Goodfellow v Hussey, 2011 ABQB 442

Court of Queen ’ s Bench of Alberta Citation: Goodfellow v Hussey, 2011 ABQB 442 Date: 20110708 Docket: 4803 120811 Registry: Edmonton Between: Jennifer Karen Goodfellow (Also Known As Jennifer Karen Hussey) Plaintiff - and - Wayne Arthur Hussey Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Background [ 1 ] This is an application by the Defendant husband to vary ongoing child support; to cancel arrears or to reduce the amount of arrears; and to set up a reasonable payment

schedule if arrears are found to be owing. The wife opposes the husband’s application, and applies to set ongoing and 2007 through 2010 child support. The wife submits that the husband’s imputed income for the purposes of child support for the years 2008, 2009, 2010 and on an ongoing basis at between $35,000 and $50,000 a year.

[ 2 ] The husband’s 2008, 2009, and 2010 line 150 income tax returns show that he received approximately $21,786 a year in military pension income. The husband was let go from his employment with the Canadian Military in 2007 after a 25 year career, as a result of serious diabetes, as well as back and knee problems that prevented him from continuing to serve in the military. He currently spends over $900 a year on medical expenses. [ 3 ] An Interim Consent Order was filed on November 2, 2009, but this November 2009 Consent Order had actually been consented to by the husband in 2006 when his income was $53,697.

It is not entirely clear why the Consent Order from 2006 was not entered until November 2, 2009 since the husband’s income has not been $53,697 since 2007 when he was released from the military. [ 4 ] There is a very lengthy procedural history in this case as described at paragraphs 5 through 37 of the wife’s Affidavit sworn on February 4, 2009 as follows:– 5. On May 7, 2001, I instructed my counsel to issue a Statement of Claim for Divorce and Division of Matrimonial Property. 6. On May 16, 2001, the Statement of Claim for Divorce and Division of Matrimonial Property was served on the Defendant. 7.

On June 4, 2001, the Defendant was noted in default. On July 23, 2001, the Defendant and I entered into a Separation Agreement and Minutes of Settlement addressing spousal support and matrimonial home. 8. Pursuant to Consent Order granted November 12, 2003, the Praecipe to Note in Default was set aside. The Defendant flied a Statement of Defence and Counterclaim for Divorce and Division of Matrimonial Property on November 17, 2003. 9. An application was brought by the Defendant on December 18, 2003 to address various issues, including access and primary care. An Order was granted by the Honourable Mr.

Justice E.S. Lefsrud dealing with Christmas access and directing that the balance of issues be adjourned to Special Family Law Chambers. 10. On June 10, 2004, the Defendant’s former counsel filed a Notice of Ceasing to Act. 11. Following a dispute over child support, I instructed my counsel to file and serve a Notice to Disclose Notice of Motion on April 28, 2005. 12. Disclosure was exchanged between the Defendant and I pursuant to the standard Notice to Disclose Notice of Motion. 13. In early 2006, 1 instructed my counsel to prepare an application to address retroactive and ongoing child support.

The Defendant subsequently retained counsel and brought a cross- application for access, parenting plan and severing the divorce from the corollary relief. 14. On Tuesday, May 23, 2006, my application and the Defendant’s application was heard in Special Family Law Chambers before the Honourable Mr. Justice Eric Macklin. 15. Attached hereto and marked as Exhibit “A” to this my Affidavit is a copy of the form of Order forwarded tp counsel for the Defendant on June 9, 2006. 16. My counsel requested a response to the form of Order on July 14,2006. I have been advised by my counsel and verily believe the

same to be true that no response was received. 17. My counsel requested a response to the form of Order on August 14, 2006. 1 have been advised by my counsel and verily believe the same to be true that no response was received. 18. I have been advised that my solicitor’s office telephoned the Defendant’s counsel but still no response was forthcoming. 19. My counsel again requested a response to the form of Order on October 13, 2006. I have been advised by my counsel and verily believe the same to be true that no response was received. 20.

My counsel again requested a response to the form of Order on November 3, 2006 or an application would be made to settle the minutes. I have been advised by my counsel and verily believe the same to be true that no response was received. 21. On November 15,2006, a letter was sent to counsel for the Defendant with dates and times for a hearing before Justice Macklin asking for a response for available dates by November 17, 2006 at close of business or date would simply be chosen. 22.

