(FAMILY DIVISION)
Citation: J. A. L. v. S. B. J. L., 2009 NSSC 87
Date: 20090319
Docket: 1201-061457, SFHD-051228
Registry: Halifax
Between:
J. A. L.
Petitioner
v.
S. B. J. L.
Respondent
Revised Decision: The text of the original decision has been corrected according to the attached erratum dated January 27, 2010.
Judge: The Honourable Justice Beryl A. MacDonald
Heard: March 4, 2009, in Halifax, Nova Scotia
Written Decision: March 19, 2009
Counsel: Tanya Nicholson, counsel for the Petitioner
Joyce Ruck De Peza, for the Respondent
By the Court:
[1] The husband and the wife married on July 2, 1994, after living together since 1992. They separated on September 15, 2006, but shared the matrimonial home until November 1, 2007, when the wife obtained a residence elsewhere. The parties have two children. Their oldest child, who is now eight years old, has cerebral palsy. The youngest child, who will be seven in May, has lymphodema, which causes swelling in her legs. She is required to wear compression stockings to aid circulation and reduce swelling.
[2] By consent order dated May 12, 2008, the husband and the wife agreed to a shared parenting arrangement with a schedule of parenting times based upon a four week rotating schedule, the details of which were attached as Schedule “A” to that order. Unfortunately, the wife’s hours of work did not always accommodate this schedule and by September 2008 she lost all employment and as a result, her residence. The wife has not had a stable residence of her own, nor stable employment, since. The husband became the primary care parent. Frequently the wife did not have access to suitable transportation. Her lack of income, housing and transportation have interfered with her ability to parent her children. She was on social assistance for a period of time. Presently she is living with a male person, M. K., whom she has known since July 2008. She has been living with him since September 2008. M. K’s two children and his nephew were also living with him in his two-bedroom apartment until recently when his nephew moved out. When the parties’ children are in the wife’s care, they share one of the bedrooms with the wife; M. K.’s children share the other; M. K. sleeps in the livingroom.
[3] Except for brief periods of time due to her pregnancies and the birth of the children, the wife worked at Lawton’s drug store from 1992 until August 2006, when she left this employment just prior to the parties separation.
[4] In this divorce proceeding the husband is requesting primary care of the children, with a specific access schedule for the wife. He suggests the children should be in the parties’ joint custody, but he wants to make the final decision in the event of disagreement or when the wife does not respond to his inquiries. The wife is unemployed and as a result the husband is not seeking child support at this time. The parties have resolved the division of household contents and their respective pensions. The husband has retained the family vehicle and has obligated himself to pay the loan negotiated for the purchase of that vehicle. Each party is to pay his and her own credit card debt. The wife acknowledges a debt payable to Kingswood Kids, but she disagrees with an equal sharing of the cost of repair to the matrimonial home. I have already provided the parties with an oral decision in which I required the wife to share the debt for the repairs to the house equally. As a result, the husband is to pay the wife the sum of $6,562.58 to complete the division of their matrimonial property.
[5] The wife is requesting:
- either primary care or a return to the previous shared parenting arrangement;
- ongoing child support;
- child support that should have been paid to her under the previous child care arrangements from November 2007;
- spousal support ongoing and for a past period beginning November 2007.
The Husband asks that the children remain in his primary care and that the court make no award for current spousal support or for past child and spousal support.
The wife did not file an Answer, but the husband acknowledged he has suffered no prejudice as a result. He has been aware of her claim for spousal support because she filed a Response in a previous proceeding and he has asked that I deal with this issue.
DIVORCE
[6] I am satisfied that all jurisdictional requirements of the Divorce Act have been met and that there is no possibility of reconciliation. I am further satisfied there has been a permanent breakdown of this marriage by reason of the parties having lived and continuing to live separate and apart from one another for a period in excess of one year from the commencement date of this proceeding. A divorce judgment will be issued.
