Apostal v. Raine, 2011 ABQB 120

Court of Queen ’ s Bench of Alberta Citation: Apostal v. Raine, 2011 ABQB 120 Date: 20110302 Docket: FL03 25359 Registry: Edmonton Between: Leissa Dale Apostal (Nixon) Applicant - and - Michael James Raine Respondent Corrected judgment: A corrigendum was issued on March 8, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The self-represented Applicant in this matter applies for retroactive child support, and for a determination of whether school trips within Canada and to Europe are

Section 7 extraordinary expenses. The Applicant also seeks the Respondent’s proportionate share for extraordinary

Section 7 expenses related to the child’s travels to other Provinces within Canada and to Europe for purposes of her French Immersion full-time schooling program.

[2] These parties were never married, and there is one child of the relationship currently 15½ years of age. [3] The Respondent argues that he disclosed that he was earning more income in September 2008, and that the Applicant gavehim the option to vary the ongoing child support or to pay for the child’s extraordinary expenses.

The Respondent chose the latter, and hebelieves that he was meeting his child support obligations at all times. [4] Further the Respondent submits that he has had to incur an unusually high level of debt to earn a living, and as such wouldexperience an undue, excess, or disproportionate hardship if retroactive child support were granted. [5] The Applicant’s current annual Guideline income is approximately $44,000 [2007: $27,129; 2008: $46,871; 2009: $43,758]consisting of long term employer disability and Canada Pension long term disability payments. Her current annual household income isapproximately $114,000.

The Respondent’s current annual Guideline and annual household income is approximately $82,000. It issubmitted that if a retroactive award is granted, the Respondent’s standard of living will be below that of the Applicant. [6] The Respondent is currently paying child support in the amount of $720 a month pursuant to a Variation Order issued in thisCourt on December 17, 2010, although until December 17, 2010 he was only paying child support of approximately $200 to $250 amonth since 1997.

Analysis [7] With respect to the issue of retroactive child support, the Court must determine whether or not it is warranted in thecircumstances; any hardship occasioned by such an award against the Respondent; and the date of effective notice. [8] It is common ground that the Supreme Court of Canada’s decision in D.B.S. v. S.R.G., 2006 SCC 37 , 2006 S.C.C.37 provides the guiding principles with respect to retroactive child support. D.B.S. outlines the four criteria in determining a retroactiveaward as follows:– (

a) Reasons for delay in seeking an increase; (

b) Conduct of the payor parent; (

c) Circumstances of the child; (

d) Hardship occasioned by retroactive award. Reasons for the Recipient Parent’s Delay in Seeking Child Support [9] Paragraph 102 of D.B.S. reads as follows:– 102 Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two importantconcerns. The first is the payor parent's interest in certainty. Generally, where the delay is attributable to unreasonableness on the part ofthe recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling.

Notably,the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who[page277] informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, willhave gone a long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In

this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel thathis/her obligations have been met. [10] Within eight months of the increased earnings, the Respondent deposes that he disclosed to the Applicant that he was earningmore income. The Applicant married some years ago, and has developed a support system through her husband and his family.

It issubmitted that there have never been any allegations of intimidation or threats that would have prevented the Applicant from bringing anapplication earlier, and that the Applicant was also in a good financial position, and had the emotional means to bring the application. [11] Although the Applicant now complains that the Respondent increased his support payments at a level substantially lowerthen that required under the Guidelines, and that the child has the right to appropriate support, it is submitted that the Applicanteffectively lead the Respondent to believe that he was meeting his child support obligations. [12] As for the Respondent’s late disclosure of his increased income, nothing in the 1997 or 2002 Court Orders mandated adisclosure of financial or tax information on a regular basis.

Conduct of the Payor Parent [13] Paragraph 109 of D.B.S. reads as follows:– 109 Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award. A court should thusconsider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, a payor parent whocontributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly.

I am notsuggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not forthe payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle: see Haisman v.Haisman (1994), 1994 ABCA 249 , 22 Alta. L.R. (3d) 56 (C.A.), at paras. 79-80.

But having regard to all the circumstances,where it appears to a court that [page280] the payor parent has contributed to his/her child's support in a way that satisfied his/herobligation, no retroactive support award should be ordered. [14] Although the Respondent deposes that he voluntarily disclosed that he was earning more income and then engaged indiscussions with the Applicant previously described, the Applicant deposes she has no recollection of this conversation or agreement.The Applicant’s position is that whatever extra payments towards the child’s expenses were made were done so voluntarily as a gift, andnot as child support. [15] Some of the expenses paid by the Respondent latterly for ballet and dance classes amounted to several thousand dollars. [16] The history of the child support Orders in this matter is also relevant.

