SUPREME COURT OF NOVA SCOTIA FAMILY DIVISION Citation: Staples v. Callender, 2020 NSSC 365
Date: 20201210 Docket: MCA No. 042753 Registry: Halifax
Between: Tracey Lee Ellen Staples Applicant v.
Mark Anthony Callender
Judge: The Honourable Justice Cindy G. Cormier Heard: October 15, 2020, in Halifax, Nova Scotia Written Release: December 10, 2020 Corrected The text of the original decision has been corrected according Decision: to the attached erratum dated February 4, 2021. Paragraphs 61, 103, 104, 122, 146, 147, 148, 150, 151, 152, 165, 179, 194, 201 and 211 have been amended.
Counsel: Tracey L. E. Staples, Self-represented Applicant Damian Penny, counsel for Mark A. Callender, Respondent
Respondent
Page 2 By the Court: Introduction [1] Tracey Staples, and Mark Callender, have two children together, J and D. J was born in 1998, and he turned nineteen on May 24, 2017. D was born in 2005.
[2] The Variation Order Ms. Staples seeks to vary was granted in late February 2016.
[3] The parties were never married, and they did not live together. They both acknowledge D is a dependent child and has always lived primarily with Ms. Staples. Mr. Callender agrees to pay the table amount of child support for D to Ms. Staples. He does not agree to retroactively adjust the table amount of child support paid for D. [4] Throughout this proceeding, Tracey Staples has claimed that J has always lived primarily with her. In this proceeding Ms. Staples acknowledged J has spent a significant amount of time at his grandparent(s)" home, but argues it was less than 30% of his time, and he lives with her. Previously, in 2016, Ms. Staples stated that J was living with his grandparents and she was providing financial support for him.
[5] Mr. Callender suggested that J began living primarily with his maternal grandparents as early as 2015, and that when J's maternal grandfather passed on, J continued living with his maternal grandmother, Barbara Staples. Mr. Callender argues that he should not be required to pay child support for J, as J turned 19 in May 2017, he is not disabled, and he was not enrolled in a full-time educational program between May 2017 and August 2019.
[6] In the alternative, Mr. Callender argued that he should not have to pay the full table amount of child support for J. Further, that if he is ordered to pay any child support for J, that it should be paid to J, or to Barbara Staples, and not to Tracey Staples. Mr. Callender did not agree to retroactively increase the table amount of child support for J.
[7] Mr. Callender argued that he should not be required to pay certain special expenses identified by Ms. Staples for both D, and for J. If Mr. Callender is ordered to pay child support for J, he has asked the court to direct that his payment be made directly to J, or to J's maternal grandmother, in lieu of payment to Tracey Staples.
Pagc3 [8] Ms. Staples has three additional children from another relationship. Q was born in 2008, with Ms. Staples being granted sole custody in July 2009. F was born in 2010 with custody to Ms. Staples in July 2011. P was born in 2011, with Ms. Staples being granted primary care in August 2012.
[9] Ms. Staples works with the Halifax Regional Municipality. Based on her Statement of Income, filed in October 2019, Ms. Staples was expected to earn approximately $55,572.00 in 2019. Ms. Staples failed to file her 2019 Tax Return.
[10] Mr. Callender has re-partnered. He has no other dependent children. Mr. Callender works at Kent Building supplies and he earned $50,458.59 in 2019.
Application to vary [11] In October 2019, Tracey Staples filed a Notice of Variation Application. Mr. Callender was served on December 3, 2019.
[12] Ms. Staples was initially seeking: a. to establish the appropriate prospective table amount of child support for D and J, and to retroactively vary (increase) the table amount of child support back to February J, 2017, to correspond with Mr. Call ender's annual income for child support for those years;
b. Mark Callender be ordered to pay his proportionate share of certain special expenses which arose after the Variation Order was granted in February 2016. Expenses including the following: health and dental expenses over one hundred (glasses, orthodontics, and counseling), post-secondary expenses for J, J's vehicle expenses, and the children's monthly cellular telephone expenses 2019/2020.
c. to adjust the payment method directed for the payment of the retroactive award ordered per paragraph 4(d) of the Variation Order granted in February 2016.
[13] The Maintenance Enforcement Program of Nova Scotia Record of Payments for the periods of July 7, 2014 through October 22, 2019, July 7, 2014 through October 16, 2020, and July 7, 2014 through November 5, 2019, indicate Mr. Callender had been paying child support according to the terms of the Variation Order granted in February 2016. I will consider the amount of the retroactive award when calculating any retroactive adjustment to section 3 child support.
Page 4 [14] In January 2020, Ms. Staples filed a letter confirming some requests, but also making further requests. She asked the court to make the following orders:
d. "all arrears and retroactive child support from 2016 forward calculated and made payable by Mark Callender immediately and in full .''
e. the court no longer rely on an average of Mr. Callender's income over three years as directed by the court order, but calculate each year separately. [The parties agreed to rely on individual calendar years on a prospective basis to determine the parties' income, from November 2019 onwards.]
f. Child support payable be subject to the Administrative Recalculation NS. Reg 161/2014. [Tlze recalculation program was not lll'{/ilable to the parties in 2016. and given .l's age and circu111stances, the recalculation program is not availahle to the parties now.]
g. That the court determine child support payments be paid on a bi-week.Jy basis, and not bi-monthly (per 2016 Variation Order), to reflect Mr. Callender's pay schedule and to avoid overpayments, and difficulties for the Maintenance Enforcement Program Office. [Mr. Callender consented to a payment schedule every two weeks, fur 26 pay111ents per year. ]
h. Change the $50.00 per month payment for the retroactive of $6,'.?.78.00 owing as of February 2016. [See paragraph 13 above/.
t. Mr. Callender to maintain medical and dental coverage per order granted in February 2016 ($43.00 bi-weekly), with no obligation for Ms. Staples to obtain medical and/or dental insurance. [Mr. Callender agreed to maintain coverage f<Jr the children, but argues that Ms. Staples should also 111aintain co1•erage]
[15] On March 10, 2020 Ms. Staples filed a Statement of Undue Hardship. Ms. Staples argued that because she has a legal duty to support three dependent children from another relationship, in addition to her duty to support D (a dependent child), and J (dependent child over 19), she should not have to share any special or extraordinary expenses with Mr. Callender.
[16] An Order was granted in or around 2013, ordering the father of Ms. Staples three other children to pay $1,083 per month in child support. There is no evidence with respect to whether the payor's annual income has increased since 2013, or whether that payor increased his child support voluntarily since 2013, or whether he owes Ms. Staples retroactive child support dating back to 2013.
Pagc 5 [17] No calculations were provided by Ms. Staples for any undue hardship claim. Ms. Staples did not provide her Tax Return for 2019.
[18] Ms. Staples asked the Court to consider Mr. Callender' s partner's income, she suggested his "household income", when determining a proportionate sharing of any special or extraordinary expenses. Ms. Staples did not appear to consider receipt by her of an additional $12,996 per year, or more, as part of her "household income" .
Issues [19] The issues to be determined: J. Whether there has been a change of circumstances. The parties agreed there had been a change of circumstances, including changes to the parties' incomes, and a chan~e given .I reached the age ofm ajori(V in Ma_v 2017.
k. The incomes, means, and expenses of both parties, and the income, means, expenses, and needs of J.
1. Should the table amount of child support be paid for just one dependent child, D, or for two dependent children, D and J, prospectively and retroactively?
i. Has J been enrolled in a full-time educational program, or has he been disabled since November 2019? or between May 2017 and August 2019?
11. If J is, or was eligible for child support, what amount of child support, if any, should be paid for J as a child over 19, given his means? To whom should child support be paid?
m. Is there an underpayment, or an overpayment of child support after child support is recalculated for the period between March 2017 and October 2019?
n. Who should contribute to certain prospective or retroactive special or extraordinary expenses for J, and for D, which were incurred in 2018 or 2019, or ongoing expenses incurred in 2019/2020? Are the expenses special or extraordinary?
o. Whether Mr. Callender should continue to maintain dental and medical insurance for D, and J, and whether Ms. Staples was obligated to, or should be obligated to obtain medical and dental insurance for J and D.
Page 6 Change of circumstances and child support [20] I have considered the circumstances which existed at the time the Variation Order was granted on February 29, 2016. I have also considered any changes of circumstances since that time.
[21] I have reviewed the evidence, I have considered the credibility of each witness based on each witnesses' testimony, and the documents filed. I have considered the relevant legislation, the relevant case law, and the parties' submissions. I have considered any inconsistencies in the evidence, and if appropriate, I have drawn adverse inferences when either party failed to file the requested documents, or failed to file sufficient financial information.
[22] I applied sections 1-3, 6, 10, 13, 14, 15, 16, 17, and 19 of the Guidelines, to determine a fair standard of child support for D, and for J. Prospective child support pursuant to section 3 of the Guidelines, is intended to ensure children who continue to be eligible, also continue to benefit from the financial means of both parents.
Circumstances leading up to the Variation Order granted in February 2016 [23] Mr. Callender applied to the court requesting further contact with his children. Mr. Callender suggested Ms. Staples was making it impossible for him to see D and J. Ms. Staples suggested it was too little, too late, and the court should leave it up to the children to decide when to see Mr. Callender. Mr. Callender had very little contact with J, who was residing with his grandparents, and struggling academically.
[24] In September 2019, J provided information to his psychologist confirming he had a history of struggling with relationships, and he moved to his grandparents' home in or around grade 8. J stated that his attendance in high school, likely for the school years 2013/2014, 2014/2015, 2015/2016 and 2016/2017, was not good.
Age of majority - disability [25] Ms. Staples argued that J continues to be dependent because of certain challenges he faces due to a disability.
