Supreme Court of Nova Scotia
(FAMILY DIVISION)
Citation: Harris v Delaney, 2023 NSSC 306
Date: 20230921
Docket: 125717
Registry: Sydney
Between:
John Harris
Applicant
v.
Samantha Delaney
Respondent
Library Heading
Judge: |
The Honourable Justice Pamela Marche |
Heard: |
August 31, 2023, in Sydney, Nova Scotia |
Final Written Submissions: |
September 18, 2023 |
Written Decision: |
September 21, 2023 |
Subject: |
Shared Parenting, Violence, Abuse and Intimidation, Interim Child Support |
Summary: |
The father sought a shared parenting arrangement claiming the mother unreasonably restricted his parenting time. The mother argued shared parenting was untenable because of emotional abuse by the father and the parties’ inability to communicate. The mother claimed concern about the father’s lack of consistency in exercising parenting time and further argued a shared parenting arrangement would not actually increase the amount of time the child spent in the father’s care. The mother argued the father’s bid for shared parenting was motivated by a desire to reduce his child support obligation. |
Issues: |
(1) What parenting arrangement is in the best interests of the child? (2) What is the appropriate child support order?
|
Result: |
It is in the child’s best interest that a shared parenting arrangement be implemented. The evidence did not demonstrate abuse as defined by the Parenting and Support Act. Communication challenges between the parties did not preclude shared parenting. Specific provisions were made to support consultation, failing which the mother was given final decision-making authority. The mother was, at times, inflexible and restrictive regarding the father’s parenting time. The mother’s concerns in relation to the father exercising parenting time and paying child support did not detract from the validity of his proposed plan of week about parenting. Child support was determined by a set off, on an interim basis, pending the move of either party to submit to a full Contino based analysis. |
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.
SUPREME COURT OF NOVA SCOTIA
FAMILY DIVISION
Citation: Harris v Delaney, 2023 NSSC 306
Date: 20230921
Docket: 125717
Registry: Sydney
Between:
John Harris
Applicant
v.
Samantha Delaney
Respondent
Judge: |
The Honourable Justice Pamela Marche |
Heard: |
August 31, 2023, in Sydney, Nova Scotia |
Written Release: |
September 21, 2023 |
Counsel: |
Alan Stanwick for the Applicant Heidi Fahie for the Respondent |
By the Court:
Overview
[1] This matter involves five-year-old Maeve. Maeve’s father, Mr. Harris, believes a shared parenting arrangement is in Maeve’s best interest. He proposes a week about parenting arrangement. Maeve’s mother, Ms. Delaney, feels Maeve should remain in her primary care.
[2] Ms. Delaney argues Mr. Harris is emotionally abusive. She says he has been inconsistent in exercising parenting time and his request for shared parenting is financially motivated. Mr. Harris argues Ms. Delaney has unreasonably restricted his parenting time with Maeve.
[3] I must first determine what parenting arrangement is in Maeve’s best interest. I must then assess the appropriate child support payable.
Background and Procedural History
[4] The parties entered a parenting agreement in March 2019. This agreement, not registered with the Court, provided Ms. Delaney with primary care and final decision-making authority for Maeve. After a period of supervision, Mr. Harris was to have unsupervised parenting time, at the discretion of Ms. Delaney.
[5] In April 2022, Mr. Harris applied for shared parenting. By the fall of 2022, the parties had adopted a parenting schedule that placed Maeve in her father’s care every second weekend and every other Friday for several hours. In June 2023, following a settlement conference, the parties agreed to an Interim Order that generally saw Mr. Harris caring for Maeve on weekends (Friday to Sunday), except for every third weekend, when Maeve would be in her mother’s care.
[6] A hearing was held on August 31, 2023. Mr. Harris and his partner, Brittany Penny, were cross examined on their affidavit evidence. Ms. Delaney and her mother, Kimberly Delaney, were similarly cross examined.
