Cammarata v. Cammarata, 2011 ABQB 391

Court of Queen ’ s Bench of Alberta Citation: Cammarata v. Cammarata, 2011 ABQB 391 Date: 20110622 Docket: 4803 125207 Registry: Edmonton Between: Kathleen Frances Cammarata Plaintiff(Respondent) - and - Salvatore Andreas Cammarata Defendant(Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking his unemployment, Mr. Cammarata asks for a 6 month suspension, commencing June 1, 2011, of child support payments and for an order requiring the mother to provide proof of all s. 7 expenses for the last three years. [ 2 ] The suspension is granted; an order requiring Ms. Cammarata to prove s. 7 expenses for the last 3 years is denied. [ 3 ] Mr. Cammarata is entitled to a suspension because he is involuntarily unemployed and actively looking for employment; his

history - which includes the salient fact that he has continued to pay child support despite being unemployed since February 2010 - establishes that he is not attempting to avoid child support payments. By November 15, 2011, each of the parties will provide to the other pay stubs for the period September 15, 2011 to November 1, 2011, with a view to allowing them to reach agreement about base line support in time for the resumption of child support payments on December 1, 2011. If no agreement is reached, Mr.

Cammarata will bring an application by November 30, 2011 for the court’s determination of ongoing support. [ 4 ] Mr. Cammarata is, of course, entitled to input with respect to s. 7 expenses.. However, the divorce judgment in 2003 set amounts for s. 7 expenses. Although there appears to have been some discussion between the parties in 2009 concerning various aspects of child support, those discussions did not produce either a new agreement or an application to the court. This court application is Mr. Cammarata’s first indication to the custodial parent of a desire to adjust s. 7 expenses. It would be unfair to Ms.

Cammarata to impose a retroactive obligation upon her to establish that expenses were incurred and that they were, in law, s. 7 expenses. On an ongoing basis, however, from the time Mr. Cammarata’s obligation to pay child support resumes on December 1, 2011, and every year thereafter, Ms. Cammarata will provide Mr. Cammarata with receipts by July 15 for the period January 1 to June 30 and by January 15 for the period July 1 to December 31 for all claimed s. 7 expenses. If Mr.

Cammarata contests any of the s. 7 expenses, he will then bring an application by August 15 or February 15 to have the court determine the s. 7 expenses. [ 5 ] Because success on the application has been divided, the court orders Mr. Cammarata to prepare the resulting formal order. 1. Background [ 6 ] The parties are the parents of two children. The parties were divorced in 2003 at a time when Ms. Cammarata’s income was $83,000.00 and Mr. Cammarata’s income was $47,000.00.

The divorce judgment, issued when each of the parties was represented, imposed child support obligations, including a table amount and a proportionate share of s. 7 expenses, on Mr. Cammarata based on the respective incomes of the parties. The s. 7 expenses were only described by category: child care expenses of $8,285.00, school expenses of $1,500.00, and extracurricular activities of $2,970.00. In

summary, Mr. Cammarata was required to pay $662.00 per month as the table amount and an additional $384.00 per month for s. 7 expenses. At the time of the divorce judgment, the parties’ children were 6 and 4 ½ . [ 7 ] Mr. Cammarata has made all of the payments as required under the judgment. [ 8 ] In 2009, the parties had discussions about various aspects of child support, but they did not reach a new agreement, and neither one brought an application to vary the existing judgment. [ 9 ] In February, 2010, Mr. Cammarata severely injured his right wrist.

In a letter sent in June 2010, one of his physicians stated that Mr. Cammarata was unable to work because of his right wrist problem, given that Mr. Cammarata was right hand dominant, while he was being treated for a “very serious bony and soft tissue injury to the right wrist as well as a secondary infection and soft tissue coverage issue”. The injury required repeated medical attention, including hospitalization and surgeries. [ 10 ] Also in February, 2010, Mr.

