SUPREME COURT OF Nova Scotia
Citation: Koerner v. Prindiville, 2018 NSSC 277
Date: 2018 10 30
Docket: 1205-003153
Registry: Pictou
Between:
Herbert Michael Koerner
Applicant
v.
Respondent
|
Judge: |
The Honourable Justice Joshua M. Arnold |
|
Heard: |
September 26, 2018, in Pictou, Nova Scotia |
|
Counsel: |
Mallory Arnott, for the Applicant Ellen Burke, for the Respondent |
By the Court:
Overview
[1] This decision relates mainly to child support.
[2] The matter was heard on September 26, 2018. The original issues related to custody, child support and special expenses. During the hearing the parties took a recess and returned having made the following agreement regarding custody:
• The parties shall share joint custody of their child, T.M.K.;
• Herbert Michael Koerner continues to have primary care;
• Vanessa Dawn Prindiville (Koerner) shall have access to T.M.K. beginning October 5, 2018, and every second week thereafter from after school on Friday at 5:00 pm, until Sunday at 8:00 pm, and the following week shall have one over night, depending on Ms. Prindiville's work schedule;
• Ms. Prindiville can also have other access from time to time; and
• This arrangement will be reviewed in June 2019.
[3] The outstanding issues are: 1) the amount of monthly child support payable by Ms. Prindiville; 2) section 7 special expenses; and 3) retroactive support payable by Ms. Prindiville. The parties argued two of these issues orally and then made further written submissions. No oral submissions were made by the parties regarding special expenses.
Facts
[4] Vanessa Dawn Prindiville (Koerner) and Herbert Michael Koerner were married on September 30, 2000. T.M.K. was born *****, 2006. The parties separated in February 2008 and were divorced on July 23, 2012. The Corollary Relief Order of July 23, 2012 states in part:
Custody
1. Joint custody of T.M.K. [sic], born *****, 2006 is granted to Vanessa Dawn Koerner, petitioner, and Herbert Michael Koerner, respondent. With Vanessa Dawn Koerner having primary day to day care.
Access
2. Herbert Michael Koerner may have reasonable access at reasonable times on reasonable notice to the said child.
Child support payments
3. Herbert Michael Koerner must pay child support to Vanessa Dawn Koerner in the amount of $160.42 each month.
The amount of child support is based upon the support parent’s annual income of $21,840.
The amount of child support is also based on the applicable table amount, in the Federal Child Support Guidelines, which is $160.42 each month.
Child support through health plan
4. Herbert Michael Koerner must continue to pay any medical, dental, or drug coverage by an employer that covers a child referred to in this order, must acquire and maintain coverage when it becomes available, and must see that the other parent is reimbursed without delay after a receipt is delivered by the other parent.
[5] According to the Order, Ms. Prindiville was to have day to day care of T.M.K.
[6] On January 15, 2017, T.M.K., then age 10, unilaterally decided to move in with Mr. Koerner. T.M.K. alleged abusive behaviour in Ms. Prindivlle’s home. Ms. Prindiville denies the allegations. T.M.K. did not return to Ms. Prindiville’s care. I was not called on to make any findings regarding the allegations of abusive behaviour.
[7] Mr. Koerner began requesting child support from Ms. Prindiville in February 2017. Ms. Prindiville refused to make any support payments, nor did she make an application in court to have T.M.K. returned to her care. Mr. Koerner’s wages were being garnished and sent to Ms. Prindiville for child support payments during this time period. Ms. Prindiville returned the garnished money to Mr. Koerner. This was a clear acknowledgement by Ms. Prindiville that T.M.K. was now in Mr. Koerner’s care.
[8] On August 6, 2017, having still not received any child support, Mr. Koerner filed notice for an application. A hearing was held before O’Neil, A.C.J. on November 3, 2017, and the resulting Child Support Order, dated December 4, 2017, was made, which states in part:
Child Support
1. All child support payable by the father to the mother is hereby suspended, effective January 31, 2017.
2. Child support is payable by the mother to the father, based on her income of $42,156.36 as set out in the Respondent’s Statement of Income on file herein. The amount of support payable by the mother to the father is $359.28 monthly, commencing November 30, 2017 and payable on the last day of every month thereafter.