Positions of the Parties
Position of Mr. Harris
[7] Mr. Harris believes a shared parenting arrangement is in Maeve’s best interest. He argues he has stable employment, appropriate housing, a solid plan for childcare and reliable transportation. He claims he is fully able to attend to all of Maeve’s needs and Maeve would benefit from being in his care on a week about basis.
[8] Mr. Harris says Maeve has a close and loving relationship with him, his partner, her three children, and their shared child, Maeve’s sibling, Dylan. In addition to this immediate family, Mr. Harris says Maeve has the support and love of his, and his partner’s, extended family members.
[9] Mr. Harris argues Ms. Delaney has unilaterally and unreasonably restricted his parenting time. He says he has consistently sought additional parenting time and denies his request for shared parenting time is motivated by a desire to pay less child support.
Position of Ms. Delaney
[10] Ms. Delaney says Maeve has been in her primary care since birth. She describes a very close and loving relationship with Maeve, reporting they do everything together and rarely spend time apart. Ms. Delaney argues that Maeve enjoys a positive relationship with her extended family as well.
[11] Ms. Delaney argues she alone has been responsible for tending to Maeve when ill and for taking Maeve to all medical and dental appointments. She claims Mr. Harris has never assumed this parental responsibility.
[12] Ms. Delaney argues her early restrictions on Mr. Harris’ parenting time were reasonable given the circumstances. She claims parenting time was initially supervised because of Mr. Harris’ substance use and lack of stability. She says she would not allow overnight visits, or extended parenting time, because Mr. Harris did not have reliable transportation or suitable housing.
[13] Ms. Delaney says she only began allowing Mr. Harris extended parenting time, including overnight visits, in 2022, after gaining some comfort from meeting Mr. Harris’ new partner. Ms. Delaney claims, however, that she remains cautious due to Mr. Harris’ past behaviours.
[14] Ms. Delaney claims Mr. Harris is emotionally abusive. She says Mr. Harris started to become aggressive while they were in a relationship when they would often fight about money. She claims he once threatened to throw her through a wall during an argument. She says she ended the relationship in December 2018 because she had become overburdened with having to pay for everything.
[15] Ms. Delaney claims Mr. Harris has often threatened to take her to court or to take Maeve away from her when they argue. She says she has requested public parenting exchanges because she has feared for herself on more than one occasion. She argues a shared parenting arrangement is not possible because the inability to communicate and cooperate is not conducive to a shared parenting arrangement.
[16] Ms. Delaney further argues she has two current primary concerns about Mr. Harris.
[17] First, Ms. Delaney argues that Mr. Harris is not consistent in exercising parenting time. She says he will often shorten or cancel parenting time or ask to swap scheduled visits. Furthermore, she believes an increase in Mr. Harris’ parenting time will only result in Maeve being in the care of someone other than Mr. Harris.
[18] Second, Ms. Delaney believes Mr. Harris’ claim for shared parenting time is financially motivated. She argues Mr. Harris is only seeking equal parenting so he can avoid paying child support. She says Mr. Harris has been inconsistent with his child support payments and is currently in arrears.
[19] Ms. Delaney describes Mr. Harris’ love for Maeve as being conditional because he has, on occasion, threatened to remove himself from Maeve’s life, particularly when faced with his child support obligation.
Issues
1. What parenting arrangement is in the best interests of the child?
2. What is the appropriate child support order?
Issue One: What parenting arrangement is in the best interest of the child?
Legislation and Case Law
[20] The applicable legislation is the Parenting and Support Act, 1989 RSNS c. 160, (the Act) which states the paramount consideration in any parenting decision is the best interests of the child:
18 (5) In any proceeding under this Act concerning decision-making authority, parenting arrangements, parenting time, contact time or interaction in relation to a child, the court shall give paramount consideration to the best interests of the child.
