Day v. Day, 2020 NSSC 338

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Day v. Day , 2020 NSSC 338 Date: 20200925 Docket: Halifax No. 1201-071402 Registry: Halifax Between: Gina Gail Day Petitioner v. Daniel Jonathan Day Respondent Judge: The Honourable Justice C. LouAnn Chiasson Heard: September 22, 2020, in Halifax, Nova Scotia Written Release: November 24, 2020 Counsel: Zachary Chisholm for the Respondent By the Court: [ 1 ] The parties were married on September 2, 2006. They have two children, J.D. and E.D.. Ms. Day commenced these proceedings by way of Petition for Divorce filed on September 27, 2018. Ms.

Day subsequently amended the relief in the Petition by way of Amended Petition for Divorce. Mr. Day filed an Answer to the Petition on October 29, 2018. [ 2 ] To the credit of the parties, they were able to resolve the vast majority of the issues before them at a settlement conference with Justice Jollimore on November 12, 2019. As a result, there is a Partial Corollary Relief order confirming the terms of settlement.

As noted at the organizational pre-trial of this matter, the three outstanding issues to be resolved are: 1) Paragraph 12 of the Partial CRO- A determination of the amount of child support paid by Mr. Day from November 19, 2017 to the end of 2019. The parties confirmed a the settlement conference that the amount of child support owing for that period of time was $7,577. The issue is how much of this was paid by Mr. Day. 2) Paragraph 13 of the Partial CRO- What, if any contribution should be made by Mr.

Day in relation to special or extraordinary expenses; and 3) Paragraph 20- Whether and to what extent the pension earned by Ms. Day should be divided with Mr. Day. [ 3 ] Both parties confirmed that they were also seeking a divorce. I have reviewed the materials and evidence filed. I find that the parties separated in 2017 and remained living separate and apart until the time of trial. I confirm that there is no possibility of reconciliation.

Having found that all jurisdictional requirements have been met, I grant a divorce based on a breakdown of the marriage caused by a separation in excess of one year. [ 4 ] I will now turn to the three other substantive issues before the court. The first two issues relate to a retroactive determination of child support- both in relation to the table amount paid by Mr. Day and the contribution retroactively in relation to

section 7 expenses. [ 5 ] Both of these issues are discretionary. The court is tasked with examining the totality of admissible evidence and to make a determination of the retroactive support based on the particular circumstances of each case. The Supreme Court of Canada in S. (D.B.) v G. (S.R.) , 2006 SCC 37 (S.C.C.) (“D.B.S.”) outlined the principles governing applications for retroactive awards of child support. [ 6 ] As noted in the case of Boylan v MacLean , 2018 NSSC 15 (NSSC): “Prospective awards are very different than retroactive awards – prospective awards create a new and predictable status quo while retroactive awards serve to supplant it: D.B.S., at paras. 96-97 .”

RETROACTIVE PAYMENTS MADE BY MR. DAY [ 7 ] Although the parties agreed on the outstanding table amount of support owing for the retroactive period, they differed in the amounts paid by Mr. Day. Further complicating this matter was the fact that there was some intermingling of funds as they related to payments on matrimonial property and debt with child support. It is for this reason that retroactive awards are discretionary- it is difficult if not impossible to piece together with precision what may have been paid and for what purpose. [ 8 ] Ms. Day confirms that Mr.

Day paid child support during the retroactive period in the amount of $2,748.21. Mr. Day asserts that he paid the sum of $7,122. It was conceded that $1,500 of that amount related to motor vehicle payments and should be deducted from that sum. Further, if the court found that the $2,500 contribution to the mortgage should also be deducted, the payments made by Mr. Day should be further reduced. [ 9 ] The property was divided by agreement as noted in the Corollary Relief Order. This would include any equity in the matrimonial home.

I am not prepared to count monies paid on the mortgage as contributions to child support in the circumstances. There are no particulars related to the division of property but presumably such contributions would have been accounted for in the division of property. To count the money paid as both towards mortgage and child support may result in double accounting and I am not prepared to provide credit to Mr. Day as child support. [ 10 ] Deducting both the motor vehicle payments and the mortgage payments would result in monies asserted to be paid by Mr. Day of $3,577. Ms.

