Griggs v. Brooks, 2016 NSSC 268

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Griggs v. Brooks , 2016 NSSC 268 Date: 20161006 Docket: Halifax No. SFHMCA-083197 Registry: Halifax Between: Steven “Sam” Griggs Applicant v. Pamela Joy Brooks Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: September 21, 2016, in Halifax, Nova Scotia Counsel: D. Mark Gardiner, for the Applicant Peter Crowther, for the Respondent By the Court: [ 1 ] The Applicant father is seeking a shared custody

schedule and an adjustment of the child and spousal support in accordance with the terms of the existing order. [ 2 ] The Respondent mother is seeking to establish a traditional

schedule of every second weekend with extended weekends, child support and spousal support, as well as an equal sharing of the costs associated with the children’s extracurricular activities. Marital History [ 3 ] These parties were married in 1998 and separated in 2012, a relationship lasting 14 years. [ 4 ] Two children were born of this union; the eldest was born in 1999 and is currently in her last year of high school and the youngest in 2004. They are 17 and 12 respectively. Legal History [ 5 ] Previous to their Consent Order, there was considerable post separation instability.

The children were in the mother’s care and the father was working away to support the family. [ 6 ] These issues required police and legal intervention resulting in a Consent Order in November 2012. [ 7 ] The order recognizes that both parents have joint responsibility for the children. The parenting plan considered the Applicant’s work schedule, away one month and home one month.

When home, the Applicant was to have a shared parenting schedule. [ 8 ] The order stipulated that inclusive of the total parenting time available the Applicant shall have roughly 25% of the parenting time and the Respondent 75%. [ 9 ] In November 2012, shortly after the separation, the Respondent was admitted to the hospital.

She was discharged in January 2013. [ 10 ] To address the change, on December 17 th , 2012, the parties entered into a further consent order placing the children in the primary care of the Applicant. [ 11 ] In March 2013, they reverted to unsupervised parenting time for the Respondent and resumed the regular

schedule except that, given the state of the Respondent’s illness, the Applicant retained the right to make final decisions.

[ 12 ] A further Consent Order was issued June 17 th , 2013, based on an annual income of $140,000. The Applicant was ordered to pay child support of $1,830 a month for the two children in the Respondent’s care and $2,755 spousal support. [ 13 ] The September 2013 order continued the same level of support and introduced a review in three years. The father was granted every second weekend parenting time. [ 14 ] On June 9 th , 2014, the parties entered into a “final consent order”.

The Applicant’s income was $ 140,000 ; the Respondent’s CPP monthly disability benefits were $900 and $228.66 for each child for a total of $1357.50 . [ 15 ] The parties retained joint custody with primary care vested in the Respondent. [ 16 ] The Applicant worked four weeks on four off. [ 17 ] While in Nova Scotia, the Applicant was to have the children every second week.

Telephone contact and full disclosure of child related information was agreed upon. [ 18 ] Child support in the amount of $1,830 a month was continued. [ 19 ] The parties were to share s. 7 expenses and extracurricular expenses once agreed upon in advance. [ 20 ] The Applicant was to maintain the children and the Respondent on his medical plan as long as possible and pay the medical, dental, as well as spousal support in the amount of $2755 per month starting October 2013. [ 21 ] The parties agreed to recalculate child support annually. [ 22 ] Commencing July 1 st , 2014, the parties agreed to recalculate spousal support based on their incomes and the mid-range of support. [ 23 ] A review of spousal support was agreed upon three years after the date of the order. [ 24 ] The Respondent was to provide updated medical information and a detailed

summary of her efforts to find employment. [ 25 ] The contemplated review did not require proof of a change in circumstances. [ 26 ] On August 22 nd , 2014, a varied Consent Order was issued. The Applicant’s income was $135,281 and the Respondents $46,000. Child support was reduced to $1775 and spousal support was reduced to $1825. [ 27 ] The Respondent’s employment did not last long. She was reinstated on CPP of $11,500.

