IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Garand (Mason) v. Garand, 2005 NSSC 136
Date: 20050531
Docket: 1201-55032
Registry: Halifax
Between:
Lynda Marie Garand (Mason)
Petitioner
v.
Johnny Armand Garand
Respondent
Judge: The Honourable Justice Mona M. Lynch
Heard: May 18, 2005, in Halifax, Nova Scotia
Counsel: Kathleen Hall, for the Petitioner
Fergus Ford, for the Respondent
By the Court:
Background:
[1] Lynda Marie Mason (Garand), the Petitioner, and Johnny A. Garand, the Respondent, were married on September 15, 1990. The couple had two children, Alexander Phillip Garand born March 5, 1992 and Rebecca Renee Garand, born May 7, 1995. The couple purchased the matrimonial home about three months prior to the marriage and the family lived in the home until the separation in June of 1999. Lynda Mason and the children continue to reside in the matrimonial home.
[2] Throughout the marriage Johnny Garand worked as a plumber. Lynda Mason worked as a hair stylist and has operated a hair salon from the matrimonial home since 1996. She also looks after children in her home before and after school.
[3] By a consent order dated November 25, 1999 Lynda Mason has custody of the children and Johnny Garand has access to the children. Johnny Garand was found to have income of $36,864.00 and child support was ordered in the amount of $515.00 a month commencing December 1, 1999. Johnny Garand was ordered to continue to include the children on his medical plan and the parties agreed to pay one-half of any dental expenses for the children which were not covered by MSI. Both parties were ordered to provide the other with a copy of income tax returns on an annual basis before June 1.
[4] Lynda Mason filed for divorce on July 4, 2000 and Johnny Garand filed an answer on July 28, 2003. The trial in this matter was held on May 18, 2005.
Issues:
[5] Most of the issues in relation to custody and access have been resolved between the parties and were read into the record on September 22, 2004. Issues in relation to custody and access include:
(a) Whether or not a clause is included in the order that neither party will consume excessive amounts of alcohol when the children are in their care; and
(b) Whether or not a clause is included allowing Lynda Mason to take the children out of the country for the purposes of vacation without the consent of Johnny Garand;
Issues regarding child support include:
(a) The amount of retroactive child support, if any, owed by Johnny Garand;
(b) The ongoing monthly amount of child support to be paid by Johnny Garand;
(c) Continued inclusion of the children by Johnny Garand in a medical plan through his employer; and
(d) Sharing of non-MSI covered dental expenses for the children.
Issues regarding property division include:
(a) Division of the pension earned by Johnny Garand through his union pension;
(b) The valuation date for the matrimonial home; and
(c) Division of debts and assets.
Analysis:
Custody:
[6] Lynda Mason requests continuation of the provision in the current order which requires that neither of the parties consume alcohol to excess during times when the children are in their care. Johnny Garand indicated that he does not drink to excess currently but he has in the past. The provision has been in the order now for almost six years and it applies to both parties, not just Johnny Garand. I see no reason to change the provision; it continues to be in the children’s best interest. The provision with regard to alcohol consumption from the current order will continue.
[7] Lynda Mason requests a provision in the order which would allow her to take the children out of the country for vacation. Since the time of separation, Lynda Mason has requested that Johnny Garand provide consent for her to travel to the United States with the children to visit her brother and sister-in-law. Johnny Garand has refused his consent. In his submissions Johnny Garand gave as a reason for withholding his consent concern that Ms. Mason would move with the children out of the country. There is no evidence before me that would substantiate Johnny Garand’s concern. Lynda Mason is in a relationship, the children are settled and she runs her hair salon business from her home. I believe it is in the children’s best interests to be able to visit their extended family. I will include a provision in the order allowing Ms. Mason to take the children out of the country for the purposes of vacation, not relocation, without the consent of Mr. Garand. Ms. Mason is to provide two weeks’ notice to Mr. Garand of any such vacation.
Child Support:
[8] The order of November 1999 with regard to child support was for $515.00 a month based on Mr. Garand’s income at that time of $36,864.00. Johnny Garand has paid that amount since 1999 and has no arrears owing. His record of payment was entered as an exhibit at trial and is exemplary. Based on Mr. Garand’s tax returns minus his union dues, I find that his income for child support purposes since the making of that order has been: 1999 – $37,227.00; 2000 – $39,377.00; 2001 – $34,434.00; 2002 – $40,196.00; 2003 – $40,709.00 and 2004 – $50,026.00.