Cammarata was fired from his position as executive director of a not-for-profit sports community organization having a strong relationship with municipal and provincial governments. Mr. Cammarata had worked in that field for approximately 10 years, although his university degree was a Bachelor of Science in Mathematics and although he did work for some time after graduation in the financial sector. Mr. Cammarata is suing his former employer for wrongful dismissal; those proceedings have not yet reached the questioning stage. [ 11 ] Mr.

Cammarata received EI for approximately 15 weeks following the termination of his employment. [ 12 ] During 2010, Mr. Cammarata cashed in approximately $16,000.00 in RRSP holdings for expenses including child care obligations. [ 13 ] Beginning in November 2010 when the problems with his wrist improved, Mr. Cammarata began seeking alternate employment. The positions he applied for could generally be described as similar to the one which he had left in that they were for

executive director or senior management responsibilities in not-for-profit organizations. [ 14 ] In February 2011, perhaps as a result of a Child Support Resolution Meeting, Alberta MEP advised Ms. Cammarata that they were reducing the s. 7 expenses she claimed from Mr. Cammarata from $384.00 per month to $134.97 per month, effective October 1, 2010. It is not clear from that letter how the adjustment was made, for example, whether all extracurricular expenses were deemed to be extraordinary extracurricular expenses within the meaning of the s. 7(1)(

f) of the Guidelines and whether bus passes and school supplies were also considered by MEP to be extraordinary education expenses as required by s. 7(1)(

d) of the Guidelines. 2. Suspension of Child Support Obligations [ 15 ] No income should be imputed to Mr. Cammarata at this time; rather, Mr. Cammarata is entitled to a 6 month suspension of child support obligations commencing June 1, 2011. [ 16 ] Ms. Cammarata argues that her former husband has been too selective in his job search and that income should be imputed to him. Naturally, a court is entitled to impute income to a person with child support obligations.

In Alberta, the law is clear: such imputation can only be made if the court is satisfied that the support debtor is unemployed or underemployed with a view to evading child support obligations. Parenthetically, I have been interested to note that while there appeared at one time to be a great divergence between Alberta case law on this issue and the case law in other provinces, current decisions in other provinces appear now to come to the same result from a slightly different perspective, i.e. that the support debtor can show that their unemployment or underemployment is reasonable.

Those two forms of analysis in reality achieve the same objective: is the court satisfied that the support debtor parent is behaving reasonably in all the circumstances, including the obligation of that parent for child support. [ 17 ] Mr. Cammarata has met the burden of establishing that, at this time, he is not deliberately unemployed, but that he is, on the contrary, actively seeking employment. Ms. Cammarata’s position is not borne out by the evidence. Mr. Cammarata has made ongoing, serious, efforts at obtaining employment in the general field in which he has the most recent experience.

It is true that there are perhaps more job openings available in the financial sector generally than for executive director type positions of not-for-profit community organizations. Nevertheless, it is reasonable for a manager to attempt to find employment in the field in which that person has operated during the last decade rather than to attempt to go back to a field which may have changed considerably from the time they were last employed in it. If Mr. Cammarata’s efforts continue to be unsuccessful, he may have to reconsider his objectives.

However, given that he has only had, effectively, approximately 6 months in which to find new employment after his health made employment possible, one cannot say that his current objective is unrealistic. Indeed, it will be to his, and his children’s, benefit if he can maintain, or even advance, from the position he held at the time of his termination. [ 18 ] A very strong argument against Ms. Cammarata’s position that her former husband is deliberately unemployed with a view to evading child support obligations is Mr.

Cammarata’s continued payment of child support obligations since February 2010, even though he has had no employment since that time. [ 19 ] In order to try to ensure a seamless return to child support by Mr. Cammarata, by November 15, 2011, each of the parties will provide to the other pay stubs for the period September 15, 2011 to November 1, 2011, with a view to allowing them to reach agreement about base line support. If no agreement is reached, Mr. Cammarata will bring an application by November 30, 2011 for the court’s determination of support.

