Felix v. Simmonds, 2023 NSSC 51

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Felix v. Simmonds , 2023 NSSC 51 Date: 20230213 Docket: Halifax No. SFHMCA-094185 Registry: Halifax Between: Nicole Felix Applicant v. Zeran Simmonds Respondent LIBRARY HEADING Judge: The Honourable Justice C. LouAnn Chiasson Heard: June 20, 21, 22 and October 4, 2022, in Halifax, Nova Scotia

Summary: The mother applied to vary an Order seeking primary care of two children, child support (both retroactive and prospective). The children had been in a shared parenting arrangement by consent of the parties since June 2019. An assessment was conducted and made recommendations in relation to the parenting arrangements. The assessor took into account the cultural competency of the parents, as the children were bi-racial. The assessor recommended a continuation of the shared parenting.

The father wished to follow the recommendations of the assessor as it related to parenting, but wished to vary the child support. The court ordered a continuation of shared parenting with some decision making responsibilities divided between the parents. Child support continued to be payable by the father utilizing the set off method of calculating child support. Key words: child maintenance guidelines, Family- decision making, Family- parenting time, Family- shared parenting, Family- parallel parenting, Family- child support, Family- child support retroactive,

Section 7 expenses Legislation: Parenting and Support Act, R.S.N.S. 1989, c.160 THIS INFORMATION SHEET DOESN’T 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: Felix v. Simmonds , 2023 NSSC 51 Date: 20230213

Docket: Halifax No. SFHMCA-094185 Registry: Halifax Between: Nicole Felix Applicant v. Zeran Simmonds Respondent Judge: The Honourable Justice C. LouAnn Chiasson Heard: June 20, 21, 22 and October 4, 2022, in Halifax, Nova Scotia Counsel: Ellen Burke for the Applicant By the Court: [ 1 ] R. and K. are in elementary school. By all accounts, both are wonderful children. They are very lucky to have parents and extended families that love them very much.

Sadly, as with most cases in this court, the acrimony between their parents is negatively affecting them. [ 2 ] I start by talking about the children because that is the focus of these proceedings. I am a stranger to them- I know them only artificially through the pleadings and the evidence filed in court. Based on the evidence before me I will decide on the parenting arrangements that best suit R. and K.. [ 3 ] Litigation in family law is adversarial. It puts parents on opposite sides.

Evidence in these proceedings is often about examining the minutia of parental behaviour in an effort to portray the other parent in a negative light. [ 4 ] This decision will review the negative parental behaviour as determined by the evidence. At the outset, however, I note that both parties are loving parents to K. and R.. Both would do anything for their children. What they have not been able to do is to minimize the conflict for the sake of their children. [ 5 ] Prior to closing arguments, counsel for Ms. Felix amended the relief requested to include a claim for retroactive child support to January 1, 2022.

ISSUES 1) Who should make the major developmental decisions related to R. and K? 2) Should the current shared parenting arrangement continue or should either parent have primary care? 3) What is the appropriate level of child support based on the parenting time of each parent on an ongoing basis? 4) Should child support be varied retroactive to January 1, 2022? BACKGROUND [ 6 ] The parties cohabited for approximately four years. They have two children, R. and K.. The children are bi-racial.

The parties separated in 2016 when the youngest child was only a few months old. [ 7 ] The parties successfully negotiated two previous consent orders. The first Consent Order was issued on November 15, 2017. That Order provided that Ms. Felix would have primary care of the children. At the time, the youngest child was approximately two years of age. [ 8 ] The second agreement followed a settlement conference on June 10, 2019. The parties reached agreement on that date and it was read onto the record.

The parties consented to a shared parenting arrangement whereby each parent would have relatively equal time with the children. There were difficulties with respect to the issuance of this Order, but the record is clear that the parties consented to a shared parenting arrangement as of June 2019. [ 9 ] Within months of the agreement on shared parenting, Ms. Felix commenced a variation application. She sought sole decision

making and primary care of both children. The acrimony between the parties increased after the variation application was made. [ 10 ] The parties were unable to agree on the form of order necessitating various court appearances, and the form of order was not confirmed until March 2020. Mr. Simmonds then disputed that there had been a change in circumstances. The hearing related to that issue was heard in February 2021 and a decision was rendered within days confirming a change in circumstances. [ 11 ] Since the consent was reached, Ms. Felix has repartnered and has had two other children. Her partner, Mr. Landry, is employed out West. His affidavit evidence discloses his work

