N.M.O. v. R.D.O., 2011 ABQB 349

Court of Queen ’ s Bench of Alberta Citation: N.M.O. v. R.D.O., 2011 ABQB 349 Date: 20110601 Docket: 4808 010584 Registry: Medicine Hat Between: N.M.O. Plaintiff - and - R.D.O. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ Introduction [ 1 ] This case is about retroactive child support including

section 7 expenses. History [ 2 ] The parties were married on March 2, 1985, separated on April 14, 2007, and divorced May 20, 2010.

[ 3 ] There is one child of the marriage, D.J.O., born March 10, 1993. Issues [ 4 ] Counsel have presented the following issues:

a) Should retroactive support be awarded?;

b) If so, to what date?;

c) Why?; and

d) In what amount?

Summary of Arguments [ 5 ] The Plaintiff argues that child support is the responsibility of the Defendant, that he knew about it from the time the parties separated, and that the Defendant should pay all past due amounts as follows: 2007 $6,651.00 2008 $8,376.00 2009 $7,150.00 $22,177.00 [ 6 ] The Plaintiff’s claim to $22,177.00 would represent payment of child support from December 2009, when the Defendant started paying support, retroactive to the date of separation. [ 7 ] The Plaintiff claims to be entitled to this amount because she has not delayed in seeking child support and the Defendant has engaged in blameworthy conduct for failing to pay support - until he was found in contempt in December 2009 for failing to provide financial disclosure. [ 8 ] The Defendant argues that he has effectively paid child support all along, based upon his post-separation payments made on a line of credit until Spring 2010, arguing that these payments clearly contributed to support of the parties’ daughter.

Alternatively, he argues that the parties’ daughter is no longer a child of the marriage, having turned 18 as of March, 2011. [ 9 ] The Defendant also notes that the parties’ daughter left her mother’s care for 5 months, thus claiming no support should be paid for her in that period in any event.

[ 10 ] Finally, the Defendant claims that he has not engaged in blameworthy conduct. He claims to have provided his financial disclosure to his then-lawyer who failed to deliver it to the Plaintiff. He also claims that not all relevant Court Orders were received by him and that this can explain his failure to disclose, which ultimately resulted in his being found in contempt. In support of these claims, the Defendant points to the evidence showing that from December 2009 onward he has made all support payments.

Analysis [ 11 ] There are some key dates relevant to the determination of the issues: Question Answer a. When did the child turn 18? March, 2011 [1] b. When was the application for retroactive support filed? September 10, 2010 [2] c. When was the first Notice to Disclose filed? June 25, 2008 [3] d. Any other requests for child support? Yes; June 25, 2008 [4] e. When did child support formally begin? December 1, 2009 [5] [ 12 ] To better understand how child support became formalized, it is helpful to note three important Orders of the Court: Miller, J. January 22, 2009; Lutz, J. November 12, 2009; and McMahon, J.

December 10, 2009. The details of these Orders include: Justice Miller: The Defendant shall produce the required documents of financial disclosure as set out in the Notice to Disclosed filed June 25 th , 2008 and served upon him on June 27 th , 2008. The Defendant shall provide this financial disclosure by no later than the close of business on January 29 th , 2009, failing which the Defendant shall personally appear in Chambers on Thursday, February 5 th , 2009 and show cause why he should not be held in contempt of court.

Justice Lutz: The Defendant shall produce the required documents of financial disclosure as set out in the Notice to Disclose / Notice filed herein and provide the financial disclosure to the Plaintiff’s solicitor, Stringam Denecky #104 - 140 Maple Avenue S.E., Medicine Hat, Alberta, T1A 8C1 by December 3, 2009; If the above information is not provided to counsel for the Plaintiff by December 3, 2009, then the Defendant shall appear personally before this Honourable Court on December 10, 2009 to show cause as to why he should not be held in contempt

Justice McMahon: The Defendant is in contempt of the Order granted by Justice A.M.

Lutz granted on November 12, 2009; The Courts have imputed income to the Defendant in the amount of $75,000.00 per year; The Defendant shall pay to the Plaintiff child support based on the imputed income of $75,000.00 for the child of the marriage, andpursuant to the Federal Child Support Guidelines in the amount of $658.00 per month commencing on December 1, 2009 and continuingeach and every month thereafter until further order of this Honourable Court; That the Defendant shall pay to the Plaintiff costs of this application in the amount of $500.00 Jurisdiction To Make An Award [13] The Court must have the jurisdiction to make an award of retroactive child support.

The Court will not have jurisdiction to doso where the child is no longer a ‘child of the marriage’ at the date of the application: 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 at para. 89 [D.B.S.]. [14] Counsel for the Defendant referred me to Chartier v. Chartier, (SCC), [1999] 1 S.C.R. 242 at paras. 33-36and argued that the Supreme Court of Canada ruled that the time of the commencement of the proceedings is not the appropriate time todetermine whether the child is a ‘child of the marriage’.

