Almon v Hill, 2022 NSSC 310

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Almon v Hill , 2022 NSSC 310 Date: 20221031 Docket: 55162 Registry: Sydney Between: Lorelle Almon Applicant v. Joseph Kevin Hill Respondent Library Heading Judge: The Honourable Justice Pamela Marche Heard: October 6, 2022, in Sydney, Nova Scotia Final Written Submissions: October 17, 2022 Written Decision: October 31, 2022 Subject: Imputation of Income – failure to disclose past business and personal income information; Imputation of income – intentional unemployment; Retroactive s. 7 claim (orthodontic treatment); Imputation of income – recalculation authorization order

Summary: Ms. Almon asked the court to vary child support prospectively, to order Mr. Hill to contribute, retroactively, to a past s. 7 cost (orthodontic treatment) and for enrollment in the Nova Scotia Administrative Recalculation of Child Support Program. Mr. Hill did not disclose past income information and claimed to have no current income due to health reasons. Ms. Almon asked the court to impute income to Mr. Hill. Issues:

(1) Has there been a change in circumstances?

(2) Should income be imputed?

(3) Should a retroactive s. 7 award be granted?

(4) Can a child support order based on imputed income be enrolled in the Administrative Recalculation of Child Support Program? Result: Past income was imputed to Mr. Hill because he failed to disclose business and personal income information. The court did not accept that Mr. Hill was unable to obtain this information from his former common-law partner and bookkeeper. Current income was imputed to Mr. Hill because he was found to be intentionally unemployed. Mr. Hill’s unemployment was not reasonable based on an assessment of the circumstances. Mr.

Hill failed to prove that health reasons prevented him from working. Privacy rights do not reduce the burden of proving health reasons prevent employment. Mr. Hill’s decisions to relocate and to remain unvaccinated, and any corresponding reduction of income, were not reasonable given his obligation to pay child support. Mr. Hill’s failure to disclose income information constituted blameworthy conduct. Ms. Almon’s retroactive s. 7 claim was allowed. The parties were ordered to share the expense proportionately based on their 2018 incomes.

Nothing in the Administrative Recalculation of Child Support Regulations prevents a recalculation authorization order from being issued if income is imputed in accordance with the applicable Guidelines . However, the Recalculation Clerk does not have authority to impute income to a payor, if the payor submits income information as required on the review date. Given this case involved intentional unemployment, and Mr. Hill’s income information for 2022 to date would indicate he has no income, a recalculation authorization order was not appropriate. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Almon v Hill , 2022 NSSC 310 Date: 20221031 Docket: 55162 Registry: Sydney Between: Lorelle Almon Applicant v. Joseph Kevin Hill Respondent Judge: The Honourable Justice Pamela Marche Heard: October 6, 2022, in Sydney, Nova Scotia Written Release: October 31, 2022 Counsel: Emma Astephen for the Applicant Joseph Kevin Hill, Self-Represented By the Court: Overview [ 1 ] This decision addresses imputation of income in two circumstances: failure to disclose and intentional unemployment. The failure to disclose pertains to Mr.

Hill’s past business and personal income. The issue of intentional unemployment, and consequential analysis of the reasonableness of the circumstances surrounding Mr. Hill’s employment status, relates to Mr. Hill’s current income. [ 2 ] Lorelle Almon and Joseph Kevin Hill have two dependant children. Ms. Almon asked the court to vary child support prospectively, to order Mr. Hill to contribute, retroactively, to a past s. 7 expense (orthodontic treatment) and for enrollment in the Nova Scotia Administrative Recalculation of Child Support Program. [ 3 ] Mr.

Hill says he has no current source of income and has been unable to work since moving back to Nova Scotia in 2020. He claims poor physical and mental health prevent him from earning income. Mr. Hill acknowledges he had been self-employed as a consultant in the Alberta oil industry. Mr. Hill cites a break-up, and corresponding lack of communication with his former common-law partner and bookkeeper, as the reason why he could not provide personal or business income information for the years 2018-2020. [ 4 ] Ms. Almon is asking the court to impute income to Mr.