At this point she stopped work completely. [ 28 ] In 2015, the Applicant returned to Nova Scotia to reside in the rural HRM. [ 29 ] On October 29 th , 2015, the Applicant brought forward this application to vary the last order. Change in circumstances (Application date October 29 th , 2015) [ 30 ] The primary change in circumstance is the Applicant’s return to reside in Nova Scotia in a rural area forty-five minutes to one hour from the children’s residence. [ 31 ] The location of his residence is problematic to the shared parenting schedule.

However, the advantage of this residence is that he has been permitted to live rent free in his friend’s home. He advises this is likely to change in the near future. [ 32 ] He continues to travel somewhat frequently. [ 33 ] The Applicant has a relationship with a person who lives further to the south of Nova Scotia. At least twice a month he travels to her residence and on other occasions she comes to his home in rural HRM. This is a factor that makes a shared parenting

schedule more difficult in that he is maintaining a relationship that takes him further from the children’s ordinary residence. [ 34 ] The secondary change relates to his daughter’s illness which interfered with her second to last year of high school in the Dartmouth area. [ 35 ] During this period of time, at the Respondent’s request, the child spent a number of extended weeks with the Applicant in 2015 to ensure she continued to attend school. [ 36 ] Both parents participated in and supported medical intervention to resolve the issue. [ 37 ] In December 2015, the mother asked the father to intervene with their oldest child to enforce school attendance. [ 38 ] The oldest lived with the father for approximately four weeks in December 2015.

Thereafter a 50% shared parenting scheduled was followed. [ 39 ] In May, the child required further intervention and stayed with her father until school ended. Both parents participated in the medical intervention.

[ 40 ] In July they returned to a 3/1 parenting schedule. [ 41 ] After the medical intervention, the

schedule resumed to a one week in four with the mother being the primary caretaker. [ 42 ] This is flexible should the Applicant have to travel for his employment. The Oldest Child [ 43 ] This 17 year old is in her final year of secondary school and continues to be a dependent child in accordance with the definition in the Divorce Act . The oldest has but nine months before completing secondary school. It appears that post-secondary education, while not decided, is almost a certainty. [ 44 ] The parents anticipate and hope her year will be successful.

She has a number of options after completion of secondary school. At this stage there is no certainly to any of these options. [ 45 ] The oldest is involved in an advanced educational pursuit within her school and in competitive sports that are time consuming and take place in the city in the evenings.

In winter, the addition of an additional hour drive to the father’s residence adds unnecessary risk and delay. [ 46 ] It is a time to be supporting the oldest child’s educational efforts, her extracurricular pursuits, while maintaining some stability to ensure there are no diversions or significant changes that might derail her progress. [ 47 ] Given the age and stage of education relating to the oldest child, I am not inclined to make significant adjustments to her

schedule without her input or consent. She has access to the resources both parents offer and must take

part in any adjustments that better suit her

schedule and ambitions.

The Younger Child [ 48 ] The younger child is attending a local school, living with the Respondent and visiting the Applicant one week out of four. [ 49 ] Both children are extensively involved in demanding sporting and school events, which are directly connected to their primary residence and community. [ 50 ] Both children are of an age where peers are an important factor in their age and stage of development. [ 51 ] There is no dispute that when the Applicant had the children in his care during one or two of the mother’s periods of disability, he ensured the children attended their regular events and school. [ 52 ] He has also attended appointments when in Nova Scotia and more recently attended medical appointments, sporting events and attended to some of the children’s medical needs. [ 53 ] It is clear however, despite some periodic interruptions, it is the Respondent who organizes the children’s activities, enrollment and participation.

She is responsible for maintaining parent-teacher involvement and is the principal organizer and communicator with medical authorities. [ 54 ] The Applicant did participate in the medical intervention for both children; however, he did not display a thorough knowledge of the children’s school programming. [ 55 ] Their historical pattern is to have the mother act as liaison to keep the father informed. [ 56 ] The Respondent’s illness has been serious.

It required both the Respondent’s parents and the Applicant to take over for her role as primary parent. [ 57 ] The Respondent has some insight into the significance of these periods and is alert to the possibility of reoccurrence.