On November 20, 2006, the Defendant’s counsel finally responded and requested several revisions to the form of Order, which were made accordingly. The only two revisions I declined to agree to were the calculations for the Defendant’s child support arrears for 2002 wherein he disputed the amount of childcare I had claimed and his demand for a police enforcement clause. 23. An access issue arose on January 15,2007 which resulted in my having to threaten to bring a court application to obtain the Defendant’s consent to travel to Disneyland with the children in January, 2007.

At that time, my counsel advised the Defendant’s counsel that Clerk’s Notes from the May 23, 2006 Special Family Law Chambers hearing had been ordered in order to address the two revisions requested by the Defendant I did not agree with. 24. On February 12,2007, the Clerk’s Notes were provided to the Defendant’s counsel together with my response, attached hereto and marked as Exhibit “B” to this my Affidavit. 25. No response has been forthcoming from counsel at all. 1 have been advised that numerous telephone calls were made to the Defendant’s counsel which were not returned. 26.

In the beginning of November, 2007, my counsel’s assistant contacted to the Defendant’s counsel’s office to ascertain her available dates to attend before Justice Macklin. My counsel’s assistant was advised that the Defendant’s counsel had no contact information for her client. My counsel’s assistant then contacted me, obtained the necessary contact information and provided it by phone to the Defendant’s counsel’s assistant. [sic] 18. On November 18, 2007, a further letter was sent, asking if the Defendant’s counsel had been able to speak with her client. No response was received. 19.

On December 15, 2007, a further letter was sent, again, asking if the Defendant’s had been able to speak with her client. No response was received. 20. On March 29,2008, correspondence was sent to the Defendant’s counsel advising that if we did not have a response on or before April 2, 2008, we would have no choice but to contact the Law Society of Alberta. 21. The Defendant’s counsel then contacted my counsel on April 1, 2008 by telephone and left a message. My counsel has advised me that he returned her phone call and left a message.

22. My counsel again attempted to contact the Defendant’s counsel on April 23, 2008 but again, was forced to leave a message. [sic] 27. Attached hereto and marked as Exhibit “C” to this my Affidavit is correspondence to opposing counsel demanding a response again or available dates to attend before Justice Macklin. In that correspondence, opposing counsel was advised that if no response was received, the Law Society would be contacted. 28. Attached hereto and marked as Exhibit “D” to this my Affidavit is a copy of correspondence dated May 17, 2007 to Justice E. Macklin with enclosures. 29.

Attached hereto and marked as Exhibit “E” to this my Affidavit is correspondence from Justice E. Macklin dated May 17, 2007 to both my counsel and the Defendant’s counsel. 30. In August, 2007, following discussion between my counsel and the Defendant’s counsel it was agreed that the terms of the May 23, 2006 Order would simply be incorporated into a Divorce Judgment. Following further discussion, and in effort to simply settle this matter, I agreed to accept one-half of the claimed

section 7 arrears in 2002 for daycare expenses. Instead of $444.00, I agreed to accept $222.00. 31. On May 8, 2008 the desk divorce documentation was forwarded to counsel for the Defendant, a copy of which is attached hereto and marked as Exhibit “F” to this my Affidavit. 32. On August 14, 2008, after again receiving no response, a request was made that the documents be returned or I would take the necessary steps to note the Defendant in default. 33.

On August 22, 2008, a response was received from the office of counsel for the Defendant advising that she was away from the office and that they were attempting to get instructions from the Defendant. 34. Notwithstanding several efforts since August, 2008, no response has been forthcoming. My counsel has been advised on several occasions that the Defendant’s counsel is attempting to obtain his instructions regarding the draft desk divorce documents. 35. Seven (7) years have elapsed since our separation. Issues of property and spousal support have been dealt with.

The issues of custody, primary care, access, child support and retroactive child support were addressed on May 23, 2006, notwithstanding the Defendant’s refusal to approve the form of Order. 36. I have made significant effort and expended significant thuds in effort to finalize these proceedings. 37. The Defendant’s constant attempts at stalling and delaying these proceedings have made it impossible to move forward. The Defendant has failed to comply with the terms of the May, 2006 Order. He has not paid $100.00 per month towards arrears nor has he paid one-half of the arrears within the first year as directed.

The Defendant has paid minimal amounts towards his arrears and has unilaterally reduced his child support obligation. Analysis [ 5 ] These parties were married in May 1998 and there are two children of the marriage presently 10 and 11½ years of age. The

parties separated in April 2001.