[9] It is the position of Lynda Mason that Johnny Garand owes retroactive child support. Since 1999 his income exceeded that upon which the order was based in every year except 2001. Johnny Garand’s position is that Lynda Mason has had counsel since 1999 and has not pursued an increase in child support. Lynda Mason’s position is that Johnny Mason was served with the Petition for Divorce in July 2000 which contained a claim for child support. She blames delays on the part of Johnny Garand for extending the matter to trial in May 2005. Her position is that Johnny Garand was aware of the child support guidelines and his obligations under the guidelines. Johnny Garand testified that on one occasion when he was laid off work he made a request to the Maintenance Enforcement Program to pay a lesser amount. On another occasion when he received a raise in pay he made a request to the Maintenance Enforcement Program to pay more. On both occasions he was told that he had to comply with the order.
[10] There are recent cases on retroactive child support, in particular, S.(D.B.) v. G.(S.R.) (2005) ABCA 2 and W.(L.J.) v. R.(T.A.) 2005 ABCA 3, both of the Alberta Court of Appeal. These cases set out the following considerations in deciding whether or not to award retroactive child support:
1. A child is entitled to child support. Need is presumed.
2. The Guidelines presume an ability to pay on the part of the payor in accordance with his or her income as established by s. 16 of the Guidelines.
3. Blameworthy conduct on the part of the payor is not required.
4. The payee does not need to demonstrate an encroachment on capital.
5. Notice of an intention to pursue child support is not a prerequisite to a retroactive award.
6. Whether there is an unreasonable burden placed on the payor should not be assumed, but must be established; it must be unable to be alleviated by creative payment options; the reason for or the cause of the inability to pay must be considered and any burden must be balanced against the corresponding deprivation to the payee and the child.
7. A lump sum payment is not precluded merely because it "redistributes capital".
8. The date of the increased income as defined by the Guidelines is the presumptive date for the commencement of a retroactive award unless the payor has satisfied the additional financial obligation in some other manner, has taken all reasonable steps to fulfill the obligation, has a previous arrangement for child support that contemplates the provisions of the Guidelines, or the payee fails to act diligently without reasonable excuse.
These cases also find that the discretion should be exercised in a manner that is consistent with the fundamental principles of child support and the stated goals and objectives of the Guidelines.
[11] The Nova Scotia Court of Appeal case of Rafuse v. Conrad 2002 NSCA 60 reviews policy considerations in deciding whether to order retroactive child support:
(i) equal treatment under the Divorce Act and provincial legislation;
(ii) presumption that a previous court order is to be respected;
(iii) presumption against retroactive effect;
(iv) child maintenance is a right of the child, not of the parent;
(v) parents are jointly responsible for child support; and
(vi) encourage negotiated settlement.
Factors to consider in whether to award retroactive child support are also reviewed:
Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for a delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.
Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and (3) a significant, unexplained delay in bringing the application.
[12] In this case, Lynda Mason has had primary care of the two children since the parties separated in 1999. The children have the right to child support from both their parents. Ms. Mason has carried the majority of the burden in relation to the children as they live with her on a full-time basis and Johnny Garand has exercised limited access to the children. Johnny Garand had notice that Lynda Mason was making a claim for child support as it was included in the Divorce Petition filed in July 2000. Johnny Garand was well aware of his obligation to pay child support and aware of the guidelines as he made inquiries about lowering or raising the monthly amount based on fluctuations in his income. There does not need to be blameworthy conduct on the part of Johnny Garand. There is no evidence of an unreasonable burden on Johnny Garand in an award of child support dating back to the date of the application. The delay in the matter coming in trial was due, in large part, to inaction on the part of Johnny Garand. There is a need for child support and there is an ability to pay on the part of Johnny Garand. There is no evidence that he fulfilled his additional financial obligations in some other manner. After reviewing all of the considerations, child support should be paid from the date of the Petition based on Johnny Garand’s income for that period.
