Sugg v. MacNeil, 2016 NSSC 54

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Sugg v. MacNeil , 2016 NSSC 54 Date: 2016 – 02 – 05 Docket: SFSN MCA 077757 Registry: Halifax Between: Tiffany Anne Sugg Applicant v. William Terrance MacNeil Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : January 26, 2016 Oral Decision: February 5, 2016 Counsel: Tiffany Sugg on her own behalf William R. Burke for Terry MacNeil By the Court: 1. Introduction [ 1 ] In December 2014, Terry MacNeil applied to vary the terms of two separate orders which related to parenting and child maintenance. In terms of child maintenance, he wants to vary both past and present payments. His variation application is pursuant to

section 37 of the Maintenance and Custody Act , R.S.N.S. 1989, c. 160. 2. Parenting [ 2 ] Terry MacNeil and Tiffany Sugg are the parents of 9 ½ year old Deanna. The parenting order Mr. MacNeil wants varied was granted on June 22, 2012. It is styled as an ex parte order. More accurately, the order was granted in Mr. MacNeil’s absence: he had been served with notice of the hearing and did not attend. The order gave Tiffany Sugg primary care of Deanna. It provided that Mr. MacNeil would have reasonable access “with times and places of access” to be determined by Ms. Sugg and said that transportation would be Mr.

MacNeil’s responsibility. [ 3 ] At the time of the 2012 order, Deanna was almost six years old. She and her parents lived in Cape Breton. In August, 2013 when Deanna was seven, she and her mother relocated to the Halifax Regional Municipality. Mr. MacNeil remains in Cape Breton. It’s a four to five hour drive from one parent’s home to the other’s. [ 4 ] Most of the evidence offered about Deanna related to when she and her family lived in Cape Breton. After Deanna’s birth, Ms. Sugg returned to school and Mr. MacNeil and members of Deanna’s extended family were greatly involved in Deanna’s care. Mr. MacNeil and Ms.

Sugg separated in the fall of 2011. Since then Deanna lived with her mother.

2.1 Variation of parenting orders [ 5 ]

Section 37 of the Maintenance and Custody Act says I may vary a parenting order where there has been a change in circumstances since the making of the last order. [ 6 ] All parenting applications, including variation applications, are determined on the basis of the child’s best interests. Proving there has been a change of circumstances means proving that the current order is no longer best for the child. It also highlights the new circumstances, so the new order can reflect the child’s best interests in the new circumstances. [ 7 ] Mr. MacNeil says that Ms.

Sugg’s relocation is a change in circumstances which gives me authority to vary the parenting order. Ms. Sugg doesn’t challenge that this has been a change in circumstances. [ 8 ] According to then-Justice McLachlin, at paragraph 12 of majority reasons in Gordon v. Goertz 1996 SCC 191, “Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way.” [ 9 ] Mr. MacNeil seeks joint custody of Deanna and specific parenting time with her. [ 10 ] Ms.

Sugg wants to continue to have sole custody and she disagrees with certain aspects of the parenting time Mr. MacNeil wants. There are some things about which the parents agree. [ 11 ] The parents have agreed: Mr. MacNeil may speak privately with Deanna each evening by way of FaceTime or telephone; a. Deanna’s school and doctor may provide information directly to Mr. MacNeil about Deanna (this has been provided for in an order granted on April 22, 2015); b. Ms. Sugg will provide Mr. MacNeil with the address and phone number for Deanna’s doctor; c.

The parents will create a joint email account to which her school will direct its emails about Deanna and school events and information; and d. Deanna will be with her father in Halifax from no earlier than Saturday morning until no later than Monday evening of the February holiday weekend (February 13 – 15, 2016). 2.2 Joint custody [ 12 ] By joint custody, I am referring to the parents sharing the responsibility to make significant decisions for Deanna. These decisions would relate to Deanna’s education, religious upbringing and discretionary health care, for example. [ 13 ] Ms.

Sugg has had primary custody of Deanna since 2012 and has been solely responsible for making decisions relating to her. [ 14 ] The change which has occurred is Deanna’s relocation. This change is not one which has altered her needs or her parents’ ability to meet her needs as they relate to custodial decision-making in a fundamental way. I conclude that, as a change of circumstances, the move is not a material change which gives me jurisdiction to vary Deanna’s custodial decision-making.

