A. K. Petitioner v. B. K. Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Patrick Duncan, 2013 NSSC 402

Supreme Court of Nova Scotia Citation: A. K. v.B. K. , 2013 NSSC 402 Date: 20131210 Docket: Tru No. 085196 (1207-003856) Registry: Truro Between: A. K. Petitioner v. B. K. Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Patrick Duncan Heard: October 10, 2013, in Truro, Nova Scotia Counsel: Richard Bureau, for the petitioner, A. K. B. K., respondent, self-represented By the Court: Introduction [ 1 ] The petitioner, A. K., and the respondent, B. K., married on May […], 1996. They have three children: 1. C. F.

K. born February […], 1999, now age 14; 2. D. “D.” G. K. born July […], 2002, now age 11; and 3. E. H. K. born May […], 2005, now age 8. [ 2 ] The parties separated on February 20, 2012, following Mr. K.’s complaint that Mrs. K. assaulted him. She was removed from the home and subject to an Undertaking that restricted her contact with her husband and their residence. The children stayed with Mr. K. in the family home. [ 3 ] Following the separation there were a number of court appearances and orders. [ 4 ] On June 12, 2012 the parties were before Justice Dellapina upon a motion by Mr.

K. regarding custody and access which he filed on May 10, 2012. By order dated July 3, 2012 the parties were given joint custody of the children, who would be in the primary care of their father. A

schedule was set out providing for Mrs. K.’s access to the children. The matter was carried over to July 13 to see how the Provincial Court disposed of the assault charge against Mrs. K..

[ 5 ] That case was before the Provincial Court on July 4, 2012 at which time Mrs. K. was granted a conditional discharge requiring her to comply with the terms of a Probation Order for a period of 12 months. Among other conditions she was to have no contact with Mr. K. except in accordance with the terms of a written separation agreement or a court order for access to any of the children. [ 6 ] On July 13, 2012, the family law issues were back before Justice Dellapina. The resulting decision provided that it was intended to replace the July 3rd order in its entirety. The court ordered that, pursuant to

section 18 of the Maintenance and Custody Act R.S.N.S. 1989, c. 160, as amended, the parties would have joint custody of the children with primary care alternating weekly until August 31, 2012, after which A. K. was ordered to have primary care of the children. Mr. K.’s parenting time was specified and amounted to much less specific access time with his children. The order also addressed the manner of effecting access transfers. The order giving effect to the decision was issued September 21, 2012. [ 7 ] A. K. filed a petition for divorce on March 7, 2013. On June 4, 2013, upon motion of A.

K., Justice Coady made an order requiring Mr. K. to pay interim child support in the amount of $1,705 per month based on an income of $96,517 per year, such payments to commence June 4, 2013. [ 8 ] This decision follows trial and addresses the petition for divorce and determination of corollary issues arising from the breakdown of the relationship. Issues [ 9 ] The issues to be resolved in this matter are: 1. Whether to grant the divorce petition; 2. What parenting arrangements are in the best interests of the children; 3.

What is the respondent’s income for the purposes of calculating child and spousal support amounts; 4. What amount of child support is payable, retroactively and prospectively; 5. What provisions should be made for payment of expenses contemplated by

section 7 of the Federal Child Support Guidelines ; 6. Whether the children should continue to be covered by the respondent’s health plan; 7. Whether the petitioner is entitled to spousal support, and if so in what quantum and for what period; 8. How to effect a division of the matrimonial property, including all assets and debts; and 9. Costs. Divorce

[ 10 ] At the conclusion of the evidence in the trial I granted the divorce. In doing so I expressed that I am satisfied that the parties have lived separate and apart for a period in excess of one year immediately preceding the determination of the divorce and that there is no possibility of reconciliation. All statutory requirements necessary to the granting of the divorce petition have been fulfilled. Parenting Arrangements [ 11 ] Mr. K. takes the position that the parties should continue to have joint custody of the children and that Mrs. K. will have the primary care of the children.

He seeks to have access one weekend per month and that if it is a long weekend, then the access visit will extend by that day. There have been no representations as to vacation or holiday access. [ 12 ] Mr. K. candidly acknowledges that his apartment is not large enough for him and the three children. He proposes that he takes the children with him to visit at his parents in […]. He would like the visit to be on the second or the third weekend of each month. [ 13 ] The parties have had joint custody of the children but the petitioner seeks that she now be given sole custody. Her argument is that Mr.

K. has largely withdrawn from contact with her and with the children, making consultation with him about the children’s needs difficult if not impossible. She says that it is in the best interests of the children that she has control of the decision making without the obligations to consult because of Mr. K. making it so difficult to communicate with him. [ 14 ] Mrs. K. points to three issues that underpin the parenting problems. [ 15 ] First is that Mr. K. moved his residence and refused to tell Mrs. K. where he was living.

She says that she was not comfortable with him having access with the children under these circumstances. She seeks a court order that he provides her with his current residence address. The petitioner also says that this type of conduct by the respondent militates against a joint custody order. [ 16 ] Second is that Mr. K. made only one child support payment and that was only after Justice Coady ordered him to make payments.

