Elliott v. Sampson, 2015 NSSC 255

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Elliott v. Sampson, 2015 NSSC 255 Date: 20150923 Docket: SFHMCA 051179 Registry: Halifax Between: John Christopher Elliott Applicant and Madonna Lee Sampson Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O ’ Neil Hearing: April 14, 2015 in Halifax, Nova Scotia Issues: Determination of child support; imputation of income; custody and access

Summary: The father became unemployed. The Court accepted his new income level of $15,000 for child support purposes and declined to impute a higher income. At an initial appearance, suspension of the father ’ s driving privilege for non payment of child support was lifted. Keywords: Arrears; child support; imputed income; driving privilege; enforcement Legislation: Maintenance and Custody Act, R.S.N.S. 1989 c.160 Child Maintenance Guidelines , N.S. Reg. 53/98 Cases Considered: Darlington v. Moore , 2014 NSSC 358

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Elliott v. Sampson, 2015 NSSC 255 Date: 20150923 Docket: SFHMCA 051179 Registry: Halifax Between: John Christopher Elliott Applicant and Madonna Lee Sampson Respondent Judge: Associate Chief Justice Lawrence I. O ’ Neil Heard: April 14, 2015 Counsel: John C. Elliott, Self Represented Madonna L. Sampson, Self Represented By the Court : Introduction

[ 1 ] This matter pertains to both the past and ongoing child support obligation of Mr. Elliott as well as the calculation and payment of any arrears of child support found to be owing. The parties have a child born September 17, 2004. The parties have a very litigious history related to the parenting of their child. [ 2 ] On December 5, 2012, the parties agreed to an order that provided for inter alia monthly child support of $231.50 to be paid by Mr. Elliott, based on an income of $27,853. In the same order, arrears of child support to that date were declared to be zero. The order provided Mr.

Elliott with access to the parties ’ child. [ 3 ] Nevertheless, believing he was over assessed child support for the period December 5, 2012 to June 15, 2013, Mr. Elliott sought to correct the record. The change was to have the child support assessed as $268.00 per month “ corrected ” to $231.50 per month for this 6-7 month period. He says a revised order issued June 27, 2013 contains the correction on a go forward basis. [ 4 ] In late April 2014 Mr. Elliott was advised his driving privileges were suspended because of non payment of child support. Mr.

Elliott then lost his employment on May 6, 2014 as a process server. This change was the basis for Mr. Elliott ’ s application for a further change in his child support obligation and a suspension of enforcement initiatives taken by the Maintenance Enforcement office. Mr. Elliott says his efforts to resolve the matter with officials at the Maintenance Enforcement office were unsuccessful. As part of his 2014 application, Mr. Elliott once again sought structured weekend parenting time with his daughter. (Mr. Elliott says that in late 2013 he decided to no longer see his daughter because Ms.

Sampson was very uncooperative. Ms. Sampson disputes this.) [ 5 ] Mr. Elliott filed a Notice of Variation Application on October 1, 2014 seeking to have his assessed arrears of child support owing, as shown on the records of the Maintenance Enforcement office, revised downward. [ 6 ] All of these issues were before the Court in November 2014. On November 12, 2015, this Court set his child support obligation at zero effective November 12, 2014; suspended the collection of child maintenance and directed that officials at the Maintenance Enforcement office ‘ lift ’ any suspension of Mr.

Elliott ’ s driver ’ s license, or take steps to achieve this. The calculation of arrears of child support was deferred. [ 7 ] A parenting regime was also put in place on November 12, 2014 as requested by Mr. Elliott. [ 8 ] Mr. Elliott was directed to return to Court on January 19, 2015 to report on his employment status and his efforts to obtain employment. [ 9 ] On January 19, 2015, Mr. Elliott was ordered to pay child support of $70 per month beginning February 15, 2015 based on an imputed income of $15,000 per year. The issue of the payment of arrears, if any, was again deferred.

