Anderson v. Anderson, 2011 NSSC 504

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Anderson v. Anderson, 2011 NSSC 504 Date: 20111031 Docket: SFH 1201-064681 Registry: Halifax Between: Jennifer Louise Anderson Petitioner v. Ryan Andrew Anderson Respondent LIBRARY HEADING Judge: The Honourable Justice R. James Williams Heard: October 31, 2011 in Halifax, Nova Scotia Oral Decision: October 31, 2011 Edited for Release: February 14, 2012 Keywords: Retroactive child support, occupation rent, spousal support Legislation: Divorce Act

Summary: Fact specific, no retroactive order, no order for occupation rent, spousal support ordered. 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: Anderson v. Anderson, 2011 NSSC 504 Date: 20111031 Docket: SFH 1201-064681 Registry: Halifax Between: Jennifer Louise Anderson Petitioner v. Ryan Andrew Anderson Respondent Judge: The Honourable Justice R.

James Williams Heard: October 31, 2011, in Halifax, Nova Scotia Oral Decision: October 31, 2011 Edited for Release: February 14, 2012 Counsel: Joyce Ruck De Peza, for the Petitioner Kerri-Ann Robson, for the Respondent

By the Court: [ 1 ] This is a divorce proceeding between Jennifer Louise Anderson and Ryan Andrew Anderson.

The parties have two children, Nela Pumpkin Anderson, and Summer Rose Anderson, born respectively December 5th, 2004 and June 21st, 2007. [ 2 ] The parties have had a relatively short marriage and relationship, having married in December of 2003 and separated in December of 2008. [ 3 ] At the time of separation, the parties were in a home that had been recently built by them. [ 4 ] The building of the home had resulted in a mortgage that was more than what they had hoped to have in place upon the completion of the home, in part because they consolidated some debts into the mortgage, in part because of the building itself, in part because of their decision to purchase new furniture. [ 5 ] When they separated, Ms.

Anderson’s parents offered to allow her and the children to come to their home. Their offer was generous and was taken up. They did what I think many parents would do in such a circumstance in an attempt to support their daughter and grandchildren. There is nothing to indicate that they had an expectation that anything remotely approaching market value of rent be paid by Ms. Anderson. [ 6 ] Ms.

Anderson’s own evidence in her affidavit indicates that following the separation they (the family) were making an adjustment to a difficult situation, that they were trying to get things under control at a difficult time for all, trying to get things under control emotionally, trying to get things under control psychologically, and trying to get things under control financially. [ 7 ] It would seem to me that Ms. Anderson, in going to her parents’ home, actually had their support in every way, not just financially.

And I have no doubt and no question that she and the children would have benefited from that. [ 8 ] What happened at that time was not as simple as just her leaving though. It was a situation where the parties had, based on their incomes together , a burdensome financial situation. The evidence is that Ms. Anderson’s income was not very much in 2008, and that she devoted undoubtedly most of her attention to the two very young children in the parties’ care. [ 9 ] I do not interpret the evidence as indicating that Ms. Anderson was excluded from the home or expelled from the home.

I rather see it as probably the most practical solution to the difficulties they (Mr. and Mrs. Anderson) were having at that time. [ 10 ] If they were going to separate and there was a choice between a situation where one of them had very reduced housing expenses and living expenses for a period of time (that her parents were prepared to provide) versus one where perhaps she and the children remained in the home and maintained the home and Mr.

Anderson had to secure housing of some sort ( and contribute to the maintenance of the matrimonial home), then this family’s limited resources dictated that the extended family support would have been the one to choose. That is what they did. [ 11 ] I recognize there is some indication that Mr. Anderson has had the benefit of some family support also since the sale of the home. I do not know whether that was available at the time of separation. I also note that there would seem to be no question that Mr. Anderson was the one working full-time outside the home, that Ms.

Anderson would have the primary care of the children, and that the matrimonial house had day to day upkeep - be it snow, be it grass, be it other things involved. [ 12 ] All of this points to a situation where this couple did not plan what happened post-separation with particular detail . They fell

into something that made sense at the time for both of them - Ms. Anderson for the emotional and financial support and security that her parents were able to provide; Mr. Anderson because he was the one with the primary income here. There were significant mortgage and housing expenses, and he remained in the home and attended to them. [ 13 ] The home was listed for sale virtually immediately after the parties’ separation in December of 2008 and sold some time later in August of 2010. The evidence is that Ms. Anderson had the support of her parents through that time frame, that Mr.

Anderson attended to virtually all of the matrimonial debt - be it mortgage, be it other debt. There is not the evidence that one sees in some cases where Ms. Anderson lived in doubt as to whether or not these debts would be attended to. They were. [ 14 ] The issue of retroactive child support is dealt with in D.B.S. v. S. R. G. , 2006 SCC 37 (Supreme Court of Canada) , a case of the Supreme Court of Canada. Retroactive Orders are not exceptional. The Court should not be saying “well, it is only in exceptional circumstances that a retroactive Order should be made”. That is not the case at all.

Retroactive Orders can and are often made by the Court. [ 15 ] The Supreme Court of Canada did, however, say it is not always appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime. This will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not.

