MacNeil v. Yeadon, 2022 NSSC 17

SUPREME COURT OF Nova Scotia Citation: MacNeil v. Yeadon , 2022 NSSC 17 Date: 2022-01-17 Docket: Halifax , No. SFH1201-65054 Registry: Halifax Between: James Dominic MacNeil Applicant v.

Julie Kareen Yeadon Respondent Judge: The Honourable Justice Cindy Cormier Evidence presented and heard: May 20, 20212, in Halifax, Nova Scotia Oral submissions: June 9, 2021 Written Submissions: July 7, 2021, Applicant July 21, 2021, Respondent July 14, 2021, Applicant, further response Counsel: Christopher Robinson, for the Applicant Deborah Conrad, for the Respondent [ 1 ] On October 17, 2019, James MacNeil filed a Notice of Variation Application to address the following issues: custody, parenting arrangements, and the table amount of child support, pursuant to the Divorce Act , R.S.

C. 1985, c. 3 (2nd Supp), and the Federal Child Support Guidelines , SOR/97-175 . Mr. MacNeil also asked me to recalculate arrears pursuant to

section 15 of the Maintenance Enforcement Act, S.N.S., 1994-95, c. 6 , retroactive to September 1, 2019. [ 2 ] On February 24, 2020, the parties resolved the issues of custody and parenting. They agreed to continue with the joint custodial arrangement which had been in place since their separation in or around 2005. They also agreed to continue the shared parenting arrangement which had started in 2011, and had expanded in September 2017. They confirmed neither would be seeking “primary care” of the children. [ 3 ] In May 2021, Mr.

MacNeil expressed concern about the possibility that Covid 19 related restrictions might impede Julie Yeadon’s ability to meet her shared parenting obligations. He felt her choice to travel back and forth between Nova Scotia and Prince Edward Island was not in the best interests of their children and he should have primary care. [ 4 ] Mr. MacNeil suggested various events had triggered a change of circumstances dating as far back as 2011, when the parties began their shared parenting arrangement.

Given the evidence before me and the final agreement reached by the parties in February 2020, I find the issue of parenting was resolved, and that it is in the children’s best interests to continue in a shared parenting arrangement with both parties. [ 5 ] With respect to child support, Mr. MacNeil suggested that various agreements had been reached outside of court up to September 2019, and those agreements should not be disturbed. He argued that I may only consider adjusting child support as of September 1, 2019, and I should reduce child support to $1,375.00 per month on a go forward basis. Ms.

Yeadon sought a retroactive increase back to January 1, 2017, and an increase in prospective child support as of October 1, 2019. THE ISSUES: 1. Change of circumstances 2. The Guidelines :

section 9 of the Guidelines

Section 9 (a), the set-off, I must consider the parties’ incomes pursuant to sections 17-21 of the Guidelines ;

Section 9(b), I must consider any increased expenses for two households; and

Section 9(c), I must consider the conditions, means, needs and other circumstances of each spouse and of any child for

whom support is sought. 6. Recalculation of prospective and retroactive child support; and 7. Final conclusions and directions Background and circumstances [ 6 ] The parties, James MacNeil and Julie Yeadon were married on September 21, 2002. They separated in or around 2005. [ 7 ] They have two children together: Tyler was born in September 2001 (20), he began University in September 2019; and Joshua was born in February 2004 (17), he hopes to attend university in September 2022. Tyler and Joshua were in Ms. Yeadon’s primary care between 2005 and 2011.

Despite a large difference in their incomes, the parties shared the children’s expenses 50/50 during that period. [ 8 ] Mr. MacNeil began a relationship with Bernadette MacNeil in or around 2005. Mr. and Ms. MacNeil began residing together in November 2008, and they were married in May 2013. Mr. MacNeil has “income shared” with Ms. MacNeil for tax purposes, during the relevant period. Ms. MacNeil has two children from her previous relationship with Brian Church (1988-2001), Megan, age 29, and Cody, age 26. [ 9 ] Ms. Yeadon began a relationship with Dr. Harding in or around June 2011.

In 2011 the parties moved from Ms. Yeadon having care of the children primarily, to a 40/60 care arrangement. They continued sharing the children’s expenses on a 50/50 basis. [ 10 ] Ms. Yeadon began living with Dr. Harding beginning in 2014. They purchased a house on Capitol Hill in Halifax, Nova Scotia in or around that time. In May 2016 Ms. Yeadon gave birth to Isla, her child with Dr. Harding. [ 11 ] In August 2017 the parties discussed moving to a 50/50 shared care arrangement. Mr. MacNeil began paying 90% of the children’s expenses.

He began paying what I find to be approximately his proportionate share according to their annual guidelines’ incomes. [ 12 ] Dr. Harding completed his PhD and he secured employment in Prince Edward Island. He and Ms. Yeadon continued to reside in Halifax, Nova Scotia, in 2018. In 2019, Dr. Harding started working in Prince Edward Island. Ms. Yeadon and Dr. Harding separated in early 2019, or at the very least they experienced significant challenges in their personal relationship around that time. [ 13 ] In or around April 2019 Dr. Harding and Ms.

Yeadon sold their house in Halifax and they purchased a new home in Prince Edward Island. After April 2019, Ms. Yeadon moved to a temporary apartment in Halifax, Nova Scotia and she then moved to a long term apartment in Halifax, Nova Scotia. [ 14 ] Mr. MacNeil has suggested Ms. Yeadon and Dr. Harding are married and that her primary place of residence is in Prince Edward Island where she owns a home with Dr. Harding. In any event, Mr. MacNeil agues Ms. Yeadon is underemployed and that Dr. Harding’s means should be considered when examining Ms. Yeadon’s means and her circumstances. [ 15 ] Ms.

Yeadon considers Halifax, Nova Scotia to be her primary place of residence. Ms. Yeadon has travelled between Nova Scotia and Prince Edward Island with Isla to facilitate Dr. Harding’s parenting time, and to facilitate sibling contact time while continuing to meet her ongoing week on / week off shared parenting responsibilities for Tyler and Joshua in Halifax, Nova Scotia. [ 16 ] In September 2019, Tyler moved away from Halifax, Nova Scotia to attend post secondary school in Wolfville, Nova Scotia. In 2019 Mr. MacNeil offered to pay all of Tyler’s post secondary expenses. Mr.

MacNeil also sought to reduce the table amount of child support he was paying to Ms. Yeadon for both children from $2,750 to $1,375 per month. [ 17 ] Tyler resided in residence at his university for periods during his first two years of study, between September 2019 and March 2020, and for periods between September 2020 and May 2021. In or around the spring or summer 2021 Mr. MacNeil purchased a car for Tyler and he arranged for Tyler to have accommodations available to him in Wolfville, Nova Scotia year round. He argued that Ms. Yeadon’s contact with Tyler was greatly reduced. 1.

Change of circumstances [ 18 ] Has there been a change of circumstances which would allow me to complete a retroactive re-calculation of child support between January 2017 and October 1, 2019? (

a) Was there a full and final agreement regarding child support for the period between January 1, 2017, and September 1, 2019, as suggested by Mr. MacNeil? (

b) Did Mr. MacNeil fail to fully disclose financial information to Ms. Yeadon? Were the tax returns Mr. MacNeil suggested he provided to Ms. Yeadon in 2016, to assist her in remortgaging her home, sufficient disclosure upon which Ms. Yeadon could come to a fully informed agreement with Mr. MacNeil regarding ongoing child support in a shared parenting arrangement? Did Mr. MacNeil engage in blameworthy behaviour? (

c) Did Ms. Yeadon delay unnecessarily in bringing an application? (

d) Will the children benefit from a retroactive award back to January 1, 2017? (

e) Will Mr. MacNeil experience undue hardship if ordered to pay a retroactive award?

[ 19 ] Ms. Yeadon argued that Mr. MacNeil’s failure to disclose his annual guidelines’ income for child support, as ordered in the parties’ Corollary Relief Order, and his failure to disclose information regarding his means and circumstances as required pursuant to the Guidelines , should be considered blameworthy behaviour which prevented her from determining a fair amount of child support pursuant to

section 9 of the Guidelines . [ 20 ] Was the disclosure as suggested by Mr. MacNeil, of his personal tax documents alone in 2016, sufficient to displace the requirement to disclose sufficient information to complete a “ Contino analysis,”: 2005 SCC 63 . Conway v. Conway , 2011 ABCA 137 ; Woodford v. MacDonald , 2014 NSCA 31 ; Wolfson v. Wolfson, 2021 NSSC 260 ; and Donner v. Donner , 2021 NSCA 30 . [ 21 ] Mr.