schedule to be approximately two thirds of the time out West and the remaining time in Nova Scotia. The evidence of Ms. Felix indicates that Mr. Landry is in Nova Scotia approximately twenty five percent of the time. [ 12 ] Mr. Landry has a child from a previous relationship. His child resides primarily with Ms. Felix even when Mr. Landry is away. In Ms. Felix’s household, there are five children, including K. and R. [ 13 ] Since the consent, there have been changes with Mr. Simmonds as well. His income has changed.

Although not residing with his current partner, he spends significant time with her and her two children. He requested the court to vary his child support payable. At one point in the proceeding, Mr. Simmonds was also seeking primary care of the children. [ 14 ] The issues before the court relate to the request of both parties to amend the Consent Order of March 5, 2020 (arising from the settlement conference of June 2019). [ 15 ] The parties requested a custody access assessment which was granted by the court. Ms. Lana MacLean conducted an assessment and filed it with the court in September 2021. Ms.

MacLean was contracted to prepare a custody, parenting time and interaction assessment with a cultural competency component. [ 16 ] In addition to the report of Ms. MacLean, the court had the benefit of hearing from both parties and their respective partners. Viva voce evidence was also provided by the children’s former child care provider and Mr. Simmonds’ father. The court also had affidavits filed by a number of other collateral witnesses for both parties.

LAW & ANALYSIS [ 17 ] The legislative framework in addressing parenting arrangements is set out in s. 18 of the Parenting and Support Act , R.S.N.S. 1989, c. 160 , (“ PSA ”). Section 18(5) confirms that the paramount consideration in relation to parenting arrangements is the best interests of the children. Section 18(6) sets out the factors to be considered in determining the best interests of the children. [ 18 ] Ms. Felix is seeking sole decision making for the children. She requests the court reject the recommendations made by the assessor. Ms.

Felix asserts that the parental relationship is so fraught with conflict, disrespect and poor communication, that joint decision making is not workable. [ 19 ] Mr. Simmonds is seeking to have the recommendations of the assessor approved by the court. Ms. Lana MacLean made various recommendations related to communication, decision making, and parenting time. She recommended that the parties continue to share the parenting time with the children on a relatively equal basis. Ms.

MacLean did recommend a change to the parenting time in that the flexibility permitted under the current order was causing conflict and should be removed. Ms. MacLean also made recommendations related to decision making between the parents. [ 20 ] As noted in the cases of T.(C.H. v. M(C.L.) , 2008, NSFC 13 , and Ruffudeen v. Coutts , 2016 ONSC 3359 , a custody/ access assessment is but one factor to be considered by the court.

It is not the role of the court to blindly accept the recommendations of an assessor, but rather to weigh those recommendations in light of the evidence before the court at the time of trial. Decision Making [ 21 ] In relation to decision making, the parties and the assessors all came to different conclusions as to what was in the children’s best interests. Ms. Felix is seeking final decision making. Mr. Simmonds is seeking to retain joint decision making between the parents.

The assessor recommended a parallel parenting regime with each parent responsible for different areas of decision making. [ 22 ] Counsel for Ms. Felix referred the court to the cases of J.E.N. v M.J.S.N. 2017 NSSC 314 , and Mo v. Ma 2012 NSSC 159 . In both cases, the court found sole custody to be appropriate. Legislative amendments have deleted the reference making. [ 23 ] Decisions which reference a parent having been “awarded” sole custody are less common today given the multi faceted parenting roles.

I find the terminology of “awarding custody” to be problematic in that one parent should not be “awarded” any responsibilities related to a child. There should not be a winner/ loser mentality as it relates to parenting. The court must determine what is best for the particular children before them. Such adversarial terminology in the context of parenting arrangements should be avoided. [ 24 ] One reason cited by Ms. Felix for sole decision making is the poor communication between the parties. Mr. Simmonds acknowledged his poor communication with Ms. Felix for a period of time.

