IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Thomson v. Thomson, 2006 NSSC 158 Date: [Decision Date 20060524 Docket: 1201‑55623 (SFHD‑10366) Registry: Halifax Between: Kimberlie Ann Thomson v. Paul Andrew Thomson Respondent Judge: The Honourable Assoc. Chief Justice Robert F. Ferguson Heard: April 27, 2006, in Halifax, Nova Scotia Written Decision: May 24, 2006 Counsel: Kimberlie Ann Thomson, self‑represented Gordon Kelly, counsel for the Respondent By the Court: [1] Kimberlie and Paul Thomson were married on April 29, 1995, and separated in December in 2002. They are the parents of Andrew, born October 31, 1997, and Katherine Ann, born May 31, 2000. [2] For approximately five years the parties' parenting time with their children has been distributed on two‑week basis. In week one, Mr. Thomson picks up his children on Wednesday after school and returns them to school on Friday morning. In week two, Mr. Thomson picks up his children Thursday after school and returns them to Ms. Thomson Sunday evening. The remainder of the time the children reside with their mother. Also, since separation. the parents have been able to make agreeable arrangements as to sharing the parenting duties in the "non‑school" times, including Christmas, Easter. March Break and the summer vacation period. For the last five years, the parents have shared child care cost of $800.00 per month. [3] In February of 2001, Ms. Thomson petitioned for divorce. trial was held on April 27, 2006. [4] have heard the evidence as to the possibility of reconciliation and determined there is no such possibility. am satisfied all matters of jurisdiction have been fulfilled. The requirements of the Divorce Act have been complied with in all respects and the grounds for divorce as alleged has been proved. The Divorce Judgment shall be granted on the grounds set forth in s. 8(2)(a) of the Divorce Act in that there has been breakdown of the marriage and the spouses have lived separate and apart for more than year immediately preceding the determination of the divorce proceeding and have lived separate and apart since the commencement of the proceeding. [5] The parties will retain the interest they have acquired in their own pensions. Spousal Support [6] Neither party is seeking spousal support. [7] The parents agree to be designated as joint custodians of their children. ISSUES [8] Ms. Thomson seeks to become the primary care giver for the children and for Mr. Thomson\'s access to take place every second weekend. Further, she seeks to have Mr. Thomson make child support payments in accordance with the Federal Child Support Guidelines by paying table amount in accordance with his income and by making contribution to the $800.00 month child care cost in accordance with their respective incomes. [9] Mr. Thomson seeks to vary his parenting time so that he and Ms. Thomson would equally share their time with the children. He suggests this occur on weekly basis with the move occurring on Sunday evening. As to child support, Mr. Thomson submits his parenting proposal, and quite possibly the current arrangement, creates shared custody arrangement in accordance with the Guidelines. He proposes his continuing to pay one‑half of the child care expenses would be appropriate in these circumstances. RELEVANT LEGISLATION [10] The Divorce Act: More specifically, s. 15.1 "Child Support Orders," s. 16 "Custody Orders," especially s. 16.(8) which outlines factors for consideration and s. 16.(10) which notes, as principle, the children should have as much contact with both parents as is considered in their best interest. [11] The Federal Child Support Guidelines: Special or extraordinary expenses (1) In child support order the court may. on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent's employment, illness, disability or education or training for employment; ... Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. ... Shared custody 9. Where spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. PARENTING ARRANGEMENTS [12] At the pre‑trial conference, Mr. Thomson indicated he would be seeking the same parenting arrangements as he is requesting at trial. Ms. Thomson, on the other hand, indicated the current arrangements were appropriate. However, in providing documents for the trial, Ms. Thomson indicated she plans to remarry and relocate and seeks to have the time the children spend in Mr. Thomson\'s care reduced. Accordingly, the parents are farther apart on this issue than indicated in the Pre‑Trial Memorandum. [13] At separation, the children for brief period of time were living primarily with their mother with their father having access every second weekend from Thursday after school to Sunday afternoon. However, for the last five years Mr. Thomson's time with the children is as has been stated previously in this decision. [14] Ms. Thomson submits it would be in the children's best interest if Mr. Thomson's regular access be reduced to what could be termed every second weekend. She also requests