[13] In many cases the only information available for income is the prior year’s income tax return. In this case I know what Mr. Garand earned during the period in question based on his income tax returns for those years. I will use the actual income earned during the years in question as this is the most accurate income information available. During the entire period Johnny Garand paid $515.00 a month. The following shows Mr. Garand’s income, the table amount which should have been paid and the amount owing or overpaid for that period. The amount for the year 2000 is for six months as the Petition was filed at the beginning of July 2000.
|
Year |
Table Amount |
Difference |
|
2000 |
$545.00 |
$180.00 |
|
2001 |
$487.00 |
($336.00) |
|
2002 |
$556.00 |
$492.00 |
|
2003 |
$563.00 |
$576.00 |
|
2004 |
$679.00 |
$1,968.00 |
|
2005 |
$679.00 |
$820.00 |
|
TOTAL |
|
$3,700.00 |
[14] Johnny Garand was laid off a week prior to this hearing and asks that no amount of child support be ordered at the present time until he receives employment insurance or is back to work. In his evidence, Mr. Garand was clear that a lay-off such as the present one was not unusual and had happened in previous years, including 2004. It is not practical for child support to change up and down based on the fluctuations in pay or changes in pay rate and employment status. As this is not an unusual occurrence I will base the table amount of child support for ongoing support on his 2004 income of $50,026.00. Johnny Garand is to pay child support in the amount of $679.00 a month commencing June 1, 2005 and continuing each month thereafter until further order of the court.
[15] Both parties are to exchange income tax returns and notices of assessment on an annual basis on or before June 1. Johnny Garand will continue to provide medical coverage for the children through a medical plan. Although Mr. Garand testified that he is considering giving up his current medical plan, he will still be responsible to have the children covered by a medical plan. The parties will continue to equally share the dental expenses for the children which are not covered by medical insurance.
Property:
[16] Johnny Garand earned a pension from 1987 to the present time through his membership in Local 56 Plumbers and Pipe Fitters Pension Plan. Lynda Mason has asked me to estimate the value of the pension and set it off against equity in the matrimonial home. The only valuation of the pension comes by letter from Belmont Financial Group where it is found that the hours purchased during the marriage was 2,216 and this would provide a pension of $120.19 a month for the rest of Mr. Garand’s life. The difficulty with using the amounts in this valuation is that it is not an actuarial valuation and it is unclear what assumptions are used. Only the portion of pension earned during the marriage is used, which is contrary to the Nova Scotia Court of Appeal decision in Morash v. Morash 2004 NSCA 20. In Morash it was found to be an error to not include, as a matrimonial asset subject to equal division, the pension benefits earned prior to the marriage. I would therefore order that the portion of the pension earned from the date of first contribution to the separation date in June 1999 be divided equally. I do not have enough information to determine that amount to set it off against the equity in the matrimonial home.
[17] With regard to debts, Johnny Garand acknowledges matrimonial debts paid by Lynda Mason of $193.50 to Costco and $364.34 to Sears. He does dispute that the Visa card was a matrimonial debt and indicates that the card was not in his name. I find that the debt incurred on the Visa card was incurred while the couple was still living together and, therefore, it is a matrimonial debt even if only in Lynda Mason’s name. The balance of this card at separation was $426.65 and was paid by Lynda Mason. Johnny Garand therefore owes $492.25 to Ms. Mason for one half of the matrimonial credit card debt.
[18] In relation to the matrimonial home, Lynda Mason urges the court to value the house at the date of separation and asserts that there was an agreement between the parties that the separation value would be used. Her claim is supported by the fact that the appraisal which was prepared for the parties and paid for by the parties used separation date to value the property. This report was prepared in June of 2002 and valued the matrimonial home at $84,000.00 as of June 1999. The mortgage owing on that date was $52,717.24.
[19] Johnny Garand is urging the court to use the trial date as the date to value the matrimonial home. He is asking that the assessed value of $98,400.00 be used as the current value of the property as no updated appraisal has been completed. The amount agreed to be owing on the mortgage is $14,000.00. He cites Simmons v. Simmons (2001), 196 N.S.R. (2d) 140 (N.S.S.C.F.D.) to support his position.
[20] I agree with Justice Campbell in the Simmons decision and I find that the proper date to value the matrimonial home and the mortgage is the date of trial. I do not find that there was a binding agreement that the separation date would be used at the trial. As the parties did not reach an agreement in relation to all property matters or even in relation to the matrimonial home, I cannot find that Mr. Garand should be held to an agreement he may have made in furtherance of settlement discussions and to obtain the assessment.
[21] If I did not find that the proper date for valuation of the matrimonial home was the date of separation, Lynda Mason requested an unequal division of the matrimonial home. As stated in the recent case of Hendrickson v. Hendrickson 2005 NSCA 67, the onus is on the person requesting the unequal division to establish that an equal division would be unfair or unconscionable. In considering an unequal division I must take into account the factors in s. 13 of the Matrimonial Property Act.
