C.M. v. D.M., 2011 NSSC 392

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: C.M. v. D.M., 2011 NSSC 392 Date: 20111024 Docket: SFSNMCA0061382 Registry: Sydney, N.S. Between: C.M. Applicant v. D.M. Respondent LIBRARY HEADING Judge: The Honourable Justice Darryl W. WIlson Heard: July 6, 2011 in Sydney, Nova Scotia Final Written Submissions: July 13, 2011 Written Decision: October 24, 2011 Subject: Family Law

Summary: Fact-specific. Calculation of child maintenance in a shared-parenting arrangement. Result: Father ordered to pay child maintenance of $450.00 a month, which was $260.00 per month greater than the set- off amount.

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: C.M. v. D.M., 2011 NSSC 392 Date: 20111024 Docket: SFSNMCA0061382 Registry: Sydney, N.S. Between: C.M. Applicant v. D.M. Respondent Judge: The Honourable Justice Darryl W. Wilson Heard: July 6, 2011 in Sydney, Nova Scotia Final Written Submissions: July 13, 2011 Oral Decision: July 27, 2011 Written Decision: October 24, 2011 Counsel: Theresa O’Leary, Counsel for the Applicant Candee McCarthy, Counsel for the Respondent

By the Court: [1] C.M., the mother, and D.M., the father, are the parents of two (2) young girls, aged eight (8) and three (3). Court proceedingswere initiated by the mother in November, 2008 for custody and child maintenance. The father opposed the mother’s parenting plan.

An Interim Consent Order dated October 8, 2009 provided for joint custody, primary care to the mother and reasonable access to thefather, including specified access, as well as retroactive and ongoing child maintenance. [2] In December, 2010, after a hearing, the Court determined a shared-parenting arrangement was in the children’s best interest. The parties had agreed to defer the issue of child maintenance until the parenting arrangements were determined. They could not agreeon an amount for child maintenance.

This proceeding deals with the amount of child maintenance payable by the father to the mother ina shared-parenting arrangement. [3] The father proposes that he pay $174.00 per month, which is a set-off between the Table amount payable by each parent. [4] The mother proposes the father pay $500.00 a month plus an additional $341.00 a month to cover his share of the cost ofchild care. [5] This proceeding is taken pursuant to the Maintenance and Custody Act. R.S., c. 160, s. 1; 2000, c. 29, s. 2. The parties livedin a common-law relationship.

The relevant sections of the Maintenance and Custody Act dealing with child maintenance are

Section 9and 10(1), which states: Maintenance order 9 Upon application, a court may make an order, including an interim order, requiring a parent or guardian to pay maintenancefor a dependent child. 1997 (2nd Sess.), c. 3, s. 4. Powers of court 10

(1) When determining the amount of maintenance to be paid for a dependent child, or a child of unmarried parents pursuantto

Section 11, the court shall do so in accordance with the Guidelines. [6] The payment of child maintenance in a shared-parenting arrangement is governed by

Section 9 of the Provincial ChildMaintenance Guidelines which provides: Shared Custody 9.Where a parent exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over thecourse of a year, the amount of the child maintenance order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the parents; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each parent and of any child for whom maintenance is sought. [7] The determination of child maintenance in a shared-parenting arrangement was considered by the Supreme Court of Canadain the case of Contino v. Leonelli-Contino, 2005 SCC 63 , [2005] 3 S.C.R. 217.

39 The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine thechild support amount in shared custody arrangement calls for the acknowledgment of the overall situation of the parents(conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particularfacts of [page240] each case. I will now consider each of the three s. 9 factors. 2.2.1

Section 9(a) -- Amounts Set Out in the Applicable Tables for Each of the Spouses 40 The first factor requires that the court take into account the financial situations of both parents (instead of the sole income ofthe spouse against whom the order is sought, as in s. 3). It is important to highlight the fact that the final and fully consideredversion of s. 9 does not include a conclusive formula to determine how the Table amounts are to be considered or accounted for.