Christmas access be shared in such way that every second year the children would be in the care of one parent for an extended, period of that vacation time. This time would include Christmas Eve, Christmas Day and Boxing Day. At the moment, the Thomsons currently have Christmas access structured in such way that the children spend portion of that time with either parent. Ms. Thomson also requests that the parents should alternate Remembrance Day. Apart from the foregoing, she is of the view the parents can continue to divide the other non‑school time as they have done in the past. [15] In support of this request Ms. Thomas notes 1) her pending move to new location and the need for the children to be able to settle in the new area and create friends and acquaintances in the community; 2) the advantages of having the children spending all of their "school nights" in the one setting. [16] Mr. Thomson submits it is currently in the children's best interest to reside with each parent on weekly basis with the rotation taking place on Sunday evening. In submission of this request, he submits it would necessitate fewer moves on behalf of the children. He further suggests it had been acknowledged between the parties since their separation that his parenting role would, over time, increase to when they would spend equal time with each parent. [17] For the last five years, the children have been following the same pattern in their interaction with their parents. There has been no suggestion that this routine has been, or will be, harmful to the children. It is tribute to the parents' continued efforts that there was no evidence presented to show that this current situation was, or is, harmful to the children's academic or social life. find no support for conclusion that the children have "outgrown" this routine. [18] Admittedly, Ms. Thomson will be remarrying and changing her current location. Insofar as the marriage is concerned, Ms. Thomson's fiance has for some time been involved in the lives of the children in role that could be considered similar to step‑parent. The move of Ms. Thomson will not increase the distance between her home and that of Mr. Thomson. Again, as an acknowledgement of the cooperation and effort of the parents, the children will continue at the same school. [19] The only departure from the ability of the parents, over period of five years, to keep the children's interest in the forefront is Ms. Thomson's suggestion that Mr. Thomson's request for increased access is to avoid an increase in child support payments and Mr. Thomson's suggestion that Ms. Thomson's request to reduce his access is in retaliation to his seeking to share equally their time with the children. [20] The current regular parenting arrangements would appear to be serving the children\'s needs. They would appear to be prospering under this arrangement. There is no support for conclusion that this arrangement is detrimental to their interests. The parents acknowledge the success of the current parenting arrangement in their suggestions that their proposed variations are not remarkable deviation from what is presently occurring. am unable to agree. [21] Ms. Thomson\'s suggestion would create a distinct change in the time the children would have with their father. It would, under the circumstances, be contrary to the Divorce Act and, in my opinion, contrary to the best interests of the children. [22] Mr. Thomson\'s suggested variation does not create such a change as proposed by Ms. Thomson\'s but a significant change nevertheless. Currently, the children spend five nights every two weeks in the home of Mr. Thomson and the remainder of the time with their mother. They have, to a degree, a home base. [23] The current parenting arrangements have been in place for five years. From the children\'s perspective it is working and there is no evidence to support a conclusion a change is necessary nor would improve the parent/child relationship. Ms. Thomson's relocation will be change for the children. It will not create change for their schooling or their relationship with the adults in their life. However, there may well be change in the neighbourhood and social life. During this time of change, continuation of the tried and true routine with their parents will be supportive. [24] find it in the children's interest that the current parenting provisions related to their weekly routine remain in effect. Also, at this time, believe it is important that the children have access to both their parents during the Christmas Eve, Christmas Day and Boxing Day period. The alternating of Remembrance Day would not appear to be contrary to the children's interest and would appear to be beneficial to the parents and grant Ms. Thomson's request in that regard. [25] In summary, I order that the current parenting arrangements remain in effect with the exception of the change regarding Remembrance Day. am prepared to give more specific directions in this regard, if necessary. However, the parties