Delnegro v. Tramble, 2012 NSSC 152

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Delnegro v. Tramble, 2012 NSSC 152 Date: 20120418 Docket: SFHF-001430 Registry: Halifax Between: Julie Margaret Delnegro Applicant v. Daniel Joseph Tramble Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: March 12, 2011, in Halifax, Nova Scotia Written Decision: Keywords: Family, Variation, Child Support,

Section 7 Expenses, Legislation: Maintenance and Custody Act , R.S.N.S. 1989, c. 160 s. 9 Maintenance and Custody Act , R.S.N.S. 1989, c. 160, s.10 Maintenance and Custody Act , R.S.N.S. 1989, c. 160, s.37

Summary: Mother requesting variation, retroactively and prospectively to previous order requiring the Father to pay table guideline and

section 7 child support. Father was prepared to pay a recalculated amount from October 2010 for table guideline child support. The cost of the

section 7 expenses were not reasonable given the incomes of the Father and the Mother. The Father could not pay prospective or retroactive

section 7 expenses. As a result the Mother’s

section 7 claims were dismissed.

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: Delnegro v. Tramble, 2012 NSSC 152 Date: 20120419 Docket: SFHF-001430 Registry: Halifax Between: Julie Margaret Delnegro Applicant v. Daniel Joseph Tramble Respondent Judge: The Honourable Justice Beryl MacDonald Variation Hearing: March 12, 2012 Counsel: Graydon D. Lally, counsel for the Applicant D.

Mark Gardiner, counsel for the Respondent By the Court : [ 1 ] On November 18, 2010 the Mother filed an application to vary a consent order dated November 25, 1999. This order was granted pursuant to the Maintenance and Custody Act . The Mother requested a retroactive recalculation of table guideline child support and special and extraordinary expenses to January 1, 2007. She requested prospective child support both for the table guideline and

special expenses based upon the Father’s present income. [ 2 ] On March 7, 2011 the Mother filed an amended variation application to request the Father to provide life insurance payable for the child’s benefit in the event of his death, and to pay interest on retroactive child support and costs. She changed the commencement date for retroactive recalculations to January 1, 2006. [ 3 ] During the hearing the Mother requested the retroactive recalculation of child support both for the table guideline and special expenses begin on October 1, 2010. [ 4 ] The Mother and the Father have never lived together.

They have no history of joint decision-making. When this variation proceeding was initiated both had new partners and each had a child born of those relationships. Unfortunately the Father is now separated and is required, pursuant to a separation agreement, to pay child support for one child of that second relationship. The separation agreement is somewhat confusing. Paragraph 5(

m) states: “.....(the Father) shall pay child support to (spouse) in the amount of $354.00 per month on the 1 st day of January, 2012. Commencing January 1, 2012 (the Father) shall pay child support to (spouse) in the amount of $342.91 per month and continuing on the first day of the month thereafter as base table amount of child support.” [ 5 ] In the agreement the Father’s annual income is stated to be $40,735.00. Table guideline child support for one child would be $343.00.

I am informed the December 31, 2011 table was used so I accept future payments will be $343.00 based upon the simplified tables that round up these calculations. However, the agreement also provides: “(the Father) covenants and agrees to pay (spouse) the table amount of child support based on his total income as reported at line 150 from his Income Tax Return.” As a result at some point the Father may be asked by his spouse to pay more based upon his increased income. [ 6 ] The parties were just out of high school when their child was born on July 5, 1999.

The consent order was signed and dated on November 25, 1999. The Mother had sole custody. The Father was to have no access to the child unless the Mother consented. The order stated the Father’s income was $23,100.00 and the Mother’s income was $10,125.00. The Father was ordered to pay $191.00 per month for table guideline child support and $127.40 for his proportionate share of the child care expense. The total child care cost at the time was $182.00.

The order required the parties to recalculate child support in the event there were changes in their incomes. [ 7 ] The Father has had very little involvement in raising the child although he has had access. The Mother has made decisions for the child without significant input from the Father. However he has not actively pursued involvement in his child’s life. [ 8 ] The Mother’s communication with the Father consists primary of e-mails requesting changes to the amount of child support as a result of income changes.

He has not always been prompt to agree to the required changes although he has generally increased his table guideline support when his income has increased. He has frequently objected to the amounts requested for the child’s special and extraordinary expenses. He has questioned whether these expenses are necessary and he has questioned the decisions made by the Mother in respect to the cost of the services she has accessed on behalf of the child.

Notwithstanding his concerns, primarily about the expense, the Mother has continued to access the services about which he has complained. [ 9 ] Although the child is now 12 years of age, and soon will be 13, the Mother continues to pay a child care provider $760.00 per month to care for this child. She pays this amount in addition to the sum of $760.00 per month, paid to the same person, for the care of a much younger child born of her present relationship. She does so for a variety of reasons. She alleges this child has severe life threatening asthma and allergies.