She calls the Applicant when she needs his assistance as a parent in these circumstances. [ 58 ] She has also exhibited an ability to reach out to the Applicant for assistance with the children when necessary. [ 59 ] However, in the lead up to her medical crisis, the Respondent’s behavior can change significantly making collaboration less likely and mandatory intervention necessary. [ 60 ] The disincentive to this is the parental estrangement and what the Respondent describes as the Applicant’s unwillingness to engage with her on these issues or to respond to her requests. [ 61 ] The Applicant believes it is the Respondent who has been unwilling to be flexible or communicative.

Parenting

Schedule [ 62 ] The burden is on the Applicant to provide sufficient evidence to convince the Court that the best interests of the two children will be better served by a change in the current parenting plan to a shared parenting arrangement. [ 63 ] Once a change is proven (and both agree that there have been material changes), the Court must focus on the best interests given the legislative directives and historic case law on the subject. [ 64 ] Of the diversity of factors set out in Foley v. Foley 1993 Can LII 3400 (N.S.S.C.), those most pertinent to this fact situation

include the Applicant’s capacity to provide an age appropriate discipline and structure, the Applicant’s increased time available for the children, the developing needs and the Applicants increased ability to provide emotional support to address the changing age and stage of development of both children and the long term plan for each of the children. [ 65 ] These factors and the evidence in support of them do not diminish the Respondent’s contribution, they enhance the availability of the parental resources to the children to address their changing needs as expressed in the evidence. [ 66 ] Shared parenting requires an ability to consult, cooperate, coordinate and arrive at consensus. [ 67 ] On a rare occasion where maintaining a power balance between parents is essential, the Court will impose a shared parenting or parallel parenting arrangement to keep both parents firmly ensconced in their children’s lives. [ 68 ] This is not a case where there is a need to protect one parent’s role.

Both parents play important roles with these children and these roles have contributed to their wellbeing. [ 69 ] The Applicant is now more readily available to the children as he is more consistently in somewhat close proximity. [ 70 ] In this case, the children have been geographically stable, living in a consistent geographical space.

Moving them is not necessary to their wellbeing and may be unwise at their ages. [ 71 ] When healthy, the Respondent is able to address the children’s interests. [ 72 ] Her role has been the primary parent role, save only those times when her illness required relief and respite. [ 73 ] The Applicant responds to the immediate crises. [ 74 ] Traditionally he relied on the Respondent to manage the children’s lives outside of his parenting time inclusive of medical and educational intervention. [ 75 ] He fulfills his role as a father, as a strong financial provider and, more recently, his more consistent presence.

There is evidence that when home he also assumed day-to-day care. [ 76 ] He has continued in this role since the children’s birth. He has also maintained his involvement during his time in Nova Scotia and has responded to crises when required. [ 77 ] Logistically, the mother’s proximity to the school, the medical authorities, the extracurricular activities and the proximity to the children’s childhood and school peers is the more convenient one. [ 78 ] The Applicant’s place of residence is 45 minutes to an hour outside of this circle in the best of times.

Winter’s unpredictable conditions makes this more problematic. [ 79 ] The Applicant’s residence requires late night winter driving after evening extracurricular activities.

This is far less desirable. [ 80 ] The Applicant’s current residence poses logistical problems, particularly in winter, in setting up a shared parenting schedule. [ 81 ] Were he closer to the children’s school and community, a shared parenting arrangement with the youngest could readily and naturally evolve. [ 82 ] Both children seem to have recovered from their transitional difficulties and both are described as happy, healthy and connected to both parents. [ 83 ] Certainly, with the father living in Nova Scotia, an adjustment of the current

schedule to meet the changing age and stage of development of this child is desirable. [ 84 ] This decision does not diminish either parent’s role in the upbringing of their children. Their separate and distinct roles together increase the possibility of more fully addressing the children’s interests and needs. [ 85 ] There is nothing that convinces me that a shared parenting arrangement would be logistically better than his current situation with the Respondent as primary parent. The Younger Child [ 86 ] The pattern the Court directs be incorporated into an order is premised on their current living arrangements.