MacNeil suggested there were a number of changes of circumstances since 2011, but he argued that the parties had come to various agreements regarding child support up to September 1, 2019, and they should be respected. He argued that the only disagreement between the parties was with respect to the amount of child support he would pay to Ms. Yeadon when the parties’ eldest child started his post-secondary program in Wolfville, Nova Scotia. [ 22 ] Mr. MacNeil argued that Ms. Yeadon delayed, and he suffered prejudice due to her delay.

He indicated he had not received a request for additional financial information or notice of Ms. Yeadon’s intention to seek an increase in child support or to seek a retroactive variation of child support back to January 1, 2017, until after his application was filed in October 2019. [ 23 ] Mr. MacNeil suggested that he relied on what he believed was their agreements and he argued he was entitled to some predictability in the process. Given the following: the disparity in the parties’ incomes; the child support payments paid by Mr. MacNeil being significantly below the set-off; and Mr.

MacNeil’s ready access to legal information or advice, Mr. MacNeil’s argument that he and Ms. Yeadon were equally prejudiced due to lack of disclosure by both parties, is not persuasive. [ 24 ] Mr. MacNeil made representations about various agreements the parties had reached, for instance: (

a) In January 2015 Ms. Yeadon agreed to accept child support from Mr. MacNeil in the amount of $2,600.00. The parties shared expenses 50/50. (

b) The parties agreed to increase child support to $2,700.00 in 2016. The parties shared expenses 50/50 (

c) They agreed to an increase in child support to $2,750.00 in 2017, and I understood Mr. MacNeil began paying his proportionate share, or the majority of the children’s expenses at that time. Mr. MacNeil suggested the agreement they reached in 2017, was subject to review should the children no longer reside with either parent. [ 25 ] There is no evidence to suggest Mr. MacNeil provided Ms.

Yeadon with the information necessary for her to consider their relative means and circumstances, and their respective standards of living when the parties moved to a 40/60 shared parenting arrangement in 2011 or when they moved to a 50/50 parenting arrangement in 2017. Ms. Yeadon was not in a position to calculate the set-off or what a proportionate share of expenses ought to be. [ 26 ] Leading up to the parties’ eldest child heading off to university in September 2019 Mr. MacNeil suggested child support should be reduced from a low of $2,750 to $1,375.00 from September 1, 2019, onward.

He stated he would pay all Tyler’s post secondary and other expenses directly. Ms. Yeadon did not agree with Mr. MacNeil’s proposal. [ 27 ] Ms. Yeadon requested increased prospective child support, and a retroactive recalculation of child support to January 1, 2017. She argued that between 2014 and September 2019, she had been provided with limited financial disclosure from Mr. MacNeil and their agreements should not be binding. [ 28 ] Ms. Yeadon has argued that Mr.

MacNeil’s failure to disclose financial information is – in and of itself – blameworthy conduct allowing me to complete a retroactive recalculation of child support retroactive to January 1, 2017. She argued that the lack of information or the misinformation regarding Mr. MacNeil’s annual guidelines’ income, and his means and circumstances, and Mr. MacNeil’s threat of a counter application for primary care of the parties’ children, amounted to blameworthy behaviour by Mr. MacNeil. Corollary Relief Order [ 29 ] Ms. Yeadon stated, in part, in her written submissions: (

a) The CRO established his income for table support purposes at $210,000.00 and this figure was established on March 31, 2010, based on accrual income from 2009. (

b) Per the CRO (and incorporated minutes of settlement) the parties agreed that Mr. MacNeil would pay monthly child support of $2,100.00 until December 2012; then $2,300.00 until December 2015; at which point child support would be varied either by agreement or court order. (

c) Mr. MacNeil was ordered, per the CRO, to provide Ms. Yeadon with his income tax returns each and every year. (

d) The only tax returns Ms. Yeadon was ever provided with were for 2013 and 2014 when the parties were discussing the level of support in 2015. (

e) In December 2015 Mr. MacNeil began paying child support of $2,700.00 per month; his income that year was $374,602.00 ($283,790 in dividend income, grossed up by a factor of 1.32). The Guideline support for 2 children at that income level is $4,505.00 per month (based on the 2011 Tables in effect at that time). (

f) During 2016 Mr. MacNeil maintained his child support payments at $2,750 per month; his income that year was $361,467 ($273,839 in dividend income, grossed up by a factor of 1.32). The Guideline support for 2 children at that income level is $4,356.00 per

month (based on the 2011 Tables in effect at that time). (

g) During 2017 Mr. MacNeil maintained his child support payments at $2,750.00 per month; his income that year was$500,071.28. The Guideline support for 2 children at that income level is $5,936.00 per month (based on the 2011 Tables in effect forthe majority of that year). (

h) Mr. MacNeil never provided Ms. Yeadon with his income tax returns – either corporately or personally – beyond 2014. (

i) And Mr. MacNeil’s annual income has, for every year since 2015, vastly exceeded the $210,000.00 that was attributed tohim in the CRO. [30] In 2019, when Mr. MacNeil requested child support be reduced to $1,375, Ms. Yeadon registered the parties’ Corollary ReliefOrder from 2011. According to their CRO, Mr. MacNeil is required to pay approximately $2,300.00 in monthly child support until hisapplication to vary is resolved by the court. Analysis [31] Without notice of any change in Mr. MacNeil’s income or his financial circumstances there would be little reason to promptMs.

Yeadon to make an inquiry or to file an application with the court. In Leskun v. Leskun, 2006 SCC 25, the Supreme Court of Canadaapproved the comments of Fraser, J which underscored the critical nature of disclosure, while further noting that the non-disclosinghusband had a poor platform from which to launch an appeal: at para 34, quoting Fraser J. in Cunha v. Cunha (BCSC), 99 B.C.L.R (2d) 93, para.9: Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which areinadequate. It increases the time and expense of litigation.

The prolonged stress of unnecessary battle may lead weary and drainedwomen simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of areasonably-based suspicion that justice was not done. If problems of calculation exist the appellant is largely the author of his own difficulties, I would not interfere on that basis. [32] Mr. MacNeil’s failure to disclose meaningful and full financial information, including information regarding his means andcircumstances, to Ms. Yeadon after 2015, or arguably full information in 2016, meant Ms.

Yeadon was not fully informed and was not ina position to fully consider the implications of

section 9 of the Guidelines. Conclusion change of circumstances [33] Mr. MacNeil failed to fully disclose his financial information to Ms. Yeadon during the relevant period. The tax informationMr. MacNeil reportedly provided to Ms. Yeadon in 2016 was not sufficient financial disclosure to allow Ms. Yeadon to be fullyinformed about Mr. MacNeil’s means and circumstances, before reaching an agreement regarding ongoing child support in a sharedparenting arrangement. [34] Any delay by Ms. Yeadon in notifying Mr.

MacNeil of her intentions to seek a recalculation of child support back to January 1,2017, was the direct result of a lack of timely and meaningful disclosure by Mr. MacNeil. Mr. MacNeil had full knowledge of his meansand his circumstances and it was his obligation to provide sufficient information to Ms. Yeadon. [35] As demonstrated later in this decision through the inclusion of all my calculations, even if I impute income to Ms. Yeadon assuggested by Mr. MacNeil in each relevant year and I account for Dr. Harding’s contributions, the child support paid by Mr.

MacNeilfalls far below the set-off and the child support requested by Ms. Yeadon also falls either near or below the set-off, even if I account foreconomies of scale calculations as of September 2019, when Tyler left for university. In addition, due to the disparity in the parties’incomes, Mr. MacNeil should have always been responsible for around 90% of the children’s expenses. [36] Mr. MacNeil is a lawyer and he is well aware of his obligation to follow court orders and to inform himself about the lawregarding shared parenting.

He had the financial means to obtain legal information and he had ready access to legal information relatedto shared parenting arrangements. He should have known what his legal obligations for disclosure were and he should have known whatamount of child support would likely apply in the parties’ situation. [37] As noted previously, in 2011, without full knowledge of Mr. MacNeil’s financial circumstances the parties moved to a 40/60shared parenting arrangement, Ms. Yeadon continued to pay 50% of the children’s extra expenses which she had been paying since theparties separated in or around 2005.

It was not until September 2017, that Mr. MacNeil began paying 90% of the children’s special orextraordinary expenses. [38] Mr. MacNeil argued that his lifestyle was and is comparable to Ms. Yeadon’s. For example he stated they both had nice homesand they both took the children on vacations. Ms. Yeadon has had to sell her home and now lives in an apartment, she cannot afford asecond home or income property. She has incurred debt. [39] I accept that Ms. Yeadon has incurred debt attempting to provide the children with a lifestyle comparable to the lifestyle Mr.MacNeil adopted over the years.