In short, while a freestanding obligation to support one’s children must be recognized, it will not always be appropriate for a Court to enforce this obligation once the relevant time period has passed. [ 16 ] This is a situation where there is an interim Order that was entered into in September-October of 2010 (after the sale of the matrimonial home). Mr.

Anderson began paying the Table amount of child support immediately upon the sale of the house. [ 17 ] That Order does not refer to retroactive support but does purport to deal with interim support, and this Court would expect that it would either have reserved the right to deal with retroactive support for the relative time period that has been put in question here, or to state that the award was limited in some other fashion.

Those kind of limiting statements are not in the Order. [ 18 ] In looking at a retroactive Order, the Court is to be guided, according to the D.B.S. case, by the reasons for the custodial parent’s delay in seeking child support. Ms. Anderson did file an application, but the Order entered into in the early fall of 2010 did not deal with the support that is being claimed for prior to September of 2010. In that sense, her claim cannot be seen as timely. The claim could have been addressed then; or its determination stated to be subject to later order.

Neither was done. [ 19 ] Blameworthy conduct by the payor parent is a consideration. I do not identify any blameworthy conduct on Mr. Anderson’s part. He was paying a significant amount of money on a monthly basis to the upkeep of the family home while it was listed for sale. This was a joint asset, that carried joint responsibilities. [ 20 ] The children’s circumstances are a factor under D.B.S. There is no question that the children benefited from their maternal grandparents’ generosity. That said, the Court is not entitled to say, well, Ms.

Anderson has great parents and these children have wonderful maternal grandparents, therefore Mr. Anderson should pay. [ 21 ] The generosity of Ms. Anderson’s parents is just that. It is not something that they have sought money or reimbursement. The Court is left to assume that the reason they have been there for their daughter and grandchildren is the caring and love that they have for the three of them.

[22] Hardship caused to the payor parent by a retroactive award is a factor. This is a situation where retroactive award would, in theamount being claimed, be a significant hardship on Mr. Anderson and, in my view, impact upon Mr. Anderson’s ability to provide forthe children when they are in his care, to pay child and spousal support. I recognize that Mr.

Anderson had the full use of thematrimonial home post-separation and until it sold. [23] In all of the circumstances, considering the D.B.S. case, factors referred to in the case, and the evidence before me, I do notbelieve this is an appropriate case for a retroactive award of child support. [24] With respect to the claim for occupation rent, this Court has been, to use the words of Ms. Anderson’s counsel, “very cautious”in making awards of occupation rent. This is a situation where, as in Comeau v. Comeau, (NSSC), the occupyingspouse did not have the care of the children. [25] It is not a case where Mr.

Anderson frustrated the sale of the property. It is not a case where Ms. Anderson lost in her share ofthe capital. It is not a case where either party delayed the sale of the home. It is not a case where I find fault or concern with theconduct of either of the parties. [26] This is not a case where Ms. Anderson was denied unreasonably access to her equity in the home (any more than Mr. Andersonwas). The house was for sale. They were both trying to sell it. I have not been told that there was ever a time that Ms.

Anderson made asuggestion to the effect that she and the children should move back to the home. [27] As I have indicated, I do not conclude that conduct of either party is an issue. There is a delay in making the occupation rentclaim here. But, in part, the occupation rent is triggered by Mr. Anderson’s suggestion that he be compensated for the expenses made tothe matrimonial home after her departure, which was in turn triggered by the request for retroactive child support.

I believe this is prettymuch exactly what I indicated could happen at the pre-trial. [28] I do not conclude that this is an appropriate case for occupation rent to be paid. I do not conclude it is an appropriate case forMr.

Anderson to be compensated in any way for any of the expenditures he had in terms of maintaining the house and matrimonial debts. [29] With respect to the matter of special expenses (both retroactive and ongoing), the items listed as special expenses (apart fromthe pre-school which will be treated as a special expense on a go-forward basis) are not items that normally are found to be specialexpenses under the Child Support Guidelines. They are regular payments for things like dance, baseball, and pre-school sessions thattotalled altogether something in the vicinity of $400.00 per year.

I conclude they are not “special expenses” [30] I have considered Ms. Anderson’s limited income in concluding that, but also considered the child support she has beenreceiving, and will receive, and the federal benefits she receives on behalf of the children. [31] With respect to in particular the pre-school claim for December of 2008, there will be no order that that be a special orextraordinary expense. The evidence is that Ms. Anderson is uncertain as to whether or not that came out of a joint chequing account. [32] There is no indication from her that she paid it in cash.

There was an indication she paid a cheque. There is no indication thatshe opened another account at that time to pay it. [33] Ms. Anderson’s counsel suggested in her summation that the Court give Ms. Anderson “the benefit of the doubt” in thatregard. I am not entitled to give her “the benefit of the doubt”. The rules are that, if there is an expense like that, that it be proven on thebalance of probabilities that it was incurred and not paid for out of matrimonial funds. The assertion that this was a special expenseincurred by Ms. Anderson was not proven.