[21] Section 18(6) of the Act states that the Court shall consider all relevant circumstances when determining the best interests of the child, including:
(a) the child’s physical, emotional, social, and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;
(b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian;
(c) the history of care for the child, having regard to the child’s physical, emotional, social, and educational needs;
(d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social, and educational needs;
(e) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including the child’s Aboriginal upbringing and heritage, if applicable;
(f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained;
(g) the nature, strength, and stability of the relationship between the child and each parent or guardian;
(h) the nature, strength, and stability of the relationship between the child and each sibling, grandparent, and other significant person in the child’s life;
(i) the ability of each parent, guardian, or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child;
(ia) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child, and
(j) the impact of any family violence, abuse, or intimidation, regardless of whether the child has been directly exposed, including any impact on
(i) the ability of the person causing the family violence, abuse, or intimidation to care for and meet the needs of the child, and
(ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person.
[22] The list of best interest factors is non-exhaustive. The weight to be attached to any factor varies from case to case depending on the circumstances. In determining what is in the child’s best interests, I must compare and balance the advantages and disadvantages of each proposed parenting scenario: D.A.M. v. C.J.B., 2017 NSCA 91; Titus v. Kynock, 2022 NSCA 35.
[23] Section 18(8) of the Act says I must give effect to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. In making this determination, I must consider the impact of any family violence, abuse, or intimidation upon parenting arrangements. There is no presumption in favour of shared parenting: Barendregt v. Grebliunas, 2022 SCC 22.
[24] The phrase “family violence, abuse or intimidation” is defined in s. 2(da) of the Act. It means “deliberate and purposeful violence, abuse or intimidation perpetrated by a person against another member of that person’s family in a single act or a series of acts.” It includes:
(i) causing or attempting to cause psychological or emotional abuse that constitutes a pattern or coercive or controlling behaviour including, but not limited to
(A) engaging in intimidation, harassment, or threats, including threats to harm a family member, other persons, pets, or property.
[25] When determining the impact of family violence, abuse, or intimidation, within the context the best interest analysis, I must consider, as per s. 18(7) of the Act:
(a) The nature of the family violence, abuse, or intimidation,
(b) how recently the family violence, abuse, or intimidation occurred,
(c) the frequency of the family violence, abuse, or intimidation,
(d) the harm caused to the child by the family violence, abuse, or intimidation,
(e) any step the person causing the family violence, abuse or intimidation has taken to prevent further family violence, abuse, or intimidation from occurring, and
(f) all other matters the court considers relevant.
[26] In Barnhart v. Murphy, 2023 NSSC 31, Justice Jesudasen, citing Hammond v. Nelson, 2012 NSSC 27, and Gibney v. Conohan, 2011 NSSC 268, summarized the factors often considered when assessing whether a shared parenting arrangement is in a child’s best interests: “…they broadly include things such as proximity of the parents’ homes, availability of each parent, whether a reduction in transitions between households can be achieved through a shared parenting arrangement, disruption to the children, the level of conflict between the parties, each parent’s motivation and capability to realize their parenting opportunity for the best interests of the children, and other factors (para. 81).”
[27] In A.N. v. J.S., 2018 NSSC 146, Justice Beaton said on shared parenting: “Central to the question of whether shared parenting will be ordered is a consideration of the parties’ ability to communicate in a timely, meaningful and respectful way … ” and “Court are not looking for shared arrangements of perfection …however parent do need to satisfy the Court that it is realistic to expect they can put the children’s needs first and foremost in their communication and decision-making (para. 9).”
Findings and Decision
[28] I must weigh the advantages and disadvantages of the parenting plans proposed by Mr. Harris and Ms. Delaney. Although I have not specifically addressed each factor set out in s. 18 of the Act, I have considered all elements relevant to this case. I have also considered the jurisprudence as it relates to shared parenting.
Findings
Impact of Violence, Abuse, or Intimidation
[29] I accept that Ms. Delaney feels uncomfortable in her interactions with Mr. Harris. However, there is insufficient evidence for me to conclude that Mr. Harris has been emotionally abusive to Ms. Delaney. The evidence presented did not demonstrate a pattern of coercive or controlling behaviour meant to intimidate, harass, or threaten Ms. Delaney. I base my conclusion on the following:
• Ms. Delaney’s affidavit references a single verbal threat of physical violence made in 2018. Ms. Delaney’s evidence in this regard was not directly disputed. I accept Mr. Harris made this threat.
