Green v. Green, 2011 ABQB 476

Court of Queen ’ s Bench of Alberta Citation: Green v. Green, 2011 ABQB 476 Date: 20110720 Docket: FL03 26665, 4803 156070 Registry: Edmonton Between: Linda Francine Green Plaintiff - and - Wilfred Paul Green Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction [ 1 ] Linda Francine Green has applied for interim spousal support and interim child support for T.A.G., her daughter. T.A.G. is not the Defendant, Wilfred Paul Green’s biological daughter. Ms.

Green claims that he stands in loco parentis for T.A.G. [ 2 ] Mr. Green acknowledges that he has a present responsibility to provide interim spousal support, but denies that he stands in loco parentis to T.A.G.

Background [ 3 ] Mr. and Ms. Green began dating in 2002. They began to cohabit in April, 2004 and were married in January, 2006. They separated in October, 2010. [ 4 ] T.A.G. was born in mid-2000. Her biological father plays some role in her life. They communicate by email, and according to Ms. Green, he last saw T.A.G. in December, 2010. His role is significant enough that Ms. Green told Mr. Green that he would never be able to adopt T.A.G. [ 5 ] Ms. Green worked until some time in 2005, at which time it was agreed that she would stay at home, look after the household, and look after T.A.G. Ms.

Green has suffered from Crohn’s disease since 2000. Until recently, it has been fairly well under control through diet and medication. Ms. Green also suffers from anxiety and insomnia, for which she takes medication. [ 6 ] Ms. Green has provided letters from two of her doctors stating that she is presently unable to work because of a flare-up in the Crohn’s disease and stress and anxiety, all “secondary to the marriage breakdown”. [ 7 ] She states that she is currently unemployed and has no income, other than what is being provided by Mr.

Green and the little bit of child support she receives from T.A.G.’s father. She is otherwise living on credit cards, including payment for a spring trip to Mexico which was paid for using one of her credit cards. [ 8 ] She deposes that Mr. Green’s stock portfolio is worth well in excess of $1,000,000.00. [ 9 ] Ms. Green states that Mr. Green has been T.A.G.’s “primary father figure since she was approximately four years of age”. Attached to her materials are exhibits to Mr. Green’s questioning on his affidavit.

The exhibits include various cards to and from T.A.G. including one where he signed “Wil” to a Valentine’s card “For a Special Daughter”, another Valentine’s card as “Dad”, a birthday card as “Dad”, a birthday card from T.A.G. to him calling him “Dad”, an anniversary card to “Dear Mom and Dad” saying “you are the best parents in the whole world.” A note from T.A.G. says “This morning me and Wil decided that I can call him dad I sent that grate. Yah” (sic). The note has a heart containing “I love dad” printed in it. [ 10 ] Following an incident in October, 2010 that led to the separation, Mr.

Green wrote a note in relation to Emergency Protection Order proceedings. It contained the following statement: “I read in one of the transcripts that T. thought I was a good dad. I hope that Linda feels the same!... I truly love my family.” [ 11 ] Mr. Green has long worked in the auto retail business. He has traditionally earned a good living in that industry. Ms. Green’s affidavit in support of the application states that Mr. Green has earned an average of at least $120,000.00 per year from his employment. In 2009 he also declared approximately $60,000.00 in relation to stock transactions.

He has also invested in speculative stocks, and has earned commission income from stock transactions and significant dividend income arising out of share splits. [ 12 ] Mr. Green acknowledges that he has earned employment income in the range put forward in Ms. Green’s affidavit, but states in his affidavit that the nature of his income has changed in 2011. His employer has required him to incorporate and be paid as a contractor instead of an employee. He is thus responsible for his own benefits.

He also deposes that the economy has slowed down the car business, and he expects his income to be in the $80-85,000.00 range this year. [ 13 ] Mr. Green disputes the value of the stocks attributed to him by Ms. Green. He acknowledges owning some of the stock, but deposes that much of it is held by him in trust for relatives. In any event, he deposes that the stock is basically worthless, and there is no market for it. Some of it would be exempt, in any event, as he owned it before the marriage.

[ 14 ] He believes that Ms. Green is earning income from two home-based businesses. [ 15 ] Following the special chambers application, he provided his current (to June 30) income from the dealership his company works for. My review of his statements suggests that if the balance of the year stays the same as the first half, his attributed income should be in the $80-$90,000.00 range. [ 16 ] He denies that he stood in loco parentis to T.A.G.

