Manley v. Manley

Manley v. Manley Court Supreme Court Date 2010-07-30 Citation 2010 NSSC 313 Docket 064252, 1207-003329 Judge/Registrar/Adjudicator MacAdam, A. David (Honourable Justice) Document Type Decision Relations Library Sheet - Manley v. Manley - 2010 NSSC 313 - 2010-07-30 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Manley v. Manley, 2010 NSSC 313 Date: (20100730) Docket: 1207-003329 (064252) Registry: Truro Between: Julie Vanya Manley Petitioner v. Eugene Melvin Manley Respondent Justice: The Honourable Justice A. David MacAdam Heard: May 26, 2010, in Truro, Nova Scotia Written Decision: July 30, 2010 Counsel: Tammy C. MacKenzie, for the Petitioner Eugene Melvin Manley, self-represented Respondent By the Court: [1] The parties married on August 27, 1988 and separated on November 13, 2008. There is one child of the marriage, C. who was born on September 28, 1990. Both parties in their written, pre-hearing submissions, referenced a 22-year relationship, the additional two years apparently relating to a common‑law relationship prior to their marriage. [2] Presently C. attends university having completed the second year of a four‑year program in the spring of 2010. By interim consent order dated December 15, 2009, the parties were granted joint custody, with primary day‑to‑day care of the child to the petitioner. Access by the respondent was to be by arrangements made directly between the child and himself. The parties seek no change in either the custody or access arrangements, as stipulated in the December 15, 2009 consent order. [3] The parties have also agreed to the distribution of the matrimonial assets, including the matrimonial home, located in Upper Musquodoboit, Halifax, Nova Scotia. At issue is a determination of the amount of any equalization payment on the division of matrimonial assets and liabilities and to whom payable. [4] Also, at issue is the appropriate amount of child support, a claim for "retroactive" child support, whether there is an entitlement to spousal support, and, if so, the appropriate quantum and duration and whether there should be any "retroactive" spousal support. Background [5] When the parties separated, C. lived in residence at Dalhousie University. The petitioner remained in the matrimonial home and the respondent moved into a residence owned by his son from a previous marriage. This residence was located next door to the matrimonial home. The parties agree that it was always understood that they would provide financial assistance to C. while she was pursuing her university education. During her first year she resided at Dalhousie. The parties further agree that financial arrangements for the first semester of the first year are not in dispute. Although, pursuant to the interim consent order, the petitioner had day‑to‑day care of C., she resided at university and not with the petitioner in the matrimonial home. This apparently continued until at least the completion of her first year, in the spring of 2009. [6] Although there is no issue in respect to the costs of the fall semester of her first year, the petitioner seeks, in addition to child‑support, pursuant to section 15.1 of the Divorce Act (hereinafter "Act"), reimbursement for additional expenses, pursuant to section 7 of the Federal Child Support Guidelines (hereinafter "Guidelines"), for the winter semester of the first year. The university expenses for the first year, included tuition of $7,000.00, books estimated at $1,000.00, residence fee of $6,160.00, meal plan for $2,770.00, and student union insurance in the amount of $253.00, for a total of $17,183.00. However, it would appear some of these costs in the fall of 2008 were paid for the entire school year, as counsel, in her written submission states that C.’s second semester costs were $7500.00. Deducting one third as the responsibility of C., as agreed by the parties, leaves a balance of $5,000.00 to be shared by the parties. [7] Counsel for the petitioner, in her written submission states, referring to the petitioner’s Statement of Financial Information (and apparently without dispute by the respondent), that for C.’s second year her expenses for tuition and books were $8,675.00 for the year. The parties having agreed to share two thirds of the costs of C.’s education, the balance to be shared in proportion to their incomes for 2009 and 2010 is $5,783.34. Although not clear, on the evidence, I will assume that the educational costs are equally divided between the two terms. Mr. Manley’s share of the first term, is 65.47% or $1,893.18 and for the second term, at 66.51% is $1,923.25. His total for C.’s second year is therefore $3,816.43. [8] In the interim consent order the respondent's annual income is recited to be $69,475.00, for the year 2009. His 2009 employment included a base salary of $52,000.00 per year, plus $6,000.00 in earned commissions and a taxable vehicle allowance of $11,000.00, for a total of $69,000.00 for the year. Notwithstanding the recital in the interim consent order that the respondent’s income for 2009 was $69,475.00, on the evidence at trial, I have calculated his income at $69,000.00 and used that figure in calculating his financial responsibility for support, both spousal and child. [9] In January 2010 the respondent's employment was terminated. However, he was successful in obtaining new employment, commencing February 2010, although at a reduced