Pretty v. Pretty

Pretty v. Pretty

Material changes existed but the best interests analysis favored retaining primary residence with the father due to superior adult supervision, continuity of education at SAERC, insufficient evidence of better services in Dartmouth, and inadequate night-time childcare at mother's home; father found to be under-employed and income imputed to $35,000; undue hardship not established; split custody with comparable incomes results in no periodic child support payable, subject to two shared section 7 expenses; limited retroactive variation granted effective October 1, 2010.

Citation
2011 NSSC 296
Parties
Applicant/respondent: Gary James Pretty; Respondent/applicant: Kathleen Joyce Pretty
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
8 July 2011
Procedural Posture
Family Law (divorce Act Corollary Relief) Custody and Support Dispute / Contested Hearing With Oral Decision (trial Level, Family Division)
Outcome
Application to vary primary residence denied; primary residence remains with father; access to mother ordered with shared costs; income imputed to father; undue hardship claims dismissed; split custody results in no periodic child support subject to specified section 7 expenses; limited retroactive variation granted.
Legal Topics
Material Change in Circumstances, Best Interests of the Child, Access/visitation, Imputation of Income, Undue Hardship Under Guidelines, Section 7 Expenses, Retroactive Variation
Source Language
English
Family Law Child Custody Child Support Spousal Support Administrative Law (guidelines) Material Change in Circumstances Best Interests of the Child Access/visitation +4 more

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Parties

Gary James Pretty

Applicant/respondent

Kathleen Joyce Pretty

Respondent/applicant

Procedural Posture

Family Law (divorce Act Corollary Relief) Custody and Support Dispute / Contested Hearing With Oral Decision (trial Level, Family Division)

Legal Issues

  1. 1 Whether material change in circumstances exists under s.17 of the Divorce Act
  2. 2 Whether it is in the best interests of the child (Crawford) to change primary residence
  3. 3 Appropriate access/transportation arrangements and cost sharing

Ratio Decidendi

Material changes existed but the best interests analysis favored retaining primary residence with the father due to superior adult supervision, continuity of education at SAERC, insufficient evidence of better services in Dartmouth, and inadequate night-time childcare at mother's home; father found to be under-employed and income imputed to $35,000; undue hardship not established; split custody with comparable incomes results in no periodic child support payable, subject to two shared section 7 expenses; limited retroactive variation granted effective October 1, 2010.

Court Disposition

Application to vary primary residence denied; primary residence remains with father; access to mother ordered with shared costs; income imputed to father; undue hardship claims dismissed; split custody results in no periodic child support subject to specified section 7 expenses; limited retroactive variation granted.

Orders

  • Primary residence of Crawford remains with Gary James Pretty; application by Kathleen to vary primary residence refused
  • Frequent access to mother and sister to be scheduled when mother not working nights including at least one weekend per month (four day weekend where possible), holiday periods and shared summer holidays when mother is on vacation or has proper childcare; access to be scheduled to maximize non-school days