Day v. Day, 2019 NSSC 116

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Day v. Day , 2019 NSSC 116 Date: 20190402 Docket: SFHMCA-101059 Registry: Halifax Between: Christine Elaine Day Applicant v. Vincent Edward Day Respondent Judge: The Honourable Justice C. LouAnn Chiasson Heard: March 13, 2019, in Halifax, Nova Scotia By the Court: [ 1 ] Vincent and Christine Day are the parents of Jessica (13) and Ashlyn (11). They were able to resolve the issues related to their parenting arrangements, but were unable to resolve the issue of child support. Ms.

Day has primary care of the children. [ 2 ] There are three issues before the court: 1) Retroactive child support (pre Interim Consent Order)- March 2018- October 2018 2) Adjustment of arrears, if any to child support (post interim Consent Order)- October 2018- February 2019; and 3) Prospective child support BACKGROUND [ 3 ] Mr. Day had been employed for a period of time in Alberta. He indicated that he lost his job in Alberta in March 2018 and has been looking for work out West since that time.

He indicates that he has worked sporadically at best since that time and has been on social assistance since January 2019. He provided statements from social assistance to confirm that he received $498 in January, and February. [ 4 ] Mr. Day provided the following evidence at the time of the hearing: - In approximately May, 2018, he assisted a friend employed by Car-Go Carriers as a long haul truck driver. In exchange, his friend allowed him to stay with him and he provided meals as well as some cash. - In August 2018 he went to work in Alberta.

He was paid for approximately 4 days of work and returned to Nova Scotia - In October 2018 he was employed by Reliable Fuels. He did not continue past the probation period (four days) because he indicated that he could not afford the transportation to get to this job. - In the fall of 2018 he again left for Alberta to work for Breakaway Enterprises. He was advanced money to go to Alberta but the employment opportunity did not work out. Mr. Day testified that there were issues in relation to drug use of other persons at his place of employment that made it impossible to continue.

He indicates that he still owes money back to the owner of Breakaway Enterprises. - He is seeking employment via kijiji and by word of mouth. - He was following up on an opportunity to work for another company out West as he believes he will be able to earn significantly more in Alberta driving a truck than he can earn in Nova Scotia. [ 5 ] Mr. Day has not paid regular monthly child support since separation. He consented to pay child support in September 2018 based on an estimated income he would earn of $45,000.

Despite having a Consent Order indicating child support payments of $654 would commence October 1, 2018, Mr. Day has not paid the monthly child support.

[6] Mr. Day testified that, although he did not pay monthly child support, he did contribute to one of his daughters’ danceexpenses in the amount of approximately $780. He further testified that, upon the sale of the matrimonial home, Ms. Day received$4,000 from his share of the proceeds which should be taken into account in any retroactive claim. [7] Ms. Day denies that the $4,000 related to child support. She testified that these were expenses that Mr. Day should have beenpaying for the matrimonial home after separation. The evidence disclosed that Ms. Day refused to permit Mr.

Day to live in thematrimonial home following separation. ISSUE #1- Retroactive child support- March 2018- September 2018 [8] Retroactive child support awards are discretionary. They must be based upon an analysis of the particular facts of each case.

As noted in the Supreme Court of Canada case of DBS v SRG 2006 SCC 37 , [2006] 2 S.C.R. 231, at paragraph 95: “…while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforcethis obligation once the relevant time period has passed.” [9] Further at paragraph 109, the court held: “…But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/ her child’s supportin a way that satisfied his/ her obligation, no retroactive child support should be ordered.” [10] In the particular facts of this case, Ms.

Day is seeking a retroactive award of child support for the seven month period fromMarch 2018 to September 2018. During this time period Mr. Day, although looking for work, was not meaningfully employed to anyextent. When his employment in Alberta terminated in March, he returned to Nova Scotia. Upon his return, he was advised that he wasnot welcome to live in the matrimonial home and needed to find alternate accommodations. [11] Mr. Day needed to make all reasonable efforts to find employment and to provide for the children of the marriage.

He spenthis energy focusing on returning to work in Alberta as he felt the remuneration there would be more significant than in Nova Scotia. It isclear that the parties operated under this assumption during the course of their marriage as he worked in Alberta and the family resided inNova Scotia. [12] Mr. Day indicates that he made reasonable efforts to find employment in Alberta during this period of time. I am notconvinced that his job search efforts were reasonable. It is clear on the evidence, however, that his job search efforts resulted in verylittle income to him. [13] Ms.

