(FAMILY DIVISION)
Citation: Calnen v. Gamble, 2009 NSSC 190
Date: 20090610
Docket: 1201-062342
Registry: Halifax
Between:
Charlotte Ann Calnen
Petitioner
v.
David Andrew Gamble
Respondent
Judge: The Honourable Justice Deborah Gass
Heard: June 8 & 9, 2009, in Halifax, Nova Scotia
Oral Decision: June 10, 2009
Written Decision: June 24, 2009
Counsel: LouAnn Chiasson, for the applicant
Philip Whitehead, for the respondent
By the Court:
[1] This is a Divorce trial and this decision is the result of a two day hearing that was held over the course of Monday and Tuesday of this week.
[2] The oral decision that I’m giving this afternoon will be somewhat disjointed because of the time constraints and there are a number of issues to cover. It will be an abbreviated decision, therefore, and I will ask you to bear with me as a I go through it because it may well be somewhat disjointed.
[3] The parties, Charlotte Anne Calnen and David Andrew Gamble, were married on June 11, 1999; they separated, according to the Divorce Petition, on the 21st of September, 2004. The Petition for Divorce was filed by Dr. Calnen in January of 2008 and Mr. Gamble filed an answer on May 26, 2009.
[4] The parties have two young boys, Liam and Jacob.
[5] The issues that are outstanding as a result of the parties’ separation and divorce are the property division with respect to a particular CRA debt owed by Mr. Gamble, parenting arrangements for the children, child support, determination of income, contribution if any to section 7 expenses, the language of parenting as well as the physical arrangements for parenting, and decision making is another issue that was before the court.
[6] At the outset it was indicated by counsel for the respondent that there were some matters upon which Mr. Gamble would now agree and those were that the mother would have input and decide on what video games were acceptable and that decision would be presented to the boys as a joint decision by the parents. As well, there was an agreement that the children not be permitted to drive motorcycles or all-terrain vehicles until they are of a legal age and the age of 16 was mentioned, or unless otherwise agreed between the parties as to an appropriate time. The children would not be permitted to use any guns, including the pellet guns Mr. Gamble has until they are old enough to possess a firearms license or at least until the age of 16. Mr. Gamble has also agreed that he will defer to Dr. Calnen on all medical decisions with the exception that he wanted the children’s physician not to be a co-worker or close friend of the petitioner. He also wanted an increase in parenting time and a division of the debt that he was not aware of at the time that the parties entered into an agreement dividing their property.
[7] I had already indicated, having heard the evidence, that I was satisfied that the procedural and jurisdictional grounds for the granting of a divorce had been met and the Divorce Judgment will be granted.
[8] The court had the benefit of oral evidence and significant written material before it in coming to its decision today. I am going to deal first with the issue of the property division, because in my view that is the most straightforward of the issues before the court.
[9] The parties entered into a partial separation agreement in August of 2005. Both parties were represented by counsel at that time, and it was almost four years ago that this agreement was entered into. It was intended to resolve the property division; it acknowledged that the parties had been separated since September of 2004 so the agreement was almost a year after their separation.
[10] The agreement specifically indicates that both parents are of the full age of majority and have the capacity to contract with each other. There is a provision that says that the agreement is intended to be a full and final settlement between the parties of all property and spousal support issues and may be pleaded as a complete defence to any action brought by either party to assert a claim in respect of any matter dealt with by this agreement, except where there is express provision for review or variation or where a party has failed to disclose a significant circumstance with respect to his or her financial or asset position which should have been raised during negotiation of this agreement. It also intends that this agreement be minutes of settlement of all corollary matters and incorporated to form part of any corollary relief order in any divorce between the parties.
[11] Paragraph 14 as well says that the parties agree to the division of their assets and their respective responsibilities for debts as outlined in Schedule A.
[12] Paragraph 20 confirms that they have each had independent legal advice, that they understand their rights and obligations, they each warrant that they have given the other full and complete information about their significant financial circumstances, prospects, assets and liabilities to the date of signature, they have entered into the agreement without undue influence, misrepresentation or coercion, signing it voluntarily.
[13] Schedule A, which is attached to that agreement confirms again disclosure and indicates that the agreement deals with debt.
[14] Paragraph 16 as well of Schedule A indicates that any debts incurred separately by either party prior to the execution of this agreement and not set out above shall be the sole responsibility of the party incurring the debt.
