Kozma v. Kozma, 2012 NSSC 380

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Kozma v. Kozma, 2012 NSSC 380 Date: 20121102 Docket: 1201-062330, SFHD-056503 Registry: Halifax Between: Deborah Ann Kozma Applicant/Petitioner v. Andrew Ferenc Kozma Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: October 22, 2012, in Halifax, Nova Scotia Written Decision: November 2, 2012 Keywords: Family, Corollary Relief Judgment, Variation, Material Change, Child Support, Child Support Guidelines Legislation: The Divorce Act , R.S. , 1985, c. s. 17 Federal Child Support Guidelines , s. 3 Federal Child Support Guidelines , s. 9

Summary: The Father applied to change the provisions of a parenting plan and to change the amount of child support he paid as a result. There were changes in the child ’ s life but they did not materially affect the child or the parents ’ ability to meet the needs of the child. Although the parties, in the Separation Agreement that formed part of the Corollary Relief Judgment, used words suggesting their parenting plan was a shared parenting arrangement, they chose to use

section 3 of the Child Support Guidelines to determine the amount of child support to be paid by the Father. Because no change had been made to the parenting plan, no change was made to the child support provisions of the Corollary Relief Judgment. 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: Kozma v. Kozma, 2012 NSSC 380 Date: 20121102 Docket: 1201-062330, SFHD-056503 Registry: Halifax Between: Deborah Ann Kozma Applicant/Petitioner v. Andrew Ferenc Kozma Respondent Judge: The Honourable Justice Beryl MacDonald Heard: October 22, 2012, in Halifax, Nova Scotia Counsel: Deborah I. Conrad, counsel for the Applicant/Petitioner Graydon D. Lally, counsel for the Respondent By the Court: [ 1 ] The Mother and the Father have each applied to vary the provisions of a Corollary Relief Judgement dated December 23, 2009.

The Judgment incorporates a Separation Agreement dated May 25, 2005. I will refer to the Corollary Relief Judgement as the Order and to the Separation Agreement as the Agreement when a separate reference is required. [ 2 ] The Father requests a new parenting plan and an adjustment to child support. He wants a 50/50 shared parenting plan. The child would reside alternate weeks with each parent. Sunday before 5:00 p.m. would be the exchange day and time. He suggests he

should not be required to pay child support but his counsel at the hearing suggested child support should be set off based on the partiesincomes. No start date for this change is mentioned. The Father complains of his “overpayment” of child support but there is noapplication before me for a retroactive recalculation of child support on his behalf. [3] The only variation to the parenting plan the Mother is prepared to accept is an extension of the time when the child is to bereturned to her care on the Tuesday of the week when the Father will care for the child on the weekend.

She purposes he return the childto her care at 8:00 p.m. instead of 7:00 p.m. The Mother requests a variation of child support commencing December, 2011, (shortly afterthe date of her application), and that paragraph 5 (

k) of the Agreement, incorporated into the Order, be applied to calculate that childsupport. She also requests deletion of the provision requiring the Father to contribute toward special and extraordinary expenses. Thoseexpenses were to cover child care that is no longer required.

The Mother argues that the Father should continue to pay the full tableguideline amount, not a set off amount. [4] The court cannot consider the merits of an application to vary the custodial provisions of an Order until it issatisfied there has been a material change in the circumstances of the child since the last custody order was made. A more specificdiscussion about this requirement has been provided by Justice McLachlin (as she then was) in Gordon v.

Goertz ,(S.C.C.), at paragraph 13: 1. there must be a change in the condition, means, needs or circumstances of the child or the ability of the parents to meet theneeds of the child; 2. the change must materially affect the child; 3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. If the criteria set out by Justice McLachlin are proven on a balance of probabilities by the party alleging the change, the court must thendetermine what is in the child’s best interest. [5] Not all changes in a child’s life are “material” changes.

The fact that a child will age, a parent may move, a new partner mayappear, new siblings born may all be foreseen and reasonably contemplated. However, these common life changes often are consideredsufficiently material for courts to rearrange parenting plans.

