SUPREME
COURT OF NOVA SCOTIA (FAMILY DIVISION)
Citation:
Bennett v. Bennett, 2015 NSSC 395
ENDORSEMENT
Peter Bennett v.
Brenda-Leigh Bennett;
Prothonotary No. 1201-061129; SFH-D 049236
August 18, 2015
• Brenda-Leigh Bennett on her own behalf
• Marsha Curry for Peter Bennett
Ms. Bennett applied to vary child support retroactively and prospectively. The couple’s daughter, Alice, will turn nineteen next month. Mr. Bennett asked that I authorize recalculation of child support pursuant to the Administrative Recalculation Program.
As the application approached hearing, Ms. Bennett determined that she wanted to argue that retroactive child support should be calculated having regard to all of section 9 of the Federal Child Support Guidelines, SOR/97-175. Since Mr. Bennett believed any retroactive claim would be calculated based only on subsection 9(a), I first consider whether I will exercise my discretion to make a retroactive award.
Decision:
1. Peter
Bennett owes Brenda-Leigh Bennett no child support for the period from November
2014 to April 2015.
2. Peter
Bennett shall immediately pay Brenda-Leigh Bennett child support of $3,550.00 for
the period from May 2015 to and including September 2015.
3. Subject
to her resuming the status of child of the marriage, child support payments for
Alice Bennett shall end on the payment of $3,550.00.
4. The
claim for retroactive child support is dismissed.
5. The order shall not be registered for administrative recalculation.
Reasons:
1.
Where
prospective and retroactive variations are claimed, prospective child support
must be addressed first because it may influence whether there is undue
hardship to be considered in the context of the retroactive support claim.
2.
There
are two different periods to be considered in determining child support since
November 2014. First, from November 2014 until May 2015, Alice was in a shared
parenting arrangement. Second, according to both Alice and Ms. Bennett, from
May 2015 to date, Alice has had her primary home with her mother. While Mr.
Bennett did not agree with this, his evidence on this point was not within his
personal knowledge.
November
2014 to April 2015
3.
While
in a shared parenting arrangement, Alice’s child support is determined by
section 9 of the Federal Child Support Guidelines. Based on line 150
of their 2014 tax returns, Mr. Bennett’s 2014 income was $80,394.00 and Ms.
Bennett’s 2014 income was $51,965.00.
4.
Mr.
Bennett argued that $450.00 should be added to Ms. Bennett’s income each month
because Del Clarke lived with her and paid this amount to her. I reject this
argument as it relates to 2014 when Mr. Clarke shared expenses with Ms. Bennett
and his contribution to the household was offset by the expenses which resulted
from his presence there.
5.
Throughout
the first six months of 2015, Del Clarke paid $450.00 each month to store items
at Ms. Bennett’s home while he did not live there and was not sharing expenses
with her. I am prepared to add $2,700.00 to Ms. Bennett’s 2015 income to
recognize these funds.
6.
Ms.
Bennett argued that some unstated amount should be added to Mr. Bennett’s
income each month because he provided housing, at no cost, to Janice Shrum.
7.
Janice
Shrum was, until 2010, Mr. Bennett’s common law spouse. Their relationship
ended and she moved to her parents’. In one weeks’ time, Ms. Shrum returned to
Mr. Bennett’s home where she has lived since.
8.
Mr.
Bennett said Janice Shrum attends to household tasks that he cannot manage because
of a back injury. He said that following his back injury he was unable to
access the lower half of the fridge or dishwasher, lift any groceries, do any
yard work, or lift 20kg bags of water softener salt. He said the difficulties
with his back continue and Ms. Shrum “continues to do the housework that requires
lifting and bending as well as most of the yard work when required.” He said
“I can do all of the chores most of the time but sometimes I can’t do any
chores at all.” He offered no evidence of how often he needs assistance with
the chores.
9.
Both
Mr. Bennett and Ms. Shrum describe their relationship as “roommates”. It is
reasonable to expect that, as a roommate, Ms. Shrum would contribute to
household chores.
10.
Mr.
Bennett’s injury does not prevent him from living an active life. He said that
he enjoys “outdoor activities including hiking and camping, fishing, rowing,
bike riding, skating, swimming and gardening and sledding.” He said that he
and Alice indulge in these activities as well as “croquet, horseshoes and
Frisbee.” Annually, he is able to take a car trip to Newfoundland and
Labrador. He taught Alice “to row a boat, drive a dirt bike and to drive a
car.” As well, he’s been able to perform maintenance on Alice’s car and other
cars.