THE PARENTING ARRANGEMENT
[7] There are no presumptions to apply when determining with whom children should be living under what arrangement. There is no presumption that parents should have joint custody, sole custody, or shared custody. There are only various directives. The Divorce Act directs that we are to foster maximum contact between the children and each parent. Of course, it also directs that decisions are to be made in the children’s best interests. Several cases provide guidance about factors to consider when assessing best interest, Foley v. Foley (1993), 124 NZR (2d) 198 (N.S.S.C.); Abdo v. Abdo (1993), 126 NZR (2d) 1 (N.S.C.A.); and particularly useful is the comment in Dixon v. Hinsley (2001), 22 R.F.L. (5th) 55 (Ont. C.J.), at p. 72:
“The best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development."
What is in the child's best interests must be examined from the perspective of the child's need with an examination of the ability and willingness of each parent to meet those needs.
[8] Each parent’s plan for the child must be examined, not in respect to what the parent wants or needs -- and parents have many wants and needs in relation to their child, but in respect to what the child needs to become an independent, healthy, educated, and socially integrated human being.
[9] Conflict between parents does not necessarily mean they cannot be awarded joint custody if there is sufficient indication of their ability to place the needs of the child before personal needs and to cooperate on issues of vital importance to the child. The role of the court is not to determine which parent is better, but to decide which plan for the child’s care will best meet the child’s developmental, educational, health and social needs. (Gillis v. Gillis (1995) Carswell N.S. 517)
[10] Both of these parents suggest they should have joint custody of their children. Joint custody is a difficult concept for many to understand. It does not refer to physical closeness to the child, nor to shared day-to-day parenting. It is a philosophical concept in many ways. It requires parents to remain as committed to their children as they were when living together. When a child is ill and treatment must be chosen, when a choice must be made about schooling, when there is a decision to be made about religious training, when a child is in trouble with the law or has behavioural problems, joint custody means that the parents will discuss these issues and come to a joint decision, as parents do in intact families. Joint custody does not mean one parent has the right to micro-manage the daily care of the child by the other parent. Each has the right to make independent decisions in that sphere when the child is in his or her physical care. Absent evidence to the contrary, the expectation is that each parent loves the child and would do nothing to cause harm to that child. Parenting styles may be different, but unless there is clear evidence that the style of parenting harms the best interest of the child in some material way, the style of parenting is generally not relevant to the choice of sole or joint custody.
[11] In this case, the husband is often critical about the wife’s judgment. He simply does not respect the decisions she has made. That is unfortunate, but may have been his pattern with the wife for some time. He is judgmental and somewhat inflexible in his thinking. The wife has a more relaxed parenting style than does the husband, but I am not satisfied this is harmful to the children. The husband’s affidavits contain a litany of complaints about the wife’s non-attendance at scheduled appointments, her failure to adequately supervise the children and her lack of contact with the children. Their content displays no recognition or acknowledgement about the reality of the challenges the wife has faced since separation. For much of the period complained about, the wife had no income, no residence, and no vehicle. I am not satisfied that this state of affairs was “her choice.” In addition, communication between the husband and the wife was poor leading to a conclusion that the timing of appointments, for example, could easily have been overlooked, was not communicated, or was incorrectly communicated.
[12] The wife, throughout the marriage, was a committed, capable, loving mother to her children. When she lost her residences she sensibly recognized she could not properly provide for the children and requested the husband become the primary care parent. It was not her intent that this should continue, but lack of employment and the consequent inability to afford a suitable residence has prolonged that arrangement.
[13] I have no evidence before me to suggest that these parties were unable to make joint decisions in the best interest of their children when they were living together. In fact, the evidence is to the contrary. It is not easy to raise children who have disabilities, especially when both parents are employed. As a couple, the husband and the wife were able to ensure the children attended scheduled medical and dental appointments, they attended meetings at the children’s schools, they juggled these appointments and meetings or their work commitments to do so. They found child care providers when child care was required. They have the ability to make joint decisions and as a result they are to continue to do so. This will require them to communicate with one another to inform, to update, to coordinate and to plan. It would be best if they could pick up the phone and talk to one another, or meet once or more a week at a coffee shop to exchange information and plan ahead to decide who will do what. If they have access to e-mail, this may provide an appropriate means of communicating. The wife has suggested she be provided text messages, but these are generally useful only for short messages. Whatever mechanism is chosen, one must be found because these parents are to have joint custody of their children. If the wife cannot assist with scheduled appointments or fulfil other parental obligations because of lack of money, transportation, or housing, the husband will have to shoulder a greater responsibility for the children’s care until the wife is in a position to assist. This will not dis-entitle her from receiving regular information about scheduled appointments and other matters of significance to the children, nor from regular contact to determine how she might contribute assistance in the future. This will not entitle the husband to remove the wife as the next person to be contacted on any list given to third parties for contact when there are concerns about the children. Others may be on the list for those occasions when neither the husband nor the wife can be reached.
