Conohan v. Cholock, 2017 NSSC 7

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Conohan v. Cholock, 2017 NSSC 7 Date: 2017-01-06 Docket: No. SFSNMCA-016558 Registry: Sydney Between: Pamela Rose Conohan Applicant v. Thomas Claude Cholock Respondent Judge: The Honourable Justice Darryl Wilson Heard: November 4, 2016 and Additional Documents November 10, 2016 Written Decision: January 6, 2017 Counsel: Elaine Gibney and Heidi Hannem - Counsel for Applicant Thomas Claude Cholock – Self-Represented By the Court: [ 1 ] The Applicant filed a Notice of Variation Application on September 3, 2015. The relief requested by the Applicant included: (

a) An increase in the amount of child maintenance payments based on an increase in the Respondent’s income. (

b) An amount for

Section 7(

c) health related expenses; and (7f) extra-ordinary expenses for extra-curricular activities. (

c) Retroactive child maintenance calculated by adding the shortfall in the table amount of child maintenance payments since January 1, 2012, with contribution for

Section 7 expenses from January 1, 2013. [ 2 ] The Applicant’s claim for retroactive child maintenance (Table amount) for the period January 1, 2012 to November, 30, 2016, is $18,986.00 and her request for a retroactive contribution to

Section 7 expenses for the period January 1, 2013 to November 30, 2016, is $7,029.17. The total retroactive claim is $26,015.17. [ 3 ] The Applicant’s original claim did not adjust the Respondent’s income for union dues and assumed his 2016 income was the same as his 2015 income of $94,509.00. [ 4 ] The Respondent filed a reply requesting a change in the overnight access provisions. He agreed to pay increased child maintenance but disagreed with the annual income proposed by the Applicant. He was against paying

Section 7 related expenses claimed by the Applicant since he paid other expenses on behalf of his daughter, including some

Section 7 type expenditures. He proposed that retroactive child maintenance be fixed at $4,000.00. Evidence [ 5 ] The Parties have one child, now 15 years of age. They were never married and have lived separate and apart since the child was 9 months old. [ 6 ] The court file indicates 5 prior court orders pursuant to the Maintenance Custody Act , RSNS 1989, c. 160 . The last order was issued March 9, 2011, after the Respondent applied to reduce child maintenance based on a reduction in his income and provided: 1.

Ongoing child maintenance of $348.00 a month based on an annual income of $40,000.00. 2. $137.00 for child care. 3.

Retroactive child maintenance of $4,400.00 payable in the amount of $50.00 per month when receiving Employment Insurance Benefits and $100.00 per month when receiving employment income. [ 7 ] The Respondent’s annual income from 2012 to 2015 based on Notices of Assessment from Canada Revenue Canada is: 2012 $66,480.00 2013 $76,155.00 2014 $86,783.00 2015 $94,509.00 [ 8 ] The Respondent paid union dues from 2012 to 2015 of $1,030.00; $1,346.00; $1,515.00; and $1,644.00. [ 9 ] The Respondent filed his pay stub for the period ending November 3, 2016, from his employer, Marine Atlantic.

It indicated year-to-date income of approximately $68,400.00 under various income headings. He expects to receive four (4) additional pays before the end of 2016. I estimate his 2016 income to be approximately $82,000.00. His pay stub also indicated he has paid $1,193.72 in union dues for 2016. I estimate his union dues for 2016 to be $1,440.00. [ 10 ] The Applicant has, through emails, and otherwise, on many occasions in the last few years, requested the Respondent increase the Table amount of child maintenance and contribute an amount towards

Section 7 extra-ordinary expenses incurred in respect of their child. [ 11 ] The Respondent did not increase his child maintenance payments or contributed towards the

Section 7 expenses now claimed by the Applicant. [ 12 ] The Respondent has made a contribution to child care costs of $137.00 per month. The Applicant acknowledged that she has not incurred child care costs for approximately 2 years. [ 13 ] The retroactive child maintenance award ordered by the court in 2011 was paid by February 2015. The Respondent continued to pay $100.00 per month in addition to the $348.00 per month since February 2015. [ 14 ] The Respondent’s position is that his income should be fixed at $75,384.00 and the Table amount of support be fixed at $638.00 per month. He also agreed to be enrolled in the Recalculation Program.