Because the child has an aversion to independently using her Epi-Pen at times when it may be required she needs constant adult supervision. When this child was in a school that provided the EXCEL program (which provided before and after school care) she considered that program inadequate for her child’s needs. There are few adults prepared to supervise this child because of her health risks. In the child’s current school there is no EXCELL program. In addition, because of the work schedules of the Mother and her current partner, no other alternatives for child care are available to her.

[ 10 ] The Father disputes the severity of the child’s asthma and allergies. However, he has not attended any doctor’s appointments with the child nor has he requested, until the date of this hearing, any independent verification from her physicians about her care. The Mother may be overprotective. This child will eventually need to learn how to protect herself. However, even if she was able to do so, she may still require some before or after school supervision.

Whether that would be less expensive than the present arrangement is unknown. [ 11 ] The Mother alleges the child suffers from Attention Deficit Disorder requiring treatment and medication and from orthopedic disabilities that require specialized footwear. She has not provided any medical evidence to support these diagnosis. Once again the Father disputes the diagnosis but he has taken no proactive steps to become self-informed about his child’s status. [ 12 ] This child has suffered a traumatic event for which she has received counseling in the past.

The Father knows what happened but he has not spoken with the person or persons who advised the Mother about how to assist the child overcome her trauma. The Mother has chosen horseback riding and music as therapies to assist the child. While the Mother has engaged a psychologist, she also appears to have involved a “ naturopath” and a “therapeutic riding instructor”. I have nothing before me to suggest the psychologist recommended the particular activities chosen by the Mother as therapies.

What the psychologist treating the child has said is, (provided in a letter filed in this proceeding ), “...it has been extremely beneficial for (the child) to be involved with various kinds of activities which have been therapeutic and continue to help her to improve her confidence and self-esteem. It is necessary for her to continue to have the family and financial support and necessary equipment to facilitate these therapeutic activities.” The Mother has never explored whether there are less expensive therapies that would be equally as beneficial as horseback riding and music.

The evidence suggests the child may not be as committed to music as she is to riding. [ 13 ] The child rides with the Halifax Junior Bengal Lancers at a cost of $265.00 per month. In addition to this cost she takes lessons at $80.00 per month, she attends camps and requires equipment that also have significant cost. [ 14 ] The child’s orthodontist has recommended orthodontic treatment because of the child’s “deep overbite and the resulting wear and chipping on the mandibular incisors.” The estimated fee for services, less the insurable portion, is $4,523.00. [ 15 ]

Schedule 1 attached to this decision provides the amounts claimed by the Mother for special expenses for 2010 and 2011. Presumably the amounts for 2012 will be somewhat similar. INCOME OF THE PARTIES [ 16 ] The appropriate calculation of the Father’s 2012 annual income was a subject of dispute during the hearing. After analyzing all of the relevant material provided I have determined his 2012 annual income is likely to be $51,000.00. His 2010 annual income was $40,735.00. His annual income in 2011 was $47,159.00. The Mother’s annual income in 2010 was $35,225.00.

Her 2011 annual income was $45,698.00 and it is expected her 2012 annual income will be the same. CHILD SUPPORT Table Guideline Amount Retroactive and Prospective [ 17 ] The Father is required to pay table guideline child support in the amount of $428.00 per month. Requiring him to pay this amount beginning January 1, 2012 is to some extent a retroactive award. However, the Father has agreed to pay ongoing and retroactive table guideline child support based upon his actual yearly incomes to date.

He has requested that future adjustments take place on June 1 st each year based upon his previous year’s annual income as disclosed in line 150 of his Income Tax Return. This would avoid the requirement that he pay a “deficit” resulting from a calculation based upon an increased income or that the Mother repay a “surplus” resulting from a calculation based upon a decreased income. The problem for the Father is that if he has a decreased income in one year, he will pay based upon a higher income from a previous year. This is a consequence he appears to accept.

It is likely a catastrophic reduction in income will entitle him to seek a variation.

[ 18 ] In 2010 the Father should have paid $354.00 per month for table guideline child support. Because he paid nothing in the months of October, November, and December he now owes $1,062.00 as “arrears”. [ 19 ] In 2011 the Father should have paid $411.00 per month for table guideline child support, a total yearly amount of $4,932.00. The payments he did make in 2011 total $3,545.00 leaving $1,387.00 owing as “arrears”. [ 20 ] The Mother would have calculated these amounts differently because she applied current payments to past amounts owing.

