Gardiner v. Gardiner, 2007 NSSC 186

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 13, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSSC 186;(2007), 257 N.S.R.(2d) 390 (SC)

Gardiner v. Gardiner (2007), 257 N.S.R.(2d) 390 (SC);

    820 A.P.R. 390

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. SE.012

D. Mark Gardiner (petitioner) v. Lisa Gardiner (respondent)

(1204-003919; 2007 NSSC 186)

Indexed As: Gardiner v. Gardiner

Nova Scotia Supreme Court

Goodfellow, J.

September 6, 2007.

Summary:

Spouses separated in 2004 after two years' marriage. At issue in this divorce and marital property litigation was custody and access to their four year old daughter, a division of limited marital property and more significant debts, and child support under the Federal Child Support Guidelines, including retroactive support, s. 7 expenses and the father's submission that the shared custody provisions of s. 9 of the Guidelines applied.

The Nova Scotia Supreme Court granted a divorce and awarded joint custody, with the day-to-day care and residence of the child to be with the mother and specified access to the father. Section 9 of the Guidelines did not apply, as the father did not have physical custody of the child for at least 40% of the time. The father was ordered to pay arrears of child support and s. 7 expenses, and ongoing child support and s. 7 expenses. The marital assets and debts were divided.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - Spouses separated in 2004 after two years' marriage - The father was a sole practitioner lawyer before, during and after the marriage - The father's practice generated less income than he could practically obtain in alternative employment outside of his profession - The mother submitted that the court should direct the father to obtain more remunerative employment or impute income - The Nova Scotia Supreme Court rejected the submission - The father practised as a sole practitioner when he met and married the mother and was entitled to continue to pursue his chosen profession - The court opined that directing a person to seek alternative employment was probably beyond the court's jurisdiction under the Divorce Act - Although this was not an appropriate case to do so, the appropriate remedy would be to impute income if the payor spouse was underemployed - See paragraph 49.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - Section 9 of the Federal Child Support Guidelines permitted the court to deviate from the amount of child support determined under s. 3 where a spouse exercised access to, or had physical custody of, a child for at least 40% of the time - Although parents had joint custody, primary day-to-day care rested with the mother in her home, with the father having specified access - The Nova Scotia Supreme Court, in rejecting a father's claim of "shared custody", stated that in determining whether a parent had physical custody at least 40% of the time "it is irrelevant how much time the child is in the custody of the other parent. Take for example, a normal situation of mid-week access. The parent alleging shared custody has to do more than say he/she picks the child up and takes the child to school in the morning and picks the child up after school to remain overnight to the following morning whether or not it is an exercise of right-of-access or physical custody depends on the factual situation. Normally while the child is in school, the parental responsibility/guardianship component of custody prima facie rests with the parent who has the primary care/responsibility of the child." - See paragraphs 30 to 48.

Cases Noticed:

Loughran v. Loughran (2000), 182 N.S.R.(2d) 143; 563 A.P.R. 143 (S.C.), refd to. [para. 22].

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. 35].

Hill v. Hill (2003), 213 N.S.R.(2d) 185; 667 A.P.R. 185; 2003 NSCA 33, refd to. [para. 38].

Hamm v. Hamm, [1998] N.S.R.(2d) Uned. 31 (S.C.), refd to. [para. 39].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 39].

Gilbert v. Gilbert (2004), 223 N.S.R.(2d) 336; 705 A.P.R. 336; 2004 CarswellNS 189; 2004 NSSF 47, refd to. [para. 42].

Rush v. Rush (2002), 211 Nfld. & P.E.I.R. 198; 633 A.P.R. 198 (P.E.I.T.D.), refd to. [para. 43].

Doucette v. Kelleher, [2005] N.S.R.(2d) Uned. 128; [2006] W.D.F.L. 500; 2005 NSSC 92, refd to. [para. 44].

Baker v. Baker (2003), 218 N.S.R.(2d) 221; 687 A.P.R. 221; 2003 NSSC 203, refd to. [para. 53].

Counsel:

D. Mark Gardiner, on his own behalf;

Kate Seaman, for the respondent.

This case was heard on June 13, 2007, at Windsor, N.S., before Goodfellow, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 6, 2007.