I find that any debt she has incurred is a direct result of an underpayment of child support by Mr.MacNeil. [40] On the other hand, the lifestyle was well within Mr. MacNeil’s means, allowing him to contribute significant amounts to hisRRSP, to retain over $700,000 in earnings, and to purchase an income earning property. Mr. MacNeil can make choices such as to bemortgage free for instance, significantly reducing his expenses. [41] Mr. MacNeil incorporated his law practice in 2017. It is a “flow through” corporation with very few expenses. In cross-

examination he agreed he had over $700,000 in retained earnings. He will not suffer any hardship if he is required to pay a retroactive award of child support to Ms. Yeadon. [ 42 ] I find the children will benefit from a retroactive award to Ms. Yeadon dating back to January 1, 2017. A retroactive award would place Ms. Yeadon in a better position to provide a comparable living arrangement for the children and to continue to provide various types of support to the children in the future. [ 43 ] In the alternative, I find Ms. Yeadon should not be left in debt while Mr.

MacNeil benefits due to his failure to disclose information and pay an appropriate amount of child support or, historically, due to his failure to pay his proportionate share of special or extraordinary expenses before September 2017. [ 44 ] I find that there has been a change of circumstances related to Mr. MacNeil’s failure to adequately disclose his financial information. I find Ms. Yeadon’s delay in requesting a recalculation of child support is reasonable given the circumstances, that the children will benefit from any recalculation, and that Mr.

MacNeil will not suffer undue hardship if he is ordered to pay a retroactive award. I conclude there is sufficient evidence to authorize me to recalculate child support back to January 1, 2017, as requested by Ms. Yeadon. 2. The Guidelines and

section 9 [ 45 ] Mr. MacNeil stressed that the underlying principle of the Guidelines is that “spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” Divorce Act, s. 26.1(2) . [ 46 ] The Guidelines reflect this principle through these stated objectives, Guidelines , s. 1: (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (

b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. [ 47 ] When there is a shared parenting arrangement, the expectation is that courts will be focussing on “ fairness, flexibility, and recognition of the actual conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, even to the detriment of predictability, consistency, and efficiency to some degree”, paragraph 33 Contino supra . Pursuant to

section 9, predictability must give way to the consideration of the actual means, needs and other circumstances of each spouse. (my emphasis) [ 48 ] I am aware that judicial discretion used under

section 9 of the Guidelines “is intended to be used in a principled manner and to provide a sufficiently reliable and reasonably predictable result to alleviate the economic impact of divorce on the children, while preserving children’s standard of living.

The expectation however, is that the standards of living will be “roughly equivalent”. [ 49 ] As noted by Rollie Thompson in The TLC of Shared Parenting: If there is a strong message coming out of Contino, it is that a child in a shared custody arrangement should not experience significant differences in his or her standard of living when moving back and forth between the two parental households. Contino, supra. There are good policy reasons for this approach, although not elaborated in Contino.

Implicit in a true shared custody arrangement is a greater sharing of parental resources in the interests of the child, with a greater commitment to equality than in other post-separation arrangements.

Then there is a second, more pragmatic reason: a significant differential in household living standards can destabilise the shared arrangement, encouraging the child to shift towards the home with the higher standard .(my emphasis) (32 C.F.L.Q. 343) [ 50 ] I must focus on how the financial arrangements may either enhance or undermine the children’s best interests, and part of that equation is ensuring the children continue to have a meaningful ongoing relationship with both parents. [ 51 ] I need to consider the likely effect of Mr.

MacNeil paying all the children’s expenses, discretionary or not, himself, including the effect of buying Tyler a car and arranging for him to have a year round apartment. What is the likely effect on Tyler’s and Joshua’s relationship with Ms.

Yeadon, if: she does not receive an appropriate amount of child support; she is not involved in financial decisions related to the children including the purchase of a car for Tyler and arranging for Tyler to have other accommodations year round in another community; and she is not in a position to provide a comparable standard of living or assist to pay for the children’s special or extraordinary expenses, discretionary or not. 3.

The set-off as a starting point when assessing the parties’ financial situations when there is a shared parenting arrangement. [ 52 ] The set-off table amounts are a starting point under s. 9. The set-off is considered an “automatic deviation from the method used under s. 3, but not necessarily from the amount of child support”.

The straight set-off is not a complete analysis, and has no presumptive value. [ 53 ] As Bastarache, J stated in Contino, supra: “it does not take into account the actual spending patterns as they relate to variable costs or the fact that fixed costs of the recipient parent are not reduced by the increased spending of the payor parent”, but does consider certain fixed costs of both parents, because the multiplier for increased costs is already built into the straight set-off. (paragraphs 48, 62, and 65 Contino ;)

[ 54 ] To establish the “set-off” as a starting point for the

section 9 analysis under the Guidelines , it is necessary to determine the parties’ respective financial circumstances. [ 55 ] What is Mr. MacNeil’s annual guidelines’ income for child support pursuant to sections 17 – 21 of the Guidelines ? Should income be imputed to Ms. Yeadon to determine her annual guidelines’ income for child support, accounting for spousal support paid to her by Dr. Harding as of January 1, 2019? Mr. MacNeil’s annual guidelines’ income 2019 [ 56 ] When determining Mr.

MacNeil’s annual guidelines’ income for child support, I must consider his income from all sources and sections 17 – 21 of the Guidelines . I must consider: Mr. MacNeil’s income from JDM Law, and any retained earnings; any income shared with persons not at arm’s length; stipends received for work as a member of a board of directors; and income received from rent on a second property such as the property purchased by Mr. MacNeil with Ms. MacNeil in August 2020 (reflected in tax information filed May 17, 2021). October 2019 – December 2019 [ 57 ] Ms.

Yeadon requested an increase in prospective table child support from $2,300 to $4,407 between October 1, 2019, and December 2019. Mr. MacNeil requested a decrease to $1,375 per month. [ 58 ] In 2019 Mr. MacNeil’s line 150 income was $275,513. He split a portion of his income with his wife, he retained earnings of $131,989, and he had an RRSP deduction of $28,500, all of which impacted on the overall annual guidelines’ income Mr. MacNeil had available to pay child support. I have determined his annual guidelines’ income for child support accordingly. [ 59 ] Based on Mr.

MacNeil’s annual guidelines’ income for child support for 2019, and based on the various imputed incomes which have been suggested could be attributed to Ms. Yeadon for 2019, I have included examples, for illustrative purposes only, of the possible set-off table amount child support calculations for prospective child support in 2019, with one child attending university away from home 3 months of the year beginning in September 2019, using the economies of scale approach: $35,000 in 2019 imputed to Ms. Yeadon + $19,200: (

a) Imputing an annual income for child support of $35,000 + $19,200 as Ms. Yeadon suggested, to Ms. Yeadon, the set-off child support payment would be $6,535 x 3 = $19,605, two children, and $4061 x 3 = $12,183, one child. (

b) To determine the additional amount allotted for the second child using the “economies of scale approach”, Sadkowski v. Harrison-Sadkowski 2008 ONCJ 115 , the two-child amount $19,605 is subtracted from the one child amount $12,183 = $7,422. In many cases when a child is living away from home to attend a post secondary program for eight months of the year, the child support attributable to the second child, $7,422 is reduced by half to $3,711, during the months the child is away, to avoid double payment of certain expenses such as meals. (

c) Child support for a second child is not completely eliminated while the child attends a post secondary program away from home, recognizing that parents are still welcoming the child home during school breaks, holidays, some weekends, and for four months in the summer, recognizing the parents are maintaining a home for the child to come home to. (

d) Adding the $12,183 for one child to the reduced amount of $3,711 for the second child, for a total $15,894 / 3 months or $5,298 per month for the period between October 2019 and December 2019. Stated differently: $4,061 per month for the 1st child and a reduced $1,237 per month in child support for the 2nd child, for a total monthly payment of $5,298. $70,000 in 2019 imputed to Ms. Yeadon + $19,200 (

a) Imputing an annual income for child support of $70,000, Ms. Yeadon suggested she may have earned if she had continued in her field + $19,200, to Ms. Yeadon, the set-off child support payment would be $6,058 x 3 = $18,174 for two children and $3754 x 3 = $11,262 for one child: $18,174 - $11,262 = $6,912 / 2 = $3,456. The set-off child support amount is $11,262 + $3,456 = $14,718 / 3 = $4,906 per month between October 2019 and December 2019, or $3,754 per month for the 1st child, $1,152 per month for the second child, for a monthly payment of $4,906. $98,101 in 2019 imputed to Ms. Yeadon + 19,200 (

a) Imputing an annual income for child support of $98,101 to Ms. Yeadon, somewhere in between the two incomes suggested by Mr. MacNeil (of $90,067.50 in the first six months of 2019 or $105,954.25 in the last six months) + $19,200, would result in a set-off of $5,714.00 x 3 = $17,142 for two children and $3,533 x 3 = $10,599 for one child: $17,142 - $10,599 = $6,543 /2 = $3,271.50.