The ruling in Chartier, as to timing, had to do with when someone is to be foundto be standing in the place of a parent: see para. 36. With respect, different considerations apply when dealing with retroactive childsupport and the Court in D.B.S. ruled that the relevant date is the date of the application: D.B.S. at para. 89. [15] Being that the parties’ daughter was not yet 18 at the time of last year’s application, I have jurisdiction to make a retroactivechild support award.

In any event, if I am wrong, the Plaintiff served the Defendant a Notice to Disclose prior to the parties’ daughter turning 18 and this was held to be sufficient to grant the Court jurisdiction in D.B.S. at para. 150.[6] How Far should the Order Reach? [16] But how far, retroactively, should the Order reach?

To answer this, I should first say, as did the Supreme Court of Canada,that “retroactive” is a misnomer; all things being equal, the obligation existed and should have been paid: D.B.S. at para. 68. [17] Since I have found the child to be “a child” by law at the time of the application, how far back should the Court reach todetermine the amount? On the one hand, there is a general rule not to go too far back, limiting the Order to 3 years back from formalnotice.

The reason being that there is a balancing act between certainty and flexibility, deemed in this case to be three years prior to theapplication, or September, 2007: D.B.S. at para. 123. [18] Generally to get beyond the three years there needs to be some blameworthy conduct on the part of the payor parent. It wouldbe easy to believe, as I do, that not paying child support until ordered to do so accompanied by contempt, boils the blameworthinessrepercussion to the surface.

Particularly when it appears (at least in argument) that the Plaintiff’s prior Counsel previously sent a letter tothe Defendant in June 2007 proposing he pay child support. While that June 2007 demand has not been properly placed before the Courtin evidence, I believe the Plaintiff did what she could to get child support payments, at least through her persistence in seeking financialdisclosure. On that point, she did what she could. [19] I do not find the Defendant’s claims that he did not receive copies of Court Orders made against him credible.

He claims notto have received Justice Lutz’s November 2009 Order or Justice Miller’s Order of January 22, 2009. The Defendant knew he had to pay

but did not do so until finally having been found in contempt, after the Plaintiff’s several attempts to get him to pay support. [ 20 ] We know the Defendant believed his contributions to the line of credit secured by the home were in lieu of child support payments. I know that’s what he thought he was doing but legally, he was incorrect.

Such payments were made against matrimonial debt and while there may be a case that such payments toward the family unit could be in lieu of or a form of de facto guideline payments, that case would need unassailable documented evidence linking the payments strongly and directly to the child, who is the subject of support obligations.

That is not the case here. [ 21 ] Notwithstanding the above, I have some difficulty reaching back much before September 2007 because the focus of blameworthiness is whether the conduct “...privileges the payor parent’s own interests over his/her children and right to an appropriate amount of support”: D.B.S. at para. 106 . His conduct or delay was wrong but there is no evidence that he intentionally hid his income or used intimidation or deceit. The Defendant did, however, ignore several of the Plaintiff’s requests for disclosure against which she could know the real amounts for child support.

And there is some evidence that not all of the disclosure is known even to this day, on top of which I believe and so find that the Defendant began paying child support only at the direction of a Contempt Order. [ 22 ] For the above reasons, the retroactive support extends beyond the three years, but just by a few months.

Instead of beginning the payments at the time of separation (April 2007), I impute the date to be June 2007 with the payment to begin the next month, or July 1, 2007. [ 23 ] I also find the Defendant should not have to pay child support for 5 months in 2009, and that corresponds to the period of time when the parties’ daughter was with neither parent. Conclusion [ 24 ] The Defendant’s child support obligations are as follows: 2007 $739.00 X 6 months = $4,434.00 2008 $678.00 X 12 months = $8,376.00 2009 $650.00 X 6 months = $3,900.00 Total $16,710.00 [ 25 ] The Defendant’s

section 7 expense obligations as per my calculation of his proportionate share and based on receipts and comments from both Counsel, is $1,795.31. [ 26 ] The total payable to the Plaintiff by the Defendant is $18,505.31. [ 27 ] Considering the burden that a one-time payment that large would have on the Defendant, who has been current on all post- December 2009 child support payments, I have decided that the $18,505.31 is to be paid as a credit in favour of the Plaintiff’s division of matrimonial property.

I say this because of the potential hardship but also due to the helpful suggestions of both Counsel, and the fact that there appears to be sufficient properly to satisfy the Defendant’s obligations through such a credit. Costs

[ 28 ] The Plaintiff shall have her party-party costs, not solicitor-client costs as claimed. [ 29 ] If the parties are unable to agree as to costs they may make a further application to me. Heard on the 12 th day of May, 2011. Dated at the City of Calgary, Alberta this 25 th day of May, 2011. W.A. Tilleman J.C.Q.B.A. Appearances: John D. Evans for the Plaintiff Genevieve Magnan for the Defendant [1] Affidavit of the Plaintiff, tab 2, para. 3. [2] Tab 1 of the Plaintiff’s brief, and Plaintiff’s Notice of Motion. [3] Court file. [4] Statement of Claim. [5] Tab 1 of the Plaintiff’s brief; Plaintiff’s Affidavit; para. 8, Exhibit “C”. [6] See June 25, 2008 Notice to Disclose / Notice of Motion