Section 7 Expenditures [ 15 ] A

summary of the Applicant’s claim for

Section 7 expenditures by year and type of expenditure is as follows: 2013 Kostume Capers $702.63 Science Camp $140.00 Volleyball Camp $80.00 Ben Eoin Ski Pass $240.35 Soccer Cape Breton (Winter) $350.00 Whitney Pier Soccer (Summer) $200.00 Memorial Junior High Student Fee $50.00 Total 2013 $1,762.98 2014 Kostume Kapers $1,299.00 Volleyball Camp $175.00 Memorial Jr High Student Fee $30.00 Whitney Pier Jr High Volleyball Fee $60.00 Europe Trip Monthly Payments $1,381.00 Ben Eoin Ski Pass $274.85 Whitney Pier Soccer (Summer) $200.00 Whitney Pier Formal Dance $440.00 Total 2014 $3,859.85 2015 Kostume Kapers $1,677.00 Force Volleyball $1,000.35 Europe Trip Monthly Payments $850.00 Whitney Pier Soccer (Summer) $821.48 Whitney Pier Formal Dance $357.55 Total 2015 $4,706.38 2016 Europe Trip 2016 (Hotel/Expenses) $368.28 Kostume Kapers Drama/Dance Fees $970.00 Kostume Kapers Summer Camp $225.00 Summer Soccer 2016 $200.00 Kostume Kapers NYC Trip $1,699.00 Medical Appointments (Hotels/Gas/Parking) $282.86 Total 2016 $3,745.14 [ 16 ] The applicant requests the Respondent pay 50% of the above listed expenses ($7,029.17). [ 17 ] The Respondent is opposed to contributing toward

Section 7 expenses claimed by the applicant. He states that she did not consult with him prior to registering their child in the events listed. The last order dealing with parenting matters issued in March 2004, required the applicant to consult him prior to making major decisions with respect to the child. [ 18 ] He states he made other financial contributions on behalf of the child including sharing the cost of orthodontic braces, paying for piano lessons, monthly cell phone charges since June 2015, clothing, Christmas gifts, school equipment and weekly allowance.

He has established a Registered Educational Savings Fund for the child. [ 19 ] The Respondent wants the parties to consult “before making large purchases”, or activity commitments on behalf of the child. He admits that communication between them is poor and often conflictual. [ 20 ] The Respondent states the Applicant’s request for retroactive child maintenance is not timely since he has provided her with copies of his Notices of Assessments on a yearly basis.

Conclusion Access [ 21 ] The parties agreed at the hearing to vary the current access provisions to reasonable access at reasonable times upon reasonable notice. The Respondent and child enjoy a good relationship. They communicate regularly. The child is 15 years of age. The Applicant is not opposed to them making their own visiting arrangements. Prospective Child Maintenance – Table Amount [ 22 ] The Respondent’s income for child maintenance purposes for 2016 is $80,600.00. The total amount payable beginning December 1, 2016, is $682.00 monthly. The Parties agree to participate in the Recalculation Program.

Prospective

Section 7 Order [ 23 ] The Applicant’s prospective

section 7 expenses include health related expenses for two trips to Halifax to attend medical appointments and extra ordinary expenses for extra-curricular activities including the cost of a school trip to Europe, costs associated with attending a formal school dance, fees and costs associated with Kostume Kapers Drama Group, including attending Summer Camp and a trip to New York City, Summer soccer registration fees and volley ball registration fees and costs of out attending tournaments outside the local area. [ 24 ] I am allowing the claim for costs associated with two trips to Halifax as these were necessary in the child’s best interest.

She was recently diagnosed with a medical condition, which required these trips. The costs claimed are reasonable, having regard to the means of the parties. The Respondent shall pay the Applicant 50% of these two costs within 30 days of an Order being issued.