[26] Ms. Staples filed an Attention-Deficit/Hyperactivity Disorder Assessment Report completed by Brittany MacGregor MA, and reviewed by Dr. Brent Conrad, of Green Leaf Psychological Services, Inc., dated September 11, 2019.
Page 7 [27] In advance of trial the court inquired about the Assessment Report referenced by Ms. Staples. Ms. Staples was directed to re-file a copy of the Assessment Report she had relied upon at a judicial Settlement Conference. Ms. Staples' intended to rely on the Report. Mr. Callender indicated he intended to cross-examine the writer. Ms. Staples was advised of her responsibility to have Ms. MacGregor available for cross-examination.
[28] In advance of trial, Tracy Staples indicated she had not understood the need to subpoena the expert witness. She was given the option of adjourning Ms. MacGregor's testimony to a future date, to allow her an opportunity to subpoena the witness, to ensure Mr. Callender had an opportunity to cross-examine the witness. Tracey Staples declined the court 's offer to adjourn Ms. MacGregor's testimony to another date.
[29] The Court could not rely on the expert findings contained in the Assessment Report. However, the Court could consider the information provided to the assessor by J, and the Court could consider if there was any evidence that J had followed any of the recommendations made by the assessor.
[30] Brittany MacGregor made various recommendations for J, including in part, the following:
p. Academic recommendations, she suggested J meet with his campus Disability Services Office to discuss academic accommodations.
q. Attention Deficit Hyperactivity Disorder recommendations, she suggested J might benefit from medication, exercise, time management planning, and reading certain books to address and or better understand his symptoms.
r. Anxiety and mood recommendations, she suggested he may wish to pursue further diagnostic assessment for depression and treatment of symptoms, learn relaxation techniques, complete certain tasks, develop better sleep habits.
s. J was also encouraged to seek out funding organizations and bursary options for students with diagnosable disabilities and he was provided with certain resources -including:
i. http://novascotia.ca/psds 11. https://www.mta.ca/uploadedFiles/Community/Student. Services/Meighen Centre/current students/Grants/NS-Grant Application-and-Guidelines.pdf
Page 8 iii. https://www.canada.ca/en/employment-social-development/services/education/grants/disabilities-service-equipment.html
iv. http://disabilityawards.ca [31] I accept that J, who was accompanied by his grandmother, Barbara Staples, did participate in the above noted assessment. I accept that Ms. MacGregor made the above noted recommendations for J. I also accept that J, his grandmother, his mother, and his father (through the judicial Settlement Conference), were all aware of the recommendations made.
[32] I am not able to decide whether the diagnosis made, or the recommendations were valid given that Ms. MacGregor was not available to be qualified as an expert, or to be cross-examined. However, I find that a diagnosis in and of itself, would not prove J is unable to work, or he will be unable to become independent of his parents at a future date. It is not necessary, nor is it possible, for me to determine J's employment prospects based on the above noted assessment.
[33] Further correspondence was received from Brittany MacGregor dated November 15, 2019. In part, Ms. MacGregor indicated:
There were a number of recommendations provided to [J ] at the time of the feedback meeting to help remediate his ADHD, Social Anxiety Disorder, and symptoms of depressed mood. After J consults his family physician and sees a psychologist or psychiatrist for therapy it is hoped that his diagnoses will not cause him such significant impairment. However, there is no timeline as to when this would be as it is very individual for each person once starting any medical intervention or therapy.
[34] I find it is in J's best interests to discuss the above noted Assessment Report, and the recommendations with his family physician.
J's Primary Residence [35] I accept Ms. MacGregor's summary of her discussions with J which are included in her report. I consider her report to contain an accurate representation of what J told her.
Page 9 Documents also considered [36] In July 2015, Mr. Callender filed a Notice of Application seeking to address the issue of custody and access. In his Parenting Statement he indicated J was residing in Windsor, Nova Scotia with his maternal grandparents. Mr. Callender stated in part, that he was, "Not allowed any access [with J] whatsoever since July 2014 despite my efforts".
[37] The Statement of Contact Information Mr. Callender filed in 2015 indicated Mr. Callender was living on Parkland Drive in Halifax, and that Ms. Staples was residing on Sheppard's Run in Beechville, Nova Scotia.
[38] In response to Mr. Callender's Notice of Application filed in 2015, Ms. Staples filed two Parenting Statements. She filed one on July 8, 2015, and the other on September 4, 2015. In the first Parenting Statement Ms. Staples stated J "lives with his maternal grandparents," in the second Parenting Statement Ms. Staples stated that J "is residing with grandparents due to restrictions - I am still providing for him - (D) lives with me." The Parenting Statements were marked as Exhibits 5 and 6 at the trial heard by me on February 29, 2016.
[39] In this application, Tracey Staples has argued that J resided at his maternal grandmother's home approximately 25 - 30% of the time. She has claimed that J "likely" spends more than seventy percent of his time living with her, and up to 30% of his time living with Barbara Staples.
[40] Ms. Staples has stated that she "goes to her mother's home quite frequently". She claimed that she is at Barbara Staples' "home most or every weekend with all five children". Ms. Staples indicated she purchases groceries to bring with her to her mother's home on weekends.
[41] It is difficult to understand how J could reside with his grandmother throughout the week September through April, and also stay at his grandmother's home with Tracey Staples and his siblings, "almost every weekend", and still be at Tracey Staples' home 70% of the time.
[4 2] Barbara Staples testified, and in cross-examination she stated she thought J lived with her "one third of the time". She then stated she "did not know for certain", and that she could "not quantify the time" J spent living with her. She said it could be twenty- five to thirty percent of the time, but it could vary.
Page 10 [43] Various documents were highlighted by Mr. Callender as evidence that J's primary residence was with Barbara Staples.
t. Barbara Staple's address in Mount Uniacke was listed as J's mailing address in correspondence from the following service providers: .I's orthodontic clinic, Dalhousie University, Green Leaf Psychological services, TD insurance regarding J's car, and the Nova Scotia Community College.
u. J's High school transcript for adults (from the Nova Scotia Community College in Bridgewater), lists J's mailing address as his grandmother's address in Mount Uniake.
[44] In response, Ms. Staples highlighted other documents as evidence that J's primary residence is with her, Tracey Staples:
v. Correspondence sent to J, with Tracey Staples's address in Lower Sackville included correspondence from the province of Nova Scotia related to a grant he received in 2020, and from Canada Revenue, including a Notice of Assessment for J's income for the tax year in 2018, which was $6,671.00 (Employment income of $2,837.25, and other benefits paid $3,834.00), and a Notice of Assessment for J for 2019, income of $689.00.
[4 5] I have also considered the following documents: w. On September 16, 2019, Barbara Staples completed a declaration of full-time studies for over-age dependent students (retired plan member benefit plan) for benefits from Great West Life, for J, for the Nova Scotia Community College, for the period September 2018 through May 2019. It is unclear whether this was an online or an in-person program.
x. In October 2019 Ms. Staples filed a Statement of Contact Information and Circumstances with her Variation Application and she noted that J was residing with his grandmother '"(going to university)".
[46] In September 2019, J moved into a student residence in Truro, and he started his post-secondary program. Within several weeks, J left the student residence and he returned to live with his maternal grandmother, at 90 Partridge Lane in Mount Uniacke, N.S.
[47] Barbara Staples made representations to Great West Life, and to Dalhousie University, regarding J's address. She suggested J lived with her. Barbara Staples stated she was no longer able to access benefits for J after she retired in or around
Page 11 November 2019. I find Barbara Staples was able to access medical and dental insurance for J through Great West Life before November 2019, because J resided primarily with her.
[48] Barbara Staples acknowledged she had never accessed benefits on behalf of D. I find Barbara Staples did not apply to receive benefits for D, as D has never resided with her.
[49] After considering the documentary evidence summarized above, after reviewing the testimony of Tracey Staples, of Barbara Staples, and of Mark Callender, and after reviewing the comments J made to Ms. MacGregor, I find that during the relevant period, and before, J resided primarily with, and he continues to reside primarily with Barbara Staples.
Mr. Callender's income, November 2019 forward [50] Mr. Callender has acknowledged his income does not fluctuate as much as it did for the period before the Variation Order was granted in February 2016. The parties have agreed to change the method used to calculate Mr. Callender's income for the table amount of child support on a prospective basis. They agreed to use his yearly income.
[51] Mr. Callender has acknowledged that his income for 2020, is likely to be very similar to his income in 2019, around $50,000.00.
[52] For 2020, Mr. Callender and Ms. Staples agreed, on a without prejudice basis, to rely on Mr. Callender's annual income for child support from 2019, $50,458.59.
[53] The parties will adjust child support for 2020 upon receipt of Mr. Callender's income information. Any underpayment, or overpayment for 2020 should be addressed between the parties by the end of January 2021.
[54] If there is an overpayment, the amount of the overpayment will be credited toward child support for 2021.
y. Child support must be adjusted in 2020, either increased or decreased, upon re_ceipt by Mr. Callender of his year-end income statement from his employer. An adjustment must be completed by Mr. Callender at the end of 2020, and at the end of every year thereafter while D continues to be a dependent.
Page 12 z. Mr. Callender must provide Ms. Staples with his year-end income statement from his employer, his full Tax Return, and any Assessment or Re-Assessment each year to allow Ms. Staples to calculate child support owed.
[55] If Mr. Callender fails to disclose his year-end income, his Tax Returns, any Assessment or Re-Assessments, or any year thereafter, while D remains a dependent child, Ms. Staples may apply to have the court adjust the table amount of child support. If it is necessary for Ms. Staples to apply to this court to adjust section 3 child support based on Mr. Callender's yearly income, costs may be ordered against Mr. Callender, and income may be imputed to him if not disclosed in a timely way.