Hill because of his failure to disclose and because she believes he is intentionally unemployed. She argues that Mr. Hill has not proven that he is unable to work due to health reasons. Background and Procedural History [ 5 ] Ms. Almon seeks to vary an order issued on October 15, 2008, pursuant to the Alberta Interjurisdictional Support Order (ISO) Act , which requires Mr. Hill to pay $1,483 per month to Ms. Almon in child support. [ 6 ] The Alberta ISO support order does not specify Mr. Hill’s income but does reference exhibit evidence submitted by Mr. Hill at the hearing.

According to the Alberta court transcript, filed with the Nova Scotia court as part of the ISO process, the exhibit evidence referenced was Mr. Hill’s 2007 Tax Return

Summary reporting an income of $95,885 and a statement of income, prepared by Mr. Hill, in which he estimated his income for 2008 to be $104,103. (An award of $1,483 in child support reflects the table amount of support

based a payor’s income of $104,103 in Alberta in 2008). [ 7 ] Ms. Almon filed a Notice of Variation Application on October 28, 2021, pursuant to s. 37 of the Nova Scotia Parenting and Support Act S.N.S. 2015, c. 44 , (the Act ). The matter was first before the Court in March 2022, to address Mr. Hill’s failure to disclose. The matter was adjourned to April 2022 to allow Mr. Hill an opportunity to consult with legal counsel and file income information. Mr. Hill was advised at that time that a negative inference may be drawn from a failure to disclose. Mr.

Hill was further advised that he was responsible for proving his claim that health issues were preventing him from earning income. [ 8 ] A hearing was held on October 6, 2022. The Court heard from Ms. Almon and Mr. Hill only, upon cross examination of affidavit evidence. The Court invited post hearing written submissions which were received from Ms. Almon but not from Mr. Hill. Issues 1. Has Ms. Almon proven a change in circumstance since the last child support order was issued? 2. Should income be imputed to Mr. Hill? If so, in what amount? What is the corresponding obligation to pay child support? 3. Should Mr.

Hill be required to contribute, retroactively, to a past s. 7 expense? 4. If income is imputed, can the resulting child support order be enrolled in the Administrative Recalculation of Child Support Program? Issue 1 – Has Ms. Almon proven a change in circumstances since the last support order was issued? Position of the Parties [ 9 ] The question of whether there was a change in circumstances was not raised by either party, but the Court must still be satisfied that there has been a change in circumstances before varying a support order.

Applicable Law [ 10 ] Pursuant to s. 37(1) of the Ac t , I may make an order varying, rescinding or suspending, prospectively or retroactively, a support order where there has been a change in circumstances since the making of the last support order. Section 37(2) states I must apply s. 10 of the Act when making a variation with respect to child support. Section 10(1) of the Act requires me to determine child support in accordance with the Guidelines . [ 11 ]

Section 14 of the Nova Scotia Provincial Child Support Guidelines (the Guidelines) made pursuant to the s. 55 of the Act , supra, identifies, for the purposes of s. 37 of the Act , the circumstances that will give rise to a variation of a child support order. If child support was determined by an applicable table, a change of circumstance is any change that will result in a table amount different than previously ordered.

If child support was not determined by an applicable table, then a change of circumstance is any change in the condition, means, needs or circumstances of a parent or any child who is entitled to support. Findings [ 12 ] It is not entirely clear, on the face of the 2008 Alberta ISO order, that child support was based on an applicable table, although this would seem likely based on information discernable from the court record.

It is difficult, however, to cite a difference in the table amount of child support as demonstrative of the requisite change in circumstances when income is not readily known, or imputation is at issue. That said, Mr. Hill’s reported income for 2021, although contested by Ms. Almon, on it’s face would result in a change in the table amount of support. At any rate, Ms.

Almon’s retroactive s. 7 claim falls outside the scope of a table amount analysis. [ 13 ] I move, then, to assessing whether there has been a change in the condition, means, needs or circumstances of either party or dependent child since the last child support order. There has been. Mr. Hill relocated from Alberta to Nova Scotia in 2020 and is no longer employed. Ms. Almon incurred s. 7 expenses. Issue 2 – Should income be imputed to Mr. Hill? If so, in what amount? What is the corresponding obligation to pay child support? Position of the Parties Position of Ms. Almon [ 14 ] Ms.