[14] Because of the wife’s lack of a suitable residence the children have been and are presently in the primary care of the husband. The wife has requested either primary care, because she is available to care for the children, or a return to the former shared parenting arrangement. Neither of these plans for the care of the children has been carefully thought out. The wife’s relationship with M. K. does not require him to support her. She must eventually become self-supporting and as a result will not be as available to care for the children in the future as she is now because she is unemployed. If she was the primary care parent, or if she shared parenting, the children may be required to adjust to schedule changes as the wife re-enters the workforce. M. K.’s residence is crowded. While it is suitable for a weekend or extended weekend overnight visit, it is not in the children’s best interest to live in this situation for significant periods of time. The children will remain in the primary care of the husband.
[15] Unfortunately, neither the wife nor the husband have described any specific weekly access schedule that would be appropriate for the children. The husband acknowledges the children, particularly the oldest child, want to be with their mother more often. Given what I know about the children’s needs and considering their schooling and the crowded conditions of the wife’s present residence, week day overnight access is not appropriate at the present time.
[16] In designing the access schedule outlined below, I realize four elements may require adjustment; the start date, the day, time and place for pick up and the return time. I say this because the wife, for example, may not be able to pick the children up from school. The return time may be too late given the children’s needs. These elements may be adjusted by the parties and that adjustment is to be reflected in the order prepared following this decision. If they cannot agree upon these adjustments, I retain jurisdiction to hear further submissions from the parties to make the final decision.
[17] Beginning two weeks after the parties have received this decision, the wife’s access schedule, including the holiday sharing of time with the children, is to be as follows:
- The children shall be in the wife’s care every Wednesday, from after school until 6:00 p.m.;
- The children shall be in the wife’s care every second weekend from after school on Friday until Sunday at 6:00 p.m. or Monday at 6:00 p.m. if a holiday, other than Christmas, Easter, or March Break, falls on her access weekend;
- The regular access schedule shall be rearranged, if necessary, to place the children in the care of the wife for the Mother’s Day weekend, and in the care of the husband on the Father’s Day weekend. This may mean one parent will have the children in his or her care for two consecutive weekends;
- In 2009 and in odd numbered years thereafter, the wife shall have the children in her care from after school at the beginning of the school Christmas break until Christmas Day at 3:00 p.m. at which time they are to be returned to the care of the husband for the balance of the holiday;
- In 2010 and in even numbered years thereafter, the husband shall have the children in his care from after school at the beginning of the school Christmas break until Christmas Day at 3:00 p.m. at which time they are to be in the care of the wife until January 2 at 6:00 p.m. at which time they are to be returned to the care of the husband;
- In 2009 and in odd numbered years thereafter, the husband shall have the children in his care during the Easter holiday on Good Friday until Easter Sunday at 11:00 a.m. at which time they are to be in the care of the wife until Easter Monday at 6:00 p.m. when they are to be returned to the care of the husband;
- In 2010 and in even numbered years thereafter, the wife shall have the children in her care during the Easter holiday from after school at the beginning of the school Easter break until Easter Sunday at 11:00 a.m. when they are to be returned to the care of the husband;
- In 2010 and in even numbered years thereafter, the wife shall have the children in her care from after school at the beginning of the school March Break until Wednesday of that week at 6:00 p.m. when the children shall be returned to the care of the husband;
- In 2011 and in odd numbered years thereafter, the wife shall have the children in her care from Wednesday of the March Break week at 6:00 p.m. until Sunday of that week at 6:00 p.m. when they are to be returned to the care of the husband;
- If either parent notifies the other, no later than two months prior to the beginning of the school March Break, that a trip has been arranged for the children that requires the entire break period, the parent who will receives this notice shall accommodate the request by forgoing care of the children for that March break. The notification shall contain full details about the trip, including travel arrangements and contact telephone numbers;
- Until the wife obtains a residence less crowded or larger than her present residence, the regular weekly access schedule shall continue during the summer months, except that the husband may have the children in his exclusive care for two consecutive weeks at a time for which he has given the wife notice on or before June 1st in that year;
- When the wife obtains a residence that is less crowded or larger than her present residence, the regular weekly access schedule shall continue but the wife and the husband may each have the children in her or his exclusive care for two consecutive weeks during the summer months upon notification to the other of the dates chosen. If the parties are seeking the same or overlapping dates, the wife shall have her preference in even numbered years and the husband in odd numbered years;
- The parent who has care of a child on that child’s birthday, according to the regular schedule, is to care for the child on that day, but must ensure that the child has an opportunity to speak with the other parent on the telephone so birthday greetings may be exchanged. The other parent is free to celebrate the child’s birthday on any day the child is in the care of that parent;
- The parent who has care of a child on that parent’s birthday according to the regular schedule is to care for the child on that day, but must ensure that the child has an opportunity to speak with the other parent on the telephone so birthday greetings may be exchanged.