salary. It is apparent, commencing February 2010. Mr. Manley became entitled to a $1,000.00 per week draw, which, in effect, is his base or minimum salary. At the end of the year he and his employer will determine the profits of the company, after deducting his $52,000.00 salary. He will be entitled to one-half of any profits. Not having completed the first year of his employment, it is not known whether there will be any profits, and, if so, the amount of any entitlement by the respondent. Also, he receives the use of a used motor vehicle from his employer which, unlike his previous vehicle allowance, he says is not taxable to him. Counsel for the petitioner submits that any vehicle allowance benefit to the respondent should be adjusted to reflect its non‑taxable nature. Considering the entitlement is to a used vehicle, rather than a new vehicle, as was the case in his previous employment, and taking into account the non-taxable nature of the benefit, I allocate the sum of $6,000.00 for this benefit. For purposes of calculating the respondent's financial responsibilities, for the year 2010, his share will be based on an annual salary of $58,000.00. It is possible his earnings for 2010 may increase, as a result of his participating in the profits earned by his employer. If he does receive a share of any profit, or other additional income, this will be relevant in fixing his earnings for the year 2011. His cash flow, and therefore his ability to fund payments either by way of child support or spousal support, will be calculated for the year 2010 on an income of $58,000.00. [10] At the time of separation, Ms. Manley was employed and receiving an annual income of $36,396.00. Ms. Manley testified that she found it stressful living next door to where Mr. Manley was residing, giving as an example, the fact Mr. Manley would often bring his girlfriend to his residence. In July 2009 she left the matrimonial home and moved to Halifax. She continued to commute to her work, but over time found it extremely expensive and by October 2009, she said, she found it impossible. She left her employment and began looking for work, closer to where she was residing, in Halifax. She said she took courses and workshops that were offered by Employment Insurance and eventually found work, but at a salary less than she had previously earned. In her written submission, counsel for the petitioner suggests her annual earnings to be $29,200.00, and in the absence of any evidence challenging counsels' suggestion, the allocation of financial responsibility by the petitioner will be based on that income for the year 2010. [11] Although issues were raised on the petitioner's change of employment, and reduced income, as well as on the respondent's change of employment and reduced income, I am satisfied that no adjustment need be made to their present income because of their change in employment. There is nothing to suggest the changes were effected to reduce their level of financial responsibility or to increase the financial contribution by the other. The reasons advanced by the petitioner and by the respondent do not warrant a finding of any impropriety or blameworthy conduct in either instance. [12] The petitioner also claims, as a section 7 expense, a contribution from the respondent for the cost of an emergency dental treatment for C. Mr. Manley testified that although his previous employment included an ability to provide medical and dental coverage for the petitioner and C., the petitioner also had, under her then employment, the ability to obtain such coverage. They had agreed, since the coverage was less expensive under the petitioner's employment, that she would provide coverage for C., as well as herself. When the petitioner left her employment, there was no longer dental coverage for C. In November 2009 C. had a dental emergency, with resulting costs in the amount of $1,135.04. Ms. Manley testified that on several occasions she asked for contributions for this expense from Mr. Manley, but none was received. [13] Mr. Manley paid neither child nor spousal support from the date of separation until November 2009 when, following the application leading to the interim consent order, he was ordered to pay the sum of $603.00 per month as child support. On the evidence it appears he has paid child support, in the amount of $603.00, commencing in December 2009 to the present. [14] On, and following, separation the parties had agreed to the distribution, and values, of many of the matrimonial assets, as well as the undertaking of responsibility for the payment of the matrimonial debts. A number of the matrimonial debts, including the mortgage on the matrimonial home, three lines of credit and a Visa account balance were paid from the proceeds generated by the sale of the home. In addition, a partial payment was made on a MasterCard charge and the petitioner received the sum of $1,200.00 from the house sale proceeds. Until the sale of the home, in December 2009, the parties agreed to the sharing of financial responsibility for payment of matrimonial debts. The agreement, outlined in an e‑mail forwarded by the petitioner, and agreed to by the respondent, provided that the petitioner would pay the bills coming into the house such as "NS Power, phone, Visa, HBC, Mastercard, Future Shop, Star Choice, Sears, etc.". Apparently the respondent undertook responsibility for the payment of