3. The issue of any retroactive child support for the period of January 31, 2017 to November 3, 2017 shall be dealt with at the Settlement Conference scheduled for January 15, 2018.
Analysis
Monthly Support (Prospective)
[9] The parties did not vigorously argue the issue of ongoing monthly child support or section 7 special expenses. The main focus of their submissions related to retroactive child support.
[10] T.M.K. lives primarily with Mr. Koerner. Ms. Prindiville’s current gross annual income is $43,540.78. Mr. Koerner’s annual income is $27,388. Mr. Koerner requests that Ms. Prindiville pay him the table amount based on this income which he says is $370.76 per month. Ms. Prindiville agrees that she should pay the table amount based on her gross annual income. She calculates the table amount at $369 per month. I order Ms. Prindiville to pay the 2017 simplified table amount of $370.00, based on her gross annual income of $43,540.78, starting October 30, 2018, and payable on the last day of every month thereafter.
Section 7 Expenses
[11] In his brief of September 28, 2018, Mr. Koerner states that section 7 expenses should simply be divided based on the parties respective gross annual incomes:
As per our hearing brief dated September 10, 2018, Mr. Koerner is also seeking section 7 expenses to be shared proportionate to the parties’ incomes, being 45% paid by Mr. Koerner and 55% paid by Ms. Prindiville.
[12] In his brief of September 10, 2018, Mr. Koerner discussed the parties’ respective gross annual incomes, and said:
Mr. Koerner is seeking the table amount for support for T.M.K. [sic] on an ongoing basis, and section 7 expenses to be shared proportionate to the parties [sic] incomes, being 45% paid by Mr. Koerner and 55% paid by Ms. Prindiville.
[13] Ms. Prindiville made no oral submissions regarding section 7 expenses, nor was it addressed in her two briefs of September 28, 2018. In her brief of August 27, 2018, regarding section 7 expenses Ms. Prindiville states:
Ms. Prindiville requests that both parents continue with T.M.K. [sic] on any medical insurance through their respective employers, and that all Section 7 expenses be shared on an equal basis going forward as well.
[14] Based on the income of the parties, I order section 7 expenses to be shared proportionate to the parties’ incomes, being 45% paid by Mr. Koerner and 55% paid by Ms. Prindiville.
Retroactive Child Support
[15] Section 15.1 of the Divorce Act allows for retroactive child support to be ordered and states:
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
…
Guidelines apply
(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.
Terms and conditions
(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.
Court may take agreement, etc., into account
(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
Reasons
(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.
Consent orders
(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
Reasonable arrangements
(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.
[16] The parties agree that the leading authority regarding retroactive child support is D.B.S. v. S.R.G., 2006 SCC 37. In that decision Bastarache J., for the majority, confirmed that retroactive awards are not restricted to exceptional cases and stated:
5 Against this backdrop, it becomes clear that retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances. A modern approach compels consideration of all relevant factors in order to determine whether a retroactive award is appropriate in the circumstances. Thus, while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases either. Unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect. Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility.
[17] As noted in D.B.S., a court order is legally binding. It provides comfort and security to the parties. However, such orders are not set in stone. Circumstances change. Orders can be varied. As stated by Bastarache J.:
64 On the other hand, parents should not have the impression that child support orders are set in stone. Even where an order does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the order was made. For this reason, there is always the possibility that orders may be varied when these underlying circumstances change: see s. 17 of the Divorce Act; s. 18(2) of the Parentage and Maintenance Act. But even if the parents choose not to seek variation of an order, depending on why (and how freely) this choice was made, the child may still have the right to receive support in the amount that should have been payable. The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support.