11. Mr. Bennett’s work schedule does not mesh with Ms. Shrum’s, so there are times when he is without her assistance. He works shifts which mean that he may frequently be at home on weekdays, while Ms. Shrum works day-time hours, from Monday to Friday.
12.
Ms.
Shrum pays for her own groceries and for a portion of the cable package. She
pays bills associated with dogs at the home. She does not pay any rent.
13.
Mr.
Bennett did not provide any evidence about what it would cost to hire someone
to perform the tasks that Ms. Shrum performs. He did not explain why these
tasks could not be performed by Alice, who lived with him at least forty
percent of the time, or with the assistance of his older daughters.
14.
No
evidence was offered about the amount Mr. Bennett might reasonably expect a
tenant to pay for occupying his home.
15.
Pursuant
to subsection 19(1) of the Federal Child Support Guidelines, I find it
is appropriate in the circumstances to impute an additional $3,600.00 in annual
income to Mr. Bennett. This equates to a modest monthly payment of $300.00. Mr.
Bennett’s Statement of Expenses shows he pays $1,529.50 each month to operate
the home.
16.
For
2014, I find Mr. Bennett’s income is $83,994.00 (for which he would pay monthly
child support of $710.00). I find Ms. Bennett’s income for 2014 is $51,965.19
(for which she would pay monthly child support of $437.00). The set off amount
is $273.00.
17.
Having
regard to subsection 9(b) of the Guidelines, Mr. Bennett says that
shared parenting results in some duplication of expenses: Alice has wardrobes
in each home, a bicycle in each home and toiletries in each home.
18.
Alice
buys many of her own clothes, so this expense is somewhat mitigated. The
bicycles are a non-recurring cost.
19.
I
was not told how much more costly it is for toiletries because Alice is in a
shared parenting arrangement. Mr. Bennett’s monthly expense for toiletries and
household supplies is $40.00. He has not isolated his costs from Alice’s. In
no circumstances would I expect Alice to carry her toiletries back and forth
between her parents’ homes, so the issue is one of consumption: how much
greater is Alice’s consumption of toiletries because she spends at least forty
percent of her time at her father’s than it would be if she spent less than
forty percent of her time there? Given that some of the expense is for her
father and some of the expense would exist if she was spending less than forty
percent of her time with her father, I estimate that at most, the additional toiletries
cost resulting from her shared parenting was $10.00.
20.
Ms.
Bennett did not identify any additional costs because of the shared parenting
arrangement. She itemized expenses she had as a result of providing a home for
Alice, but none existed solely because of the shared parenting arrangement.
21.
Subsection
9(c) of the Guidelines requires me to consider “the condition, means,
needs and other circumstances of each spouse and of any child for whom support
is sought.” Ms. Bennett has clearly identified a number of Alice’s direct
costs which only she incurred or which she incurred in a greater amount than
Mr. Bennett: hair grooming ($62.29 for Alice) and clothing ($125.00 budgeted
for the household). Mr. Bennett’s budget for these items was $30.00 and
$50.00, respectively. Ms. Bennett calculated the direct costs relating to
Alice at $548.26 each month. This amount is exclusive of any costs to, for
lack of a better phrase, equalize the households’ standards of living.
22. During this period, Alice was working part-time and contributing to her own costs for clothing, recreation and entertainment.
23. The set-off payment of $273.00, in addition to Ms. Bennett’s own contribution to Alice’s costs (estimated at the table amount of $437.00), easily allows Ms. Bennett to meet all the costs she has itemized for Alice and allows additional funds of $161.00 each month.
24. In these circumstances, I find that Mr. Bennett’s monthly payment of $250.00 remained appropriate from November 2014 until May 2015.
May – September 2015
25. Alice has had her primary home with her mother since May 2015, according to Ms. Bennett. Mr. Bennett provides a more detailed record of Alice’s residence but it was not within his personal knowledge, rather it was based on hearsay. I find that Alice has not been in a shared parenting arrangement since May 2015 and has had – between her parents – her primary residence with her mother.
26.
According
to subsection 3(1) of the Guidelines, a child under the age of majority
is presumptively entitled to child support calculated having regard to sections
3 and 7 of the Federal Child Support Guidelines.
27. Alice has had no special or extraordinary expenses from May to date. For the months of May, June, July, August and September 2015, Mr. Bennett shall pay Ms. Bennett monthly child support of $710.00. This amount ($3,550.00) is due immediately.
October 2015 and beyond
28.
Alice
turns nineteen on September 14, 2015.
