Date: 20000221
Docket: CA 159646
NOVA SCOTIA COURT OF APPEAL
[Cite as: Hood v. Fost, 2000 NSCA 34]
Chipman, Freeman and Bateman, JJ.A.
BETWEEN: )
)
GREGORY FOST ) Mary E. Meisner, Q.C.
) for the Appellant
Appellant )
)
- and - )
)
CARLENE HOOD ) Samira G. Zayid
) for the Respondent
Respondent )
)
)
)
) Appeal Heard:
) February 10, 2000
)
)
) Judgment Delivered:
) February 21, 2000
THE COURT: The appeal is dismissed with costs in the amount of $750.00, plus disbursements as per reasons for judgment of Chipman, J.A.; Freeman and Bateman, JJ.A., concurring.
CHIPMAN, J.A.:
[1] This is an appeal by the father of a child born to the respondent from an order of Judge Flora I. Buchan of the Family Court requiring him to pay child support pursuant to the provisions of the Family Maintenance Act, R.S., c. 160 as amended.
[2] The parties began a relationship in early 1997. The child was born of that relationship on December 12, 1997. By the time of the child’s birth, the parties had ceased living together.
[3] On March 17, 1998, the respondent made an application in the Family Court for custody, access and child maintenance. At the time of the hearing before Judge Buchan in February of 1999, the appellant was unemployed and in receipt of employment insurance benefits. At the time of the adjourned hearing in June of 1999, the appellant was attending a computer course and was in receipt of a training allowance of $105.00 a week.
[4] In 1988 or 1989, the appellant recovered approximately $109,000 in a personal injury settlement. He appears to have spent all of this but $60,000 which he used as a down payment on a duplex in 1989. He testified that he was unable to properly manage this property and had entered into an escrow agreement to transfer the property to his father in 1992. He executed a quit claim deed on June 12, 1997, a few weeks after he learned that the respondent was pregnant with his child.
[5] In fixing the amount of maintenance, Judge Buchan imputed an annual income of $13,255 to the appellant, calculated as follows:
$650.00 a month rent from the duplex x 12 months = $ 7,800.00
$105.00 a week training allowance x 52 weeks = $ 5,460.00
TOTAL: $13,260.00
[6] Applying the Child Support Guidelines under the Act, the amount payable monthly by the appellant for support of the child was $116.00. Judge Buchan ordered this child support to be payable retroactively to January 1, 1999.
[7] The appellant’s notice of appeal advances a number of grounds which may be reduced to two issues which emerge on this appeal:
(1) Whether the trial judge erred in imputing income to the appellant with respect to the duplex.
(2) Whether the trial judge erred in the amount of income with respect to the duplex imputed to the appellant.
[8] Section 19(1) of the Act provides in part:
19(1) The court may impute such amount of income to a parent as it considers appropriate in the circumstances, which circumstances include the following:
. . .
(d) it appears that income has been diverted which would affect the level of child maintenance to be determined under these Guidelines;
(e) the parent’s property is not reasonably utilized to generate income;
. . .
(g) the parent unreasonably deducts expenses from income;
[9] In arriving at her conclusion that income should be imputed, Judge Buchan said:
I’m going to deem his income, taking into account the $650.00 a month rental and the amount of UI which he is receiving at the present time, as $13,255.00 per year. The Child Support Guidelines which I must follow would indicate child support in the amount of $116.00 per month. I have not included in these calculations . . . because the evidence is confusing . . . the vending business. I would have to say that my impression from the evidence is that I’m not getting the full picture from Mr. Fost about his financial circumstances. I did not get the full picture with respect to the vending business and I have not got the full picture with respect to the duplex. I feel like Mr. Fost has been dancing his way around that somewhat. It would take more information than I have in front of me at this point to really delve into that. It may be something that should be looked at in the future but, at the present time, I accept that Mr. Fost is attending a training course, that his UI does run out after a period of time and that he’s presently on quite limited income. Therefore, I deem his income to be $13,255.00 and child support shall be payable in the amount of $116.00 per month. I’m going to order that the child support be payable retroactive to January 1, 1999. I know that the application was made in March 1998 and certainly support can be ordered right back to the time of the application, but I chose not to do that at the present time even although it’s clear to me that there’s more financial information that should be forthcoming.