I have not used her method of calculation. [ 21 ] As a result of my recalculation of the table guideline child support the Father is to pay a total amount of $2,449.00 for retroactively recalculated table guideline child support. Special and Extraordinary Expenses [ 22 ]

Section 7 of the Child Support Guidelines requires a determination that special and extraordinary expenses are necessary in relation to the child’s best interest and the cost is reasonable in relation to the means of the spouses. Generally the necessity of the expense would be considered before turning to the issue of the reasonableness of the cost incurred. However, for reasons that will become evident, I have started the analysis with an examination of the reasonableness of these expenses in relation to the Father’s “means”. [ 23 ] In

Schedule 2 I have calculated the Father’s net disposable income after subtracting mandatory deductions and table guideline child support. In

Schedule 3 I have calculated what I consider to be his reasonable living expenses exclusive of debt repayment. My calculations reveal he will have approximately $188.00 per month remaining after paying his reasonable living expenses. If he pays the retroactive award at the rate of $100.00 per month he will then have $88.00 remaining. The cost of the

section 7 expenses are not reasonable given the Father’s means. They were never reasonable given his economic ability to pay. They are not reasonable given the Mother’s means. She has only been able to incur this expense because of the contribution provided by her present partner. [ 24 ] The Mother complained about the Father’s previous lifestyle but it is apparent it was not supported by his income. Any perceived lavishness was provided by his then partner, the spouse from whom he is now separated. This is an extremely unfortunate situation but the reality is the Father has nothing to contribute towards

section 7 expenses retroactively or prospectively. [ 25 ] The Mother has quoted from the Supreme Court of Canada case DBS v. SRG, LJW v. TAR, Henry v. Henry, Hiemstra v. Hiemstra , 2006 SCC 37 to support her request for a retroactive

section 7 award. Amongst the factors to be considered in assessing a request for a retroactive award is the hardship it will impose on the payor. In DBS , supra, Bastarache, J. commented: [95] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child-support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not.

In short, while a freestanding obligation to support one’s children must be recognized, it will not always be appropriate for court to enforce this obligation once the relevant time period has passed. [ 26 ] In this case the Father is prepared to pay the table guideline amount based upon his income from October 2010 to date. As a result he has acknowledged the Mother’s request for a retroactive recalculation of that support. The Father has continuously informed the Mother he was unable to pay more than he provided. I have shown mathematically there is merit in his plea.

The Father’s financial position leaves him no money from which to pay a retroactive or prospective

section 7 award. As a result this claim is dismissed. [ 27 ] The Father does have a medical benefit plan at his place of employment. He is to take all steps necessary to permit the Mother to access that plan on behalf of the child.

[ 28 ] Neither party has made representations about costs. Unless the parties have exchanged offers that may be taken into consideration in a determination about costs, or circumstances exist about which I am unaware, I would not award costs. The Mother does not have significant financial resources and the Father is unable to provide anything toward

section 7 expenses. Imposition of a cost award would prejudice the Mother’s financial ability to meet this child’s financial need. [ 29 ] If the parties have exchanged offers or have information not previously provided I will arrange a time when submissions on costs may be made. [ 30 ] I will expect the order following this decision to be prepared by the Father’s counsel. __________________________ Beryl MacDonald, J.S.

SCHEDULE 1 SPECIAL AND EXTRAORDINARY EXPENSES Special Expense 2010 2011 Health Insurance premium $ 895.18 $ 929.50 Child Care Provider $ 7,594.00 $ 9,120.00 Health & Dental not covered by insurance $ 331.04 $ Horseback Riding $ 2,884.15 $ 4,739.38 Music - includes purchase of piano and instrument rentals $ 1,453.83 $ 1,147.85 Total $13,158.20 $15,936.73 For Oct. Nov. Dec. 2010 only $ 1,096.52

Father’s Proportion 53% 2010 51% 2011 $ 581.04 $8,127.73

SCHEDULE 2 NET DISPOSABLE INCOME OF FATHER Total annual income $ 51,000.00 Less Income Tax, CPP, EI $ 13,897.00 $ 37,103.00 Less Table child support for 1 child @ $ 428.00 per month $ 5,136.00 $ 31,967.00 Less child support for child of another relationship @ $ 343.00 x 12 $ 4,116.00 $ 27,851.00 Less cost of Health Plan @ $ 70.00 x 12 $ 1,824.00 $ 26,027.00

Net Disposable Income $ 26,027.00

SCHEDULE 3 REASONABLE EXPENSES OF FATHER EXCLUSIVE OF DEBT EXPENSE MONTHLY YEARLY Rent $ 750.00 $ 9,000.00 Fire Insurance - personal property $ 25.00 $ 300.00 Electricity $ 55.00 $ 660.00 Telephone $ 70.00 $ 840.00 Cable and Internet $ 135.00 $ 1,620.00 Food, Toiletries, Household Supplies $ 500.00 $ 6,000.00 Clothing, Laundry, Dry Cleaning $ 50.00 $ 600.00

Vehicle Expenses including Gas $ 312.00 $ 3,744.00 Hair cuts, Glasses $ 34.00 $ 408.00 Christmas, Birthday Gifts $ 50.00 $ 600.00 Total $ 1,981.00 $ 23,772.00