Tiffany Sugg shall continue to be responsible for making decisions about Deanna’s education, religious upbringing and discretionary health care. 2.3 Parenting time [ 15 ] In contrast with decision-making, Deanna’s relocation has altered her parents’ ability to meet her needs in a fundamental way. Initially, when both her parents lived in the same community, Deanna’s contact with her father was to be at places and times chosen by Ms. Sugg.

Deanna is now four to five hours away from one of her parents. [ 16 ] Deanna’s father and paternal grandparents describe an active relationship between Deanna and her father before she left Cape Breton. Ms. Sugg and her mother confirmed this. [ 17 ] According to Ms. Sugg, Deanna would love nothing more than to see her father and she loves him dearly. However, she also said Deanna doesn’t want to travel to Cape Breton. Since moving from Cape Breton, Deanna’s access has been limited. Ms. Sugg spoke of different requirements Mr.

MacNeil would have to fulfil to have access to Deanna, primarily noting a concern about consistency. [ 18 ] The parents disagree about the access Deanna should have with her father at Christmas, during the summer and during the March Break. Mr. MacNeil would like one-half of Christmas and the summer and all of the March Break. He would like time at Christmas alternated so that Deanna would alternate spending December 25 with her mother and her father. Ms. Sugg agrees with equally sharing Christmas, but wants Deanna to spend every December 25 with her.

She would like to divide the March Break and to divide the summer by alternating weeks. Mr. MacNeil would like to divide the summer so that Deanna spends one month with each parent. [ 19 ] Ms. Sugg’s concern relates to the lack of regular contact between Deanna and Mr. MacNeil and his family. This concern can only be addressed by promoting consistent contact. The parties have begun that with their agreement that Mr. MacNeil will spend time with Deanna in HRM over the February holiday weekend, from February 13 to 15, 2016. 2.3.1 Access in 2016

[ 20 ] At present, Deanna’s relationship with her father doesn’t involve consistent contact. As well, Ms. Sugg has plans in place for upcoming March Break. These facts have an impact on the access I am awarding in the coming months. [ 21 ] Ms. Sugg has arranged to be on vacation from work during the March Break and she opposes access which would interfere with this. Mr. MacNeil is not employed so his time for access is not similarly limited. [ 22 ] To renew Deanna’s relationship with her father, I am ordering three weekend visits before the summer.

The first will occur over the February holiday weekend, as I have noted. This year, Easter falls in March. Ms. Sugg has arranged to take holiday time during the March Break, so Mr. MacNeil will not see Deanna then. Instead, this March, he will see Deanna over the Easter weekend, from March 25 to 27, 2016. This access will occur in HRM and will start no earlier than Friday morning and end no later than Sunday evening. Finally, Deanna will spend time with her father over the holiday weekend in May (May 20 – 23, 2016).

His time will begin no earlier than Friday evening and end no later than Monday evening. [ 23 ] All times will be agreed upon by the parents. If they cannot agree, access which starts or ends in the “evening” will start or end at 5 p.m. and access which starts or ends in the “morning” will start or end at 11 a.m. [ 24 ] While Deanna has spent time at her paternal grandparents’ home in the past, she has not done so recently. Until the summer, all her visits with her father will be in HRM. To refresh her familiarity with that home, I am ordering that in 2016, her summer access will begin gradually.

This access will occur in Cape Breton. I appreciate the difficulty it creates for Mr. MacNeil in having to make multiple visits to HRM to transport Deanna to Cape Breton.

For this year, this is important to ensure that Deanna is comfortable in re-establishing her relationship with her family in Cape Breton and in spending time away from her family in HRM. [ 25 ] While Deanna is in Cape Breton, she shall have the same telephone or Facebook access with her mother that she currently has with her father. [ 26 ] Deanna shall be with her father in Cape Breton from the morning of July 9 until the evening of July 16; from the morning of July 24 until the evening of August 1; and from the morning of August 20 until the evening of August 27.

While in Cape Breton, she will remain at her paternal grandparents’ home in Glace Bay during the first two extended visits (July 9-16 and July 24 – August 1); thereafter, she may stay at their cottage in Grand Mira North. [ 27 ] So Deanna remains connected with her father and paternal family, I order that Mr. MacNeil shall have access in HRM on the Thanksgiving weekend (October 7 to 10, 2016), with the visit starting no earlier than Friday evening and ending no later than Monday evening. [ 28 ] Understandably, both parents want to spend Christmas morning with Deanna.