A hearing to deal with the issue was scheduled for April 14, 2015 and filing deadlines were set as outlined in the Conference Memorandum which flowed from the appearance on January 19, 2015. [ 10 ] Ms. Sampson ’ s request for an adjournment of the April 14, 2015 hearing, which was received on March 30, 2015, was denied. The hearing proceeded on April 14, 2015. Mr. Elliott and Ms. Sampson were the only witnesses. The April 14, 2015 Hearing (

a) parenting [ 11 ] Mr. Elliott advised the Court he was abandoning his request for parenting time with his daughter. He holds Ms. Sampson

responsible for that decision. The Court will therefore not consider ordering parenting time for Mr. Elliott. Sole custody of the parties ’ child is awarded to Ms. Sampson. (

b) special expenses [ 12 ] Ms. Sampson did not perfect her claim for special expenses. The Court therefore declined to hear it. Similarly, the Court declined to hear Ms. Sampson on the issue of a change of name for the child since it was not plead. (

c) child support [ 13 ] The only issue remaining is child support, both ongoing and retroactive . Related to this issue is whether enforcement efforts pursued by the Maintenance Enforcement office should continue to be suspended and whether income should be imputed to Mr. Elliott. [ 14 ] By Notice of Garnishment dated March 31, 2015 directed to a temporary payor for whom Mr. Elliott was doing modestly paying contract work, the Maintenance Enforcement office directed that $70 per month be deducted from money owed to Mr. Elliott.

This was to satisfy maintenance arrears assessed as $2,137.94 and to settle ongoing maintenance payments as they became due. [ 15 ] My decision as to the outstanding child support obligation of Mr. Elliott and the periods for which child support must be calculated is as follows: December 2012 to May 2013 - The child support obligation was set at $231.50 in December 2012 and was to be effective at this rate on December 5, 2012; June 1, 2013 - April 2014 - Child support of $231.50 governed for this period; May 1, 2014 - January 2015 - Mr. Elliott was unemployed beginning in early May 2014.

His child support obligation for the period commencing May 1, 2014 until February 15, 2015 is determined to be zero; and February 15, 2015 - On January 15, 2015 Mr. Elliott’s child support obligation was set at $70 per month effective February 15, 2015; by order of the Court issued January 23, 2015; this order is continued. Arrears December 2012 to the present [ 16 ] The foregoing is the basis for a calculation of what arrears, if any, are owed by Mr. Elliott. The arrears, if any, are to be paid at a rate of $50 per month until paid in full commencing on the fifteenth day of the month, following which Mr.

Elliott receives notice of the amount determined to be in arrears, if any. The Maintenance Enforcement office is left the task of determining the arrears after considering all payments. The Court is not confident that it has the correct information to permit it to do so given that the amount garnished will need to be considered. The Court trusts that the ‘ MEP ’ office will reverse any penalties imposed on Mr. Elliott if such penalties, given the foregoing, would not now be warranted. [ 17 ] As stated, by Notice of Garnishment dated March 31, 2015 maintenance arrears assessed by ‘ MEP ’ amount to $2,137.94.

Given the Court ’ s ruling, this amount will likely change. - imputed income

[18] Ms. Sampson argues that a higher income should be imputed to Mr. Elliott. [19] Pursuant to the Maintenance and Custody Act, R.S.N.S. 1989, c.160, the Child Maintenance Guidelines, N.S. Reg. 53/98provide that income may be imputed.

Section 19 provides: Imputing income 19(1) The court may impute such amount of income to a parent as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the parent is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child to whom the order relates or any child under the age of majority or by the reasonable educational or health needs ofthe parent; [20] The principles governing the imputation of income were discussed by me in Darlington v. Moore, 2014 NSSC 358. Iincorporate that discussion and for ease of reference, reproduce it: [155] The considerations I must make when asked to impute income to a payor or payee were also discussed in Strecko v.

Strecko, 2013NSSC 49 beginning at paragraph 105: [105] The Court's authority to impute income is codified in the ‘CSG'. Similar considerations govern when the Court is asked to imputeincome for purposes of determining spousal support and contributions to special expenses for children. [106] The Court is mindful of the distinction that can be made when the Court is determining income for purposes of child as contrastedwith spousal support (see Richards v. Richards, 2012 NSCA 7 , 2012 NSCA 7). [107] Justice Forgeron in Marshall v. Marshall, 2008 NSSC 11 , 2008 NSSC 11 , 2008 NSSC 11 , 2008NSSC 11 provides a helpful

summary of the state of the law on this issue. At paragraph 17-18, she wrote: 17. The discretionary authority found in

section 19 of the Guidelines must be exercised judicially in accordance with the rules of reasonand justice - not arbitrarily. There must be a rational and solid evidentiary foundation in order to impute income in keeping with the caselaw which has developed. The burden of proof is upon Ms. Marshall and it is proof on the balance of probabilities: Coadic v. Coadic2005 NSSC 291 , 2005 NSSC 291 , (2005), 237 N.S.R. (2d) 362 (SC). 18.