[15] Mr. Gamble argues that a tax debt that came about as a result of a re-assessment for the years, and I believe it was 2002 and 2003 or 2003 and 2004, I forget which, that as a result of that audit a $12,000.00 debt was accrued to him. The evidence before the court is that he was actually under audit at the time this agreement was signed. It is clear that the result of such an audit could go one of three ways: it could result in a debt owing to CRA; it could result in a neutral result, in other words no change to what it was prior to the audit; or it could result in a refund to Mr. Gamble. Because the audit was known to Mr. Gamble at the time, the agreement could have specifically provided for an acknowledgement that it was under audit and that any debt or credit, that is a refund, would be equally divided between the parties, but that was not done. Mr. Gamble cannot use his own non-disclosure as a vehicle to now ask to have the issue re-opened. Disclosure is referred to several times in this agreement, and disclosure provisions are there to ensure that when parties are negotiating an agreement it is done in good faith and without a handicap to the other side, and that any decisions are made with all of the information. In this case, it is Mr. Gamble’s own non-disclosure that he is seeking to use as a means to have the issue of this debt division included in the agreement that the parties entered into which was clearly intended to be full and final settlement of all rights and obligations with respect to property and spousal support as between them.
[16] There is a heavy burden on one seeking to have a property matter, or an agreement of any sort, set aside. In order to overturn the agreement, one would have to find that the agreement was so flawed as to be unconscionable and that the other side had deliberately concealed or undervalued assets and thus put the party seeking to overturn the agreement at a disadvantage. One would also have to be satisfied that as a result of the non-disclosure the resulting division was significantly less than the entitlement of either of the parties would have otherwise been. As well, there would have to be some indication that it was, as I say, so flawed as to be unconscionable. In addition, there is no evidence here of mental instability or duress or any of the factors that the court looks at in determining whether to reopen an agreement.
[17] Even if I am wrong and the case were made out that because, according to Mr. Gamble, it was not known or it was not foreseen, it would be my conclusion that the whole agreement would have to be set aside, not just that one portion of the agreement, and that would mean revisiting all aspects of the agreement and all of the balancing factors that were taken into consideration in arriving at that agreement.
[18] Just to refer to one of the most recent Supreme Court of Canada decisions, Rick v. Brandsema, 2009 SCC 10, Justice Abella determined that the disclosure was inadequate, the circumstances of one of the parties was such that there was an exploitation of the mental instability of one of the parties and it was determined that the inequitable result of that agreement was such that it should be overturned. And in that decision she also cited the Miglin, 2003 SCC 24 decision, in which it was determined that the agreement was unconscionable because the negotiating process was severely flawed and the resulting settlement deviated substantially from the objectives of the governing legislation and that dealt with spousal support.
[19] The idea in the principle is to uphold agreements and to encourage settlement of matters and to only set them aside in circumstances that are considerable, as I have already noted, and none of the circumstances exist here for the reopening of this agreement. There is no jurisdiction in the court to vary a property order or agreement as there is with spousal support based on changed circumstances.
[20] So, the respondent, Mr. Gamble, has failed to meet the burden to satisfy me that the debt obligation ought to now be included in the parties’ property division agreement that is set out in their partial separation agreement and minutes of settlement.
[21] On now to what is the more important issue here, and that is the question of the parenting arrangements for the children. The children, Liam and Jacob, are now almost ten and seven. Liam was born November 12th, 1999, (which happens to be my birthday, actually), and Jacob was born December 3rd, 2002. They are nine and six, but they will soon be ten and seven before the year is out.
[22] When the parties separated in September of 2004 Liam was almost five and Jacob was not yet two years of age. They had an interim separation agreement that they entered into in December of 2004 which provided for joint custody with mother having primary care and specified access to the father. Then they amended that agreement in January of 2005 to make provision for child care and the requirement to seek from the other parent the opportunity to provide child care before seeking child care by a third party, and it does appear that there has been a fair bit of that from the evidence that I heard.
[23] Then there was an emergency in May of 2007, and I searched for the order resulting from that and I couldn’t find it, but in any event there is also a further interim order in April of 2008 which is in the court file. Apparently the emergency hearing resulted in a suspension for a time of the parenting time that dad had, or the nature of the parenting time, but then eventually it was reinstated and I believe as of January of 2008 it has been reinstated.
[24] The interim order that was dated April of 2008 provides for the mother to have custody of the boys with the dad having parenting time as set out, and it does say every Monday. It then goes on to say that pick up time is 5:30 pm and the drop off time is Tuesday morning and I believe it is to either the school or the caregiver - there is some reference in some agreement or order of 9:00 am - but at any rate, it is from 5:30 pm Monday evening until Tuesday morning and then every second weekend from Friday at 5:00 - between 5:00 and 5:45 - to Monday morning, and then such other access as may be agreed upon.
