Anderson v. Anderson, 2010 ABQB 763

Court of Queen ’ s Bench of Alberta Citation: Anderson v. Anderson, 2010 ABQB 763 Date: 20101210 Docket: 4803 151425 Registry: Edmonton Between: Lila Del Carmen Anderson Plaintiff - and - David James Anderson Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Anderson asks for a shared parenting regime until his 3 year old daughter reaches school age. Ms. Anderson opposes the application on the grounds that Mr. Anderson has not established any material change of circumstance since the parenting judgment of the Provincial Court in September, 2009. [ 2 ] Ms. Anderson asks the court to impute minimum wage income to her former husband. Mr. Anderson responds that there has been no change in his income as a full-time grain farmer since his child’s birth. [ 3 ] Mr. Anderson’s motion is denied: he has not established any material change of circumstance since parenting was decided on the merits: Gordon .

[ 4 ] Ms. Anderson’s motion is allowed in part: although Mr. Anderson is not deliberately underemployed with a view to avoiding child support obligations, with the result that an Alberta court cannot therefore impute income to him, (Smolis-Hunt ) , it is true that his income for tax purposes is not necessarily the same as his income for child support purposes: Reis . However, Ms. Andersen has not demonstrated that any of his legitimate tax deductions should be re-attributed as income for child support purposes. In the result, Ms.

Anderson is entitled to child support based on the 3 year average of line 150 income as reported by Ms. Anderson. Cases and authority cited [ 5 ] By Ms. Anderson: Gordon v Goertz 1996 CanLII 191 (SCC) , [1996] S.C.J. No. 52 ; Marshall v Marshall 2008 NSSC 14 , [2007] N.S.J. No. 552 ; Wasuita v Wasuita 1998 ABQB 537 , [1998] A.J. No. 695 . [ 6 ] By the court: Hunt v Smolis-Hunt 2001 ABCA 229 , [2001] A.J. No. 1170 ; Reis v Thompson 2009 ABQB 156 , [2009] A.J. No. 264 . 1. Background [ 7 ] Mr. and Ms. Anderson are the parents of one daughter who will shortly be 3 years old. Mr.

Anderson is also the parent of two other children. In September, 2009, when both parties were represented, they litigated the parenting regime for their daughter in the Provincial Court. After a trial in which the court heard from witnesses and in which certain exhibits were filed, the court issued an Amended Parenting Order which established parenting time for each of the parties and ordered that the powers, responsibilities, entitlements and decision-making regarding the child were to be shared, other than the child’s place of primary residence. [ 8 ] Mr. Anderson swears that he is a full-time grain farmer.

He acknowledges that many of his neighbours work at other jobs especially during the winter, but asserts that, for many years, he has not done so. His taxable income for the years prior to the application was: - 2007 $15,184.59 - 2008 14,575.00 - 2009 8,140.81 He estimates that his income for 2010 will be between $10,000.00 and $11,000.00. [ 9 ] Ms. Anderson swears that Mr. Anderson drives an expensive Lincoln and a sports car. Mr. Anderson swears that the Lincoln is his father’s and that the sports car is not driveable. [ 10 ] In an affidavit responding to Mr. Anderson’s claim for parenting, Ms.

Anderson states: I am concerned that [Mr. Anderson] will be unable to meet the basic needs of our daughter . . . He lives in a trailer which is not suitable as it is old and broken down. 2. Parenting

[ 11 ] The parties had a full opportunity of putting forward their positions with respect to parenting during the course of the Provincial Court trial. Mr. Anderson has not proved any material change of circumstance since the Provincial Court decision in this matter.

Nor is this a case where the court can assume that there has been a material change, even though none was specifically identified by the parties; on the contrary, there is nothing in the material before me which even suggests any change in the overall circumstances of the parties since the Provincial Court trial. [ 12 ] As the Supreme Court of Canada emphasized in Gordon , when applying for a variation of a parenting order, the party applying must meet a threshold requirement of proving a material change of circumstance. It is against public policy to have the parties continually litigating the same basic issue.

Mr. Anderson has not met that threshold; therefore, his application is denied. [ 13 ] The effect of the Provincial Court decision of September, 2009 is to give the parties joint custody of their daughter; therefore, it is not necessary for this court to issue an order for joint custody as Mr. Anderson requests. [ 14 ] The parties can, of course, agree to variations in the Provincial Court order; for ease of future reference and enforcement, the court will issue any form of consent order upon which the parties can agree, varying the terms of the September, 2009 parenting order. 3.

Imputing income [ 15 ] Alberta litigants must meet the Alberta standard with respect to imputation of income. It may be that the result applying the test set out in Marshall would be the same as, or very similar to, the result obtained by using Alberta law. In that context, I note, for example, the repetition in the Marshall decision of the concept of “employment history” and the approval of the notion of a “self- induced reduction of income”.

Nonetheless, if it were the case that the Marshall decision articulated a different basis for imputation of income than has our Court of Appeal then, of course, Alberta chambers judges are bound to follow the decision of our Court of Appeal. Our Court of Appeal has held that a court can only impute income to a deliberately unemployed or underemployed parent if the applicant has proved that the payor parent is deliberately earning less or no income with a view to avoiding child support obligations: Smolis- Hunt. [ 16 ] Ms. Anderson has not established that Mr.

Anderson changed his employment pattern after separation or that he has, in recent years, reduced his income. On the contrary, his income is consistently low. [ 17 ] Moreover, I note that Ms. Anderson’s own evidence in relation to parenting appears to corroborate Mr. Anderson’s persistently low income. This is the man she fell in love with, married and decided to have a child with. It would not be fair for her to insist upon the father now becoming a different person. [ 18 ] The Wasuita decision cited by Ms. Anderson pre-dates Smolis-Hunt and has been overtaken by it.

In addition, in Wasuita , there was apparently evidence of non-farm income, which is not the situation here. [ 19 ] It is also important to note that this is not a case of farming creating an income loss; Mr. Anderson’s whole income is from farming. [ 20 ] That is not to say, however, that Mr. Anderson’s line 150 taxable income is the correct income for child support purposes. As Read J. recently stated in Reis : Finally, farming income is notoriously hard to evaluate.

I can take judicial notice of the fact that farmers may make deductions from their income that may be legitimate for income tax purposes but which may more properly be considered ordinary living expenses when one is considering the child support guidelines. Mr. Ryz provides no evidence that his farm expenses are legitimate deductions from his farm income for purposes of determining his guideline income.

One difference between that case and this one is that, in that case, the farmer bore the evidentiary burden whereas here, Ms. Andersen bears the evidentiary burden. Perhaps Mr. Anderson’s capital cost allowance claim is excessive; maybe he has the use of his father’s farming equipment in much the same way that he has the use of his father’s vehicle. However, the court cannot assume facts; facts must be proven. [ 21 ] There are only two aspects of the child support issue on which Ms. Anderson is entitled to relief.

First, while their daughter is a child of the marriage, the parties will be required to provide the financial information identified in the Federal Child Support Guidelines to one another by June 30 th of each year. Second, from October 1, 2010 until further order of the court, Mr. Anderson’s income for child support purposes will be the average of his 2007, 2008 and 2009 taxable incomes. 4. Costs [ 22 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 30 th day of November, 2010.

Dated at the City of Edmonton, Alberta this 9 th day of December, 2010. J.B. Veit J.C.Q.B.A. Appearances: Lee James Olesen, Olesen Law Office for the Plaintiff, Ms. Anderson David L. Schwartz for the Defendant, Mr. Anderson