In reviewing the factors to be considered when a party has requested imputation, the court stated at paras. 14 to 16 of Coadic: [14] In making my determination as to the amount of income to be attributed to Mr. Coadic, I am not restricted to the actual incomewhich he earned or earns, rather I am permitted to review Mr. Coadic's income earning capacity having regard to his age, health,education, skills and employment history. [15] In Saunders-Robert v. Robert, [2002] N.W.T.J.

No. 9, 2002 CarswellNWT 10 (S.C.), Richard, J., stated at para. 25: [25] When imputing income, it is an individual's earning capacity which must be considered, taking into account the individual's age,state of health, education, skills and employment history. In the circumstances of the respondent, in my view it would not beunreasonable to impute, at a minimum, one-half of the income that the respondent earned in 1995 and 1996, say $50,000. I note that the

respondent's present income, according to his own evidence, is approximately $42,500.00." [16] In R.C. v. A.I., [2001] O.J. No. 1053, 2001 CarswellOnt 1143 (Sup. Ct.), Blishen, J., reviewed the principle that income is basedupon the amount of income which a parent could earn if working to his/her capacity and further adopted the factors to be applied whenimputing income as proposed by Martinson, J., in Hanson v. Hanson, (BC SC), [1999] B.C.J.

No. 2532 (S.C.).Blishen, J., stated at paras. 79 to 80: [79] By imputing income, the court is able to give effect to the legal obligation on all parents to earn what they have the capacity to earnin order to meet their ongoing legal obligation to support their children. Therefore, it is important to consider not only the actual amountof income earned by a parent, but the amount of income they could earn if working to capacity (Van Gool v. Van Gool (BC CA), (BC CA), (1998), 166 D.L.R. (4th) 528). [80] In Hanson v. Hanson, (BC SC), [1999] B.C.J.

No. 2532, Madam Justice Martinson of the British ColumbiaSupreme Court, outlined the principles which should be considered when determining capacity to earn an income as follows: 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor." (Van Gool at para. 30). 2.

When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability to work, freedom to relocate and other obligations. 3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at a lower end ofthe wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply becausethe parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6.

As a general rule, a parent cannot avoid child support obligations by a self- induced reduction of income. [156] I am satisfied Ms. Darlington's decision was reasonable. I accept the reasons she offers for making her decision as valid and madein good faith. I am not prepared to impute income to her on the basis of an alleged decision to be under employed.

In addition, even ifshe had sought re-qualification as a nurse, two (2) years of retraining was required. [21] Turning to the circumstances of this case, I am persuaded by the evidence, on a balance of probabilities, that no additionalincome should be imputed to Mr. Elliott. Ms. Sampson testified Mr. Elliott always had trouble retaining employment, even when theywere together. It is unclear why this is the case and the Court is not prepared to speculate. Regardless, Mr. Elliott seems to have troublebeing fully employed.

His responses to the Court’s questions were not convincing but the evidence does not permit the Court to gofurther than it did in terms of imputing income. [22] An order granting the sole custody of the parties’ child will issue. No provision for access by Mr. Elliott will be made. [23] The request for a contribution to the child’s special expenses is denied. It is not perfected. Regardless, given Mr. Elliott’s

modest means, no contribution by Mr. Elliott would be ordered. [ 24 ] The following is a

summary of the child support obligation of Mr. Elliott since December 5, 2014: December 5, 2012 to April 2014 - $231.50/month May 1, 2014 to February 15, 2015 - $0/month February 15, 2015 forward - $70/month [ 25 ] Arrears of child support, payable by Mr. Elliott, if any, will be payable at the rate of $50/month commencing the fifteenth of the month following Mr.

Elliott being advised by the Maintenance Enforcement office what the arrears are. [ 26 ] The Court reserves jurisdiction to resolve issues arising from this decision, should there be any. [ 27 ] Finally, correspondence to the Court received in August 2015 from Mr. Elliott was forwarded to Ms. Sampson. It was forwarded to Ms. Sampson in September 2015. She responded. There being no agreement that the Court consider Mr. Elliott ’ s communication for purposes of this decision, it is not considered and does not form the basis of this decision nor has it impacted on it. ACJ