Almon is asking the Court to impute income to Mr. Hill because of his failure to disclose personal and business financial information for the years 2018-2020 and because she believes he is currently intentionally unemployed. She argues that Mr. Hill did not prove health reasons prevent him from earning income. [ 15 ] Ms. Almon submits income should be imputed to Mr. Hill in the amount of $104,000 based on

(1) Mr. Hill’s historical earnings while employed as a derrickhand in Alberta and (2) statistical data, namely the Government of Canada Job Bank, which reports the current hourly wage rate for a derrickhand in Nova Scotia to be between $20 and $48.27 per hour. Position of Mr. Hill [ 16 ] Mr. Hill claims he is unable to provide personal and business financial records for the years 2018-2020 because of the relationship breakdown with his former common law partner and bookkeeper, Jill McMullen. Mr. Hill claims Ms. McMullen has possession of this documentation which he is unable to retrieve due to his limited communication with Ms. McMullen.

[ 17 ] Mr. Hill is unemployed and reports no current source of income. His Notice of Assessment for 2021 reflects an annual income of $2,496. [ 18 ] Mr. Hill says he moved back to Nova Scotia from Alberta in 2020 after the breakdown of his common law relationship because of ongoing mental health issues and a desire to be with his aging family after working in the Alberta oil industry for 21 years. Mr. Hill argues that opportunities to work in the oil industry are limited in Nova Scotia. He claims he would require additional training and certification to work in the oil industry here. [ 19 ] Mr.

Hill claims to be unable to work to due medical reasons. He argues that surgery, required because of kidney cancer, has limited his ability to work. He also claims mental health issues, namely depression and social anxiety, negatively impact his ability to earn an income. Mr. Hill refuses to disclose details of his medial conditions claiming Ms. Almon has no reason or right to be informed of his personal and private medical conditions. [ 20 ] Mr. Hill also argues his ability to work in the oil industry is limited because he is unvaccinated. Mr.

Hill cites s. 7 of the Canadian Charter of Rights and Freedoms as affording him the freedom of choice to remain unvaccinated. Mr. Hill claims Covid regulations and mandates have caused a spike in his mental health issues and that he is in therapy to address his depression and social anxiety. [ 21 ] Mr. Hill claims his ability to work is further negatively impacted because the Director of the Maintenance Enforcement Program has suspended his driver’s license as an enforcement action for non-payment of child support. Mr.

Hill raised other concerns about the efficacy and fairness of the Maintenance Enforcement Program (MEP), arguing that Ms. Almon should not be enrolled in that program. Mr. Hill’s disagreements with MEP are not relevant to the determination of the issues of this case. Applicable Law Obligation to Disclose Income Information [ 22 ] In Colucci v. Colucci , 2021 SCC 24 , the Supreme Court of Canada confirmed that adequate, accurate and timely financial disclosure is critical to determining child support in a manner that is fair and effective.

Full and frank disclosure is the cornerstone of the child support regime in Canada. Disclosure is crucial to ensuring that child support is paid commensurate with income. Without disclosure there is an information asymmetry that favors the payor who controls access to the information that is needed to fairly determine child support. [ 23 ] Section 21(2) of the Guidelines sets out the obligation of a respondent to a child support application to disclose income information.

Where a payor is self-employed, this disclosure obligation includes financial statements of the payor’s business and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the payor does not deal at arm’s length. Imputation of Income [ 24 ] Section 19(1) of the the Guidelines directs that a Court may impute income to a parent for the purpose of calculating child support in certain circumstances. I note the two circumstances relevant to this case: 19

(1) The court may impute such amount of income to a parent as it considers appropriate in the circumstances, which circumstances include the following: (

a) the parent is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child to whom the order relates or any child under the age of majority or by the reasonable educational or health needs of the parent; (

f) the parent has failed to provide income information when under a legal obligation to do so; [ 25 ] Justice Forgeron summarized the law of imputation of income in Standing v. MacInnis , 2020 NSSC 304 . The Court must exercise authority to impute income judiciously, with an evidentiary basis and not arbitrarily. The goal of imputing income is to come to a fair and reasonable assessment of income. Imputation of income is not meant to be punitive.

