Standing v. MacInnis, 2020 NSSC 304

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Standing v. MacInnis , 2020 NSSC 304 Date: 2020-10-29 Docket: SFH No. 1201-070266 Registry: Halifax Between: Dennis Standing Applicant v. Kimberley MacInnis Respondent Judge: The Honourable Justice Theresa Forgeron Heard: September 25, 2020, in Halifax, Nova Scotia Decision: October 29, 2020 Counsel: Morgan Manzer for the Applicant, Dennis Standing Laura McCarthy for the Respondent, Kimberley MacInnis By the Court: Introduction [ 1 ] Mr. Standing owes his ex-spouse, Ms. MacInnis, over $68,000 in unpaid child and spousal support arrears [1] . Mr.

Standing applied to cancel some of the arrears and to decrease his prospective support obligations. He said that his income decreased. He said that he can no longer afford to pay child and spousal support as ordered. Mr. Standing also wants the court to establish a reasonable repayment

schedule because MEP is currently garnishing most of his income. [ 2 ] Although Ms. MacInnis acknowledges that some adjustments are warranted, she nevertheless objects to Mr. Standing’s ultimate position. She stated that Mr. Standing is under-employed. Ms. MacInnis wants income to be imputed. She says Mr. Standing quit his job to avoid paying maintenance. Ms. MacInnis also wants the garnishment to continue. She fears that Mr. Standing will not pay maintenance voluntarily. Ms.

MacInnis said that she operates on a fixed budget and thus requires the timely payment of maintenance. [ 3 ] Despite their considerable differences, with the assistance of counsel and the settlement conference judge, Mr. Standing and Ms. MacInnis resolved many issues. Their major unresolved dispute centers around the quantification of Mr. Standing’s income commencing January 1, 2020 and the payment of certain s. 7 expenses. Issues [ 4 ] I will determine the contested application by answering the following questions: • Should income be imputed to Mr.

Standing commencing January 1, 2020? • What amount of child support is payable commencing January 1, 2020? • What amount of spousal support is payable commencing January 1, 2020? • Should the garnishment continue? [ 5 ] Before addressing these issues, I will review background information to provide context. Background Information

[ 6 ] The parties were married in 2006. Their son was born in 2007. Throughout the marriage, Ms. MacInnis was the primary care parent and largely unemployed. In contrast, Mr. Standing was the primary breadwinner who earned a healthy income, at times while working in other provinces. [ 7 ] The parties separated in November 2016 and divorced in October 2018. The Corollary Relief Order outlined Mr. Standing’s maintenance obligations which were based on an annual income of $125,193. The CRO required Mr. Standing to pay Ms.

MacInnis the following support: • Child support arrears of $12,470.67. • Spousal support arrears of $32,663.00. • Prospective child support payments of $1,108 per month for the table amount. • 80% contribution towards the child’s s.7 childcare and uninsured health-related expenses. • Prospective, time-limited, spousal support of $1,917 per month which was payable until November 1, 2025. [ 8 ] The CRO also required Mr. Standing to either transfer $3,408.71 in RRSPs to Ms. MacInnis or to pay her that amount. Mr. Standing did neither.

He cashed in the plan and kept the money. [ 9 ] In addition, in October 2018, a costs order required Mr. Standing to pay $13,000 to Ms. MacInnis by April 30, 2019. Mr. Standing did not pay any of the costs award. [ 10 ] Further, Mr. Standing wasn’t meeting his support obligations. Eventually, MEP began enforcement actions, including garnishing Mr. Standing’s income. [ 11 ] At the time of the CRO, Mr. Standing was employed in Alberta. He started working in Edmonton in January 2018. Mr. Standing went on short term disability in July 2018 and relocated back to Cape Breton, where his then partner and parents lived.

Mr. Standing earned his full salary while on leave until November, when he transitioned to EI benefits. Mr. Standing returned to full-time employment in February 2019, although he was permitted to work remotely, with some travel to Alberta and British Columbia. [ 12 ] In July 2019, Mr. Standing quit his employment. Mr. Standing states that he quit because he no longer was permitted to work remotely. He wanted to live in Nova Scotia, not Alberta. Ms. MacInnis states that he quit because MEP was finally taking concrete enforcement action. [ 13 ] After quitting his job, Mr.

Standing secured contract work with Cape Breton University starting in September 2019 based on an annual salary of $56,000. He collected EI benefits in the summer and obtained a further contract with CBU in September 2020 earning $59,443. He will collect EI during the summer. Further, Mr. Standing hopes to obtain a permanent position at CBU next year earning between $80,000 to $90,000 per annum. [ 14 ] For her part, Ms. MacInnis upgraded her employment skills by attending Success College in the fall of 2018. She graduated and is working on a casual basis with two employers.