Day indicates that he paid her the sum of $2,748.21- a difference of $828.79. The additional funds were paid largely in cash. There are no documents to confirm the payments other than the cash withdrawals made. [ 11 ] Even if I were to accept the suggestion that these cash payments were made to Ms. Day, how am I able to distinguish between child support and monies which may have been owing for matrimonial debt (such as the vehicle and mortgage)? In cross examination, Mr. Day acknowledged that Ms. Day would advise him what he owed her for things (including the mortgage) and he paid what he could.

When he fell short, he would try and make up payments as he was able. [ 12 ] Mr. Day declared bankruptcy in November 2018. Up to that point in time, presumably the parties were paying various debts. The form 79 filed by Mr. Day in his bankruptcy (attached to his Statement of Property of August 28, 2019, and also referenced in the affidavit filed by Ms. Day on Aug 10, 2020) discloses a significant amount of debt in addition to the mortgage and the motor vehicle. It is therefore impossible to say if these payments made to Ms. Day were in relation to these debts or child support. [ 13 ] I find that Mr.

Day contributed the sum of $2,748.21 in child support to Ms. Day for the period of retroactivity. That means that a further $4,828.79 remains owing in relation to the table amount of child support for the period of November 2017 to the end of 2019. RETROACTIVE CLAIM FOR

SECTION 7 EXPENSES [ 14 ] I then turn to the request of Ms. Day for a retroactive contribution to

section 7 expenses. The payment of

section 7 expenses is within the discretion of the court. The judge must examine all the financial circumstances in determining whether to allow

section 7 expenses or not. In relation to the child care expense, I find the expense to be reasonable and necessary. Child Care [ 15 ] Mr. Day confirmed that, during the period of retroactivity, there were times he worked and would be unavailable to provide child care. Further, he confirmed that when he was not working, his mental health was such that he was unable to be employed. It is not reasonable to assume that Mr. Day would have been able to provide before and after school child care during the period of retroactivity. ED went to the same child care provider for years prior to separation.

She continued at the same child care provider that she attended since the age of four. The cost of the child care provider was unchanged. [ 16 ] Having found that the child care expense fits within the definition of a reasonable and necessary expense, I then turn to the contribution to Mr. Day during that period of time. His income in 2018 was approximately $35,000. Ms. Day’s income from employment for the purposes of calculating contribution to

section 7 expenses was $52,173. Therefore the expense would be shared proportionally with Mr. Day paying Ms. Day 40.15% of this expense or $833.30. Extra-curricular expenses [ 17 ] I then turn to the issue of the extraordinary expenses of extra-curricular activities. Based on the circumstances of the parties, ordinary expenses of extra curricular activities may not qualify as allowable

section 7 expenses. The children participated in soccer and lacrosse for years. Their continued participation was reasonable, the question for the court, however, is whether Mr. Day is required to assist in those costs. I accept the evidence of Ms. Day in relation to the costs of lacrosse and soccer. The costs of registration for those sports are not excessive and do not qualify as “extraordinary expenses.” [ 18 ] I find as a fact that Mr.

Day did contribute to the extraordinary expenses of these activities by assisting with travel expenses to tournaments- including tournaments involving out of province travel on two occasions. Further, Mr. Day paid for trips to the Valley and provided evidence that he stayed at Bed and Breakfasts on occasion to ensure the girls participation in out of town tournaments. There will be no further retroactive contribution by Mr. Day to those activities. Uninsured Medical/ Dental Expenses [ 19 ] In relation to the claim related to uninsured medical/ dental expenses, Ms. Day is seeking Mr.

Day contribute to the out of pocket expenses incurred by her of $215.13. This, however, does not take into account the fact that some, if not all of these expenses may have been claimed on the tax returns of Ms. Day. There are deductions for medical expenses noted on her income tax return which should include these expenses.

