Pelham v. MacNeil, 2021 NSSC 190

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Pelham v. MacNeil , 2021 NSSC 190 Date: 2021-06-02 Docket: SFHPSA 105034 Registry: Halifax Between: Luke Leonard Pelham Applicant v. Laura Ashley MacNeil Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: May 28, 2021 Written Decision: June 2, 2021

Summary: Determined father’s income for the purpose of paying child support. Income imputed where father failed to take sufficient steps to find work or retrain after learning his job would end in 2019. Key words: Family, child support, imputing income, retroactive award repayment terms Legislation: Parenting and Support Act , R.S.N.S. 1989, c. 160 Nova Scotia Child Support Guidelines , NS Reg. 53/98, section 19(1) (

a) 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: Pelham v. MacNeil , 2021 NSSC 190 Date: 2021-06-02 Docket: SFHPSA 105034 Registry: Halifax Between: Luke Leonard Pelham Applicant v. Laura Ashley MacNeil Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : May 28, 2021 Counsel: Peter J. Katsihtis for Luke Pelham Margot Fulmer and Leslie Hogg, articled clerk, for Laura MacNeil By the Court: Introduction [ 1 ] I am reviewing child support under the Parenting and Support Act , R.S.N.S. 1989, c. 160 . Luke Pelham and Laura MacNeil agree on the formula for calculating Mr.

Pelham’s child support, and that he owes $22,530.96 in retroactive child support for 2020. I’m asked to determine: 1. Mr. Pelham’s income for the purpose of calculating prospective child support 2. the terms that should apply to Mr. Pelham’s payment of retroactive child support. What’s Mr. Pelham’s income?

[ 2 ] Ms. MacNeil wants me to find Mr. Pelham’s income is $165,379, the amount he earned in 2018. [ 3 ] Mr. Pelham wants me to find his income is $41,482, which reflects the portion of his severance package attributable to 2021, and his EI benefits. [ 4 ] Determining Mr. Pelham’s income turns on the sufficiency of his efforts to find work since learning, in 2019, that his employment was coming to an end. [ 5 ] Mr. Pelham is 36. He completed grade 9 and later, the General Education Development (GED) test.

Sometime in 2006, he went to western Canada and completed an H2S training course which enabled him to work in the oil industry. In 2008, he returned to Nova Scotia and worked as a bouncer at Michael’s Bar and Grill for about a year and a half. He then completed a Basic Survival Training course, did Offshore Fire Training, and first aid. He worked for Rowan, in the offshore industry, for about a year and a half until he was laid off in September 2010. In his first year at Rowan, he earned $64,000. [ 6 ] Mr. Pelham was hired by SBM Nova Scotia Contractors in May 2011, at an annual salary of $85,000.

He says his salary grew over the years. He progressed from a trainee to a P-Tech 1 then to a P-Tech 2. He was a rotational worker, working away from home and returning home for weeks at a time. [ 7 ] In 2019, Mr. Pelham was notified that his work would be shutting down, without specifics about when that would happen. In 2020, he was told the shut down would be “soon”. His position ended in July 2020 and he received a severance package in August. Four days after his job ended, he was hired on a weekly contract. The weekly contract work continued until January 2021. [ 8 ] Mr.

Pelham says that he is trying to find “a good paying job”. Since January 2019, when he learned his job was coming to an end, Mr. Pelham has applied for 6 jobs: 1. in the summer of 2020 when his job ended, Mr. Pelham applied to SBM to be transferred to Gyana 2. in September 2020, he applied to the Halifax Regional Police 3. in 2020, he applied to the Halifax Regional Fire Department 4. in December 2020, he applied to CNR 5. in February or March 2021, he applied to Moose River Gold Mine and 6. 2 - 3 weeks ago, he applied to become a Corrections Officer. [ 9 ] The local jobs are not in the oil industry.

His application is being kept on file by Moose River, CNR and Correctional Services. He says there is a restriction on his driver’s licence that disqualifies him from one of the jobs. [ 10 ] Mr. Pelham doesn’t want to travel for work. Since the spring of 2020, he and Ms. MacNeil have had shared custody of their son and daughter. Mr. Pelham and his common law partner of 4 years, intend to marry and Mr. Pelham says they “are looking at having children together”. [ 11 ] There is no dispute that Mr. Pelham is not responsible for losing his job at SBM. Ms. MacNeil says that Mr.

Pelham has taken insufficient steps to find replacement work and provincial policies for the quarantine of rotational workers means that travelling for work, as he has in the past, is reasonable even where there is shared custody. [ 12 ] In mid-April 2021, Mr. Pelham applied to NSCC to retrain as a gas fitter or welder. He has been waitlisted for these programs.

The gas fitter program is 1 year long, and the welder program is 2 years long. He doesn’t know when he might be admitted. He believes he might receive funding for his studies but has made no inquiries. He says that work in these fields would earn him an annual income in the range of $60,000 - $80,000. [ 13 ] From January 2019 when he learned his job would come to an end, until July 2020 when his job ended, Mr. Pelham took no steps to find employment and he took no programs to expand his training. He did not explain this choice. [ 14 ] In the 10 months since his job ended, Mr.