Mr. Callender's income [56] The Variation Order granted on February 29, 2016 states at paragraphs 2 and 3:
Paragraph 2 Based on the average annual income of $40,470.83 (2013, 2014 and 2015), Mark Callender shall pay Tracey Staples the table amount for two children of $576.00 per month, based on the applicable table amount according to the Child Maintenance Guidelines. Payments are due twice per month, on the 1 st and 15 th of each month in the amount of $288.00 on an ongoing basis, commending March 1, 2016.
Paragraph 3 Due to Mark Callender's annual income varying with overtime hours that cannot be guaranteed and other assignments which arise irregularly, his annual income each year for child maintenance purposes will be an average of his last three years' annual income. In addition to usual financial documents needing to be provided to Tracey Staples on a yearly basis, the end of year total income amount shall be confirmed by way of a letter from Mark Callender's employer, a copy of which will be provided to Tracey Staples by Mark Callender January 3pt each year.
[57] For the purposes of a retroactive recalculation for the period between March 2017 (one year following the Variation Order), and October 2019 (the month when Ms. Staples filed her Variation Application), Mr. Callender's annual income for child support shall continue to be calculated based on an average of Mr. Call ender's income, per paragraph 2 and 3 of the Variation Order reproduced above.
Page 13 [58] In February 2016, the court found Mr. Callender's income for 2014 to be $$37,860, and his income for 2015 to be $44,132.54. Mr. Callender's average income for 2016 was found to be $40,470.83. Mr. Callender' s actual income for 2016 was $44,799.
[59] For 2017, one of Mr. Callender' s Tax Returns indicated his income was $8,329, and the other indicated his income was $38,809. Mr. Callender claimed his income was $38,809.00. Adjusted with the formula, I found his income for 2017 to be $42,263.90.
[60] Mr. Callender claimed his 2018 income was $38,131.88. Adjusted with the formula it would have been $42,580.16. Mr. Callender was reminded to file, but he did not file his 2018 Tax Return. I have drawn an adverse inference, and imputed Mr. Callender's 2018 income as $50,458.59 (based on his 2019 income).
[61] In 2019 Mr. Callender's income was found to be $50,458.59 for the months of November and December 2019. Adjusted with the formula for the period between January, and October 2019, Mr. Callender's income is found to be $44,688.86.
Mr. Callender' s expenses/means [62] Mr. Callender filed a Statement of Expenses intended to assist the court in determining his means.
[63] During cross-examination of Mr. Callender Ms. Staples highlighted certain expenses he had claimed. For instance, Ms. Staples highlighted that the family medical and dental insurance Mr. Callender pays towards was accounted for several times.
[64] I would note Mr. Callender has been able to pay toward his debt, and he has been able to save money for an RRSP.
[65] Mr. Callender stated that he contributed to school supplies, and he purchased clothing for J, up to $200 per year. These expenses would normally be accounted for through the table amount paid by Mr. Callender to Ms. Staples monthly, and are not considered special expenses, and must meet certain criteria to be considered special or extraordinary. There is no evidence before me to suggest they are.
[66] Mr. Callender's partner reportedly works in "administration". The court was not provided any financial documents, Tax Returns, to confirm her income. It is unclear what if any contribution she makes, or whether they share expenses.
Page 14 Ms. Staples' income [67] In October 2019 Ms. Staples filed a Statement of Income indicating she anticipated earning $55,572.00 in 2019. Ms. Staples did not file her Tax Return.
[68] Ms. Staples Statement of Income does not include the child-care benefit, or the child support she receives for her three other children.
[69] Section 7(4) directs: 7(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child-care benefit or any eligibility to claim that benefit.
[70] Ms. Staples referenced an Order, but she did not file the Order with the court. None of the Orders dealing with child support that Ms. Staples receives for Q, F, and P, who are not the subjects of this proceeding, were filed with the Court. The Court record reflects that Orders were granted between 2012 and 2013.
[71] An Order was granted in 2013, directing the father of Ms. Staples ' three other children, to pay table amount of child support of $1,083. The father was found to be earning $60,000.00 in 2013. The Order deals with child support arrears, to be paid $177 per month, and sharing of after-tax costs of day care. No evidence was presented with respect to any increase in the father's income, or in child support payments received by Ms. Staples since 2013.
[72] Ms. Staples line 150 income for 2016 was $52,221.00, for 2017 it was $52,944.00, for 2018 it was $56,378.20 - union dues of $891.50. Ms. Staples did not file her Tax Return for 2019.
Ms. Staples' expenses/means [73] Tracey Staples filed a Statement of Expenses. [74] It is unclear which expenses are attributable to D and J, or for Tracey Staples' three other children.
[75] In considering any deficit, I have taken into consideration the child support Ms. Staples receives from Mr. Callender for D, and J, and from the father of her other children.
Page 15 J's attendance in high school, and for academic credits after high school 2016/2017 [76] In the Spring of 2017, when J turned 19, and continued to live with his grandparent(s), while attending Avon View High School.
[77] In 2015 J earned 1 academic credit, Global Geography 12. [78] In 2016 J earned three academic credits, Business Technology 11, Agriculture 11, and African Canadian Studies 11. He also earned one open credit for Food Studies - Hospitality.
[79] In 2017 J earned two credits Law 12, and Mathematics 11. It is unclear whether he earned the credits in the Winter of the 2016/2017 school term, or the Fall of the 2017/ 2018 school term.
[80] In June 2017, J did not have sufficient credits for his academic high school diploma.
2017/2018 [81] In September 2017, J was living with his grandparent(s), and he was enrolled as a student at the Adult Learning Center in Windsor for the 2017/2018 school year.
[82] As indicated above, in 2017, J received credits for Law 12, and Mathematics 11, in either the Winter term of the 2017/2018 school year at Avon View High School, or the Fall term of the 2017/2018 school year at the Adult Learning Centre.
[83] In 2018 J received credit for Global History IV, it was unclear whether he completed that credit in the Winter term of the 2017/2018 school year at the Adult Learning Centre, or the Fall term of the 2018/2019 school year, online, with the Nova Scotia Community College in Bridgewater.
[84] J was unable to complete his grade 12 academic diploma after the 2017/2018 school year.
Page 16 2018/2019 [85] In September 2018, J was accepted at the Nova Scotia Community College for the 2018/2019 school year. J was living with his grandparent(s).
[86] As noted above, in 2018 J received credit for Global History IV. [87] In 2019 J received credit for Communications IV, Chemistry IV, and Physics IV, eventually completing the credits necessary toward his high school academic diploma. In May 2019, J graduated with his grade 12 Academic Diploma.
[88] J's High School transcript indicated when J completed courses. J's High School transcript was received from the Nova Scotia Community College. The address was listed as: "'online"', 75 High Street, Bridgewater Nova Scotia". There is no evidence suggesting J travelled to Bridgewater to complete his credits.
[89] There is insufficient evidence to support a finding that J was a full-time secondary student during high school, or when he was completing high school credits after turning 19 years old. There is no evidence to support a finding that after J turned 19, he was unable to work due to a disability. J was not eligible to receive child support between June 2017 and August 2019.
[90] Mr. Callender' s overpayment of child support between May 2017 and August 2019, of the full table amount of child support for two children to Tracey Staples, will be factored into the retroactive recalculation.
Post-secondary [91] In September 2019, J was registered to start his "Diploma in Technologie program in Plant Science" . J resided in residence at the Truro campus. However, several weeks into his new program, J struggled, and he left the campus residence in Truro to return to live with his grandmother.
[92] Ms. Staples stated that "with the assistance & support of the university, J continued his full-time studies online & completed his first year". A full transcript must be provided to Mr. Callender for the 2019/2020 school year.
[93] Ms. Staples confirmed J was registered to attend school virtually, on a full-time basis, for the 2020/202lacademic school year.
Page 17 [94] I accept, that in October 2020 J continued to be registered as a full-time post-secondary student. If J has ceased to be, or if he ceases to be a full-time student, J is no longer eligible for child support and Ms. Staples must advise Mr. Callender, and the Maintenance Enforcement Program, immediately.
[95] For J to continue to be eligible for child support of any kind, Ms. Staples must obtain documents from J, and provide them to Mr. Callender. The documents must confirm J's continued attendance in a full-time post-secondary program, and the documents must confirm he has passing grades in the program. The documents must be disclosed to Mr. Callender for both the Fall/Winter terms of J's 2019/2020 and 2020/2021 school years.
[96] At the time of trial Ms. Staples indicated J was enrolled in a full-time two-year post-secondary program, for the school years 2019/2020, and 2020/2021. J's full-time student status would normally come to an end around July 1, 2021. To allow J to finish up any outstanding credits, or to give him an opportunity to apply for jobs, I find that if there is sufficient documentation to prove that J was a full-time student in 2019/2020, and he continues to be a full-time student for the 2020/2021 school year, then J continues to be a dependent child until the end of August 2021.
J's financial means [97] The parties can only be asked to make a financial contribution according to their respective means, which would be considered after accounting for J's means.
[98] In 2018 J earned $6,671.00, while living with his grandmother, and attending school part-time.
[99] J received an inheritance from his maternal grandfather. In August 2019 J used money from his inheritance to purchase a 2010 Mercedes C Class 250 vehicle for himself, for $7,510.07. It is unclear from the evidence what the total amount of J's inheritance was.
[100] Ms. Staples filed information with the court suggesting money received by J as an inheritance does not count as his income, or his means. The exception highlighted by Ms. Staples applies to a "payor", under the Guidelines, but not to J . When children receive an inheritance, or gifts, the court often, and I do in these circumstances expect the money will go toward their education to ensure their independence for the future.
Page 18 [101] When a child reaches the age of majority, or become independent, child support from either or both parents is not a given. If parents cannot agree, and if there is sufficient evidence for a court to find that a child is disabled, or a child is engaged in a full-time educational program, the court may order parents to contribute according to their means, but only after first considering the child's means.