Deanna has spent every Christmas with her mother. Deanna has a half-sibling and her maternal grandmother and a maternal aunt in the vicinity of her home in HRM. In Cape Breton, there is her father and members of her extended paternal family, including cousins. [ 29 ] Ordering access at Christmas, especially access which allows Deanna to see her paternal family in Cape Breton, burdens Mr.

MacNeil and his family with a ten hour drive (if the round trip is made without interruption) at a time of year when weather is undependable and family time is at a premium. [ 30 ] Of course, access is the child’s right and my decision about access is to reflect what’s in her best interests – not what either parent seeks for himself or herself. Every family has its own particular rituals: hanging stockings, going to Mass, getting together with family, opening presents, calling (or skyping) distant family members, eating the turkey. The list and details depends on the family.

Deanna has had one type of Christmas since she was born. Introducing another one disrupts her experience of Christmas. Rather than deny her that, I am ordering that in every year, Deanna will spend time with her father from the morning of December 26 until the morning of the day before she returns to school. In this way, she will have the rituals she has come to develop at her mother’s home and she, with her father, will develop new rituals around her Cape Breton Christmas. [ 31 ] Both Mr. MacNeil’s parents testified that they would do anything to support Deanna and her relationship with her father.

Providing Deanna with a Cape Breton Christmas, starting on December 26, is something I am asking that they commit to, in their willingness to support Deanna’s relationship with her father. 2.3.2 Access after 2016 [ 32 ] In 2017 and beyond, once Deanna’s relationship with her father is renewed, there will be some changes to access. Christmas will be unchanged. [ 33 ] Deanna will have access with her father for the first half of every March Break, starting no earlier than Friday evening and continuing until no later than Wednesday morning. This will occur in HRM. [ 34 ] Deanna will spend July with her father.

This will begin on the morning of July 1 and end on the evening of July 31. This will occur in Cape Breton. There will be no restriction on the location of this visit in Cape Breton. [ 35 ] Each fall, Mr. MacNeil shall have access in HRM on the Thanksgiving weekend, with the visit starting no earlier than Friday evening and ending no later than Monday evening. [ 36 ] As I’ve noted above, all times will be agreed upon by the parents. If they cannot agree, access which starts or ends in the “evening” will start or end at 5 p.m. and access which starts or ends in the “morning” will start or end at 11 a.m.

As well, while Deanna is in Cape Breton, she shall have the same telephone or Facebook access with her mother that she currently has with her father. [ 37 ] The parents can agree to alter this

schedule and to add additional visits. Unless they agree to change this schedule, this is the

schedule that will govern them.

[ 38 ] I encourage each parent to let the other know when he or she is visiting in Halifax or Cape Breton and to promote a visit between Deanna and the visiting parent at that time. Children follow their parents’ guide in dealing with circumstances – if the parents are open and accepting, the child will be as well. 3. Prospective child maintenance [ 39 ] In February 2014, Ms. Sugg began an application for child maintenance. Mr.

MacNeil was sent a Direction to Disclose in March 2014 and, after he failed to provide details of his financial circumstances, he was ordered to disclose that information and to attend court in August 2014. When Mr. MacNeil failed to provide financial information or appear in court, Associate Chief Justice O’Neil imputed annual income of $60,000.00 to Mr. MacNeil and ordered him to pay monthly child maintenance of $517.00, starting on September 1, 2014. [ 40 ] While Associate Chief Justice O’Neil didn’t explicitly state the basis for doing so pursuant to

section 19 of the Nova Scotia Child Maintenance Guidelines , NS Reg 53/98 , I infer from His Lordship’s reference to Mr. MacNeil’s failure to disclose that the basis for his order imputing income to Mr. MacNeil was clause 19(1)(

f) of the Guidelines . 3.1 Variation of maintenance orders [ 41 ]

Section 10 of the Maintenance and Custody Act requires me to apply the Guidelines in a variation application. The guidelines are the Nova Scotia Child Support Guidelines . Associate Chief Justice O’Neil ordered Mr. MacNeil to pay child maintenance based on the tables. According to subsection 14(

a) of the Guidelines , the change of circumstances required to vary Associate Chief Justice O’Neil’s order is “any change in circumstances that would result in a different child maintenance order or any provision thereof.” [ 42 ] The tables determine child maintenance based on three variables: the payor’s income; the payor’s province or territory of residence; and the number of children being supported. Mr. MacNeil says that his income has changed, and this is the basis for his variation application.