[25] Since the parties separated almost five years ago, the children have actually been in the primary care of their mother and there does appear to have been the agreement that there could be significant block periods of access or parenting time afforded to the father. The evidence before me would indicate that dad has not had them for the extended block access that has been available to him, and he refers to that in his own affidavit: that because of his work schedule he has not had the opportunity to have the extended block access, although he has had some block access during the summer and specifically he says that he had not been able to take all of the four weeks of block access with his children due to being self-employed and that it is difficult for him to take much block time off to spend time away from his business and that essentially the amount of time he can take will depend on how the business is doing and the time of year, which is why he was asking for every Tuesday night as well.
[26] There was some confusion as to the particulars of what it was that Mr. Gamble was seeking, but certainly every Tuesday night appeared to be clear, although there was the request for shared parenting. At any rate, it is clear from the evidence that he is constrained to some degree by the nature of his work and the hours of his work and it appears that the mother, who is a physician, does have more flexibility with her work schedule to accommodate her time with the children.
[27] I have listened to the evidence, I have reviewed the affidavits in this matter and I have to make a decision as to what is in the best interests of the children, and as Ms. Currie pointed out, the guide that the court relies upon are those factors that are set out in the Foley, 1993 CanLII 3400 (N.S.S.C) decision, a decision of Justice Goodfellow that is quoted in almost every custody case. To some extent, some of those considerations apply when one is considering primary care, although they are factors that - and in that decision it was a custody case - but they are factors that the court applies in determining the environment that can best meet the needs of the children and in this case it is acknowledged that both parents have the love for the children and the willingness to do what is in their view in the best interests of the children, even though the other parent may not agree that the conduct of the other parent is necessarily in the best interests of the children.
[28] The difficulty with a situation such as this is, and it was evident in this proceeding, is the degree of animosity between the parents. At times it was almost palpable, and this has been going on now for five years. I think both parties acknowledge and agree that this is not in the interests of the children. No matter what has happened in the relationship the parents will continue to be parents of these children and the most important gift that they can give their children at this stage is to spare them exposure to any conflict as between the parents.
[29] The court has as well listened to the evidence of both of the parties, the issues with regard to consultation, willingness to provide time to the other parent and it does appear from the evidence that the mother has been more consultative than dad would give her credit for. There was specific reference to the incident with appendicitis; there were a number of telephone calls during that period of time to the father over a very critical period of time for the child. A ten minute phone call that immediately precedes the child going into surgery, in my view, is hard to believe to have been a ten minute telephone message that mom would be taking the time to leave a recorded message when dad wasn’t answering the phone to let him know what was going on. She called him in the evening, she called him first thing in the morning, she called him immediately before the surgery and she called him immediately after the surgery, I’m not sure what more a mother or any parent could do under those circumstances in terms of trying to ensure that the other parent had immediate up to the minute information with regard to the health of the child.
[30] I am not satisfied on the basis of the evidence before me that the circumstances do warrant an actual shared physical parenting as being in the best interests of the children. There hasn’t been anything close to that over the last five years, and as has been indicated the large block periods of access have not been able to be exercised by dad in any event, whereas the mother does appear to have, as I say, more flexibility to accommodate the children. Having said that, I am also satisfied that considering the ages of the boys that they could benefit from some more time with their father, but not to the extent sought by him. I am prepared to order joint custody, which is what the parties have agreed upon, with the children having their primary care and residence with their mother, as they have had, with dad’s parenting time being spelled out in a schedule, which would include every Monday night from 5:30 pm until taking them to school on Tuesday morning, alternating weekends from Friday at 5:00 until Monday morning when they would be taken to school, or if there is no school on those occasions and both parents are working they would be taken to a caregiver, although Mondays mom does not work so they would be returned to their mother.
[31] As well, in order to accommodate - one of the concerns that dad raised was the length of time, the gap, between when he sees the boys from the Monday to the following Monday when he doesn’t have his weekend access. In order to address that, I am inserting a provision that the boys spend the alternating Thursdays from 5:00 pm until Friday morning, and that would be on the Thursday immediately before mom’s parenting weekend, which will shorten the time frame between his times with the children.
[32] When I am looking at access schedules I want to impress upon the parents that one of the down sides of not agreeing to these sorts of things is that the decision is left with a complete stranger, which I am to your boys, and you are in a better position to formulate these kinds of arrangements than I am with the material that I have in front of me. The down side is that a schedule is put into place by somebody who does not know all of the ins and outs. Certainly it does not preclude you from agreeing to other arrangements if it is determined that those other arrangements are in the best interests of the children and it appears that there has been some flexibility between you from time to time in any event.