65 In my view, a court order awarding a certain amount of child support must be considered presumptively valid. This presumption is necessary not only to maintain the certainty promised by a court order, but also to maintain respect for the legal system itself. It is inappropriate for a court, just as it is inappropriate for a parent, to assume that a previously ordered award is invalid.
66 The presumption that a court order is valid, however, is not absolute. As noted above, the applicable legislation recognizes that a previously ordered award may merit being altered. This power will be triggered by a material change in circumstances. Notably, the coming into force of the Guidelines themselves constitutes such a change under the federal regime: s. 14(c) of the Guidelines. An increase in income that would alter the amount payable by a payor parent is also a material change in circumstances: s. 14 of the Guidelines; Willick, at p. 688; see also s. 18(2) of the Parentage and Maintenance Act. Thus, where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents’ obligations.
[18] Justice Bastarache identified four factors to consider when determining whether retroactive child support should be ordered:
• Reasonable excuse for why support was not sought earlier;
• Conduct of the payor parent;
• Circumstances of the child; and
• Hardship occasioned by a retroactive award.
[19] Both parties argued the application of these four factors orally and in writing.
Reasonable excuse for why support was not sought earlier
[20] T.M.K. moved to Mr. Koerner’s in mid-January 2017. Mr. Koerner began requesting child support by February. The parties met to discuss child support in March. He eventually made a formal application to the court in August. Clearly, Mr. Koerner began requesting child support promptly and responsibly.
Conduct of the payor parent
[21] Neither parent is blame-free.
[22] By way of court order, T.M.K. was supposed to be living with Ms. Prindiville. She unilaterally moved to Mr. Koerner’s. Contrary to the court order, Mr. Koerner then allowed T.M.K. to remain living at his home. T.M.K. was 10 years old when she made this decision. If Mr. Koerner wanted to request a change to the court order, he should have brought a motion.
[23] That said, Ms. Prindiville was well aware that T.M.K. had moved. She made no effort to bring an application in court to have T.M.K. returned to her until Mr. Koerner applied for child support. Ms. Prindiville refused to make any child support payments until the order of December 4, 2017, was made by O’Neil, A.C.J. She was fully conscious that T.M.K. required financial support, yet ignored her obligations. By not making support payments to Mr. Koerner when T.M.K. moved to his home, especially when it was obvious that Ms. Prindiville was not going to promptly make application to have T.M.K. returned to her care, Ms. Prindiville put her own financial interests over T.M.K.’s. Ms. Prindiville should not be allowed to profit from such conduct.
[24] There was no order requiring Ms. Prindiville to pay anything to Mr. Koerner, and, in fact, there was a valid order requiring Mr. Koerner to pay child support to Ms. Prindiville. However, any presumption that Ms. Prindiville was acting reasonably in her refusal to contribute to T.M.K.’s support is baseless considering how pronounced the change in circumstances was when T.M.K. went to live with Mr. Koerner full time. At that point, having chosen not to request the court to enforce the order and have T.M.K. returned to her care, it was no longer reasonable for Ms. Prindiville to rely on the order.
Circumstances of the child
[25] The Koerners are of modest financial means. Mr. Koerner earns $28,000 annually. His partner has similar employment. Mr. Koerner and his partner had a small apartment when T.M.K. moved in. She had to sleep on a couch until the couple found a larger living space in June 2017. Support payments would have assisted in their finding a larger apartment more quickly. As Bastarache J. stated in D.B.S.:
113 Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.).
Hardship occasioned by a retroactive award
[26] Ms. Prindiville earns $43,540 annually after deductions for mandatory union dues. Her partner is currently on sick leave and is collecting benefits. He will be returning to work. There are two other children in the home. Ms. Prindiville alleges a deficit of $287 per month. According to her brief:
Ms. Prindiville is just getting off of sick leave. Her partner is also in receipt of sick benefits. She has two children in her home on a shared basis. Ms. Prindiville’s Statement of Expenses shows she is [sic] runs a monthly deficit of approximately $287 per month. With an income in the $40,000 range, a payment as suggested by Mr. Koerner would be extremely difficult for Ms. Prindiville to manage and would cause hardship.