[102] A child over the age of 19 is expected to work if they are not disabled, and unable to work due to their disability. If a child over 19 years of age is still dependent on their parents, or a relative as in this case, but they are able to work and save money, the child is expected to save money to pursue their education full-time, or to get a part-time job or a full-time job. A child engaged in full time studies is expected to seek employment during breaks from those studies, and to contribute to their own expenses.
[103] J has earned income, and he is able to earn income. There is insufficient evidence to conclude that J's challenges result in J being unable to work. J did not attend classes regularly while he was in high school, he did not apply himself fully. It appears it took two or three additional years for J to complete high school because he failed to attend regularly before the end of 2017, or he completed additional credits on a part-time basis between September 2017 and August 2019.
[104] J had the means, by way of earned income, and an ability to earn more income. Considering J's circumstances, his income, the income he could have earned, and his inheritance, J had the means to cover his own post-secondary education costs. J should have prioritized his education rather than purchase a vehicle. I find the vehicle was not a necessary purchase.
[105] Ms. Staples highlighted information she believed suggested that "gifts" received by J, as a "recipient", would not be considered income/means. J was not the "recipient" of child support paid by Mr. Callender. Ms. Staples was the recipient, who for instance, would have been eligible for an exemption had J's grandfather, her father, also left her an inheritance.
2019/2020 [106] In 2019 J worked for a call center and earned $676.00 over the summer. J received a "Nova Scotia" bursary in the amount of $320.76 per term (Fall 2019 and Winter 2020), and a PSAS-S&E grant (Post-Secondary Accessibility Services of $1,800.00) in February 2020. For a total of $2,120.76.
Page 19 [107] For the 2019/2020 school year, J's program expenses were $2,651.01 in the Fall and $2,660.81 for the Winter, for a total of $5311.82. With the addition of textbooks and "practicum supplies", Ms. Staples suggested the overall cost in the 2019/2020 school year was $7,994.17. In addition, Ms. Staples suggested there was an expense of $1,800 for a laptop computer for J. For total possible expenses of $9,794.17.
[108] After accounting for the $2,120.76 available to J, which includes employment income earned by J, and student grants or bursaries awarded to J, and J's income from 2018, the year before he started his post-secondary studies, for a total of $6,671, and the inheritance J received from his grandfather, at least $7,000, the total would be $15,791.76.
[109] Assuming J saved 70% of what was available to him. Notionally, J would have had, or should have had, approximately $11,054.23 to contribute to his education. By saving 70% J would have been able to cover my very generous calculation of all post-secondary expenses raised by Ms. Staples, in the amount of $9,794.17. It is not necessary for me to decide if all the expenses should have been eligible to be covered by his parents, as I have found that J had the means to cover all possible expenses outlined by Ms. Staples.
2020/2021 [110] In the summer of 2020, J received a Nova Scotia bursary of $534.00 for Fall 2020 and he is expected to receive $534.60 for Winter 2021. J also received a bursary from Dalhousie University of $780.00. In addition, J received $6000.00 as a student emergency benefit, $2000 in June, in July, and in August= $7,848.00. If J saved 70% he would be able to contribute $5,493.60.
[111] His program costs were $2,475.28 in the Fall, and I find his expenses will be similar in the Winter. I have used $2,500 for the winter for a total of approximately $4,975.28 for tuition alone.
[112] Notionally, J would have had, or should have had approximately $5,493.00, to contribute to tuition, leaving an additional amount for any textbooks or other post-secondary expenses incurred.
Page 20 Dependent child - Age of majority [113] Ms. Staples argued Mr. Callender should continue to pay the full table amount of child support to her while J remains a student. Ms. Staples suggested J remains a dependent child, given his status as a full time post-secondary student.
Analysis Determination of prospective child support [114] Section 3(2) of the Child Support Guidelines states "that where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is":
aa. The amount determined by applying these Guidelines as if the child were under the age of majority; or
bb. If the court considers that approach inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[115) From September 2019 onward, Mr. Callender shall pay the table amount of child support for two children. He shall pay the portion for one child, D, to Tracey Staples. He shall pay the portion attributable to J, to Barbara Staples if J resides with her, or to J, if he is not residing with Barbara Staples. Both payments shall be made through the Maintenance Enforcement Program.
[116] Given the change in Barbara Staples circumstances due to retirement in or around the end of 2019, Barbara Staples financial means have changed.
[117) As of November 2020, in lieu of Tracey Staples occasionally purchasing food to take to Barbara Staples' home on weekends, Tracey Staples shall pay child support to Barbara Staples for J, if J continues to reside with her, or Tracey Staples shall pay child support to J, if he is not residing with Barbara Staples. All payments shall be through the Maintenance Enforcement Program.
a. The table amount of child support for two children, for the months of November 2019 through to December 2019 shall be based on Mr. Callender's 2019 annual income for child support of $50,458.59, al $723.00 per month.
Page 21 b. All payments shall be made through the Maintenance Enforcement Program.
1. As of November 1, 2020, Mr. Callender shall pay $429.00 to Tracey Staples for D through the Maintenance Enforcement Pr.ogram, and every month thereafter while D remains a dependent child (adjusted each year based on Mr. Callender's annual income for child support).
ii. As of November l, 2020, Mr. Callender shall pay $294.00 to Barbara Staples for J. Payments shall be made through the Maintenance Enforcement Program until the end of August 2021.
iii. As of November 1, 2020, until August 2021, Ms. Staples shall pay $135 to Barbara Staples, or $135 to J. if J is not residing with Barbara Staples (formula: Based on Mr. Callender's yearly income, amount owing for both children - amount for one child = amount to be subtracted from one child amount= Ms. Staple's payment for J.
c. On a without prejudice basis, the table amount of child support for D and J for 2020 shall be based on Mr. Callcndcr's 2019 income. His annual income for child support for 2020 shall be adjusted once Mr. Callender's year end income statement for 2020 is provided to him by his employer.
d. The parties must provide to each other their year-end income statements from their employers, their Tax Return, and if any, their Tax Assessment, or Re-Assessment for 2020, and every year thereafter while D remains dependent. It is Mr. Callender's, and Ms. Staples' responsibility to adjust child support payments based on Mr. Callender's total annual income for child support for any given year.
e. Further failure to disclose financial information by either party may result in significant costs being awarded, and an imputation of income to determine annual income for child support or for any special or extraordinary expenses.
Chart 1 [118] As of November 2019, Mr. Callender's child support for D and J, and Ms. Staples's child support for J , will be calculated based on Mr. Callender' s annual income for child support for each year, rather than the average of Mr. Callender's income over three years.
Page 22 [119] Chart 1 depicts the estimated table amount of prospective child support owed by Mr. Callender to Tracey Staples up to October 2020, which is to be adjusted based on Mr. Callender's actual income for 2020.
Section 3 - year Number months income 20 I9 November - 2 children for 2 November and $50,458.59 (based on December months December 2019 2019). All financial information for 20 18 was not available. 2020 January - 2 children for 10 January to $50,458.59 (based on October 2020 months October 2020 2019) ( 10 months) $50,458.59 using 2019 income (to be adjusted for 2020 upon receipt or proor or 2020 income)
Total adjustment Notional underpayment of underpayment section 3 child $ 1,176.00 support for J and D between November 2019, and October 2020
[120] As of November 2020, Mr. Callender will pay the table amount of child support to Ms. Staples for D, and to Barbara Staples for J, in 26 payments per year. Ms. Staples shall make her payment for J in 26 installments per year.
Chart 2 [121] Chart 2 depicts future payments for table amount of child support to be paid by Mr. Callender directly to the Maintenance Enforcement Program Office. All payments for D will be forwarded to Tracey Staples. All payments for J will be forwarded to either Barbara Staples, if J continues to reside with her, or to J, if J is no longer residing with Barbara Staples.
November 2020 onward
2020 November 2 children for 2 For wo months Notionally $50,458.59 and December months November & (based on 2019) to be December 2020 adjusted upon receipt Yearly Per month For one child or proor or Mr. $724xl2= $429 X 2 = $858 Cullender's 2020 $8,688 to be paid to TS income. for D D- 429 x 12 = $5, 148 /26 = $ 198
table paid $724.00 X 2 = $1252.00 Difference $1,448.00 Mr. Callender owes Ms. Tracey Staples $ 196.00 $724 X 10 Paid Mr. Callender owes Ms. Tracey Staples $7240.00 $6,260.00 $980.
$724.00 X 2= Portion owed to $1,448.00 approx Tracey staples for D, $ 198 for 26 payments Yearly Portion owed to $5,148 / 26= Barbara Staples, for J, $198 in 26 or to J, $136 for 26 installments payments $3,528.00 /26 = Pavment to be made
x 26 payments J - 294 X 12 = $3,528 /26 =$ 136 x 26 payments
2021 January - 2 children for January through To be adjusted upon (2020 income x Pay Tracey Staples August eight months August 2021 receipt of proof of 2021 8). Adjust for I for D, income. Effective child January through and Pay Barbara December 2021 Second child Staples, or J, fo r J. 2021 September - I child while D September to Administrative 2020 income x 4 Pay to Tracey Staples December remains December 2021, Recalculation program dependent, born and onward may be applied in October I, 2005 September 2021 [122] Ms. Staples' payments for J are not reflected in the charts included in this decision. Ms. Staples' payments are intended to top up what Mr. Callender will be paying. The amount shall be calculated based on Mr. Callender's yearly income. [EX: Full table amount owing for two children $724 - amount owed for one child $429 == $294 remainder - one child amount of $429 == amount owing for one child $134 ==Ms.Staples' payment for J.