[ 20 ] Mr. Day would only be required to contribute to any expense net of tax implications. It is impossible to determine the net expense related to the $215 claimed. Further, Ms. Day also receives assistance with medical expenses related to Jazmine by virtue of the disability tax credit in an amount in excess of $13,000. Based on these circumstances, Mr. Day will not be required to contribute to the uninsured medical/ dental expenses. Insurance Premiums (Attributable to the Children) [ 21 ] In relation to the claim for contribution to the children’s insurance premiums, Ms.

Day quantified the amount to be shared with Mr. Day to be $844.12. This figure, however, is assuming that there are two, bi-weekly payments per month. Utilizing the figures provided by Ms. Day at the time of trial would result in a claim of $914.28 based on bi-weekly payments of $32.05 for 5 months and $32.73 for 8 months. In 2018, Mr. Day earned approximately $35,000. [ 22 ] Given the amount owing in relation to retroactive table support, and retroactive child care expenses, I am not prepared to order a further sharing of this expense. Ms.

Day had the benefit of the child tax benefit, tax credits related to disability claimed for Jazmine, and earned an income of $52,000. Mr. Day declared bankruptcy resulting in some of the matrimonial debt being assumed in his bankruptcy. His employment history has been sporadic. I will not require a further financial contribution to him in relation to health care premiums for that period of time. Total retroactive child support owing [ 23 ] The total amount of child support owing by Mr. Day is: 1) $4,829.79 in retroactive table amount of support and 2) $883.30 in retroactive childcare expenses. Ms.

Day’s Pension [ 24 ] The final issue before the court is the issue of Ms. Day’s pension. She is requesting this court not divide her pension with Mr. Day. She is seeking relief pursuant to

section 13 of the Matrimonial Property Act, RSNS, ** (“MPA”). Her Amended Petition for Divorce includes a claim pursuant to s.13 (b)(

h) in relation to a division of matrimonial property- this is not referenced, however in the claim for relief under the pension division legislation. If I were to consider her request pursuant to the division of pension, such consideration would relate to s.13(b) & (

h) as contained in the pleadings. Although the reference is to 13(b)(h), presumably it is a typographical error and was meant to cite s.13(

b) and (h). [ 25 ]

Section 13(b) & (

h) of the MPA provide: “s. 13 Upon an application pursuant to

Section 12, the court may make a division of matrimonial assets that is not equal or may make a division of property that is not a matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors: …(

b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred; and …(

h) the needs of a child who has not attained the age of majority…” [ 26 ] Because the issues of property were resolved at settlement with the exception of Ms. Day’s pension, I have little evidence before me in relation to the debts and the manner they were incurred. Ms. Day may assert that she should keep her pension in its entirety because Mr. Day cannot be counted on to pay child support. His mental health issues affect his employability and he did not voluntarily pay support following separation based on his income. [ 27 ] As asserted by counsel for Mr.

Day, if the pension is divided at source, that may impact Ms. Day at the time of her retirement, but it will have little if any impact on the children and their care. At the time of her retirement, the children will no longer be children of the marriage. [ 28 ] There are numerous cases dealing with the issue of unequal division of matrimonial property: [ 29 ] As noted in Cunningham v Cunningham , 2018 NSCA 63 (NSCA), cases on unequal division are very fact specific. In Cunningham , supra , the court reviewed cases where the party was able to retain a pension without division with the other party.

Those cases typically involved situations where the pension had been earned significantly or totally prior to the marriage: reference Adie v. Adie , [1994] N.S.J. No. 395 (S.C.) ; Dort v. Dort , [1994] N.S.J. No. 155 (S.C.) ; Frost v. Frost , [1996] N.S.J. No. 411 (S.C.) ; and Connolly v. Connolly , [1999] N.S.J. No. 3 (C.A.) . [ 30 ] As noted in para 44 of the Cunningham decision, supra, the court approved the approach in Morash v. Morash , 2004 NSCA 20 at paragraph 23 : “23 The presumed equal division of matrimonial assets recognizes marriage as a partnership with each spouse contributing in different ways.