[27] As Bastarache J. stated:
115 There are various reasons why retroactive awards could lead to hardship in circumstances where a prospective award would not. For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlike prospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet. On this point, courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children. In short, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact.
116 I agree with Paperny J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimizes hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.
Conclusion on retroactive child support
[28] Considering all four of the D.B.S. factors, based on the factual matrix presented to me in this case, retroactive support should be ordered. While there may be some hardship occasioned by Ms. Prindiville, she was well aware of the material change in circumstances of T.M.K.’s living arrangements, she did nothing to support her financially, and Mr. Koerner is of limited means. While T.M.K. was living at Mr. Koerner’s in contravention of a valid court order, she still required financial support.
[29] Ms. Prindiville argues that the date of retroactivity should be October 2017, when this application was made. In her brief she states:
Ms. Prindiville requests this Honourable Court limit the retroactive support award from August, 2017 when the Notice of Application was filed to October, 2017. Based on a monthly payment of $359 over three (3) months, this would result in a payment of $1,077. If you consider the $485.44 already paid by Ms. Prindiville to Mr. Koerner as well as Mr. Koerner’s underpayment in 2015 and 106, it is respectfully submitted an award as requested by Mr. Koerner should be denied.
If Mr. Koerner’s request for retroactive support is granted, Ms. Prindiville requests the order require repayment at no more than a rate of $100 per month.
[30] Mr. Koerner argues that the date of retroactivity should be February 2017, when he first notified Ms. Prindiville that he expected a financial contribution since T.M.K. had moved in with him. In D.B.S., Bastarache J., stated variously:
120 Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount of support have failed. Yet, this does not mean that formal recourse to the judicial system should have been sought earlier. To the contrary, litigation can be costly and hostile, with the ultimate result being that fewer resources — both financial and emotional — are available to help the children when they need them most. If parents are to be encouraged to resolve child support matters efficiently, courts must ensure that parents are not penalized for treating judicial recourse as a last resort. ...
121 Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.
...
123 Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. ...
[31] Based on the factual matrix of this case specifically, the date for a retroactive support award in this case starts February 2017, which is the date Mr. Koerner first requested financial support after T.M.K. moved into his home.
Quantum
[32] In D.B.S., Bastarache J., stated:
127 While the Divorce Act provides courts with discretion in deciding whether or not a child support award should be ordered, the same cannot be said for the quantum of this award. Both s. 15.1(3) for original orders, and s. 17(6.1) for variation orders, stipulate that a court making an order “shall do so in accordance with the applicable guidelines”. Therefore, so long as the date of retroactivity is not prior to May 1, 1997 — i.e., when the Guidelines came into force — the Guidelines must be followed in determining the quantum of support owed. The Parentage and Maintenance Act, on the other hand, does not fetter courts’ discretion in determining the quantum of child support awards: see s. 18. Courts awarding retroactive support pursuant to this statute will have greater discretion in tailoring the award to the circumstances.
128 That said, courts ordering a retroactive award pursuant to the Divorce Act must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended. There are two ways that the federal regime allows courts to affect the quantum of retroactive awards.
129 The first involves exercising the discretion that the Guidelines allow. Thus, the presence of undue hardship can yield a lesser award: see s. 10. As stated above, it will generally be easier to show that a retroactive award causes undue hardship than to show that a prospective one does. Further, the categories of undue hardship listed in the Guidelines are not closed: see s. 10(2). And in addition to situations of undue hardship, courts may exercise their discretion with respect to quantum in a variety of other circumstances under the Guidelines: see ss. 3(2), 4 and 9.