Pelham has applied for 6 positions and 1 training program. Aside from seeking a transfer to SBM’s Gyana operations, his applications were for jobs for which he had no training, education, or experience. Similarly, the training programs he has applied for do not build on his existing skills and experience. He could not have predicted it, but his delay has meant he is searching for a job during a global pandemic. [ 15 ] In cross-examination, Mr.

Pelham admitted that he had not applied for work at SNC Lavalin as an Offshore NDT Technician or at Brewster Well Drilling for work as a rig offsider (with an annual salary of $65,000). Mr. Pelham didn’t want to work in Newfoundland which was the location of the SNC Lavalin job and said there was a restriction on his driver’s licence which meant he was not qualified for the Brewster Well Drilling job. He couldn’t explain the nature of this restriction. The restriction will expire in time. [ 16 ] I may impute income to Mr. Pelham as I consider appropriate in the circumstances.

The circumstances include where a parent is intentionally under-employed or unemployed, other than where this is required by a child’s needs or the parent’s reasonable educational or health needs, under clause 19(1) (

a) of the Child Maintenance Guidelines , NS Reg 53/98 . [ 17 ] Mr. Pelham doesn’t say that his unemployment is required by his own reasonable educational or health needs. While rotational work impacts his ability to share parenting on a weekly basis, it does not prevent shared parenting even during the pandemic, given the COVID-19 Rotational Worker Protocol. [ 18 ] I find that it is appropriate to impute income to Mr. Pelham in these circumstances based on his unemployment.

He has made insufficient effort to obtain employment despite learning in January 2019 that his job would be ending. [ 19 ] There must be a rational and evidentiary basis for the amount of income I impute to Mr. Pelham: Staples v. Callender , 2010 NSCA 49 at paragraph 21 . [ 20 ] Ms. MacNeil argues, first, that I should impute an income of $165,000 (the amount Mr. Pelham earned in 2018). I chose not to do this because there is no rational or evidentiary basis to show that Mr. Pelham could earn such an income. To impute an income of $165,000 would be punitive. [ 21 ] I impute an annual income of $65,000 to Mr.

Pelham. In doing this, I consider: 1. with minimal experience, Mr. Pelham was able to earn $65,000 working at Rowan in 2008 2. the work Mr. Pelham has belatedly applied for provides earnings in the range of $65,000 and 3. the work Ms. MacNeil identified as suitable for Mr. Pelham also provided earnings in the range of $65,000. [ 22 ] There is an evidentiary and rational basis for imputing an annual income of $65,000. What terms should apply to Mr. Pelham’s payment of retroactive support?

[ 23 ] Using the parties’ formula for child support, Mr. Pelham’s monthly child support payments in 2021 are $1,067 and he has overpaid his child support by $7,135. [ 24 ] The parties agree that Mr. Pelham underpaid 2020 child support by $22,530.96. Offsetting his 2021 overpayment against his 2020 underpayment, I conclude that Mr. Pelham owes his children $15,395.96. [ 25 ] Mr. Pelham offers no specific plan to repay this amount. [ 26 ] Ms. MacNeil wants Mr.

Pelham ordered to pay the retroactive support in 24 equal monthly instalments: an additional $641.49 each month which would bring his total monthly payment to $1,708.49. [ 27 ] Mr. Pelham receives net Employment Insurance benefits of $1,028 bi-weekly. He will receive these for 9 months, from April to December. Grossing these up for income tax, they equal approximately $23,000 (or $2,555.55 each month). [ 28 ] Retroactive child support awards may be structured to minimize hardship: DBS v. SRG , 2006 SCC 37 at paragraph 116 . Mr.

Pelham did not provide a Statement of Income, Statement of Expenses, Statement of Property, or any information about his partner’s financial circumstances that would assist me in structuring payment of the retroactive child support to minimize hardship. [ 29 ] Mr. Pelham earned $220,290 in 2020 and he received $84,000 in severance. From the $304,000 he received in 2020, Mr. Pelham: o repaid personal debts of $20,000 o paid child support of $39,928 to Ms.

MacNeil o made contributions of $14,400 to his fiancée for household costs o contributed $23,737.45 to his RRSP, and o paid income taxes of $115,239. [ 30 ] These payments left Mr. Pelham with over $90,000. From this, he also paid his own expenses. Still, Mr. Pelham owes 2020 taxes of almost $18,000. Mr. Pelham says there is no money left to pay these taxes. He cannot say how his money was spent. [ 31 ] Mr. Pelham cohabits with his fiancée. She is employed. Mr. Pelham occasionally assists her, for free, with her work in real estate sales.

He receives Employment Insurance benefits in the net amount of $2,229.50 monthly. [ 32 ] Mr. Pelham’s 2020 tax return shows he contributed almost $24,000 to his RRSP in 2020. There is no evidence that he has withdrawn these funds. They are available to satisfy his retroactive debt. [ 33 ] I order that Mr. Pelham pay the 2020 retroactive child support award within 30 days of this decision. _____________________________ Justice Elizabeth Jollimore

Halifax, Nova Scotia