Day acknowledged having received an additional $4,000 from the proceeds of sale of the home. She indicated that thisamount related to expenses for the matrimonial home. I was not provided any documentation related to any of these expenses. I wasadvised by Ms. Day that these expenses related to the matrimonial home and that she incurred some expenses related to the sale of thehome. [14] Ms. Day indicates that the $4,000 retained by her related to bills for water, power, oil, mortgage, etc. These were all expensesincurred while Mr. Day was barred from living in the home. Mr.

Day testified that he continued to have an $1,100 power bill (from theseparation of the parties in 2016), as well as a $700 water bill (from 2016). Ms. Day also indicated that she had to incur other expensesto sell the home related to the costs of a plumber and expenses regarding the oil tank. [15] In the absence of documentation related to any of these expenses it is impossible to ascertain what percentage relates toreadying the home for sale and what percentage related to ongoing expenses for the home. I have no evidence that the expense related tooil was not recoverable in the sale.

I have no evidence of the cost of the plumber. [16] It is clear that Ms. Day received an additional $4,000 from Mr. Day during a period where he had nominal income. It is clearthat this equates to a $571.43 per month contribution to household expenses. Ms. Day cannot assert claims related to contributions tohousehold expenses and also seek to have monies paid in relation to child support especially during a time period when Mr. Day hadnominal income. [17] I am not prepared to order retroactive child support from March 2018 to September 2018 given the particular facts of this case.

ISSUE #2- Retroactive child support- October 2018- February 2019 [18] I am not prepared to adjust the amount of child support owing for the months of October, 2018- February 2019. Mr. Day isessentially asking the court to vary a consent order he entered into for the payment of support. The principles which govern variation ofchild support retroactively were considered by the Nova Scotia Court of Appeal in the case of Smith v. Helpi, 2011 NSCA 65 (NS CA). [19] The Court of Appeal cited with approval the reasons of Justice Robertson of the New Brunswick Court of Appeal in Brown vBrown 2010 NBCA 5 (N.B.

C.A.) and indicated at paragraph 21 that: “... the jurisdiction to order a partial or full remission of support arrears is dependent on the answer to two discrete questions: Was there amaterial change in circumstances during the period of retroactivity and, having regard to all other relevant circumstances during thisperiod, would the applicant have been granted a reduction in his or her support obligation but for his or her untimely application? As ageneral proposition, the court will be asking whether the change was significant and long lasting; whether it was real and not one ofchoice.” [20] Mr.

Day was employed by Reliable Fuels at a rate of $19 per hour in October 2018. Had he continued to work for them, hewould have an annual income of approximately $39,520 (assuming his wage would not increase after the probationary period). Toindicate that he was unable to keep that job given transportation issues was not reasonable in the circumstance. He left that employment

and is now on social assistance. There was insufficient evidence of his efforts to secure transportation to this job. The arrears of childsupport for the period October, 2018 to February, 2019 will remain. ISSUE #3- Prospective Child Support [21] Ms. Day is requesting that the court impute income to Mr. Day on an ongoing basis in the amount of $45,000. Imputation ofincome is permissible under s. 19(1) of the Provincial Child Support Guidelines O.I.C. 2017-143, N.S. Reg. 83/2017 (“Guidelines”)which provide as follows: “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; [22] The leading decision in determining imputed income in Nova Scotia is Smith v. Helppi, supra. Our Court of Appeal cited withapproval the considerations in imputation of income cases and referred to the case of Gould v.

Julian, 2010 NSSC 123 atparagraph 16 of the decision: “What a judge is to consider in doing so was summarized in Gould v. Julian, 2010 NSSC 123 , where Justice Darryl W. Wilsonstated: [27] Factors which should be considered when assessing a parent's capacity to earn an income were succinctly stated by Madam JusticeMartinson of the British Columbia Supreme Court, in Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532, asfollows: 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".... 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.” [23] The court also dealt with the issue of imputed income in the decision of Rideout v. Woodman 2016 NSSC 205. JusticeForgeron stated at paragraph 30 of the decision: “30 In Parsons v. Parsons, 2012 NSSC 239 (N.S.

S.C.), paras 32 and 33, this court distilled other principles applicable to s. 19imputation claims as follows: • The discretionary authority found in s.19 must be exercised judicially, and in accordance with rules of reason and justice, not arbitrarily.A rational and solid evidentiary foundation, grounded in fairness and reasonableness, must be shown before a court can impute income:Coadic v. Coadic, 2005 NSSC 291 (N.S. S.C.). • The goal of imputation is to arrive at a fair estimate of income, not to arbitrarily punish the payor: Staples v. Callender, 2010 NSCA 49(N.S.