The evidence disclosed his emails were not child focused. His communication could be inflammatory and added to the conflict. [ 25 ] Mr. Simmonds indicated that he is a different person in the last couple of years. He indicated that his communication style was problematic and stated that he has matured. The more recent evidence does not disclose the level of acrimony on the part of Mr. Simmonds towards Ms. Felix. [ 26 ] Counsel on behalf of Ms. Felix indicated that the improved communication relates to the fact that a trial was pending. The evidence is clear that the tone of the correspondence sent by Mr.

Simmonds to Ms. Felix has improved significantly since late 2020.

[ 27 ] The assessor also noted the problematic communication between the parties. Both parents believe the source of the acrimony was the other parent.

The parents each noted concern about inappropriate communication with the children while the children were in the care of the other parent. [ 28 ] In discussing the communication of the parties, the assessor noted at page 23 of her report: “In the area of communication, what remains clear is ongoing problematic parenting communication has left the children exposed to inappropriate comments and information that would have a negative impact on the children’s social, cultural and emotional wellness.” [ 29 ] The assessor made various recommendations related to communication.

She made two recommendations related to communication to assist in decreasing the conflict created by the parties’ communication: The parties should continue to communicate with each other via text. The text messages must “only be in response to key areas with respect to the children’s needs.

Both parties are strongly encouraged to keep their communication to yes and no responses whenever possible with limited narrative.” If the parties are unable to focus their communication appropriately, she recommends the court consider a software platform to moderate their communication. [ 30 ] Based on the evidence before the court, the recommendation of the assessor is accepted. The communication between the parties improved in the year preceding the trial. As such, I am not ordering the parties to communicate via software program at the present time.

I acknowledge, however, that such programs have assisted parties in lowering the negative tone of their communication and the parties should have further discussion regarding how such a program may be of benefit to them in parenting their children in the long term. [ 31 ] If the parties agree to implement this type of communication, a provision may be added to the court order. The order between the parties will contain the recommendation of the assessor related to text communication. [ 32 ] The assessor also dealt with the communication of the children when in the care of one parent.

She recommended that the parent that does not have the children in their care be limited to a 15 minute telephone call or virtual call to take place twice per week. She recommended that these calls take place on Tuesday and Thursday at a set time no later than 90 minutes before bedtime. [ 33 ] The recommendation of the assessor in relation to the children’s communication with the non-care parent is accepted.

The parameters related to the communication between the children and the non-care parent are reasonable and noted to be in the best interests of the children. [ 34 ] The characterization of some of the events by Ms. Felix as indicative of a broken parenting relationship is not borne out by the evidence. There is no denying that there has been conflict, although the conflict appeared to be lessening in the year and a half prior to the trial. The source of much of the conflict, as noted by the assessor related to poor communication.

An issue which was abating to some extent at the time of trial. [ 35 ] I will review some of the examples provided by Ms. Felix as problematic on the part of Mr. Simmonds: 1) In May 2021, Ms. Felix moved out of the children’s school district. She took exception to Mr. Simmonds advising her that the teachers and principal knew that the children were out of the school district. She then contacted the principal to see if an exception could be made for the children to continue to attend. What Ms.

Felix failed to recognize as a problem was her move outside the school district without properly advising the school herself to ensure that the children could continue to attend. Instead she blamed Mr. Simmonds for incorrectly advising her that the school knew. While Mr. Simmonds comments’ were incorrect and added to the conflict, Ms. Felix could not see her role in the difficult position of the children’s schooling in moving out of their school district. 2) In February 2022, Ms. Felix indicates that Mr. Simmonds refused to hire a tutor for K. What was not noted was that Mr.

Simmonds spoke to the teacher and the principal. He advised that he wanted to discuss other alternatives to tutoring with Ms. Felix but she was unwilling. The child was then registered for resource help through the school which alleviated the problem without the cost of a tutor. 3) Ms. Felix was upset that Mr. Simmonds had purchased a cell phone for the oldest child feeling that the child was too young. Mr. Simmonds indicated that he had emailed Ms. Felix about the purchase and Ms. Felix did not note any concern with the cell phone, a suggestion Ms. Felix denies. Ms.

Felix did state that the cell phone is the only line of communication with the oldest child when she is in the care of Mr. Simmonds. She testified that she has attempted to communicate with the child via the cell phone. It is incongruent to say that the child is too young for a cell phone and then to indicate that you attempt to communicate with the child through the cell phone. [ 36 ] This is not to dismiss the evidence of poor parenting decisions made by Mr. Simmonds. He unnecessarily exposed the children to conflict in the way he communicated with Ms. Felix.