29.
Alice
is currently working almost full-time hours at McDonald’s where she earns
between $400.00 and $500.00 bi-weekly, according to Ms. Bennett.
30.
According
to her paystubs, Alice earns $10.83 per hour. To earn between $400.00 and
$500.00 bi-weekly, Alice would need to be working between thirty-six and
forty-six hours during each bi-weekly pay period: this is far less than
full-time hours. If she is working almost full-time hours, I would expect this
to be between twenty-five and thirty-five hours each week and earning between
$540.00 and $750.00 bi-weekly.
31.
Alice
hopes to attend flight school in Moncton in May 2016. Pending results of
medical tests, she has not applied to the flight school. Her alternate plan is
to attend the Nova Scotia Community College, starting in January 2016, to take
a culinary arts course. She has not applied for admission into this program,
either.
32. In either event, Alice has not applied for enrolment in any educational institution for the coming year.
33.
Even
when Alice applies to the Community College or the flight school, her admission
isn’t certain.
34.
In
essence, Ms. Bennett wants me to find that a young person who is planning on
furthering her education remains a child of the marriage. I was not offered
any judicial authority to support this proposition. In contrast, there is the
decision of Justice Dellapinna in Mason-Cramm v. Cramm, 2008 NSSC 308
where Ms. Mason-Cramm argued that since her daughter planned to return to
university in the next year, she should be found to be a child of the
marriage. Justice Dellapinna held that the daughter might regain that status but
that she did not, at the time of the application, have that status. Similar
reasoning and results are found in A.W.H. v. C.G.S., 2007 NSSC 181.
35.
While
Alice is over the age of nineteen and not pursuing an education, she is not a
child of the marriage and no longer entitled to receive child support from her
father.
36. Alice’s status may change if and when she returns to school. At this point, she is disentitled to receive child support when she turns nineteen. Mr. Bennett’s child support payments for her shall cease when he has paid the $3,550.00 I have ordered.
Entitlement to retroactive support
37. In deciding whether to make a retroactive award, I am to balance the competing principles of certainty and flexibility, while respecting the core principles of child support. Certainty means protecting the interest of someone who abides by the terms of a court order. Flexibility means adjusting an order, even retroactively, when appropriate. The core principles of child support are: child support is the right of child; the child’s right to support survives the breakdown of the relationship between the child’s parents; child support should, as much as possible, perpetuate the standard of living the child experienced before the parents’ relationship ended; and the amount of child support varies, based upon the parent’s income.
38.
At
paragraphs 99 to 116 in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry;
Hiemstra v. Hiemstra, 2006 SCC 37, Justice Bastarache, writing for the
majority of the Supreme Court of Canada, discussed the factors I should
consider before awarding support retroactively. The analysis requires each
parent making a claim to offer evidence of the reason for the delay in
advancing his or her retroactive claim, any blameworthy conduct on the other
parent’s part, the child’s past and current circumstances and whether a
retroactive award would cause the paying parent undue hardship. I am to
balance these factors in the context of certainty and fairness.
39. Justice Bastarache wrote at paragraph 96 in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, “As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted.”
40.
In
her Affidavit of June 15, 2015, Ms. Bennett gave her reasons for delaying: “I
did not have faith that Mr. Bennett would not pass along his anger to Alice if
I asked the court to update the child support amounts.”
41.
Alice
said that her father makes her feel like a financial burden. Ms. Bennett
identified circumstances where Mr. Bennett sought reimbursement for
insignificant expenses: $7.00 per visit to a therapist; $12.50 for an annual
insurance deductible; $1.75 per visit to a chiropractor.
42.
As
best can be determined, the chiropractor and therapist expenses arose in 2014,
so they could not have caused Ms. Bennett to delay making her claim in 2011,
2012 or 2013.
43.
Ms.
Bennett said she wanted retroactive support “because the only reason I did not
apply in a timely manner was Mr. Bennett’s behaviour toward Alice and the
damage it could potentially inflict on her emotional state.”
44.
Ms.
Bennett did not explain why she ceased to have concerns for Alice’s emotional
state or why these concerns had abated sufficiently for her to make her
variation application last year.
45.
Ms.
Bennett said she would not discuss her financial situation with Mr. Bennett:
“It was a matter of particular pride to not need help, especially from my ex
husband.” In doing so, she promoted – in Mr. Bennett – a sense that it was
acceptable that he continue to pay exactly what the Corollary Relief Judgment
demanded.