130 A second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive award captures. While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case. [emphasis added]
[33] Ms. Prindiville points out that the 2012 Corollory Relief Order required Mr. Koerner to pay child support in the amount of $160.42 per month based on a gross annual income of $21,840. Although Mr. Koerner’s income increased over the years, he did not increase the amount paid in child support. Ms. Prindiville calculates the underpayment in by Mr. Koerner 2015 and 2016 as $1,599. As a result, she argues:
The savings Mr. Koerner gained as a result of his underpayment to Ms. Prindiville in 2015 and 2016 should be considered in assessing his retroactive claim. It is submitted Mr. Koerner is not coming to the Court with “clean hands” in seeking the requested relief.
[34] Ms. Prindiville also suggests that Child Tax Benefits claims paid by her to Mr. Koerner should also be factored into the overall analysis:
It is respectfully submitted that a review of the evidence shows that neither party clearly communicated or understood the plan for T.M.K. [sic]. Ms. Prindiville paid Mr. Koerner her child tax benefit in February and March 2017 for a total payment of $485.44. Mr. Koerner states at paragraph 224 of his Affidavit dated August 29, 2018, that he told Ms. Prindiville not to pay him, but she insisted.
It is submitted the uncertainty regarding the arrangement, as well as Mr. Koerner’s objection to payment from Ms. Prindiville should be considered in determining whether Mr. Koerner reasonably advanced his claim for support in a timely manner.
[35] Mr. Koerner responds to the issue of the Child Tax Benefit and states:
There is not sufficient evidence to support Ms. Prindiville’s claim that the Child Tax Benefit (“CTB”) amounts she paid to him should be factored in. Para 224 of Mr. Koerner’s affidavit demonstrates nothing more than him wanting to deal with the CTB through the appropriate channels to avoid issues of claw back from the CRA. Para 225 of his affidavit confirms that this was sorted out through the CRA. Further, Jurisprudence states that Child Tax Benefit payments are not child support.
[36] Since the order of O’Neil A.C.J. on December 4, 2017, Ms. Prindiville has been required to pay $359.28 per month in support based on her income at the time of $42,156.36. Mr. Koerner points out that Ms. Prindiville’s actual gross annual income for 2017 was $43,540.78, which he says results in a table amount of $370.76 per month. As noted above, the simplified table amount is $370.00. Based on a monthly amount of support owing of $370.76, between February 2017 and October, 2017, the total amount of retroactive support owing to Mr. Koerner would be $370 x 9 months = $3,330.00.
[37] T.M.K. was living at Mr. Koerner’s contrary to a court order. Ms. Prindiville is of limited financial means. She is required to pay prospective monthly support payments to Mr. Koerner of $370.00. Keeping in mind the factual matrix of this case, the financial hardship issues of both parents, combined with the blameworthy conduct of both parents, I reduce the amount of retroactive support to $2,000. The retroactive support will be paid at a rate of $100 per month, for 20 months, starting November 30, 2018, and payable on the last day of every month thereafter.
Costs
[38] In his brief filed after oral submissions, Mr. Koerner requested costs of $1,000 in accordance with Tariff C. The parties had attended for a hearing and settled all outstanding issues relating the custody once the hearing commenced. The only remaining issues related to support payments.
[39] T.M.K. lived with Mr. Koerner for months in contravention of a valid court order. Ms. Prindiville should have been paying child support when T.M.K. moved, but avoided payment until the imposition of a court order.
[40] Considering the conduct of both parents, each party should bear their own costs.
Conclusion
[41] Ms. Prindiville is ordered to pay ongoing monthly child support in the amount of $370.00. As per the Corollory Relief Order, each party must provide a copy of their tax return immediately after it is filed, and a copy of their notice of assessment, immediately after it is received. Section 7 special expenses are to be shared proportionate to the parties’ incomes, as proposed by Mr. Koerner, 45% paid by Mr. Koerner and 55% paid by Ms. Prindiville. Ms. Prindiville must pay a retroactive support award in the amount of $2,000, at a rate of $100 per month starting November 30, 2018. Each party will bear their own costs in relation to this application.
Arnold, J.