The reason may be because there is evidence that the change has or will“materially affect the child”. [6] The wording of the original parenting plan as it appears in the Agreement, and in the Order with the addition of Tuesdayevening parenting time, is not as specific in respect to transfer time as is the information provided by both parties about how this plan hasbeen implemented.

As a result I will use their description of their parenting plan rather than recite the words that appeared in theirAgreement. [7] The child is in the Father’s care every second weekend from Friday at approximately 5:00 p.m. until Monday morning whenthe child is returned to school or other caregiver during the summer months. On the week when the Father does not have the child in hiscare on the weekend the child is in his care from approximately 5:00 p.m. on Wednesday evening until Friday morning when the child isreturned to school or other caregiver during the summer months.

When the Order was issued both parties agreed the child should be inthe Father’s care on Tuesday evening of the week when he would have the child in his care on the weekend from 5:00 p.m. until 7:00p.m.. The parenting plan required the parents to contact one another to provide child care if either was unavailable according to theparenting schedule. The parties made provision for special occasions and holidays. They have agreed to change some of thesearrangements and those will appear in the order issued as a result of this proceeding.

Those provisions are known to the parties and I willnot recite them in this decision. [8] The Father suggests the changes that materially affect the parties’ child are as follows: 1. The original parenting plan was put in place when the child was 13 months old.

2. He in fact has provided, and continues to provide, more child care than the original plan contemplated. 3. On April 2011 he moved and as a result transportation is required for longer periods of time. 4. He has a new partner and the child now has a step sibling. 5. The child is having difficulty with the transition changes required by the parenting plan. Age of the Child [ 9 ] The parties agreed to the parenting plan described in the Separation Agreement when the child was 13 months old.

Other than adding the Tuesday evening contact between Father and child, no changes were made when they both consented to the Order when the child was 5, almost 6 years old. They have continued with this plan since then. The evidence is that the child has become happy, secure and well adjusted while living under the present arrangements. I have no information before me constituting evidence that suggests, because the child is now 8 years old, a change to the parenting plan must be made. The present plan appears to have had a positive effect on her development.

The parents have met her needs as she aged and developed and there is nothing to suggest they will not be able to do so in the future. The child ’ s advancing age has not materially changed the child ’ s needs or circumstances nor the ability of the parents to meet the needs of the child. Increased Parenting Time [ 10 ] Parenting plans should not be permanent fixtures. Parents may need to trade responsibilities and/or provide care for the child without receiving “ days in return ” because of, for example, work commitments, care of elderly parents, or personal illness. These accommodations are expected of parents.

A complete de facto change in a parenting plan may justify a change to an Order. Nothing in the evidence before me suggests any long term changes to the original parenting plan. The changes made from time to time were accommodations only. The Father has not had substantially more parenting time than provided by the parenting plan. Transportation [ 11 ] Until April 2011 the Father lived in the same community as the Mother. It was a very short drive from one residence to the other. Now the Father has an approximate 30 minute drive to transport the child.

As part of a recent Settlement Conference the Mother agreed, on a trial basis, that the child spend Tuesday evening of the week when the Father was to have care of her on the weekend from 5:00 p.m. until Wednesday morning instead of returning the child to the Mother ’ s home at 7:00 p.m. as was required by the Order. Instead of permitting the Father to return the child to her school on Wednesday morning the Mother insisted the child be brought to her home at 8:00 a.m. Wednesday morning. The Mother suggests she has done so because the child was often late for school when he returned her on Friday or Monday.

The Mother also complained that the child is quite tired as a result of this extra overnight and that her completion of homework has or will be incomplete. [ 12 ] While the child has occasionally been late for school this is an infrequent event. The child ’ s tiredness on Wednesday may be explained because the child must rise earlier to be transported to the Mother ’ s home. There is no independent verification suggesting the child ’ s homework is not completed when the child is with the Father.

However, the Father ’ s material does not provide factual circumstances from which a conclusion can be drawn that the transportation now required to implement the parenting plan has changed the condition, means, needs or circumstances of the child so as to materially affect the child. There ’ s been a change but the drive between households and from a household to the child ’ s school is not so time consuming to be considered a material change. The transportation distance has existed since April 2011 when the Father moved and I have no factual description about the impact this has had on this child.