[123] While J remains dependent (until August 2021), it is in J's best interests that all child support payments paid for his benefit, be accounted for through the Maintenance Enforcement Program, and be paid directly to Barbara Staples, or to J if he is no longer residing with Barbara Staples.
Retroactive recalculation of table amount of child support March 2017 through October 2019
Sufficient Notice and any blameworthy behaviour [124] Mr. Callender has argued that Ms. Staples did not request an increase in the table amount of child support until October 2019 and therefore the court should not complete a retroactive recalculation of that period. It could also be argued that Mr. Callender should have applied to terminate child support for J when he turned 19.
[125] Ms. Staples has argued she was not aware that Mr. Callender's income had increased substantially from $40,470.83 in 2016, found based on an average of three years income, to over $50,000 in 2019. Mr. Callender has argued that he had little contact with, and little knowledge about the children's circumstances.
[126] In response to Mr. Callender, Ms. Staples filed screen shots of text messages (possibly dated in September 2019), wherein she asked Mr. Callender for his
Page 23 $136 in 26 in 26 insmllments installments each ycur
Page 24 financial information to establish his annual income for child support. Ms. Staples argued that Mr. Callender has a history of non-disclosure, and that she began asking for a copy of his tax return in 2018.
[127] It was Mr. Callender's responsibility to adjust child support according to his income, the number of dependent children, and the appropriate child support table amount each year. Mr. Callender should have adjusted his table amount of child support in January 2017.
[128] It was also Ms. Staples' responsibility to provide Mr. Callender with sufficient information to be able to determine if J continued to be a dependent child.
Benefit to the child/Hardship for payor [129] Ms. Staples argued that Mr. Callender can afford to pay the full table amount of child support, he can afford to reimburse her for any retroactive increase in child support for two dependent children back to March 2017, and that he can also afford to help with D's and J's prospective, and retroactive special or extraordinary expenses. Ms. Staples pointed out that Mr. Callender lives in a two-income household and that with "an added household contributor", his expenses are lower.
[130] Ms. Staples referenced certain lifestyle choices made by Mr. Callender as evidence that he is in a "better place financially" than he was when the Variation Order was granted in February 2016. Specifically, Ms. Staples referenced Mr. Callender's recent purchase, in August 2019, of a 2016 Mercedes automobile, which Mr. Callender owns in addition to his 2002 Lexus. Ms. Staples also referenced Mr. Callender's recent travel history, stating that he " travelled several times in 2019".
[131] Ms. Staples suggested she has, and she continues to struggle to support her five children as a single parent, and she should not have to pay any child support, or cover expenses for D, or for J. Ms. Staples has asked this court to consider Mr. Callender's household income, when deciding whether to grant the relief she is seeking. When making the above noted arguments, Ms. Staples does not account for the child support she is receiving from the father of her other three children.
Recalculation [132] Mr. Callender was aware of the requirement to disclose his income information. The Child Support Guidelines and Variation Order granted in February 2016 provided a method to adjust child support on a yearly basis. The Variation
Page 25 Order and the Child Support Guidelines were sufficient notice to Mr. Callender per Michel v. Graydon, 2020 SCC 24, (discussed further below), to adjust his income on a yearly basis, starting in January 2017.
[133] Ms. Staples has requested a retroactive recalculation of the table amount of child support retroactive to February 2016. Ms. Staples was advised that a Variation Order is presumed to be correct for a year after it is granted. Child support should have been adjusted at the beginning of 2017 based on the formula as directed by the Variation Order.
Chart 3 [134] The formula included in the Variation Order granted in February 2016 shall apply until the month after Ms. Staples filed her Notice of Variation Application in October 2019, therefore from November 2019 onward.
[135] Specifically, paragraphs 2 and 3 of the Variation Order directing that Mr. Callender's income be calculated as an average of his previous three years of income per section 17(1) of the Child Support Guidelines, will apply for 2017 and in 2019, until the end of October 2019.
[136] For illustrative purposes only, I have completed a retroactive recalculation for the period between March 2016 to December 2016, which is the period immediately after the Variation Order was granted. The overpayment suggested for 2016 will not factor into my overall calculations for an overpayment, or an underpayment, but illustrates that Mr. Callender was paying child support. I will address the issue of the retroactive award owing the period before February 2016 at the end of my decision.
[137] At the time the Variation Order was granted, in February 2016, both parties indicated J was residing with his grandparents. This has not changed since 2016. In 2016 Ms. Staples indicated she was paying her parents for J to live with them. It is unclear how much Ms. Staples paid her mother for J. Most recently Ms. Staples testified that she contributes to J 's care by buying groceries which she takes with her when she visits on the weekends.
[138] Chart 3 depicts the period immediately after the Variation Order was granted.
Yc11r (used three # dependent # months Average Linc 150 previous years line 150 income formula income for average) until November l, 2019.
2016 March to 2 c/rildre11 Comme11ci11g $40,470.H.1 $576.00 x JO = Tire MEP record Overpayme111 of December March 1, $5,760 i11dicates Mr. D with 2016. - valid Cal/e11der paid +$445.03 Actual i11co111e $44,799. Tracey to tire end of $6,205.03 Staples December average ofa c111al last 2016 (10) three years $39,419.80, J with Iris $37,860.16, $44,132.54 grandparellls = $40,470.HJ
Presumed to be correct Notional payment ammmt - overpayment $445.03 (does 1101 acco1111tfor retroactive award gra111ed i11 2016)
Chart 4 [139] Chart 4 represents Mr. Callender's average income and the payments he made for the months of January and February 2017, based on the Maintenance Enforcement Program records.
Year # dependents # months Average income
2017 January and 2 children January and ~-'0,930.00 $583.00 X 2 = The MEP record Overpayment of February February indicates Mr. Dwith 2017 (2) $1 ,166 Callender paid +$399.00 Actual income Tracey $1,565 $$38,809.00 Staples average of actual last J with his three years $37,860.16, grandparents $44,132.54, $44,799.00
= ~40,930.00
Child support should have been adjusted in January 2017
Chart 5 [140] Chart 5 shows a retroactive recalculation for the period between March 2017 and May 2017, before J turned 19. I have found J eligible for child support until June 2017.
Page 26 Guideline Paid Over or under amount payment ifuny
Guideline Paid Over or under
Notional Overpayment $399.00 (Docs not account for retroactive award granted in 2016)
Year # dependents months income 2017 March - D with Tracey March - $40,930.00 May Staples May2017 as 1wted above .I with Iris $40,930.0 gra11dpare111(s)
Chart 6 [141] Chart 6 shows the period of recalculation between June 2017 to August 2019. This is the period before J began his post-secondary program, and the period of recalculation between September to October 2019, after J started his post-secondary program, up to the month Ms. Staples filed her application.
Year # dependents months income 2017 June to D with Tracey June - $40,930.00 November Staples November 20 17-.J not as noted above ,I turned 19 livini: a full time $40,930.00 with student i:randunrent{s} 2017 December D with Tracey December $40,930.00 Staples 2017 new as noted above ctables (1 .J with his month) - .J $40,930.00 grandparent(s) not a full• time student
20 I 8 January to D with Tracey January Imputed an $724x 12= The MEI' record Overpayment of December • Staples through income of indicates Mr. income December $50,458.59, $8,688 Callender paid $3,600 · $550.00 = information was J with his 2018 ( 12 failure to file $8,138 $3,050.00 not filed - grandparent(s) months)- .J income $729 . $429 =$ 300 not a full• information. x 12 =$ 3,600 to he imputed at 2019 time student reimbursed for .J level. Average would have been $44,132.54 $44,799.00 $38,809.00 = ~42,580.1 H.
20 I 9 January D with Tracey January to $44,688.86 through August Staples August 2019 (8 months)_ average of J with his .J not a full• $44,799.00 grandparent(s) time student $38,809.00 $50,458.59 (imputed 2018) =
Page 27 Guideline amount Paid Over or Under $583 x3 = Tire M EP record Notio11al Overpayment indicates Mr. of $1,749 Callender paid $1,878 +$129.00 (Does nor acco11111 for retroactive award granted i11 2016)
Guideline Paid Over or Under $583 X 6 = The MEI' record Overpayment of indicates Mr. $3,498 Callender paid +$316.00 + $, 1434 $3,814.00 = $1,750.00 $583-344 = 239 = overpayment x 6 $1,434 to be reimbursed for .J $600 x I The MEI' record Overpayment of = indicates Mr. $600-349 $251 Callender paid +$26.00 + $251 = to he reimbursed $626 $277 for .J
$650 X 8 The MEI' record Overpayment of indicates Mr. $6,500.00 Callender paid $2,160 · $1, 179.00 $5,321.00 = $981.00 $650 · $380 =$ 270 X 8 =$ 2,160
$44,688.86 20 19 September D with Tracey September $44,688.86 and October Staples and October (2months) - J spost- secondary
Total overpayment
retroactive award from 2016)
[142] The Supreme Court of Canada in Michel v. Graydon, supra, found in part that "Retroactive child support is a debt: by default". That "the fact that the obligation to pay child support is confirmed in a statute does not imply it is any less of a debt," and a payor's "certainty interest" is provided by the "Tables and the payor parent's knowledge that they are liable according to their actual income and will be held accountable for missed payments, and underpayment, even if the enforcement of their obligations may not always be automatic".
[143] Mr. Callender failed to disclose his annual income to Ms. Staples. [144] Ms. Staples provided none, or very little information about J's circumstances from January 2017 through August 2019 to Mr. Callender.
[145] The formula could not effectively be used without full income disclosure from Mr. Callender and full disclosure about J 's circumstances from Ms. Staples.
Chart 7 [146] Mr. Callender owed Ms. Staples $6,278, based on a retroactive award granted for the period prior to the Variation Order being granted in February 2016. The amount which would have been due between March 2016 and October 2019, and the amount which would have been due between November 2019 and October 2020 are represented in this chart.