46. According to the majority reasons at paragraph 103 in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, recipient parents must act promptly and responsibly in monitoring the amount of support paid. Ms. Bennett hasn’t offered a reasonable explanation of her delay in seeking to adjust child support payments from the time of the divorce until late 2014.
47. I conclude that Ms. Bennett’s delay is not reasonable.
48.
I
am to consider whether Mr. Bennett’s conduct has been blameworthy.
49.
Following
the 2007 divorce, Ms. Bennett told Mr. Bennett that she wasn’t going to provide
him with her financial disclosure. Of course, this didn’t absolve Mr. Bennett of
his obligation to provide his disclosure. Each parent’s disclosure obligation
isn’t dependent on the other parent. Mr. Bennett had counsel in 2007. The Supreme
Court of Canada’s decision on retroactive support was released in July 2006, so
Mr. Bennett’s counsel would be aware of importance of ongoing disclosure and it
was Mr. Bennett’s counsel who prepared the Corollary Relief Judgment requiring
disclosure.
50.
Mr.
Bennett says that Ms. Bennett “never asked me for my financial information and
she never asked for an increase in child support.” However, he also says
“Brenda-Leigh Bennett would regularly complain to me about not having enough
money.” He attributes this to her “overspending on non-essential items for
Alice” rather than his inadequate child support.
51.
Mr.
Bennett says he responded to Ms. Bennett’s complaints by contributing to items
which were not “section 7 expenses” such as “clothes, gifts, parties, and
electronics.” I would expect Mr. Bennett to contribute to these costs. His
daughter lived with him at least forty percent of the time and these costs
ought not to have been borne exclusively by her mother. A shared parenting
arrangement presumes that each parent contributes to the child’s living
expenses and to costs (clothing, gifts, parties and electronics) that exceed
the mundane.
52.
Mr.
Bennett contributed to costs for Alice’s prom, her sixteenth birthday party,
her car and various gifts. He also contributed to the cost of her first year
at Saint Mary’s University.
53.
Even
though his annual income always exceeded the amount stated in the Corollary
Relief Judgment, Mr. Bennett did not adjust his child support payments. The
majority reasons in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry;
Hiemstra v. Hiemstra, 2006 SCC 37 make clear, at paragraph 124, that “Not
disclosing a material change in circumstances – including an increase in income
that one would expect to alter the amount of child support payable – is itself
blameworthy conduct.”
54.
According
to the Corollary Relief Judgment, Mr. Bennett’s 2006 income was projected to be
$59,864.88.
55.
Mr.
Bennett did not disclose his income in 2007, 2008, 2009 or 2010. In this
proceeding he disclosed his income from 2011 to the present. In 2011, his
total income was $72,959.00. His total income in 2012 was $74,678.59 and in
2013, it was $76,755.39. In 2014, his income was $80,394.00. These amounts
are exclusive of the $3,600.00 contribution from Janice Shrum that I have
imputed.
56.
Ms.
Bennett’s income in 2011 was $41,748.00. In 2012, it was $45,909.00. In 2013,
it was $45,165.00. Her income in 2014 was $51,962.00.
57.
Mr.
Bennett said that the Corollary Relief Judgment ordered child support which was
calculated solely on the basis of subsection 9(a) of the Guidelines.
Ms. Bennett seems to have believed this as well.
58.
This
is not so, having regard to the parents’ incomes in 2006 and the
then-applicable tables. The set-off amount from the tables which applied in
2007 is $147.00 per month. For whatever reason, the parties agreed that Mr.
Bennett would pay child support that was seventy percent more than the set-off
amount.
59. The set off amount for the years from 2011 to 2014 is shown in the table below. This includes amounts I’ve imputed to Mr. Bennett. If the parties believed that the appropriate amount of child support was the set off amount, the table below shows how close (or far) Mr. Bennett’s monthly payment of $250.00 was from that mark.
Year |
Mr. Bennett’s income |
Table amount |
Ms. Bennett’s income |
Table amount |
Set-off |
2011 |
76,559.00 |
660.00 |
41,748.00 |
363.00 |
297.00 |
2012 |
78,278.59 |
663.00 |
45,909.00 |
384.00 |
279.00 |
2013 |
80,355.39 |
680.00 |
45,165.00 |
379.00 |
301.00 |
2014 |
83,994.00 |
710.00 |
51,962.00 |
437.00 |
273.00 |
60.
At
best, Mr. Bennett’s payments were ninety percent of the set-off amount. At
worst, they were eighty-three percent of that. In every event, they were far
less generous than the baseline amount ordered in 2007, which exceeded the
set-off amount at that time by approximately seventy percent.