I have only the opinions and assumptions made by the parents.

Transitions [ 13 ] Both parents have alluded to the child ’ s discomfort with “ transitions ” . Neither has described the nature or extent of this “ discomfort ” . Both parents are asking that I assume these transitions are upsetting to the child particularly when coupled with the required transportation. I cannot assume. There must be a factual foundation from which I can draw this conclusion. None exist in this case. New Relationships [ 14 ] The final reason the Father has given to support a material change is the relationship between the child, his present partner and her child.

The parties child and her step sibling are not of the same gender. The step sibling is somewhat older. The Father suggests the child has accepted and looks up to the step sibling but the Mother questions the objectivity of his observation. I have no evidence about what these children may do together nor the frequency of their interaction, both of which may have assisted in evaluating the Father ’ s statement.

While both of these events are changes in this child ’ s life neither suggest a requirement to revise the parenting plan as a result. [ 15 ] The Father has not satisfied me on a balance of probabilities that there has been the required material change to justify a change in the parenting plan and this includes the change the parties had made for a short period of time in respect to the Father caring for the child overnight on Tuesday. The plan shall revert to the original provisions but the child is to return to the Mother ’ s care at 8:00 p.m. instead of 7:00 p.m. on Tuesdays.

Travel with the Child [ 16 ] The parties have presented information to this court about an irritant that has arisen involving their travel with the child for vacation purposes. The parenting plan requires these parents to alternate the child ’ s March school break. Last year when the Mother had the child in her care for the March Break she also made arrangements for the child to spend an additional week with the Mother in Florida which resulted in the child missing school for that one week.

However the Mother did arrange to obtain homework for the child which was completed so the child was not at a disadvantage because of her time away from the classroom. This year the Father will have the child during the March Break and has refused to permit the Mother to take the child with her for the Mother ’ s vacation she intends to take in March. The Mother ’ s intent is to remove the child from school for a two week period.

The Mother would request the homework assignments from the child ’ s teacher as she did the year before. [ 17 ] Whether a child should be removed from the classroom for the purpose of spending vacation or other time with a parent is a decision that should be made by parents instead of judges. If judges are to be asked to adjudicate on this matter the parent would need to prove this was in the “ best interest of the child ” .

The following information, for example, may assist: ∙ why the child is to be removed from the classroom; ∙ the itinerary for the child; ∙ the nature and extent of the material to be taught by the child ’ s teacher when the child is away; ∙ whether homework assignments for the child can be made available; ∙ whether homework assignments will be an effective substitute for classroom instruction taking into account the child ’ s abilities and the abilities of the parent to instruct and assist the child;

∙ what will the child experience while out of the classroom that will be an advantage or benefit to the child. I have very little information about the Mother ’ s intended trip. I will not make any findings as a result. Child Support [ 18 ] I have not changed the parties ’ parenting plan. Nevertheless, the Father argues I should only require him to pay a set off amount pursuant to

Section 9 of the Federal Child Support Guidelines (the Guidelines) because the plan requires him to care for the child more than 40% of the time. [ 19 ] The description of the parties parenting plan is ambiguous. This appears in the Agreement: 5(

a) Joint Parenting Both (the Mother) and (the Father) agree to a shared parenting plan. (

I) Living Arrangements (The child) shall be in the primary residence of (the Mother), however, she shall visit with her (Father) every second weekend... [ 20 ] Shared parenting suggests the parties ’ would trigger the provisions of

Section 9 of the Guidelines to determine the amount of child support to be paid. However, the parties also used the words “ primary care ” and “ visit ” which suggest a more traditional arrangement requiring payment of the full table guideline amount without resort to

Section 9. These parties chose to ignore

Section 9. The Father agreed to pay the full guideline amount. Although the Agreement required an annual adjustment of the amount to be paid based upon the line 150 amount from the previous year, the Father never provided the mandated yearly Income Tax Returns and the Mother never asked for them until she commenced this application. Her failure to enforce this provision of the Order in the past does not preclude present enforcement. Can the Father now invoke

Section 9 in respect to a parenting plan that has not changed to effectively reduce the amount of child support he will pay? Section 17(4) of the Divorce Act directs: Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order...(my emphasis) Section 17(6.1) states: “ A court making a variation order in respect of a child support order shall do so in accordance with the applicable guideline”.