• The other threats referenced by Ms. Delaney relate primarily to Mr. Harris’ stated intention of pursuing court action. The evidence establishes the parties were angry and frustrated with each other. They had become stringent with one another, each blaming the perceived inflexibility of the other for their own behaviours. Within this context, I can not characterize Mr. Harris’ stated intentions as threats designed to coerce or control Ms. Delaney but rather a reflection of his legal recourse: if the parties could not agree on parenting, they would need to go to court.
• Ms. Delaney’s insistence on public exchanges for parenting only started in April 2022, after a heated text exchange between the parties about parenting time. Mr. Harris had asked to switch weekends. Ms. Delaney denied his request, citing the previous difficulty she had encountered with Mr. Harris when he denied her request for a parenting time accommodation. Ms. Delaney texted: “You cannot treat me the way you do and then expect me to show you kindness and compliance” followed immediately with “Another thing to add is that I am no longer comfortable with you coming near my house to pick up Maeve. From now on we will have to meet in a public place where I will feel safer.” I believe that Ms. Delaney’s insistence on a public exchange had more to do with the escalating conflict between the parties. This was an unfortunate situation to which both parties contributed, rather than controlling and coercive threatening behaviour on the part of Mr. Harris.
[30] In assessing the issue of violence, abuse, or intimidation, I did not consider the following:
• The admission of Ms. Delaney during cross examination that she did not make a police complaint or seek a protection order against Mr. Harris in response to the alleged abuse. I cannot infer the absence of violence, abuse, or intimidation simply because such reports were not made. Under reporting is a common occurrence in situations involving violence, abuse, and intimidation.
• I did not consider the impact of any counselling sessions Mr. Harris may have taken through his Employee and Family Assistance Program. Mr. Harris did submit evidence of an email that he provided Ms. Delaney confirming a counselling session he was scheduled to attend on July 15, 2020. I received no information about the objectives of the counselling and whether they were achieved.
[31] I have considered the nature of abuse alleged by Ms. Delaney. The threat of physical violence occurred once in 2018. There was insufficient evidence to establish a pattern of coercive and controlling behaviour designed to threaten or otherwise emotionally abuse Ms. Delaney. Ms. Delaney advanced no claim that Maeve was exposed to or harmed by the behaviours she attributes to Mr. Harris. There is no evidence that the safety or security of Maeve is at risk while in Mr. Harris’ care.
[32] In particular, Ms. Delaney testified the way Mr. Harris treats Maeve is “just fine” and the issues are between her and Mr. Harris. This evidence was corroborated by the evidence of Kimberly Delaney, Ms. Delaney’s mother, who said: “I don’t doubt that he is a good father, and he loves his daughter’” as well as “I am not denying that it is a positive experience for Maeve to spend time with him” and “He loves his daughter as much as her mother does.”
[33] By her own admission, Ms. Delaney’s current concerns about Mr. Harris relate primarily to his inconsistency in exercising parenting time and paying child support, which I will now address.
Need for Consistency (Stability)
[34] I do not accept Ms. Delaney’s assertion that requests from Mr. Harris to adjust parenting time schedules are indicative of a lack of interest in or commitment to his parenting time with Maeve. Mr. Harris has actively pursued an increased parenting role. Furthermore, Ms. Delaney acknowledged, during cross examination, that Mr. Harris has, in fact, been consistent in following the parenting arrangements set out in the Interim Consent Order.
[35] I do not accept Ms. Delaney’s argument that the parenting plan put forth by Mr. Harris will serve only to place Maeve in someone else’s care. A move to week about parenting will increase the amount of time Maeve spends with her father. I agree the parenting arrangement proposed by Mr. Harris contemplates the need for childcare for Maeve from after school until the conclusion of Mr. Harris’ workday at approximately 5 pm. This childcare need is not excessive, and Mr. Harris has put forward a reasonable plan in this regard.