[33] Because mom does not work outside at her job during the day Monday, then the schedule – if dad’s weekend should fall on a statutory holiday Monday, which would be a Monday that he does not work, then that weekend would include the Monday, but other holidays and in-services on Monday should be with the mother because she is available to be there for them. If an in-service should happen to fall on a Friday immediately preceding the father’s weekend, then the children can spend that Friday with their father, unless it is otherwise agreed and he is not able to provide child care for them. If he is working for example, then other arrangements would have to be made.
[34] The specifics of all of the other access I can speak to in general terms, but what I would like to do is encourage counsel to sit down with their clients and try to work out the specifics of how they are going to work out all of the other access. The block periods of summer access of up to four weeks as set out in a framework that was suggested by Dr. Calnen in her proposal, along those lines I think would be appropriate. Alternating March Breaks, and I believe that the next March Break is 2010 and in even years would be with the father. I would suggest that the parties alternate any mid-week statutory holidays, for example there are a number of them that come up mid-week, July 1st is sometimes mid-week, Remembrance Day is often mid-week, so those ones would alternate. They will alternate Christmases and it would be dividing the Christmas period. This year in 2009 they would spend Christmas Eve and Christmas Day with their father and I would suggest that it would be appropriate to have it as spelled out in the suggested proposal, which is very detailed, as provided by Dr. Calnen. But I am going to leave that for the parties to negotiate, and in the event that they are not able to then I will have to make the final decision on that. Again, dividing Easter, first half, second half being spent with either parent. The four weeks block access, etc.
[35] So, again, I would encourage the parties to try and work that out. There is, as I say, a very detailed formula put into place, a suggestion by the mother which would be what I would think would be a good framework to start working from and in the event that they are not able to agree I would invite the counsel to just make submissions on those matters in contention with regard to those details.
[36] With regard to the issue of child support, the parties separated in 2004 and there has been no formal child support paid. There was some evidence that the sum of about $1,300.00 had been paid by dad since the parties’ separation. It is also clear that Dr. Calnen’s income is significantly higher than what dad’s income appears to be, but the problem with this is that it is very difficult to determine what dad’s income actually is. As well, there is no legal basis before me to deviate from the Guideline Table amount of child support. This is not a case where the court has ordered shared parenting, nor is it a case where any of the undue hardship factors are before the court with the commensurate household standard of living. It is not a split custody situation, and frankly from the evidence that I have heard and seen it is almost impossible to discern dad’s income for the purpose of establishing his maintenance obligation.
[37] It is clear as well from the evidence that disclosure has been an issue from the outset right up to and including the hearing when dad brought to court some further material, and I am being asked to impute income to dad. The whole purpose of the child support guidelines is to try to come to a fair and objective amount of maintenance and to have some consistency. There is the presumption that the applicable table applies. The facts of the case that was argued before me that provided for the primary care parent to provide maintenance to the access parent, are distinguishable with regard to the income of the payor.
[38] I have the ability to impute income where income information has not been provided. And it is also a situation where we have a self-employed payor parent who is deducting expenses, and I’m not suggesting in this case that they have been unreasonably deducted, but that his expenses are deducted, some of his business expenses and personal expenses can become co-mingled. He also derives some income, it appears, from dividends, and that is taxed at a lower level than other employment income.
[39] What is significant to note is that in the parties’ agreement of August of 2005, they agreed that the father’s income of $43,000.00 was anticipated to be his gross annual income for that year. In actual fact the line 150 income was I think 36,900 and some odd dollars for that year. The mother’s anticipated income at that time was agreed to be a gross annual income of approximately $91,000.00 and her income is now somewhere in the vicinity of $117,000.00.
[40] At a pre-trial in October of 2008 a pre-trial memo that has the force and effect of an order, required full financial disclosure for three years to be provided by November of 2008. Then there was a pre-trial in February of 2009 and full disclosure to December of 2008 was ordered and including the disclosure with respect to Image Photography and Cortex, I believe it was called, by February 28th, 2009. Then there was a discovery on March 27th, 2009 and a further series of undertakings was given and that was with respect to significant disclosure. Then on April 20th there was another pre-trial, and full disclosure was ordered by April 30th, and an updated statement of expenses was provided.
[41] It is difficult for the court in these situations to determine income for a number of reasons: because he is self-employed, he owns his own company; he owns the building in which he lives and it is also the building in which he works; he has tenants who pay rent and his company pays rent to himself as well. In his statement of income he shows only income relating to salary, wages or professional income which is essentially the 17,000 and some odd dollars that was declared as his line 150 income divided by 12, which is $1,438.83 a month plus investment income of $4.83. There is no other indication of any other income on his statement of income.