the monthly mortgage charge, the interest on the three lines of credit and until shortly after Ms. Manley moved to Halifax, responsibility for the car payments on the car she was operating. Ms. Manley testified she took over responsibility for the car payments because she wanted to ensure the payments were made. [15] In her written submission counsel for the petitioner outlined the various payments undertaken by Ms. Manley as well as the payments made by Mr. Manley on the matrimonial debts. In respect to Mr. Manley, she neglected to include the interest on the three lines of credit, on the basis they had not been referenced by Mr. Manley previously. In his statement of financial information, dated July 27, 2009 Mr. Manley indicated that the monthly loan payments he was making on the lines of credit was $200.00. In testifying he said this was in error and indicated an estimate of $369.00. Counsel for the petitioner did not dispute that the figure of $200.00 appeared inadequate as the monthly interest expense for the lines of credit. Although, like for many of the figures presented during the course of the trial, it was an estimate by the respondent, in the absence of evidence to the contrary, I will accept that for the period from the separation until the sale of the home the monthly interest charge paid by the respondent on the lines of credit was $369.00. Mr. Manley testified that the payments he assumed included the mortgage, taxes and mortgage insurance in the amount of $1,599.00, car payments on the vehicle operated by Ms. Manley in the amount of $368.00 and the interest expense on the three lines of credit in the amount of $369.00 for a monthly total, at least initially, of $2,336.00. [16] On the other hand the payments made by Ms. Manley on account of the Visa, MasterCard, Wells Fargo, Sears and HBC accounts totalled $621.00 per month. Although counsel suggests that there should be no credit to Mr. Manley for the payments he made, since, she suggests they were, having regard to their respective monies, proportional to the debts paid by Ms. Manley, it is clear Mr. Manley assumed a substantially greater proportional share of the monthly matrimonial debt payments. Until Ms. Manley took over the car payment, he apparently paid the sum of $2,336.00 monthly, to Ms. Manley's $621.00. Counsel, in the alternative, suggests that the credits for Mr. Manley and Ms. Manley should be one-half of the payments made by each during the 13 months from the separation to the sale of the house and the retirement of a number of the matrimonial debts. Adjusted to include the monthly payments of interest on the lines of credit, counsel suggests a credit allocation of $5,511.86 to Ms. Manley and $14,451.78 to Mr. Manley. At trial the parties agreed to Ms. Manley assuming sole ownership of a condo located in Florida and Mr. Manley ownership of a boat. [17] The parties also agreed, with the exception of the amount of the car loan, to the value of the remaining assets distributed between themselves. Excluding the assets previously taken by the parties, and for which they agreed there would be no need to make any adjustment, and excluding the boat and the condo which they agreed were of equal value, the remaining assets received by Ms. Manley, including monies received from assets liquidated, her pension and monies received from the sale of the home, were valued at $30,397.23, while the assets received by Mr. Manley, including monies from assets liquidated and withdrawn from RRSP's, totalled $10,667.55. The parties settled on the value of the car loan assumed by Ms. Manley at $12,000.00, and this, together with her assumption of the balance of the MasterCard, the Sears account and HBC account, resulted in debts assumed by Ms. Manley of $22,134.27. Mr. Manley assumed the Wells Fargo debt in the amount of $1,994.30. [18] Having accepted Counsel’s alternative submission that the credits to each party for the amounts paid on matrimonial debts should be one half of the amount paid, it would appear only fair and logical the credit for the remaining outstanding debts each party agreed to assume financial responsibility for should equally be credited at 50% of the respective amounts. Ms. Manley having agreed to assume responsibility for $22,134.27 in debt is therefore entitled to a credit of $11,067.14. Mr. Manley having agreed to assume responsibility for $1,994.30 in debt is therefore entitled to a credit of $997.15. [19] Similarly in calculating the credits owed for the assets each party received, the amount will be one half of the value of the assets received. In respect to Ms. Manley, she received assets valued at $30,397.23 resulting in a credit to Mr. Manley of $15,198.62. Mr. Manley received assets totalling $10,667.55 resulting in a credit to Ms. Manley of $5,333.78. [20] Therefore, for the purpose of determining any equalization payment, Ms. Manley, in respect to the assets she received, owes the sum of $15,198.62 less a credit of $5,511.86 for matrimonial debts paid following the date of separation and also less the sum of $11,067.14 for the remaining matrimonial debts assumed by her. On the other hand, Mr. Manley received assets for which he owes to Ms. Manley the sum of $5,333.78, and is entitled to a credit of $14,451.70 for payments on matrimonial debts following the separation and the sum of $997.15 for a matrimonial debt for which he has assumed responsibility. The