Failure to Pay Child Support
[36] The failure of Mr. Harris to reliably pay child support is blameworthy behaviour. However, there was insufficient evidence to satisfy me that Mr. Harris is seeking additional parenting time with Maeve simply to avoid his obligation to pay child support. Placing Maeve in Mr. Harris’ care on a week-about basis may increase financial demands upon Mr. Harris.
Willingness to Facilitate Parenting Time
[37] I find Ms. Delaney has been, at times, recalcitrant in her willingness to facilitate Mr. Harris’ parenting time. I make this finding based on the evidence of the parties, including their text message exchanges. I approach text messages with caution when assessing evidentiary value because they often represent only out of context snippets of larger conversations. However, it is clear from text messages submitted by Ms. Delaney herself that she contemplated withholding permission for Maeve to travel to Disney pending confirmation from Mr. Harris of child support payment.
[38] In addition to threatening to withhold access, Ms. Delaney, on occasion, displayed an authoritative, all or nothing, attitude in terms of Mr. Harris’ parenting time. Her tone was sometimes dictatorial in discussions about parenting time. For example, Mr. Harris wanted to attend Maeve’s dance lessons. Ms. Delaney directed he could only attend every other week, saying “It’s that, or nothing.”
[39] Ms. Delaney argues that Mr. Harris hasn’t taken Maeve to the doctor or otherwise attended to her medical needs. Mr. Harris argues that he hasn’t been given the chance to provide such care for Maeve. Ms. Delaney says “it isn’t her job” to give Mr. Harris such opportunities. I find the attitude displayed by Ms. Delaney in this regard is also indicative of an unwillingness to facilitate parenting time.
Ability to Communicate and Cooperate
[40] The ability of the parties to communicate has been challenging given their dispute over parenting arrangements. However, the fact that parties are in conflict does not, in itself, preclude a shared parenting arrangement. Some of the difficulties in communication may be attributed to Ms. Delaney herself whose tone was sometimes autocratic and abrupt. Overall, I find the text messages between the parties did, at times, reflect an ability of both parties to communicate in a manner that is respectful and child focused. Furthermore, the parties compliance with the Interim Consent Order demonstrates an ability to communicate and cooperate.
[41] The struggle to communicate and cooperate does not preclude a shared parenting arrangement in this case but does necessitate a detailed provision for consultation, access to information and final decision-making authority to provide for circumstances when the parties may not be able to reach consensus. The inclusion of such a clause will help support a shared parenting arrangement.
Physical, Emotional, Social and Education Needs
[42] By all accounts, Maeve is a bright and loving child. She has no special needs in terms of her physical, emotional, and social needs. Her parents have agreed that she should attend French school. I reject Ms. Delaney’s suggestion that Mr. Harris will be unable to assist Maeve in her French immersion program, particularly at the primary levels. There was no evidence to suggest that Mr. Harris was incapable of providing appropriate care for Maeve such that all her needs are met.
History of Care
[43] I accept that Ms. Delaney has been Maeve’s primary caregiver since birth. I further accept that, early in Maeve’s life, Mr. Harris had limitations with respect to housing and transportation that restricted his ability to consistently exercise parenting time. The brief reference to Mr. Harris’ substance use in 2018 was uncontroverted, but there was no evidence of this being a current parenting concern.
Nature, Strength, and Stability of Maeve’s Relationship with Family Members
[44] Ms. Delaney acknowledges that Maeve has a positive relationship with her father, her brother, her stepsiblings and Mr. Harris’ new partner, Ms. Penny. I have no concerns that Mr. Harris’ love for Maeve is conditional, as suggested by Ms. Delaney. Similarly, I find that Maeve has a strong and loving relationship with her mother and the maternal side of her family.
[45] Ms. Delaney expressed some concerns in relation to Maeve being exposed to extended family members who may be involved in criminal activities. I heard very limited evidence in relation to this issue. I have no reason to believe Mr. Harris would expose Maeve to dangerous situations posed by extended family members.