The respondent says that he will honor his obligation to pay child support, but his willingness must be seen in the context of the garnishment of his wages to pay support that began in September 2013. The choice of not paying child support is no longer available to him. [ 17 ] Third is Mr. K.’s non-compliance with the access

schedule in the Order. Under Justice Dellapina’s order dated September 21, 2012 Mr. K. was permitted: (

a) One weekday overnight every week on Wednesday to Thursday, if the parties could not agree otherwise; (

b) Every other weekend from Friday at 5 p.m. to Sunday at 5 p.m. (

c) Weekend visits would be extended by an extra day if the regular weekend visit fell on a holiday weekend or when there was a personal development day; (

d) Holidays and special occasions are to be shared equally unless the parties reach a different agreement; (

e) When staying with one parent there is to be reasonable telephone contact once per day between the children and the other parent. [ 18 ] The respondent’s compliance with this

schedule appears to have been erratic and then tapering off radically as of May 2013. In that month he had two of the three children with him for the weekend of May 24. D. did not want to go and she was not forced to do

so. [ 19 ] Mr. K. took the children overnight on Saturday, June 22. On that occasion he agreed to wait until Saturday in order to allow the girls to attend fireworks and a parade on Friday night and Saturday morning. In July, he had the children overnight on July 20. On this latter occasion, Mr. K. had agreed to pick them up on Saturday to allow the girls to stay over an extra night in Prince Edward Island. [ 20 ] There were no other visits between father and daughters in May to July and none at all in August and September or in October to the date of hearing. [ 21 ] Mr.

K. testified that he has a very unpleasant relationship with Mrs. K.’s mother and this discourages him from picking up the children. He adds that his apartment is not big enough to have the children stay with him there. [ 22 ] The respondent did request to have the children with him in September. There is an exchange of email correspondence in evidence. In short, Mrs. K. refused to let him take the girls when he would not give her his home address. When Mr. K. indicated that he was intending to take the children to […] to see his parents that did not change Mrs. K.’s position.

Later the respondent asked to take the girls out to supper the night of Friday September 27. The petitioner would not let the children go with him. In her reply email she questioned his secretiveness as to where he was living, and stated that she would not allow the girls to go with him until he provided that information. At one point she also made it clear that his failure to pay any child support was a factor in her attitude. [ 23 ] When asked by counsel for the petitioner whether he would agree to sole custody with Mrs.

K., the respondent said that while he would prefer to have joint custody, in the end he was more concerned about ensuring that he had the one weekend per month time with all three girls. [ 24 ] Mr. K. was self-represented and demonstrated a lack of appreciation of the differences between joint and sole custody. It was apparent that as with many parts of his testimony he was trying to be accommodating and take the path of least resistance.

So, notwithstanding his lack of strenuous objection to the petitioner’s request for sole custody it remains incumbent on the court to assess whether that is in the best interests of the children. [ 25 ]

Section 16 of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) sets out the court’s authority and responsibility in determining questions of custody and access. [ 26 ] The relevant portions are: Order for custody 16.

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. … Joint custody or access

(4) The court may make an order under this

section granting custody of, or access to, any or all children of the marriage to any one or more persons. Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child. Terms and conditions

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. … Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. … Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. (emphasis added) [ 27 ] I have considered the evidence and agree with the petitioner. [ 28 ] Mr. K., by his conduct since at least January of 2013 has created conditions that make it very difficult to make joint custody workable.

He is obviously reluctant to communicate with Mrs. K., he has not made significant efforts to participate in the lives of his daughters and he has not exercised access that he had previously been given by court order. His one bedroom apartment is not an adequate place for him and his three young daughters to spend even weekends. Access visits will, as he says, need to be exercised in a suitable third party location, such as with his family in […].

Finally, his payment of child support has only come after a court order and a garnishment of his wages to pay which is consistent with a failure to acknowledge his ongoing responsibilities to provide for the children. [ 29 ] The evidence is that the children are doing well in their mother’s care. Their educational, personal, and extracurricular needs are all being addressed. In short, it is in the best interests of the children that Mrs. K. has the responsibility of making major decisions affecting the child's health, education, religion, and general well-being. [ 30 ] Mr.

K., as a parent who will have access to the children, has the right to make inquiries, and to be given information, as to the health, education and welfare of the children. [ 31 ] I conclude that the best interests of the children are better served by an order that the petitioner have sole custody of the three children of the marriage. I direct Mrs. K. to provide Mr. K. with information about major decisions affecting the children, and to respond fully and promptly to any inquiries he makes about the children’s health, education and general welfare.

Access [ 32 ] B. K. will have parenting time on the third weekend of each month from Friday at 6 p.m. until Sunday at 5 p.m. If a school holiday or personal development day falls the day immediately before or after Mr. K.’s parenting weekend then his access shall be extended to include the extra day. [ 33 ] The conditions of access are: (

a) Mr. K. must provide his residence address to Mrs. K.; (

b) Mr. K. must advise Mrs. K. of the intended location where he and the girls will be during the access visit; (

c) When the children are in one parent’s care, the other parent may have reasonable contact with the children by phone or email. Reasonable contact shall be a telephone conversation with the children once a day. The children are free to contact either parent on their own at any time; (

d) Mr. K. must provide notice to Mrs. K. at least 72 hours in advance if he is not able to exercise access on the scheduled weekend. [ 34 ] Mr. K. asked for specific access time and that has been granted. There is nothing before me, however, that raises a concern that he should be limited only to that access time. In fact, I took Mrs. K.’s evidence to be that she favors more contact between Mr. K. and their daughters, providing that he keeps his commitments to visit when they are scheduled. That has not been the case in the recent past. To provide an opportunity for maximum contact between father and daughters I make the following further orders: (

a) The parties are to discuss and agree on parenting time during holidays, special occasion and vacation times. If the parties cannot come to an agreement, then all holiday and special occasions shall be shared equally between the parties; (

b) Mr. K. will have reasonable access at reasonable times and upon giving 72 hours’ notice of his request to have additional access time with the children; (

c) Mr. K. must advise Mrs. K. of the intended location where he and the girls will be during the access visit. Calculation of B. K.’s income [ 35 ] The parties do not agree on the amount of the respondent’s income for the purposes of calculating child and spousal support payments. [ 36 ] Mr. K. tendered his contract of employment which shows that he has been employed as a […] with the Irving Shipbuilding company since April 29, 2013.

