IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: MacDonald v. Hussey, 2005 NSSC 268
Date: 20051005
Docket: 1201-59764, SFH D 40076
Registry: Halifax
Between:
Donna Marie MacDonald
Applicant
v.
Gary Walter Hussey
Respondent
Judge: The Honourable Justice Beryl MacDonald
Heard: September 15, 2005, in Halifax, Nova Scotia
Written Decision: October 5, 2005
Counsel: Lynn Reierson, for Donna MacDonald
Terry Sheppard, for Gary Hussey
By the Court:
[1] This is an interim application filed by the wife, subsequent to the commencement of a divorce proceeding. The husband and the wife have been separated since May 17, 2004. In this interim application the wife is seeking interim interim joint custody and primary care of the two children of the marriage, both boys one of whom is ten and the other six. The wife suggests that the husband have reasonable specified access with these children. She is also seeking child support in the table guideline amount with a proportional contribution toward sec. 7 expenses, retroactive to the separation date. Finally, she is seeking exclusive possession of the matrimonial home.
[2] The husband has filed a reply in this interim proceeding and requests an order for division of the matrimonial assets including an order for the sale of the matrimonial home. He requests the order to include a direction requiring the net proceeds of the sale to be applied to the marital debts and the balance of the proceeds to be held in escrow.
[3] This is an interim proceeding only. Given the extent of information that would be provided at a divorce hearing in respect to issues relating to the appropriate division of matrimonial assets and debt, and to a request for an order requiring the sale of the matrimonial home, I am not prepared to grant the husband the relief he requests at an interim hearing. The evidence provided by the husband does not convince me that the home must immediately be sold. The wife has put forth suggestions about rearrangement of the parties financial affairs that may relieve some of the financial pressure perceived by the husband. I consider it inappropriate to choose his solution over hers without the benefit of a full hearing into the relative merits of each proposal.
[4] I am prepared to grant the wife exclusive possession of the matrimonial home. She and the children have been living in this home since the separation. This home is near to the home occupied by the husband and the children are able to remain in their familiar neighborhood in familiar surroundings.
[5] The wife proposes that the children be in the joint custody of the parties but have their primary residence with her. She suggests that the husband have the children with him every second weekend from Friday after school or after he finishes work until Sunday evening at 8:30 p.m. She suggests that any statutory holiday that falls on the weekend when the children are to be with the husband should be included as his access time. She also proposes that the husband have the children with him two evenings per week from after school or after he finishes work until 8:30 p.m. She suggests that holiday access including Christmas, Easter and March break and summer holidays be divided equally.
[6] The husband requests an order for shared parenting. After reviewing the affidavits of the parties and the oral evidence given during the hearing I am not satisfied that an interim arrangement for shared parenting is appropriate at this time. In Marshall v. Marshall 1998 CarswellN.S. 183, the Nova Scotia Court of Appeal approved of the test applied by Judge Daley to interim applications of this nature in Webber v. Webber (1989), 90 N.S.R. (2d) 55. At page 57 of his decision Judge Daley wrote:
“Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is: what temporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of the child, the living arrangements with which the child is most familiar, should be maintained as closely as possible. With this in mind, the following questions require consideration.
(1) Where and with whom is the child residing at this time,
(2) Where and with whom has the child been residing in the immediate past; if the residence of the child is different than #1, why and what were the considerations for the change in residence.
(3) The short term needs of the child including:
(a) age, educational and/or pre-school needs,
(b) basic needs and any special needs,
(c) the relationship of the child with the competing parties,
(d) the daily routine of the child;
(4) Is the current residence of the child a suitable temporary residence for the child taking into consideration the short term needs of the child and
(a) the person(s) with whom the child would be residing;
(b) the physical surrounding including the type of living and sleeping arrangements, closeness to the immediate community and health;
(c) proximity to the pre-school or school faculty at which the child usually attends;
(d) availability of access to the child by the non-custodial parent and/or family members;
(5) Is the child in danger of physical, emotional or psychological harm if the child were left temporarily in the care of the present custodian and in the present home.”
[7] I have considered the comments of Justice Roscoe in Burns v. Burns 2000 CarswellNS 2 in respect to the considerations to be examined when determining who in a family is the primary care parent. I have determined that the wife in this family is and has been the primary care parent. Also, I have reviewed Bradley v. Josey [2003] N.S.J. 487 ; M.P.A.C.S.L.B. (Bell v. Cormier) [2002] O.J. 5494, Bryden v. Bryden [2005] N.S.S.F. 9, and Farnell v. Farnell [2002] N.S.J. 491 all of which have application to this proceeding in which the parties have exhibited significant conflict and inability to resolve important issues in respect to the care of their children so as to make a shared parenting arrangement at this time unworkable. I am satisfied that the parties can communicate well enough to continue joint custody with primary care to the wife.
