(FAMILY DIVISION)
Citation: Brudy v. MacQuin, 2010 NSSC 338
Date: 20100915
Docket: SFHMCA065571
Registry: Halifax
Between:
Peter Jeffrey Brudy
Applicant
v.
Melody Anne MacQuin
Respondent
Judge: The Honourable Justice Moira C. Legere Sers
Heard: June 17 and 18, 2010
Counsel: Philip Whitehead and Marsha Curry, for Peter Jeffrey Brudy
Damian Penny, for Melody Anne MacQuin
By the Court:
[1] This is a brief written decision following an oral decision delivered June 18, 2010 relating to the matter between Peter Jeffrey Brudy and Melody Anne MacQuin.
[2] This matter was heard on June 17 and 18, 2010. The parties had agreed on many issues prior to the hearing. The particulars of the parties' agreement, together with the Court's decision relating to parenting issues, was rendered orally from the bench.
[3] The Court deferred a decision regarding Mr. Brudy's request for retroactive and prospective child support given the relative paucity of documentary and oral evidence. It was clear that the parties were dealing with estimates. Both counsel were directed to provide summations and calculations subsequent to the proceeding to clarify and confirm their in‑court calculations.
[4] There was insufficient current disclosure to be satisfied that the numbers were accurate at the time of the hearing. There was no updated statement of income and expenditures for Ms. MacQuin and her figures regarding her bankruptcy obligations were subsequently corrected in post hearing submissions. Her future income was subject to anticipated changes as of August 2010.
[5] The parties have filed their submissions on July 2 and 6, 2010.
[6] The Court is now rendering a decision with respect to the request by Mr. Brudy for retroactive child support to the date of the application and current support as a result of a set off in accordance with section 9 of the Child Support Guidelines.
[7] The original application was dated July 29, 2009.
[8] The parties have agreed to a shared parenting arrangement. It is impossible to determine a percentage of time the three children spend with their mother and Mr. Brudy given their changing schedules and needs.
[9] The original application dated July 29, 2009 requests relief to include child support. An interim application dated August 12, 2009 for relief under s.18 of the Maintenance and Custody Act did not specify child support. Other issues were paramount at that time.
[10] The Court was not asked to and did not address child support issues at the interim hearing and the order of August 13, 2009 did not deal with child support issues. Neither did the order of October 23, 2009.
[11] For the purposes of this decision on child support, I will simply set out what is pertinent to the child support issue.
Brief History
[12] The parties began living together in May 2004 and separated in early 2009, less than five years of cohabitation.
[13] Ms. MacQuin has two children from a previous relationship, D.E.H. born March 23, 1995 and J.A.H. born March 14, 1994. Only one child was born of their current union, C.E.M born June 5, 2005.
[14] Mr. Brudy stands in loco parentis to the two oldest children and has done so since the beginning of the relationship in 2004. Both parties wish that to continue.
[15] The Court found (paragraph 43 of Interim Decision) that the status quo throughout the five years was that these individuals lived together in a shared parenting relationship.
[16] Ms. MacQuin was the primary parent of her two oldest children and continues to receive $618.00 a month in child support from their father. He is not a party to this proceeding and does not live in this region, nor does he have a great deal of contact with his children.
[17] The parties agree that whatever child support the mother receives from the father of the two oldest children currently and prospectively will be divided equally between the parties to reflect their shared parenting relationship.
[18] The parties agree to continue having that income deposited into a joint account, recognizing there may be changes in this support order in the future. Both parties have access to the account and can determine what comes in and what is disbursed.
[19] Ms. MacQuin shall be responsible for paying forthwith one‑half of what she receives monthly from the older children's father.
[20] Both parties acknowledge that this amount could be varied in the future to reflect current expenditures and to acknowledge that some of the income for the two oldest is allocated for day care which is no longer a disbursement.
[21] Commencing July 1st, any payments received from the older children's father shall be split and continuing thereafter each month within 48 hours of receipt in the account.
Mr. Brudy's Income
[22] At the time of the separation Mr. Brudy was working as a general contractor, having left his part-time job with Capital District Health. He was in a reduced income position.