[10] In Edwards v. Edwards (1995), 133 N.S.R. (2d) 8, this Court said at para. 53:
[53] Having regard to all the evidence and particularly the respective incomes of the parties, I cannot say that the trial judge erred in his assessment. This court is not a fact finding tribunal. That is the role of the trial judge. Ours, as has been said many times, is a more limited role. We are charged with the duty of reviewing the reasons of the trier of fact with a view of correcting errors of law and manifest errors of fact. The degree of deference accorded to the trial judge with respect to factual findings is probably no higher anywhere than it is in matters relating to family law. Hart, J.A., put it well when he said on behalf of this court in Corkum v. Corkum (1989), 20 R.F.L. (3d) 197, at p. 198:
“In domestic matters the trial judge always has a great advantage over an appellate court. He sees and hears the witnesses and can assess the emotional aspects of their testimony in a way that is denied to us. Unless there has been a glaring misconception of the facts before him or some manifest error in the application of the law, we would be unwise to interfere.”
[11] It is clear from the evidence that at the time the appellant actually conveyed the duplex to his father by quit claim deed he was aware of the fact that the respondent was pregnant with his child. He testified to escrow arrangements which he said were made with his father in 1992, but no documentation was produced to support them. He had ample opportunity to produce these because he was cross-examined on this issue at the adjourned hearing held on March 19, 1999. The hearing was further adjourned to June 7, 1999, at which time he was further examined, both on direct and cross-examination.
[12] The trial judge also had before her the following testimony of the respondent respecting her discussions with the appellant about the transfer of the duplex to his father:
A. He told me that he had to do it on paper to make it look like he didn’t own it anymore so he could collect disability or they would have thought that he had income from renting out one of the houses. So it was a way that he could get the government to pay his mortgage. And, actually, he lived in those duplexes side-by-side with his father and collected disability while he was living in them. And that was a common joke about how the government was paying his mortgage at times.
[13] It was, in my opinion, open to the trial judge to conclude, as she obviously did, that the appellant was not credible in his testimony respecting these arrangements. In such circumstances, it was open to her to conclude that this non-arm’s length transaction resulted in a diversion of income that would otherwise be available to enable the appellant to meet his obligations towards the support of the child. In my opinion, the appellant cannot succeed on the first ground of appeal.
[14] With respect to the second ground of appeal, the evidence was that one-half of the duplex was rented to a tenant at a monthly rental of $650.00. The other half was occupied by the appellant’s father, and he in turn, rented a portion of the property to the appellant for $300.00 monthly. The appellant’s submission is that in imputing $650.00 a month income to the appellant, the trial judge had regard only to the gross rental received from the tenant and did not have regard to expenses such as taxes, repairs, maintenance and so forth. However, in addition to the gross revenue from the tenant, the appellant had foregone the value of the part of the duplex occupied by his father. In my opinion, it was appropriate for the trial judge to have regard to this and in arriving at a net figure. It was the appellant who could have provided “the full picture with respect to the duplex”, but did not do so. As I have pointed out, the appellant had ample opportunity before the adjourned hearing of June 7, 1999 to produce evidence of the expenses relating to the property. He, not the respondent, was in a position to do so. Instead, he chose not to. Thus, the trial judge was left with the feeling that he had been “dancing his way around that somewhat”.
[15] Having reviewed the record of the trial judge’s decision, I am not persuaded by the appellant that the trial judge made any error of law or of fact.
[16] I would dismiss the appeal with costs in the amount of $750.00, plus disbursements.
Chipman, J.A.
Concurred in:
Freeman, J.A.
Bateman, J.A.