The children reside primarily with the mother in British Columbia. [ 6 ] Although the mother acknowledges that the line 150 total income for the years 2008, 2009, and 2010 as being approximately $21,786 in each year from the Canadian Armed Forces Pension, she disputes the husband’s claims that he is precluded from further additional employment due to his diabetes, sore back and neck. [ 7 ] The husband’s position with respect to his child support obligations and arrears is depicted in Chart 1 of his Affidavit filed on March 23, 2011:– Chart 1 1. $4,967.50 credit for payment on arrears in 12 months.

Year Should Have Paid Per S.3 Income Charged By Maintenance Enforcement Program (MEP) 12 Months Difference 2007 $466.00 $32,151.00 $773.00 ($3,684.00) 2008 $340.00 $21,786.00 $773.00 ($5,196.00) 2009 $369.00 $24,131.00 $773.00 ($4,848.00) 2010 $340.00 $21,731.00 $773.00 ($5,316.00) 2011 x 3 months $340.00 $21,731.00 $773.00 ($1,329.00) “ Total Amount to Reduce Arrears ” $20,373.00 “ Total Arrears ” $25,340.50 [ 8 ] The husband proposes to vary the Interim Consent Order and set his arrears at $6,775, for which he will make $100 a month payments towards arrears plus his ongoing child maintenance based on his Guideline income of $21,786. [ 9 ] The husband did not receive a medical release from the Canadian Armed Forces and as such was not eligible for additional pension monies from Veteran Affairs for medical reasons.

This is evident from pages 13 and 14 of the Examination on Affidavit Transcript which reads as follows:– Q Have you investigated whether you would be eligible? A I did with the Veteran Affairs, but it came back that they needed a whole bunch of documentation, and at that time I was going through all this, so I never followed upon it.

Q What type of documentation? A Records of all my medical documents and stuff like that. I had to get that from Ottawa, which took six months for me to get that, which I finally got. Q Any other documents? A No. Q And after you received them you chose not to submit them? A Not at this time. There was a lot going on. Q Do you plan to submit them in the future? A Maybe in the future, yes. Q You say “there was a lot going on.” What is going on that would prohibit you from increasing your income, so that you could pay more child support for your children? A All of this is going on. The divorce proceeding.

Like I said, the thing with Veteran Affairs Canada is that when I went through - - it’s a very long process, and it’s going to take a number of years, because my case is low on their radar. They are dealing with guys that lost their legs in Afghanistan, so my priority is lower to them. Q But you have not even applied? A I did do some paperwork back in 2006. Q But haven’t followed up since that time? A When I was released from the military, my case went to Ottawa, and they were going to see if they were going to give me a medical release, and they did not. They just gave me a normal release.

Q So the fact that they did not give you a medical release, does that prohibit you from receiving anything further from Veteran Affairs? A That’s right. They said they didn’t cause diabetes. Q What about your knees and back? A I guess they say it’s not enough documentation to warrant medical attention. Q Has your condition of diabetes, your knees, and your back worsened since 2006? A My diabetes, yes. Q How has it worsened? A My blood sugars are very high. My normal range is supposed to be between five and seven. Some of mine go up to 31, and usually I hit that once a week.

When I hit those high numbers, I am out for the day. Plus I experience nausea, frequent urination, vomiting, fatigue, and blurred vision. And the side affects from my medication, I get an upset stomach all the time and fatigue and muscle tremors. Q Which medical caregivers are involved in your treatments for diabetes today? Conclusion [ 10 ] The issue of child support was last dealt with by this Court pursuant to the “Interim Consent Order” granted by my colleague Justice Smith on November 2, 2009, but that Order is substantially the same as an Order granted by Justice Macklin on May 19, 2006.

Pursuant to the terms of the Interim Consent Order, the husband was also required to pay

Section 3 child support in the sum of $773 per month commencing June 1, 2006, plus $282 per month being his proportionate share of

Section 7 expenses incurred on behalf of the children, specifically child care expenses and health care expenses. [ 11 ] The husband’s child support arrears as of May 31, 2006 were judged to be $9,935. With respect to those arrears, the husband was entitled to pay $100 a month starting from June 1, 2006 towards the arrears, for which he would receive half of the outstanding arrears credited to him within 12 months being $4,967.50. There has not yet been any credit to the husband of the $4,967.50 by

Maintenance Enforcement. [ 12 ] The Court concludes that the husband has severe diabetes, which requires him to take many washroom breaks.