total for Ms. Manley is a negative $1,380.38 and for Mr. Manley is a negative $10,115.07. In order to equalize the distribution of assets and liabilities between the parties, the petitioner is required to make an equalization payment of $4,367.35 to the respondent. Law [21] Section 15.1 of the Divorce Act provides, in part: Child support order 15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage... Guidelines apply (3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. Table Amount Section 3 of the Federal Child Support Guidelines provides in part: 3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. Child the age of majority or over (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the chid were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [22] Section 7 of the Federal Child Support Guidelines provides in part: 7. (1) In a 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 expenses in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: . . . (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counseling, provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; . . . (e) expenses for post-secondary education; . . . Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expenses is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Child Support [23] In S. (D.B.) v. G. (S.R.) 2006 SCC 37, Justice Bastarache, for the majority, outlined a number of factors to be considered in determining whether retroactive child support should be ordered. At para. 94 he observed that even though a court may order retroactive child support, it is necessary to determine when the court should exercise that discretion. At paras. 95‑97 he comments: 95 It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free‑standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. 96 Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it. 97 Lest I be interpreted as discouraging retroactive awards, I also want to emphasize that they need not be seen as exceptional. It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose. [24] Justice Bastarache listed as the factors a court should consider before awarding retroactive child support whether there was a reasonable excuse for why support was not sought earlier, the conduct of the payor parent, the circumstances of the child and any hardship occasioned by a retroactive award. [25] In respect to whether there was a reasonable excuse for why support was not sought earlier Justice Bastarache noted that delay in seeking child support is not presumptively justifiable. He added, however, that at the same time courts must be sensitive to the practical concerns associated with a child support application. Not awarding retroactive child support, Justice Bastarache said, raises two important concerns, the first being the payor parent's interest in certainty and that "[g]enerally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling." (para. 102). The second concern was that recipient parents not be encouraged to delay in seeking the appropriate amount of support for the children noting that from a child's perspective, "a retroactive award is a poor substitute for past obligations not met." (para. 103). In respect to this factor, at para 104, Justice Bastarache concludes: 104 In deciding that unreasonable delay militates against a retroactive child support award, I am keeping in mind this Court's jurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson, at p. 869. In fact, I am not suggesting that unreasonable delay by the recipient parent has the effect of eliminating the payor parent's obligation. Rather, unreasonable delay by the recipient parent is merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent's interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts. [26] The second factor is the conduct of the payor parent. This factor focuses on the payor rather than the recipient parent. Justice Bastarache, at para. 105, comments that: Just as the payor/parent’s interest in certainty is most compelling where the recipient parent delayed unreasonably in seeking an award, the payor parents interest in certainty is least compelling where (s)he engaged in blameworthy conduct. Put differently, this factor combined with the last establish that each parent's behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case. [27] At paras. 106 and 107 Justice Bastarache observes: 106 Courts should not hesitate to take into account a payor parent's blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 72 O.R. (3d) 561, at para. 85, where children's broad "interests" ‑‑ rather than their "right to an appropriate amount of support" ‑‑ were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents' support obligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; S. (L.). A payor parent cannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 178 A.R. 119 (C.A.). And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not. 107 No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208‑9; Chrintz. [28] Also to be considered is whether conduct by the payor parent has had the effect of fulfilling their support obligation. Although a payor parent does not have the right to choose how the money that should be going to child support should be spent, as in the example cited by Justice Bastarache of the parent deciding that their support obligation can be acquitted by buying the child a new bicycle, he does observe