Schedule [ 87 ] The children shall be with the father every second Thursday after school to Monday morning delivery to school. [ 88 ] In addition the father shall have the right to have the children with him on one overnight every second week during the week approaching the mother’s weekend. [ 89 ] The overnight chosen shall have regard to the children’s

schedule and the father’s availability. The default, should the parties not agree on the weekday overnight, is every second Wednesday night. [ 90 ] With respect to the oldest child, the father shall be entitled to

schedule this with her directly to arrive at a mutually acceptable

overnight. The father shall be obliged to advise the mother in advance of their chosen date. [ 91 ] Thereafter, as of July 1 st , 2017, the

schedule of contact between father and the oldest child will of necessity (given her age and her circumstances) be designed themselves. [ 92 ] The father shall advise the mother as soon as practicable after making any arrangements with the oldest child. [ 93 ] For the youngest child, the overnight weekday parenting time shall be as agreed upon in advance by the parents and failing agreement the default day shall be Wednesday. [ 94 ] Currently the father is caring for the children one week per month (a seven day per month schedule). [ 95 ] The adjusted

schedule is intended to increase his time to ten or more days per month on “off holiday” times. [ 96 ] The Christmas holidays around Christmas Eve and Boxing Day shall be as designed in their order of June 9 th , 2014 , with the balance equally shared. [ 97 ] The default sharing, if no advance agreement in writing is reached between the parents, is as follows: Exempting the days immediately before and after Christmas as designed in their order of June 9 th , 2014, the father will have his half of the remaining holiday with the children commencing the close of school and the mother after the 24 th , the remaining half up to the return to school.

March Break for the youngest child shall be equally shared from Friday after school to Wednesday mid-day and Wednesday mid-day to Monday morning return to school. The father has first option in 2017, alternating each year thereafter for the youngest child. [ 98 ] For the youngest child the summer shall be shared equally. Depending on the father’s work

schedule and the children’s activities, the parties may share one week on one week off. [ 99 ] The default position, should the parents not agree, will be one month with each parent, with the mother having the first choice of month in odd numbered years. [ 100 ] By May 1 st , 2017, she shall advise the father of her selection in writing. [ 101 ] He shall have first option in 2018 and in even numbered years thereafter. [ 102 ] The parents may agree to other parenting time in advance.

Finances Setting Income Applicant Respondent Spousal 2010 $114,474 2011 $154,626 2012 $156,224* $31,107 2013 $135,281 $2,755 2014 $160,322 $38,352(exclusive of SS) $1, 825 2015 $115,000** $32,999(11,095 disability; plus UCCB and SS) 2016 $115,878.81 est *** * He was a duel resident taxpayer of the United States and Canada. He received a refund of $37,945. ** The ITR show an income of $110,021.76 with a refund of $10,660 . A recalculation of his tax might assist him in increasing his monthly income to meet his month to month obligations. *** The Applicant shows as a base employment income $98,280.

Up to September he earned through self-employment an additional $13,199.11 for a total $111,479.11(the self-employment income pro-rated would result in an annual income of $115,878.81). [ 103 ] It appears the most reliable annual figure would be an estimated annual income of $115,878, reserving the right to complete a retroactive evaluation should there be a material difference between his evidence now and his actual receipts. [ 104 ] This will be more difficult to verify because the Applicant now completes his own tax returns.

He admits he did not include his self-employment nor deduct his RRSP contributions in his latest filings. [ 105 ] Based on this information, his income tax returns may not provide the best evidence of his total income. [ 106 ] It is the Respondent’s duty to disclose his complete earnings to the Respondent, whether declared or not, for the purpose of determining child and spousal support. S. 7 Expenses

[ 107 ] The evidence discloses that the Respondent has been largely responsible for registering and paying the expenses associated with the children’s activities. The Applicant contributes as he deems appropriate or affordable. [ 108 ] The expenses include club membership fees, paddling, lacrosse, and volleyball. In 2014, the fees were $864. In 2015, they were $525 and, in 2016, they are $713. In the past they were involved in swimming.

