MacDonald v. Pink,

• Jurisdiction: Nova Scotia
• Judge: Forgeron, J.
• Neutral Citation: 2011 NSSC 421
• Date: 10 June 2011
• Court: Supreme Court of Nova Scotia (Canada)

MacDonald v. Pink (2011), 311 N.S.R.(2d) 31 (SC);

    985 A.P.R. 31

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. NO.047

Susan "Nicole" MacDonald (applicant) v. David Pink (respondent)

(SFNSF - 006545; 2011 NSSC 421)

Indexed As: MacDonald v. Pink

Nova Scotia Supreme Court

Family Division

Forgeron, J.

November 15, 2011.

Summary:

The following issues were to be determined in this decision: (1) Should income be imputed to the father? (2) Should the father be required to pay s. 7 expenses? (3) Should a retroactive award of child support be granted? and (4) What was the appropriate child support award?

The Nova Scotia Supreme Court, Family Division, determined the issues.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties had an 11-year old daughter - At issue were certain maintenance issues - The mother sought a three year retroactive variation - The Nova Scotia Supreme Court, Family Division, found that the mother had a reasonable excuse for failing to request a variation before 2009 - She did not have the father's address and had no communication with him - The father engaged in blameworthy conduct - He consistently failed to provide proof of income as required by the court order - He did not keep the mother aware of his address, nor did he address his mind to his ongoing responsibility to meet the daughter's needs - The daughter required an appropriate level of support - Finally, the father had the ability to pay retroactive support - He had savings and would be receiving a substantial income tax refund - The court granted the retroactive child support based on a monthly payment of $216 (based on income of $25,000) from December 1, 2006, to May 31, 2009, for a total retroactive payment of $2,759 - See paragraphs 50 to 53.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The parties had an 11-year old daughter - At issue were certain maintenance issues - The mother sought s. 7 special or extraordinary expenses, including miscellaneous health expenses and expenses associated with extracurricular activities, including those related to dancing, drama, sewing, girl guides, and miscellaneous items - The mother submitted that these expenses were extraordinary, necessary, reasonable, and in the daughter's best interests - The Nova Scotia Supreme Court, Family Division, agreed that the extraordinary expenses were necessary in the daughter's best interests and reasonable given the means of the parties - The daughter did not have an ability to contribute financially to these expenses given her age - The court ordered that the father pay his proportionate share of the expenses - See paragraphs 38 to 49.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties had an 11-year old daughter - At issue were certain maintenance issues - The mother sought to impute income to the father commensurate with his income earning capacity and in keeping with average income statistics as provided by Statistics Canada - The Nova Scotia Supreme Court, Family Division, found that the father was underemployed - He was an articulate, intelligent man and his inability to earn a better salary had nothing to do with his age, lack of skills or reasonable educational needs - He had a law degree - The father had not proven that his reasonable health needs prevented him from working to his capacity - The court imputed income of $25,000 to the father - See paragraphs 15 to 37.

Cases Noticed:

Coadic v. Coadic (2005), 237 N.S.R.(2d) 362; 754 A.P.R. 362; 2005 NSSC 291 (Fam. Div.), refd to. [para. 17].

Staples v. Callender, [2010] N.S.R.(2d) Uned. 142; 2010 NSCA 49, refd to. [paras. 17, 40].

MacLellan v. MacDonald (2010), 290 N.S.R.(2d) 317; 920 A.P.R. 317; 2010 NSCA 34, refd to. [para. 17].

MacDonald v. MacDonald - see MacLellan v. MacDonald.

MacGillivary v. Ross (2008), 271 N.S.R.(2d) 37; 867 A.P.R. 37; 2008 NSSC 339, refd to. [paras. 17, 27].

Smith v. Helppi (2011), 306 N.S.R.(2d) 1; 968 A.P.R. 1; 2011 NSCA 65, refd to. [para. 17].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200 (C.A.), refd to. [para. 17].

Hanson v. Hanson, [1999] B.C.J. No. 2532 (S.C.), refd to. [para. 17].

Saunders-Roberts v. Roberts, 2002 NWTSC 11, refd to. [para. 17].

Duffy v. Duffy (2009), 289 Nfld. & P.E.I.R. 132; 890 A.P.R. 132; 2009 NLCA 48, refd to. [para. 17].

Marshall v. Marshall (2007), 261 N.S.R.(2d) 18; 835 A.P.R. 18; 2008 NSSC 11 (Fam. Div.), refd to. [para. 17].

Gould v. Julian, [2010] N.S.R.(2d) Uned. 69; 2010 NSSC 123, refd to. [para. 18].

Gill v. Hurst et al. (2011), 309 N.S.R.(2d) 86; 979 A.P.R. 86; 2011 NSCA 100, refd to. [para. 19].

Montgomery v. Montgomery (2000), 182 N.S.R.(2d) 184; 563 A.P.R. 184; 2000 NSCA 2, refd to. [para. 23].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 23].

Mitansky v. Mitansky (2000), 258 A.R. 188; 2000 ABQB 80, refd to. [para. 25].

McKinnon v. Serroul, [2011] N.S.R.(2d) Uned. 242; 2011 NSSC 386, refd to. [para. 26].

Vanbeek v. Vanbeek, [2008] O.T.C. Uned. A43 (Sup. Ct.), refd to. [para. 28].

Dicks v. Dicks (2001), 196 N.S.R.(2d) 53; 613 A.P.R. 53 (S.C.), refd to. [para. 29].

Pamma v. Pamma, [1999] B.C.T.C. Uned. 54; 1999 CarswellBC 2227 (S.C.), refd to. [para. 30].

Bourque v. Gerlach (2006), 223 B.C.A.C. 230; 369 W.A.C. 230 (C.A.), refd to. [para. 31].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 32].

R.C. v. McDougall - see F.H v. McDougall.

V.C. v. J.D.B. (2009), 274 N.S.R.(2d) 281; 874 A.P.R. 281; 2009 NSSC 25, refd to. [para. 39].

T.L.S. v. D.J.M. (2009), 275 N.S.R.(2d) 357; 877 A.P.R. 357; 2009 NSSC 79; refd to. [para. 39].

J.P., Re (2008), 266 N.S.R.(2d) 314; 851 A.P.R. 314; 2008 NSCA 61, refd to. [para. 40].

D.M.C.T. v. L.K.S. - see J.P., Re.

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 51].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2009), p. 226 [para. 42].

Counsel:

Elaine Gibney, for the applicant, Nicole MacDonald;

Kim Johnson, for the respondent, David Pink.

This case was heard on June 10, 2011, at Sydney, Nova Scotia, by Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on November 15, 2011.