Franklin v. Franklin, 2010 ABQB 787

Court of Queen ’ s Bench of Alberta Citation: Franklin v. Franklin, 2010 ABQB 787 Date: 20101208 Docket: 4801 131981 Registry: Calgary Between: Donald Blake Franklin Plaintiff - and - Shelley Rosanne Franklin Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice William A. Tilleman _______________________________________________________ Introduction [ 1 ] The Plaintiff, Mr. Franklin, seeks a Variation Order in respect to child support. He seeks retroactive child support and

section 7 expenses, and a determination of the parties’ ongoing obligations. Issue [ 2 ] For this Court to grant a Variation Order there must be a material change in circumstances such that if the circumstances were known at the time of the original Order, that Order would have been made differently: Willick v. Willick , 1994 CanLII 28 (SCC) , [1994] 3 S.C.R. 670 at p. 688.

Background [ 3 ] There are two children of the marriage; Kerrie, who is 17 years of age; and Julie, 19 years of age. Julie currently attends university and it is expected that Kerrie will begin university next September. [ 4 ] The parties were divorced on August 13, 2007 by the consent Divorce Judgment and Corollary Relief Order of Justice Hughes. All terms in that Order originated from a formal settlement agreement signed by the parties in February 2007. Notably, the parties agreed, and it was subsequently Ordered, that parenting would be shared equally; that there would be no child support paid by either party because their incomes were substantially equal, and that

Section 7 expenses would be proportionately split, with the exception that Mr. Franklin would pay the entirety of Julie’s private school tuition fees. Positions [ 5 ] The positions are as follows: 1. Retroactive and ongoing child support . Mr. Franklin is seeking retroactive and ongoing child support on the basis that the parties are no longer exercising joint parenting. He claims that Julie has lived with him on a full-time basis since July 1, 2009 and Kerrie since June 1, 2010. In response, Ms. Franklin disputes the history of Julie’s living arrangements, the date upon which it was made clear to her that Mr.

Franklin was seeking child support, and she claims that the children are currently moving back and forth between both homes, making an ongoing support order inappropriate.

Section 7 Expenses . Mr. Franklin is requesting an Order directing Ms. Franklin to pay certain

Section 7 expenses that he claims she has failed to pay. In response, Ms. Franklin claims that she should be credited for paying these expenses because she has paid for other expenses without contribution from Mr. Franklin. Retroactive Child Support Facts and Positions [ 6 ] There is no dispute that shared parenting was exercised until at least June 1, 2009. It is Mr. Franklin’s position that beginning June 1, 2009 Julie began living with him on a full-time basis and that this arrangement continued until sometime in March, 2010. Ms. Franklin claims that Julie only began living full-time with Mr.

Franklin in September, 2009 and then began living with her full-time from February, 2010 until May, 2010. Ms. Franklin admits that both children lived primarily with Mr. Franklin from June, 2010 until September, 2010, at which point both children moved back with her for approximately three weeks. [ 7 ] In

summary, the parties agree that both children lived primarily with Mr. Franklin for three months (June 2010 - September 2010). They also agree that Julie lived primarily with Mr. Franklin at least an additional five months (September 2009 - January 2010). The parties dispute approximately five months of Julie’s living arrangements (June 2009 - August 2009 and February - March 2010). [ 8 ] Ms. Franklin claims that it was reasonable for her to believe that shared parenting had not ended.

She submits that the history of Julie’s living arrangements roughly approximates shared parenting, though not as formally as it had been exercised in the past. For instance, Ms. Franklin claims that after Julie lived with Mr. Franklin for approximately five months (September 2009 - January 2010) she moved in with Ms. Franklin for a period of four months (February - May 2010) and then moved back in with Mr. Franklin for three months (June - August 2010). She also points to her March 30, 2010 letter to Mr. Franklin to support her claim. The letter states that Ms.

Franklin was “trying to end [Julie’s] yo-yo-ing back and forth between our homes with the thought that there will always be somebody willing to give her a ‘free ride’. She is in the habit of treating our homes like they are hotels...”. [1] Finally, Ms. Franklin submits that she has always believed that the children would return to regular shared parenting when they were ready to do so. For the reasons cited

above, she submits that her belief, that the parties were still exercising shared parenting, was reasonable. [ 9 ] Moreover, Ms. Franklin claims that Mr. Franklin did not indicate that he would be seeking child support until she received formal notice of his notion of motion. Neither did Mr. Franklin express any indication that he was required to pay child support when the children were living with her. [ 10 ] Conversely, Mr. Franklin claims that he did not delay in bringing this application for child support and that Ms.

Franklin should not benefit from avoiding her responsibilities. [2] It is his position that “it is clear and obvious that some financial support should have been provided by Ms. Franklin”. [3] The Law [ 11 ] Prior to making an Order to vary child support, the Court must “satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support Order or the last Variation Order made in respect of that Order”: s.17(4) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.).

