income asserted by the Applicant, and find the Respondent’s 2019 projected income is $41,656, which equates to a table amount of $356.00 per month. That amount will be payable effective July 1, 2019 and in each month thereafter until otherwise ordered. The Respondent owes child support for the months January to June 2019 inclusive in the amount of $356.00 per month, totalling $2,136.00. [ 12 ] The Court now knows, based on the Respondent’s 2018 return, that he earned $25,556.79 last year.

The Application was filed August 1, 2018 and therefore the Respondent should have paid, for the months of September to December 2018 inclusive, child support at the rate of $197.24 per month, totalling $788.96. I do not accept the Applicant’s argument that I should now impute 2018 income to the Respondent in an amount ten percent higher than the income identified in the Interim Order on the basis of the Respondent’s failure to disclose his 2018 income until after the hearing date. That would have been an option open to the Court if I knew nothing about the Respondent’s actual 2018 earnings.

The 2018 return provides that information; the timing of its filing so late in the proceeding goes instead to the matter of costs. [ 13 ] The Respondent owes retroactive support totalling $2,924.96, which shall be payable at the rate of $150.00 per month effective September 1, 2019 and continuing the 1 st day of each and every month thereafter until paid in full. [ 14 ] If the parties are unable to agree on costs within 30 days following the date of this decision, they may contact the Devonshire Scheduling Office to request a one-hour hearing on my docket.

The Applicant shall file a letter containing her argument seven (7) days prior to that hearing, and the Respondent shall do the same three (3) days prior. I would urge the parties to try to avoid incurring further costs associated with that process and come to a resolution on the issue. [ 15 ] Counsel for the Applicant shall prepare an Order giving effect to this decision, consented to as to form only by counsel for the Respondent. Beaton, J.