CHILD SUPPORT - ONGOING AND RETROACTIVE
[18] Since the parties’ separation their incomes have been as follows:
|
Year |
The Wife |
The Husband |
|
2006 |
$27,103 |
$58,947 |
|
2007 |
$23,800 |
$58,020 |
|
2008 |
child tax credit only |
$52,395 |
|
2009 |
child tax credit only |
similar to 2008 |
[19] The husband is the primary care parent. Because the wife has no income, and because, under these circumstances I am not prepared, nor have I been asked, to impute income to her, the husband is only person providing financial support to the children. I have examined his living expenses. Most are reasonable, but there is some flexibility. Because he is the primary care parent only he will be entitled to receive the child tax and other tax credits available relating to the children. I have no authority to rearrange what will happen or what has happened in the past in respect to these credits. Who is or was entitled to claim these credits is not determined by court order, nor by agreement of the parties. Revenue Canada will ignore agreements and court orders made in contravention of its regulations and policies.
[20] The wife has requested retroactive child support from November 2007 when she moved out of the matrimonial home. The Divorce Petition was issued February 15, 2007. Strictly speaking, a request for a determination of the amount of child or spousal support to be paid from the date of an application is not a “retroactive claim” even if there is an intervening interim agreement or court order. A retroactive claim is for a period predating an application. In this case the wife’s “retroactive claim” is for a period since the filing of the divorce petition. However, these calculations are often called “retroactive” and are subject to the same deficiencies experienced when determining true “retroactive” claims. There may have been significant delay in bringing the matter to trial, one of the parties may have been “lulled” into believing he or she was living up to his or her obligations, there may be blameworthy conduct, the present economic circumstances may impose hardship upon a party if support sums are ordered for past time periods. There is recognition that a court does have discretion in awarding spousal or child support for a past period and the principles applied are those discussed in S.(D.B.) v. G.(S.R.) et. al. 2006 Carswell Alta 976 (S.C.C.), a Supreme Court of Canada case examining claims for retroactive child support.
[21] After the wife moved out of the matrimonial home in November 2007, she may have been entitled for a short period of time to receive child support based either upon a set off or upon an analysis following the directions provided in Contino v. Leonelli-Contino 2005 SCC 63 (S.C.C.). I have insufficient information before me to conduct a “Contino analysis.” I consider it inappropriate to base an award for a past period on a set off without the “Contino analysis” in these circumstances. There is no doubt the wife needs money. But providing money to her as “retroactive child support,” may be providing spousal support in disguise. She may use this money to find better housing that would permit her to eventually share parenting, and this may be considered of benefit to the children. However, there is no guarantee this would be the result particularly because she presently has no source of income. I am also satisfied that paying a retroactive child support award would impose a financial hardship upon the husband that would interfere with his ability to financially support the children in this situation where there is also an obligation to provide spousal support. There will be no retroactive child support paid to the wife.
SPOUSAL SUPPORT - ONGOING AND RETROACTIVE
[22] The husband has been earning over $55,000 in yearly income since 2005. He now earns less because he does not take as much overtime as he did previously. He says he has done so because he was the primary care parent for the children and was unable to take as much overtime work as he had in the past. He now has a new partner to assist in caring for the children. I will not impute income to the husband for the purpose of calculating spousal support at this time. If overtime continues to be available to him, he may be required to justify non- acceptance of overtime hours in the future.