His base salary is $84,000 per year and he is eligible for an “annual discretionary bonus of up to $2,600 to be paid quarterly based on the achievement of specific objectives/measurements to be identified by the company.” Overtime is paid pursuant to the company’s “Production Supervisor Overtime Policy”. [ 37 ] The petitioner seeks that an annual income of $96,517 be imputed to Mr. K.. This is the amount on line 150 of the respondent’s 2011 Income Tax Assessment, the only one presented to the court in this hearing. [ 38 ] Mr. K. disagrees with the petitioner’s submission.

He testified that his 2011 and 2012 income was earned as a […] and that

he no longer holds that position. He says that the Shipyard suffered a number of layoffs for a period of two years while the federal shipbuilding contract was being put in place. He explained that the employer reduced production from two docks to one and when that occurred the […] position went to someone with more seniority. He says that between April 29 and October 10, 2013 he worked 8 hours of overtime. The lack of overtime in this period was, in part, a result of a seven week layoff in July and August of 2013.

While he received benefits during that time, there was no opportunity for overtime. [ 39 ] The petitioner believes that Mr. K. could have retained his […] position. The only evidence that might be consistent with this is that Mr. K. admits that he feels more comfortable as a […] than as […]. Even allowing that the respondent might not be disappointed by his demotion, there is no evidence to suggest that the decision was impacted by his feelings. The uncontradicted evidence is that the employer imposed the demotion for business reasons. [ 40 ] It is difficult to predict what overtime might yet be available to Mr.

K. in 2013. The evidence does not support a conclusion that it will be significant. I have no evidence that speaks to the possible payment of a bonus either. It is apparent that there will be some increased income for overtime and bonus but it is likely to be negligible. [ 41 ] I accept Mr. K.’s evidence as to his income. I have considered the provisions of

section 19 of the Federal Child Support Guidelines and in view of my findings of fact I have concluded that his 2013 income as of May 1, 2013 will be set at $85,000. This acknowledges the base salary and an amount for overtime and bonus. Child Support [ 42 ] The petitioner seeks payment of child support on the basis of the Federal Child Support Guidelines and for the period commencing September 1, 2012, when she took over primary care of the children. [ 43 ] I am satisfied that the evidence supports a conclusion that an order for retroactive payment of child support is warranted.

In doing so I am mindful of the principles set out by the Supreme Court of Canada in S.(D.B.) v. G.(S.R.) 2006 SCC 37 which establishes the frame work in which a court shall consider the appropriateness of a retroactive award of child support. [ 44 ] I direct that Mr. K. is required to pay child support for the three children of the marriage in the amount of $1,705 per month for the period September 1, 2012 through April 30, 2013.

This is based on his then annual income of $96,517. [ 45 ] I further direct that commencing May 1, 2013, the respondent is required to pay child support for the three children of the marriage in the amount of $1,523 per month. This is based on the respondent’s current annual income of $85,000. Arrears [ 46 ] The respondent is alleged by the petitioner to owe a substantial amount of arrears of child support. The amount was said in pretrial submissions to be $22,165. This appears to be based on 13 months at $1,705 per month. The only court order to pay child support is the one made by Coady, J. in June.

The Maintenance Enforcement Program records in evidence show arrears owing in relation to that order in the amount of $6,725. They also show that a garnishee order has been in place as of September 24, 2013 deducting payments at source from the respondent’s pay. [ 47 ] The amount of arrears claimed by the petitioner exceeds that which is triggered by my order. The total amount of child support payable by the respondent for the period September 1, 2012 to April 30, 2013 is $13,640. The total amount of child support payable from May 1 to September 30, 2013 is $7,615. Together this brings Mr.

K.’s total obligation for child support to $21,255, together with whatever payments are due for the period beginning on October 1, 2013, less amounts already paid. [ 48 ] The respondent’s reply to the request for arrears of support payment is that he did not receive child support payments when he had primary care. The inference I took from his evidence is that he wants an offset against any arrears he may owe.

[ 49 ] Mr. K. did claim child support in his Answer to the Divorce Petition. I have limited information available as to the petitioner’s income during the period of February 20 to August 31, 2012. I am aware that her line 150 income for 2012 was $22,177. I estimate that $7,700 of that was earned after September 20, 2012 in her current position. I do not know when she earned the balance, although there is evidence that she has worked at Walmart on a part-time basis commencing in September 2011. [ 50 ] Mr. K. had primary care during the period February 20 to July 13, 2012. It may be that Mrs.