I also conclude that he has very limited employment opportunities in his field given his grade 10 education, and given that he only has military experience working on large gun batteries which have little relevance to the civilian world. [ 13 ] However this is still a situation where the husband should be imputed income at a relatively modest $30,000 a year for the taxation years 2008, 2009, and 2010 as well as going forward since he can earn a minimum wage type of salary working near full-time, in addition to receiving his military pension.

The husband should also be notionally penalized somewhat for having failed to maximize his military pension. [ 14 ] For 2007 the husband’s Notice of Assessment for that taxation year shows line 150 total income of $57,674.

I conclude that $57,674 should be his Guideline income for 2007 on which he should have paid child support of $773 a month, since there was severance included on top of his regular salary in lieu of notice from the military, although it ended up in a locked RRSP. [ 15 ] Although the circumstances surrounding the Interim Consent Order dated November 2, 2009 are somewhat unclear, I also conclude that the husband also has $4,967 in arrears still outstanding from 2006 which must be added on to his present arrears of $5,772 based on $30,000 a year in imputed income for 2008, 2009, and 2010.

The Child Support Guideline calculations based on this imputed $30,000 annual income for those years and on a go forward basis reads as follows:–

Summary of Child Support Guideline Calculations (ongoing) Payor ’ s Name: Wayne Hussey Recipient ’ s Name: Jennifer Hussey Action Number: CHILDREN: Names (List youngest to oldest) Birthdate (Month/Day/Year) Residing with (for tax purposes) Payor Recipient Shared Custody Grant Hussey [...]/[...]/01 [] [X] [] Jordan Hussey [...]/[...] /99 [] [X] [] (Note: For each shared child, you must check off whether the child resides with Payor or Recipient for tax purposes) GUIDELINE CALCULATION Payor Recipient

Province of Residence AB AB Guideline Income $30,000 $48,622

Section 7 Special Expenses: NET ANNUAL amounts claimed by either party (Net of subsidies, benefits, income tax deductions, credits and any contribution by child): Net child care expenses Gross (pre-tax) annual amount: Payor: $0 Recipient: $4,068 Medical/Dental Premiums Net Health related expense Gross (pre-tax) annual amount: Payor: $0 Recipient: $0 Extraordinary School Expenses Net post secondary school expenses Extraordinary expenses for extracurricular $0 $0 $0 $0 $0 $0 $2,281 $702 $0 $0 $0 $0 Total net annual special expenses claimed by: $0 $2,983

SUMMARY: Payor Recipient

Section 3 Table Amount Payable by: $439 $0 Proportionate Share (%) of

Section 7 Expenses 38.16% 61.84% Monthly Share of

Section 7 Expenses Payable by: $95 $0 Total

Section 3 and

Section 7 Amounts Payable by: $534 $0 Net Monthly Guideline Amount Payable by: $534 $0 DEPARTING FROM GUIDELINES : YES NO X If departing, complete below: Different Amount: NA Reasons for Departing

Summary of Child Support Guideline Calculations

(2010) Payor ’ s Name: Wayne Hussey Recipient ’ s Name: Jennifer Hussey

Action Number: CHILDREN: Names (List youngest to oldest) Birthdate (Month/Day/Year) Residing with (for tax purposes) Payor Recipient Shared Custody Grant Hussey [...]/[...]/01 [] [X] [] Jordan Hussey [...]/[...]/99 [] [X] [] (Note: For each shared child, you must check off whether the child resides with Payor or Recipient for tax purposes) GUIDELINE CALCULATION Payor Recipient Province of Residence AB AB Guideline Income $30,000 $48,622

Section 7 Special Expenses: NET ANNUAL amounts claimed by either party (Net of subsidies, benefits, income tax deductions, credits and any contribution by child): Net child care expenses Gross (pre-tax) annual amount: Payor: $0 Recipient: $8,000 Medical/Dental Premiums Net Health related expense Gross (pre-tax) annual amount: Payor: $0 Recipient: $0 Extraordinary School Expenses Net post secondary school expenses Extraordinary expenses for extracurricular $0 $0 $0 $0 $0 $0 $4,442 $672 $0 $0 $0 $0 Total net annual special expenses claimed by: $0 $5,114