[23] The objectives to consider when examining a request for spousal support pursuant to the Divorce Act are found in s. 15.2 (6):
An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
( c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage;
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[24] The Divorce Act also requires a court:
15.2 (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:
a) the length of time the spouses cohabited;
b) the functions performed by each spouse during cohabitation; and
c) any order, agreement or arrangement relating to support of either spouse.
[25] The Supreme Court of Canada in Moge v. Moge (1992), 43 R.F.L. 345 (S.C.C.) and in Bracklow v. Bracklow [1999] 1 SCR 420, confirmed that all four objectives set out in s. 15.2 (6) are to be considered in every case. No one objective has paramountcy. If any one objective is relevant upon the facts, a spouse is entitled to receive support.
[26] In Bracklow v. Bracklow, supra, the Supreme Court analysed the statutory objectives and held that they create three rationales for spousal support:
1. Compensatory support to address the economic advantages and disadvantages to the spouses flowing from the marriage or from the roles adopted in marriage.
2. Non-compensatory dependency-based support, to address the disparity between the parties, needs and means upon marriage breakdown.
3. Contractual support, to reflect an express or implied agreement between the parties concerning the parties’ financial obligations to each other.
[27] These rationales take into account both the factors set out in s. 15.2 (4) and the objectives set out in s. 15.2 (6).
[28] The Supreme Court did recognize that many claims have elements of two or more of the stated rationales. It confirmed that analysis of all of the objectives and factors is required. Pigeonholing was to be avoided.
[29] In this decision I will not comment on the contractual objective because it is not a factor in the case before me.
[30] McLachlan, J. in Bracklow, supra, indicated that the basis for a spouse’s support entitlement also affects the form, duration, and amount of any support awarded.
[31] Examples of circumstances that may lead to a decision that a spouse is entitled to compensatory support are:
a) a spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:
- a spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or a spouse;
- a spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;
- a spouse has an actual loss of seniority, promotion, training, or pension benefits resulting from an absence from the workforce for family reasons.
b) a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.
[32] Non-compensatory support incorporates an analysis based upon need and ability to pay. If spouses have lived fully integrated lives, so that the marriage creates a pattern of dependence, the higher‑income spouse is to be considered to have assumed financial responsibility for the lower‑income spouse. In such cases a court may award support to reflect the pattern of dependence created by the marriage and to prevent hardship arising from marriage breakdown. L'Heureux‑Dubé, J. wrote in Moge v. Moge, supra, at p. 390:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I),” supra, at pp. 174‑75). (emphasis added)
[33] It is not clear from Justice L'Heureux‑Dubé’s, decision whether entitlement arising from a “pattern of dependence” is compensatory or non-compensatory. A pattern of dependence may create a compensatory claim because it can justify an entitlement even though a spouse has sufficient income to cover reasonable expenses and might be considered to be self-supporting. This often is described as the “lifestyle argument” - that the spouse should have a lifestyle upon separation somewhat similar to that enjoyed during marriage. (Linton v. Linton, 1990 CarswellOnt 316 (Ont. C.A.) A lengthy marriage generally leads to a pooling of resources and an interdependency even when both parties are working. Usually the recipient spouse will never be able to earn sufficient income to independently provide the previous lifestyle. This would form the basis of a compensatory claim, but does not necessarily entitle a spouse to lifetime spousal support. The essence of a compensatory claim is that eventually it may be paid out. This leads to a discussion about the quantum and duration of the claim.
[34] Once it is decided that a spouse is entitled to spousal support, the quantum (amount and duration) is to be determined by considering the length of the relationship, the goal of the support (is it compensatory, non-compensatory or both), the goal of self-sufficiency, and the condition, means, needs and other circumstances of each spouse. In considering the condition, means, needs and other circumstances of each spouse, one may examine the division of matrimonial property and consider the extent to which that division has adequately compensated for the economic dislocation caused to a spouse flowing from the marriage and its breakdown and any continuing need the spouse may have for support arising from other factors and other objectives set forth in s. 15(2). (Tedham v. Tedham 2005 CarswellBC 2346 (B.C.C.A.)