K. had the capability of paying child support in that time. During the period of July 13 to August 31 when the parties had equal time, or split custody of the children, Mr. K.’s income was $96,517. The significant disparity as between his income and that of Mrs. K. would probably result in a calculation for that period favoring payments of child support by Mr. K. to Mrs. K.. She does not make that claim. [ 51 ] I conclude that there is an insufficient evidentiary basis upon which to make orders for retroactive child support for the period February 20, 2012 to August 31, 2012. [ 52 ] In

summary: (

a) For the period September 1, 2013 to April 30, 2013 the respondent owes child support in the total amount of $13,640; (

b) For the period May 1, 2013 to September 30, 2013 the respondent owes child support in the total amount of $7,615; (

c) Effective October 1, 2013 the respondent will pay to the petitioner the sum of $1,523 per month as child support for the three children of the marriage and based on the respondent’s income of $85,000 per year; (

d) The amounts owing will be reduced by any child support payments made to date and the outstanding arrears will be calculated and set on the basis of these findings; (

e) The respondent is ordered to provide to the petitioner, by June 1st of each year, a copy of his Income Tax Return, supporting schedules and the Notice of Assessment from Canada Revenue Agency; and (

f) Payments will be made through the Maintenance Enforcement Program. Payment of Arrears [ 53 ] I have been asked by counsel for the petitioner to make arrears payable by a spousal rollover in Mr. K.’s RRSP account. I will address the manner in which the arrears can be paid as part of the overall resolution of the financial issues. Special Expenses [ 54 ] The petitioner is employed and requires after school child care until she is finished at work. Mrs.

K.’s mother has provided this service, which includes transportation, provision of snacks and attending to any other needs that the children may have when they are with her. To this point Mrs. K. has not had the financial means to pay her mother. She says that once she moves out of her mother’s home, she feels it would be appropriate to pay her mother the sum of $200 per month as a child care expense incurred as a result of her employment. [ 55 ] Mr. K. takes the position that this expense should be paid from the child support that he pays and is not a special expense.

[ 56 ]

Section 7 of the Federal Child Support Guidelines provides: Special or extraordinary expenses 7.

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; [ 57 ] I am satisfied that the child care expense is necessary and generated as a result of Mrs. K.’s employment. The fact that it would be paid to the petitioner’s mother is only relevant to the extent that the amount being requested is nominal relative to what a third party child care giver might charge for the same services. In other words, the parties are fortunate to have this service available to them at such a reasonable cost. [ 58 ] Therefore, I grant the petitioner’s request and on the basis she has requested it: (

a) The sum of $200 per month will be paid as a special expense for necessary child care, pursuant to section 7(1)(

a) of the Federal Child Support Guidelines ; (

b) The amount will only become payable once the petitioner and the children move out of the residence of the petitioner’s mother; and (

c) The expense will be shared by the spouses in proportion to their respective incomes which I set at $28,730 for the petitioner and $85,000 for the respondent. Health Insurance [ 59 ] The respondent has agreed and so I order Mr. K. to continue to provide medical plan coverage to his children on any health plan offered through his employer. Life Insurance [ 60 ] The respondent has agreed and so I order that he designate the children as beneficiaries of his life insurance plan held by Sun Life Financial and in the amount of $100,000.

It is anticipated that should the benefits become payable during their minority then the funds would be paid into trust for the children. Spousal Support [ 61 ] The petitioner seeks spousal support in the amount of $764 per month retroactive to March 01, 2012. [ 62 ] The respondent argues that the petitioner is not entitled to spousal support. Even if she is entitled to it, he says that the amount she seeks would provide her a lifestyle that is better than what they had when together and that he cannot afford the amount claimed.

[63]

Section 15.2 of the Divorce Act sets out the factors and objectives for a court to consider in making an order for spousalsupport: Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition,means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. … Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [64] The Supreme Court of Canada in Moge v. Moge (SCC), [1992] 3 S.C.R. 813 and in Bracklow v. Bracklow (SCC), [1999] 1 S.C.R. 420 confirmed that all four objectives are to be considered in every case. No one objective hasparamountcy. If any one objective is relevant upon the facts, a spouse may be entitled to receive support. [65] The analysis involved in the application of these provisions has been summarized by B. MacDonald J. in S.(T.L.) v.

M.(D.J.)2009 NSSC 79, at paras. 60-72: [60] In Bracklow v. Bracklow, supra, the Supreme Court analysed the statutory objectives and held that they create three rationales forspousal support: 1. Compensatory support to address the economic advantages and disadvantages to the spouses flowing from the marriage or from theroles adopted in marriage.

2. Non-compensatory dependency based support, to address the disparity between the parties, needs and means upon marriagebreakdown. 3. Contractual support, to reflect an express or implied agreement between the parties concerning the parties' financial obligations to eachother. [61] … [62] The Supreme Court did recognize that many claims have elements of two or more of the stated rationales. It confirmed that analysisof all of the objectives and factors is required.

Pigeonholing was to be avoided. [63] … [64] McLachlan, J. in Bracklow, supra, indicated that the basis for a spouse's support entitlement also affects the form, duration, andamount of any support awarded. [65] Examples of circumstances that may lead to a decision that a spouse is entitled to compensatory support are:

a) a spouse's education, career development or earning potential has been impeded as a result of the marriage because, for example: -- a spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economicindependence to provide care for children and/or a spouse; -- a spouse's education or career development has been negatively affected by frequent moves to permit the other spouse to pursue theseopportunities; -- a spouse has an actual loss of seniority, promotion, training, or pension benefits resulting from an absence from the workforce forfamily reasons;

b) a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or careerdevelopment. [66] Non-compensatory support incorporates an analysis based upon need and ability to pay. If spouses have lived fully integrated lives,so that the marriage creates a pattern of dependence, the higher-income spouse is to be considered to have assumed financialresponsibility for the lower-income spouse. In such cases a court may award support to reflect the pattern of dependence created by themarriage and to prevent hardship arising from marriage breakdown.

L'Heureux-Dubé, J. wrote in Moge v. Moge, supra, at p. 390: Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of livingenjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), (PE SCAD), [1991] P.E.I.J. No. 128, supra, and Linton v. Linton, (ON CA), [1990] O.J. No. 2267, supra).

Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often arevealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a jointendeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equalstandards of living upon its dissolution (see Rogerson, "Judicial

Interpretation of the Spousal and Child Support Provisions of theDivorce Act, 1985 (Part I)", supra, at pp. 174-75).

[67] It is not clear from Justice L'Heureux-Dubé's decision whether entitlement arising from a "pattern of dependence" is compensatoryor non-compensatory. A pattern of dependence may create a compensatory claim because it can justify an entitlement even though aspouse has sufficient income to cover reasonable expenses and might be considered to be self-supporting. This often is described as the"lifestyle argument" - that the spouse should have a lifestyle upon separation somewhat similar to that enjoyed during marriage. (Lintonv. Linton, (ON CA), 1990 CarswellOnt 316 (Ont.

C.A.)) A lengthy marriage generally leads to a pooling of resourcesand an interdependency even when both parties are working. Usually the recipient spouse will never be able to earn sufficient income toindependently provide the previous lifestyle. This would form the basis of a compensatory claim but does not necessarily entitle aspouse to lifetime spousal support. The essence of a compensatory claim is that eventually it may be paid out.

This leads to a discussionabout the quantum and duration of the claim. [68] Once it is decided that a spouse is entitled to spousal support, the quantum (amount and duration) is to be determined by consideringthe length of the relationship, the goal of the support (is it compensatory, non-compensatory or both), the goal of self-sufficiency, andthe condition, means, needs and other circumstances of each spouse.

In considering the condition, means, needs and other circumstancesof each spouse one may examine the division of matrimonial property and consider the extent to which that division has adequatelycompensated for the economic dislocation caused to a spouse flowing from the marriage and its breakdown and any continuing need thespouse may have for support arising from other factors and other objectives set forth in s. 15(2). (Tedham v. Tedham, 2005 BCCA 502, [2005] B.C.J.

No. 2186, 2005 CarswellBC 2346 (B.C.C.A.)) [69] There will be cases when the analysis may indicate that the only way to adequately address the compensatory or non-compensatoryclaim is to continue support for significant periods of time possibly during the entire life of the recipient or payor. (Rondeau v. Kerby,2004 NLCA 54 , [2004] N.S.J. No. 143, 2004 CarswellNS 140 (N.S.C.A.).

This most often will occur in respect to lengthymarriages where there is significant income disparity. [70] Generally a non-compensatory claim in a short to mid-length marriage is satisfied when a spouse becomes self-supporting and, insuch a case, neither the payor spouse's greater income nor the inability of a recipient spouse to replicate a previous lifestyle, is a factorentitling a spouse to continuing support.

When spouses have not had a lengthy relationship and the only effect of the relationship, hasbeen that a spouse has enjoyed a better lifestyle than he or she could afford alone, the duration of support will likely be for a periodrequired to ease the recipient spouse's transition to economic independence. Self-sufficiency, however, is a relative concept. Itconstitutes something more than an ability to meet basic living expenses.

It incorporates an ability to provide a reasonable standard ofliving from earned and other income exclusive of spousal support. [71] Every case involving a parent who has withdrawn from the workforce to raise a child will invoke a claim for compensatorysupport…..

However today's parents must recognize that, irrespective of their personal preferences or the circumstances from whichdependency evolved, if there are children and one parent has stayed at home the other parent will be required to assist by paying spousalsupport until the compensatory and non-compensatory claim of the stay at home parent has been satisfied or until some other factorintervenes justifying termination of spousal support. [72] Critical to a proper analysis of spousal support is what each party will have in his or her pocket to pay reasonable living expensesafter paying or receiving child support and spousal support.

Even if the spousal support guidelines are used to suggest various possibleamounts of spousal support, what a person might actually retain must be examined in respect to what is required for that individual to payfor housing, heat, food, etc. (see also, B. MacDonald J., in L.(J.A.) v. L.(S.B.J.), 2009 NSSC 87, at paras. 5-18.) Means, Needs and Conditions of A. K. [66] The petitioner has been employed since September 21, 2012 earning $28,730 per year. She has lived at her parent’s homesince the date of separation on February 20, 2012.

She has had the children with her since September 2012 and has lived almost entirelywithout spousal or child support until the garnishment of Mr. K.’s wages began in September 2013. So, for over a year Mrs. K. and thechildren have been unable to move forward with their lives due to financial constraints. [67] Mrs. K.’s statement of expenses filed July 5, 2013 claims a monthly deficit of $2,553.

Some significant parts of the amountclaimed are estimates based on the premise that she will be moving with the children to their own accommodations once the matrimonialproperty, the child support and the spousal support issues are resolved. She is in a “Catch 22”. She does not have the funds to move outbut she cannot claim as expenses that which she has not incurred. [68] I accept that it is in the best interests of the children that they have a home of their own and not be required to live with theirgrandparents. Further I am satisfied that Mr. K. has some responsibility for the current state of affairs.

Finally, the information provided

by Mrs. K. is capable of critical assessment for reasonableness. [69] Mrs. K.’s statement of income filed May 16, 2013 declares a gross income of $2,394.17 per month from employment and when the Child Tax Benefit and GST Credit are added in a total monthly income of $2,550.07. [70] As a result of this decision Mrs.

