J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Rhyno v. Rhyno, 2004 NSSF 61 Date: 20040609 Docket: 1201-56778 SFHD 15150 Registry: Halifax Between: Kimberly Anne Rhyno v. Christopher Lee Rhyno Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: January 15, 2004, in Halifax, Nova Scotia Counsel: Kimberly A. Rhyno, self for the Petitioner Christopher L. Rhyno, self for the Respondent By the Court: [1] The petitioner, Kimberly Guy, seeks a divorce from Christopher Rhyno. She also seeks custody, child support (with payment for extraordinary expenses), a division of matrimonial assets and an order directing that Mr. Rhyno’s equity in the matrimonial home be postponed until the youngest child is 19 years old. She proposes to sell the home and put the proceeds – together with a new mortgage – toward the purchase of a new home. In his counter-petition, Mr. Rhyno seeks an equal division of the matrimonial assets and joint custody of the children, with Ms. Guy having primary care and himself having liberal access. [2] The parties were married on August 20, 1983. They first separated on April 24, 2002. After an attempted reconciliation they finally separated prior to December 1, 2002. have determined that there is no possibility of reconciliation and the divorce is granted as result of permanent breakdown of the marriage pursuant to paragraph 8(2)(a) of the Divorce Act. THE PARTIES’ CIRCUMSTANCES [3] Ms. Guy works as commission retail sales agent for Whacky Wheatleys. In 2002 she earned total income of $33,135.30 [2002 tax return summary, line 150] and in 2003 she earned $27,147.14 [gross, pay stub dated December 15, 2003]. [4] Mr. Rhyno is carpenter. He earned $33,135.00 in 2002. In 2003 he received income from three sources: Employment Insurance ($4,915.00 gross), Force Construction Limited ($13,253.76) [$12, 704.64 plus $549.12 for the last two weeks of 2003, based on pay stubs dated December 13 and 20, 2003] and T.P. Pulsifer Construction ($2,890.49) [beginning December 30, 2002]. Thus his total income in 2003 was $21,059.25. [5] Mr. Rhyno did not provide an updated statement of financial information, but reviewed his monthly expenses at the hearing: Line of credit payment $250.00 Telephone $80.00 Taxes $50.00 Heat $80.00 Wood $35.00 Vehicle $400.00 Children’s allowance $50.00 Alcohol $75.00 House repairs $100.00 Clothing $50.00 Parking and tolls $30.00 Drugs and dental $25.00 Gifts $25.00 Child support $706.00 ($500.00 while unemployed) [6] Mr. Rhyno is living common-law. His common-law spouse works outside the home as caregiver for elderly people. She pays for the groceries. Mr. Rhyno said he will likely need to replace his vehicle within the next year, and said his current vehicle has little or no value. Therefore his motor vehicle expenses will increase substantially. He said there is also potential problem with the septic tank at his home. CUSTODY AND ACCESS [7] There are four children of the marriage: Nicholas Roland, born March 31, 1987; Jason Christopher, born April 5, 1989; Jeremy Thomas, born June 27, 1993; and Lucas Tanner, born November 29, 1994. At the time of separation Ms. Guy had care and custody of the children. She sought custody of all four children in the petition for divorce. Mr. Rhyno sought joint custody, with primary care and control to Ms. Guy. However, Nicholas, the eldest son, has been living with his father following an incident with his mother that resulted in recognizance against him to keep the peace. Ms. Guy seeks custody of the three younger sons. [8] The parties have advised me that Nicholas is undergoing anger management counselling, although Mr. Rhyno has suggested that Nicholas is unwilling to attend because the sessions are not actually anger management. Any future counselling for Nicholas will be arranged by Mr. Rhyno, with the costs paid by Ms. Guy. Mr. Rhyno should be consulted with respect to the schedule and the contents of the program being offered. [9] I order joint custody of all four children to Mr. Rhyno and Ms. Guy. Mr. Rhyno will have primary care and control of Nicholas, while Ms. Guy will have primary care and control of the three younger children. Ms. Guy will provide Mr. Rhyno with information concerning the three younger children’s health and education. In the event that the children require major medical attention Mr. Rhyno will be notified. Mr. Rhyno will also be notified of all parent-teacher meetings involving the children in Ms. Guy’s care, so that he too can attend those meetings. Mr. Rhyno is required to provide Ms. Guy with information of Nocholas’ health and education and if any major medical attention is required. [10] Insofar as access is concerned, Mr. Rhyno will have access to the three children in Ms. Guy’s custody on Saturdays. He advises that more time than this is not possible due to the demands of his work during the summer and fall. There have not been dates set for Mr. Rhyno to visit with the children at Christmas. He would like to see them during the days when they are on March break. If the parties are unable to arrange an acceptable schedule for access visits at Christmas or March break, they are free to apply to the Court to fix schedule. Given the particularly strained relationship between Ms. Guy and Nicholas, make no direction concerning access to Nicholas by Ms.Guy. [11] Ms. Guy advised the Court