The set- off child support amount is $10,599 + $3,271.50 = $13,870.50 / 3 = $4,623.50 per month between October and December 2019, or $3,533 per month for the 1st child, $1,090.50 per month for the second child, for a monthly payment of $4,623.50. [ 60 ] I find Mr. MacNeil’s annual guidelines’ income for 2019 is $593,297.00, attracting a set-off table amount of $4,521 for one child, and $7,308 for two children. The set-off amount accounting for economies of scale with one child away at school would be between a high of $5,298 and a low of $4,623.50 depending on the income imputed to Ms. Yeadon. Ms.

Yeadon requested an increase in prospective table child support from $2,300 to $4,407 between October 1, 2019, and December 2019. As noted above, Mr. MacNeil requested a decrease to $1,375 per month. Mr. MacNeil’s annual guidelines income for 2020

[ 61 ] Ms. Yeadon requested an increase in prospective table child support to $5,318 between January 1, 2020, and June 1, 2020, and an increase to $4,307 between July 2020 and December 2020. Mr. MacNeil requested a decrease to $1,375 per month. [ 62 ] In 2020 Mr. MacNeil’s line 150 income was $302,931. He split a portion of his income with his wife, he retained earnings of $249,786, he received rental income of $11,230 between August 2020 and December 2020, he received income as a board member, and he had an RRSP deduction of $27,300. All of which impacted the overall annual guidelines’ income Mr.

MacNeil had available to pay child support. I have adjusted his annual guidelines’ income for child support accordingly. [ 63 ] Based n Mr. MacNeil’s annual guidelines’ income for 2020 and based on the various imputed incomes which have been suggested could be attributed to Ms.

Yeadon for 2020, I have included examples, for illustrative purposes only, of the possible set-off table amount child support calculations for prospective child support in the first six months of 2020, accounting for one child in university and living on campus January to March 2020, continuing to rely on the economies of scale calculation for the entire period, his return home at the end of March or over the school break April 2020 through August 2020: $35,000 in 2020 imputed to Ms. Yeadon + $19,200: (

a) Imputing an annual income for child support of $35,000 as Ms. Yeadon suggested + $19,200, to Ms. Yeadon, the set-off child support payment would be $10,071 x 12 = $120,852 for two children - and $6241 x 12 = $74,892 for one child. $120,852 – $74,892 = $45,960 / 2 = $22,980. The set-off child support amount is $74,892 + $22,980 = $97,872 / 12 = $8,156, or $6,241 per month for the 1st child and $1,915 per month for the 2nd child. $70,000 in 2020 imputed to Ms. Yeadon + $19,200 (

b) Imputing an annual income for child support of $70,000 as Ms. Yeadon suggested she may have earned if she had continued in her field + $19,200, to Ms. Yeadon, the set-off child support payment would be $9,594 x 12 = $115,128 for two children and $5935 x 12 = $71,220 for one child: $115,128 - $71,220 = $43,908 / 2 = $21,954. The set-off child support amount is $71,220 + $21,954 = $93,174 / 12 = $7,764.50 per month or $5,935 per month for the first child and $1,829.50 per month for the second child. $105,954.25 in 2020 imputed to Ms. Yeadon + $19,200 (

c) Imputing an annual income for child support of $105,954.25 to Ms. Yeadon, as suggested by Mr. MacNeil + $19,200, would result in a set-off of $9,153.00 x 12 = $109,836 for two children and $5,652 x 12 = $67,824 for one child: $109,836 - $67,824 - $ = $42,012 /2 = $21,006. The set-off child support amount is $67,824 + $21,006 = $88,830 / 12 = $7,402.50 per month between January and May 2021, or $5,652 per month for the 1st child and $1,750.50 per month for the 2nd child. [ 64 ] Mr.

MacNeil’s annual guidelines’ income for 2020 is $888,025.00, attracting a set-off table amount of $6,702 for one child and $10,844 for two children. The set-off amount, accounting for economies of scale with one child away at school would be between a high of $8,156 and a low of $7,402.50 depending on the income imputed to Ms. Yeadon. Ms. Yeadon requested an increase in prospective table child support to $5,318 between January 1, 2020, and June 1, 2020, and an increase to $4,307 between July 2020, and December 2020. Mr. MacNeil requested a decrease to $1,375 per month. Mr.

MacNeil’s annual guidelines income for 2021 onward [ 65 ] Ms. Yeadon requested an increase in prospective table child support to $7,061 between January 1, 2021, and May 1, 2021, and onward after that. Mr. MacNeil has requested a decrease to $1,375 per month. [ 66 ] For Mr. MacNeil’s 2021 income, I have considered that he will likely split a portion of his income with his wife, he may retain earnings of approximately $249,786, he may receive income as a board member, and he may decide to continue with another RRSP deduction in the vicinity of $27,300. Regarding the rental income Mr. MacNeil and / or Ms.

MacNeil received of $11,230 between August 2020 and the end of 2020: for 2021, I have attributed a very conservative rental income of $22,000. The above factors impact on the overall annual guidelines’ income Mr. MacNeil has available to pay child support in 2021. I have adjusted his annual guidelines income for child support for 2021 accordingly. [ 67 ] Based on Mr. MacNeil’s projected annual guidelines’ income for 2021, and based on the various imputed incomes which have been suggested for Ms.

Yeadon, I have included examples, for illustrative purposes only, of the possible set-off table amount child support calculations for prospective child support in 2021, accounting for one child attending school away from home and continuing to live in residence until April, 2021, and they are: $35,000 in 2021 imputed to Ms. Yeadon + $19,200: (

a) Once again, imputing an annual income for child support of $35,000 as Ms. Yeadon suggested, + $19,200 to Ms. Yeadon, the set-off child support payment would be $10,201 x 5 = $51,005 for two children - and $6,322 x 5 = $31,610. $51,005 - $31,610 = $19,395 / 2 = $9,697.50. The set-off child support amount is $31,610 + $9,697 = $41,307 / 5 = $8,261.40 between January and May 2021, $6,322 per month for the 1st child and $1,939.40 per month for the 2nd child. $70,000 in 2021 imputed to Ms. Yeadon + $19,200: (

b) Imputing an annual income for child support of $70,000 as Ms. Yeadon suggested she may have earned if she continued in her field + $19,200, to Ms. Yeadon, the set-off child support payment would be $9,724 x 5 = $48,620 for two children and $6015 x 5 = $30,075 for one child: $48,620 - $30,075 = $18,545 / 2 = $9,272.50. The set-off child support amount is $30,075 + $9,272.50 = $39,347.50 / 5 = $7,869.50 per month between January and May 2021, $6015 per month for the fist child and $1,854.50 per month for the 2nd child. $105,954.25 in 2021 imputed to Ms. Yeadon + $19,200:

(

c) Imputing an annual income for child support of $105,954.25 to Ms. Yeadon, as suggested by Mr. MacNeil + $19,200, would result in a set-off of $9,283.00 x 5 = $46,415 for two children and $5,732 x 5 = $28,660 for one child: $46,415 - $28,660 = $17,755 / 2 = $8,877.50. The set-off child support amount is $28,660 + $8,877.50 = $37,537.50 / 5 = $7,507.50 per month between January and May 2021, $5732 per month for one child and $1,775.50 per month for the second child. [ 68 ] Mr.

MacNeil’s annual guidelines’ income for 2021 is $898.795, attracting a set-off table amount of $6,782 for one child and $10,974 for two children. The set-off amount, accounting for economies of scale with one child away at school would be between a high of $8,261.40 and a low of $7,507.50 depending on the income imputed to Ms. Yeadon. Ms. Yeadon requested an increase in prospective table child support from $2,300 to $7,061, beginning January 1, 2021. Retroactive Recalculation Mr. MacNeil’s guidelines annual income for 2017 [ 69 ] Ms.

Yeadon requested a retroactive increase in the table amount of child support to $4,356 between January 1, 2017, and November 2017 (adjusted for changes to the tables in December 2017). [ 70 ] I have relied on Mr. MacNeil’s line 150 income of $500,071 included on his tax return. I have also taken into consideration that Mr. MacNeil split a portion of his income with his wife, and he had an RRSP deduction of $177,000 in 2017. [ 71 ] Based on Mr. MacNeil’s annual guidelines’ income and the suggested imputed income amounts for Ms.