He made unilateral decisions related to activities to enroll the children in without consultation and agreement with Ms. Felix. His willingness to work cooperatively with Ms. Felix on issues related to the children was undermined by his inability to communicate appropriately. [ 37 ] The evidence, however, discloses that the parents’ communication is improving. The areas of conflict are not as significant as they were in 2019/ 2020. Mr. Simmonds acknowledged to the assessor, and in his evidence before the court that Ms. Felix is a good mother.

He acknowledged that his communication was problematic and needed to change. Decision making- medical [ 38 ] The assessor recommended that Ms. Felix be responsible for managing the children’s medical/ dental appointments. She recommended that: - Ms. Felix attempt to arrange those appointments when she had care of the children and to advise Mr. Simmonds of any such appointment. If it was not possible to arrange the appointment on her time with the children, then Mr. Simmonds would be provided

with the opportunity to take the children. - Both parties would be responsible to advise the other of the outcome of all medical, dental and health care appointments. - The children would be covered under the health care plans of each of the parents. The uninsured fees would alternate between each party. - Urgent or emergency care would be made by the parties jointly. - If the parties were unable to agree on any such decision, they would defer to the medical care provider. [ 39 ] The assessor acknowledged that Ms.

Felix has “a better awareness of and has the flexibility in scheduling the children’s medical/ dental appointments”. I accept the recommendations of the assessor to maintain joint decision making on medical decisions with deference to a medical professional in the event of disagreement.

The following two amendments to medical decision making will be added to the order: 1) Each parent would advise the other parent of the outcome of any non-urgent or emergency care appointment within 24 hours of such appointment. 2) By July 1 st of each year the parties will calculate the costs paid for the children in the previous 12 months and ensure that receipts of these costs are provided to the other parent. The total cost of uninsured expenses of both parties would be calculated and the total cost would be shared proportional to incomes of the parties. The calculations would be completed by July 15 th .

If a parent has underpaid their proportionate share of uninsured medical expenses, they will pay the amount of the underpayment to the other payment on or before August 15 th of each year. Decision making- education [ 40 ] The assessor did not make a recommendation related to educational decisions. She advised that both parties should have access to PowerSchool and should arrange parent/ teacher meetings. Based on the evidence before me, both parties should meaningfully consult on issues related to education. In the event of an impasse, however, Ms.

Felix will have the final say. [ 41 ] I base this decision on the need to make such decisions in the most efficient way possible. It is hoped that the parties will be able to communicate effectively and to reach a mutually agreeable resolution. As the issue of tutoring for K. highlighted, however, there may be a need for intervention that cannot await a delay of weeks/ months to resolve. As such, it is appropriate that one party have final decision making.

Decision making- extra-curricular activities [ 42 ] As it relates to extra-curricular activities, the assessor recommended maintaining the terms of the existing order with a few amendments. The prior order indicated that the activities would “be selected with meaningful consultation with the other parent”. Issues have arisen in relation to the decisions around registration/ enrolment in such activities. [ 43 ] The Order indicates that the children will attend one activity per week. The evidence discloses that Mr. Simmonds has enrolled the children in additional activities. Ms.

Felix is concerned that the children are overly busy with extra-curricular activities. [ 44 ] As the children age, it may not remain in their best interests that there is only one activity per week (as noted in paragraphs 6 and 7 of the current Order). Over scheduling the children, however, may lead to fatigue or burn out of the children and/ or a parent. There must be a balance. [ 45 ] The assessor recommended that the parties continue to discuss decision making around significant extra-curricular activities. As with educational decisions, both parties must continue to meaningfully consult on such issues.