She hopes to soon secure permanent employment. [ 15 ] The variation application was heard on September 25, 2020. Each party testified and was cross-examined. Oral submissions were provided to supplement the written briefs previously filed. [ 16 ] In addition, in response to my questions, on October 6, 2020, Ms. McCarthy filed a letter outlining the parties’ agreements and admissions. Mr. Manzer filed a letter confirming the same on October 16, 2020.

The agreements are as follows: Parties’ Income for 2018 Kimberley MacInnis Nil Dennis Standing $134,399 Parties’ Income for 2019 Kimberley MacInnis $10,515 Dennis Standing $97,356 Spousal Support Entitlement and Quantum for 2018 and 2019 Ms. MacInnis was entitled to spousal support in 2018 and 2019. Mr. Standing is to pay spousal support based on the mid-range of the Spousal Support Guidelines for both 2018 and 2019. Amount of Child and Spousal Support Due for 2018 Child support monthly payment was $1,187.59. Total child support for November and December 2018 was $2,375.18.

Spousal Support monthly payment was $3,122.

Total spousal support for November and December 2018 was $6,244.00. Total retroactive 2018 child and spousal support due was $8,619.18 Amount of Child and Spousal Support Due for 2019 Child support monthly payment was $832. Total child support payment for 2019 was $9,984. Spousal support monthly payment was $1,468. Total spousal support payment due for 2019 was $17,616.00 Total child and spousal support due for 2019 was $27,600 Spousal Support Entitlement and Quantum for 2020 and Prospectively Ms. MacInnis continues to be entitled to spousal support for 2020 and prospectively. Mr.

Standing will pay spousal support for 2020 andprospectively according to the mid-range of the Spousal Support Guidelines. Retroactive Counselling Payment Mr. Standing owes Ms. MacInnis retroactive s.7 child support of $1,080.00 for the child’s counselling expense. Analysis [17] Should income be imputed to Mr. Standing commencing January 1, 2020? Position of the Parties [18] Ms. MacInnis states that Mr. Standing is under-employed based on his skills and employment history. She states that incomein the amount of $80,000 should be imputed to him. [19] Mr. Standing vigorously objects.

He states that his income should not be imputed. He states that “[m]aking $60,000 per annumin Cape Breton during this economic downturn due to the pandemic is more than adequate.” [2] Legislation and Law [20] Section 19 (1) (

a) of the Federal Child Support Guidelines provides me with the authority to impute income if the payor isunder-employed provided the underemployment does not arise because of the needs of a child or the payor’s reasonable educational orhealth needs. [21] In Parsons v. Parsons, 2012 NSSC 239, this court reviewed legal principles that apply when underemployment is alleged. Paragraph 32 states in part as follows: [32]

Section 19 of the Guidelines provides the court with the discretion to impute income in specified circumstances. The followingprinciples are distilled from case law: a. The discretionary authority found in s.19 must be exercised judicially, and in accordance with rules of reasons and justice, notarbitrarily. A rational and solid evidentiary foundation, grounded in fairness and reasonableness, must be shown before a court canimpute income: Coadic v. Coadic 2005 NSSC 291. b. The goal of imputation is to arrive at a fair estimate of income, not to arbitrarily punish the payor: Staples v. Callender, 2010 NSCA49. c.

The burden of establishing that income should be imputed rests upon the party making the claim, however, the evidentiary burdenshifts if the payor asserts that his/her income has been reduced or his/her income earning capacity is compromised by illhealth: MacDonald v. MacDonald, 2010 NSCA 34; MacGillivary v. Ross, 2008 NSSC 339. d. The court is not restricted to actual income earned, but rather, may look to income earning capacity, having regard to subjective factorssuch as the payor's age, health, education, skills, employment history, and other relevant factors.

The court must also look to objectivefactors in determining what is reasonable and fair in the circumstances: Smith v. Helppi 2011 NSCA 65; Van Gool v. Van Gool,(1998), (BC CA), 113 B.C.A.C. 200; Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532(S.C.); Saunders-Roberts v. Roberts, 2002 NWTSC 11; and Duffy v. Duffy, 2009 NLCA 48.

e. A party's decision to remain in an unremunerative employment situation, may entitle a court to impute income where the party has agreater income earning capacity. A party cannot avoid support obligations by a self-induced reduction in income: Duffy v. Duffy, supra;and Marshall v. Marshall, 2008 NSSC 11. [22] In Smith v. Helppi, 2011 NSCA 65, Oland J.A. confirmed the factors to be balanced when assessing income earning capacityat para. 16, wherein she quotes from the decision of Wilson J. in Gould v. Julian, 2010 NSSC 123. Oland J.A. states as follows: 16 Mr.