that there is no communication with Mr. Rhyno regarding access, and no advance notice. Although there appears to be some strain in the relationship, this should not interfere with Mr. Rhyno’s reasonable access with reasonable notice. CHILD SUPPORT [12] Mr. Rhyno is required to pay child support for the three children in Ms. Guy’s care based on the federal Child Support Guidelines. Based on his income for 2003 of $21,059.25 he is required to pay $401.20 [$400 2.04% of $59.25] per month. Ms. Guy must pay support for the one child in Mr. Rhyno’s care. Her 2003 income was $27, 147.14. Her amount payable under the federal Child Support Guidelines is $235.29 per month [$234 .88% of $147.14]. Section of the federal Child Support Guidelines provides that “[w]here each spouse has custody of one of more children, the amount of child support order is the difference between the amount that each spouse would otherwise pay if child support order were sought against each of the spouses.” Accordingly, pursuant to the Federal Child Support Guidelines direct that each parent pay their respective amounts payable to the Maintenance Enforcement Program. [13] Ms. Guy also seeks payment for various special and extraordinary child care expenses. Special or extraordinary expenses are covered by section of the federal Child Support Guidelines. Subsections 7(1) and (2) state: Special or extraordinary expenses 7.(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 expenses 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; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. 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. [14] In her submissions, Ms. Guy seeks additional child support payments for special and extraordinary child care expenses: Cubs: $75.00 per child plus $2.00 for each weekly meeting; Child care expenses: $4,653.60 (day care); Orthodontic treatment for Jason Rhyno: $4,740.00 [based on estimate dated January 5, 2004](of which $500.00 has already been incurred); Back-to-school costs for the 2003-2004 school year: $1460.36; Health and dental plan:$440.82 [estimate for 2004, dated January 8, 2004]; Family medical and drug plan expenses for herself and the children” $120.00; Extra dental expenses for 2003: $80.20.In total, these expenses amount to more than $14,000.00 per year. While necessary, these expenses must be reasonable and may not be incurred in vacuum. [15] Ms. Guy said the two youngest children have been members of cubs since before the separation. Mr. Rhyno agreed. [16] Ms. Guy said the orthodontic expenses are required for one child, and provided summary of the expenses that have already been incurred, as well as an estimate of the expenses necessary to complete the treatment. Her current medical plan does not cover orthodontic expenses. Mr. Rhyno said it would be impossible for him to contribute proportionately to these expenses, as he only receives salary that meets his necessities of life. am satisfied that this expenditure is necessary but have strong concerns as to whether Mr. Rhyno can contribute. [17] As to the school expenses, these were borne by Ms. Guy in 2002 and 2003. The figure of $1460.36 was incurred in 2003. am satisfied that this was legitimate expense for the children’s clothing and supplies, and am satisfied that this expense was in fact incurred. Given the ages of the children, this will be recurring expense. [18] Ms. Guy presented series of invoices for childcare expenses in 2003, amounting to total of nearly $4,500.00. She said she needs child care services for three days per week while she is working when the children are home from school, as well as one night when she is required to work, and during the summer holidays when the children are not in school. She does not require childcare on Friday evenings, when the children are with Mr. Rhyno, and there is question of how much child care she would require if the children were with their father more often. However, due to the demands of his work, and apart from periods when he is laid off, Mr. Rhyno’s only chances to be with the children are overnight on Wednesdays and Fridays. He said he is likely to be laid off in March, and would be prepared to have the children with him during the day. He agreed to return the children to their mother’s home at determined hour. Mr. Rhyno suggested that the day care expenses were exaggerated, but did not substantiate this claim other than by second-hand statements upon which the Court cannot rely. Without evidence to the contrary, must conclude that the child care expenses are legitimate. Though the expenses may seem high, Ms. Guy explained the need for the expense and the basis upon which it was paid. Further, this expense covers three children. [19] Ms. Guy provided written confirmation from her employer that the dependent health and dental coverage for herself and the four children with Great West Life cost approximately $450.00 per year ($453.54 in 2003 and an estimated $440.82 in 2004). She did not provide the cost for single coverage. will provisionally treat the amount for the children as about two-thirds of this amount, about $300.00 per year. [20] In determining the appropriate level of special and extraordinary expenses, must also consider any tax benefits or credits. Subsection 7(3) of the federal Child Support Guidelines states: In determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. [21] Ms. Guy confirmed that she was receiving child tax credit payments of between $7,500.00 and $8,000.00 annually. Mr. Rhyno said he is not credited with any of this payment despite the fact that he has care and custody of Nicholas. am satisfied that Ms. Guy receives Child Tax Credit amounting to $7,500.00. This is adequate to cover the cost of Cubs, child care, back-to-school expenses and medical expenses (including extra medical coverage), with small amount left over to go towards orthodontic expenses. [22] also find that Mr. Rhyno does not have the means to meet all of the ongoing special and extraordinary expenses that are not covered by the Child Tax Credit. have examined his budget carefully and conclude that his expenses are reasonable. He is meeting basic expenses. It would be imprudent on my part to order Mr. Rhyno to pay extraordinary expenses that he simply cannot meet. Mr. Rhyno said that when the couple was living together and relying entirely on his income there was no possibility that they could afford the orthodontic treatment. However, am satisfied that the payment for orthodontic treatment, to the extent that it is not met by the Child Tax Credit, can be paid from the “children’s fund”, and direct Mr. Rhyno to provide his consent in writing to the withdrawal from this account sufficient funds to meet the payment for orthodontic expenses. am also satisfied that he should contribute to the costs of preparing the children for the school year in an appropriate amount, namely 43 per cent of such expenses on an annual basis. [23] All child support payments will be made to the Maintenance Enforcement Program. The parties will exchange income tax returns and notices of assessment each year no later than June 1, commencing June 1, 2004. PROPERTY DIVISION [24] The parties have the following matrimonial assets and debts: Assets matrimonial home $105,000.00 RRSP (Guy) $11,799.62 (as of beginning of 2003) RRSP (Rhyno) $12,936.14 (as of March 31, 2003; $14,022.74 at beginning of 2003) Trust fund $7,625.81 (as of March 31, 2003) Debts Line of credit $35,733.37 (as of November 30, 2003) [25] Ms. Guy is living in the matrimonial home in Hubbards, Nova Scotia, with the three younger children. Mr. Rhyno lives in mobile home about seven kilometres away, with Nicholas in his care. The parties agree on the value of the matrimonial home. Mr. Rhyno does not claim any adjustment for the value of the furnishings in the matrimonial home, as he has retained tools and skidoos. [26] The matrimonial home is paid for, with the exception of the outstanding line of credit. Since the separation, Ms. Guy has paid all the monthly payments on the common line of credit, which is secured by first mortgage on the matrimonial home, except for couple of payments made by Mr. Rhyno. [27] Each party will keep their own vehicle. One vehicle was purchased at the time of an attempted reconciliation, with money supplied from line of credit. There is still money owing on the vehicle. Mr. Rhyno claims that Ms. Guy should pay $4000.00 more on the line of credit loan by virtue of the fact that the vehicle she retained is worth twice the amount of the vehicle he retained. [28] Mr. Rhyno has line of credit, which he incurred in order to buy trailer to live in. The balance was $10,011.51 on May 27, 2003. He was paying $250.00 per month to retire this debt. [29] The parties will each retain their own RRSPs. [30] At the hearing Mr. Rhyno indicated that he was prepared to stay his interest in the matrimonial home until the youngest child turns 21 years of age. Ms. Guy indicated an interest in moving to new area where the children would be eligible for scholarships under the “Shatford Trust Fund.” This move would require her to sell the matrimonial home and buy (or build) new house. The cost would be substantial, approximately $235,000.00. The Court was not provided with any written estimates of the expenditure. There would also be some risk, as there would be first mortgage of not less than $70,000. This amount would have to be paid out or new mortgage registered against the property with funds flowing to Mr. Rhyno. But there is presently line of credit secured by mortgage on the matrimonial home in the amount of about $34,000.00. This represents substantial differential with new mortgage that would be required to provide new home for Ms. Guy and the three children. [31] I am prepared to order that Mr. Rhyno’s interest in the matrimonial home be postponed until the youngest child is 21 years old if that child is attending university. However, will not order that his interest be postponed in order to permit Ms. Guy to acquire new house at new location, thereby reducing his equity in the matrimonial home. Admittedly, new home would probably have significantly greater value than the existing one, but at the present time there is net value in the existing home of approximately $70,000.00, while there would be net value of about $55,000.00 in new home after accounting for the $70,000.00 mortgage. [32] acknowledge that the children might lose the opportunity to obtain certain university scholarships if they continue to live in the present location, but there is no certainty that they will either attend university or qualify for scholarships even if they do move. The approach suggested by