Future accommodation and gas expenses for trips to Halifax that are associated with attending appointments to treat the child’s medical condition are to be shared 50/50. [ 25 ] With respect to the Applicant’s claim for extra-ordinary expenses for extra-curricular activities, the onus is on the parent claiming the expense to show the expense is extra-ordinary. Just listing the expenses is not sufficient to establish a claim. [ 26 ] The court must determine whether the expenses claimed are extra-ordinary. Two ways are identified to assist the court in making this determination. Section 7(1.1)(

a) deals with the ability to pay of the parent claiming the expense, including their income and the amount of child support received. The Applicant did not provide a Statement of Expenses. The Applicant’s annual income is approximately $70,000.00. She was unable to establish her means since the amount of child support was to be determined. Therefore the court was unable to make a determination whether the expenses claimed are extra-ordinary pursuant to this subsection. [ 27 ] Since section 7(1.1)(

a) is not determinative, the Court must consider section 7(1.1)(

b) to determine whether the expenses are extra-ordinary having regard to: 1. The amount of expense in relation to the income of the spouse requesting the amount (including the child support amount). 2. The nature and number of extra-curricular activities. 3. Special needs and talents of the child. 4. Overall costs of the activities. 5. Other factors the court considers relevant. [ 28 ] All expenses must meet test of necessity and reasonableness set out in section 7(1) of the Guidelines. [ 29 ] I find the child’s participation in the Kostume Kapers Drama Group beneficial to her.

She has participated in this drama group since she was a young child and the evidence indicates she enjoys this activity. She has been taking piano lessons for a number of years. Her participation in sporting activities, such as soccer and volleyball also contribute to her healthy development. [ 30 ] The expenses are reasonable in relation to the means of the parties.

I order that the cost of the Kostume Kapers Drama Group , subject to a limit of $1,000.00 a year for 2015 and 2016 and forward, and the cost of the child’s piano lessons for 2015 and 2016, and forward are to be shared equally between the Parties. [ 31 ] The costs associated with the Kostume Kapers Drama Group trip to New York City is an extra-ordinary expense in relation to this activity and therefore, I order that the Respondent contribute 50% towards the cost of this trip (excluding spending money), to be paid within 30 days from the issuance of an order at the conclusion of this hearing.

[32] Likewise, the costs for accommodations and gas to cover the volleyball trip to Halifax Provincials and the accommodation costs and gas expenses in relation to the trip to PEI for a soccer tournament are extra-ordinary expenses in relation to these activities and the Respondent is to contribute 50% of these costs, which I fix at $322.35, for the volleyball trip and $366.00 for the soccer trip. These amounts are to be paid within 30days from an order being issued in this decision.[33] However, I do not find the registration fees associated with soccer and volleyball to be extra-ordinary.

They appear to be basic expenses in relation to these activities and the Table amount does contemplate anamount for basic activities.[34] Likewise, the costs associated with school student fees and attending school dances are not extra-ordinary and I decline the Applicant’s claim for these expenses.[35] The evidence discloses that the child has enjoyed many trips outside the local area, including several family trips to Florida, and elsewhere. The Applicant is not looking for the Respondent to contribute to theseexpenses and her family has assisted with the costs of these trips.

The child has been able to broaden her life experience through travel in many ways. The Respondent is opposed to contributing towards the costs of aschool trip to Europe. Considering the Respondent has been ordered to contribute towards the cost of a trip to New York during the same time as the trip to Europe, and the Respondent is sharing with the Applicant, thecosts of orthodontic expenses and also purchasing ski equipment that benefit the child, the court declines the Applicant’s claim towards the cost of the Europe trip.

I do not find this expense to be necessary in the child’sbest interest.Retroactive Child Maintenance[36] The test for retroactive increase in child support was recently summarized by Forgeron, J. in Desrosiers v. Pastuck, 2016 NSSC 308, at paragraph 100:The test for a retroactive increase in child support is set out by the Supreme Court of Canada S. (D.B.) v. G. (S.R.), 2006 SCC 37 , 2006 SCC 37 (S.C.C.).