Time period owed - February 2016 retro November 2020 $50 per month Nov 2019 - October 2020 $50 X 12= $600 March 2016 through October 2019- 43 payments $50 X 44= $2,150 Underpayment
Page 28 $650 X 2 = The MEP record Underpayment $1 ,300.00 indicates Mr. Callender paid $ 1,300 - $939 = $939.00 $361.00
Notional $5,697.00 overpayment (Docs not account of the
$6,278.00 total award pre 2016 -$600. -$2,150 TOTAL OWED :!;6,278 - all na1:ments made throui:h MEP were treated as section 3 child sunnort - leavini: full amount owini: of:!;6,278.00
Page 29 Chart 8 [147] Chart 8 accounts for Mr. Callender's notional underpayment between November 2019 and October 2020, for his notional overpayments between January 2017, up to October 2020, and for the retroactive award granted for the period before February 2016.
Period Underpayment Septemher 2019 - October 2020 Chart 1,6,and7paras 118,141,
Overpayment January 2017 - February 2017 Chart 4, paragraph 139 Overpayment March 2017 - May 2017 Chart 5 , paragraph 140 Overpayment June 2017 - August 201 9 Chart 6, paragraph 12 1 Owing from February 2016 Order Chart 7, paragraph 124 Total
[148] On a prospective basis Mr. Callender notionally underpaid child support owing since Ms. Staples filed her application in October 2019, for the period between September 2019 through October 2020 by $1,537.00. The total amount must be adjusted for 2020 based on Mr. Callender's 2020 year end income.
[149] On a retroactive basis, Mr. Callender should have adjusted his child support beginning in January 2017. Mr. Callender overpaid $399.00 for child support for the period January through February 2017, and $129 between March and May 2017.
[150] Between June 2017 and August 2019 there was insufficient evidence to find J was a dependent child. The number of dependent children must be adjusted and Mr. Callender notionally overpaid section 3 child support as follows ($316 + $1,434.00) + (26 + $251) + $3,050 + $981, and adding $399, and $129 = $6,586.
[151] Mr. Callender should have paid $50 every month between March 2016 and October 2020. All MEP payments made by Mr. Callender were considered child support pursuant to the tables, therefore the entire amount owing $6,278 and underpayments between September 2019 and October 2020 of $1537.00, were considered when determining any amount of chid support owed by either party.
[152] Based on the above noted findings and calculations, I find Mr. Callender owes Mr. Staples $1,229.00 in total retroactive section 3 expenses. I find this amount to
- Underpayment -$1,537 + $6,278 from Feh 2016 order= $7815
+Overpayment +$399.00 +Overpayment +$129.00 +Overpayment +$6,058 + 399 + 129 = $6586 -Owed -$6,278.00 Owing $7,815 - ovema:iment $6586 = $1229.00 to he paid at $50 per month
Page 30 be the remainder owing on the retroactive award granted for the period before February 2016. Therefore, Mr. Callender may pay the outstanding amount in installments of $50 per month, until the amount is paid in full.
Special or extraordinary expenses [153] To grant an order that either party must pay section 7 expenses (special or extraordinary), I must be satisfied the expense is necessary as it relates to the child(ren's) best interests, and that it is reasonable in relation to the means of the spouses and the child(ren). For certain expenses, I must then determine whether the expense is extraordinary pursuant to s. 7(1.1).
[154] Ms. Staples has asked the court to find that any special or extraordinary expenses should be paid entirely by Mr. Callender, or in the alternative, if paid by either parent, the payment should be based on each parties' "household income", including Mr. Callender's partner's income. As I alluded to above, any such calculation, (if I found it was a valid approach, which I do not), would need to include an accurate accounting of the appropriate level of child support which Ms. Staples' should be receiving for her three other children.
[155] Section 10 of the Child Support Guidelines states: 10(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3, 5, 8, or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
[156] The Undue Hardship argument available under section 10 of the Child Support Guidelines does not apply to section 7 expenses.
[157] However, this court must always bear "in mind that s. 7(2) does not require that it is mandatory to divides. 7 expenses proportionately when there is good reason to depart from that rule."
Analysis [158] In Epstein's, This Week in Family Law, October 11, 2011, FAMLNWS 2011-41, commented about the case of Gordinier - Regan v. Regan. He stated:
Looking at that result, and bearing in mind that s. 7(2) does not require that it is mandatory to divide s. 7 expenses proportionately when there is good reason to
Page 31 depart from that rule, this is a case where the Court might have considered a higher proportion of the tuition expense being paid by the mother in light of the significant child support being paid and the net result in this case.
[159] At paragraph 20 in L.K.S. v. D.M.C.T., 2008 NSCA 61, the Honourable Justice Roscoe of the Nova Scotia Court of Appeal stated:
[20] The Guidelines provide that a court may order a parent to pay an additional amount toward the extraordinary expense of a child, as follows:
Special or extraordinary expenses 7 (1) In a child maintenance order the court may, on a parent's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents and those of the child (my emphasis) and, where the parents cohabited after the birth of the child, to the family's pattern of spending prior to the separation:
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d ) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs.
(e ) expenses for post-secondary education; and
Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
Page 32 r2s1 It must be emphasized that as. 7 order is discretionary. The starting point is that it is assumed that the table amount will ordinarily be sufficient to provide for the needs of the child ...
Special expenses [160] On October 25, 2019 Ms. Staples provided notice of her claim to seek reimbursement for special or extraordinary expenses, including the following special expenses: medical and dental insurance for both children, health expenses over $100 per year for both children, university expenses including tuition and books for J, and extraordinary expenses including reimbursement for cellular telephone expenses for both children, and reimbursement for J's vehicle costs, including: car insurance, car maintenance, and certain other expenses.
[161] On October 25, 2019, December 10, 2019, December 19, 2019, January 15, 2020, and on October 13, 2020, Ms. Staples provided documentation related to the special or extraordinary expenses she was seeking to have Mr. Callender pay in full, or in in the alternative, to share.
Medical and dental [162] Ms. Staples has claimed medical and/or dental expenses pursuant to Section 7(b) and (c).
[163] Pursuant to Section 7(b) of the Child Support Guidelines, Ms. Staples seeks to have Mr. Callender continue to arrange insurance for that portion of the medical and dental insurance premiums attributable to D and J. Mr. Callender did not provide any information regarding to how long J will continue to be eligible to be covered by insurance available through his employer:
a. According to paragraph 7 of the Consent Variation Order (Parent ing) granted February 12, 2016, Mark Callender was ordered to "continue to pay to have the children covered on his medical coverage through his employer". Mr. Callender has done so, paying $43.14 bi-weekly.
[164] Mr. Callender has paid $43.14 bi-weekly (medical and dental insurance for the children), approximately $1,035.36 per year as ordered. I order Mr. Callender to continue to pay medical and dental premiums to insure both children, D and J. He shall continue to pay those premiums for as long as his employer allows him to maintain coverage for either child.
Page 33 (165] Ms. Staples has requested the court find she was not obligated to have insurance March 2016 - October 2019, and that she is not obligated, November 2019 onward, to secure medical and dental insurance for the benefit of D and J.
(166] On January 15, 2020 Ms. Staples provided a letter from HR Employee Services, Halifax Regional Municipality, outlining the cost of Group Benefit Premiums, single vs family coverage. She indicated the cost for family coverage through her employer would be approximately $2000 per year. Mr. Callender provided copies of estimates for private insurance. Ms. Staples has argued she cannot afford to pay insurance premiums for D and J.
(167] Ms. Staples has single benefit coverage and pays a premium of $611.28 annually, through her employer. Ms. Staples' three younger children (who are not the subject of this proceeding), are covered by their father's insurance plan. Ms. Staples' mother, Barbara Staples, had arranged for a second insurance (in addition to Mr. Callender's), to cover J until approximately November 2019.
(168] If Ms. Staples' income were to be considerably lower than Mr. Callender's, I would likely grant an order requiring the parties to share any amount over $100 per year, proportionate to their incomes, and I would not require Ms. Staples' to purchase insurance. However, Ms. Staples' income is higher than Mr. Callender's.
(169] I find Ms. Staples was not obligated, and continues not to be obligated to carry additional insurance for D, or for J. I find Ms. Staples is free to make her own choice. Ms. Staples maintains individual insurance because it is much more cost effective for her to have individual insurance coverage rather than family coverage.
Health related expenses exceeding $100 (170] Pursuant to Section 7(c), of the Child Support Guidelines, Ms. Staples seeks to have Mr. Callender ordered to pay all health-related or dental expenses that exceed insurance reimbursement by at least $100 annually. In the alternative she asks that Mr. Callender be ordered to contribute 50% toward those expenses, or a proportionate share based on his household income. She claims she cannot afford to cover any of these expenses.
(171] Mr. Callendar has argued that since he maintains insurance coverage for the children, $43.14 bi-weekly for a family plan, approximately $1000 per year, that he should not have to pay any additional expenses. He argues that these expenses should be attributable to Ms. Staples as she has chosen not to arrange for insurance through her employer, Halifax Metro Transit, or privately. Mr. Callender
Page 34 acknowledged that Barbara Staples maintained insurance coverage for J, until late in 2019.
Orthodontics • The total cost for orthodontic services and appliances for J was $6179.00. Insurance coverage from either Mr. Callender, or J 's maternal grandmother, covered $4,500.00, less the initial payment of $150.00. The outstanding bill was $1,529.00. In a text to Mr. Callender, Ms. Staples indicated there was an outstanding bill of $1,800.00. Given that both Mr. Callender and Barbara Staples had insurance plans for J, I order that both Ms. Staples and Mr. Callender pay the outstanding bill of $1,529.00 based on their 2019 employment incomes.