[23] His 2006 line 150 income was $31,951.53.
[24] His line 150 for 2007 is $43,763.54, which included employment income of $39,917.00 and EI benefits of $3,847.00.
[25] His 2008 income included income from Capital District Health as well as EI benefits and self‑employment income for a total line 150 of $26,067.07.
[26] In the statement of income prepared by Mr. Brudy as of July 29, 2009, he shows an annual income of $31,004.28.
[27] In his June 2009 monthly business statement he shows revenue of $43,200.00. He claims 80% of his vehicle costs, insurance, fuel, maintenance; 100% of his cell phone, tools and other costs as business expenses, leaving him with a gross income of $2,538.69.
[28] Mr. Brudy was not challenged on these issues or the percentages claimed as it relates to his net income. Historically his income indicates an ability to earn in excess of what he is currently earning. I have insufficient evidence to draw any conclusions regarding the appropriateness of this salary for Mr. Brudy.
[29] For the purposes of this proceeding, I accept as Mr. Brudy's income $31,773.36.
[30] A four year average is approximately $33,388.00.
Ms. MacQuin's Income
[31] Ms. MacQuin is employed as a critical care nurse and a flight nurse. In 2008 she declared income of $84,857.57.
[32] In 2009 it appears that she earned $33,258.00 from Capital District Health with another $44,976.00 from her Life Flight work, giving her an income of $78,234.00.
[33] Her 2009 income was $89,546.36 as shown in her 2009 tax return.
[34] This income reflects considerable overtime which may not occur in 2010. In addition, there will be a reduction in hours commencing August 2010. This income also includes the child tax benefit of $1,200.00. That will also change. She pays union dues of $533.00.
[35] This income is based on her working 0.5 for Capital Health District and 0.6 for Life Flight. At the end of August 2010, she advised she will drop her hours with Capital District Health to reflect 0.4.
[36] The parties agree that would put her in a position of reducing her income with Capital District Health from $33,258.00 to approximately $31,040.80 from September forward. This is somewhat speculative.
[37] Counsel for the father has confirmed he is prepared to accept as her income for the purpose of calculating child support set off, the sum of $75,096.96. This incorporates the presumed reduction occurring in September 2010, with the stipulation that a retroactive analysis will occur once 2010 income tax returns are exchanged, allowing for a retroactive adjustment to these assumptions.
[38] Ms. MacQuin advises that Mr. Brudy declared bankruptcy twice in the last seven years. In particular, he declared bankruptcy just before their separation. She testified the Canada Revenue Agency threatened to garnish her wages due to his outstanding debt of $40,000.00. In addition she advised they had joint debts of $120,000.00. As a result of the separation, she moved out of the family home with the children and moved in with her sister. She subsequently moved twice to reestablish herself closer to the children's school.
[39] When Mr. Brudy filed for bankruptcy in April 2009, Ms. MacQuin was left responsible for all the joint debts arising from their relationship including but not limited to "unpaid utility bills, mortgage, line of credit and a loan taken out for renovations to their home in Sydney." As a result, she took additional shifts to work additional income increasing her income over time.
[40] By August 2009 it was clear to her that even with overtime she could not pay off the debts arising from the relationship. On August 7, 2009 she filed for bankruptcy (the mother's affidavit June 8, 2010).
[41] As a result of her increased income, she was required to pay a monthly sum of $688.00 to the Trustee in addition to fees. If she earned more than $3,300.00 monthly, she believed an additional 50% was to be paid to the Trustee for the creditors.
[42] Mr. Brudy was not obliged to repay his Trustee any payments over and above the usual fees.
[43] Neither party wanted to adjourn to obtain better financial information for the hearing.
[44] Mr. Brudy is looking for retroactive support from the date of the separation to the current date.
[45] Mr. Brudy is also seeking a retroactive sharing of the child support paid to Ms. MacQuin by the older children's father to reflect an approximate proportionate sharing, recognizing they had a shared parenting arrangement and he bore part of the responsibility for the two oldest children.
[46] Ms. MacQuin did not file complete financial information. She did not have accurate figures regarding her future bankruptcy obligations. She did not file an undue hardship application.