While he enjoyed a good relationship with her, he was always aware that her biological father was in her life, and that the biological father was mainly referred to as “dad” while he was “Wil”. He acknowledges that he supported T.A.G. while he was with Ms. Green, and he was disappointed that he would not be allowed to adopt T.A.G. He deposed that his parental role with T.A.G. was minimal; that he did not discipline her and that he rarely participated in activities with her. [ 17 ] Mr. Green feels that T.A.G.’s biological father should be pursued for child support.

He has information that the father is steadily employed as a car salesman and has had steady employment with the same dealer for many years. The father’s Facebook page shows a picture of him with a new personal watercraft. There is apparently no order in place regarding the father’s obligations. Ms. Green testified on questioning on her affidavit on April 1, 2011 that the father had given her $340.00 in March. She was apprehensive about pursuing him for a child support order, however, because of fears for the father’s mental health. Court Orders [ 18 ] Until the matter was initially heard in morning chambers, Mr.

Green had been paying all of the household expenses, including mortgage, taxes, insurance and payments on Ms. Green’s vehicle. [ 19 ] There has been a series of orders relating to the EPO granted on October 29, 2010, leading to a restraining order against Mr. Green granted by Gates J. on May 19, 2011. [ 20 ] Sanderman J. granted an interim order on April 6, 2011, directing the loco parentis and support issues to be heard at a family law special application, and ordering that Mr. Green pay Ms.

Green interim interim spousal support of $1,500.00 per month, and that he continue to make the mortgage payments on the matrimonial home. Guideline Incomes [ 21 ] I am satisfied on the evidence before me that Mr. Green’s guideline income for support purposes should be set at $85,000.00. While his income from his corporation is likely to be much less than that, his corporation has deductions that are available for tax purposes that are not available to an employee, such as auto expenses, entertainment and meal expenses, telephone expenses and the like. Between what Mr.

Green is able to draw as a wage from his corporation and the value of personal benefits from his corporation, his support obligations should be based on an annual before tax income of $85,000.00 until full income and expense information is provided after the end of 2011. [ 22 ] There is no evidence before me to attribute any income to Ms. Green. She has not been employed since 2005, and has health issues. If she is in the early stages of establishing a home-based business, it is too early to attribute income to it. At this stage, her guideline income should be set at $0. [ 23 ] These are interim figures only.

They may be revisited on a material change in circumstances of either party, or otherwise when actual 2011 income information is available. The order resulting from this application should reflect the parties’ obligations to each other to disclose income in a timely manner.

Loco Parentis [ 24 ] The law in this area is seemingly well settled, although applying the law to the facts is often problematic. [ 25 ] Because Mr. and Ms. Green were married, the starting point for the analysis is the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp). [ 26 ] For the purposes of corollary relief, “child of the marriage” is defined in s. 2(2) as “(

b) any child of whom one is the parent and for whom the other stands in the place of a parent.” [ 27 ] Thus the common law relating to loco parentis is engaged. [ 28 ] Alberta’s Family Law Act , S.A. 2003 c. F-4.5 deals with children in loco parentis in s. 48 as follows: 48

(1) A person is standing in the place of a parent if the person (

a) is the spouse of the mother or father of the child or is or was in a relationship of interdependence of some permanence with the mother or father of the child, and (

b) has demonstrated a settled intention to treat the child as the person’s own child.

(2) In determining whether a person has demonstrated a settled intention to treat the child as the person’s own child, the court may consider any or all of the following factors: (

a) the child’s age; (

b) the duration of the child’s relationship with the person; (

c) the nature of the child’s relationship with the person, including (

i) the child’s perception of the person as a parental figure, (ii) the extent to which the person is involved in the child’s care, discipline, education and recreational activities, and (iii) any continuing contact or attempts at contact between the person and the child if the person is living separate and apart from the child’s father or mother; (

d) whether the person has considered (

i) applying for guardianship of the child, (ii) adopting the child, or

(iii) changing the child’s surname to that person’s surname; (

e) whether the person has provided direct or indirect financial support for the child; (

f) the nature of the child’s relationship with any other parent of the child; (

g) any other factor that the court considers relevant. [29] It would be surprising if a person might be in loco parentis to a child under the Divorce Act and not under the Family Law Act,or vice versa, although the treatment of children so found under each act appears different. The differences between the two

definitionswas recognized by the Court of Appeal in P.M. v. S.D., 2008 ABCA 224, but they were not dealt with. [30] Read J. dealt with some of these difficult issues in Reis v. Thomson, 2009 ABQB 156. That case involved an apportionmentof child support obligations between the biological father and the loco parentis father. That action was under the Family Law Act, and notthe Divorce Act.

Thus the Alberta Guidelines governed, as opposed to the Federal Child Support Guidelines. [31] She stated in para. 39: I note further, that Theriault pre-dates both the Divorce Guidelines and the Alberta Child Support Guidelines and therefore did notinterpret the wording of either of these provisions. [32] Under the Divorce Act, the person in loco parentis to a child has all of the same responsibilities to that child as he or she doesto a biological or adopted child.