In May 1997, the Respondent consented to an Order forchild support of $200 per month at a time when he was a student and making $7,000 a year. In August 2002 an Order was madeincreasing child support to $220 a month while the Respondent was an apprentice and part-time employee at a restaurant making$25,000 a year. [17] In July 2010 the Child Support Recalculation Program (Alberta) increased the child support to $255 a month based on a 25%increase of his income pursuant to

Section 55.51 of the Family Law Act, R.S.A. 2003, c. F-4.5. In December 2010, the Respondentconsented to a child support Variation Order increasing the child support payable to $720 a month in addition to paying his proportionateshare (65%) of reasonable

Section 7 expenses based on his Guideline income of $82,000 a year. [18] As of November 30, 2010, all of the Respondent’s child support payments have been made and there are no arrears. Howeverthe December 17, 2010 Variation Order did not get registered with Maintenance Enforcement until January 13, 2011, as a result of whichlate registration, Maintenance Enforcement did not withdraw the full amounts from his account for December 2010 and January 2011,leaving him in a small amount of arrears. The Respondent deposes that he has contacted Maintenance Enforcement and that he has until

March 31, 2011 to pay the $918 arrears. [ 19 ] Accordingly the conduct of the payor parent can mitigate against a retroactive award for instance where the payor parent has contributed for expenses beyond his statutory obligation, therefore meeting his increased support obligations indirectly. [ 20 ] The Respondent submits based on his Affidavit of January 31, 2011 listing his monthly budget, assets and liabilities, that he has been facing a monthly deficit so he has made no personal gain throughout the period of time the retroactive support is being claimed.

Circumstances of the Child [ 21 ] The Respondent argues that the child would not suffer any hardship as a result of the Respondent ’ s underpayment. It is submitted that the child enjoys an excellent standard of living throughout the past three years which is evidenced by the very high caliber of dance courses that the child has been involved in since she was 3 years of age, in addition to her gymnastics, swimming, tae kwon do, and various other activities.

We also know that the child has participated in school activities and field trips to Quebec and Ontario. [ 22 ] In reply the Applicant submits that a retroactive award would be utilized to pay back family members ’ the significant amount of money that had been borrowed to enable the child to pursue her talents and interests. The Respondent argues that this however would result in the child herself receiving no discernible benefit. [ 23 ] Paragraph 95 of D.B.S. reads as follows: – 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.

Hardship Occasioned by the Retroactive Award [ 24 ] The Respondent argues that given his deficit financial situation any retroactive award would be crippling, and furthermore would reduce his ability to pay ongoing child support obligations. The Respondent has no savings, and has been trying to pay down his debt. He has no retirement savings either and no liquid assets available for sale. The Respondent says he lives a modest lifestyle and drives a 2007 Kia Spectra Five car valued at less then $8,000.

His previous financial difficulties result in his present poor credit, and it is submitted that he is not likely to be able to obtain any loans from reputable lending institutions. A retroactive child support Order would also even render him unable to pay his mortgage theoretically, and given that his house has a negative equity situation, would leave him homeless.

Essentially the Respondent paints a picture of his finances as that of a person near bankruptcy for the majority of his adult life, and it is submitted that he would therefore suffer undue hardship as a consequence of any retroactive award. [ 25 ] Section 10(1) of the Federal Child Support Guidelines reads as follows: – 10(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

[ 26 ] Hardship under Section 10(1) of the Guidelines involves amongst other things a comparison of the household standards of living test.

The Applicant would have a ratio of between 4.23 if no retroactive support was granted to 4.73 if full retroactive support of $13,555 was taken into account; while the Respondent would have a ratio of 3.54 if the retroactive award was made. [ 27 ] Pursuant to Section 10(3) of the Guidelines the Respondent, who is claiming undue hardship, would not after determining the amount of the retroactive child support award have a higher standard of living than the household of the Applicant. [ 28 ] As for the circumstances causing the hardship, the Respondent described them as follows in paragraphs 9 to 15 of his Affidavit: – 9.

From 1997 to 1999, I attended and graduated from the Radio and Television Arts Program at NAIT. I incurred considerable debt, approximately $3,000.00, while attending NAIT and afterwards as work in the field was sporadic and sparse. I had secured part-time employment with ITV; however, I was laid off when Global acquired the station and was unable to find alternate work in the field. At this point my debt load grew to approximately $20,000.00. 10. In 2001 started a sprinkler systems apprenticeship and made $13.50 per hour on a part-time basis. 11.