In the event of an impasse, however, Mr. Simmonds will have final say with the following conditions on such decision making: 1) Unless both parents agree, the children would not be enrolled in more than two activities per week per child. When considering whether the children were to be enrolled in more than two activities per week, the parents will consider the age of the child, the interests of the child, and whether such activities will be in the child’s best interests. 2) One of the issues for the parents to discuss when considering extra-curricular activities is the

schedule of that activity. The

schedule will be part of the meaningful discussion between the parties prior to registration for the activity. 3) The parents would take into account the children’s wishes in determining the number of activities and which activities interest the children. 4) Upon receipt of the

schedule of such activities (prior to or at any time after registration), the parent receiving the

schedule will immediately provide it to the other parent. 5) Both parents must ensure that the children will continue to participate in extra-curricular activities without interruption unless there is an exceptional circumstance such as illness. This is particularly true as it relates to Ms. Felix ensuring that the children maintain their

schedule of activities while in her care given her other parenting responsibilities. For stability and continuity, R. and K. should attend their activities barring a reasonable excuse such as illness. Decision making- summer camps [ 46 ] Mr. Simmonds, however, will not have final decision making as it relates to summer camps for the children. The parties will

provide their request for the children to attend summer camps by April 1 st of each year. The request to enroll the children in summer camps should take into account the vacation

schedule of each parent. Clearly it may be problematic for one parent to suggest a summer camp which takes place on the other parent’s summer vacation

schedule with the children. In that event, the vacationing parent must agree that the child(ren) could attend that camp. Decision making- child care [ 47 ] Decision making regarding child care will be made by each parent during the time the children are in their respective care. The assessor noted that Mr. Simmonds’ father cares for the children during his parenting time. She noted at page 25 of her assessment: “It is not uncommon within the African Nova Scotian community for families and community members to provide a circle of parental and child centered care.

Such collaborative community parenting practices supports core cultural and community values intergenerationally…” [ 48 ] The assessor noted the positive attachment the children have with their paternal grandfather and noted this should continue. [ 49 ] Ms. Felix would make child care arrangements while the children are in her care. The assessor noted that “Ms.

Felix also reports having a circle of friends and family for support which she may also wish to access [in relation to child care]”. [ 50 ] The assessor recommended that each party would be responsible to arrange and pay for child care while the children are scheduled to be in their care. I accept the recommendation of the assessor. Decision making- cultural and racial identity development [ 51 ] The children are bi-racial. The assessor discussed the issue of parenting within a cultural context.

She indicated that a person’s “worldview” “denotes how a person’s culture, gender, race and ethnicity intersect to inform a person’s perspective and decision making. In short, a “worldview” is a ‘lens’ from which a person navigates their environment.” [ 52 ] The assessor, Ms. MacLean noted the importance of parents having cultural proficiency and cultural literacy.

These skills are necessary to “address the developmental and identity development needs of the child across the life span.” She goes on to state that “within Aboriginal and African Nova Scotian communities there remains a high cultural value placed on collective community parenting practices which include various kinship relationships (chosen family and family of origin).” Ms. MacLean states that these family relationships have been “a protective factor in supporting the social, cultural and racial development needs of children and families.” [ 53 ] Mr. Simmonds raised concerns about the ability of Ms.

Felix to address the cultural needs of the children. He testified that Ms. Felix purchased a ** immediately prior to the assessment. He did not view this as a genuine act on the part of supporting the child’s culture but rather was meant as a artificial display for the assessor. [ 54 ] Ms. Felix denies these concerns. She indicated that she feels confident and comfortable when speaking about racial identity development and cultural identity for her children. She testified that she takes opportunities to discuss the positive impact of their racial background and to discuss issues they have with her. [ 55 ] Ms.

MacLean noted that the parents had not meaningfully discussed the parenting of bi-racial children. She recommended that both parents attend the Association of Black Social Workers SEARCH program. This is a program which provides culturally responsive programming and support to parents of bi-racial children. [ 56 ] The assessment noted the limited knowledge of Ms. Felix in supporting the children’s cultural enrichment but she was willing to support them in any way possible. Ms.

MacLean noted that “parents of biracial children need to have “insight and good judgment to assist their children during critical developmental stages to have racial literacy and positive racial esteem.” Ms. MacLean noted that Ms. Felix and her circle of support is limited in this domain. [ 57 ] It is imperative that both parents are involved in this central aspect of the children’s lives. Ms.

MacLean noted that: “It is more challenging for children who are bi-racial raised in a predominant White household where the other children may not share the same racial background to feel a level of confidence and connection. Ms. Felix must, as all of her children maturate, be able to have age appropriate discussion with all of her children in the area of race given the present social reality.” [ 58 ] Ms.