[47] Ms. MacQuin does wish the Court to consider the effect of Mr. Brudy's bankruptcy on her and her initial attempts at maintaining payments of the debts and ultimately the effect that had on her.
[48] Ms. MacQuin filed a financial statement on November 18, 2009 which showed an income for 2009 of $60,929.04. Clearly she made an in excess of that.
[49] Ms. MacQuin acknowledged she did not have a very clear grasp of her financial circumstances. The lack of information was not helpful to her or to the Court.
[50] She testified that her payments to the Trustee would increase to $715.00 in the new year.
[51] Subsequently filed documentation from her counsel shows that the Trustee in Bankruptcy confirmed that Ms. MacQuin would pay $425.00 per month to her estate in bankruptcy from June 30,2010 forward (a period of 20 months) until the agreed upon debt of $8,500.00 was paid in full until otherwise ordered by the bankruptcy court.
[52] This agreement was the result of a mediation meeting on June 8, 2010, prior to this hearing. That information was not given to the Court on June 18, 2010 when the matter was heard.
[53] Ms. MacQuin and Mr. Brudy have paid for certain extra curricular activities and other activities for the children.
The Law
[54] In determining whether a retroactive award should be made the Court considers four general factors (S.(D.B). v. G.(S.R.), 2006 SCC 37).
[55] Of these four factors, the first, the reasonableness of the custodial parent's excuse for failing to make a timely application, is not applicable.
[56] The second really relates to whether any blame can be attributed to the conduct of the "non custodial parent." While this does not relate to the situation at hand where both parents are significantly involved in parenting, I could address the notion of blameworthy conduct by asking whether I can conclude the mother is blameworthy in her failure to pay what could have been the set off amount.
[57] The third factor relates to the past and present circumstances of the children and not of the parent and includes an examination of the children's standard of living.
[58] The fourth factor requires the Court to examine the hardship which may accrue to, in this instance, the payee parent should an award be made.
[59] With respect to blameworthy conduct, I have no evidence that there is blameworthy conduct with respect to the mother by not volunteering to pay a set off amount in these circumstances. The two older children and the third child moved with her at the time of separation. The evidence discloses the significant indebtedness that she attempted to meet by substantially increasing her hours of work.
[60] This placed the children for greater periods of time with Mr. Brudy which he then used to bolster his argument for a shared parenting order. This also resulted in his claim to an increased entitlement to child support.
[61] Mr. Brudy's conduct, his decision to declare bankruptcy and his timing of the decision was a significant trigger compounding the ordinary problems and expenses associated with separation.
[62] The consequences to the children and to the couple are indeed significant.
[63] Having created the triggering effect, it is hardly appropriate to lay blame on Ms. MacQuin for nonpayment while she scrambled to recover from this indebtedness and, at the same time, reestablish herself in a community, maintain her very significant employment hours and care for the children.
[64] Having no information that would allow me to conclude that Ms. MacQuin is blameworthy, I look to the circumstances of the children. I note that in addition to the financial information provided by both parties, the explanation for the business deductions for Mr. Brudy, the lack of contest and the lack of clear evidence from Ms. MacQuin, I have no evidence to suggest that with the support of both parents there was a significant difference or difficulty in the children's standard of living. Clearly they suffered emotionally from this separation.
[65] It was my sense that both parties were entirely focussed on winning a custody battle and in particular, Ms. MacQuin of retaining some kind of authoritative control over her two oldest children who lived with her far longer than they lived with Mr. Brudy. This was the focus of attention of both parties rather than the child support factor.
[66] The fourth factor the Court must consider is what would the effect be of a retroactive award to July of 2009 on Ms. MacQuin now that the custody matters have been settled and the parties are both separate.
[67] A retroactive award to July 2009 in the sum requested by Mr. Brudy, that being $13,309.00 would, in my view, be onerous. This payment would be in addition to the ongoing indebtedness that the mother had to absorb as a result of the bankruptcy and her own subsequent need to petition into bankruptcy, resulting in a monthly payment of $688.50 up to June of 2010 and $425.00 thereafter for a period of 20 months. As at June 2010 the agreed sum for repayment was $8,500.00.