SECTION 9(a) - AMOUNTS SET OUT IN THE APPLICABLE TABLE FOR EACH OF THE PARTIES [8] The father’s annual income was $68,101.00 in 2010. He had trade union dues of $1,524.00, which would reduce his incomefor purposes of determining the Table amount of support to $66,577.00. The mother’s annual income was $56,581.00 in 2009 and$52,502.00 in 2010. The annual income for her position in 2011 is $51,557.00, however, this amount does not take into account she isbeing paid a higher base salary while performing the duties of a co-worker who is absent from their position.

Her statement of expensesindicates she is paying union dues of $78.75 a month or $946.00 per year, which was not referred to in her oral evidence. I fix her annualincome for purposes of determining the Table amount of support at $52,500.00. [9] The Table amount of support for two (2) children at the father’s annual income is $938.00 per month. The Table amount ofsupport for two (2) children at the mother’s annual income is $749.00 per month. The simple set-off is $189.00 per month, payable bythe father to the mother. [10] The simple set-off is the starting point.

See paragraphs 50 and 51 of Contino (supra): 50 It should be noted here that the Table amounts are an estimate of the amount that is notionally being paid by thenon-custodial parent; where [page246] both parents are making an effective contribution, it is therefore necessary to verify howtheir actual contribution compares to the Table amount that is provided for each of them when considered payor parents.

Thiswill provide the judge with better insight when deciding whether the adjustments to be made to the set-off amount are based onthe actual sharing of child-related expenses. 51 This is where discretion comes into play. The court retains the discretion to modify the set-off amount where, considering thefinancial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children asthey move from one household to another, something which Parliament did not intend. As I said in Francis v.

Baker, one of theoverall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households. It is also necessary tocompare the situation of the parents while living under one roof with the situation that avails for each of them when the orderpursuant to s. 9 is sought. As far as possible, the child should not suffer a noticeable decline in his or her standard of living. Still,it is not a discretion that is meant to set aside all rules and predictability. The court must not return to a time when there was noreal method for determining child support (Paras v.

Paras, (ON CA), [1971] 1 O.R. 130 (C.A.)).

SECTION 9(b) - THE INCREASED COST OF SHARED CUSTODY ARRANGEMENTS [11] Both parents are contributing to all of the children’s needs while they are in their care. There does not appear to be muchcooperation in the sharing of common child-related expenses. See paragraphs 52 and 53 of Contino (supra). 52 What should the courts examine under this heading?

Section 9(

b) does not refer merely to the expenses assumed by the

payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons. First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child.

The Tables are based on the amount needed to provide [page247] a reasonable standard of living for a single custodial parent (see Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report, at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(

b) recognizes that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody: Slade v. Slade, at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, all of the payor parent's costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than he or she was before shared custody was accomplished.

As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes. 53 A change in the actual amount of time a payor parent spends with a child will therefore give rise under s. 9(

b) to an inquiry in order to determine what are, in effect, the additional costs incurred by the payor as a result of the change in the custodial arrangement. I say this because not all increases in costs will result directly from the actual amount of time spent with the child. One parent can simply assume a larger share of responsibilities, for school supplies or sports activities for example. For these reasons, the court will be called upon to examine the budgets and actual child care expenses of each parent.

These expenses will be apportioned between the parents in accordance with their respective incomes. [ 12 ] Both parties submitted monthly budgeted expenses. The father’s monthly budgeted expenses were $4,781.00, plus $530.00 to cover debt payments. The mother’s monthly budgeted expenses were $4,766.00. Monthly Expenses D.M. C.M. Accommodation $1,030.00 $1,075.00 Telephone/Internet/Cable $295.00 $210.00 House Repair /Applicant Replacement $100.00 $250.00 Food/Toiletries $800.00 $950.00 Clothing/Laundry $175.00 $325.00 Motor Vehicle/Transportation $1,011.00 $944.00 Child Care $325.00 $455.00 Other

Section 7 Expenditures $0.00 $75.00 Allowances/Activities $150.00 $60.00 Hair/Grooming $10.00 $45.00 Medical/Dental, etc. $100.00 $47.00 Christmas $125.00 $175.00 Holidays $50.00 $100.00

Entertainment $200.00 $50.00 Miscellaneous, incl. charitable donations $110.00 $5.00 Costs for another child $300.00 $0.00 TOTAL $4,781.00 $4,766.00 [ 13 ] The father owns his own home subject to a mortgage. His accommodation costs include the mortgage, insurance, heat and electricity. The mother rents a home. Her accommodation costs include monthly rental plus electrical expenses. The motor vehicle expenses for both parents include loan payments, gas, maintenance, insurance and parking.