[22] In the present case, Lynda Mason and the children have been living in the matrimonial home since the separation in June 1999. She has been solely responsible to pay all of the expenses associated with the home since that time. She has been solely responsible for the payment of the mortgage which has been reduced by over $38,000.00 since the separation. She has been responsible for all repairs to the home and for replacement of items such as the furnace in 2000, a new roof in 2002 and the day to day maintenance and upkeep of the house. In May of 2001 when the mortgage came up for renewal, Johnny Garand refused to renew the mortgage. His attitude was that the house could be repossessed or sold but he would not sign to renew the mortgage. The bank agreed that Lynda Mason could continue with the mortgage but at a higher interest rate (at least 1% higher) and therefore a higher payment than if Mr. Garand had signed the mortgage documents.
[23] The Petition in this matter was filed in July of 2000 and the evidence was that delays on the part of Johnny Garand were largely responsible for the five year delay to the date of trial. There was a three-year delay in the filing of an Answer.
[24] Johnny Garand points to the work that he did on the home during the marriage to establish Lynda Mason’s hair salon in the basement of the matrimonial home. Ms. Mason’s evidence was that she, her father and other friends and relatives assisted in this work but Johnny Garand did do much of the work.
[25] In reviewing s. 13 of the Matrimonial Property Act it is relevant in this case that without the efforts of Ms. Mason the matrimonial home would have not only been impoverished but lost. Mr. Garand refused to sign to renew the mortgage on the home. The children of the marriage live with Ms. Mason in the home and have lived there since their birth.
[26] I have considered the factors above, including the delay attributable to Johnny Garand in this matter coming before the court. I have considered contributions made solely by Lynda Mason to the asset and the appreciation in value of the asset since the separation, which are in large part due to her contribution. In all of the circumstances, I find that it would be unfair and unconscionable in the circumstances of this case to divide the matrimonial home equally. The actions of Lynda Mason preserved the asset and the actions of Johnny Garand have caused much of the delay in this matter. But for the delay, it is likely that this matter would have been finalized quite some time ago with Lynda Mason compensating Johnny Garand for his share in the equity and any increase in value would have been solely Ms. Mason’s.
[27] It would be fair considering all of the circumstance, including the work done by Johnny Garand on the home, to divide the net equity in the matrimonial home two-thirds in favour of Lynda Mason and one-third in favour of Johnny Garand. This allows Mr. Garand to share in some of the increase in value since the separation but recognizes Lynda Mason’s contribution to the increase in value. I find the net proceeds to be $98,400.00 – $14,000.00 = $84,400.00, less the disposition costs of $7,790.00 (6% commission, HST and $1,000.00 legal fees) = $76,610.00 divided by 3 = $25,537.00 equals Mr. Garand’s share of the equity.
[28] Although there were disputes between the parties as to who took what property when and damage done to some matrimonial property, I was not asked to further divide other matrimonial property. I therefore find that the remaining matrimonial property will stay as currently divided.
Conclusion:
[29] (a) The provision with regard to alcohol consumption for both parties in the November 1999 order will continue;
(b) A provision will be included in the order allowing Lynda Mason to take the children out of country for the purpose of vacation, not relocation, without the consent of Johnny Garand. Lynda Mason shall provide two weeks’ notice to Johnny Garand of any such vacations;
(c) Johnny Garand shall pay to Lynda Mason $3,700.00 in retroactive child support and $679.00 a month in child support beginning June 1, 2005. Both parties will exchange income tax returns and notices of assessment on an annual basis on or before June 1;
(d) Johnny Garand will continue to provide medical coverage for the children through a medical plan;
(e) Johnny Garand and Lynda Mason will continue to equally share the dental expenses for the children not covered by medical insurance;
(f) The pension of Johnny Garand through Local 56 Plumbers and Pipe Fitters Pension Plan earned from the date of first contribution to June 1999 will be divided equally;
(g) Johnny Garand will pay to Lynda Mason $492.29 for one-half of the matrimonial credit card debt paid by Ms. Mason;
(h) Johnny Garand’s share of the equity in the matrimonial home is $25,537.00;
(i) All remaining matrimonial property will remain as currently divided;
(j) If Lynda Mason plans to retain the matrimonial home she shall pay to Johnny Garand $21,347.71 before July 1, 2005 and at that time Johnny Mason shall provide to Lynda Mason a Quit Claim Deed; relinquishing to Ms. Mason his interest in the matrimonial home;
(k) If Lynda Mason cannot arrange the financing to provide the above payment to Johnny Garand on or before July 1, 2005, the matrimonial home shall be listed for sale and the proceeds divided as set out above.
J.