In order for the fair establishment of ongoing child support, beyond December 1, 2011, in every year hereafter while either of the parties’ children remains a “child of the marriage” for child support purposes, each of the parties will provide to the other by July 15 in every year a copy of their income tax information for the previous year, including their filing, and any notices of assessment or reassessment.

Section 7 expenses will be dealt with differently, as set out hereunder.

Section 7 Expenses [ 20 ] Mr. Cammarata’s request for an order requiring Ms. Cammarata to prove s. 7 expenses for the last 3 years is denied. [ 21 ] A court could, of course, make a retroactive order of child support, including a retroactive order with respect to s. 7 expenses. However, a court will only do so when, in all the circumstances, such an order is fair.

[ 22 ] As to the kind of s. 7 expenses which have been allowed, it may well be that Mr. Cammarata has a good position according to the Guidelines. Clearly, not all school expenses and extracurricular expenses are s. 7 expenses; only those that are both “extraordinary” and reasonable qualify.

Given the parties’ income, it may well be that none of the expenses related to school and extracurricular activities are truly s. 7 expenses. [ 23 ] However, that is not the only factor which the court must take into account in determining whether it will grant the order requested. [ 24 ] In considering what is fair in this case, I note the following: - the only previous order of the court is one with respect to which each of the parties was represented and which set a monetary amount for s. 7 expenses and set the proportion in which each of the parties would pay for those expenses; - s. 7 expenses are only one aspect of child support.

It would be unfair to adjust s. 7 expenses without also inquiring into the need to adjust table amounts; - it appears that, since the divorce in 2003, both Mr. and Ms. Cammarata have earned considerably more on a yearly basis than they did at the time of the divorce. However, a retroactive adjustment of table amounts to require Mr. Cammarata to pay more would also presumably be offset by the fact that Mr. Cammarata has earned no income since February 2010.

Where there is no request by either parent for a retroactive assessment of table amounts, the court has no role in inserting itself in the relationship between the parents; - as opposed to income records, which are necessary for income tax purposes as well as child support purposes, and therefore available from both the tax filer and from the government years after filing, a parent who has no notice of a claim in relation to s. 7 expenses might have no reason to maintain records of s. 7 expenses.

It would be unfair to claw back payments which had been both made and claimed in good faith; - there may be a legal issue about the effect of a Child Support Resolution Office determination of s. 7 expenses. For example, it may be that a parent effectively has an election about whether they come to court for a determination of expenses or go to the Dispute Resolution Office but that if they choose the latter, then they are bound by the decision made by the Collection Officer unless they are successful in overturning that Officer’s decision on judicial review.

However, since neither of these parties is represented, they are unable to effectively assist the court in assessing its jurisdiction in this matter. [ 25 ] In the result, I have concluded that it would not be appropriate to make a retroactive order relating to s. 7 expenses. As to the future, from the time Mr. Cammarata’s obligation to pay child support resumes on December 1, 2011, and every year thereafter, Ms. Cammarata will provide Mr. Cammarata with receipts by July 15 for the period January 1 to June 30 and by January 15 for the period July 1 to December 31 for all claimed s. 7 expenses. If Mr.

Cammarata contests any of the s. 7 expenses, he will then bring an application by August 15 or February 15 to have the court determine the s. 7 expenses. 4. Responsibility for preparing the order [ 26 ] There has been divided success on this application. The court must therefore determine which of the parties must prepare the formal order resulting from the within decision. The court determines that Mr. Cammarata must prepare the order. Given that this is a family law application in which both parties were unrepresented, I advise Mr.

Cammarata that the FLIC at the courthouse will help him to prepare that order. 5. Costs

[ 27 ] Success has been divided; therefore, each of the parties will bear their own costs of this application. Heard on the 16 th day of June, 2011. Dated at the City of Edmonton, Alberta this day 21 st day of June, 2011. J.B. Veit J.C.Q.B.A. Appearances: Salvatore Cammarata On his own behalf Kathleen Cammarata On her own behalf