that, "having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child's support in a way that satisfied his/her obligation, no retroactive support award should be ordered." (para. 109). The comment is made in the context of his earlier observation that the payor parent may have met any increased support obligation indirectly by contributing to some of the child's expenses. [29] The circumstances of the child, the third factor, relates to considering the present circumstances of the child, as well as the past circumstances, in deciding whether a retroactive award is justified. Justice Bastarache notes that consideration of the child's present circumstances is consistent with the statutory scheme and that while "Parliament has moved away from a need-based perspective in child support, it has still generally retained need as a relevant consideration in circumstances where a court's discretion is being exercised..." (para. 112). At para. 113 he adds: 113 Because the awards contemplated are retroactive, it is also worth considering the child's needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.). This is not to suggest that the payor parent's obligation will disappear where his/her children do not "need" his/her financial support. Nor do I believe trial judges should delve into the past to remedy all old familial injustices through child support awards; for instance, hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child. I offer these comments only to state that the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit. [30] The final factor is whether there is any hardship occasioned by a retroactive award. At paras. 115 and 116 Justice Bastarache comments: 115 There are various reasons why retroactive awards could lead to hardship in circumstances where a prospective award would not. For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlike prospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet. On this point, courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a "children first" policy where it would cause hardship for the payor parent's other children. In short, retroactive awards disrupt payor parents' management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact. 116 I agree with Paperny J.A., who stated in S. (D.B.) that courts should attempt to craft the retroactive award in a way that minimizes hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case. [31] Once the court has determined there should be a retroactive child support order, it must then proceed to determine the amount of that award. In this, Justice Bastarache suggests there are two elements, namely the date to which the award should be retroactive and the amount of support that would adequately quantify the payor parent’s deficient obligations during that time. As to the date he notes there are four choices, "the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased." (para. 118). He then adds that as a general rule he would adopt the date of effective notice. By "effective notice" he indicates he is referring to the time when there is an indication by the recipient parent that child support should be paid, or if already paid, the amount needed to be adjusted. On the other hand, he also observes that in circumstances where the payor parent engages in blameworthy conduct it may be that the appropriate date will be when the increased support should have been paid. (para. 124) Justice Bastarache, at para. 125, concludes: 125 The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing. [32] The second element is the quantum of the retroactive award. In this respect Justice Bastarache notes that "courts ordering a retroactive award pursuant to the Divorce Act must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable Tables is not required ‑ nor is it recommended." (para. 128). He continues by observing that there are two ways that the federal regime allows courts to affect the quantum, the first being the presence of undue hardship under section 10 of the Guidelines as well as the court's discretion with respect to quantum in a variety of other circumstances, also contained within the Guidelines. He concludes, at para 130: 130 A second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive award captures. While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case. [33] The petitioner claims, from the date of separation, child support calculated in accordance with the Federal Child Support Guidelines, as well as section 7 expenses. [34] From the date of separation until Ms. Manley moved to Halifax, C. did not reside with Ms. Manley. During the first year at university, she resided in residence, purchased a meal plan and in the summer following, on the evidence at trial, it appears she may have resided and worked in Halifax. She moved in with her mother, sometime after she had moved to Halifax, and has apparently continued to reside with her to the present. [35] Justice Bastarache, in S. (D.B.) v. G. (S.R.), supra, outlines the court’s discretion in calculating retroactive child support, when it is thought inappropriate, considering all the circumstances, to award the table amount for the full period. Although the petitioner, on her evidence, made additional financial contributions to C. during this period, apparently in the nature of pocket and spending monies, it is clear that her residence and meal allowance, contributed to by