In 2003 I became a second year apprentice and made $16.20 per hour on a part-time basis. 12. In 2006 I achieved the status of a third year apprentice; however, I never made any income at this level as I was still at the rate of a second year apprentice due to administrative matters and a quick return to school. 13. In 2007 I received the status of a fourth year apprentice and within 5 months I completed my apprenticeship and was employed as a journeyman sprinkler systems installer. 14.

Becoming skilled in this trade, although it eventually assisted me in earning a living caused me to go further into debt as remuneration was low and the work inconsistent. 15. Although my income increased in 2008, I did not experience an increase in cash flow as I was attempting to pay off the high levels of debt incurred to gain this training. [ 29 ] It is submitted that the high level of debt resulted from the Respondent pursuing the training required for his career path which ultimately resulted in more debt and return to school to acquire yet another new trade or skill.

It is submitted that it was through no fault of the Respondent that he could not have foreseen that his Certificate from NAIT in Radio and Television Arts would result in no full-time employment. Conclusion - Retroactive Child Support [ 30 ] The operation of Section 10(2)(

a) of the Guidelines exists to ensure that not only should a child benefit from the increased income of a payroll parent, but that they should also share in the burden of the debt incurred to secured a higher income from which child support is paid. In this matter is the debt incurred by the Respondent solely attributable to earning an income, or is it debt attributable to lifestyle decisions that would negatively affect the Respondent ’ s household income. I conclude that it is the latter, and was not in any way related to supporting his child. [ 31 ] These parties cohabited from September 1994 to March 1995. The Respondent moved out when the Applicant was three

months pregnant. These parties were never married, and there is one child of the relationship presently 15 ½ years of age. [ 32 ] In May 1997 this Court issued an Order for child support in the amount of $200 a month. In August 2002 an Order to vary child support to $220 a month was issued. The Applicant made an application to the Maintenance Enforcement Recalculation Program in the Spring of 2010 which resulted in support payments increasing to $255 a month based on a 25% increase in income from 2002, effective September 1, 2010.

Child support payments were only increased to $720 a month effective December 1, 2010. [ 33 ] Since the child was born in 1995, the mother has had a rather difficult time supporting the child and earning a livelihood. The mother did not receive her high school diploma until June 1996, nine months after the child was born. She needed help and support from her family to raise the child.

Although she is not married, she did spend a period of 13 years before securing full-time employment with Government in January 2008 earning a combined yearly income of approximately $47,000. [ 34 ] However in the Spring of 2008, she was admitted to hospital for the treatment of depression and a severe eating disorder. She worked only sporadically and for short periods of time in 2009 as she became very ill and required several hospitalizations.

She did not work at all during 2010 and is currently on long term disability from one of her Government jobs, and receives a CPP disability allowance. [ 35 ] While it is correct that the wife has now married and has a stable family life, her situation has been very difficult throughout much of her life.

As a result of her medical problems from 2008 to the present, she has not been able to work and she has been severely ill at times, all of which has had a crippling affect on her household finances. [ 36 ] Notwithstanding the Respondent ’ s long list of challenges and difficulties previously described, recently it appears that the Respondent failed to appear for a child resolution meeting

schedule on November 3, 2010, and there was great difficulty serving him with the Court proceedings that eventually did take place in December 2010. An Ex Parte Order for substitutional service was eventually granted to allow the application to vary child support to proceed. [ 37 ] One of the key issues in this matter is that the Applicant has no recollection of ever making any verbal agreements of any kind with the Respondent, and we know that no written agreements exist.

Accordingly unless some form of retroactive child support is ordered in this matter, the Applicant will suffer to her financial detriment the absence of proper child support based on the Respondent ’ s alleged recollection of an event he cannot conclusively establish, and which was largely to his benefit. [ 38 ] A retroactive child support Order would also allow the Applicant to pay back the family members with respect to some of the money that was borrowed to ensure that the child would be able to pursue her considerable talents and interests. [ 39 ] I conclude that while the issue of child support was probably discussed between the parents in September 2008, but nothing concrete transpired from those discussions.