[35] There will be cases when the analysis may indicate that the only way to adequately address the compensatory or non-compensatory claim is to continue support for significant periods of time possibly during the entire life of the recipient or payor. (Rondeau v. Kerby, 2004 CarswellNS 140 (N.S.C.A.) This most often will occur in respect to lengthy marriages where there is significant income disparity.
[36] Generally a non-compensatory claim in a short to mid length marriage is satisfied when a spouse becomes self-supporting and, in such a case, neither the payor spouse’s greater income nor the inability of a recipient spouse to replicate a previous lifestyle, is a factor entitling a spouse to continuing support. When spouses have not had a lengthy relationship and the only effect of the relationship has been that a spouse has enjoyed a better lifestyle than he or she could afford alone, the duration of support will likely be for a period required to ease the recipient spouse’s transition to economic independence. Self-sufficiency, however, is a relative concept. It constitutes something more than an ability to meet basic living expenses. It incorporates an ability to provide a reasonable standard of living from earned and other income exclusive of spousal support.
[37] These parties had an almost 14-year relationship. The wife is now 40 years of age and the husband is 47. They are both in new relationships, although the husband’s may have more permanency that the wife’s. The wife’s new relationship does not disentitle her to spousal support. M. K. has no legal obligation to support her.
[38] The wife worked throughout the marriage. The loss of her job with Lawton’s was not her choice. I have no doubt that she was emotionally distraught at the time. Her marriage was falling apart and her employer was making what she believed were unreasonable demands. She did obtain other employment, but one employer went bankrupt and the other was not sympathetic about the time she needed to be away from work to attend to the needs of the children when they were in her care.
[39] The wife’s claim for support is essentially non-compensatory. There is no evidence before me to suggest she interrupted a career or gave up job opportunities because of her commitments to her marriage. She worked continuously during the marriage. She must find employment, but to date she has not. She has not adequately explained why this has happened and although I am not prepared at this time to impute income to her, this may occur in the future. There is no doubt the wife has financial need. The question is whether the husband has an ability to pay.
[40] Critical to the analysis of the quantum of spousal support is the amount of money each party will have in his or her pocket to pay reasonable living expenses after paying, or receiving, child support and varying levels of spousal support, paying mandatory deductions and receiving credits or benefits available as a result of government programs, for example the child tax credit. Even if the Spousal Support Advisory Guidelines suggest a range for quantum of spousal support, what a person might actually retain after payment of spousal support within those ranges must be examined in respect to what is required for that individual to pay for housing, heat, food, etcetera. I have used the computer program Divorce Mate to assist me in this analysis. I have applied the custodial parent as payor formula. I have calculated the net disposable income remaining to each parent based upon the information I have available to insert into that program. There may be information missing, but I have used what is revealed in the parties financial information. I use this program with caution. The accuracy of the results provided by these computer programs is only as good as the information available to input and it is important for information to be recorded in the appropriate field. As a result these computations are at best a guide to potential outcomes. They do not provide exact outcomes. The computer generated ranges of spousal support suggested by the Spousal Support Advisory Guidelines (from $547 per month to $729 per month) in the scenario’s I have examined do not provide sufficient net disposal income to meet the husband’s expenses as they appear in his Statement of Expenses filed October 6, 2008. However, his child care cost may be overstated. His union dues appear to be incorrectly calculated. On his 2007 income tax return the total yearly union dues is $837 which is $69.75 per month. His pay stub to September 20, 2008 suggests monthly union dues at the rate of approximately $62 per month. His Statement of Income calculates his monthly union dues at $102.88. There may be similar errors in overstating the monthly payment for mandatory deductions. As a result, there is some flexibility in his budget. Otherwise, his expenses are reasonable.
[41] The husband has limited ability to pay spousal support, but he has some ability and as a result he is to pay the wife $300 per month spousal support on the 1st day of each month commencing April 1st 2009. I have not used the ranges suggested by the Spousal Support Advisory Guidelines, but I have noted that those ranges suggest a duration for support from seven to 14 years subject to variation. This may become relevant in a subsequent variation request. I am not fixing a duration for support at this time.