both parties during the first semester, to the extent they assisted C. during this period, were also part of the university expenses during the second semester for which the petitioner is claiming a section 7 contribution from the respondent. This would appear to be a circumstance to be considered in determining the quantum of retroactive child support, having regard to para. 130 of S. (D.B.) v. G. (S.R.), supra. [36] In the present circumstances, Ms. Manley testified that she made a number of requests to Mr. Manley for child‑support and for a contribution to C.'s university expenses. In respect to basic child‑support during the period from separation to Ms. Manley moving to Halifax, it appears C. , who was then eighteen years old, and still under the age of majority, was living in residence and had purchased a meal plan. She was, presumably, not residing with the petitioner. Additionally, although recognizing the priority of child support, during this period Mr. Manley also assumed a disproportionate share of the family's matrimonial liabilities. Although it cannot be said that his conduct was not blameworthy, in respect to the question of child‑support, it is clear that during the first term of the first year, a substantial portion of C.'s needs were being met by her accommodations and meals at university, and this would have continued in the second term of the first year. [37] Ms. Manley relocated to Halifax at the end of July 2009. Unclear is whether it was at this time C. began living with her or whether this occurred at the beginning of the first term in her second year at Dalhousie. Her accommodations during the summer of 2009 are not clear, on the evidence. There is evidence that she did work in Halifax, although not full time. [38] On the evidence, at least by September 2009, C. was residing with the petitioner, while attending University. Considering the delay in making the application for child support during this period, the evidence of the petitioner in this regard, the obligation of the respondent, as well as his evidence, the circumstances of C., and the financial position of the respondent, I am satisfied a retroactive award is both fair and reasonable. However, also having regard to these factors specific retroactive award would most satisfactorily meet the competing elements of these factors. I award retroactive child support for the period commencing with separation to the end of August 2009 in the sum of $2000.00. [39] Retroactive child support, calculated in accordance with the Guideline Tables is, however, awarded from September 1, 2009 until the end of December 2009, calculated on Mr. Manley's then current income. From January 1, 2010 table child support is awarded based on his income for 2010. From the total of retroactive child support there shall be deducted the child support that Mr. Manley has paid following the interim consent order. [40] I recognize that in these circumstances, and considering the various factors outlined by Justice Bastarache, I have awarded retroactive child support, less than the Guideline Tables for a period when C. was under 19 years of age while awarding retroactive Guideline Tables child support, commencing in September 2009, when she was over the age of majority. Although I have considered all the factors outlined by Justice Bastarache, in arriving at this determination, the factor, based on the evidence of the needs of C. were prominent. Beginning at least by September 2009, she was living full time with the petitioner. Her need for Guideline Tables support, at least by that time, overrides any of the other factors; and in my view, entitles her to retroactive Guideline Tables support from that date. [41] In respect to the section 7 expenses, Mr. Manley is required to reimburse the petitioner his proportionate share of the emergency dental expenses incurred by C. in November 2009. [42] In respect to section 7 university expenses of C., after considering the factors outlined by Justice Bastarache, I am satisfied that Mr. Manley owes, retroactively, his proportionate share of these expenses. He acknowledged that it was agreed that C. would pay one third of her university expenses and her parents would contribute the balance. His failure meant that the shortfall was made up by either, or both, additional contributions by the petitioner and by C. Ms. Manley testified that she asked Mr. Manley for contributions to C.'s educational expenses. She said none were forthcoming. There is nothing in the factors suggested by Justice Bastarache to relieve Mr. Manley from his obligation to contribute to the university expenses of C. and this is even more so in view of his acknowledgment that it had been agreed that he and Ms. Manley would pick up two-thirds of C.'s educational expenses. His proportionate share will be calculated for 2009 based on his income for that year and for 2010 based on his income for this year. In using the educational expenses suggested by the petitioner, it is not lost that in normal circumstances there may well be additional contributions equivalent to additional pocket money, made during the course of the school year. However, for the period commencing September 1, 2009, Mr. Manley is to pay the table amount of child support. In the circumstances, even if there was evidence from which to calculate any such additional contributions that might have been made to assist C., that the