[42] The statement of income that I am referring to is the statement of income that was sworn - this is a personal income statement, sworn October 30, 2008. Then there was a statement of expenses that was sworn April 27, 2009 which shows that his mortgage – it says rent/mortgage is $989.00 a month and then shows his other expenses resulting in a deficit of $1,600.00. But he shows his income as $1,256.00 per month, which is essentially $15,076.00 per year as per his statement of his return filed April 1, 2009. So he is basing his monthly income on what his line 150 income is shown to be and divided that by 12. However, that does not reflect the, for example, income from the other tenants and income from his company, it only purports to show his salary or his wages or his professional income, which is essentially his line 150 income divided by 12.
[43] It is difficult for the court to accept that this reflects Mr. Gamble’s actual income for support purposes. It was difficult to follow his evidence in many instances. At times he was evasive and his evidence was manipulative in that he would answer a question with another question, and it may it very difficult, if not impossible, for the court to get a handle on the true picture of his circumstances, and that does give the court, in my view, grounds to impute income to him. It is significant to note that back in 2005 it was agreed that his anticipated income was going to be $43,000.00. His line 150 income at that time turned out to be 36,900 and some odd dollars. In order to try to come to a reasonable imputation of income the court has to look at that, and the fact that he was willing to assert at that time four years ago, an income of $43,000.00.
[44] I am being asked by the petitioner to assert income of $49,300.00 which was based on his line 150 income for one of the years, it doesn’t come to mind immediately which year that was, but at any rate that certainly does appear to be a one time income. I am not sure whether because Mr. Gamble has a new accountant he is able to do more creative accounting with him, and when I say that I am not saying it in any sort of perjorative or a judgmental way because creative accounting is what is often done in these situations, but it does appear that the $49,000.00 was one income figure and the only other one that came close to it was the $36,900.00 in 2005.
[45] However, looking at all of the circumstances and the fact that he lives in the same building in which he works, he receives income from a number of tenants as well as income from his own company, considering the lifestyle that he is able to enjoy, I am satisfied that it is appropriate to impute income to him substantially more than $15,000.00 or $17,000.00 a year. However, I am also prepared to give him the benefit of the doubt that the income of $49,000.00, although that is not unreasonable, to give him the benefit of the doubt with respect to his expenses, and I am going to impute income to the respondent in the amount of $40,000.00 a year, which results in a table amount of child support of $579.00 a month. I am going to make the order effective January 2008, which goes back to the date of the application, I am not prepared to go beyond that. It does appear that the parties had been engaged in discussions and negotiations and actual court proceedings in the past and the focus was on custody at the time. I do accept that disclosure has been a problem in this matter and in those situations the court could certainly go back beyond the date of the divorce petition. There is certainly a basis there to do it, but the financial ability to meet that kind of immediate debt is questionable and the evidence would tend to suggest there are some significant tax debts owing as well. So, the order will go back to January 1, 2008 and no earlier than that.
[46] With regard to the section seven expenses, it is questionable in my view whether those extracurricular activities as outlined are proper section seven expenses. Certainly child care expenses are appropriate section seven expenses. The ability of the respondent, Mr. Gamble, to contribute to those expenses, and taking into consideration the disparity in the incomes as between the petitioner who will be the recipient of the support and the income of the respondent is such that I am not going to order a formal contribution to any section seven expenses. Certainly it would appear that there has been and there should be a continued contribution towards buying things like snowboards, ski equipment, etc., but I am not going to make any formal order to that effect.
[47] The order will also provide that the respondent will provide to the petitioner, on an annual basis on or before June 1 of each year, a copy of his personal tax return and a copy of his corporate tax return. If that doesn’t coincide with his year end and filing requirements for the corporate tax return then I will make that the first of December.
[48] I believe that covers the issues that are before the court.
[49] The language with respect to the joint custody, and again there are some details that are spelled out in Dr. Calnen’s proposal with regard to the spirit and intent of joint custody and I would suggest that that be incorporated in as much as possible to what the parties can agree on that language, but the mother will have the final say with respect to all medical issues as agreed upon, and in my view that would include the choice of the family physician. That is incidental to the children’s medical care and she is the person most qualified to make that determination. In all other respects, the parties will have joint decision making; in the event that they are not able to come to an agreement they will seek first a third party. Frankly, I don’t know of many instances where that would be an issue, it might be whether they go to a French Immersion or they go to the IB Program when they are in high school; that kind of thing could become an issue, but I would like to put some faith in the parties to consult together and to come to a mutual decision that is in the best interests of the children, and before resorting to the court to make a decision in the event of an impass, that they look to an independent third party to assist them in mediating that determination.
J.