• Ms. Staples must provide Mr. Callender with a copy of her 2019 Tax Return, any notices of assessment or re-assessment before the parties' proportionate amount owing for J can be determined.
• The total investment for D's orthodontics was $4,280.00, with insurance covering $2015.00, less the courtesy discount of $250.00, the outstanding amount was $2015.00.
o In February 2016 Mr. Callender was ordered by me to maintain insurance coverage for D and J. He has done so at a cost of approximately $1000.00 per year.
o Conservatively, I attribute $250.00 per year to D. In other words, I find that since 2016 Mr. Callender has contributed approximately $2,500.00 for D through the premiums he pays. I find it would be inequitable to have Mr. Callender contribute additional funds toward the outstanding amount owing for D's braces.
o Ms. Staples contracted with her orthodontist, and she was aware there would be an outstanding amount owing. Ms. Staples had the option of saving to pay the difference. The equitable thing for Ms. Staples to do would be to take responsibility for the outstanding amount of $2,015.
o Ms. Staples has benefited from notional savings of approximately $1,400.00 per year since February 2016, for a total of $7,000.00, as the children have been covered by their father's , and for J, by Ms. Staples'
Page 35 mother as well. Coverage by others has allowed Ms. Staples' the freedom to pay premiums for an individual plan for herself, approximately $600.00 per year, and not have to invest in a family plan, approximately $2000.00 per year.
o Ms. Staples shall be responsible to pay the outstanding amount of $2,015, for D's braces.
Vision care • Optical lenses $250.00 (Sept 2019); eye exam $80.00 (August 2019). Again Ms. Staple's initial position would be that Mr. Callender should cover the extra cost, or at the very least, he should pay fifty percent of the outstanding bill, or he should pay proportionately based on his household income.
• I believe the Optical lenses were for J, and they were not fully covered by either Mr. Callender's or Barbara Staples' insurance. If the vision care cost was for J, then Mr. Callender and Ms. Staples shall share the outstanding optical costs of $250, based on their 2019 employment income.
• If this expense is for J, Ms. Staples must provide Mr. Callender with a copy of her 2019 Tax Return, any notices of assessment, or re-assessment before the proportionate amount owing can be determined
• If the lenses were for D, then Ms. Staples shall cover the extra expense. Psychological services • Ms. Staples is seeking to have Mr. Callender pay $280.00 toward J's outstanding counseling fee, and a proportionate share of any future counseling expenses over $100.00 per year.
• As noted above, an Attention-Deficit/Hyperactivity Disorder Assessment Report was completed October 2019. An invoice was filed January 15, 2020, indicating the overall cost for services through Green Leaf Psychological Services Inc. was $1,400.00, and Blue Cross covered $1000.00, with the "client" (Ms. Staples) making arrangements to pay the remaining $400.00 -$120.00 = $280.00.
Page 36 • If Barbara Staples insurance and Mr. Callender's insurance covered a portion of J's costs, then Mr. Callender and Ms. Staples shall share the outstanding counseling costs of $280, based on their 2019 employment incomes.
• Ms. Staples must confirm the final amount owing after insurance coverage, and she must provide Mr. Callender with her 2019 Tax Return, any notices of assessment or re-assessment, before the proportionate amount owing can be determined for each party.
• Any future counseling services, over and above that covered by Mr. Callender's insurance shall be paid by Ms. Staples.
Primary and secondary expenses pursuant to 7(d) [172] Ms. Staples withdrew her claim for expenses pursuant to 7(d ). Regular expenses for school supplies, or school clothing, do not fit under this category, and should be covered by child support received pursuant to the tables.
[173] There was insufficient evidence to conclude J was either disabled, or a full-time student completing his high school diploma between June 2017 and August 2019. I find J lost the status of a dependent child between June 2017 and August 2019.
[174] Mr. Callender paid the table amount of child support for D and for J up to May 2017, his payments have been adjusted retroactively. Mr. Callender must pay the table amount of child support for D between June 2017 and August 2019, and in September 2019, he must pay the table amount of child support for one child for D, and a portion the table amount of child support for one child for J, with Ms. Staples paying the remainder for one child, for J, based on Mr. Callender's yearly income.
Post-secondary expenses pursuant 7(e) [175] Section 7(e) of the Child Support Guidelines addresses expenses for post-secondary education.
[176] Ms. Staples argued that J's post-secondary expenses should be shared between the parties based on their "household incomes", (including Mr. Call ender's partner's income), after a reasonable contribution from J.
Page 37 [177] I accept that J was enrolled in a two-year Diploma in Technologie program in Plant Science (Faculty of Agriculture) for the session which began in September 2019.
[178] I further accept that J has been attending the program, offered at the Dalhousie University Agricultural Campus in Truro/Bible Hill, virtually, since mid to late September 2019. J does occasionally need to travel to the Truro campus from his grandmother's home. However, I find this has not been, and currently is not, a significant requirement for him to complete the requirements of his program.
[179] At paragraphs ninety seven through one hundred and twelve of this decision I determined J had the means to pay for his post-secondary expenses in 2019/2020, and in 2020/2021. However, I have determined that if Ms. Staples provides proof to Mr. Callender that J has been, and continues to engage (pass his courses), in a full time program, then Mr. Callender shall pay J's portion of the table amount of child support to Barbara Staples (if J is residing with her), or to J, (if he is not residing with Barbara Staples).
Other expenses (cellular telephone for both children) [180] Ms. Staples has asked this court to order Mr. Callender to cover the ongoing expense for J 's cellular telephone, a cost of $70 per month, or $840 per year, and to cover the cost of D's cellular telephone, also a cost of $70 per month, or $840 per year for 2019 and 2020.
[181] Ms. Staples has stated that Mr. Callendar agreed to pay for D's cellular telephone, and she was paying for J's. Ms. Staples has stated that Mr. Callender ceased making payments after two months.
[182] I have an expectation that parents will follow through with their promises to children, if they are able. However, I find that any promise Mr. Callender made to pay for cellular telephone costs (not an extraordinary expense in my opinion), would have been complicated by Ms. Staples other requests for child support. It would have been very difficult for Mr. Callender to know if he could afford to keep his promise, without first knowing the outcome of this proceeding.
[183] I do not have sufficient evidence to find that a cellular telephone is a necessary expense in relation to D 's, or to J's best interests. Considering the means of Mr. Callender, and of Ms. Staples, I find the expenses of a cellular telephone is
Page 38 something each party may be able to afford. However, I also find it is up to each party to determine whether they wish to cover this cost.
[184] I am not prepared to order Mr. Callender, or Ms. Staples, to pay toward the children's cellular telephone expenses.
J's vehicle [185] Ms. Staples has requested this court to order Mr. Callender to pay the following toward J's Mercedes: HST/OST of $825 for the overall cost of J's vehicle, a Buyer's foe of $440, an admin fee of $160, an internet fee of $55, a delivery fee of $300, the Carfax fee of $75.50, and additional HST of $154.57 on listed items, for a total cost of $2,010.07, and that Mr. Callender also pay the following expenses:
a. Driver's license test - $66.95 August 20 19 b. Vehicle registration - $214.00 c. Vehicle maintenance - $2,043.60 (appears this included tires) d. Vehicle maintenance - $265.68 November 2019 e. Winter tires - $415.00 (this appears to be a repeat) f. Vehicular insurance - $2,718.00 yearly (20 19/2020 Aug) [186] J's car was purchased in August 2019. Ms. Staples argued that J required a car to attend school in Truro starting in September 2019. J purchased his car while he was still planning to reside, and he was registered to reside, at the residence on campus in Truro, Nova Scotia. As noted above, J cancelled his residence room in mid to late September 2019.
[187] Barbara Staples testified and stated that she has driven J to the Truro campus on at least one occasion. Barbara Staples drove J despite J having recently purchased a car of his own, in August 2019. Barbara Staples retired in late 2019. Based on her testimony, I find Barbara Staples would be able, and willing to accommodate J's occasional need to travel from her home in Mount Uniake, to J's campus in Truro Nova Scotia. If not, other arrangements could be made.
[188] I find the expenses for J's car were unnecessary as it relates to J's best interests. I find the expenses were unreasonable in relation to the means of Mr. Callender, Ms. Staples, and J.
Conclusion
Page 39 Change of circumstances [189] The parties agree there was a change of circumstances. I find there were changes in circumstances including: changes to the parties' incomes, a change to Barbara Staples' income; a change in the number of dependent children June 2017 through August 2019, and another change in September 2019.
Incomes [190] The incomes, means, expenses of both parties were considered, Barbara Staples' circumstances as a newly retired person was considered, as well as the income, means, expenses, and needs of J.
[191] On a prospective basis, the parties agreed to rely on individual calendar years to determine the parties' incomes. The adjustment from using the average over three years, to calculating child support based on each year, will take effect from November 2019 onwards.
[192] I find both Mr. Call ender's income disclosure, and Ms. Staples' disclosure about J's circumstances between June 2017 to August 2019, was insufficient.
[193] Except child support payable in 2018, where I have imputed income, the average of three years of income will be used to calculate child support retroactively between June 2017 and December 2017, and between January 2019 through October 2019.
[194] Mr. Callender's income is determined as follows: • On a without prejudice basis, Mr. Callender's income for 2020 is found to be $50,458.59 (2019 income), to be adjusted for 2020 upon receipt of year-end income information from his employer;
• Mr. Callender's income for 2019 is found to be $50,458.59, see paragraph 64, and $44,688.86, January through October 2019;
• I have drawn an adverse inference in relation to Mr. Callender's income for 2018, and I have determined it to be $50,458.59;
• Relying on the formula included in the Variation Order granted in February 2016, I find Mr. Callender's income for 2017 to be $42,263.90;
Page 40 • Relying on the the formula included in the Variation Order granted in February 2016, I confirm Mr. Callender's 2016 income was found to be $40,470.83. His actual income for 2016 was $44,799.00;
• In 2016 the Court found Mr. Callender's 2015 income to be $44,132.54; • In 2016 the Court found Mr. Callender's 2014 income to be $37,860. [195] Ms. Staples failed to file her Tax Return, or any Notice of Assessment or Re-Assessment for 2019. Ms. Staples is ordered to provide Mr. Callender with copies of the above noted financial information from 2019, for 2020, and for future years.