Furthermore given what has transpired since September 2008 in the Applicant ’ s personal situation and with her serious health issues, it is understandable (especially since she could not afford a lawyer) that she did not manage to take any effective steps to have full child support payable until late in 2010. [ 40 ] I further conclude based on the Applicant ’ s Affidavit that while the Respondent ’ s financial situation is relatively modest, his financial resources are likely not nearly as limited as he claims. [ 41 ] As such I conclude that even in accordance with the Respondent ’ s own evidence, retroactive child support is payable from September 1, 2008 (the date of those discussions between the parties) based on his increased income, even though final effective formal notice from the Applicant did not occur until July 2010 when the Respondent received the decision of the Child Support Recalculation Program.

Conclusion -

Section 7 Extraordinary Expenses

[ 42 ] The Applicant has applied for retroactive and prospective extraordinary

Section 7 expenses for the 15 ½ year old daughter of the relationship. The Applicant specifically seeks the Respondent ’ s proportionate share for retroactive extraordinary

Section 7 expenses for the child with respect to a school trip taken to Quebec and Ottawa as part of her French Immersion studies. There is also a pending Spring Break European trip that will take place next month, which based on 14 students participating would cost approximately $4,000. The cost of the trip to Ottawa and Quebec was approximately $2,000. [ 43 ] The Respondent submits that it is obvious that the Applicant could not afford the child ’ s school trip to Ottawa and Quebec, yet insisted that the child go.

This the Respondent submits demonstrates that the Applicant did not fulfil her parental duty to instill responsible spending and proper budgeting in her child. It is further submitted that if one parent is going to enroll their child in extracurricular activities, without first consulting the other parent and obtaining his consent which is what occurred in this case, then that parent shall be solely responsible for the expense.

Unilaterally enrolling the daughter in various expensive activities should result in the Applicant unilaterally being responsible for the expenses of such activities. [ 44 ] The Applicant has the onus of proving that the expense of the Ottawa/Quebec trip, as well as the pending European trip during Spring Break 2011, are both necessary to the child ’ s best interests and reasonable having regard to the means of the parents. The existence of the expense does not create the automatic right for contribution by the other parent as the onus to satisfy

Section 7 of the Guidelines rests with the parent claiming such expense. [ 45 ] The Respondent submits that neither party in this matter has the funds available to send the child on these trips, and that these trips are not necessary for the child ’ s best interests. [ 46 ] I conclude however that Respondent is responsible for his proportionate share of retroactive extraordinary

Section 7 expenses for the child ’ s school trip to Quebec and Ottawa as that was legitimately part of the child ’ s French Immersion studies, was in the child ’ s best interest, and was reasonable given the financial circumstances of the parties. The child would have faced being humiliated from her classmates due a lack of financial resources if the child did not attend, and the child clearly benefited from this school trip. [ 47 ] With respect to ongoing extraordinary

Section 7 expenses with respect to the planned Spring Break European trip in 2011, I conclude that this would not be an appropriate

Section 7 expense of the child. International travel of this nature is of necessity considerably more expensive then travel within the country, and it is beyond the means and financial circumstances of these parties at this time. I also conclude that there is no similar direct benefit to the child from such trips, and given that there is limited participation by the child ’ s classmates given that there are only 14 students participating to date, the child would not be subject to any undue humiliation from her peers due to the lack of financial resources. I conclude that the European trip for this child could be considered somewhat extravagant for the purposes of

Section 7 extraordinary expenses. Heard on the 22 nd day of February, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of March, 2011. Donald Lee J.C.Q.B.A.

Appearances: Leissa Dale Apostal (Nixon) Appeared On Her Own Behalf Joanna Davidoff, Student-At-Law Jomha Law Office for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr.

Justice Donald Lee _______________________________________________________ Please note that paragraphs [5] and [30] have been corrected to read as follows: [5] The Applicant ’ s current annual Guideline income is approximately $44,000 [2007: $27,129; 2008: $46,871; 2009: $43,758] consisting of long term employer disability and Canada Pension long term disability payments. Her current annual household income is approximately $114,000. The Respondent ’ s current annual Guideline and annual household income is approximately $82,000.

It is submitted that if a retroactive award is granted, the Respondent ’ s standard of living will be below that of the Applicant. Conclusion - Retroactive Child Support [30] The operation of Section 10(2)(

a) of the Guidelines exists to ensure that not only should a child benefit from the increased income of a payroll parent, but that they should also share in the burden of the debt incurred to secured a higher income from which child support is paid. In this matter is the debt incurred by the Respondent solely attributable to earning an income, or is it debt attributable to lifestyle decisions that would negatively affect the Respondent ’ s household income. I conclude that it is the latter, and was not in any way related to supporting his child.