These are the historic usual activities both parents have endorsed. [ 109 ] Both children are active and competitive. [ 110 ] The Applicant recently purchased glasses for the oldest and provided ski passes and sports gear as birthday presents. [ 111 ] His obligation to contribute to their extracurricular activities as contemplated in the original order comes first and continues. [ 112 ] Extras the Applicant wishes to purchase as gifts do not replace his obligation to continue to support the children in the activities they have historically engaged in and from which they have profited.

IRA Debt [ 113 ] The Applicant indicates he is unable to afford the current order as his income has decreased, he has an IRA debt for unpaid taxes for December 31 st , 2013 of $35,030 (previously unknown to the Respondent), and he has and wants the children a greater percentage of the time. [ 114 ] Both counsel agree the child support would not be significantly altered under either a primary care or shared parenting plan. [ 115 ] The IRA debt is one arising out of 2013 and forward.

In 2016, the Applicant traded in his sail boat at a price of $60,000 ($25,000 plus a boat valued at $40,000). [ 116 ] He could provide little detail as to where the $25,000 went. He had paid back his parents, his legal bills and some other bills. The IRA debt was not one of the bills he paid off. [ 117 ] It does not appear that much attention was paid towards the IRA debt. The purchase price of the boat he acquired in June 2016 he currently values at $30,000. If sold this would assist him in addressing the IRA debt at no cost to the children. The Applicant has options.

Self-employment earnings [ 118 ] The Applicant let his assessor’s certification lapse for a few years. His recertification will expire April 30 th , 2017 unless reinstated. [ 119 ] While certified he has available to him an opportunity to supplement his income. [ 120 ] Late disclosure through May 2016 interrogatories disclosed an additional self-employment income of $15,729.11 to June 2016.

While he declares no further self-employment income from June to September, he has the possibility of further self-employment income at least from October to December 2016. [ 121 ] To June, according to his disclosure, his annual income would be $114,000 plus what he is able to earn from October to December. [ 122 ] Having reviewed the historic evidence and income/expense circumstances, I consider that the best evidentiary estimate of the Applicants income is $115,878.

Child support [ 123 ] Based on an income estimated to be $115,878, the Applicant shall pay monthly child support for two children in the amount of $1,544.

He shall continue to pay this amount until further order of the Court. [ 124 ] The oldest child will be making some decisions for the next academic year and it is anticipated this amount will have to be adjusted to reflect her decisions and her post-secondary expenses. [ 125 ] By August 1 st , 2017, both parties shall exchange full updated income confirmation and shall provide to one another current information about their daughters intended post-secondary plans together with verification of post-secondary school and living expenses.

Spousal Support/Self-sufficiency/Disability Employment History Respondent [ 126 ] At marriage, the Respondent was employed as a lab technician and, while initially working in a Red Cross sector, moved in 1999 to the Capital Health sector. [ 127 ] With the birth of their first child in 1999, the Respondent took a six month maternity leave. [ 128 ] The Respondent remained at home providing day-to-day care of the children and continuing to work including, completing night shifts. She had the assistance of her parents. She was the primary caregiver, decision maker and the parent responsible for registering

the children in extracurricular activities and arranging medical appointments. [ 129 ] In 2004, we see the commencement of the mother’s health difficulties and depression. [ 130 ] Since 2004 forward, she experienced four short term periods of disability when she required her parents and the Applicant to take over the primary care role. [ 131 ] In 2004, the Respondent reduced her outside work hours and finally left work completely. [ 132 ] In 2008, the Respondent became seriously ill, requiring two months hospitalization.

She has recovered sufficiently to resume her primary care role. [ 133 ] In late 2013 the Respondent was able to return to work until to October 2014 at which time her CPP Disability entitlement was reinstated. Her treating psychiatrist advised she should not return to shift work until fully recovered. [ 134 ] She has not worked since and advised the Court she did not look for work. [ 135 ] She is waiting for her life to stabilize in order to return to work. She believes she is currently unable to return to work. Applicant [ 136 ] At marriage, the Applicant was employed as a contractor in an oil technology sector.