Decision on Parenting
[46] I have carefully considered the legislation, case law and evidence. Maeve deserves to have a meaningful and consistent relationship with both of her parents. Both parties are capable of being primary parents. A clearly set out parenting schedule will serve to mitigate Ms. Delaney’s concerns regarding consistency. Mr. Harris has put forth a reasonable parenting plan. I am satisfied that shared physical parenting is in Maeve’s best interest and will allow each parent to be meaningful involved in Maeve’s life.
[47] I have determined it is Maeve’s best interest to order the following:
Shared Parenting
• Starting Friday, September 29, 2023, Maeve will spend equal amounts of time in each party’s home, on a week about schedule, with exchanges on Fridays at 6 pm.
Holidays and Special Occasions
[48] Each party filed a Parenting Statement but otherwise did not make submissions on this issue. In her Parenting Statement, Ms. Delaney proposed:
• Maeve would spend every March Break with her.
• Maeve would spend every Christmas with her from Christmas Eve until 2 pm to Christmas Day when Maeve would be with Mr. Harris until December 26 at 2 pm. Mr. Harris would also have parenting time with Maeve on Ukrainian Christmas.
• Maeve would spend every Easter morning with her until 2pm on Easter Sunday when Maeve would be with Mr. Harris until 2 pm the following day.
• Maeve would spend Mother’s Day with her and Father’s Day with Mr. Harris.
[49] Mr. Harris did not offer a specific proposal for holidays and special occasions.
[50] Holidays and special occasions will be shared between the parties as follows:
• The parties will share March Break equally.
• Beginning in Christmas 2023, and continuing in odd years, Mr. Harris will have Maeve in his care from the beginning of Christmas school break until 2 pm on Christmas Day. Ms. Delaney will have Maeve in her care from 2 pm on Christmas Day until the end of Christmas break. The schedule will reverse in even years, with Ms. Delaney having Maeve in her care from the beginning of Christmas school break until 2 pm on Christmas Day.
• If Ukrainian Christmas falls on a week when Maeve is not normally scheduled to be in Mr. Harris’ care, Mr. Harris will have parenting time with Maeve on this day for at least 4 hours.
• Beginning in Easter 2024, and continuing in even years, Mr. Harris will have Maeve in his care from the beginning of Easter school break until 2pm on Easter Sunday and Ms. Delaney will have Maeve in her care from 2 pm on Easter Sunday until the end of Easter break. The schedule will reverse in odd years, with Ms. Delaney having Maeve in her care from the beginning of Easter school break until 2 pm on Easter Sunday.
• Maeve will spend Mother’s Day with Ms. Delaney and Father’s Day with Mr. Harris.
Access to Information
• Mr. Harris and Ms. Delaney can each make inquiries and receive information from Maeve’s educators, counselors, caregivers, healthcare providers and religious leaders.
• Mr. Harris and Ms. Delaney may each receive Maeve’s school report cards, medical reports, dental reports, specialist reports, and information regarding Maeve’s recreational activities.
• If contacts are required, both Mr. Harris and Ms. Delaney will be listed as contacts.
Consultation and Decision-Making
• The party caring for Maeve will make decisions related to Maeve’s daily care while Maeve is in their care.
• Mr. Harris and Ms. Delaney will meaningfully consult with each other on all major decisions respecting Maeve. If the parties cannot agree, they will follow the advice of a professional who provides care to Maeve. If the professional is unable or unwilling to provide a specific course of action, Ms. Delaney will make the final decision.
• In an emergency, either party may authorize Maeve’s emergency medical care. Each party must immediately notify the other if Maeve has a serious illness or accident while in his or her care.
Communication
• The parties will communicate with each other in a manner that is respectful and child focused.
• Neither party will allow any person to make negative or disparaging comments to Maeve about the other party or members of their family or household.