61.
The
Corollary Relief Judgment also ordered that Mr. Bennett contribute equally to
any extraordinary expense or extra-curricular activity for Alice on which he
and Ms. Bennett had earlier mutually agreed.
62. The parties agreed to equally share these expenses. Ms. Bennett’s income was lower than Mr. Bennett’s. The guiding principle of sharing special or extraordinary expenses is that they be shared in proportion to parents’ incomes, after deducting any contribution by the child, according to subsection 7(2) of the Guidelines. So, this provision seems to favour Mr. Bennett. However, section 7 of the Guidelines only requires parents to contribute to extraordinary extra-curricular activities, so Mr. Bennett’s agreement to contribute to extra-curricular activities, even if not extraordinary, is notable.
63.
The
Guidelines anticipate a contribution by the child. Since Alice has been
working, her earnings could reduce the amount both her parents would contribute
to her costs.
64.
Since
2011, Alice has participated in no extra-curricular activities that have been
identified to me.
65.
Mr.
Bennett has contributed to some expenses that would not be governed by section
7. I have noted the gifts, parties, car and prom earlier.
66.
Mr.
Bennett met – but did not exceed – his financial obligations under the
Corollary Relief Judgment. He did not meet his disclosure obligation. Mr.
Bennett’s view that he was contributing adequately would have been bolstered by
Ms. Bennett’s adamant view that she did not require help.
67.
Mr.
Bennett’s conduct was blameworthy. His income increased by approximately
$20,000.00 (roughly one-third) since the divorce (exclusive of what I have
imputed to him from Ms. Shrum) and he failed to adjust his child support.
68.
I
am to consider Alice’s circumstances in deciding whether to exercise my
discretion to award retroactive child support.
69.
Neither
parent indicates any debt has been incurred to meet Alice’s past needs. Of the
two, Ms. Bennett has sacrificed more to provide Alice with a standard of living
which approximates the lifestyle Alice enjoys at her father’s home.
70.
Alice
has not yet applied to any post-secondary program. If she does, she will need
financial support to pursue her education. Her own earnings ($7,651.00 in 2014
and an estimated $8,144.00 in 2015) are insufficient to finance post-secondary
education fully. Her RESP may be insufficient, depending on the educational
program she pursues. It’s expected her 2015 earnings will be greater than she
had earlier projected.
71. I conclude that Alice could benefit from a retroactive award if she pursues post-further secondary education. If she does not, a retroactive payment is a windfall which doesn’t serve any of the purposes of child support.
72.
Whether
a retroactive award would create undue hardship for Mr. Bennett depends on the amount
ordered.
73.
According
to Mr. Bennett’s Statement of Property, he has three vehicles collectively worth
$25,000.00. His home has a mortgage which will be retired by the end of 2015,
relieving him of a monthly payment of $865.00. He has RRSP contributions worth
approximately almost $12,000.00, and stocks valued at approximately $12,000.00,
in addition to an employment pension.
74.
Having
regard to these factors I conclude that I will not exercise my discretion to
make a retroactive award for the period before November 2014. Until that time,
Ms. Bennett was aware of the discrepancy between the households’ lifestyles.
She did nothing, though she told Mr. Bennett her finances were strained. Her
comments, combined with her inaction, encouraged Mr. Bennett to rely on the status
quo. If Alice decides to pursue her education, she may have recourse to
future child support. In these circumstances, it is more appropriate to
respect the certainty that the parties relied upon and I decline to exercise my
discretion to award retroactive child support.
Recalculation
authorization
75.
Mr.
Bennett has asked for a recalculation authorization provision in my order.
76.
Recalculation
authorization is outlined in NS Reg. 161/2014. Section 9 of the Regulations
makes clear that I “must not” authorize recalculation in certain
circumstances. While none of the circumstances enumerated in section 9 apply
to the Bennetts, subsection 11(b) of the Regulations notes that a recalculation
authorization order expires on the date that any child to whom the order
applies reaches the age of majority.
77.
Presumably
this expiry is imposed because once the age of majority is reached, it is
possible that child support may be calculation pursuant to clause 3(2)(b) of
the Guidelines, rather than through the mechanical application of the
tables.
78.
Alice
will reach the age of majority on September 14, 2015.
79. I see no benefit to registering the order for a period of days and decline to authorize recalculation.
Directions:
Ms. Curry shall prepare the order.
_____________________________
Elizabeth
Jollimore, J.S.C.(F.D.)