Prospective child support [196] On a prospective basis, November 2020 onward, Mr. Callender consented to a payment schedule every two weeks, for 26 payments per year.
[197] Between November 2019 and October 2020 Mr. Callender had a notional underpayment of approximately $1,776 in section 3 table amount of child support. This amount must be adjusted by Mr. Callender upon receipt of proof of his 2020 income.
[198] Both parties are ordered to provide their year-end income statements, their Tax Returns with attachments, any Notices of Assessment or Re-Assessment for 2020, and every year thereafter.
[199] Mr. Callender shall pay child support for one child, D, to Tracey Staples based on his yearly employment income. He shall make his payments in 26 installments per year, starting in January 2021.
[200] Mr. Callender and Ms. Staples shall both pay a portion of the child support owed for one child, J, based on the formula referred to previously in my decision, including at paragraph 122.
Retroactive child support [201] Child support payable pursuant to section 3 has been considered, including the retroactive award granted for the period prior to February 2016. The retroactive calculation for the period between January 2017 and August 2020, results in Mr. Callender owing Ms. Tracey Staples $1,229.00, which is to be paid in installments of $50 per month. Starting January 1, 2021. See paragraphs 119-152.
Page 41 Special expenses [202] Mr. Callender must maintain health and dental insurance for both D and J for as long as his employer will allow him to do so.
J [203] Health and dental expenses for J over $100 after insurance reimbursement, which were incurred while J was covered, by both Mr. Callender's insurance plan, and by Barbara Staples' insurance plan, shall be shared by Mr. Callender, and by Ms. Staples', based on each of their 2019 incomes.
[204] Ms. Staples must provide her 2019 year-end income statement from her employer, her Tax Return for 2019, and any Notice of Assessment, or Re-Assessment for 2019, before Mr. Callender will be obligated to calculate the parties' proportionate shares. Mr. Callender must pay his share of the extra cost to Tracey Staples.
[205] Any additional health or dental expenses for J over $100 after insurance reimbursement, incurred after Barbara Staples was no longer able to insure J, and incurred while J continues to be a dependent child, and while J continues to be eligible to be insured by Mr. Callender through his employer, for the particular service requested, shall be paid by Ms. Staples.
[206] If Mr. Callender's insurance does not cover a service found to be necessary for J, and found to be in J 's best interests, while J remains a dependent child, then the parties shall share the cost of that service, if the cost is found to be a reasonable cost.
D [207] Any additional health or dental expenses over $100 for D, incurred while D continues to be a dependent child, and while D continues to be eligible to be insured by Mr. Callender through his employer, for the particular service requested, shall be paid by Ms. Staples.
[208] If Mr. Callender's insurance does not cover a service found to be necessary for D, and found to be in D' s best interests, while D remains a dependent child, then
Page 42 the parties shall share the cost of that service, if the cost is found to be a reasonable cost.
Extraordinary expenses [209] Ms. Staples' request for Mr. Callender to be ordered to contribute to the cost for cellular telephones for both D and J, is dismissed.
[210] Ms. Staples' request for Mr. Callender to be ordered to pay the costs associated with J purchasing his car, maintaining his car, insuring his car, and becoming licensed to drive a car, are dismissed.
Disclosure of financial information [211] Both parties must disclose their annual income for child support in a timely way. See paragraphs 52-55, 67-72.
Maintenance Enforcement Program [212] All section 3 child support is payable through the Maintenance Enforcement Program.
Directions [213] Mr. Penny shall draft the order. Costs [214] After evidence was heard on October 15, 2020, the parties inquired about cost submissions. Mr. Callender was directed to file submissions on costs one week after receipt of my decision. Ms. Staples s flirected to file submissions on costs two weeks after receipt of my decision.
Cindy G. Cormier, J.S.C. (F.D.)
SUPREME COURT OF NOVA SCOTIA FAMILY DIVISION Citation: Staples v. Callender, 2020 NSSC 365
Date: 20201210 Docket: MCA No. 042753 Registry: Halifax
Between: Tracey Lee Ellen Staples Applicant v.
Mark Anthony Callender
ERRATUM, FEBRUARY 4, 2021 Judge: The Honourable Justice Cindy G. Cormier Heard: October 15, 2020, in Halifax, Nova Scotia Written Release: December 10, 2020 Counsel: Tracey L. E. Staples, Self-represented Applicant Damian Penny, counsel for Mark A. Callender, Respondent
The text of paragraphs 61, 103, 104, 122, 146, 147, 148, 150, 151, 152, 165, 179, 194, 201 and 211 are deleted and replaced as follows:
[61] In 2019 Mr. Callender's income was found to be $50,458.59 for the months of November and December 2019. Adjusted with the formula for the period between January, and October 2019, Mr. Callender's income is found to be $44,688.86.
[103] J has earned income, and he is able to earn income. There is insufficient evidence to conclude that J's challenges result in J being unable to work. J did not attend classes regularly while he was in high school, he did not apply himself fully. It appears it took two or three additional years for J to complete high school because he failed to attend regularly before the end of 2017, or he completed additional credits on a part-time basis between September 2017 and August 2019.
Respondent
[104] J had the means, by way of earned income, and an ability to earn more income. Considering J's circumstances, his income, the income he could have earned, and his inheritance, J had the means to cover his own post-secondary education costs. J should have prioritized his education rather than purchase a vehicle. I find the vehicle was not a necessary purchase.
[122] Ms. Staples' payments for J are not reflected in the charts included in this decision. Ms. Staples' payments are intended to top up what Mr. Callender will be paying. The amount shall be calculated based on Mr. Callender's yearly income. [EX: Full table amount owing for two children $724 - amount owed for one child $429 = $294 remainder - one child amount of $429 = amount owing for one child $134 =Ms.Staples' payment for J.
[146] Mr. Callender owed Ms. Staples $6,278, based on a retroactive award granted for the period prior to the Variation Order being granted in February 2016. The amount which would have been due between March 2016 and October 2019, and the amount which would have been due between November 2019 and October 2020 are represented in this chart.
[147] Chart 8 accounts for Mr. Callender's notional underpayment between November 2019 and October 2020, for his notional overpayments between January 2017, up to October 2020, and for the retroactive award granted for the period before February 2016.
[148] On a prospective basis Mr. Callender notionally underpaid child support owing since Ms. Staples filed her application in October 2019, for the period between September 2019 through October 2020 by $1,537.00. The total amount must be adjusted for 2020 based on Mr. Callender's 2020 year end income.
[150] Between June 2017 and August 2019 there was insufficient evidence to find J was a dependent child. The number of dependent children must be adjusted and Mr. Callender notionally overpaid section 3 child support as follows ($316 + $1,434.00) + (26 + $251) + $3,050 + $981, and adding $399, and $129 = $6,586.
[151] Mr. Callender should have paid $50 every month between March 2016 and October 2020. All MEP payments made by Mr. Callender were considered child support pursuant to the tables, therefore the entire amount owing $6,278 and underpayments between September 2019 and October 2020 of $1537.00, were considered when determining any amount of child support owed by either party.
[152] Based on the above noted findings and calculations, I find Mr. Callender owes Mr. Staples $1,229.00 in total retroactive section 3 expenses. I find this amount to be the remainder owing on the retroactive award granted for the period before February 2016. Therefore, Mr. Callender may pay the outstanding amount in installments of $50 per month, until the amount is paid in full.
[165] Ms. Staples has requested the court find she was not obligated to have insurance March 2016 - October 2019, and that she is not obligated, November 2019 onward, to secure medical and dental insurance for the benefit of D and J.
[179] At paragraphs ninety seven through one hundred and twelve of this decision I determined J had the means to pay for his post-secondary expenses in 2019/2020, and in 2020/2021. However, I have determined that if Ms. Staples provides proof to Mr. Callender that J has been, and continues to engage (pass his courses), in a full time program, then Mr. Callender shall pay J's portion of the table amount of child support to Barbara Staples (if J is residing with her), or to J, (if he is not residing with Barbara Staples).
[194] Mr. Callender's income is determined as follows: • On a without prejudice basis, Mr. Callender's income for 2020 is found to be $50,458.59 (2019 income), to be adjusted for 2020 upon receipt of year-end income information from his employer; • Mr. Callender's income for 2019 is found to be $50,458.59, see paragraph 64, and $44,688.86, January through October 2019;
• I have drawn an adverse inference in relation to Mr. Callender's income for 2018, and I have determined it to be $50,458.59; • Relying on the formula included in the Variation Order granted in February 2016, I find Mr. Callender's income for 2017 to be $42,263.90; • Relying on the formula included in the Variation Order granted in February 2016, I confirm Mr. Callender's 2016 income was found to be $40,470.83. His actual income for 2016 was $44,799.00; • In 2016 the Court found Mr. Callender's 2015 income to be $44,132.54; • In 2016 the Court found Mr. Callender's 2014 income to be $37,860.
[201] Child support payable pursuant to section 3 has been considered, including the retroactive award granted for the period prior to February 2016. The retroactive calculation for the period between January 2017 and August 2020, results in Mr. Callender owing Ms. Tracey Staples $1,229.00, which is to be paid in installments of $50 per month. Starting January 1, 2021. See paragraphs 119-152.
[211] Both parties must disclose their annual income for child support in a timely way. See paragraphs 52-55, 67-72.