[42] The Guidelines suggest restructuring when the ranges do not appear to be appropriate. In this case I did not consider the range appropriate, not because I considered the ranges would provide the wife with more money than she needs, but because the husband cannot pay the amounts suggested by those ranges. Restructuring may address these circumstances, but the examples given do not appear to fit this particular fact pattern. I have not chosen, without input of the parties, to design support based upon restructuring although this may be considered in subsequent variation proceedings, if properly presented, taking into account my consideration of the Guidelines as a tool to assist in the development of this decision.
[43] I also examined the “exceptions” recommended by the Guidelines, but this fact situation does not appear to fit within those exceptions. I am aware the authors of the Guidelines do suggest the category of exceptions is not closed. The fact pattern in this case presents a payor with reasonable fixed living expenses who will not have enough net disposable income to pay those expenses if ordered to pay the spousal support suggested by the Guidelines. If the husband had only himself to support, requiring him to pay within the range might be acceptable. In such a situation perhaps he should be the one who rearranges his life, by finding less expensive housing (for example), rather than require the wife to accept less support than she needs. However, in this case the husband is the sole financial support for the children. The custodial parent as payor formula does not provide him with sufficient net disposable income to pay his reasonable living expenses, which include expenses for the children, and to pay the range of spousal support suggested.
[44] The wife left the matrimonial home in November 2007, at a time when she did have employment. She did contribute to child care expenses for a period of time. Her income was significantly less than the husband’s income. She had a non-compensatory entitlement to spousal support. Had the quantum of spousal support been decided in November 2007, I am satisfied the husband would have been required to pay the wife at least $300 per month. I realize that any amount to be paid for this past period must come out of current income and this may impact the husband’s ability to pay present spousal support and financially support the children. Nevertheless, I consider it appropriate that I order the husband to pay the wife $300 per month spousal support for the past period under these circumstances for the following reasons:
- he does have the option of working overtime;
- his expense budget may be somewhat inflated, although not significantly so;
- passage of time alone should not defeat an entitlement to receive spousal support;
- payment of support owed for a past period can be ordered in an amount that is within the husband’s ability to pay;
[45] For the period November 1, 2007 until March 31, 2009, the husband shall owe the wife the total sum of $4,800. If he is unable to pay this by way of a lump sum, he shall pay this amount in monthly installments of $150 each, commencing April 1, 2009 and continuing on the first day of each month thereafter until paid in full.
[46] Neither party has spoken about the issue of costs. If costs are requested, written submissions are to be provided to this court by the husband, with a copy sent to the wife, within 20 working days from the date of this decision. The wife’s submissions are to be filed with this court and copied to the husband within 15 working days from his receipt of the husband’s submissions. If the wife has raised an issue in her submissions not considered in the husband’s submissions, he may file and copy to the wife a further submission addressing those issues within five working days of receiving the wife’s submissions.
____________________
Beryl MacDonald, J.
SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: J. A. L. v. S. B. J. L., 2009 NSSC 87
Date: 20090319
Docket: 1201-061457, SFHD-051228
Registry: Halifax
Between:
J. A. L.
Petitioner
v.
S. B. J. L.
Respondent
Revised Decision: The text of the original decision has been corrected according to the attached erratum dated January 27, 2010.
Judge: The Honourable Justice Beryl A. MacDonald
Heard: March 4, 2009, in Halifax, Nova Scotia
Written Decision: March 19, 2009
Counsel: Tanya Nicholson, counsel for the Petitioner
Joyce Ruck De Peza, for the Respondent
Erratum
[1] Delete the section of paragraph 7 which reads:
and particularly useful is the comment in Dixon v. Hinsley (2001), 22 R. F. L. (5th) 55 (Ont. C. J.), at p. 72:
The “best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development. What is in the child’s best interests must be examined from the perspective of the child’s need with an examination of the ability and willingness of each parent to meet those needs.
[2] Replace that section with:
and particularly useful is the comment in Dixon v. Hinsley (2001), 22 R.F.L. (5th) 55 (Ont. C.J.), at p. 72:
“The best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development."
What is in the child's best interests must be examined from the perspective of the child's need with an examination of the ability and willingness of each parent to meet those needs.