The burden of establishing that income should be imputed rests with the person claiming it should be, but this evidentiary burden shifts to the person claiming they are unable to earn income due to health reasons. Imputation of Income – Failure to Disclose [ 26 ]

Section 23 of the Guidelines provides that I may draw a negative inference against a parent who does not disclose income information. This provision of the Guidelines reflects the findings of the Supreme Court of Canada in Leskun v. Leskun , 2006 SCC 25 . Imputation of Income – Intentional Unemployment [ 27 ] The following principles on intentional under-employment or unemployment may be summarized from the Nova Scotia Court of Appeal decision of Smith v.

Helppi , 2011 NSCA 65 : • A self-induced reduction of income does not justify a reduction in child support, unless the payor establishes that the decision that led to the reduction of income is reasonable in all the circumstances, including the circumstances of the children and their right to a fair standard of child support. • The age, education, experience, skills, and health of the payor, in addition to matters such as availability to work and freedom to

relocate, are among the factors that may be considered in assessing reasonableness of employment status. • It is not necessary to prove a specific intention to avoid a support obligation when assessing whether a payor is intentionally underemployed or unemployed. • There is a duty to seek employment when there is no reason a payor cannot work. Limited work experience or job skills do not justify a failure to pursue employment. Unrealistic or unproductive career goals do not diminish an obligation to pay child support. • A court may impute income in response to persistent unremunerative employment.

Findings [ 28 ] Based on my review of the evidence and my consideration of the law, I make the following findings, first in relation to failure to disclose and then on the issue of intentional unemployment. Findings – Failure to Disclose [ 29 ] Mr. Hill has an obligation to disclose financial information. Given Ms. Almon ‘s retroactive s. 7 claim, and her request that the court consider Mr. Hill’s historical earnings when assessing imputation of income, Mr. Hill was ordered to file personal and business financial records for the years 2018-2020. Mr.

Hill acknowledged during his cross examination that he understood his obligation to disclose. [ 30 ] Mr. Hill failed to disclose financial information for the years 2018-2020 despite being given ample opportunity to do so. I do not accept Mr. Hill’s argument that he was unable to obtain documentation from his former common-law partner, Ms. McMullen. Mr. Hill was told there were legal methods available to him to secure this information. Mr. Hill chose not to do so. [ 31 ] Imputation of income in response to a failure to disclose is discretionary.

The law permits the Court to draw a negative inference against a person who refuses to provide income information. I am prepared to draw the inference that Mr. Hill’s income was at least $104,000 in 2018, 2019 and 2020, given his failure to disclose business and personal financial documentation for those years and given the 2008 child support order was based on Mr. Hill having an income of $104,000. Findings – Intentional Unemployment [ 32 ] In other parts of Canada, it may be necessary to prove an intention to avoid child support before making a finding that a person is intentionally unemployed.

That is not the case in Nova Scotia. In Nova Scotia it is only necessary to prove that the unemployment (or underemployment) is not reasonable under the circumstances. The circumstances to be considered relate not only to the payor. The circumstances of the children, and their right to a fair standard of child support, must also factor into the analytical framework. [ 33 ] I find that Mr. Hill’s lack of income is self-induced, and his unemployment is not reasonable under the circumstances. In making this finding, I have considered factors such as Mr. Hill’s age, education, skills, and health.

I have also contemplated the availability of work, as well as Mr. Hill’s freedom to relocate and remain unvaccinated and his desire to be with his aging family. I have kept in mind, throughout, Mr. Hill’s obligation to support his dependent children. [ 34 ] Mr. Hill is still relatively young, being 45 years old. It is entirely reasonable to expect a person of this age to be working, considering his child support obligations. Mr. Hill has considerable experience in the oil industry. Mr.

Hill testified that he began working in 2001 and worked his way up in that industry from leasehand, to roughneck, to motorman, to derrickhand, to driller, eventually acting as a supervisor. Mr. Hill testified to eventually becoming a consultant owning his own numbered company subcontracting from larger contracting companies within the oil industry during the years 2016-2020. [ 35 ] I find that Mr. Hill did not meet the civil burden of proving his health prevents him from earning income. Mr. Hill entered as evidence, by consent, two letters from his Urologist, Dr.