have, for five‑year period, been able to perform this difficult parenting task in their children's best interest. The more specific my decision is as to parenting time, the more restrictions are placed in the way of the parents continuing their successful performing of this function. [26] At some point in this proceeding, Mr. Thomson requested clause preventing the removal of the children from the general area. The parents are joint custodians of their children. Obviously, any contemplated move by either of the parents would require the non‑moving parent's agreement or court order. INCOMES OF THE PARENTS FOR THE PURPOSES OF PROVIDING CHILD SUPPORT [27] find Mr. Thomson's income to be $45,000.00 year. [28] Ms. Thomson has annual income of 552,113.00 which is reduced to $46,240.00 at her request to have additional free time. find her income, for the purpose of child support, to be $52,113.00. [29] Mr. Thomson's parenting time with his children does not put him in position where he could be considered parent who is sharing custody pursuant to s. of the Guidelines. In accordance with the Guidelines tables and an income of $45,000.00 find Mr. Thomson shall pay to Ms. Thomson for the support of the children the sum of $647.00 per month beginning June 1, 2006. SECTION EXPENSE [30] Ms. Thomson has been paying party $800.00 month since their separation to provide child care of their two children. This expense continues. This expense is reasonable and necessary and in the children's best interest. As previously noted, s. suggests that as "guiding principle" the parties share such an expense in proportion to their incomes. If that were to be the case, Mr. Thomson would be required to pay 46% of the cost. However, the court, also in accordance with the s. expense, is allowed to take into account "the reasonableness of such an expense in relation to the means of the spouses." [31] With regard to apportioning this expense, have considered the following: 1) The expense to Ms. Thomson is actually less than $800.00 as she obtains income tax relief at least with regard to the amount of the $400.00 that she was contributing; 2) While did not consider the parental arrangements such that the children spent 40% of their time with Mr. Thomson, they do spend considerably more time in his care and at his expense than is normally the case in which the Guideline amount is imposed; 3) The evidence discloses that Mr. Thomson does provide additional payments with regard to some of the child care costs. In particular, it is noted that he provides complete set of clothing for both children when they are in his care and he contributes to some other extracurricular activities; 4) Although it is acknowledged that Ms. Thomson is without legal counsel, she did indicate that with regard to the child maintenance aspect of her application she was more concerned with establishing the appropriate Guideline amount than establishing the s. expense. [32] Taking the above‑noted factors into account, think, in this instance, it would be appropriate for Mr. Thomson to contribute $100.00 per month towards the s. child care expense. It is ordered that with regard to the child care maintenance that Mr. Thomson pay to Ms. Thomson, beginning June 1, 2006, a monthly sum of $747.00 which would include the table amount of $647.00 and a contribution to the child care expense in the amount of $100.00. This payment would normally be made through the Maintenance Enforcement Program, however, will leave it to the parties and, more specifically, Ms. Thomson to indicate if that is her preference as to receiving the child support. It is also ordered that both parties shall exchange copies of their Income Tax Returns completed and with all attachments even if the return is not filed along with all Notices of Assessment received from Canada Customs and Revenue Agency on an annual basis on or before June 1st of each year, commencing June 1st, 2006. [33] would request, under the circumstances, that Mr. Thomson's counsel prepare the Corollary Relief Judgment.
The parties, who were the parents of two children, separated after a seven year marriage. For the five years since the separation, their parenting time with the children had been distributed on a two-week basis. In the divorce proceeding, the mother, who planned to remarry and relocate, sought to become the primary caregiver of the children, with the father to have access only every second weekend. The father sought to vary the parenting time so that both parents would equally share their time with the children. Current parenting arrangement to remain in effect with the parties retaining joint custody of the children; table amount of child support set. The parenting pattern followed for the past five years had been working well for the children and appeared to be serving their needs; the mother's proposal would lessen the children's time with their father and the father's proposal would also create a significant change for the children, removing their current home base.