A measuring of the respective contributions of the parties to the acquisition of the matrimonial assets, save in unusual circumstances , is to be avoided. Matrimonial assets may be divided other than equally, only where there is convincing evidence that an equal division would be unfair or unconscionable. (Young v. Young, supra).

In applying s. 13, the question is not whether an unequal division would be fair or fairer, but whether the usual equal division dictated by the Matrimonial Property Act, would be unfair or unconscionable…” [ 31 ] In Young v Young , 2003 NSCA 63 (NSCA) (“Young”), our Court of Appeal overturned a court ruling dividing the assets

unequally. Justice Bateman wrote at paragraph 15: “15…In contrast, the division of matrimonial assets is prima facie equal, with unequal division permitted only in limited circumstances. The inquiry under s. 13 is broader than a straight forward measuring of contribution. The predominant concept under the Act is therecognition of marriage as a partnership with each party contributing in different ways. A weighing of the respective contributions of theparties to the acquisition of the matrimonial assets, save in unusual circumstances, is to be avoided.

Since the introduction of the Act, ithas been repeatedly stressed by this Court, that matrimonial assets will be divided other than equally, only where there is convincingevidence that an equal division would be unfair or unconscionable. MacKeigan, C.J.N.S. wrote, for the court, in Harwood v. Thomas(1981), (NS CA), 45 N.S.R. (2d) 414; N.S.J. No. 6 (Q.L.) (A.D.), one of the first cases in which the MatrimonialProperty Act was considered: 7 Equal division of the matrimonial assets, an entitlement proclaimed by the

preamble to the Act and prescribed by s. 12 shouldnormally be refused only where the spouse claiming a larger share produces strong evidence showing that in all the circumstances equaldivision would be clearly unfair and unconscionable on a broad view of all relevant factors. That initial decision is whether, broadlyspeaking, equality would be clearly unfair - not whether on a precise balancing of credits and debits of factors largely imponderable someunequal division of assets could be justified.

Only when the judge in his discretion concludes that equal division would be unfair is hecalled upon to determine exactly what unequal division might be made. [32] The Court of Appeal set aside the unequal division of matrimonial property. [33] The strong presumption in favour of equal division of matrimonial property was reaffirmed in the case of Pothier v Pothier,2017 NSSC 230. At paragraph 20 of that decision, the court held: [20] In Archibald v.

Archibald (1981), (NS SC), 48 N.S.R. (2d) 361 Hallett, J. stated that the court is limited toconsidering the factors enumerated in s. 13 in determining in the first instance if it would be unfair or unconscionable to simply dividematrimonial assets equally, and then, applying the same factors determine what division thereof would be fair and conscionable. I agree.In examining the factors set out in s. 13 to see if one or more of them should displace the entitlement of equality declared in the

preambleof the Act, a court requires strong evidence showing that in all the circumstances an equal division would clearly be unfair andunconscionable on a broad view of all the relevant factors: Harwood v. Thomas (1981), (NS CA), 45 N.S.R. (2d) 414at 417 per MacKeigan, J.A.. Thus the onus rested upon the respondent to produce this strong evidence. [34] Ms. Day has not discharged the onus of proving that an equal division of her pension would be unfair and unconscionable. Assuch her pension will be divided equally with Mr. Day [35] The division of Ms.

Day’s pension is ordered with the following caveat: the credits transferred to Mr. Day will be reduced bythe amount owing to Ms. Day in relation to retroactive child support. The pension will be divided equally with the exception of the$5,713.09 owing by Mr. Day to Ms. Day. I did not hear any dispute to the commuted value of the pension as noted by Ms. Day in herdocumentation. This would result in a transfer to Mr. Day of 50% of $48,603.54 less $5,713.09. The total amount to be transferred toMr. Day would therefore be $24,301.77 less $5,713.09 for a total transferred amount of $18,588.68. CONCLUSION [36] Mr.

Day shall pay the sum of $5,713.09 to Ms. Day in retroactive child support. The pension of Ms. Day will be equallydivided and the monies owing in retroactive child support will be deducted from Mr. Day’s 50% share of the pension. Chiasson, J.