Ms. Guy would require crystal ball-gazing and would put Mr. Rhyno’s equity at risk. Given Ms. Guy’s income, mortgage of $70,000.00 would be substantial payment, even at current mortgage rates. The indebtedness in respect of the matrimonial home would be in excess of $70,000.00, and when the youngest child is 21 years old it will likely still be in the range of $60-$65,000.00. Ms. Guy’s response that she would be able to negotiate the amount and pay out Mr. Rhyno’s equity at that time would mean that she would require mortgage of more $100,000.00 in order to have sufficient funds with which to pay out Mr. Rhyno’s equity. [33] Therefore am not prepared to grant Ms. Guy’s request to postpone Mr. Rhyno’s interest in the matrimonial home so that she can buy new home. Put another way, it would not be practical to require Mr. Rhyno to wait for his equity on the precarious condition that Ms. Guy would be able to raise an additional $35,000.00 through mortgage renewal, when she is ten years older and may or may not be employed. agree with the position taken by Mr. Rhyno on this issue. OPTIONS PROPOSED BY MS. [34] In her final submissions, Ms. Guy proposed several options. One suggestion required Mr. Rhyno to sign over the children’s trust account to be used to pay special or extraordinary expenses until that fund is dissipated. Then the parties would pay for these expenses in proportion to their respective incomes. second option would have Mr. Rhyno sign over his equity in the matrimonial home, and Ms. Guy would release him from any claim for spousal support, extraordinary expenses and matrimonial debts. He would continue to pay child support. third option would have Ms. Guy pay the expenses and Mr. Rhyno’s share of the matrimonial home would come off the equalization payments upon termination of exclusive possession of the home. [35] Ms. Guy suggests there should be an unequal division of the equity in the matrimonial home in lieu of spousal support, to which she argues she is entitled because she stayed home and cared for the children throughout the marriage. She claimed that she lost her opportunity to enter the work force earlier and that she should therefore be compensated. She said she has agreed to waive any claim for spousal support in exchange for Mr. Rhyno postponing his equity in the matrimonial home in lieu of spousal support. If that is not possible, she wants spousal support of $25,000.00 to be paid from his equity in the matrimonial home. She maintains that living in the matrimonial home is cost-prohibitive. She says there is no full basement that can be accessed from inside the house, that the pipes freeze and that the house needs various repairs. She states in her submissions that she recently had to replace the oil tank at cost of $1,400.00, and expects to replace the septic system. [36] Ms. Guy appears to be arguing that Mr. Rhyno should be punished for the apparent cause of the separation. In assessing the issues of child and spousal support and division of property must not consider alleged misconduct of the parties; in fact am precluded from doing so by section 15.2(5) of the Divorce Act. [37] It appears that the parties maintained lifestyle prior to separation that was based on Mr. Rhyno’s earnings at that time. have no indication that those earnings were great deal more than what he is earning now, although they may have been more in the range of $30,000.00 than $22,000.00. Even at the higher level, it would have been difficult to maintain the same lifestyle. am not prepared to penalize Mr. Rhyno by confiscating his equity in the home. It is sufficient to postpone his equity until the youngest child is 21 years old. If Ms. Guy wishes to avail herself of a home in the area covered by the Shatford Trust Fund, she may do so, but she would be required to pay out Mr. Rhyno’s equity in the matrimonial home. [38] I conclude that the best solution is to freeze Mr. Rhyno’s equity in the matrimonial home at the amount owing on the line of credit when the parties separated, less $4,000.00 for the differential in the value of the vehicles retained by the parties. Ms. Guy would get the benefit of any principal reduction. [39] Ms. Guy will also have control of the trust fund, for which she will be required to account to Mr. Rhyno. [40] As result, no costs are awarded to either party.
The wife sought a divorce, custody, child support, a division of matrimonial assets and an order directing that the husband's equity in the matrimonial home be postponed until the youngest child reached 19 years of age. She proposed to sell the home and put the proceeds, together with a new mortgage, towards the purchase of a new home. Joint custody awarded for all four children, with the father to have primary care and control of the oldest and the mother to have primary care and control of the three younger children; the father is to pay child support for three children in the guideline amount and the mother is to pay child support for one child in the guideline amount; the husband's equity in the matrimonial home is frozen at the amount owing on the mortgage when the parties separated and his interest is postponed until the youngest child reaches the age of 21 years; if the wife wishes to obtain a new home in a new location, she will be required to pay out the husband's equity in the matrimonial home.