C.A.). • The burden of establishing that income should be imputed rests upon the party making the claim, however, the evidentiary burdenshifts if the payor asserts that his/her income has been reduced or his/her income earning capacity is compromised by ill health:MacDonald v. MacDonald, 2010 NSCA 34 (N.S. C.A.); MacGillivary v. Ross, 2008 NSSC 339 (N.S. S.C.). • The court is not restricted to actual income earned, but rather, may look to income earning capacity, having regard to subjective factorssuch as the payor's age, health, education, skills, employment history, and other relevant factors.

The court must also look to objectivefactors in determining what is reasonable and fair in the circumstances: Smith v. Helppi, 2011 NSCA 65 (N.S. C.A.); Van Gool v. VanGool (1998), (BC CA), 113 B.C.A.C. 200 (B.C. C.A.); Hanson v. Hanson, (BC SC), [1999] B.C.J.No. 2532 (B.C. S.C.); Saunders-Roberts v. Roberts, 2002 NWTSC 11 (N.W.T. S.C.); and Duffy v. Duffy, 2009 NLCA 48 (N.L. C.A.). • A party's decision to remain in an unremunerative employment situation, may entitle a court to impute income where the party has agreater income earning capacity.

A party cannot avoid support obligations by a self-induced reduction in income: Duffy v. Duffy, supra;and Marshall v. Marshall, 2008 NSSC 11 (N.S. S.C.).

• The test to be applied in determining whether a person is intentionally under-employed or unemployed is reasonableness, which does not require proof of a specific intention to undermine or avoid child maintenance obligations.” [ 24 ] I have also taken into consideration the following cases: Elliott v. Sampson 2015 NSSC 255 , Darlington v. Moore , 2014 NSSC 358 , Strecko v. Strecko , 2013 NSSC 49 , Marshall v. Marshall , 2008 NSSC 11 , Coadic v. Coadic , 2005 NSSC 291 , MacDonald v. Pink , 2011 NSSC 421 , Staples v. Callender , 2010 NSCA 49 , Locke v. Bramwell 2016 NSSC 300 . [ 25 ]

Section 19 of the Guidelines, supra, provides the statutory authority to impute income to a payor. This discretionary authority must be exercised on a solid foundation of evidence and judicial reasoning. The person suggesting that income should be imputed bears the burden of proof on a balance of probabilities. The discretion in s.19 cannot be utilized arbitrarily or as a means to punish payor parents. [ 26 ] I am prepared to impute income to Mr. Day for the following reasons: 1) Mr. Day voluntarily left a position as a truck driver because of “transportation issues”; 2) Mr.

Day testified that he may have a position as a truck driver with Bullfrog Energy fairly soon; 3) Mr. Day is not reasonable in continuing to search for employment in Alberta which he himself characterizes as “up and down” and subject to oil and gas market declines. 4) Mr. Day has not made sufficient effort to secure employment in Nova Scotia because he is awaiting a far bigger payment from western employers- meanwhile he remains on social assistance in Nova Scotia. [ 27 ] I am prepared to impute income to Mr. Day of $35,000. This is based upon his earning capacity and his employment background.

He is clearly a skilled truck driver and was able to secure employment in that field upon his return to Nova Scotia. He must make every reasonable effort to be employed to the extent possible given his health, education, employment history and background. [ 28 ] The child support payable shall be adjusted to accord with the imputed income of $35,000. Commencing March 1, 2019, and the first of each month thereafter, Mr. Day must pay to Ms. Day the sum of $523 per month. [ 29 ] Mr. Day is obligated to keep Ms. Day informed of his address and contact information as soon as they change. Mr.

Day is obligated to provide Ms. Day information related to any change to his employment status. He is to provide her any documentation related to his employment (employment contract or letter of employment, pay stubs, ROE’s, etc). On or before June 1 st each year he is to provide her with a full copy of his income tax return (filed or unfiled) with all appropriate attachments. The annual disclosure provided herein would commence on June 1, 2020. CONCLUSION [ 30 ] There is no retroactive adjustment to child support. Based on an imputed income of $35,000, Mr. Day shall pay to Ms.

Day the sum of $523 per month commencing March 1, 2019 and continuing on the 1 st day of each month thereafter. Chiasson, J.