K. will have a further $1,523 per month in child support, bringing the household income to $3,917 per month some of which is subject to possible tax deductions and some of which is not. [71] Her estimated and actual expenses total $4,713 per month leaving a shortfall of at least $796 per month. [72] Some of the expenses are likely a little high. For example, the petitioner estimates $500 per month for gas, but acknowledges that amount will drop once they move to a new residence. Her estimate for phone, including cell phone, internet and cable television is $285 per month.

This may be available at a lesser cost than she believes. Some allowances are built in for contributions to RESP funds. Mrs. K. has incurred a legal bill and with other debts she owes over $7,000. She is paying on these debts at $242 per month. [ 73 ] Overall, my assessment is that the petitioner has a need for spousal support in order to meet the reasonable expenses of maintaining herself and her children. With the sale of the house and as arrears of payments are made, the petitioner should be able to retire her debts and gradually eliminate this need over time. Means, Needs and Conditions of B. K. [ 74 ] Mr.

K.’s current income has been documented with statements of earnings and deductions provided by his employer. His net pay for the two week period ending 21 June 2013 was $2021.75. This included deductions totaling $278 as contributions to RRSPs and Canada Savings Bond purchases. On that basis his after tax income per month would be $4,380 after allowing for the RRSP and CSB payments. The statement for July 5 was slightly more because of 8 hours of overtime. The statement for September 27 was dramatically different. While the gross pay was unchanged, the net paid was $684.08.

The difference is accounted for by deductions of $605 and $852 which while unexplained in the evidence may very well be attributable to the garnishment by Maintenance Enforcement. [ 75 ] No statement of Mr. K.’s expenses was submitted in evidence. He lives in a one bedroom apartment and his most significant debts, being the mortgage and the consolidated loan, are soon to be paid off. Allowing for what one might reasonably expect to pay to sustain a single adult male, he should have sufficient ability to pay spousal support. i.e., $4,380 less $1,535 in child support per month leaves $2,765 per month to live on.

Entitlement [ 76 ] I am satisfied that the petitioner is entitled to support both on a compensatory and non-compensatory basis. [ 77 ] Mrs. K. has been the primary care giver to the children over the course of the marriage. While she worked at a variety of jobs it was typically part-time employment which allowed her to care for the children. She did not work for a period of time after the birth of their youngest daughter in 2005. In the years just before and during the year of separation her line 150 incomes were $1,475 in 2010; $7,882 in 2011; and $22,177 in 2012. [ 78 ] Mrs.

K. delayed her return to full time employment in order to care for the children of the marriage. This allowed Mr. K. to further his career. The petitioner has been in the workforce on a full time basis for just over a year and given the financial difficulties she faced over the past year, will require some time to organize her affairs and become self-sufficient. [ 79 ] Having said that I expect that she will be able to achieve self-sufficiency in a relatively short period of time. She is young, age 44, and has demonstrated herself to be employable over a number of years.

[ 80 ] I am also satisfied that she has financial need that Mr. K. has the ability to assist with by way of spousal support payments. Quantum and Duration [ 81 ] Counsel for the petitioner has referred me to the Spousal Support Advisory Guidelines (SSAG) as support for his argument that $764 per month is justified.

Counsel did not provide me with the calculation upon which he arrived at this amount however I assume that it was predicated upon the higher income that he sought to be imputed to the respondent – a submission that I have not accepted. [ 82 ] The petitioner also relies on the deficit in her budget as support for the amount claimed. I find that the deficit will be substantially less than counsel’s estimate but still enough to require assistance. [ 83 ] I have considered the submissions of counsel for the petitioner and Mr. K.. I have concluded that Mr. K. will pay spousal support in the amount of $300 per month.

Retroactive spousal support [ 84 ] Notice of the petitioner’s intention to seek spousal support was given to the respondent in the petition for divorce filed in March 2013. There is no evidence that any prior notice, either formal or informal, had been given to Mr. K. that he might be called upon to pay spousal support. I am not prepared to order retroactive spousal support for a period prior to notice having been given to Mr. K. of the intention to seek it. [ 85 ] Further, I lack any meaningful information about Mrs. K.’s financial circumstances during the period of February to September, 2012.

I know that the petitioner had an income of approximately $15,000 from January 1 to September 20. She only had the children in her primary care for alternating weeks from mid-July to the end of August. I do not know whether she was paying her parents to live at their home. [ 86 ] For these reasons spousal support will be retroactive but effective as of April 1, 2013. [ 87 ] In

summary, Mr. K. will pay spousal support to the petitioner in the amount of $300 per month commencing on April 1, 2013. This will generate an amount of arrears that will be addressed as part of the overall balancing of the financial issues between the parties. [ 88 ] I am not prepared at this time to specify the duration for payment of spousal support as the petitioner’s circumstances are not yet stable. To ensure that Mr. K. is aware of any changes in Mrs.

K.’s financial circumstances, I direct her to provide her Income Tax Return with attached Schedules and the Notice of Assessment to the respondent by June 1 of each year. Matrimonial Property [ 89 ] The parties came to the trial with some unresolved questions with respect to the division of the matrimonial assets and debts. During the course of the trial many of these were agreed to. Consolidated Loan [ 90 ] The parties have a consolidated loan that was issued on December 2, 2011 in the principal amount of $18,000 with interest at 5% and payable over 4 years.

[ 91 ] Mr. K. paid $191.05 biweekly on the loan and at October 4, 2013 the outstanding balance was $10,327. This was a matrimonial debt that both parties share equal responsibility for. The declining balance at the date of separation would have been approximately $17,685. Mr. K.’s contribution will need to be factored into any balancing payment or set off that may occur in the result of this decision, that is, half of his contribution went to pay the petitioner’s share of this debt.