[68] Free of indebtedness, Mr. Brudy was able to begin his self-employment projects again, earn an income of $31,000.00, (not a significant income but certainly in line with his last four years) and manage to have the children live with him.
[69] I have little evidence regarding Mr. Brudy's needs. I have no information that would allow me to weigh or consider how this retroactive award might be used to address the children's needs. There is no indication at all that the children's needs are not being met by both parents at this time.
[70] Section 9 of the Child Support Guidelines allows the Court some discretion once the set off amount is determined to consider the conditions, means, needs and other circumstances of the parents and children in making a child support award.
[71] I therefore decline to order retroactive child support back to the date of the application. However, it is appropriate that child support be paid from January 1, 2010 forward.
[72] I think it appropriate given the differences in the submissions and some of the problems in quantifying both incomes that each party, when exchanging income tax returns, provide exact proof of their income and expenditures and well as an up to date statement of income and expenses.
[73] In accordance with Mr. Whitehead's calculations, the annual income for Ms. MacQuin is $75,096.96 less union dues of $533.00 = $74,563.96 for a payment of $1,355.00 (absent a gross up of her bankruptcy repayments as requested).
[74] Mr. Brudy's income is roughly $31,000.00 for a payment of $616.00.
[75] From his bankruptcy in April to hers in August of 2009, Ms. MacQuin carried the financial load and will continue to do that until the final payment at the end of 2011. She bears an unequal and heavier responsibility for the financial indebtedness of the union.
[76] I am also concerned about retroactively sharing the income from the older children's father. This order is subject to change retrospectively and prospectively. I have no information whether a review of the guidelines and his income would result in a repayment to him or a retroactive award to Ms. MacQuin. Mr. Brudy has in the past taken the unusual step of involving this father in his separation. I ordered him to stop interfering between the children's father and their mother regarding access matters.
[77] If there is a retroactive assessment of the child support currently being paid to the mother for the two oldest children, this would require another application to have Mr. Brudy repay monies already distributed.
[78] The parties have agreed on a go forward basis to split whatever money is paid toward the two oldest children.
[79] I will not, for reasons stated, require a retroactive accounting for this. The mother was involved in setting up another residence for the two oldest children who are the beneficiaries of this previous child support award. She incurred the cost of relocation at least three times. An evaluation of those costs is impossible. I am also aware of the fact that this father has had minimal contact with the children from their move to Nova Scotia. This means that Ms. MacQuin was a single parent until she began to live with Mr. Brudy and was responsible for all costs of their upbringing.
[80] To split the income retroactively would not account for a more complex analysis of the first father's responsibility to the children and the effect of his non-involvement on Ms. MacQuin’s household.
[81] The actual set off considering only the annual salaries would be $739.00. However, I have considered Ms. MacQuin's payments towards the bankruptcy and considered that these payments take away from her household ability to address the children's needs. By paying the full amount, she is unfairly disadvantaged in her household and part of this disadvantage can be linked to Mr. Brudy's decision to declare bankruptcy and the residual effect on Ms. MacQuin.
[82] On a go forward basis, having regard to all of these circumstances, starting September 1, 2010 Ms. MacQuin shall pay to Mr. Brudy the sum of $500.00 per month until otherwise agreed by the Court or varied by court order.
[83] I also order Ms. MacQuin to pay from January 1, 2010 the sum of $500.00 as retroactive child support resulting in a payment of $4,500.00 payable on or before May 15, 2011.
[84] Mr. Brudy will therefore receive $500.00 per month from Ms. MacQuin and one‑half of whatever is received on a go forward basis from the father of the two oldest children.
[85] The parties have agreed to share pro rata according to their salaries the extraordinary expenses associated with child care, medical etc. According to the stipulated annual salaries, the pro rata sharing of extraordinary expenses should be 70% - 30%. They shall agree on other extra special expenses before obligating each other.
[86] Counsel for the applicant shall draft the order.
Legere Sers, J.
September 15, 2010
Halifax, Nova Scotia