Hammad Asim, the first letter, dated March 28, 2022, confirmed Mr. Hill had laparoscopic surgery for kidney cancer in February 2022 and should avoid heavy lifting for four months. The second letter, dated September 28, 2022, again referenced Mr. Hill’s February 2022 surgery, and confirmed he was advised against lifting more than 10-15 pounds due to ongoing pain at the incision site. While it is truly unfortunate that Mr. Hill had cancer, it remains incumbent upon him to lead proof sufficient to demonstrate that health reasons prevent him from earning income. I find that Mr.

Hill did not do so. [ 36 ] A third letter, also entered as evidence by Mr. Hill with consent, was from the Mental Health and Addictions Team of the Nova Scotia Mental Health Authority. This correspondence simply confirmed that Mr. Hill did not attend an intake assessment scheduled for March 2022. Mr. Hill swore he was in therapy but did not offer any further detail or proof of his mental health issues and how they affect his ability to earn an income. [ 37 ] Mr. Hill did not call any witnesses to testify to his mental or physical health issues and how they impact upon his ability to earn income. Mr.

Hill did not enter as evidence any of his medical records, other than the correspondence referenced above. Mr. Hill cites a right to privacy as the reason for limiting access to his medical information. Mr. Hill is certainly free to maintain his privacy with respect to his health. However, Mr. Hill’s right to privacy does not diminish his burden to prove that health issues prevent him from earning income. His right to privacy does not outweigh his obligation to pay child support. [ 38 ] I find the evidence offered by Mr. Hill falls short of proving an inability to earn income because of health reasons.

The letter from Mental Health and Addictions offers no relevant evidence. The letters from Dr. Asim do not speak to Mr. Hill’s ability to work, other than a lifting restriction. [ 39 ] Even if I accept that Mr. Hill has a physical constraint (i.e., lifting) related to his health, I do not accept that such a limitation prevents him from working in the oil industry or otherwise. The Court asked Mr. Hill to describe the job demands of being a consultant. Mr. Hill testified that it was a management job, much like being a babysitter. He described being contracted, through the company he

owned, to supervise activities and personnel on location for a larger operating company. He described the monitoring of the activities of others and the compiling and filing of various reports, as his primary role as a consultant. He did not report a lifting requirement. [ 40 ] Furthermore, I do not accept Mr. Hill’s argument that he cannot be employed in Nova Scotia. The court heard no evidence from Mr. Hill regarding any job search in Nova Scotia, within the oil industry or otherwise. [ 41 ] If I did accept that Mr.

Hill could not be employed in Nova Scotia, I would then find his move to Nova Scotia, and consequential unemployment, was not reasonable. Mr. Hill claims he moved because of his mental health issues and because he wanted to be with his aging family. As indicated previously, Mr. Hill failed to provide sufficient evidence to prove he has mental health issues, let alone that those issues in any way necessitated his move to Nova Scotia. Furthermore, other than a simply reference to aging family in his affidavit, Mr.

Hill did not offer evidence in terms of the needs of his aging family that might necessitate a relocation to Nova Scotia. Mr. Hill is certainly free to relocate. However, his move to Nova Scotia is not reasonable if it equates to a lack of income, given Mr. Hill’s obligation to support his children. [ 42 ] Mr. Hill’s argument that his unvaccinated status prevents him from working in the oil industry is also not reasonable. Mr. Hill did not offer evidence to support the fact that being unvaccinated does, in fact, negate employment opportunities within the oil industry.

At any rate, even if I were satisfied that Mr. Hill’s vaccination status negatively impacts his employability, I would not accept his decision to be unvaccinated as being reasonable, given his obligation to pay child support. Counsel for Ms. Almon cited the case of L.S. v. M.A.F 2021 ONCJ 554 as it relates to vaccination and employability, and I accept the conclusion Justice Sherr outlined in paragraph 151: The father also has the choice of getting vaccinated. The father is entitled to his beliefs regarding vaccination, but not as the expense of properly supporting his child. [ 43 ] Mr.

Hill’s argument that the MEP enforcement action of having his driver’s licence suspended prevents him from working in the oil industry is also not reasonable. Mr. Hill testified that, depending on the nature of the contract, the use of a vehicle may or may not be required. At any rate, it is not open to Mr. Hill to argue that a circumstance that occurred from his own wrongdoing, which is the non- payment of child support, now excuses his obligation to pay child support. [ 44 ] Mr. Hill cannot avoid his child support obligation by a self-induced reduction of income. Mr.

Hill is young and has significant work experience within the oil industry. I am not satisfied that health reasons, whether mental, physical, or related to vaccination, prevent his employment within that industry or any other industry. His decision to discontinue his employment is not reasonable. Mr. Hill is intentionally underemployed. [ 45 ] The decision to impute income in response to intentional unemployment is discretionary. I am satisfied that imputing current income to Mr. Hill in the amount of $104,000 is fair and reasonable in the circumstances. Mr.

Hill’s historical earnings and current statistical information support the imputation of $104,000 income to Mr. Hill. [ 46 ] Having found Mr. Hill to have a current income of $104,000, I am ordering that he pay child support in the amount of $1,432 for the support of both children, based on the Nova Scotia table, commencing November 1, 2022, and continuing the first day of each month thereafter. Issue 3: Should Mr. Hill be required to contribute, retroactively, to a past s. 7 expense? Position of the Parties Position of Ms. Almon [ 47 ] Ms.

Almon submits that the parties should share the expense of orthodontic treatment, proportionately, based on their 2018 incomes. Ms. Almon claims she earned $16,336 in 2018. I have imputed 2018 income to Mr. Hill in the amount of $104,000. Based on those figures, Ms. Almon argues that Mr. Hill should be responsible for $6,346 or 86% of the total cost. Position of Mr. Hill [ 48 ] Mr. Hill did not dispute this expense was reasonable and necessary. Applicable Law Retroactive Support [ 49 ] The Supreme Court of Canada in S . (D.B.) v. G. (S.R.), 2006 SCC 37 ( DBS ), considered in Michel v.

Graydon , 2020 SCC 24 , set out factors to consider when assessing whether to award child support retroactively, including: • the reasonableness for delay in seeking support by the recipient; • the presence or absence of blameworthy conduct by the payor; • the circumstances of the child, past and present, considering the child’s standard of living; and • any hardship to the payor occasioned by a retroactive award. [ 50 ] Hardship factors are less significant if the payor engaged in blameworthy conduct. The payment of a retroactive award is not an exceptional remedy.

A support award should be payable from the date the recipient gave effective notice to the payor. It is generally inappropriate to make a retroactive award more than three years prior to the date when formal notice was provided to the payor ( DBS, supra ; Colluci , supra ).

[ 51 ]

Section 7 of the Guidelines provides direction on how the costs of certain expenses should be shared. Section 7(1)(

c) specifies that the court may order a party to cover all or a portion of health-related expenses that exceeds insurance reimbursement by at least $100 annually, including orthodontic treatment, considering the necessity and reasonableness of the expense. The best interests of the child must be considered when assessing necessity.

The means of the parents, including spending patterns prior to separation, must be considered when assessing reasonableness. [ 52 ] Section 7(2) refers to the guiding principle that s. 7 expenses are shared by the parents in proportion to their respective incomes and s. 7(3) provides that s. 7 expenses should be assessed considering any subsidies, benefits or tax deductions or credits. Findings [ 53 ] In December 2018, Ms. Almon entered into an Orthodontic Financial Agreement in relation to one of her dependent children. The total cost of orthodontic services and appliances was $7,380. Ms.

Almon commenced her s. 7 claim on October 28, 2021. The court did not hear evidence as to why Ms. Almon delayed in advancing this claim. I question, in the absence of evidence to the contrary, whether such a delay is reasonable. A payor should be notified of a s. 7 expense immediately and, depending on the circumstances, before the expense is incurred. [ 54 ] I find, however, that Mr. Hill’s failure to disclose financial information constitutes blameworthy conduct. I further find that Mr. Hill has been recalcitrant in his child support obligation. I draw this negative inference due to Mr.

Hill’s failure to disclose, his self- induced reduction of income without reasonable excuse and his accumulation of child support arrears in the amount of $36,890 as of August 1, 2022. [ 55 ] The necessity and the reasonableness of the cost of the orthodontic treatment was uncontested. While perhaps Ms. Almon should have provided Mr. Hill with more notice, she did advance her claim within three years of incurring the expense. Moreover, Mr. Hill has engaged in significant blameworthy conduct. To deny Ms. Almon’s retroactive claim, on the basis that did she not provide sufficient information (i.e., notice) to Mr.

Hill, would be unjust, given his refusal to provide sufficient information (i.e., financial disclosure) to her. [ 56 ] The totality of the circumstances persuades me that is it appropriate to direct that the total cost of the orthodontic treatment, assessed at $ 7,380 (having heard no evidence to the contrary in terms of adjustment for tax implications or otherwise) shall be shared proportionally between the parties based on their 2018 incomes which are found to be $16,336 for Ms. Almon and $104,000 for Mr. Hill. Mr.

Hill is responsible for $6,346 or 86% of the total cost of this s. 7 expense. [ 57 ] I further find that any hardship that might be experienced by Mr. Hill because of this retroactive award will be mitigated by payment of the $6,346 to Ms. Hill in monthly installments of $100.00, commencing November 1, 2022, and continuing every month thereafter, until $6,346 is paid in full. Issue Four: If income is imputed, can the resulting child support order be enrolled in the Administrative Recalculation of Child Support Program? Position of the Parties [ 58 ] Ms.

Almon asked to be enrolled in the Nova Scotia Administrative Recalculation of Child Support Program. Mr. Hill did not advance a position on this issue. The Law [ 59 ] The operation of the Administrative Recalculation of Child Support Program is governed by the Administrative Recalculation of Child Support Regulations ( the Regulations ) made under sections 54A and 55 of the Act , supra . [ 60 ]

Section 9 of the Regulations sets out the circumstances upon which the court must not make a recalculation authorization order: [9] A court must not make a recalculation authorization order in any of the following circumstances: (

a) if either or both the payor and recipient do not ordinarily reside in the Province; (

b) the child support order is an interim order; (

c) there is a shared custody order for a child to whom the child support order applies; (

d) the payor’s annual income is over $150,000, and the amount of the child support ordered was determined under clause 4(

b) of the applicable federal or provincial guidelines; (

e) the child support payable takes undue hardship into account in accordance with

Section 10 of the applicable federal or provincial guidelines; (

f) the financial information indicates that the payor receives income as a self-employed person, as a partner in a partnership, as a person in control of a corporation, or as a recipient of dividend income as referred to in clauses 21(1)(

d) to (

g) of the applicable federal or provincial guidelines; (

g) a child support order applies to a payor who stands in the place of a parent and

Section 3 of the applicable federal or provincial guidelines was not applied to determine the amount of the child support; (

h) the annual income of the payor was determined based on a pattern of income under

Section 17 of the applicable federal or

provincial guidelines; (

i) the amount of the child support ordered was not determined under the applicable federal or provincial guidelines. Findings [ 61 ] Nothing in the Regulations preclude me from making a recalculation authorization order in this case.

Section s. 9(

i) of the Regulations is often cited as to why child support orders involving imputation of income are not accepted for enrolment in the Administrative Recalculation Program. Income was imputed to Mr. Hill under s. 19(1) of the Guidelines , as a finding of fact, and the amount of child support was determined accordingly, under the Guidelines. The child support ordered in this case was determined under the applicable provincial guidelines. [ 62 ] However, as the Regulations currently exist, the Recalculation Clerk does not have discretion to look beyond the 2022 financial information Mr.

Hill would be required to file on the review date in 2023 and this information will likely report zero income for Mr. Hill. I decline, therefore, to authorize to administrative recalculation of child support in this case. Conclusion [ 63 ] Mr. Hill has an imputed income of $104,000 currently and for the years 2018-2020. The Court has imputed income to Mr. Hill because he failed to disclose financial information and because his current unemployment, and corresponding lack of income, is not reasonable after fully assessing the circumstances. [ 64 ] Mr. Hill will pay child support to Ms.

Almon in the amount of $1,432 for the support of both children, commencing November 1, 2022, and continuing the first day of each month thereafter. In addition to the table amount of child support, Mr. Hill will pay Ms. Almon $100 per month until the sum of $6,346 is paid. Nothing in this decision affects the determination or collection of the child support arrears Mr. Hill has previously accumulated. [ 65 ] I would ask that Counsel for Ms.

Almon draft an Order that reflects this decision. [ 66 ] If either party wishes to be heard on costs, they must file a written submission on the issues within 30 days of receipt of this decision. Marche, J.