[8] Since the parties separated on May 17, 2004, the children have lived in the matrimonial home with the wife. The husband has had regular access with the youngest child but not with his older son. The wife suggests this is because that child is having difficultly accepting his parents separation and the husband’s new partner, previously the parties next door neighbor, with whom the husband is now living. The husband suggests his wife is influencing his son negatively against him. Given that the youngest child has no difficulty being in the care of his father, and based on the other evidence before me, I do not accept that the wife has negatively influenced this child.
[9] To attempt to correct the lack of contact between the older child and his father, the parties did agree that he should see a counsellor. The husband did not agree that a person in the wife’s workplace would be appropriate. He feared such a person may be biased against him. The parties agreed that Dennis Allaby would be the counsellor for this child. The husband now wants a new counsellor to be engaged because he is not satisfied that there has been any progress. His son still is not prepared to be in his care for any significant period of time. The husband does admit that he has made some very upsetting statements to the child by telling him, during a confrontation between them Easter 2005, that he would need the husband in the future because the wife would soon get cancer and die because she has smoked for a number of years. “Then you’ll have no choice but to be with me then.” The husband also, after an incident that occurred December 4, 2004, was (and may still be) subject to an undertaking preventing him from having direct or indirect contact with the wife. The husband attempted to minimize the event but he did enter voluntarily into the prohibition order, the existence of which made arranging access difficult. I accept the wife’s evidence that she did everything she could to work through third parties to arrange for access to occur.
[10] There has been regular access between the younger child and his father and some contact with the older child, although this is limited by that child’s unwillingness to be in his father’s care. This child is exhibiting problems at school and socially that may have their root in conflict between the parents. I am uncertain whether these problems may become more pronounced or lessened if this child is in some way “forced” to spend time with his father in his father’s residence. Given these uncertainties, I consider it important for the parties to consult with Mr. Allaby in carrying out the terms of the order I will grant in respect to contact between the husband and the older child. I am satisfied that this child has formed a relationship with Mr. Allaby. I do not consider it to be in this child’s best interest to be required to establish a relationship with a new counsellor.
[11] One of the functions of the Court at an interim hearing is to stabilize the situation for the children while attempting to maintain the maximum possible contact between the children and their parents. I am not satisfied that it is in the older child’s best interests to immediately order every second weekend residence in the home of the father in light of the resistance this child is presently exhibiting to this possibility. However, it do consider it important that this child establish regular contact with the husband. Given that the parties have already engaged the services of a counsellor, I direct that he should be actively engaged in the process of reuniting this child with his father.
[12] Within four weeks from the date of this decision, this child is to be in the care of the husband, at the husband’s residence or elsewhere depending on this child’s activities, two evenings a week from after school until 8:30 p.m. Prior to the first visit the wife is to prepare this child for these visits. If she does not consider herself able to prepare the child for these visits she is to engage the services of Dennis Allaby to assist in this transition. If Dennis Allaby considers it necessary to speak with the husband to ensure this child’s comfort with these visits, the husband shall accommodate this request or risk the possibility that the visits may not occur if this is recommended by Dennis Allaby. This child shall continue to have regular consultations with Dennis Allaby the purpose of which will be to provide an independent view of the child’s acceptance or difficulty in respect to contact with the husband. Unless the husband and the wife have agreed to an earlier date, or Dennis Allaby suggests this is not in the child’s best interest, within eight weeks from the date of this decision he shall spend every second weekend in his father’s home, in accordance with the schedule established for his younger brother and holidays are to be shared as proposed by the wife. Any portion of the fees charged by Dennis Allaby not covered by either party’s health plan are to be shared by the parties in proportion to his and her income.
[13] The younger child who appears to have no difficulty with spending time in his father’s home will visit with the father on the same two evenings per week as his older brother and will be in his father’s care every second weekend from Friday after school or after the father’s work day until Sunday evening at 8:30 p.m. Holidays are to be shared as proposed by the wife.
[14] After the parties separated they entered into arrangements to try and manage the parties high debt load and this resulted in no specific payment to the wife by way of child support. However, it maybe appropriate to recognize that by contributing toward mortgage payments the children had the security of a home in which to live. This of course does benefit the husband by increasing the equity but this similarly benefits the wife.