The guidelines provide that a Variation Order is appropriate where there is a change such that a different table amount would be ordered or where there is a change in the condition, means, needs or other circumstances of either the parents or the children: s.14 of the Federal Child Support Guidelines , SOR/97-175. [ 12 ] The leading case regarding retroactive child support is the Supreme Court of Canada case of D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231.

In that case the Court held that retroactive child support Orders should not be considered exceptional Orders for unique circumstances. In determining when a retroactive Order is appropriate, the Court must weigh all relevant factors. For instance, the existence of unreasonable delay or blameworthy conduct on the part of the payee parent will militate against a retroactive Order. Also, the Order should date back to when the payor parent had effective notice of the payee parent’s intention to seek child support.

Effective notice is given when the payor parent first became aware of the payee parent’s intention to seek child support. The purpose of setting the date at effective notice is not to discourage parents from first attempting to resolve their conflicts without turning to the Court. This approach was thought to balance the payor parent’s interest in certainty with the flexibility needed to ensure a proper level of support. [ 13 ] Against this background, in D.B.S. v. S.R.G the Court indicated that there were three situations where it may be appropriate to make a retroactive support Order.

These situations are where there has been a previous Order where child support was to be paid, where there has been a previous agreement between the parties, and where there has not been an Order that support be paid. Justice Bastarache, at paras. 74, 77-78, held that in the first two situations the parents have some expectation that their obligations are being fulfilled: ...Acting consistently with the court order should provide the payor parent with the benefit of predictability, and a degree of certainty in managing his/her affairs.

However, the court order does not absolve the payor parent — or the recipient parent, for that matter — of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes. In a situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for a court, acting pursuant to the Divorce Act ...to vary an existing order retroactively...

The fact that we are dealing with children must remain of primary significance in a court’s analysis. Thus in the Divorce Act , Parliament has provided that a court may depart from the Guidelines if both parents consent, but only “if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates”: s. 15.1(7). What is “reasonable” will be determined with reference to the Guidelines : s. 15.1(8).

Because of this, a payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a payor parent acting pursuant to a court order. In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent.

Therefore, it is often unwise for courts to disrupt the

equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it... In the third situation, where no previous order had been made, unless there are special circumstances, it is unreasonable for a payor parent to believe that their obligations were being fulfilled: see para. 80.

Analysis [ 14 ] In the present case, the parties have a settlement agreement that was endorsed by the Court. Ms. Franklin should, therefore, have a reasonable expectation that her child support obligations were being satisfied. This expectation, however, can only be reasonably relied on until she became aware of Mr. Franklin’s intention to seek child support, unless there is blameworthy conduct: D.B.S. v. S.R.G. at paras. 121-125 . [ 15 ] There are no allegations of blameworthy conduct and no evidence that Mr. Franklin communicated his intention to seek child support prior to serving Ms.

Franklin with his Notice of Motion in September 2010. On the contrary, there is evidence showing that the parties were not communicating. Mr. Franklin presented evidence demonstrating that he began blocking calls from Ms. Franklin beginning on July 21, 2009. [4] He also presented a letter sent to him from Ms. Franklin dated August 30, 2009 where she acknowledged that he was blocking both her emails and calls. [5] Based on her perception that Mr. Franklin was, inter alia , not cooperating in respect to

section 7 expenses, Ms. Franklin went on to end communication with Mr. Franklin, stating “I refuse to accept any further correspondence from you and therefore will not be held accountable for its contents”. [6] [ 16 ] Consequently, pursuant to the direction provided by the Supreme Court of Canada in D.B.S. v. S.R.G , and the totality of the evidence before me, Ms. Franklin’s expectation of certainty continued until she was provided notice of Mr. Franklin’s Notice of Motion in September 2010. Therefore, Mr.

Franklin’s claim fails and retroactive child support will not be Ordered. [ 17 ] In any event, given the flexibility with which the children have been moving between homes, and their ages, I do not believe that they would necessarily benefit from a child support Order. It may create the expectation that they are more welcome in one home over the other, an outcome at odds with this Court’s mandate to facilitate each parent’s access to the children: s.16(10) of the Divorce Act . Ongoing Child Support [ 18 ] Neither party was able to inform the Court as to where the children are expected to reside in the future.

Accordingly, and since the girls are likely moving between both parent’s homes, I am not willing to order ongoing child support. [ 19 ] During the hearing the parties agreed that it would be desirable to have input from the children, which are now maturing young women, on where they plan to live before any Order for ongoing child support ought to be made. The parties agreed that the best approach would be to have the children meet with a counsellor and discuss their plans for the future. I believe the counsellor available through Ms. Franklin’s employer should be approached, first.