Matrimonial Home [ 92 ] As at the time of trial the matrimonial home was subject to an agreement of purchase and sale for a sale price of $221, 500.00. Mrs. K. submits that after sale there will be a nominal amount of equity and she should keep it. [ 93 ] As at October 4, 2013 the payout amount for the mortgage on the property was $180,469.33 (Exhibit 2, Tab 7). The petitioner presented evidence that she, with the assistance of her parents, had previously paid $5,148 to TD Canada Trust on September 23, 2013 to pay the then outstanding arrears on the mortgage.

The petitioner also paid $3,106 for labour and materials to effect necessary repairs to enhance marketability of the house. Payment of the arrears and the renovations totalled $8,254. When added to the costs of disposition it is the position of the petitioner that there will be little money left over. She seeks that any surplus be paid to her and any deficit be charged to the respondent. [ 94 ] An estimate of the costs of disposition on sale and surplus funds was provided to the court (Exhibit 2, Tab 17).

The accounting deducts payments for mortgage arrears and renovations payouts to the benefit of the petitioner for her parents. The calculation provided does not appear to be accurate. One problem is that the calculation provided calls for a payout of $8,254 for “renovations” and a further amount of $5,140 for mortgage arrears paid by the petitioner.

In fact Exhibit 2, Tab 13 at lines 8 and 9 show that the mortgage arrears payment is included in the $8,254 total claimed. [ 95 ] The discharge statement as at October 4, 2013 does not claim a prepayment penalty and fee, although on the sale that may become part of the charge. [ 96 ] A further problem is that half of the mortgage arrears were the responsibility of the petitioner. The suggestion that the entire amount was payable by the respondent does not reflect the equal division of matrimonial debt. [ 97 ] The sale price of $221,500 less the mortgage payout of $180,469 leaves $41,031.

Deducting legal fees, real estate commission, a mortgage prepayment penalty and fee leaves $19,981 in surplus funds. The sum of $8,254 payable for the benefit of the petitioner’s parents already includes the amount paid on the arrears of the mortgage. Assuming these numbers are approximately correct the actual surplus funds on sale should be at least $12,000. [ 98 ] I acknowledge that Mrs. K. and those who assisted her made the house more marketable, and the expenses which have been proven are being paid from the proceeds.

The labour to do the work which is not invoiced is valuable but it would be arbitrary for me to put a value on it. I do not know what, if anything, Mr. K. did to maintain the property post separation. It is the problem with self- representation. Sometimes not all the questions are answered that are necessary to make a determination. [ 99 ] I do not agree with counsel for the petitioner that $12,000 is a nominal amount which should simply be paid over to the petitioner without accounting for the respondent’s interest. Nor do I have evidence that satisfies me, as I have been urged, to charge Mr.

K. occupancy rent to the value of his interest in this equity. [ 100 ] I conclude that the equity obtained from sale of the house is to be allocated as follows: 1. Pay the reasonable costs of disposition;

2. Pay $8,254 to the petitioner to reimburse her parents for the cost of renovations and for the payment of the mortgage arrears; 3. Pay the balance on any outstanding matrimonial debt; 4. If all debts are paid out then any remaining surplus funds will be applied to meet any balancing payment or other financial obligations of the parties to each other that are generated by this decision; and 5.

If there continues to be a surplus of funds available (which seems unlikely) then the funds will be divided equally between the parties. 2007 Chevrolet […] [ 101 ] The parties agree and so I order that the petitioner will sell the Chevrolet […] motor vehicle at fair market value and the net proceeds are to be applied in their entirety to payment on the consolidated loan.

It is estimated that there will be approximately $4,000 available from the sale. [ 102 ] If the outstanding matrimonial debt is paid off from the proceeds of the sale of the house, then the net proceeds of sale of the […] will form part of the pool of assets subject to distribution in accordance with the terms of this decision. 2007 Saturn […] [ 103 ] This vehicle has been re-possessed. Mr. K. accepts that any balance owing on the debt for this vehicle is his sole responsibility without contribution from Mrs. K..

Items of Personal Effect [ 104 ] Most items of personal effect have been divided to the satisfaction of the parties, however there are a few items that have not been delivered. To address that I direct that the petitioner transfer possession of the chop saw, the pressure washer and the shop vacuum to the respondent for his own use absolutely. [ 105 ] I direct that the respondent transfer the “wool blanket” and the ladies golf clubs to the petitioner for her own use absolutely. [ 106 ] The transfers are to be completed on or before 30 days after the issuance of the order in this matter. RRSP [ 107 ] Mrs.

K. held an RRSP with London Life in the amount of $6,962.17 which she cashed in during December 2012. (Exhibit 2,Tab 8) I have no evidence of value at the time of separation. Those monies were matrimonial property and subject to equal division. Therefore in calculating the balancing payment half of the value of this will be credited to Mr. K.. [ 108 ] Mr. K. has an RRSP through his employment that held $82,000 as at January 8, 2013. His deduction at source according to the pay stubs in evidence shows a contribution of approximately $500 per month.

The best evidence then is that the RRSP account had a value of $77,000 at the date of separation in February 2012. I find that this is a matrimonial asset subject to equal division between the parties.

RESP [ 109 ] The parties have a Registered Education Savings Family Group Plan for the children. Both parents are listed a subscribers. They have been contributing $50 per month to it. Mr. K.’s TD Asset assessment estimated the account to hold about $10,200 as at January 8, 2013. Two statements were presented in evidence showing balances for RESP account ending in “12-7” and “22-1”. They are presented in such a way as to make it difficult to understand current value. It may be as high as $15,000. [ 110 ] Mrs. K. seeks control of the account be given to her, irrespective of who makes the contributions to it.