Smith argues that the judge erred in imputing income as he did. What a judge is to consider in doing so was summarizedin Gould v. Julian, 2010 NSSC 123 (N.S.S.C.), where Justice Darryl W. Wilson stated: Factors which should be considered when assessing a parent's capacity to earn an income were succinctly stated by Madam JusticeMartinson of the British Columbia Supreme Court, in Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532, asfollows: 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work.

It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor". ... 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability to work, freedom to relocate and other obligations. 3.

A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at a lower end ofthe wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply becausethe parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5.

A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [23] As also noted, in Nova Scotia the test to be applied when determining whether a person is intentionally under-employed isreasonableness, which does not require proof of a specific intention to undermine or avoid a support obligation: Smith v Helppi, supra. [24] In Drygala v. Pauli, (ON CA), [2002] O.J.

No. 3731, the Ontario Court of Appeal confirmed a three-pronged approach to determine under-employment. I will now follow that approach. First, I will decide whether Mr. Standing is under-employed. Second, I will canvas whether this is caused by any identified s.19(1)(

a) needs. Third, I will decide what quantum of incomeshould be imputed. Step One – Finding of Underemployment [25] Ms. MacInnis bears the burden of proving that Mr. Standing is under-employed. I find that she met that burden for tworeasons. [26] First, Mr. Standing’s historical annual income exceeds $59,500. For example, in para. 15 of his affidavit marked exhibit 7, Mr.Standing confirmed an ability to earn more than $59,500 when he testified that between 2010 and 2017, he earned approximately$100,000 per year. I recognize that Mr.

Standing later said that he only earned $64,704.25 in 2017 from EI and T4 earnings, butacknowledged that he had yet to receive the Assessment Notice[s]. During cross-examination, Mr. Standing conceded that his incomemay have been higher. In 2018, Mr. Standing earned $134,399. In 2019, he earned $97,356. [27] Second, Mr. Standing did not lose his job. He quit. He quit in the face of thousands of dollars in unpaid maintenance. He quitwithout regard to his legal obligations to support his ex-spouse and son. If Mr.

Standing wanted to return to Nova Scotia, the appropriateplan would be to quit only after securing comparable, permanent employment. He did not do so. His reduction in income was self-induced. [28] I therefore find that Mr. Standing is under-employed when earning only $59,500 per year. Step Two – Needs of a Child or Payor’s Health or Educational Needs [29] Section 19(1)(

a) excuses under-employment if the payor proves that the under-employment is required by either the needs of achild or by the payor’s reasonable educational or health needs. [30] Mr. Standing did not prove that that his under-employment was required to meet his son’s needs. Mr. Standing is not theprimary care parent. The child is cared for almost exclusively by Ms. MacInnis. Further, Mr. Standing lives in North Sydney while thechild lives in HRM. These communities are separated by four to five hours of driving.

[ 31 ] Additionally, Mr. Standing did not prove that his under-employment was required by either his reasonable educational or health needs. Mr. Standing provided no evidence about retraining. Further, Mr. Standing failed to produce objective evidence linking his under-employment with his health needs. For example, in para 42 of his affidavit marked exhibit 11, Mr. Standing stated that he “was cleared to return to work”. He produced no medical evidence to suggest this statement was false. Indeed, he refused to produce any medical evidence. [3] Mr. Standing’s word is insufficient in the circumstances of this case.

Mr. Standing was not a credible witness. [ 32 ] Finally, Mr. Standing’s desire to help his elderly parents, although laudable, does not meet the s. 19(1)(

a) test. Step Three – Establishing Quantum [ 33 ] I must look to subjective and objective factors to confirm income earning capacity. Ms. MacInnis proved that an income of $80,000 should be imputed to Mr. Standing. $80,000 is a reasonable and fair figure, and an arguably conservative figure, that will neither “punish” Mr. Standing, nor place his income outside the range of his earnings between 2010 and 2019, or at least all years but potentially 2017.

Summary [ 34 ] I deny Mr. Standing’s request to limit his income to his current earnings. Mr. Standing made a personal choice. In the face of his legal obligations, Mr. Standing quit a lucrative job. He quit without having secured comparable employment. Ms. MacInnis and the child cannot be expected to bear the consequences flowing from Mr. Standings’ unilateral and improvident decision. [ 35 ] Further, I am not satisfied that Mr. Standing quit his job for health reasons. I am not satisfied that he quit to meet the needs of his son. [ 36 ] Ms. MacInnis proved that income should be imputed to Mr.