Bastarache J., states as follows:• Child support is the right of the child and such right survives the breakdown of the relationship of the child's parents [para 38].• The child loses when one parent fails to pay the correct amount of child support [para 45].• Parents have an obligation to support their child according to their income and this obligation exists independent of any statute or court order [para 54].• The payment of a retroactive award is not an exceptional remedy [para 97].• A retroactive maintenance award should be payable from the date the custodial parent gave effective notice to the non-custodial parent [para 118].• It is generally inappropriate to make a retroactive award more than three years prior to the date when formal notice was provided to the non-custodial parent [para 123].• The quantum of a retroactive award must be tailored to fit the circumstances of the case [para 128].• The court must examine and balance four factors when determining the issue of retroactivity [para 99].• The first factor concerns the reasonableness of the custodial parent's excuse for failing to make a timely application in the face of the nonpayment of child support, or in the face of an insufficient payment of childsupport [paras 101 and 104].• The second factor relates to the conduct of the noncustodial parent.

If the noncustodial parent engages in blameworthy conduct, then the issuance of a retroactive award is usually appropriate.

The determination ofblameworthy conduct is a subjective one based on objective indicators [para 108] and the court should take an expansive view as to what constitutes blameworthy conduct in the face of the nonpayment or insufficientpayment of child support [paras106 and 107].• The third factor to be balanced focuses on the circumstances, past and present [para 110] of the child, and not of the parent [para 113], and include an examination of the child's standard of living [para 111].• The fourth factor requires the court to examine the hardship which may accrue to the noncustodial parent as a result of the noncustodial parent's current financial circumstances and financial obligations [para 115],although hardship factors are less significant if the noncustodial parent engaged in blameworthy conduct [para 116].[37] The Applicant did not delay in filing her application.

The Parties have been to court on several occasions in the past dealing with child support issues. The Applicant attempted to have the Respondent voluntarilyincrease his child maintenance payments and he refused. [38] The Respondent engaged in blameworthy conduct by not increasing his child maintenance payments. His income increased substantially since the date of the last order. He knew he should increase his paymentsand he did not. In the words of Justice Bastarache in D. B.

S., supra, the respondent “privileged his own interest over his child’s right to an appropriate amount of support”. [39] The child is engaged in many activities and I am satisfied that the Applicant will use the retroactive award to meet the child’s needs. [40] There is no indication that the Father will suffer hardship. He has stable employment, and is able to accumulate savings.

If there is a hardship, it was caused by the Respondent not paying the appropriate amountof child maintenance in a timely manner. [41] The retroactive order is based on what the Respondent should have paid with credit for payments for child care and additional payments of $100.00 since February 2015 (see table below).

Income Less Union DuesTable AmountMth Amount PaidMth Amount Owed Total$65,450.00 $553.00 $348.00 $205.00 $2,460.00$74,809.00 $632.00 $348.00 $284.00 $3,408.00$85,268.00 $720.00 $348.00 $372.00 $4,464.00$92,865.00 $780.00 $348.00 $432.00 $5,184.00$80,600.00 $682.00 $348.00 $334.00 $3,674.00Total Owed $19,190.00Less: Credit for Child Care Payments 27 months x $137.00 -$3,699.00Less: Credit for Additional Payments Feb /15 21 months x $100.00 -$2,100.00TOTAL DUE $13,391.00

Summary1. Variation of child maintenance to $682.00 per month beginning December, 2016.2. Retroactive child maintenance of $13,391.00 payable in full on or before June 30, 2017.3.

Section 7 health related expenses of $141.43 payable within 30 days of an order being issued, plus 50% of accommodation and gas expenses for future medical appointments.4.

Section 7 extra ordinary expenses for extra-curricular activities including:a. Equal sharing of Kostume Kapers Drama Group and piano lessons for 2015 and 2016. Respondent is to reimburse the Applicant any balance owing within 30 days of the issuance of the order.

In addition, from 2017onward, the parties are to share equally the costs of Kostume Kapers Drama Group expenses subject to a limit of $1,000.00 per year and piano lessons equally.b. 50% of the costs of the Kostume Kapers Drama Group’s trip to New York City payable within 30 days of the issuance of an order.c. $349.17 representing 50% of accommodations and gas expenses for volleyball trip to Halifax ($366.00) and soccer trip to Prince Edward Island ($322.35), payable within 30 days of an issuance of the order. ______________________________Wilson, J.