Yeadon, included to illustrate the difference in set-off amounts depending on what income is notionally imputed to Ms. Yeadon, the following set-off amounts may be used notionally as a starting point to calculate child support: $35,000 in 2017 imputed to Ms. Yeadon: (

a) For January 2017 through November 2017, with Ms. Yeadon’s income imputed at $35,000 as suggested by Ms. Yeadon, the set-off would be $5,993.00 per month. $70,000 in 2017 imputed to Ms. Yeadon: (

b) For January 2017 through November 2017, with Ms. Yeadon’s income imputed at $70,000 as she suggested she might have earned had she continued working in her field, the set-off would be $5,527 per month. $75,000 in 2017 imputed to Ms. Yeadon (

c) For September 2017 through November 2017, with Ms. Yeadon’s income imputed at $75,000 as suggested by Mr. MacNeil, the set-off would be $5,459.00 per month. [ 72 ] Mr. MacNeil’s annual guidelines’ income for 2017, is $527,336, attracting a table amount of $6,516 for two children. The set- off is between a high of $5,993 and a low of $5,459.00 depending on the income imputed to Ms. Yeadon. Ms. Yeadon requested an increase in prospective table child support from $2,700 or $2,750 to $4,356 between January 1, 2017, and December 2017 (adjusted for the change in tables in December 2017). Mr.

MacNeil’s guidelines annual income for 2018 [ 73 ] In 2018 Ms. Yeadon requested an increase from $2,750 to $6,189 between January 1, 2018, and the end of that same year. [ 74 ] Mr. MacNeil’s line 150 income was $336,106. In addition, Mr. MacNeil split a portion of his income with his wife, he retained earnings of $81,797, and he had an RRSP deduction of $26,563, all of which impacted on the overall annual guidelines’ income Mr. MacNeil had available to pay child support. [ 75 ] Based on Mr. MacNeil’s annual guidelines’ income for 2018 and based on various imputed incomes which could be attributed to Ms.

Yeadon for 2018 included here for illustrative purposes only, the following are several possible set-off points to notionally begin calculations for 2018: $35,000 in 2018 imputed to Ms. Yeadon (

a) Imputing an annual income of $35,000 as suggested by Ms. Yeadon, to Ms. Yeadon, the set-off child support payment would be $6,159 per month. $70,000 in 2018 imputed to Ms. Yeadon (

b) Imputing an annual income of $70,000 as Ms. Yeadon suggested she might have been able to earn if she had continued in her field, to Ms. Yeadon, the set-off child support payment would be $5,693 per month. $75,250 in 2018 imputed to Ms. Yeadon (

c) Imputing $77,250 to Ms. Yeadon, as suggested by Mr. MacNeil, would result in a set-off of $5,595 per month. [ 76 ] Mr. MacNeil’s annual guidelines income for 2018, is $541,189, attracting a table amount of $6,682 for two children. The set- off amount would be between a high of $6,159 and a low of $5,595.00 depending on the income imputed to Ms. Yeadon. Ms. Yeadon requested an increase from $2,750 to $6,189 between January 1, 2018, and the end of that year.

Mr. MacNeil’s annual guidelines income January through September 2019 [ 77 ] Ms. Yeadon requested an increase in prospective table child support from $2,700 or $2,750, to $6,163 between January 1, 2019, and the end of September 2019. [ 78 ] Earlier in my decision I found that in 2019 Mr. MacNeil’s line 150 income for 2019 was $275,513, that he split a portion of his income with his wife, he retained earnings of $131,989, and he had an RRSP deduction of $28,500. All of which impacted on the overall annual guidelines’ income Mr.

MacNeil had available to pay child support and I adjusted his income accordingly. [ 79 ] Based on Mr. MacNeil’s annual guidelines’ income for 2019, and based on the various imputed incomes which could be attributed to Ms. Yeadon for 2019, included for illustrative purposes only, I found the possible table amount child support calculations for the retroactive portion of 2019 are as follows: $35,000 in 2019 imputed to Ms. Yeadon + $19,200 (

a) January through August 2019, imputing an annual income for child support of $35,000 as Ms. Yeadon suggested, to Ms. Yeadon, the set-off child support payment would be $6,535 per month between January 2019 and August 2019. (

b) For September 2019 only, subtract the two-child amount of $6,535 – from the one child amount of $4,061 = $2,474 / 2 = $1,237. The adjusted amount, using the economies of scale approach, accounting for Tyler starting university would be $4,061 + $1,237 = $5,298 per month. $70,000 in 2019 imputed to Ms. Yeadon + $19,200 (

c) January through August 2019, Imputing an annual income for child support of $70,000 as Ms. Yeadon suggested she could have earned if she had continued working in her field, to Ms. Yeadon, the set-off child support payment would be $6,058 per month. (

d) For September 2019 only, subtract the two-child amount of $6,058 – from the one child amount of $3,754 = $2,304 / 2 = $1,152. The adjusted amount, using the economies of scale approach, accounting for Tyler attending university would be $3,754 + $1,152 = $4,906 per month. $98,011 in 2019 imputed to Ms. Yeadon + $19,200 (

e) January through August 2019, imputing $98,101 to Ms. Yeadon, would result in a set-off of $5,595.00 per month. (

f) September 2019 only, subtract the two-child amount of $5,714 – from the one child amount of $3,533 = $2,181 / 1 = $1,090.50. The adjusted amount, using the economies of scale approach, accounting for Tyler attending university that month would be $3,533 + $1,090.50 = $4,623.50 per month. [ 80 ] Mr. MacNeil’s annual guidelines income for 2019 is $593,297, attracting a table amount of $4,521 for one child and $7,308 for two children. (

a) January through August 2019, the set-off amount would be between a high of $6,535 and a low of $5,595. (

b) September 2019 only, the set-off amount with economies of scale calculation would be between a high of $5,292 and a low of $4,623 when Tyler was away for school. Should I impute an income to Ms. Yeadon? [ 81 ] The parties’ Minutes of Settlement dated March 31, 2010, state in part at (

j) under Child Support: (iv) In the event that Julie shall ever challenge the support payments on any grounds, Jamie shall have the right to argue that Julie’s income ought to be imputed to full time employment for all relevant time periods. [ 82 ] The above noted calculations illustrate that despite income being imputed to Ms. Yeadon in various amounts (+ spousal after January 1, 2019), even if imputed in the amount suggested by Mr. MacNeil, that Mr.

MacNeil’s payment of $2,750 up to September 2019, and $2,300 during other relevant periods, did not come close to the set-off amounts for a shared parenting arrangement. Ms. Yeadon’s past work experience and other circumstances [ 83 ] Julie Yeadon was approximately 30 years old when the parties separated in 2015. Ms. Yeadon has past work experience as a clinic support representative, a clinic manager, and as an office manager. [ 84 ] Mr. MacNeil suggested that after the parties separated Ms.

Yeadon did not consistently work outside the home until she began working as a clinic manager between August 2011 and May 2017. Mr. MacNeil suggested that thereafter “she worked for approximately 8 months as a clinic manager for Ohana Health and Wellness Centre and then as a district manager at Unified Health Clinics Inc until November 2018.” [ 85 ] Ms. Yeadon disagreed with some aspects of Mr. MacNeil’s characterization of her work history. Ms.

Yeadon stated that she did work at her “dream job” 30 hours per week at a health and wellness centre for three months between July and November 2018, but she was “laid off”. She reported earning a salary based on $50,000 per year at that time.

[ 86 ] Ms. Yeadon does not believe she could earn more than $70,000 in retail management even if she had stayed in that industry. She explained she moved into the “holistic industry,” but she is not qualified to work in a doctor’s office. She indicated that in 2019 she applied for a job at the IWK but was not hired. [ 87 ] Ms. Yeadon indicated she was working as a lunch monitor and also did some work as a substitute with the Halifax Regional Centre for Education. She stated she was looking for full time employment. [ 88 ] Ms.

Yeadon reported earning the following income between 2015 and 2020: (a) 2015 $34,538; (b) 2016 $20,181; (c) 2017 $8,423; (d) 2018 $25,450; (e) 2019 $33,046; and (f) 2020 $18,266, for an average of $23,317. Children were living primarily with Ms. Yeadon – 2005 - 2011 [ 89 ] The parties’ initial parenting agreement assigned Ms. Yeadon as the primary parent, in 2005 and was in place until the parties agreed to move to a 40/60 parenting arrangement in 2011. [ 90 ] Bastarache J. suggested in Contino , supra : [55] … a variation of a prior support arrangement will usually raise different considerations from a

section 9 application where no prior order or agreement exists. In the former case, the recipient parent, when he or she first got custody, may have validly incurred expenses based on legitimate expectations about how much child support would be provided. These expenses should be taken into consideration and a court should have proper regard to the fixed costs of the recipient parent. [ 91 ] As noted earlier in this decision, Ms. Yeadon had primary care of the children between 2005 and 2011. She may have had expectations that she would continue to be the children’s primary care parent. When Ms.