MacLean cited the social literature supporting the principle that it is in the best interests of bi-racial children to have meaningful and active parental contact to support positive racial and cultural identity. Both parents have indicated their desire to fulfill this responsibility. Both parents will, with the benefit of further education, insight and communication, make decisions related to supporting their children’s culture and identity from a place of knowledge and caring. Both will retain decision making as it relates to issues of cultural identity for the children. PARENTING TIME [ 59 ] Ms.

Felix is seeking primary care of the children. Mr. Simmonds is seeking to continue with the shared parenting arrangement on a week on/ week off basis. Ms. MacLean recommends a continuation of the shared parenting arrangement. [ 60 ] I have taken all admissible evidence into account. I have reviewed and considered the factors as noted in s. 18(6) of the PSA , supra . I accept the recommendation of Ms. MacLean. I find that the continuation of a week on/ week off parenting time

schedule is in K. and R.’s best interests. [ 61 ] Ms. Felix stressed the importance of contact between R. and K. and their siblings. It is acknowledged that such relationships should be considered in the context of the parenting arrangement. K. and R. will continue to develop a significant and loving

relationship with the three children in Ms. Felix’s home. They will spend roughly 50% of their time with their siblings. [ 62 ] It is also important to recognize that the

schedule of time in a household with five children- two of whom are preschool age- would be very busy. It is also important for K. and R. to have time with their father where the

schedule is able to centered on their needs. The three other children are not bi-racial- they will not face the same challenges and issues as K. and R.. It is important for them to have equal time with their father to be able to address these challenges and issues from an African Nova Scotian perspective. [ 63 ] Ms. Felix appreciates, supports and loves her children. She is proud of their heritage and will try to support them in any way possible. She will provide that love, support and guidance to her children as a person that has not experienced those challenges herself. It is imperative that Mr.

Simmonds continue to play an equal role in the children’s lives in order to provide his unique perspective on how to deal with those challenges. [ 64 ] The evidence reveals two loving, caring parents that would do anything for their children. The evidence was equally clear that the children are well bonded to both their mother and their father. Although the road to shared parenting has not been smooth, it is not as fraught with difficulty as suggested by Ms. Felix. [ 65 ] Mr. Simmonds acknowledged his blameworthy conduct in his inability to communicate with Ms. Felix in the past.

In the year and a half prior to the trial, his correspondence has been more child focused and less argumentative in dealing with Ms. Felix. It is hoped that the additional clarifications and parameters placed on the parenting arrangement that the parties will continue to move forward positively. CHILD SUPPORT- prospective [ 66 ] Under the prior Order, Mr. Simmonds was to pay the entire cost of the children’s extra-curricular activities. He was also responsible to pay $900 per month in child support to Ms. Felix.

Both parties were to equally share the cost of the child care. [ 67 ] As noted previously, there are amendments to be made to the child support arrangement. The parties are to share the uninsured medical expenses proportional to incomes. Additionally, each of the parties will be responsible for the cost of child care while the children is in each of their care. Mr. Simmonds will continue to pay for the children’s extra-curricular activities. [ 68 ] Mr. Simmonds is seeking no retroactive adjustment to child support.

He is, however, requesting that the court adjust the ongoing amount payable pursuant to the Provincial Child Support Guidelines, N.S. Reg. 49/2022 (the Guidelines ). [ 69 ] The court has ordered a continuation of the current shared parenting regime. As such, s.9 of the Guidelines, supra, directs the court to examine the means, needs and circumstances of the parties to establish the appropriate quantum of child support. [ 70 ] The financial circumstances of Mr. Simmonds were relatively straightforward. He is employed and is a T-4 salaried employee.

His income is $114,566 (not including retroactive payments received). He no longer works significant overtime given the priority of the shared parenting arrangement. [ 71 ] Ms. Felix is seeking to impute income to Mr. Simmonds. This is based upon prior years when he worked significant overtime. The court was referred to the case of MacDonald v Pink , 2011 NSSC 421 . [ 72 ] As noted in the MacDonald decision, supra , the ability of the court to impute income is predicated on an objective analysis of the evidence. There must be a rational and solid evidentiary basis to impute income.