[ 34 ] With respect to the matter of spousal support, the matter of spousal support here is governed by the provisions of Section 15(2) of the Divorce Act . Here there are economic disadvantages that are accrued to Ms. Anderson from the breakdown of the marriage. [ 35 ] It is appropriate to apportion some of the expenses related to the children over and above child support to Ms. Anderson, and to attempt to relieve the economic hardship.

At the same time, the Court is expected to, insofar as practicable, promote the economic self- sufficiency of each spouse within a reasonable time. [ 36 ] This is a difficult situation in terms of spousal support. I have no difficulty in concluding that Ms. Anderson is entitled to spousal support. She is in a situation where she is choosing a career path that does not promise a lucrative future. [ 37 ] That said, the photography business is a self-employed business that gives her many advantages in terms of family - flexible hours, she is her own boss, travel.

She enjoys it, which is not the least important thing, but it is not as lucrative as it might be. [ 38 ] I do not believe that Ms. Anderson can be faulted in any way for making the choices she has made at this point in time. I think that she recognizes that the course she has taken gives her flexibility with the children, and does not, and will not, provide an income that she perhaps would aspire to in the future. She has chosen to make that compromise, and will live with it now and in the future. [ 39 ] In the circumstances, I am satisfied that a spousal support order is appropriate.

The marriage is five years in length. The length of the spousal support Order will be four years. The mid-point of the Spousal Support Guidelines range is $265.00 per month.

In the circumstances, and considering the child support that is paid, the incomes and needs of the parties, and provisions sof the Divorce Act concerning spousal support, I would fix the spousal support at $265.00 per month. [ 40 ] That will be payable for a period of four years commencing the last day of November of 2011 and continuing the last day of each month thereafter, subject to further order of the Court. [ 41 ] I do not have a submission as to whether or not Ms. Anderson wishes the child and spousal support payments to be paid through the director of Maintenance Enforcement or directly to her.

My impression is that there have been bank transfers at this point. Ms. Ruck de Peza can indicate to Ms. Robson prior of the Order being filed whether or not her client wants that clause in or not. From my point of view, it is entirely up to Ms. Anderson as to whether or not she wants that clause in. [ 42 ] There will be a clause in the Order that the police not enforce the Order. There is indication obviously that the police have been called in the past with this file.

There is no reason for that to occur. [ 43 ] There is nothing that can happen with these children, whether it be a missed visit or an over-stayed visit or something like that that cannot be made up or dealt with in the courtroom later on. It does not require the potential of exposing the children to the police. [ 44 ] Communication has been flagged as an issue. It is an important issue. When I say I do not believe I have the authority to order counselling, it does not mean I think that it is not an important issue. It may be the most important issue in this room to some extent. [ 45 ] And, Mr.

Anderson, it certainly would be advisable from where I sit for you to check your health plan, see if there are counsellors or psychologists who are covered by the plan, see how frequently they are covered.

And if, for example, and I have no way of knowing if it is practical to set it up in this way, but let’s say, for example, the plan covered four family visits to a psychologist a year, then why not set it up so that quarterly the two of you meet with the psychologist and discuss the next few months and the past few months in terms of what has been going on with the children, and use that as a way of communicating? [ 46 ] I am not of the view, having sat here for a number of years, that for very many people that the way to better communicate is to have just one person go to counselling.

I have not seen that work very often at all. There are exceptions when somebody has a serious

mental health issue or something like that. But mostly, the best way to communicate is to do it. [ 47 ] I have emphasized that if you have some information that it is your job to get that information to the other person. I cannot emphasize that enough.

If we end up back in Court down the road and either one of you wants to be, for lack of a better way of putting it, in trouble with the Court, one way of ensuring that is to withhold information from the other side (that common sense tells you the other side would want to know, or reasonably expect to know), and then try to make excuses for not communicating that information in the courtroom, while you are saying what a great job that you have done personally in terms of communicating. [ 48 ] The e-mails - there are extensive e-mails or texts that I have been given.

There is also reference to statements that “I’d prefer to just communicate by e-mail”. There are a number of problems with e-mail from where I sit. [ 49 ] There are issues about proof. [ 50 ] Most of the continuing education programs that we receive caution us that e-mails can be altered. [ 51 ] I am not saying e-mail is not a useful way of communicating basic information, but it should be factual.

It should not be voluminous. [ 52 ] It should be “this is when the baseball games are next week” kind of communication. “I have a wedding at this date”. “I would like to change the weekend or the time I have with the children”. It should be very factual, and matter of fact. The more factual your communication and the less critical of each other, the better that will go. [ 53 ] There are special web sites where you can be assigned (for a fee) discreet e-mail addresses, and the web site saves the e-mails. You are nowhere near that yet.

But there have been situations when I have ordered that people use that kind of web site because what happens is the conflict gets into a back-and-forth over what has been e-mailed when and that. You want to avoid that. [ 54 ] The two of you, from what I have got before me, are good parents and good people who are divorcing. And the best thing you can do is to - and you are not going to get along overnight but the best thing you can do is to avoid trouble with each other.

And if you do that, then gradually things will get better. [ 55 ] So you really, really need to be committed to reducing the conflict even if you feel it. All right, good luck. Thank you. J.S.C (F.D.) Halifax, NS