Section 7 child-related costs of the mother include health-related expenditures, school expenses and extra-curricular activities, which the father has included under a separate heading. [ 14 ] It was difficult to determine the reasonableness of the actual child care costs of each parent.

While there will always be an element of guess work for some expenditures, almost all budgeted items were estimates by the parents with little in the way of documentation to support their estimates. [ 15 ] The child-related expenses in the father’s budget were estimated at $2,474.00, calculated as follows: Mortgage $853.00 Insurance $120.00 Wood $60.00 Electricity $300.00 Telephone/Cable $295.00 House repairs $100.00 $1728.00 X .50 Subtotal $864.00 Food $540.00 Toiletries $100.00 Clothing Minimum $150.00

Laundry $12.50 Transportation Costs 25% of gas $112.50 Childcare (up to $301.00) $150.00 School lunches $20.00 Children’s activities $150.00 Birthdays and gifts Minimum $125.00 minimum Holidays $50.00 Entertainment $200.00 Subtotal $1,610.00 TOTAL $2,474.00 [ 16 ] The child relates expenses in the mother’s budget were estimated at $2,325.00, calculated as follows: Accommodations 25% of $1,075.00 $268.75 Telephone/Internet/Cable $155.00 Food and Toiletries $600.00 Clothing and laundry $235.00 Transportation 15% of $944.00 $141.60 Child care $454.65 Other

Section 7 Expenses $75.00 Hair $20.00 Activities $60.00 Drugs/Dental $10.00 Christmas $175.00 Holidays $100.00

Entertainment $30.00 TOTAL $2,325.00 [ 17 ] In determining the reasonableness of each parent’s child-related expenses, I have reduced the father’s accommodation costs and increased the mother’s accommodation costs while leaving all remaining budget items as claimed by each of the parties. [ 18 ] I have reduced the father’s accommodation costs by $300.00 per month and, therefore, his child-related expenses for accommodations by $150.00. The father’s Statement of Expenses filed in December, 2008, indicates a mortgage payment of $550.00 and debt payments of $530.00.

The Statement of Expenses filed for this hearing included the same figures. As it turned out, the father remortgaged the property after separation. He obtained additional funds to pay-out credit card debt, motor vehicle loan and line of credit. His current monthly mortgage is $853.00, which he used in calculating his child-related expenses. He attributes the mother’s behaviour after separation and the high child maintenance order are reasons for almost losing his home and the need to remortgage.

However, he has not satisfied the court on a balance of probabilities that the debts that he rolled over into his mortgage were child- related. [ 19 ] In addition, the father has a child, born in December, 2010, with a new girlfriend. They deny living in a common-law relationship. She indicated her residence is her sister’s apartment where she rents a room for herself and her son. She estimated spending approximately 40% of her time at the father’s residence, generally when the girls are in his care. She is currently on maternity leave. She provides child care one day a week to the father’s girls.

She looks after her own son’s needs and the father contributes when asked. She estimated his financial contribution to be $100.00 to $200.00 per month. She contributes to groceries when she is staying at the father’s residence. [ 20 ] I have adjusted the mother’s accommodation-costs from 25% to 50%, which adds an additional $268.75 monthly to her child- related expenses. At the time of separation, the mother was not able to return to the family home, which was owned by the father. She resided with her mother in North Sydney for a short time.

She then rented a home in close proximity to the father’s residence, which enabled the oldest girl to be near friends and the school she attended before separation, as well as to be near their babysitter, which is also convenient for the father. The mother, who works in Glace Bay, incurred greater transportation costs to work because of this decision to live in the community near the father and the children’s school and babysitter.