If, for whatever reason, the use of that counsellor is not available then the counsellor available through Mr. Franklin’s employer is to be approached next, or failing that, a counsellor agreed to by the parties. [ 20 ] The views of the children should be heard as soon as reasonably possible. After which, and assuming there are new circumstances, either party may make application to me in morning chambers, at a time agreed to by the parties and pursuant to the scheduling requirements of this Court.

Section 7 Expenses

[ 21 ] I will not vary the parties’ proportionate obligations to pay

section 7 expenses from the consent Order of Justice Hughes. That Order was based on an income disparity between the parties of $10,000, based in part on a taxable benefit attributable to Mr. Franklin for the discount he received in respect of Julie’s private school tuition. The current disparity is still approximately $10,000, and still based in part on the same taxable benefit, though now for Kerrie not Julie. Far from being a material change, Mr. Franklin brought this application with little or no change at all. [ 22 ] Mr. Franklin requests a declaration that Ms. Franklin has failed to pay her share of certain

section 7 expenses. He claims she has failed to contribute $1,100 towards Kerrie’s school trip to France and that she has failed to pay her share of the children’s clothing allowance for several months and now owes $1,950 in arrears. Finally, he claims she has failed to pay her share of Kerrie’s private school tuition and now owes $4,200 in arrears. These amounts total $7,250. [ 23 ] Ms. Franklin disputes the amount that Mr. Franklin is requesting. Firstly, while Ms.

Franklin does not dispute that she is to contribute to Kerrie’s private school tuition costs, she requests that she be credited for having paid the costs of Kerrie’s involvement in dance since 2008, at a total cost of $6,693.25. Mr. Franklin only contributed $435 to Kerrie’s dance during this period. [7] Secondly, Ms. Franklin claims that she never agreed to partially fund Kerrie’s trip to France on the basis that she believed it to be an unreasonable expense given the incomes of the parties. [8] [ 24 ] During the hearing, Mr. Franklin argued that Ms.

Franklin should not receive credit for having paid Kerrie’s dance expenses because these expenses were actually paid with money gifted to Ms. Franklin by Kerrie’s grandmother. This allegation is irrelevant; the law is clear that gifts are not considered income: Bak v. Dobell , 2007 ONCA 304 , 86 O.R. (3d) 196 at para. 31 ; see also Hartley v. Del Pero , 2010 ABCA 182 , 27 Alta. L.R. (5th) 248. She will be credited for her contribution towards Kerrie’s dance classes. [ 25 ] The consent Order of Justice Hughes detailed that “no

Section 7 expense shall be incurred without advance notice to and agreement of the other party, such agreement not to be unreasonably withheld”. It is clear that Ms. Franklin withheld her consent to partially fund Kerrie’s school trip to France. I do not believe that her decision was unreasonable given the means of the parties and circumstances of the trip including that it was not a field trip to Canada; it was a trip to France. [ 26 ] The final result of the retroactive

section 7 expenses is that Ms. Franklin will be credited for having paid $6,693.25 and Mr. Franklin will be credited for having paid $6,585. Half of the difference of $108.25 is owed from Mr. Franklin to Ms. Franklin. To be clear, Mr. Franklin must pay Ms. Franklin $54.13. [ 27 ] Finally, Mr. Franklin originally claimed that Ms. Franklin had not paid her share of Julie’s post-secondary education expenses, and he expressed concern about Kerrie’s expenses when she attends university. [9] Since the filing of this action Ms. Franklin has contributed $3,201.32 towards Julie’s post-secondary expenses.

Julie may also have an obligation to contribute to her post-secondary expenses, depending on her ability pay these expenses: Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA) , 80 O.R. (3d) 321, 267 D.L.R. (4th) 193 (ON C.A.). Though I will not make an Order regarding the parties obligations to pay Julie’s post-secondary education expenses, because of a lack of evidence regarding Julie’s ability to contribute, the parties are expected to make reasonable contributions after accounting for any contributions that Julie may be able to make. Costs [ 28 ] Having found no real material change, and with Ms.

Franklin’s arguments prevailing on the retroactive child support, party and party costs are awarded to Ms. Franklin. Should the parties not be able to resolve the matter of costs, they can bring the matter back to me in 30 days. Heard on the 16 th day of November, 2010. Dated at the City of Calgary, Alberta this 8 th day of December, 2010.

William A. Tilleman J.C.Q.B.A. Appearances: Janet E. Russell, Q.C. For the Plaintiff Michael Ghert for the Defendant [1] See Exhibit “F” of Ms. Franklin’s September 28, 2010 Affidavit. [2] See Plaintiff’s letter brief at p.4. [3] Ibid . [4] See Exhibit C of Mr. Franklin’s November 5, 2010 Affidavit. [5] See Exhibit F of Mr. Franklin’s September 16, 2010 Affidavit. [6] Ibid . [7] Supra note 4 at Exhibit G. [8] Supra note 1 at p.5. [9] Supra note 5 at p.10.