awarding of the table amount of child support will be sufficient to meet Mr. Manley's obligations in that regard. Spousal Support [43] The petitioner claims spousal support, including retroactive spousal support in the amount of $500.00 per month. [44] Considering the criteria outlined in Bracklow v. Bracklow, 1999 CarswellBC 532 (S.C.C.), and Moge v. Moge (1992), 99 D.L.R. (4th) 456 (S.C.C.) as well as sections 15.2(1), (3), (4) and (6) of the Divorce Act, I am satisfied there is an entitlement by Ms. Manley to spousal support from Mr. Manley. Having regard to the means, needs and other circumstances of each spouse, including the amount of time they were cohabitating, the functions performed by each and the objectives of spousal support as set out in the Act, the petitioner has clearly established entitlement. Mr. Manley was the primary income earner, his income at times almost doubling that of Ms. Manley. She testified that while Mr. Manley assumed primary responsibility for maintaining the exterior of the home, including the premises, she was responsible for maintaining the interior, including being primarily responsible for caring for C. The disparity in their present incomes, together with the length of their cohabitation, would, absent other factors, warrant an award of spousal support. [45] From separation until December 2009 the parties, as previously noted, disproportionately shared their matrimonial debts. During this period I am satisfied, notwithstanding his substantially greater income, the additional payment of a monthly amount of spousal support would be neither fair nor reasonable in the circumstances. As such I decline to award retroactive monthly spousal support for the period up to and including December 2009, when the home was sold and many of the matrimonial debts that were being paid on a monthly basis by Mr. Manley were retired. However, also recognizing that the parties will be effectively and equally sharing the matrimonial debts, notwithstanding the difference in their income, I award, as retroactive spousal support for the period from the date of separation until December 2009, the sum of $2000.00. [46] From January 1, 2010 the entitlement of Ms. Manley continues and in all the circumstances an award of spousal support is both appropriate and fair. Recognizing that child support, including section 7 child support expenses, take priority and having regard to their current incomes, I award the petitioner the sum of $400.00 a month, commencing January 1, 2010. Conclusion (A) Child Support [47] The petitioner is awarded table calculated child support of $505.00 monthly, based on an annual income of $58,000.00 from July 1, 2010, payable on the first of each month. [48] The petitioner is awarded retroactive table calculated child support of, $505.00 per month, for a total of $3,030.00, for the period from January 1, 2010 to and including June 30, 2010. [49] The petitioner is awarded retroactive table calculated child support of $599.00 per month, for a total of $2,396.00 for the period from September 1, 2009 until December 31, 2009. [50] The petitioner is awarded retroactive child support for the period from the date of separation, until August 31, 2009 in the amount of $2,000.00. [51] From the child support, there shall be deducted the amounts paid by the respondent. On the evidence it appears he has paid the sum of $603.00, from December 2009 to the end of May, 2010 for a total of $3,618.00. Should, prior to July 1, 2010, the respondent have also paid child support for June, 2010 the amount he will have to pay is an additional amount to be deducted from the amount of child support owed by the respondent as of the end of June 2010. [52] The petitioner is awarded the sum of $874.05 as the respondent's contribution to the emergency dental costs incurred by C. in November 2009. The amount is calculated on an expense of $1,335.04, shared proportionately based on their respective incomes for 2009. [53] The petitioner is awarded retroactive section 7 educational expenses for the second semester of the first year, calculated on two-thirds of the cost, shared proportionately in accordance with their incomes for the year 2009. For the second semester of the first year, the amount of contribution by Mr. Manley is $3273.50. [54] The petitioner is awarded section 7 educational expenses for the two semesters of the second year of C.'s university education, the first semester based on the parties’ respective 2009 incomes and second semester calculated on their 2010 incomes. Mr. Manley's contribution to C.’s university expenses for her second year is $3,816.43. [55] The respondent shall continue to be responsible for his proportionate share of C.’s educational expenses while she completes her present University program. (B) Spousal Support [56] The petitioner is awarded spousal support in the amount of $400.00 a month commencing July 1, 2010. [57] The petitioner is awarded retroactive spousal support in the amount of $400.00 a month commencing January 1, 2010 to and including June 30, 2010 for a total of $2,400.00, and the sum of $2,000.00 for the period from the date of separation until December 2009. (C) Division of Assets and Liabilities [58] The petitioner is granted title to her motor vehicle, her pension, the RRSPs and withdrawals as agreed between the parties, in an amount totalling $30,397.23. From this amount is deducted the