Taking these factors into consideration, I attribute 50% of the costs of the mother’s accommodation to be a reasonable apportionment to the children’s needs. [ 21 ] I have reduced the father’s monthly budget for child-related expenses to $2,325.00 and increased the mother’s to $2,600.00. [ 22 ] The total reasonable child-related expenses of both parents is $4,925.00. [ 23 ] Applying the income-ratio, the mother should be spending $2,167.00 per month of that amount on child-related expenses.

Therefore, a contribution of $433.00 by the father would enable her to meet the children’s reasonable needs while in her care.

SECTION 9(C) - CONDITION, MEANS, NEEDS AND OTHER CIRCUMSTANCES OF EACH SPOUSE AND OF ANY CHILD FOR WHOM SUPPORT IS SOUGHT [ 24 ] The third consideration of

Section 9 of the Child Maintenance Guidelines was discussed at paragraph 68-72 of Contino (supra). 68

Section 9(

c) vests the court a broad discretion for conducting an analysis of the resources and needs of both the parents and the children. As mentioned earlier, this suggests that the Table amounts used in the simple set-off are not presumptively applicable and that the assumptions they hold must be verified against the facts, since all three factors must be applied. Here again, it will be important to keep in mind the objectives of the Guidelines mentioned earlier, requiring a fair standard of support

for the child and fair contributions from both parents. The court will be especially concerned here with the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. 69 The Court of Appeal enumerates a number of factors to be considered under this subsection: 1. Actual spending patterns of the parents; [page 254] 2. Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and 3.

Standard of living for the children in each household. 70 The actual spending patterns of the parents have already been considered under s. 9(b). These factors are helpful, the last one being particularly useful for the exercise of discretion in a predictable manner.

As I indicated above, financial statements and/or child expenses budgets are necessary for a proper evaluation of s. 9(c). 71 Moreover, given the broad discretion of the court conferred by s. 9(c), a claim by a parent for special or extraordinary expenses falling within s. 7 of the Guidelines (see Appendix) can be examined directly in s. 9 with consideration of all the other factors (see Slade v. Slade, at paras. 26-30).

Section 9(

c) is conspicuously broader than s. 7. 72 The Court of Appeal, when reversing the decision of the Divisional Court, posited that a reduction in support under s. 9 will sometimes result in undue hardship to the recipient parent and that in such cases the court will need to consider the provisions of s. 10(1) of the Guidelines. In my opinion, there is no need to resort to s. 10, either to increase or to reduce support, since the court has full discretion under s. 9(

c) to consider "other circumstances" and order the payment of any amount, above or below the Table amounts (see "Case Comment: Contino v. Leonelli-Contino ", at p. 332). It is not that "other circumstances" of each spouse and "hardship" are equivalent terms, it is that the discretion of the court, properly exercised, should not result in hardship. It may be that s. 10 would find application in an extraordinary situation, but that is certainly not the case here. [ 25 ] Both parties are employed. The father earns approximately $15,000.00 a year more than the mother.

The father owns a home valued at $120,000.00, which is subject to a mortgage of approximately $95,000.00. He has some other debt. The mother rents a home and has no debt except for a loan of approximately $1,800.00 to purchase furniture for her daughter. Both parties have vehicles but little in the way of other assets. [ 26 ] I have considered the father’s responsibility to his newborn son and the mother’s claim for

Section 7 expenses. [ 27 ] The mother’s decision to reside in the same community as the father, the children’s school and the children's babysitter have increased her costs and are beneficial to the children in maintaining their standard of living in each household. [ 28 ] I have considered the evidence of the parties, the submissions of their counsel and their requirements of

Section 9 of the Child Maintenance Guidelines . [ 29 ] Accordingly, the father shall pay child support of $450.00 a month to the mother, beginning January 1, 2011 when the shared- parenting arrangement was implemented.

[ 30 ] Each party shall be responsible for their own costs. ______________________________ J.