His application is not so simple, however. [ 43 ] In Trang , 2013 ONSC 1980 , Justice Pazaratz addressed the question of whether a payor could simply rely on his or her current income (shown on line 150 of his or her tax return) in a variation application where the order sought to be varied was based on imputed income. He said, at paragraph 51: When the court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or further review.

It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on - or wait for - - representations from the payor. [ 44 ] At paragraphs 43 to 60 in Trang , 2013 ONSC 1980 , Justice Pazaratz considered whether all variation applications involve the same analysis. At paragraph 46, he concluded that where support is based on imputed income, “a more comprehensive analysis is required” in variation applications. This analysis compels me to consider: a. Why did income have to be imputed in the first instance? Have those circumstances changed?

Is it still appropriate or necessary to impute income to achieve a fair result? b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable? [ 45 ] Justice Pazaratz said, at paragraph 52 in Trang , 2013 ONSC 1980 , when a payor argues that an imputed income level is no longer appropriate, the payor must “go beyond establishing [his or her] subsequent “declared” income”. The payor must offer evidence of changed circumstances that establishes either: a.

It’s no longer necessary or appropriate to impute income and the payor’s representations as to income should now be accepted, even if they weren’t before; or b. Even if income should still be imputed, a different amount is more appropriate, given changed circumstances. [ 46 ] I accept this is the correct approach to adopt in deciding Mr. MacNeil’s variation application. As Justice Pazaratz said, at paragraphs 53 to 60 in Trang , 2013 ONSC 1980 , allowing a payor to vary child support based on declared income, after income has been imputed, defeats the purpose of imputing income.

The burden is on the party seeking the variation to prove that circumstances have changed, not for the support recipient to prove that income should still be imputed to the payor. [ 47 ] At paragraph 55 of Trang , 2013 ONSC 1980 , Justice Pazaratz made clear that, “The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.” Where the payor doesn’t show the circumstances which prompted income to be imputed to him have changed, it will remain appropriate and necessary to impute income to achieve a fair result. 3.1.1 Why was income imputed in the first instance? [ 48 ] Income was imputed because Mr.

MacNeil failed to provide proof of his income despite being directed and then ordered to do so. That circumstance has changed because Mr. MacNeil has now provided some proof of his income at certain periods of time. 3.1.2 How exactly did the court quantify the imputed income? [ 49 ] Associate Chief Justice O’Neil quantified Mr. MacNeil’s income based on the evidence he heard from Ms. Sugg that Mr. MacNeil was working on a pipeline in Alberta. Mr. MacNeil has confirmed that he was working for a pipeline company in 2014.

He says his work ended that year and he’s currently unemployed, looking for work and receiving income assistance benefits.

3.1.3 Is it still necessary or appropriate to impute income and should Mr. MacNeil’s representations as to income now be accepted? [ 50 ] I have sufficient disclosure of Mr. MacNeil’s income and testimony from Mr. MacNeil concerning his financial circumstances, that it is no longer necessary or appropriate to impute income to him. I accept his representation about his income. Both his parents testified and I know that Mr. MacNeil lives with them and they assist him in meeting his needs. 3.2 Quantifying prospective child maintenance [ 51 ] Mr. MacNeil filed his variation application on December 29, 2014.

He said that after he left his job on the pipeline, his Employment Insurance benefits continued until mid-March 2015 and, since then, he’s received monthly income assistance benefits of $433.00. [ 52 ] Mr. MacNeil said his total 2015 Employment Insurance benefits were $7,220.00. Adding monthly Income Assistance benefits of $433.00 for nine months to this amount, brings his total 2015 income to $11,117.00, an amount approximately $300.00 greater than the threshold below which child maintenance is not payable. [ 53 ] Based on an annual income of $11,100.00 Mr.

MacNeil shall pay child maintenance of $16.00 for each month of 2015. He owes total child maintenance of $192.00 for 2015. [ 54 ] Mr. MacNeil said that he is searching for work and in his affidavit of November 2015, he said he had made applications at Foodland, SuperValue, Walmart, Home Depot, Canadian Tire and the local hospital. No potential employer asked him for an interview. When I asked him where he had applied for jobs in the past month, he said he had applied at SuperValue, Walmart, Home Depot, Sobey’s and Price Chopper.