Given the current shared parenting arrangement, it is reasonable for Mr. Simmonds to work the full time hours he is currently working and not work significant overtime as he did in the past. The request of Ms. Felix to impute income is denied. [ 73 ] Mr. Simmonds resides with his father who earns nominal income. The grandfather’s income is CPP and a RRIF. Statements submitted indicate the income of Mr. Felix’s father to be approximately $13,500 in 2021. [ 74 ] Mr. Simmonds did not pay his child support on time. His lack of stable child support has caused financial difficulty for Ms. Felix.

He indicated that he had no money to pay his child support obligations. His child support was consented to by him and incorporated into the consent order. His failure to live up to the financial obligations in a timely way was problematic. [ 75 ] I then turn to an examination of the financial circumstances of Ms. Felix. Her financial circumstances are much more difficult to ascertain. At the time of trial she was on maternity leave and had been since the spring of 2021. The evidence at trial was that she was anticipating being on maternity leave until January 2023, a period in excess of 18 months.

During her extended maternity leave her income is $16,561. Prior to her maternity leave her income was approximately $33,000. In viva voce testimony, she advised that she had been offered a position commencing March 2023. [ 76 ] Her partner’s income is $103,036. The evidence of the financial circumstances and contribution of Ms. Felix’s partner to the household expenses were confusing and contradictory. [ 77 ] Ms. Felix asserted that she and her partner did not share any property or debts. She testified that Mr. Landry pays for a Dodge Durango and assists with some day to day expenses. It is clear that Mr.

Landry is very devoted to Ms. Felix and the family. The difficulty, however, is that the documentation provided does not appear to adequately quantify his contribution to the household expenses. [ 78 ] Ms. Felix originally testified that she pays the entirety of the expenses related to the home. Mr. Landry asserts that he pays rent on accommodations while working in Alberta and does not contribute directly to the household expenses. [ 79 ] It is unreasonable that there would be no contribution by Mr. Landry to the expenses related to the home in Nova Scotia. He resides there between 25-33% of the time.

His son from a previous relationship lives there. His two children with Ms. Felix also reside

there full time. [80] Ms. Felix and Mr. Landry claim to equally share the food expense. In reviewing the first budget of Mr. Landry, however, theonly food expense noted is the shared cost with Ms. Felix. That would mean that he has no food cost while working out west. [81] On cross examination Mr. Landry testified that his expenses were noted to be the expenses calculated through a “TrexReport”. The Trex Report is the report generated by Mr. Landry’s business to track expenses. The first Statement of Expenses filed byMr.

Landry was inaccurate in that it contained items that were double accounted as business and personal and items that were calculatedincorrectly. To be fair to Mr. Landry, he indicated that he completed the budget based on the records from his Trex report withoutfulling appreciating the inaccuracies. During the trial Mr. Landry filed a second Statement of Expenses in an attempt to address thisdifficulty. [82] Mr. Landry testified that he pays for a Durango. He testified that he retained this vehicle in the hopes that he will get morework out west and that it would be utilized by the business in western Canada.

This evidence is not credible. The vehicle has been leftfor the personal use of Ms. Felix for years. To assert that it is a vehicle available for business use is not tenable. [83] The confusion related to the financial contribution of Mr. Landry was compounded during cross examination. Mr. Landryindicated that it was common for the family to attend Costco at least once if not twice when he was home. He indicated that suchshopping trips would typically cost over $1,000. This was in addition to his other financial contributions. [84] This viva voce testimony does not accord with the filed financial documents.

I accept that Mr. Landry is assisting his familyfinancially in excess of that which is disclosed in the Statement of Expenses. The evidence is clear that there is no deficit in Ms. Felix’shousehold and that the children, including K. and R. are well provided for while in Ms. Felix’s care. [85] The household income of Ms. Felix and Mr. Landry is greater than that in the household of Mr. Simmonds. That being said,Ms. Felix and Mr. Landry also have a greater number of dependent children to provide for on a daily basis. [86] Mr. Simmonds asserts that he should have to pay no ongoing child support. Ms.

Felix asserts that Mr. Simmonds should haveto pay the set off amount of child support. I accept the appropriate payment of support based on the current circumstances is the set offamount of child support. [87] Based on Mr. Simmonds’ income of $114,566 and Ms. Felix’s anticipated income of $33,000, the set off calculation is $1,064. This amount commences with the payment on March 1, 2023, which is the anticipated date of Ms. Felix’s return to work. Heranticipated return approximately two years after she took maternity leave is reasonable. CHILD SUPPORT- retroactive [88] Ms.