SUMMARY: Payor Recipient

Section 3 Table Amount Payable by: $439 $0 Proportionate Share (%) of

Section 7 Expenses 38.16% 61.84% Monthly Share of

Section 7 Expenses Payable by: $163 $0 Total

Section 3 and

Section 7 Amounts Payable by: $602 $0 Net Monthly Guideline Amount Payable by: $602 $0 DEPARTING FROM GUIDELINES : YES NO X If departing, complete below: Different Amount: NA Reasons for Departing

Summary of Child Support Guideline Calculations

(2009) Payor ’ s Name: Wayne Hussey Recipient ’ s Name: Jennifer Hussey Action Number: CHILDREN: Names (List youngest to oldest) Birthdate (Month/Day/Year) Residing with (for tax purposes) Payor Recipient Shared Custody Grant Hussey [...]/[...]/01 [] [X] [] Jordan Hussey [...]/[...]/99 [] [X] [] (Note: For each shared child, you must check off whether the child resides with Payor or Recipient for tax purposes) GUIDELINE CALCULATION Payor Recipient Province of Residence AB AB Guideline Income $30,000 $48,820

Section 7 Special Expenses: NET ANNUAL amounts claimed by either party (Net of subsidies, benefits, income tax deductions, credits and any contribution by child): Net child care expenses Gross (pre-tax) annual amount: Payor: $0 Recipient: $8,000 Medical/Dental Premiums Net Health related expense Gross (pre-tax) annual amount: Payor: $0 Recipient: $0 Extraordinary School Expenses Net post secondary school expenses Extraordinary expenses for extracurricular $0 $0 $0 $0 $0 $0 $4,476 $624 $0 $0 $0 $0 Total net annual special expenses claimed by: $0 $5,100

SUMMARY: Payor Recipient

Section 3 Table Amount Payable by: $439 $0 Proportionate Share (%) of

Section 7 Expenses 38.16% 61.84% Monthly Share of

Section 7 Expenses Payable by: $162 $0 Total

Section 3 and

Section 7 Amounts Payable by: $601 $0 Net Monthly Guideline Amount Payable by: $601 $0 DEPARTING FROM GUIDELINES : YES NO X If departing, complete below: Different Amount: NA Reasons for Departing

Summary of Child Support Guideline Calculations

(2008) Payor ’ s Name: Wayne Hussey Recipient ’ s Name: Jennifer Hussey Action Number:

CHILDREN: Names (List youngest to oldest) Birthdate (Month/Day/Year) Residing with (for tax purposes) Payor Recipient Shared Custody Grant Hussey [...]/[...]/01 [] [X] [] Jordan Hussey [...]/[...]/99 [] [X] [] (Note: For each shared child, you must check off whether the child resides with Payor or Recipient for tax purposes) GUIDELINE CALCULATION Payor Recipient Province of Residence AB AB Guideline Income $30,000 $47,909

Section 7 Special Expenses: NET ANNUAL amounts claimed by either party (Net of subsidies, benefits, income tax deductions, credits and any contribution by child): Net child care expenses Gross (pre-tax) annual amount: Payor: $0 Recipient: $8,000 Medical/Dental Premiums Net Health related expense Gross (pre-tax) annual amount: Payor: $0 Recipient: $0 Extraordinary School Expenses Net post secondary school expenses Extraordinary expenses for extracurricular $0 $0 $0 $0 $0 $0 $4,321 $624 $0 $0 $0 $0 Total net annual special expenses claimed by: $0 $4,945

SUMMARY: Payor Recipient

Section 3 Table Amount Payable by: $439 $0 Proportionate Share (%) of

Section 7 Expenses 38.16% 61.84% Monthly Share of

Section 7 Expenses Payable by: $159 $0 Total

Section 3 and

Section 7 Amounts Payable by: $598 $0 Net Monthly Guideline Amount Payable by: $598 $0 DEPARTING FROM GUIDELINES : YES NO X If departing, complete below: Different Amount: NA Reasons for Departing [ 16 ] The wife is awarded costs of this application given her substantial success. Heard on the 5 th day of July, 2011. Dated at the City of Edmonton, Alberta this 8 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Graham K. Neill Merchant Law Group LLP for the Plaintiff

Peter Spitz Wallance & Spitz for the Defendant