Yeadon agreed to the increases in the children’s time with Mr. MacNeil, she should have been able to do so assuming the parties’ respective homes would have relatively equal standards of living according to

section 9 of the Guidelines . [ 92 ] At trial in May 2021, Mr. MacNeil suggested that in order to maximize her earning potential Ms. Yeadon should have arranged to leave the children with family while she worked full time to maximize her earning potential. However, despite the clear disparity between the parties’ incomes, Mr. MacNeil did not suggest he had been prepared to pay for the children to attend a day care or to pay for after school care, and until 2017 he paid only 50% of the children’s special or extraordinary expenses. [ 93 ] Mr.

MacNeil stated: …there were lots of family available to assist with child-care, including her own mother and my parents who were retired and who the Respondent depended on numerous times to babysit for her after we separated. [ 94 ] The option to have family care for the children on a consistent full-time basis was not pursued by either party. He suggested Ms. Yeadon could have relied on other family to “babysit”. [ 95 ] Perhaps an acknowledgment that Ms. Yeadon’s role as a primary parent may be “preventing” Ms.

Yeadon (the Respondent) from working during the weekdays when the children were very young and before both the children attended school,” Mr. MacNeil stated, possibly in the alternative: Once our youngest child Josh attended grade Primary and they were both then in school full time, there was nothing preventing the Respondent from working during the weekdays. [ 96 ] Their youngest child, Josh, born in 2004 would have been eligible to attend elementary school in or around 2009 or 2010, just before Mr. MacNeil started sharing the care of the children with Ms. Yeadon 40/60. [ 97 ] Mr.

MacNeil’s wife, Bernadette MacNeil, stated that she and Mr. MacNeil began living common law in November 2008, when her children were approximately 13 and 16 years old (in junior high and high school). She has stated that “she has ongoing support obligations to her own children, but no legal support obligations to Mr. MacNeil’s children.” [ 98 ] Mr. and Ms. MacNeil began living together just prior to the parties’ youngest son, Josh, starting school, when Bernadette MacNeil’s children were approximately 14 and 17 years of age. Mr.

MacNeil did not have primary care responsibility for his children or shared care before they reached elementary school. Ms. MacNeil did not start living with him until her children were in junior high and high school. He has never had primary responsibility for preschool aged children. Once his children began spending 40% of the time with him in 2011, Ms. MacNeil was living in his home. [ 99 ] Mr. MacNeil suggested Ms. Yeadon could have asked him, or she could have applied to the court to change their parenting agreement at any time. Mr. MacNeil suggested:

In addition, the joint custody scheduled could have been modified at any time to accommodate any desire by the Respondent to become self-sufficient and work full-time; at no time did the Respondent ever request such a change. In fact, I requested changes to the

schedule many times throughout the years to allow for the boys to spend more time with me so the Respondent was well aware the boys could have stayed with me more often. [ 100 ] Again, his argument is not relevant as the change did not occur. [ 101 ] Mr. MacNeil suggested further: Once the children were in Junior High and able to stay home alone, there would have been no need for the Respondent to be at home with them and would have been able to work any schedule. [ 102 ] Regardless of whether Ms.

Yeadon earned $35,000 or $100,000 or even $150,000, despite her historic role as the children’s primary caregiver, Mr. MacNeil’s earning capacity far exceeded and continues to far exceeds hers. With shared parenting the court has an obligation to ensure “standards of living are roughly equivalent”. Although I am prepared to impute an income to Ms. Yeadon, I find Mr. MacNeil has placed undue focus on her income rather than a true “Standard of Living” analysis. [ 103 ] Mr.

MacNeil went on to state: …The Respondent’s choice to remain unemployed and / or underemployed had no bearing on my career one way of the other; as stated above my own parents were always available to take care of the boys, and since 2008, my wife at times also would have been available until they were old enough to come home after school on their own.

To the contrary, I would have preferred the Respondent be a contributing member of society and work to self-sufficiency to provide a good role model for our children. [ 104 ] The priority, according to their initial traditional parenting agreement, was not to maximize Ms. Yeadon’s earning potential, and as noted, even if they had, it would not have come anywhere near Mr. MacNeil’s earning capacity. The suggestion that Ms. Yeadon is not or has not been “a contributing member of society” or a “good role model” for her children is hurtful, regardless of circumstances. [ 105 ] Ms.

Yeadon had responsibility as a primary caregiver in a “single parent household” between 2005 and 2014, or until Dr. Harding moved in with her in 2014, and despite Mr. MacNeil’s ability to provide child support according to his annual guidelines’ income and cover expenses proportionate to his income, Ms. Yeadon received minimal financial assistance from Mr. MacNeil, with the parties paying equally for special expenses between 2005 and September 2017. [ 106 ] Mr. MacNeil’s earning capacity was never negatively affected by his children, or by Ms. Yeadon, or by Ms.

MacNeil and her children, but it was arguably enhanced by them. On the other hand, Ms. Yeadon’s income earning potential, although just a fraction of Mr. MacNeil’s, was compromised by the parties’ initial traditional parenting agreement which was in effect between 2005 and 2011. Thereafter, I find Ms. Yeadon’s efforts to maintain a standard of living she could not afford, based on the child support she was receiving from Mr. MacNeil, has the potential to lead to repercussions which could persist for Ms.

Yeadon in terms of consequences to her employability or maximum earning potential, and her long term financial security. [ 107 ] Mr. MacNeil expressed frustration that at around the same time the parties’ children were at an age when they could, arguably, return to an empty home, which is a decision parents would need to make based on each child’s particular needs and strengths, Isla was born. Mr. MacNeil criticized Ms.

Yeadon’s decision to have another child when he suggested she had a pre-existing responsibility to become self sufficient and to assist financially with the parties’ two children as much as possible. He requested income be imputed to Ms. Yeadon. [ 108 ] Mr. MacNeil argued in part the following: Ms. Yeadon has not acted in the best interests of the parties’ children and has chosen to ignore her obligation to financially support them going back many years. [ 109 ] Mr. MacNeil argued that income should be imputed to Ms.

Yeadon as follows: (a) $75,000 in 2017; (b) $77,250 in 2018; (c) $90,067.50 January to August 2019; (d) $105,954.25 September to December 2019; (e) $105,954.25 in 2020; and (f) $105,954.25 January to May 2021. [ 110 ] Notably, Mr. MacNeil’s current wife has reported incomes which are lower than Mr. MacNeil is asking that I impute to Ms. Yeadon. They are lower despite Ms. MacNeil’s testimony that she “worked full-time since I graduated from post-secondary education at the age of 21.” [ 111 ] As suggested above, even if I impute income to Ms. Yeadon as suggested by Mr. MacNeil, and I impute $150,000 to Dr.

Harding notionally (accounting for child support and spousal support paid to Ms. Yeadon), the increase in child support Ms. Yeadon is seeking from Mr. MacNeil, both retroactively and prospectively is still near or below the set-off or the set-off adjusted by the economies of scale approach after Tyler started his post secondary studies. [ 112 ] To illustrate my point further, for 2017, 2018, 2019, 2020 and 2021. Mr. MacNeil suggested his payment of $2,700 in 2017 and

2018, $2,750 as of January 2019 to August 2019 and suggested payment of $1,375 beginning September 2019 is sufficient : (

a) imputing an income of $75,000 to Ms. Yeadon for 2017, the set-off child support payment is $5,459 (she asked for $4,356); Mr. MacNeil’s proportionate share of expenses would have been 87.5% (he paid 50%); (

b) imputing an income of $77,250 to Ms. Yeadon for 2018, the set-off child support payment is $5,595 (she asked for $6,189), Mr. MacNeil’s proportionate share of expenses would have been 87.55% (he paid 50%) and I believe the elevated request, slightly above the set-off, was related to an error re: line 150 income relied on that year by Ms. Yeadon); (

c) imputing an income of $98,011 to Ms. Yeadon for 2019, the set-off child support payment is $3,533 for one child, $5,714 for two children (she asked for $6,163 for the first 9 months and $4,407 for the last three months), Mr. MacNeil’s proportionate share of expenses would have been 83.5% (he began paying 90% later in 2019); (

d) imputing an income of $105,954.25 to Ms. Yeadon for 2020, the set-off child support payment is $5,652 for one child, $9,153 for two children (she asked for $5,318 for the first 6 months and $4,307 for the last six months), Mr. MacNeil’s proportionate share of expenses would have been 87.6%; and (

e) imputing an income of $105,954.25 to Ms. Yeadon for 2021, the set-off child support payment is $5,732 for one child, $9,283 for two children, (asking $7,061 going forward), Mr. MacNeil’s proportionate share being 87.8%. [ 113 ] The set-off calculated based on the parties’ annual guidelines’ incomes far exceeds the child support of $2,700 paid by Mr. MacNeil January 1, 2017 through January 2019, and $2,750 paid to August 2019, and the set-off far exceeds the $1,375 Mr. MacNeil has suggested he should pay starting September 1, 2019. Conclusion Ms. Yeadon’s income [ 114 ] Mr.