Section of 14 of the Guidelines provides: For the purposes of subsection 17 (4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in

circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with the table, any change in the condition, means, needs or other circumstances of a either spouse or all of any child who is entitled to support; ... [ 21 ] The wording of

Section 14 of the Guidelines does not require a “ material ” change in either of its subsections. In subsection (

a) any increase or decrease in income that would result in a different payment for child support pursuant to the table justifies a variation. Subsection (

b) does have the same wording as was considered in Gordon v. Goertz . As a result I have concluded that a material change is required in any circumstance to which that

section may apply. Unfortunately neither of these sections appear to assist the court when a child support Order does include a determination made “in accordance with the applicable table” in a situation where the parties may have chosen to use

Section 9, but did not, choosing

Section 3 instead. [ 22 ] The change requested in this case would usually first require a decision about whether the parenting plan in this Order can be categorized as a plan under which the Father cares for the child 40% or more of the time. I do not intend to conduct this analysis because it should not be conducted in isolation from the remaining provisions of the Order. Those provisions make it clear that the parties themselves choose under this parenting plan to ignore the operation of

Section 9 and use

Section 3 of the Guidelines (which may suggest they did not consider it to exceed the 40% threshold) to determine the amount of child support to be paid by the Father. Therefore there must be some material change existing that would convince a subsequent court to Order a different means by which to calculate the Father ’ s payment of child support. If the Father was providing substantially more parenting time than provided by the Order, that may have justified the change requested.

I have decided he has not been providing substantially more parenting time. [ 23 ] The Father also suggests the following are “material changes” : ∙ the Mother deliberately underestimated her income at the time the Agreement was signed, implying he would not have agreed to pay full table guideline support if he had know what her actual income would be. ∙ The Mother now earns substantially more than he does unlike the situation when the Agreement was signed.

At that time the parties incomes were similar. [ 24 ] The Father ’ s first proposition cannot be accepted because: ∙ I must accept the Order as correct when it was made. The Father did not at any time apply to set aside the Agreement prior to the grant of the Order. ∙ The Father was represented by counsel when the Agreement was made and when the Order was granted. [ 25 ] The Father ’ s second proposition is not a material change because changes in income are reasonably foreseeable.

The parties did contemplate changes by agreeing to adjust child support based upon the earnings of the previous year. [ 26 ] The Mother has requested the application of paragraph 5 (

k) of the Agreement commencing December, 2011. This paragraph requires a yearly adjustment of child support based upon the Father ’ s previous year annual income as revealed by line 150 of his Income Tax Return. The new amount would be paid commencing June 30 of each year. The Father ’ s 2010 line 150 income was $89,427.00. His 2011 line 150 income was $85,361.00. Commencing December 30, 2011 (table effective May 1, 2006) he is to pay table guideline child support in the amount of $759.00 per month. This amount will change June 30, 2012 when he is to pay $721.00 per month (table effective December 31, 2011.

The Father has paid table guideline child support in the amount of $415.00 per month and a contribution towards child care (even when not required) in the amount of $190.00 per month. A recalculation of the amount he will now owe as a result of my decision will leave an “ arrears ” amount to be collected. Because this Order is being enforced by the Maintenance Enforcement Program they will calculate the so called arrears. The Father is to pay an additional $125.00 per month to that Program until the arrears are paid in full.

[ 27 ] The parties must understand that the Maintenance Enforcement Program will not recalculate the amount owed as required by paragraph 5 (

k) of the Agreement. A program for recalculation may soon be implemented in Nova Scotia but until it is the parties will need either to consent to an Order changing the payment amount or return to this court to obtain a variation. [ 28 ] If the parties are unable to agree about the quantum of costs, if any, the Mother is to provide her submissions no later than November 23, 2012 and the Father no later than December 19, 2012. ___________________ Beryl MacDonald, J.S.C.