The family plan required that he travel extensively for protracted periods of times to support the family. [ 137 ] In 2002, the Applicant was employed in Alaska one month on and one month off, plus or minus. He participated in the day-to- day care of the children when home. [ 138 ] In January 2014, the Applicant’s work ended in Alaska.

He moved to Fort McMurray, Alberta from January 2014 to January 2015, experienced a cut in pay and position, and a change from a 4/4 week rotation to a three on, three off and two on, two off. [ 139 ] In January 2015, the Applicant moved his employment and his residence to Nova Scotia. His income is stated to be $98,280, which he represented as his total income. [ 140 ] It was later learned that he has resumed self-employment to supplement his income. This supplementary income is not visible in his income tax returns.

The Applicant admits he has resisted any payment of extracurricular expenses, given his change in circumstances, although he contributes to other activities. Self-sufficiency [ 141 ] There has been no contest to the Respondent’s entitlement to support.

There is some medical evidence supporting her historic disability. [ 142 ] The Respondent speaks to a desire and willingness to return to the workforce as soon as possible in accordance with her duty pursuant to the Divorce Act . [ 143 ] There is evidence and an admission that the Respondent has not made employment enquiries or attempts to re-enter the work force since she last left work. [ 144 ] The parenting roles defined by the parties were traditional roles, with the Applicant as the primary financial provider requiring him to travel extensively and live away for block periods of time.

The Applicant did have block times at home when he shared day-to- day care. [ 145 ] The Respondent assumed much of the day-to-day care and management of the children through their school, medical, home and extra-curricular activities. [ 146 ] The Respondent and the children maintained a geographically stable residence for the best part of their early child and educational years. [ 147 ] The spousal support submissions were based on speculative levels of income. [ 148 ] The original order of child support and spousal support was based on an income of $140,000. [ 149 ] The level of total support after the initial separation appeared to address both compensatory and non-compensatory, and more immediate transitional costs resulting from the separation and the Respondents active illness. [ 150 ] It is concerning that it is four years since separation and the respondent is not pursuing a self-sufficiency plan with more diligence given the reduction in the level of day-to-day care required for the two children, one of whom will be entering post-secondary pursuits likely by August 2017. [ 151 ] Having regard to the documentation respecting the level of income and expenses available to me, the change in the Applicant’s income , the obligations set out in the Divorce Act , the foundation of the entitlement to spousal support both compensatory and non- compensatory support, the needs of the former spouses and ability to pay, I order the Applicant to continue to pay spousal support to the Respondent commencing October 2016 in the sum of $1,500 per month until further order and review, as stipulated in the original final

order. [ 152 ] The Respondent will have additional time to diligently pursue such level of self-sufficiency as she can achieve in the work force given the oldest child will be pursuing her post- secondary goals after June 2016 and the youngest will be spending more time with the Applicant. [ 153 ] The Respondent has ample time to make more serious efforts at moving herself towards self-sufficiency. [ 154 ] The original order identified her obligation under the Divorce Act . This includes an obligation to keep the Applicant informed of her efforts.

That continues. [ 155 ] The spousal support guidelines relating to a 14 year relationship reflect a range of duration between 7 and 14 years. This application is four years into that range. [ 156 ] Thus far, there is insufficient medical information to conclude that the Respondent is medically unable to pursue her previous skill level employment option which when working yielded an income of $40,000. [ 157 ] If unable to return to full time work, certainly there must be efforts to reach some level of employment that would allow her to contribute to her self-sufficiency.

She has a duty to assist herself and a duty to move towards supplementing her income. There ought to be no expectation that this spousal support is indefinite for her lifetime. [ 158 ] If truly unable to work full-time, the Respondent should be pursuing a manner of supplementing her CPP to plan for once she is no longer in receipt of child and spousal support. [ 159 ] There has been mixed success in this application. [ 160 ] Counsel for the Applicant shall file the order. Legere Sers, J.