MacNeil has advanced arguments asking me to impute an income to Ms. Yeadon. In addition, Mr. MacNeil has also asked me to draw an adverse inference regarding: Ms. Yeadon’s ongoing relationship with Dr. Harding, Dr. Harding’s failure to testify in this matter; and the level of financial support Dr. Harding provides to Ms. Yeadon [ 115 ] Ms. Yeadon suggested an income of approximately $30,000 should be imputed to her. In every instance parents are expected to earn an income commensurate with their age, earning capacity, and circumstances. Ms.

Yeadon’s income does have a slight impact on the set-off and can also be used to calculate the parties’ proportionate share of other expenses (non-fixed). [ 116 ] I accept that Ms. Yeadon would likely be earning approximately $70,000.00 if she had continued to work in the same industry she had been working in prior to having her children with Mr. MacNeil. However, I find that Ms. Yeadon did not continue to work in that industry and did not maximize her income due to her commitment as a primary caregiver. I find Ms. Yeadon is not presently able to earn $70,000 from traditional employment.

I impute an income of $35,000 to Ms. Yeadon for 2017 and 2018; an income of $35,000 + $19,200 spousal from Dr. Harding = $54,200 for 2019, 2020 and 2021. [ 117 ] Mr. MacNeil argued: Ms. Yeadon made a conscious choice to re-partner and have another child, but that choice did not negate her obligation to financially support the parties’ children. A support payor’s obligations to a first family take priority over subsequent obligations to a second family.

When a support payor voluntarily seeks to reduce his / her obligation to his / her first family, they should be subjected to a microscopic examination of his / her finances and financial choices when the decision to have another family was made. [ 118 ] Given the evidence before me, including Ms. Yeadon’s age, her work experience and her circumstances, I have imputed an income of $35,000 to Ms. Yeadon. In addition based on Mr. MacNeil’s request for me to draw an adverse inference: due to Dr. Harding not testifying; given the existing close financial relationship between Ms. Yeadon and Dr.

Harding; and given the ongoing supportive financial relationship between Ms. Yeadon and Dr. Harding, I have notionally imputed an income of $150,000 to Dr. Harding during the entire period in question 2017 – 2021. I have accounted for both spousal support and child support paid by Dr. Harding to Ms. Yeadon after January 1, 2019, and notionally prior to that. [ 119 ] I have accounted for Ms. Yeadon’s unique financial scenario. Despite accounting for each of Mr.

MacNeil’s arguments, the child support paid by him January 2017 through to the date of trial in May 2021, falls far short of the set-off, or the-set-off with economies of scale analysis after September 2019. Agreement between Ms. Yeadon and Dr. Harding [ 120 ] Mindful that Dr. Harding is not a party to these proceedings, but also considering Ms. Yeadon failed to ensure he was available to be cross-examined, I have drawn an adverse inference for the purpose of illustration only and I have notionally imputed an income of $150,000.00 to Dr. Harding. In 2019 Ms. Yeadon and Dr. Harding decided Ms.

Yeadon would not work outside the home. Their decision facilitated Ms. Yeadon’s and Isla’s travel between Halifax, Nova Scotia and Prince Edward Island for Ms. Yeadon’s parenting time and Isla’s sibling time with Tyler and Joshua, and for Dr. Harding’s parenting time with Isla. [ 121 ] Ms. Yeadon indicated that she pays her expenses in Halifax, Nova Scotia with the support she receives from Dr. Harding. She suggested Dr. Harding was paying her approximately $500 per month in child support and $1,500 per month in spousal support which she claims as income.

She stated that the total amount of support is based on $2,000.00 in child support and Dr. Harding’s income of $100,000.00. Dr. Harding was not available to testify. 9(b) [ 122 ] When considering an analysis under

section 9(b), I must consider the means and the circumstances of the parties and their

children. I must consider if there are any “increased expenses for two households - duplications and other incremental costs inherent in shared custody and whether the expenditure by one decreases the expenditure of the other.” [ 123 ] I must ask: are two households more expensive than one due to duplicated fixed costs and the loss of economies of scale? I have been cautioned that “budgets alone are an incomplete and sometimes misleading snapshot of the real situation”.

I find budgets are not particularly helpful in this case. [ 124 ] In The TLC of Shared Parenting: Time, Language and Cash, Rollie Thompson provided a helpful breakdown of three kinds of spending undertaken by parents: Thompson, “Case Comment: Contino v. Leonelli-Contino ” (2003), 42, R.F.L. (5th) 326 : fixed and duplicated expenses, like housing utilities, furniture and household effects, and fixed part of motor vehicle costs, some part of clothing costs, and some toys and personal effects.

Second, there are variable costs that do vary with time, like food, the variable part of transportation costs, some aspects of child care, most recreation and entertainment expenses, vacation costs, and some school costs. Finally, there are costs that don’t fit either category, that tend to be “lumpy” and not related to time: most clothing, some medical expenses, a bunch of minor extracurricular and school related expenses. Most

section 7 expenses would fall into this latter category. In shared custody situations, fixed costs tend to be similar for both parents and what’s mostly left are variable costs that do shift as the child spends more time with a parent. (32 C.F.L.Q. at pages 327 and 328) [ 125 ] Fixed costs have been similar for both parties, however, their ability to comfortably pay for fixed costs or any extra expenses, were and are worlds apart. [ 126 ] In his brief filed May 10, 2021, Mr. MacNeil enumerated the various expenses he paid on behalf of the children. In his written submissions filed June 9, 2021, Mr.

MacNeil calculated the total expenses he paid for each year being considered, and he provided a separate total for post secondary school expenses he paid for Tyler’s first two years of school. I have considered these in my calculations in either 9(b), or (c), or both as necessary. They were included in my calculations using DivorceMate software and will not be reproduced here. [ 127 ] As noted previously, when Mr. MacNeil assumed at least 40% of the care of the children in 2011, he was paying, and he continued to pay only 50% of any special or extraordinary expenses. Mr.

MacNeil did not take on the majority of the expenses for the children until in or around September 1, 2017. Per Contino , supra : [52] This does not mean that the payor parent is in effect spending more money on the child than he or she was before shared custody was accomplished. [ 128 ] However “not all increases in costs will result directly from the actual amount of time spend with the child.”. The court must “examine the budgets and actual child-care expenses of each parent” and “expenses will be apportioned between the parents in accordance with their respective incomes”. Para 53 Contino [ 129 ] Mr.

MacNeil was easily able to cover any fixed costs which arose as a result of him spending increased time with the children. In addition, I find that although Mr. MacNeil took on the majority of the child related expenses in or around September 2017, that those expenses were costs he was easily able to cover. [ 130 ] It was only in or around September 2019, that Mr. MacNeil suggested he should pay all the children’s expenses directly to the children’s service providers, or on behalf of the children. Apparently, Mr. MacNeil would prefer not to transfer child support to Ms.

Yeadon for her to pay for the children’s expenses. [ 131 ] 115. In Contino , supra , Bastarache J., stated : 2.2.2

Section 9(b) — Increased Costs of Shared Custody Arrangements 52 What should the courts examine under this heading?

Section 9(

b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons. First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne , at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child.

The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report , at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(

b) recognizes that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody: Slade v. Slade , at para. 17; see also Colman , at pp. 71-74; Wensley , at pp. 83-85. Consequently, all of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than he or she was before shared custody was accomplished.

As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes. [ 132 ] As noted, Mr.

MacNeil has always been more than able to cover or absorb any fixed costs related to the children living with him for any percentage of time. [ 133 ] The Supreme Court of Canada in Contino stated: 53 A change in the actual amount of time a payor parent spends with a child will therefore give rise under s. 9(

b) to an inquiry in order to determine what are, in effect, the additional costs incurred by the payor as a result of the change in the custodial arrangement. I say this because not all increases in costs will result directly from the actual amount of time spent with the child. One parent can simply

assume a larger share of responsibilities, for school supplies or sports activities for example. For these reasons, the court will be called upon to examine the budgets and actual child care expenses of each parent. These expenses will be apportioned between the parents in accordance with their respective incomes. [ 134 ] If the expenses are apportioned according to the parties’ incomes, even if Ms. Yeadon’s and Dr. Harding’s incomes are imputed, Mr. MacNeil’s portion of expenses should still be approximately 90%. [ 135 ] It’s not a question of whether Mr.