Standing based on an annual income of $80,000. [ 37 ] What amount of child support is payable commencing January 1, 2020? [ 38 ] The answer to this issue will require me to set the table amount and determine two s.7 expenses – childcare and braces. Table Amount [ 39 ] Mr. Standing must pay the table amount of child support based on an income of $80,000 commencing January 1, 2020 and continuing monthly thereafter unless varied by a court of competent jurisdiction. This equates to a monthly payment of $686. Childcare Expenses [ 40 ] Mr. Standing objects to paying childcare expenses after March 15, 2019.

He states that Ms. MacInnis did not prove either reasonableness or necessity. He states that Ms. MacInnis failed to investigate available subsidies to cover a portion of the childcare expense. [ 41 ] I reject Mr. Standing’s argument. To the contrary, Ms. MacInnis proved that the childcare expense is both reasonable and necessary for four reasons. First, childcare expenses were contemplated by the CRO; Mr. Standing was ordered to pay 80% of the childcare expenses. Second, childcare expenses were incurred by Ms. MacInnis in 2019 while she attended an educational program and while she worked.

The child was not old enough to care for himself. Childcare was needed. Third, Ms. MacInnis proved that she paid the childcare amounts. Fourth, childcare only cost $1,715 for 11 months. That is a reasonable figure. [ 42 ] Mr. Standing must pay 80% of the childcare expenses as Ms. MacInnis requested and as he was ordered. Ms. MacInnis is no longer incurring childcare expenses given the child’s age. Expense for Braces [ 43 ] Although I find that the cost of the child’s braces is likewise covered by the terms of the existing CRO, I will suspend the payment until next spring.

By next spring, the parties hope to acquire medical plans that may contain coverage for a portion of the brace expense. The child can wait until May 2021 to see if either or both of his parents obtain a health plan to reduce this overall expense. The uninsured expense for the child’s braces will be payable on a prorated, monthly basis commencing May 2021, and after deducting any applicable tax benefit. [ 44 ] What amount of spousal support is payable commencing January 1, 2020? [ 45 ] The parties agree that time-limited spousal support continues to be payable at the mid-range of the SSAG . For this purpose, Mr.

Standing’s income is deemed to be $80,0000. For spousal support, Ms. MacInnis’ income must also be calculated. [ 46 ] Ms. MacInnis’ income was not stable in 2020 so it is necessary to piece together the evidence. Ms. MacInnis worked as a casual employee in January and February, earning $2,561. She then collected $8,000 in CERB benefits. In July, she started working in another casual position of Covid-19 screener, in addition to the odd shift with her former employer. Unfortunately, Ms. MacInnis was not provided paystubs for her Covid related employment because of payroll issues.

She did, however, testify about her work hours based on her own record. It is probable that she earned $1,938 in July; $1,154 in August; and $1,650 as of September 25. Based on these figures, I find that Ms. MacInnis will earn about $21,000 in 2020. [ 47 ] Counsel are directed to calculate the figure for the mid-range of spousal support for 2020 based on an annual income of $21,000 to Ms. MacInnis and an annual income of $80,000 to Mr. Standing. [ 48 ] Commencing January 1, 2021, I find that Ms. MacInnis will likely earn $30,000 while Mr.

Standing’s income will continue to be the higher of the imputed amount of $80,000 or his salary in the event he secures a better-paying job. Counsel are directed to

calculate the mid-range of spousal support based on these stated incomes. [ 49 ] Should the garnishment continue? [ 50 ] The garnishment will continue. Mr. Standing demonstrated a consistent unwillingness to comply with court orders. Mr. Standing will not pay support unless his income is garnished. Therefore, to ensure the timely payment of maintenance, the garnishment must continue. [ 51 ] In addition, I acknowledge that Mr. Standing is experiencing financial difficulty because of the garnishment. His difficulties are, however, largely of his own making. Mr.

Standing refused to pay maintenance as ordered, even when he was earning more than $130,000 a year. Maintenance only began to be regularly paid after MEP took enforcement action. [ 52 ] Despite this, I find that a repayment

schedule is appropriate. All maintenance arrears, past court costs, and the RRSP money will be repaid at a rate of $500 per month. This amount may be increased if there is a material change in circumstances, such as the spousal support payment decreasing, or Mr. Standing’s annual income increasing, or Mr. Standing’s financial circumstances improving. Conclusion [ 53 ] The application to vary is granted but subject to income being imputed to Mr. Standing in the amount of $80,000, and subject to the terms of the parties’ consent, and as provided in my decision.

The garnishment must continue to cover the prospective child and spousal support payments, plus $500 per month towards the outstanding arrears. [ 54 ] Counsel are thanked for their professional and helpful approach to this difficult case. [ 55 ] Mr. Manzer is to prepare and circulate the order. Forgeron, J.