She believes that Mr. K. will withdraw the funds. Mr. K. does not want any changes to the operation of the RESP in place for the children. Both agree to contribute the sum of $50 per month each. [ 111 ] An RESP is subject to a number of terms and conditions which are stipulated by tax legislation. There are issues as to what becomes of the funds in an RESP if any of the conditions are not met. Difficulties can be created by a number of things, including missed payments or the child not going into a qualified educational program. [ 112 ] In this case, both parents are “subscribers”.

I have not been provided with the details of the plan entered into by the parties. Because of the complexity of this form of investment, I am not prepared to require the parties to contribute to a joint RESP. It may be that each parent can subscribe to their own RESP plan. That will be for them to consider. [ 113 ] As to the funds currently held in the RESP, they are for the benefit of the children. Mrs. K. now has sole custody of the children. It makes sense that she makes the decisions in how to manage the currently held RESP funds. Therefore I direct that Mrs.

K. make all decisions in relation to the management of the funds currently held in the RESP accounts. The funds must be used for the needs of the children when they are ultimately withdrawn. [ 114 ] I further direct Mr. K. to execute any documents that may be required from time to time to enable the funds to be used in a way that is in the best interests of the children as decided by Mrs. K.. [ 115 ] If Mr. K. chooses to contribute to the existing RESP account, then Mrs. K. will continue to manage the funds in that account to the benefit of the children of the marriage. Childrens’ Savings Accounts [ 116 ] Mr.

K. acknowledged cashing in some Canada Savings Bonds held for the children. The uncontradicted evidence is that he used it to pay for their martial arts classes. In the circumstances it appears that the money went to the benefit of the children. No further orders are called for in this matter. Other debts [ 117 ] Mrs. K. owed $5254.45 on a TD Emerald Visa as of Sept 18, 2013. I do not know whether any part of it was incurred prior to separation. She testified that it is her account and her responsibility, and so I cannot say that it is a matrimonial debt.

Disposition of Matrimonial Property [ 118 ] A final balancing payment calculation will need to be done once the house and Uplander are sold, the matrimonial debts are paid off and the offsetting balances for the RRSPs of the parties are accounted for. The remaining funds, if any, will be divided between the parties equally. However, any monies otherwise payable to Mr. K. will be allocated as follows:

1. To pay any outstanding arrears of child support; 2. Then to pay they any outstanding arrears of spousal support; and 3. Any remaining funds are payable to Mr. K.. If there are insufficient funds left to pay the entire balance of outstanding arrears of child and spousal support then I direct that Mr. K. will have 30 days following sale of the house, or January 24, 2014, whichever is the later in time, to either reach an agreement with Mrs. K., through her counsel, for payment of the amount owing, or he will arrange a spousal transfer from his share of his RRSP to pay out the outstanding balance. Conclusion [ 119 ] The following is a

summary of the results in this matter: (

a) The divorce has been granted. (

b) The petitioner will have sole custody of the three children of the marriage. (

c) The respondent will have specific access for one weekend per month together with other reasonable access in accordance with the terms of this decision. (

d) The respondent’s income for the period February 20, 2012 to April 30, 2013 is set at $96,517. His income for the period from May 1, 2013 to date is set at $85,000. (

e) For the period September 1, 2013 to April 30, 2013 the respondent owes child support in the total amount of $13,640; (

f) For the period May 1, 2013 to September 30, 2013 the respondent owes child support in the total amount of $7,615; (

g) Effective October 1, 2013 the respondent will pay to the petitioner the sum of $1,523 per month as child support for the three children of the marriage and based on the respondent’s income of $85,000 per year; (

h) The amounts in arrears will be reduced by any child support payments made to date and the outstanding arrears will be calculated and set on the basis of these findings; (

i) The respondent is ordered to provide to the petitioner, by June 1st of each year, a copy of his Income Tax Return, supporting schedules and the Notice of Assessment from Canada Revenue Agency; and (

j) Payments will be made through the Maintenance Enforcement Program. (

k) The sum of $200 per month will be paid as a special expense for necessary child care, pursuant to section 7(1)(

a) of the Federal Child Support Guidelines ;

(

l) The amount will only become payable once the petitioner and the children move out of the residence of the petitioner’s mother; and (

m) The expense will be shared by the spouses in proportion to their respective incomes which I set at $28,730 for the petitioner and $85,000 for the respondent. (

n) The respondent will continue to provide medical plan coverage to his children on any health plan offered through his employer. (

o) The respondent must designate the children as beneficiaries of his life insurance plan held by Sun Life Financial and in the amount of $100,000. It is anticipated that should the benefits become payable during their minority then the funds would be paid into trust for the children. (

p) Mr. K. will pay spousal support to the petitioner in the amount of $300 per month commencing on April 1, 2013. (

q) The petitioner will provide her Income Tax Return with attached Schedules and the Notice of Assessment to the respondent by June 1 of each year (

r) Asset and debt division is addressed in the decision, together with the mechanism for the respondent to pay any outstanding arrears of support that may exist after realization of the assets and satisfying matrimonial debts. (

s) If the parties are unable to reach an agreement on calculation of the balancing payment or other financial questions arising from this decision, they may contact my office to

schedule a further hearing to resolve any disputes. Costs [ 120 ] If the parties are unable to agree as to costs I will receive their written submissions. Duncan, J.