Felix asserts that she is entitled to a retroactive variation of child support. Any consideration of a retroactive variation is adiscretionary exercise for the courts taking into account the means, needs and circumstances of the parties (D.B.S. v S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231). [89] Ms. Felix is seeking a retroactive adjustment to January 2022 based on payments received by Mr. Simmonds in 2022. Thesepayments were received as a top up related to prior years’ earnings. The first difficulty with the request of Ms.

Felix is the time frame. [90] She indicates that the adjustment in relation to the child support should be made as of January 2022. This, however, ignores that annual disclosure of tax returns is mandated by June 1st of each year, in accordance with their Order. Presumably, any adjustment tothe child support would be made thereafter based upon the disclosure. Typically, adjustments to child support are made effective as of July 1st of each year (and not January 1st). [91] Counsel for Ms. Felix cited the case of Joudrey v.

Reynolds, 2020 NSCA 60, as supportive of her request for retroactivesupport as of January 2022. The Court of Appeal in Joudrey, supra, did not disturb the trial judge’s findings that the retroactive adjustment should be for the period commencing July 1st onward. I am not prepared to consider any retroactive adjustment prior to July1st, 2022. The claim in relation to retroactive support up to October 1, 2022 would therefore be slightly over $3,000. [92] I then determine whether it is appropriate to consider the additional retroactive pay received by Mr. Simmonds in 2022, inretroactively varying child support.

As noted in the case of Woodford v. MacDonald, 2014 NSCA 31 at paragraph 3: “…When shared parenting exists, both federal and provincial guidelines accord a great deal of discretion to trial judges on the issue ofappropriate child support. The emphasis is on fairness, flexibility, and recognition of the actual conditions, means, needs and othercircumstances of each parent and the children.

The exercise of judicial discretion must be reasonably tied to the evidence so as to allowfor a logical, rational explanation, and if necessary, review by courts of appeal…” [93] I am not prepared to order a retroactive adjustment to reflect the top of Mr. Simmonds’ pay based on prior year’s earnings. Anexamination of retroactive adjustments to child support must be holistic- taking into account all factors. I am not prepared to order aretroactive adjustment to child support based on the particular circumstances of these families. The household incomes of the parties areboth over $100,000. Additionally, Mr.

Simmonds pays $900 in child support to Ms. Felix. Mr. Landry confirmed the children’s needshave all been met in the household he shares with Ms. Felix. [94] The amount of child support payable pursuant to the previous order of $900 will remain in place until February 1, 2023. Commencing March 1, 2023, the amount of child support payable will be $1,064 per month. Additionally, Mr. Simmonds will continueto pay for the children’s extra-curricular activities. Each parent will be responsible for child care costs while the children are in each oftheir care respectively. CONCLUSION

[ 95 ] The majority of the recommendations of the assessment have been found to be in the children’s best interests. Some decisions will continue to be made jointly and others will involve meaningful consultation with one parent retaining final decision making. The parenting time of each of the parents will remain on a week on/ week off basis with allowances for vacations. [ 96 ] For greater clarity, some of the terms of the March 2020 Order are to form part of this Variation Order.

The paragraphs to be included in the Order are: 2, 4, 8, 9, 10, 11, 18-28, and 30-37 with the amendments as noted herein. [ 97 ] The quantum of child support will be varied to $1,064 per month commencing March 1, 2023. There is no retroactive adjustment to child support and the current amount of $900 per month will continue until February 2023. [ 98 ] Should Mr. Simmonds wish to continue to pay child support on the 1 st and the 15 th of the month, the order will be drafted to permit that payment schedule.

If that is the case, the payments of $450 on February 1 st and 15 th , 2023, would be made and the next scheduled payment on March 1 st , 2023, would increase to $532. Mr. Simmonds will continue to pay for the children’s extra-curricular activities. [ 99 ] By providing further clarity to the parenting decisions, and with communication between the parents improving, it is hoped that that the children will be exposed to less conflict. As the children age they will become more and more aware of the difficulties between the parents.

Everything reasonably possible should be done by both parents to ensure that they are shielded from any further conflict between the parents. Chiasson, J.