[15] The wife has provided information indicating that for some time now she has made a greater contribution to the debt load, some of which is directly related to accommodation, than has the husband. The husband disputes the wife’s information. Upon the information before me at this time I accept the wife’s submissions. It appears that the wife is presently paying the mortgage on the matrimonial home, the loan to purchase the family van, the Sears account, the Zellers account and the RESP plan. The husband is paying a line of credit at the Royal Bank, the Bank of Montreal Master Card, the Royal Bank of Canada Visa, the Canadian Tire Line of Credit and the medical insurance costs.
[16] There was no direct evidence before me whether the debts now paid by the husband were for family expenditures but I have no reason to expect, again on the evidence before me, that they were not. However, they do not contribute directly to the accommodation, food and daily living costs of the wife and the children. Also it is unclear whether the debt now paid by the husband is jointly owed to the third party creditors.
[17] The wife is seeking child support based upon the child support guideline table amount retroactive to the date of the parties separation. Although I have not conducted an extensive review of the case law I accept Bartkowski v.Bartkowski, 2001 CarswellBC 2919; and Huber v. Huber, 2001 CarswellOnt 3814 as authority for the proposition that Courts should be reluctant to grant retroactive relief on an interim application because of the limited evidence available about factors that may effect the granting of this remedy. As a result the issue of retroactive child support is often left to the trial judge for determination after a full hearing into the merits of the case.
[18] I am not satisfied that, in the circumstances before me, a retroactive award to the date of separation should be made at this time. I have determined that the child support requested should be payable beginning July 1st, 2005 recognizing that the date of the application for support is June 22, 2005. As a result of this application the husband was aware that the previous arrangements were not satisfactory and a specific amount for child support was sought. I leave it to the trial judge to determine whether retroactive support should be provided from the date of separation to July 1st, 2005.
[19] The wife has urged me to set the amount of $54,656.00 as the husband’s gross annual income for the purposes of child support. This is the amount the husband earned according to his 2004 income tax return. The husband suggests he is now earning less than this amount due to a downturn in the industry in which he is employed. However his earnings to date are higher than those the husband initially put forward as his gross annual income and he has acknowledged that some considerable portion of his income results from overtime and contracts accessed by his employer. In 2003 he had income of $53,427.00. In 2002 both parties acknowledge that his income of $104,529 was earned as a result of unusual circumstances unlikely to be repeated. However, his income in 2003 and 2004 is relatively consistent. From this I conclude that the best evidence before me upon which to base a likely 2005 gross annual income amount is his 2004 income of $54,656.00. As a result the amount to be paid by way of child support by the husband to the wife for these two children based on the Nova Scotia child support guideline table is $738.00 per month.
[20] The wife is also seeking a contribution to sec. 7 expenses. Her gross annual income is (in rounded figures) $19,000.00. The exhibit listing sec. 7 expenses, attached to the wife’s affidavit primarily relates to extracurricular activity fees except for what is shown as lunch fees. Attached to the pre-hearing brief filed on behalf of the wife there is a suggestion there are health related expenses and primary and secondary school expenses. It was unclear whether the primary and secondary school expenses relate to these lunch fees or some other fee, but given the amounts I have determined they must relate to the lunch fees. In her evidence the wife indicated that she was not seeking child care expense because her work schedule is arranged around the children and that she is home at lunch and after school. Furthermore, I have no evidence before me to indicate that these lunch fees are “extraordinary” , a required determination pursuant to section 7(1) (d) of the Child Support Guidelines. Therefore I decline to make any order in respect to these fees and leave it to the trial judge to determine this issue.
[21] The health related expense appears to be the counselling fee with Dennis Allaby. I find that this expense is reasonable and necessary. Any portion of the fees charged by Dennis Allaby not covered by either party’s health plan are to be shared by the parties in proportion to his and her income.
[22] In respect to the extracurricular activity skating expense much evidence was introduced about the importance of this activity to the older child who appears to be excelling in this endeavour. Unfortunately, in respect to this and other extracurricular activity expenses, I must bear in mind the decision of the Nova Scotia Court of Appeal in Raftus v. Raftus , 1998 Carswell NS 167. There is insufficient evidence before me to establish that these expenses are extraordinary in the sense in which these words have been interpreted by our Court of Appeal. Often parents do agree to contribute to these expenses on an equal or proportional basis and their arrangement becomes the subject of an Order. I do consider this expenditure, based on the wife’s income, to be a heavy burden for her and thus it is perhaps extraordinary looking at her income alone. It would be most unfortunate if it were not recognized by the husband that this activity is very important to his son and may not be sustainable unless he provides some assistance over and above the table guideline amount.
[23] I reserve a decision on the issue of costs. The parties have requested an opportunity to make submissions on costs after my decision on all other issues.
___________________________
Beryl MacDonald, J.