petitioner's share of the matrimonial debts for which she assumed responsibility following the separation, in the total amount of $11,023.72. Also to be deducted are the matrimonial debts she has agreed to assume, in the total amount of $22,134.27. [59] The respondent is granted title to the proceeds from the cashing in on his life insurance, the RRSPs he has received, and withdrawals he made, in the total amount of $10,667.55. From this amount is deducted the respondent's share of the matrimonial debts for which he assumed responsibility following the separation, in the total amount of $28,903.56. Also to be deducted are the matrimonial debts he has agreed to assume, in the total amount of $1,994.30. [60] As reviewed earlier, the parties owe each other for one half of the value of the assets and are entitled to a credit for one half of the amount of the matrimonial debts they have paid, or have agreed to pay. Consequently, the petitioner owes, for assets received, $15,198.62 less credits of $5,511.86 and $11,067.14 for a negative balance of $1,380.38. The respondent owes, for assets received, $5,333.78 less credits of $14,451.78 and $997.15 for a negative balance of $10,115.15. The resulting equalization payment owed by the petitioner to the respondent is $4,367.39. [61] Having awarded an amount by way of retroactive spousal support, and recognizing Mr. Manley’s assumption of a disproportionally greater share of the matrimonial debts, post separation, I am nevertheless satisfied that in all the circumstances the parties should receive credit for what they have already paid in respect to matrimonial debts and what they have agreed to pay in the future, in calculating the sharing of matrimonial assets. The payment of the matrimonial debts assured that both parties would be able to share in the realization of the principal matrimonial asset, namely the matrimonial home. In these circumstances, and notwithstanding the respondent’s assumption of a greater proportion of the matrimonial debts as one of the factors in determining the quantum of the retroactive spousal support, I am nevertheless satisfied to award each party credit for the amounts of matrimonial debts they assumed, and paid, following separation. Effectively, the parties will have shared equally in the matrimonial debts. Reconciliation and Payment (A) Child Support [62] The respondent shall pay ongoing child support in the amount of $505.00 monthly, calculated on an annual income of $58,000.00, commencing effective as of July 1, 2010. [63] The respondent shall pay retroactive child support of $3,030.00 for the period January 1, 2010 to June 30, 2010, the sum of $2,396.00 for the period from September 1, 2009 to December 3, 2009, and the sum of $2,000.00, retroactive child support for the period from the date of separation until August 31, 2009. The respondent shall also pay $874.05 as his contribution to the emergency dental costs of C., the sum of $3,273.50 as his contribution to C.’s educational expenses for the second semester of C.’s first year at university and the sum of $3,816.43 as his contribution for the educational costs of C. during her second year at university. From this total of $15,389.98 there shall be deducted the sum of $3,618.00 being the amount he has paid by way of child support to and including the end of May, 2010. The resulting balance owed by the respondent is $11,771.98. [64] Any payment of child support by the respondent in June, 2010 should also be deducted from this amount. [65] The respondent shall continue to be responsible for his proportionate sharing of C.’s educational expenses while she completes her present university program. (B) Spousal Support [66] The petitioner is awarded the sum of $400.00 commencing effective as of July 1, 2010. [67] The petitioner is also awarded retroactive spousal support in the amount of $400.00 each month for the months of January to June, 2010 for a total of $2,400.00, together with retroactive spousal support of $2,000.00 for the period from separation until December 2009. (C) Division of Assets and Liabilities [68] The petitioner is granted title to matrimonial assets valued for purposes of distribution under the Matrimonial Property Act at $15,198.62, from which is deducted the sums of $5,511.86 and $11,067.14 on account of matrimonial debts she has paid or agreed to pay. The net value of her share of the matrimonial assets is therefore a negative $1,380.38. [69] The respondent is granted title to matrimonial assets valued for purposes of distribution under the Matrimonial Property Act at $5,333.78, from which is deducted the sums of $14,451.78 and $997.15 on account of matrimonial debts he has paid, or agreed to pay. The net value of his share of the matrimonial assets is therefore a negative of $10,115.15. [70] In order to equalize the assets and liabilities assumed, and agreed to be assumed by the parties, the petitioner owes the sum of $4,367.39 to the respondent. [71] The retroactive spousal support owed by the respondent to the petitioner, in the sums of $2,400.00 and $2,000.00 may be set off against the equalization payment, due as a result of the distribution of assets and liabilities, in the sum of $4,367.39 leaving a balance of $32.61 owed by the respondent to the petitioner. [72] If required, I will hear the parties on arrangements for payment of the retroactive child support, as well as to costs. MacAdam, J.