His job search is not extensive but he appears to have no skills that would support a more expansive search for employment. He lacks the financial means to relocate. [ 55 ] I note that Mr. MacNeil sees a doctor four times annually for treatment for anxiety and depression. He has been prescribed medication for this. He did not say that this prevented him from working. [ 56 ] Currently, Mr. MacNeil’s income consists entirely of Income Assistance benefits. His income is too low for him to pay child maintenance in 2016. 4. Forgiveness of child maintenance arrears [ 57 ] Associate Chief Justice O’Neil ordered Mr.

MacNeil to pay monthly child maintenance of $517.00, starting on September 1, 2014. Mr. MacNeil fell into arrears immediately. Only two payments (one of $246.00 and one of $172.00) have ever been received. These were the result of a garnishment. [ 58 ] In his application, Mr. MacNeil also asked to address arrears pursuant to sections 15 and 46 of the Maintenance Enforcement Act , S.N.S. 1994-95, c. 6. For reasons I have explained in Bell , 2013 NSSC 330 and in Power , 2015 NSSC 234 at paragraphs 77 to 80 , I do not believe that these sections of the Act apply. [ 59 ] According to Mr.

MacNeil, he worked “out west on the pipelines” from late January until early March 2014. He said he also attempted to work “out west in October 2014 and was only able to stay for a total of three weeks”. Neither in his affidavits nor in his testimony did Mr. MacNeil state explicitly why he left this work. He did say that, in December 2014, he was in a methadone program and was striving to be chemical-free. [ 60 ] His 2014 T4 slip shows total earnings of $23,934.46 from Midwest Pipelines Inc.

According to his T4E, he received Employment Insurance benefits of $17,990.00 in 2014 and he also withdrew $2,889.37 from his RRSP that year. Mr. MacNeil paid union dues of $235.84 in 2014, so his total income for child maintenance purposes in 2014 was $44,577.99. [ 61 ] During a pre-hearing conference and in two conference memoranda I referred the parties to the Court of Appeal’s decision in Smith v. Helppi , 2011 NSCA 65 , which I believe states the law governing payor’s applications to vary child maintenance retroactively and to address arrears. [ 62 ] In Smith v.

Helppi , 2011 NSCA 65 at paragraph 22 , our Court of Appeal endorsed the decision of the New Brunswick Court of Appeal in PMB v. MLB , 2010 NBCA 5 . At paragraph 2 of that decision Justice Robertson said that the “jurisdiction to issue retroactive variation orders that reduce or cancel arrears of support has been carefully circumscribed” both federally and provincially and when deciding whether to retroactively vary a payor’s obligation where this reduces or cancels arrears, I must “rule on two discrete questions”: a. Was there a material change in circumstances during the period of retroactivity? b.

Having regard to all other relevant circumstances during this period, would the applicant have been granted a reduction in his or her support obligation but for his or her untimely application? [ 63 ] The period of retroactivity is the period from the date of Associate Chief Justice O’Neil’s order to the date Mr. MacNeil filed his application, a period of four months. During that period, Mr. MacNeil ceased his employment. He has failed to explain why this occurred. As Justice Robertson said in PMB v. MLB , 2010 NBCA 5 at paragraph 2 , the burden is on Mr.

MacNeil to prove that this change was “real and not one of choice”. Mr. MacNeil has not discharged this burden. Neither in his affidavit nor in his testimony did Mr. MacNeil explain why he left his employment at Midwest Pipeline. [ 64 ] As I dismiss Mr. MacNeil’s application to rescind arrears of child maintenance and I fix the arrears of child maintenance at $1,650.00 for the period of September 1, 2014 to December 31, 2014. This is the total amount owed of $2,068.00, less the amount of

$418.00 garnished in payment toward it. 5. Conclusion [ 65 ] Deanna will remain in Ms. Sugg’s primary care and custody. Her mother will be responsible for making decisions relating to her education, religious upbringing and discretionary health care. In 2016, Deanna will spend time with her father and extended paternal family which will re-familiarize her with them. In 2017, a regular access routine will be put in place. [ 66 ] Arrears of child maintenance for 2014 are fixed at $1,650.00 and child maintenance for 2015 is fixed at $16.00 each month ($192.00 owed for the year).

No child maintenance is ordered at present in light of Mr. MacNeil’s low income. The order will contain the usual requirements for Mr. MacNeil to advise Ms. Sugg about changes to his income and employment and to provide annual tax return disclosure. [ 67 ] Mr. MacNeil’s counsel will prepare the order and forward it to me and to Ms. Sugg simultaneously for review. ___________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia