May O’Toole Petitioner v. Sean O’Toole Respondent Library Heading Judge: The Honourable Justice Ingersoll, 2023 NSSC 356

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: May O’Toole v. Sean O’Toole , 2023 NSSC 356 Date: 20231129 Docket: SFH No. 1201-073571 Registry: Halifax Between: May O’Toole Petitioner v. Sean O’Toole Respondent Library Heading Judge: The Honourable Justice Ingersoll Heard: July 28, 2023, in Halifax, Nova Scotia Written Decision: November 29, 2023

Summary: The Respondent received non taxed compensation as a result of his work out of province. That compensation exceeded his expenses incurred in living working out of province. Income imputed to Respondent for the purposes of calculating his child support obligation. Respondent ordered to pay historic and prospective child support. Respondent ordered to contribute to university expenses for the parties’ daughter.

Key Words: Historic and Prospective Child Support, Table Amount, Special or Extraordinary Expenses, Retroactive Support, Imputation of income Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3 Matrimonial Property Act , R.S.N.S. 1989, c. 275 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: May O’Toole v. Sean O’Toole , 2023 NSSC 356 Date: 20231129 Docket: SFH No. 1201-073571 Registry: Halifax Between: May O’Toole Petitioner v. Sean O’Toole Respondent

Judge: The Honourable Justice Ingersoll Heard: July 28, 2023, in Halifax, Nova Scotia Written Submissions: Philip Whitehead August 3, 2023 Written Release: November 29, 2023 Counsel: Philip Whitehead, for the Petitioner Sean O’Toole, Respondent, Self-Represented By the Court: 1 Introduction [ 1 ] May O’Toole and Sean O’Toole separated in 2018 after a fifteen-year marriage. They have one 19-year-old daughter. [ 2 ] Ms. O’Toole and Mr. O’Toole entered into a Separation Agreement on May 2, 2019, which they amended by an Amending Agreement on June 19, 2020.

They agreed, with respect to their daughter, on joint decision-making, primary care, and parenting time. They also agreed on the distribution of their matrimonial assets and debts. They agreed that no spousal support would be payable by either party. [ 3 ] Neither party seeks to alter the arrangements in place with respect to their daughter. Accordingly, I order the following three arrangements: a. The parties will continue to have joint decision-making responsibility recognizing that their daughter will make her own decisions given her age. b. Ms. O’Toole will continue with primary care. c. Mr.

O’Toole shall have parenting time as arranged directly with their daughter at reasonable times and on reasonable notice. [ 4 ] Ms. O’Toole submits that although the Separation Agreement apportioned responsibility for debts accumulated during the marriage, Mr. O’Toole failed to satisfy his share of those debts forcing Ms. O’Toole to assume sole responsibility for the debts of the marriage. [ 5 ] At trial, the parties agreed that Mr. O'Toole would pay Ms. O’Toole $29,987.12 in satisfaction of the matrimonial debts he failed to pay. I order Mr. O’Toole to pay this amount to Ms.

O’Toole. [ 6 ] Based on the forgoing, I am left to resolve the divorce, historic child support and prospective child support. 2 Mr. O’Toole’s attendance at trial [ 7 ] Mr. O’Toole attended the trial without counsel; he did not tender any affidavit evidence or submissions in advance of, or at the trial. At trial, Mr. O’Toole was cross examined and elected not to cross examine Ms. O’Toole. He did not offer any oral submissions at the conclusion of the trial. He did not respond to Ms.

O'Toole’s post trial submission. 3 Divorce Granted [ 8 ] The parties were married in Nova Scotia on May 13, 2003, and separated on November 17, 2018. Ms. O’Toole filed her Petition for Divorce on July 27, 2021. Mr. O’Toole did not file an Answer. The Petition and the long form marriage certificate were tendered as exhibits. [ 9 ] The parties have not reconciled, and I am satisfied that there is no possibility of reconciliation. At least one of the parties has lived in Nova Scotia continuously since the parties were married.

I am satisfied that the jurisdictional requirements for the granting of a divorce have been met, and there is proof of permanent marriage breakdown. There is no bar to divorce such as collusion, condonation, or connivance. [ 10 ] I grant the divorce. 4 Retroactive and Prospective Child Support [ 11 ] Mr. O’Toole paid child support to Ms. O’Toole in 2021, 2022 and 2023. Ms. O’Toole submits that Mr. O’Toole underpaid

child support in 2021 and overpaid in 2022 and 2023. [ 12 ] To determine Mr. O’Toole’s income for the purposes of fixing his child support obligations, I must start with his line 150 income of his income tax return. I must then adjust, if appropriate in the circumstances, his 2021 line 150 income in accordance with

Schedule III of the Guidelines . Next, I must consider Sections 17 through 20 of the Guidelines and determine, based on the facts of this case, if any adjustments to Mr. O’Toole’s 2021 income are appropriate, and if so in what amount. ( Reid v. Faubert , 2019 NSCA 42 and Vincent v. Vincent , 2012 BCCA 186 ). 4.1 Line 150 Income Not Disclosed [ 13 ] By order dated October 28, 2022, Mr. O’Toole was ordered to file a sworn Statement of Income attaching his three most recent Income Tax Returns, Notices of Assessment, and recent pay stubs. Mr.

O’Toole did not comply with the order; he failed to produce a sworn Statement of Income, or his Income Tax Returns, Notice of Assessments or pay stubs. [ 14 ] Mr. O’Toole’s failure to disclose his Income Tax Returns and Notices of Assessment means that his line 150 income for the years in question is unknown. 4.2 Imputing Income in the Absence of Disclosure [ 15 ] The Guidelines permit me to impute income.

The Guidelines provide a non-exhaustive list of circumstances in which I can impute income, including but not limited to circumstances in which a parent fails to provide income information when under a legal obligation to do so (Subsection 19 (1)(f)). Subsection 19(1) of the Guidelines stipulates that if I impute income, I am to impute an amount that I consider appropriate in the circumstances. [ 16 ] In considering whether to impute income to Mr. O’Toole, and if so in what amount, I am guided by the purposes of the Guidelines which are: 1 The objectives of these Guidelines are (

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

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

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

d) to ensure consistent treatment of parents and children who are in similar circumstances. [ 17 ] Justice Forgeron in Parsons v. Parsons , 2012 NSSC 239 held: 32

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

Callender , 2010 NSCA 49 . [ 18 ] Ms. O’Toole bears the onus to establish evidentiary basis for such a finding ( Coadic v. Coadic , 2005 NSSC 291 at paragraph 12 ). [ 19 ] Mr. O’Toole is employed and earns employment income. Ms. O’Toole subpoenaed a witness from Mr. O’Toole’s employer, McKinnon & Olding Limited. This witness confirmed Mr. O’Toole’s employment income as well as the non-taxable benefits paid to Mr. O’Toole in each of these years. These non-taxable benefits were a Room and Board Benefit and a Non-Tax Travel Expense. 4.2.1 Imputing Employment income [ 20 ] Mr.

O’Toole offered no evidence to refute the evidence offered by his employer or Ms. O’Toole’s submissions regarding imputation of income. [ 21 ] Ms. O’Toole has satisfied her burden of establishing an evidentiary basis to impute employment income to Mr. O’Toole. [ 22 ] Because Mr. O’Toole has not produced his sworn Statement of Income as ordered by the court, I find that is appropriate to impute employment income to Mr. O’Toole for 2021, 2022, 2023 and prospectively and to do so based upon the evidence tendered by his employer’s representative and the oral evidence he offered at trial.

4.2.2 Imputing income from non-taxable benefits [23] Ms. O’Toole submits that Mr. O’Toole’s child support obligations should be based not only on his employment income (lessunion dues) but also upon his non-taxable benefits. [24] Justice Price in the Ontario Superior Court of Justice Decision of Sutton v.

Sutton, 2017 ONSC 3181 considered whether anallowance paid to a parent to offset costs incurred in working away from home should be included within the parent’s income for thepurposes of determining the parent’s child support obligations. [25] Justice Price included that portion of the parent’s living allowance that exceeded the actual expenses incurred. Justice Priceheld as follows: 98 I have considered whether Mr. Sutton's living allowance and Northern Living Allowance should be included in his income.

For thereasons that follow, I conclude that they should be included, with the exception of $1,000 of his Northern resident deduction; althoughsome adjustment is required to reflect the greater expenses which Mr. Sutton reports as attributable to his employment in the North. 99 Courts in British Columbia, Alberta, and Saskatchewan have considered whether to impute income to payors for non-taxable "living-out" and travel allowances received from employers. The B.C. Supreme Court, in Webster v.

Webster (2014), reviewed these decisionsand set out the principles derived from them as follows: I take the following principles from the authorities:

a) generally, a living-out allowance paid for the recovery of work-related travel and living expenses will not be treated as income underthe Guidelines;

b) living-out allowances are intended to compensate the recipient spouse for the extra costs associated with working away from home;

c) In all the cases where courts have excluded living-out allowances from the recipient spouse's Guideline income, there has beensome evidence that the recipient actually incurred extra costs associated with working away from home, although the recipient was notrequired to account for the whole amount of the allowance; and

d) under s. 19(1) of the Guidelines, the court has a broad discretion to impute such amount of income to a spouse as it considersappropriate in the circumstances. The circumstances in which the court may impute income to a spouse specifically enumerated in s. 19 of the Guidelines are non-exhaustive: Nielsen v. Nielsen, 2007 BCCA 604 .

A court may, in an appropriate case, determine whether a living allowance, orsome part of it, should be added back to a spouse's income. [Emphasis contained in the decision.] 100 The court includes in the payor spouse's income, for support purposes, that portion of a "living allowance" or "relocation allowance"that exceeds actual expenses incurred. In the case of a non-taxable allowance, the court may decline to gross-up that portion of theamount received which reflected actual expenses incurred by the payor spouse. Wein J., in Scurci v.

Scurci, (2013), stated: In most cases dealing with the issue of grossing up of income on the basis of a non-taxable allowance, the issue has been determined attrial. In those circumstances, more information is available concerning the actual use of the allowance money so that the added benefit ifany can be determined. In most cases, the money is a reimbursement for actual costs such as the maintenance of a second home closeto work, a living allowance for more expensive costs of living in a particular area, or an offset of extra driving required to returnhome.

In some cases, the legitimate additional expenses were determined to be recovered by not grossing up the pay for income taxes.The cases have been recently reviewed in the decision in Arnott v. Arnott, 2012 ONSC 1822 , at paragraphs 35 to 43. [Emphasiscontained in the decision.] [Footnotes omitted.]

4.3 Room and Board Compensation [ 26 ] The evidence establishes that Mr. O’Toole received a Room and Board Allowance from his employer in 2021, 2022 and 2023 to compensate him for additional or duplicated housing expenses. As will be reviewed in detail shortly, the evidence establishes that the Room and Board Allowance paid to Mr. O’Toole exceeded his additional or duplicated housing expenses. [ 27 ] Ms. O’Toole has discharged the onus upon her of establishing a prima facie case for imputation. I will impute as employment income to Mr.

O’Toole any Room and Board compensation he received which exceeded his actual duplicated housing expenses. 4.3.1 Non-Tax Travel Expense [ 28 ] Mr. O’Toole’s employer also paid him “Non-Tax Travel Expenses” in 2021, 2022 and 2023. The witness from Mr. O’Toole’s employer testified that the Non-Tax Travel Expense compensated Mr. O’Toole for the cost of travelling from Halifax to Québec City or Québec City to Halifax and for the employment income lost due to his travel days. As will be reviewed in detail shortly, the evidence establishes that the Non-Tax Travel Expense paid to Mr.

O’Toole exceeded his actual travel expenses. [ 29 ] Ms. O’Toole says that I should impute as income to Mr. O’Toole that portion of his Non-Tax Travel Expense that exceeded his actual travel costs. I agree. I will impute as employment income to Mr. O’Toole any Non-Tax Travel Expenses he received which exceeded his actual travel expenses. [ 30 ] The portion of Mr. O’Toole’s Non-Tax Travel Expense payment that compensated him for his lost income on his travel days is a form of income replacement that constitute “money available to him for the payment of child support” (See P.W. v C.M. , 2021 NSSC 127 paragraph 19 ).

The portion of Mr. O’Toole’s Non-Tax Travel Expense that compensated him for lost work days should be imputed to him as income and included in his income for the purposes of calculating his child support obligation. [ 31 ] I will now calculate Mr. O’Toole’s income for the purposes of determining his child support obligations in 2021, 2022, to date in 2023 and prospectively. 5 2021 5.1 Employment income [ 32 ] For the year 2021, Mr. O’Toole earned employment income of $110,641.92 and paid $3,931.32 in union dues. 5.2 Room and Board Compensation [ 33 ] Mr.

O’Toole received 2021 Room and Board compensation in the amount of $22,698.00. Ms. O’Toole submits that I should impute as income to Mr. O’Toole his 2021 Room and Board compensation as he did not incur additional living expenses in 2021 due to the fact that his primary residence was in Québec City. Mr. O’Toole did not contest Ms. O’Toole’s characterization of these funds. [ 34 ] I find that Mr. O’Toole maintained a primary residence in Quebec but not in Nova Scotia after February 1, 2021 and as a result, did not incur additional or duplicated housing expenses because of his employment in Québec City. [ 35 ] Mr.

O’Toole did not tender any evidence or submissions to refute Ms. O’Toole’s position and as a result, I am prepared to impute as income to Mr. O’Toole the amount of $22,698.00. I must gross up this amount as it was paid to Mr. O’Toole on a tax-free basis. 5.2.1 Non-Tax Travel Expense [ 36 ] Mr. O’Toole’s employer paid him $10,541.00 in 2021 as compensation for “Non-Tax Travel Expenses”. The witness from Mr. O’Toole’s employer testified that in 2021 Mr. O’Toole received eighteen payments (constituting nine round trips) to compensate Mr.

O’Toole for the cost of travelling from Halifax to Québec City or Québec City to Halifax and to compensate Mr. O’Toole for not being able to work on his travel days. The evidence establishes that Mr. O’Toole was paid for these trips but did not travel between Québec City and Halifax or Halifax and Québec City on all eighteen occasions in 2021. [ 37 ] Ms. O’Toole says that I should accept the amount of $200 per trip (or $3,600.00 in the aggregate) as an estimate of the costs incurred by Mr. O’Toole in travelling back and forth between Halifax and Québec City. [ 38 ] Ms.

O’Toole submits that I should assign travel costs of $200 for each of the eighteen trips as a reasonable allocation of costs which Mr. O’Toole could have incurred. Ms. O’Toole submitted it is approximately a 1,000-kilometer drive between Halifax and Québec City which would cost less than $200 is gas to drive that distance. Travel costs of $200 per trip for eighteen trips would allocate $3,600 toward Mr. O’Toole’s actual expenses and thus not be imputed as income to Mr. O’Toole. [ 39 ] I accept that Ms. O’Toole’s approach of allocating $3600 toward Mr.

O’Toole’s actual travel expenses for trips between Halifax and Québec City is fair for five reasons: a. The absence of any evidence from Mr. O’Toole in respect of his 2021 travel between Halifax and Québec City. b. The absence of any evidence from Mr. O’Toole in respect of his actual travel costs.

c. The driving distance between Halifax and Québec City is approximately 1,000 kilometres and can be driven in one day. d. The fact that Mr. O’Toole maintained a residence in Québec City which supports the inference that he did not make nine round trips, or eighteen separate trips, back and forth to Halifax. e. The $3,600 travel cost allocations become more generous the smaller the number of actual trips back and forth between Halifax and Québec City undertaken in 2021 by Mr. O’Toole. [ 40 ] Mr. O’Toole’s Non-Tax Travel Expense payment has two components – travel costs and lost work day payment.

I have determined that $200 per trip is a fair allocation for travel costs and should not be imputed as income. The balance of the Non-Tax Travel Expense that exceeds his actual expense should be imputed to Mr. O’Toole as income. [ 41 ] I find that the portion of Mr. O’Toole’s Non-Tax Travel Expense that compensated him for the eighteen lost work days is a form of income that should be included in his 2021 income for the purposes of calculating his child support obligation. [ 42 ] I allocate $3,600 of Mr. O’Toole’s 2021 $10,541 Non-Tax Travel Expense payment toward Mr. O’Toole’s 2021 travel costs.

The remainder, $6,941, will not be allocated toward actual expense. Accordingly, I will impute $6,941 to Mr. O’Toole’s 2021 income. I must gross up this amount as it was paid to Mr. O’Toole on a tax-free basis. 6 2021 6.1 2021 Income Conclusion [ 43 ] Based on the forgoing, I find that Mr. O’Toole’s 2021 income was $136,349.32 comprised of employment income of $110,641.92, less union dues of $3,931.32, plus imputed income of $22,698.00 and $6,941. [ 44 ] Mr. O’Toole received the imputed income of $29,718 on a tax-free basis. I must gross up this tax-free income. I find that Mr.

O’Toole’s 2021 income including gross up is $160,256. 6.2 2021 Child Support Payable [ 45 ] Based on this income, Mr. O’Toole’s 2021 monthly child support obligation was $1,317, for an annual child support obligation of $15,804. [ 46 ] The evidence establishes that Mr. O’Toole paid $12,535 in 2021 child support. He underpaid child support in 2021 in the amount of $3,269. 7 2022 7.1 Employment Income [ 47 ] Mr. O’Toole earned 2022 employment income of $112,540.62 and paid union dues that year of $3,784.23. 7.2 Imputed income [ 48 ] Mr.

O’Toole received the Room and Board Allowance and the Non-Tax Travel expense in 2022. 7.2.1 2022 Room and Board Allowance [ 49 ] Mr. O’Toole was paid a 2022 Room and Board Allowance of $32,669. Although he did not file an affidavit, Mr. O’Toole did attend the trial and was cross examined. He testified that for the first six months of 2022 he only had a Québec City residence but thereafter he had a residence in Halifax and Québec City. He testified that his Québec City residence costs him $1,600 per month. [ 50 ] Ms. O’Toole submits that I should impute as income to Mr.

O’Toole his Room and Board Allowance payments up to the end of June as he was not incurring duplicated housing costs. She submits that once he had a home in Halifax that his $1,600 per month housing cost in Québec City should be accepted as an actual expense and deducted from the Room and Board Allowance for a total deduction of $9,600 ($1,600 x 6). She says that any amount of the allowance that exceeds his actual housing costs (of $1,600) should be imputed to him as income. [ 51 ] Ms. O’Toole says that I should impute $23,069 of the Room and Board Allowance as income to Mr.

O’Toole as that is the amount by which the allowance exceeds his actual increased housing costs. [ 52 ] I accept Mr. O'Toole’s submission and impute $23,069, subject to gross up, as 2022 income to Mr. O’Toole. 7.2.2 Non-Tax Travel Expense [ 53 ] Mr. O'Toole was paid 2022 Non-Tax Travel Expense of $10,620 in respect of eighteen possible trips (nine round trips) between Halifax and Québec City.

[ 54 ] Ms. O’Toole submits that I should allocate $200 per trip as Mr. O’Toole’s actual travel expense and impute the rest to him as 2022 income. [ 55 ] Allocating $3,600 of the 2022 $10,620 Non-Tax Travel Expense toward travel costs leaves $7,020 as not allocated toward actual expense. I will impute to Mr. O’Toole’s 2022 income the amount of $7,020, subject to gross up. 7.3 2022 Income Conclusion [ 56 ] Based on the forgoing I find that Mr. O’Toole’s 2022 income was $138,845.39 comprised of employment income of $112,540.62 less union dues of $3,784.23 plus imputed income of $23,069 and $7,020. [ 57 ] Mr.

O’Toole received the imputed income of $30,089 on a tax-free basis. I must gross up this tax-free income. I find that Mr. O’Toole’s 2022 income including gross up is $163,230. 7.4 Child support implications of university attendance [ 58 ] The parties’ daughter graduated from high school in June of 2022 and commenced university in September of 2022. She continued to live with Ms. O’Toole while attending university. [ 59 ] I will not reduce the amount of child support payable by Mr.

O’Toole in 2022 in respect of the parties’ daughter because she had not yet reached the age of majority (she turned nineteen on August 1, 2023). The Guidelines require that the table amount of child support be paid in respect of a child under the age of majority: 3(1) Unless otherwise provided under these Guidelines , the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to which the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

Section 7. 7.5 2022 Child Support payable [ 60 ] Based on this income Mr. O’Toole’s 2022 monthly child support obligation was $1,339 for an annual child support obligation of $16,068. [ 61 ] The evidence establishes that Mr. O’Toole paid $18,122 in 2022 child support. He overpaid child support in 2022 in the amount of $2,054. [ 62 ] Ms. O’Toole does not seek contribution to

Section 7 expenses in 2022. 8 2023 8.1 Employment Income [ 63 ] The evidence does not establish that Mr. O’Toole will earn less in 2023 than he earned in 2022. Therefore, I will impute to Mr. O’Toole as his 2023 employment income an amount equal to his 2022 employment income of $112,540.62 less union dues paid that year of $3,784.23. 8.2 Imputed income [ 64 ] Mr. O’Toole received the Room and Board Allowance and the Non-Tax Travel expense in 2023. 8.2.1 2023 Room and Board Allowance [ 65 ] Mr. O’Toole’s pay records indicate that he continues to receive the Room and Board Allowance.

As I do not have any reason to believe that this payment will change in frequency or amount, I find that is reasonable to assume that he will continue to receive that allowance throughout 2023. Mr. O’Toole testified that he continues to rent apartments in both Québec City and Halifax. [ 66 ] Ms. O’Toole submitted that it was unreasonable for Mr. O’Toole to rent an expensive apartment in Québec City and that he should stay in a hotel and receive his employer’s hotel allowance. I do not accept that Mr. O’Toole should be expected to stay in a hotel in Québec City for months or even years.

It is reasonable for him to rent an apartment. Even though Mr. O’Toole did not file any evidence of his expenses in Québec City, I accept his evidence that he pays $1,600 a month for an apartment there. [ 67 ] Given Mr. O’Toole’s lack of disclosure and absent any evidence to the contrary, it is reasonable for me to find that Mr. O’Toole will receive 2023 Room and Board Allowance in the average amount of $2,722.42 (annual allowance of $32,669 divided by 12 months) and that will spend $1,600 of that amount on his Québec City housing costs. Mr.

O’Toole’s monthly Room and Board Allowance exceeds his expenses by $1,122.42 a month. I will impute that monthly amount to him as income in 2023 subject to gross up.

8.2.2 Non-Tax Travel Expense [ 68 ] Mr. O'Toole was paid 2022 Non-Tax Travel Expense of $10,620 in respect of eighteen possible trips (nine round trips) between Halifax and Québec City. [ 69 ] I accept that Mr. O’Toole will be paid this amount in 2023. [ 70 ] Allocating $3,600 of the anticipated 2023 $10,620 Non-Tax Travel Expense toward travel costs leaves $7,020 as not allocated toward actual expense. I will impute to Mr. O’Toole’s 2023 income the amount of $7,020 subject to gross up. 8.3 2023 Income Conclusion [ 71 ] Based on the forgoing I find that imputing 2023 income of $129,245.39 to Mr.

O’Toole is fair and appropriate given the purposes of the Guidelines , the fact that Mr. O’Toole is working, and his lack of income disclosure. I impute 2023 income to him as follows: $112,540.62, less union dues of $3,784.23, plus imputed income of $13,469 and $7,020. [ 72 ] Mr. O’Toole received the imputed income of $23,489 on a tax-free basis. I must gross up this non-tax income. I find that Mr. O’Toole’s 2023 income including gross up is $145,019. 8.4 2023 Child Support Payable to October 31, 2023 [ 73 ] Based on Mr.

O’Toole’s imputed 2023 income of $145,019 his 2023 monthly child support obligation is $1,204. 8.5 Implications of University attendance [ 74 ] The evidence established that parties’ daughter intended to continue attending university while living with her mother in the fall of 2023. She was under the age of majority until August 1, 2023. I found that Mr. O’Toole was required to pay the full the table amount of child support in respect of the parties’ daughter until she turned nineteen on August 1, 2023. I must consider whether Mr.

O’Toole ought to have paid child support after his daughter turned nineteen. [ 75 ] The Guidelines mandate the following approach when determining child support payable in respect of children over the age of majority: Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [ 76 ] The evidence establishes that Mr. O’Toole’s daughter intended to return to university in the fall of 2023 and continue residing with her mother. [ 77 ] I find that none of Ms. O’Toole’s costs associated with the parties’ daughter changed in 2023. I find that it is appropriate to exercise my discretion and order Mr.

O’Toole to pay the table amount of child support for his daughter as if she were under the age of majority. 8.6 2023

Section 7 expenses [ 78 ] Ms. O’Toole seeks a monthly

Section 7 expense contribution of $609 from Mr. O’Toole. Mr. O’Toole offered no evidence and no submissions regarding

Section 7 expenses. [ 79 ] For the purposes of calculating

Section 7 expenses, I find that Mr. O’Toole’s 2023 income is $129,245.39 and Ms. O’Toole’s 2023 income is $68,000. [ 80 ] I find that it is reasonable to require the parties to fund their daughter's first degree in proportion to their incomes, given their incomes and their daughter’s capacity to earn some income during the summer. (See Selig v. Selig , NSCA 54 at paragraphs 19 and 20). [ 81 ] The uncontested facts establish that the parties’ daughter’s 2022 university costs are $20,675 of which she has contributed $5,000 an amount which I find reasonable.

Her 2023 costs were in part funded by the remaining balance of her RESP ($1,551) and the grant portion of her student loan ($2,195), leaving after tax reduction 2023 university costs of $10,739 to be apportioned between the parties 66% payable by Mr. O’Toole ($590.65 per month) and 34% ($304.28) payable by Ms. O’Toole. 8.7 Combined Table amount of support and

Section 7 expense contribution [ 82 ] Mr. O'Toole’s 2023 monthly child support payment is $1,204 and his monthly

Section 7 contribution is $590.65 for a total monthly payment of $1,794.65. This equates to a lump sum payment from January 1, 2023, to November 30, 2023, of $19,741.15.

[ 83 ] Mr. O’Toole is entitled to a credit for the child support he paid in 2023. I direct Ms. O’Toole to calculate the 2023 child support which Mr. O’Toole paid to October 31, 2023. I find that Mr. O’Toole 2023 child support payments should be deducted from the child support he ought to have paid to the end of November 2023. 9 Prospective child support [ 84 ] I order Mr. O’Toole to pay Ms. O’Toole monthly table amount of child support of $1,204 and a monthly

Section 7 contribution of $590.65 for a total monthly payment of $1,794.65 on December 1, 2023. [ 85 ] Ms. O’Toole submits that Mr. O’Toole’s 2024 monthly table amount of child support should be based on his 2023 income. In the absence of any evidence indicating that Mr.

O’Toole’s 2024 income will be less than his 2023 income, I order that his monthly table amount of child support payable on the first day of each month commencing on January 1, 2024, is $1,204 and continuing thereafter until varied by court order or by agreement of the parties. [ 86 ] As the evidence indicates that the parties’ daughter will continue in university in 2024, Mr. O’Toole must pay for his proportionate share of her University related costs. She will have fewer funds to pay her university costs in 2023 as her RESP was fully depleted in 2023 and she will not have access to the one-time grant.

The depletion of the RESP and the one-time grant means that the parties will have to cover more of their daughter’s university costs going forward. I fix Mr. O’Toole’s proportionate share (66%) of his daughter’s university related expenses at $796.68 which amount is payable by him to Ms. O’Toole each month commencing on January 1, 2024, and continuing thereafter until varied by court order or by agreement of the parties. 10 Conclusion [ 87 ] I order : 1. The divorce is granted. 2. Mr. O’Toole must pay Ms. O’Toole $29,987.12. 3. Mr. O’Toole must pay Ms. O’Toole prospective child support (table amount and

Section 7) of $1,794.65 for December 1, 2023, and prospective child support (table amount and

Section 7) of $2,000.68 commencing on January 1, 2024, and continuing thereafter on the first day of each month until that amount is varied by the court or agreement of the parties (subject to the overpayment adjustment if required by subparagraph 87 (4). 4. Mr. O’Toole must pay Ms. O’Toole child support (table amount and

Section 7) of $19,741.15 in respect of 2023 (to November 30, 2023) less any 2023 child support (table amount and

Section 7) which Mr. O’Toole has already paid to November 30, 2023. Ms. O’Toole shall on or before December 8, 2023, file with the court and provide to Mr. O’Toole an affidavit confirming 2023 support (table amount and

Section 7) payments she received from Mr. O’Toole. If Mr. O’Toole disagrees with Ms. O’Toole’s payment calculations he shall have until December 29, 2023, to file with the court and provide to Ms. O’Toole an objection to Ms. O’Toole payment calculation. If an objection in writing is not filed by December 29, 2023, Ms. O’Toole’s payment calculation will be accepted as correct and Mr. O’Toole will be ordered to pay the 2023 support (table amount and

Section 7) amount owing to November 30, 2023, less the payments as confirmed by Ms. O’Toole (the net outstanding 2023 support (table and

Section 7) amount). If an objection is received, I will convene a conference to determine how the issue of payment will be resolved. If Mr. O’Toole has overpaid child support (table amount and

Section 7 expenses) in 2023 his future child support payments will be reduced by $200 per month until the 2023 overpayment is eliminated at which time his child support payment will return to the amount required herein. 5. Mr. O’Toole must pay Ms. O’Toole child support of $1,215 representing the net amount owing to Ms. O’Toole in respect of 2021 and 2022 historic child support owing and unpaid. 6. Mr. O’Toole must pay the amounts set out in paragraphs 2, and 5 on or before December 15, 2023. 7. Mr. O’Toole must pay the net outstanding 2023 support (table and

Section 7) amount, if any, on or before January 15, 2024. 8. Subject to any order contained herein, the Separation Agreement and the Amending Agreement will be incorporated into and form part of the Corollary Relief Order. [ 88 ] If either party seeks costs, and the parties cannot agree, the parties shall file their cost submissions within one month of this decision. [ 89 ] Mr. Whitehead shall draft the Divorce and Corollary Relief Orders. Daniel W. Ingersoll, J.