MacNeil has assumed a larger proportion of the children’s expenses, he should have been doing so since 2005. Ms. Yeadon is not requesting the court recalculate any special or extraordinary expenses. The issue of what Mr.

MacNeil actually paid in child support and expenses since 2005 is still relevant when considering fairness, flexibility, and the recognition of the actual conditions, means and needs and other circumstances of each spouse and of any child for whom support is sought. [ 136 ] The parties did not disagree regarding the type and the amount of certain expenses paid for the children since January 2017, including but not necessarily limited to the following: health related; sport related; and other regular expenses such as cellular telephones, gym memberships, Apple music subscriptions, and driver training courses. Ms.

Yeadon has raised a question about whether Mr. MacNeil should be entitled to make unilateral decisions about the children’s financial needs and how they are going to be met, without consultation with her. [ 137 ] The real question is whether, with a shared parenting arrangement, it is in the children’s best interests for Mr. MacNeil to pay all the children’s expenses directly to service providers. I must consider for instance Mr.

MacNeil’s most recent decisions, to buy a car for Tyler and to pay for Tyler to have year round accommodations in Wolfville, Nova Scotia, and how that could impact on the time Tyler spends with Ms. Yeadon. The parties have agreed and this court has found it is in both Tyler’s and Joshua’s best interests to spend approximately equal time with both parents. 9 (c) [ 138 ] When considering an analysis under 9(c), I must consider the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, keeping in mind how any increased expenses are being apportioned.

I must also consider the “Standard of Living” for the children in each household. [ 139 ] In Contino , paragraph 54 , Bastarache, J. refers to an

article by , Professor C. Rogerson at pp 20-21 where the author suggests: …that increased time spent with the children does “not necessarily translate into a dollar for dollar reduction in expenditures by the primary custodial parent, many of whose major child-related costs are fixed – such as housing and transportation; any savings will typically be only with respect to a small category of expenditures for food and entertainment.

Particularly in cases where there is a significant disparity in income between the parents , reductions in the basic amount of child support may undermine a lower-income custodial parent’s ability to make adequate provision for the child or children, and will certainly exacerbate the differences in standard of living between the two parental homes . (My emphasis). [ 140 ] Bastarache, J. continued at paragraph 54: Indeed, irrespective of the residential arrangement, it is possible to presume, in the absence of evidence to the contrary, that the recipient parent’s fixed costs have remained unchanged and that his or her variable costs have been reduced only modestly by the increased access.

Thus, when no evidence is adduced, the court should recognize the status quo regarding the recipient parent. [ 141 ] Mr. MacNeil did not request a decrease in child support when the parties moved from a 40/60 to a 50/50 arrangement in September 2017. In fact, in 2017, and again in early 2019, Mr. MacNeil increased his child support payments. [ 142 ] Pursuant to 9(

c) I must consider the following and any other relevant factors: (

a) The actual spending patterns of the parents; (

b) The ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities), I have found Mr. MacNeil is better able to bear any increased costs of shared parenting; (

c) The standard of living for the children in each household; (

d) Any special or extraordinary expenses usually considered under

section 7 of the Guidelines or any in addition to those enumerated in

section 7; (

e) The discretion of the court should not result in hardship; (

f) Which expenditures are not the same for both households and the duplication of many fixed costs; (

g) The ratio of income between the parties; (

h) The net worth of each party and ability to absorb increased costs; and (

i) If there has been a variation from a long-standing status quo, and the history of support paid. [ 143 ] Fish J. in his dissent at paragraph 145 of the decision in Contino , emphasized that two non-numerical factors must also be considered by me under 9(c), and that they must be weighed judicially: (

a) The situation prior to shared custody, and

(

b) The net worth of the parents. (

i) Assets may create for parents an opportunity to generate income, increasing their “means’ and their ability to provide for the child. (para 147) (ii) A heavy debt load may require a larger proportion of the parent’s income be put in the service of those debts, decreasing that parent’s ability to contribute to child-care. (para 147) (iii) Income disparity relevant to a fair apportionment of the total child care expenses and duplicated fixed costs. (para 148) [ 144 ] Given the disparities between the parties’ incomes, the parties’ respective personal and financial circumstances, and the historical roles played by each party in providing financial support to the children, and meeting their children’s various needs, I must determine the appropriate amount of child support to be paid between January 2017, and May 2021, and onward. 2017 [ 145 ] Specific figures/inputs used in calculating the party’s net disposable income (NDI), and special expenses apportioning for 2017: (

a) For Mr. MacNeil: Employment income $500,071; other non-taxable income (auto grossed up) of $12,542 (income share); special expenses paid of approximately $3,073 (medical); $8000 (extracurricular); RRSP deduction $177,000; Ms. MacNeil’s net income of $53,655 (cash flow increase); payments Ms. MacNeil made on behalf of her children $5,075 (cash flow deduction). (

b) For Ms. Yeadon: Employment income of $35,000; Dr. Harding’s net income $71,223 (after imputing an income of $150,000); and notional child-care amount of $2,642 yearly. [ 146 ] Considering a shared parenting arrangement of 40/60 until August 2017 and 50/50 thereafter, and imputing Ms. Yeadon’s income at various levels: (

a) at $35,000 the set-off would be $5,993; the parties’ net disposable incomes (NDI) would be 47.1% / 52.9%; and special expenses apportioning 93.8% / 6.2%; (

b) at $70,000 the set-off would be $5,527; NDI 46.3 / 53.7, and special expenses apportioning $88.3% / 11.7%; and (

c) at $75,000 the set-off would be $5,459; NDI 46.2 / 53.8; and special expenses apportioning 87.5% / 12.5%. [ 147 ] Ms. Yeadon’s request of $4,356 falls below the set-off amounts noted above for each imputed income level calculated $5,993 - $5,459.

I find the amount requested, $4,356 is appropriate given the means, needs and circumstances of all involved, and to adjust the NDI closer to 50%. 2017 Full His – set off Her Asking Difference Jan – Dec $35,000 $6516 $5993 $523.00 $4356 - 2750 ($1,606 x 12) expenses 50/50 until September Jan – Dec $70,000 $6516 $5527 $989.00 Jan – Dec $75,000 $6516 $5459 $1057.00 [ 148 ] I order Mr.

MacNeil to pay $4,356 per month January 1, 2017, and the end of December 2017, or $19,272 in retroactive support for the 12 months. 2018 [ 149 ] Specific figures/inputs used in calculating the net disposable income (NDI), and special expenses apportioning for 2018: (

a) For Mr. MacNeil: Employment income $336,106; other non-taxable income (auto grossed up) of $12,542 (income share); special expenses paid of approximately $3,073 (medical); $6838 (extracurricular); RRSP deduction $26,563; Ms. MacNeil’s net income of $58,807 (cash flow increase); payments Ms. MacNeil made on behalf of her children $5,075 (cash flow deduction). (

b) For Ms. Yeadon: Employment income of $35,000 or $70,000 or $77,250; Dr. Harding’s net income $71,223 (after imputing an income of $150,000); and notional child-care amount of $2,642 yearly. [ 150 ] Considering a continued shared parenting arrangement, using the above noted figures / inputs for 2018, except to alter Ms. Yeadon’s income: (

a) at $35,000 the set-off would be $6,159; NDI 57.1% / 42.9%; and proportionate expenses of 93.9% / 6.1%; (

b) at $70,000 the set-off would be $5,693; NDI 56.0% / 44.0%; and proportionate expenses of 88.5% / 44%; and (

c) at $77,250 the set-off would be $5,595; NDI 55.8% / 44.2%, and proportionate expenses 87.5% / 12.5%.

[ 151 ] Ms. Yeadon’s request for child support of $6,189 is slightly above the set-off amounts noted above for each income. Given the means, needs and circumstances of all involved I find a child support payment of $6,159 is appropriate. 2018 Full His – set off Her Asking Difference Jan – Dec $35,000 $6682 $6159 $523 $6189 ask - $6159 - $2750 = $3,409 $40,908 Jan – Dec $70,000 $6682 $5693 $989 $6189 $35,316 Jan – Dec $75,250 $6682 $5595 $1,087 $6189 $34,140 [ 152 ] I order Mr. MacNeil to pay $6159 per month January 1, 2018, through the end of December 2018, based on Ms.

Yeadon’s income imputed at $35,000, $3,409 x 12 = $40,908 for the period between January 2018, and the end of December 2018. January to August 2019 [ 153 ] Specific figures/inputs used in calculating, the net disposable income (NDI), and special expenses apportioning for 2019: (for two children, with economies of scale calculation completed separately for the period starting September 1, 2019): (

a) For Mr. MacNeil: Employment income $275,513; other non-taxable income (auto grossed up) of $12,542 (income share); retained earnings

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