• At all times, the parties will encourage Maeve to have a positive and respectful relationship with the other party and members of the other party’s family and household.
• Neither party will discuss adult matters with Maeve or in the presence of Maeve.
Attendance at Activities
• Mr. Harris and Ms. Delaney may each attend Maeve’s activities, such as recreational activities, medical and dental appointments, and parent-teacher meetings.
• There must be no conflict between the parties at such venues and the parties must keep a reasonable distance between themselves and the other party.
Issue Two: What is the appropriate child support order?
Legislation and Case Law
[51] The applicable law is the Nova Scotia Provincial Child Support Guidelines made under Section 55 of the Parenting and Support Act, supra, (the Guidelines). Section 9 of the Guidelines addresses the determination of child support in shared parenting arrangements.
[52] The Supreme Court of Canada outlined the child support analysis to be conducted within the context of a shared parenting arrangement in Contino v. Leonelli-Contino, 2005 SCC 63. It is an error to proceed to final determination of child support in the absence of such information: Woodford v. MacDonald, 2014 NSCA 31.
Position of the Parties
Ms. Delaney
[53] Ms. Delaney is seeking the table amount of child support from the date Mr. Harris filed his application (April 29, 2022), s. 7 expenses and enforcement of Mr. Harris’ child support obligation outlined in their parenting agreement from the period of January 2022 to April 2022.
Mr. Harris
[54] Mr. Harris’ only submission in relation to child support was that he be permitted to pay any retroactive child support found to be payable in reasonable monthly installments.
Findings and Decision
[55] Ms. Delaney did not file a Response. Nor did she file a Statement of Special or Extraordinary Expenses. I am prepared to address Ms. Delaney’s claim for the table amount of child support from the date Mr. Harris’s application was filed forward. I am not prepared to deal with the s.7 claim or the request for enforcement of the child support provisions in the parenting agreement (retroactive support enforcement) because there was insufficient notice of these claims and because these claims advanced only through written submissions and not supported with evidence.
[56] The financial disclosure submitted in this matter does not support a fulsome Contino, supra, analysis. There is a lack of evidence in the record as to the expenses related to the child, the income, and expenses in the respective households. However, given the implementation of a shared parenting arrangement, I am prepared to make an interim order for child maintenance, pending the filing of additional evidence. This is the approach used by Justice Forgeron in Burke v. Gouthro, 2023 NSSC 55.
[57] For interim purposes, I will use a set-off approach. Mr. Harris’ income is set at $45,830, based on his 2022 income tax return, and his monthly child support obligation is $390. Ms. Delaney’s income is set at $33,000, based on her 2022 income tax return, and her monthly child support obligation is $283. The net interim amount which Mr. Harris owes Ms. Delaney is $107 per month, payable on the 1st day of each month, commencing October 1, 2023.
[58] The interim child support order may be adjusted based on further evidence. If either party wishes the Court to engage in a more fulsome analysis of child support, they must notify each other and The Court by October 16, 2023. After which time the interim order may become a final child support order.
[59] Based on income of $45,830, I order Mr. Harris to pay the table amount of child support in the amount $390 per month, from May 2022 to September 2023, which is a period of 17 months. Ms. Delaney acknowledges she received $1,444 in child support from Mr. Harris during this period. Mr. Harris, therefore, owes Ms. Delaney $5,186 in child support ($390 x 17 = $6,630; then $6,630 - $1,444 = $5,186).
[60] The amount of child support owed to Ms. Delaney by Mr. Harris for the period of May 2022 to September 2023, will be paid in the amount of $150 per month, commencing the 1st day of October 2023 and continuing the 1st day of each month until the sum of $5,186 is paid in full.
Conclusion
[61] It is in Maeve’s best interests that a shared parenting regime be implemented. Child support has been determined by set-off for interim purposes pending the request by either party for a more fulsome Contino analysis. Counsel for Mr. Harris will draft the Order. Any party wishing to be heard on costs must file written submissions on the issue on or before October 23, 2023.
Pamela A. Marche, J.