Dixon v. Dixon,

• Jurisdiction: Nova Scotia
• Judge: O'Neil
• Neutral Citation: 2016 NSSC 26
• Citation: 2016 NSSC 26,(2016), 369 N.S.R.(2d) 275 (SC),369 NSR(2d) 275,(2016), 369 NSR(2d) 275 (SC),369 N.S.R.(2d) 275
• Date: 19 January 2016
• Court: Supreme Court of Nova Scotia (Canada)

Dixon v. Dixon (2016), 369 N.S.R.(2d) 275 (SC);

    1162 A.P.R. 275

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.011

Kimberlie Heather Cole (applicant) v. William John Dixon (respondent)

(No. 1201-064590; 2016 NSSC 26)

Indexed As: Dixon v. Dixon

Nova Scotia Supreme Court

Family Division

O'Neil, A.C.J.

January 19, 2016.

Summary:

The Nova Scotia Supreme Court, Family Division, in a decision reported at [2014] N.S.R.(2d) Uned. 282, refused the mother's application for permission to relocate to Ontario with the parties' children. The court ordered shared parenting if both parents remained in Nova Scotia, which they did. The parties were unable to agree on their respective child support obligations as dictated by s. 9 of the Child Support Guidelines.

The Nova Scotia Supreme Court, Family Division, determined that no child support should be paid by either parent to the other in these circumstances. The court ordered each parent to pay any child care expenses incurred while the children were in their care. Any uninsured portion of health related expenses of the children were to be equally shared. As success was mixed, each party would pay their own costs related to this ruling. However, given the father's success at first instance on the primary issue of the mother's application to relocate, the father was the successful party. Costs of $5,000 were awarded in favour of the father.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines - Calculation or attribution of income - The father's income in 2014 included a one time payment of $11,287.20 as the payout of his pension with his former employer - The Nova Scotia Supreme Court, Family Division, held that given the non-recurring nature of this payment, it should not be considered when determining the father's income for 2014 - The inclusion of this amount would distort the father's financial picture and would not result in a fair determination of his income - Similarly, the father received $9,120 as a one time pay out for resigning as a manager with his current "employer" and for resuming his role as an advisor - The change meant the father returned to a commission based income model from a salaried position - For the same reason, this non-recurring payment should not be considered when the father's income was determined - See paragraphs 33 to 34.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines - Calculation or attribution of income - On July 1, 2014, the father's status with his employer changed to that of a commission salesperson from that of a manager - The Nova Scotia Supreme Court, Family Division, stated that although it was not bound to reduce the father's income level for child support purposes on the same basis as the Canada Revenue Agency (CRA), it was satisfied that to do so in this case achieved the fairest outcome - The father's income would be determined after the CRA accepted motor vehicle, business and employment expenses were deducted - The evidence did not persuade the court that the father had inappropriately claimed motor vehicle expenses or that his standard of living was improved because he had claimed these or related expenses - For similar reasons, the court accepted the father's other claimed employment expenses as appropriate - The father met the onus of establishing these expenses as incurred to advance his income earning capacity and as not contributing to a higher standard of living for him, other than enhancing his earning capacity - See paragraphs 35 to 39.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines - Calculation or attribution of income - The court ordered shared parenting if both parents remained in Nova Scotia, which they did - The parties were unable to agree on their respective child support obligations as dictated by s. 9 of the Child Support Guidelines - The Nova Scotia Supreme Court, Family Division, stated that "I am persuaded that the current year's income should be used to assess the child support obligation of the parties, if any. I have come to this conclusion because the parties' incomes and income generating circumstances have been changing. In the case of Ms. Cole, she has been out of the work force on maternity leave. In the case of Mr. Dixon, he has been an employee and self employed with the associated changes in how his income is determined. An assessment of the parties' current income is the better way to determine resources available to support the children on an ongoing basis" - See paragraph 46.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The court ordered shared parenting if both parents remained in Nova Scotia, which they did - The parties were unable to agree on their respective child support obligations as dictated by s. 9 of the Child Support Guidelines - The parenting arrangement was 50:50 - The Nova Scotia Supreme Court, Family Division, stated that "s. 9 of the Child Support Guidelines does not require the payment of set off child support when children are subject to a shared parenting arrangement. It requires the Court to consider three factors. I have considered the table amount of child support each might be required to pay; whether there is an increased cost for the parents as a result of the shared custody arrangement and I have considered the condition, means, needs and other circumstances of the parties and their two children. ... I have determined that no child support should be paid by one to the other in these circumstances. Similarly, as stated, with respect to child care or special expenses, I order each to pay any child care expenses incurred while the children are in his/her care. Any uninsured portion of health related expenses of the children are to be equally shared" - See paragraphs 47 to 53.

Cases Noticed:

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 5].

Marchand v. Boudreau, [2012] N.S.R.(2d) Uned. 186; 2012 NSCA 79, refd to. [para. 6].

Marchand v. Boudreau, [2013] N.S.R.(2d) Uned. 66; 2013 NSSC 93, refd to. [para. 6].

Woodford v. MacDonald (2014), 343 N.S.R.(2d) 90; 1084 A.P.R. 90; 2014 NSCA 31, refd to. [para. 8].

Leet v. Beach, [2010] N.S.R.(2d) Uned. 281; 2010 NSSC 433, refd to. [para. 17].

Darlington v. Moore (2013), 330 N.S.R.(2d) 47; 1046 A.P.R. 47; 2013 NSSC 103, refd to. [para. 17].

Higgins v. Bourgeois Higgins, [2015] N.S.R.(2d) Uned. 199; 2015 NSSC 293, refd to. [para. 60].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, sect. 9 [para. 4]; sect. 16 [para. 20]; sect. 17 [para. 21]; sect. 19(1)(g), sect. 19(2) [para. 19].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Counsel:

Robyn L. Elliott, Q.C., for Ms. Cole;

Terrance Sheppard, for Mr. Dixon.

This matter was heard on November 2015, in Halifax, N.S., before O'Neil, A.C.J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on January 19, 2016.