Under the Family Law Act, the Court appears to have a greater discretion as to the treatment of childrenin loco parentis. [33] I must say that I struggle with the principle that a person who has a relatively brief marriage to someone who already haschildren and, acts as what Topolniski J. characterized as a “good step-parent” to the spouse’s child or children (in Shirley v. Shirley, 2007ABCA 281 at para. 3), thereby assumes an obligation to support the children to the end of their post-secondary education or longer ifthey have serious health issues.

That obligation apparently co-exists between or among the children’s biological parent, and presumablywith anyone else who might later stand in loco parentis to the children. [34] If that is indeed the law under the Divorce Act, and it appears to be so following Chartier v. Chartier, (1999) (SCC), 4 W.W.R. 633 (S.C.C.) and Theriault v. Theriault, 1994 ABCA 119 , (Alta.

C.A.), I recognize,as have other judges, that this may work to the disadvantage of single parents and their children. [35] Assuming lifelong responsibilities for a step-child by being a good step-parent: supporting the child, interacting with thechild, including the child in family activities, introducing the child to his or her own extended family, giving the child gifts and the like,may either be a disincentive for a person to consider a relationship with a single parent, or a disincentive to treat a step-child as part of thefamily unit. [36] And if the relationship that gave rise to the loco parentis situation dissolves, there may be a strong financial incentive for thenow-separated spouse to disavow any relationship with the child that was once treated as a loved step-child.

That appears to be the casehere. [37] This is an era of blended families. It is common for divorced parents to remarry. The new couple treats the children from both

former relationships as their family, while still recognizing that the biological parents will play an active role in their children’s lives. It is now not uncommon for children to have a set of biological parents, as well as a set of step-parents, and for the children to be a welcome part of both new family units.

Indeed, that is what is generally hoped for and is usually in the best interests of the children. [ 38 ] It is also not uncommon for children to have former step-parents, when a biological parent’s second relationship dissolves. [ 39 ] The relationship of loco parentis as noted by Kerans J.A. in Theriault is characterized by “an unconditional commitment to the place of a parent”.

The cases do not recognize a valid condition being “so long as I remain in a relationship with the parent”, as Theriault and other decisions quite properly hold that a person in loco parentis with a child cannot unilaterally withdraw from that relationship. [ 40 ] The issue here is whether to make a finding of loco parentis in the matter before me. Some case law suggests that this determination need not require a trial and should generally be dealt with in a more

summary fashion. As noted by the Court of Appeal in Shirley v. Shirley ( supra ), it may not be “appropriate to seek an effectively final decision as to parental standing by a judge without a proper foundation for adjudication.” (At para. 10). In that case, the chambers decision was set aside, and the matter was returned to the Court of Queen’s Bench for “a proper hearing”. [ 41 ] Because of the far and long reaching consequences of a finding of loco parentis , my view is that the court should be slow to do anything other than make an interim finding on contested affidavits and cross-examinations.

A prima facie case may suffice for an interim order. But a permanent order should, in my view, be rarely made in chambers or even special chambers, where the facts are contested. Application of the Facts Here [ 42 ] Ms. Green has satisfied me that there is a prima facie case that Mr. Green stands in loco parentis to T.A.G. He acknowledged on questioning on his affidavit that he was “the primary father figure in T’s life for the last five years”. [ 43 ] In Tuesday v.

Daniels , 2002 MBQB 199 , Duval J. cited a number of factors from Chartier to be considered in determining whether the loco parentis relationship has been established: 34 Bastarache J. suggested a number of factors to be considered in determining whether a person stands in the place of a parent. These factors are not limited. They are: (

a) the non-parental cohabitant's expression of fatherhood with respect to the child; (

b) the length of the relationship between the child and the non-parental cohabitant and the child's perception of the nature of their relationship; (

c) the nature or existence of the child's relationship with the absent biological father; (

d) whether the child participates in the extended family in the same way as would a biological child; (

e) whether the person disciplined the child as a parent and whether the child accepted his right to discipline; (

f) whether the person represented to the child, the family, the world, either explicitly or implicitly, that he was responsible as a parent to the child; (

g) whether playtime and excursions were always, or for the majority, a family activity or whether the person and child spent time alone together in some activities or outings initiated by one or the other; (

h) whether the person provided gifts or items in addition to basic needs for the child.

[ 44 ] From the evidence before me, the relationship appears to satisfy some of the factors. Unanswered, or incomplete, however, are expressions of fatherhood other than in signatures on cards, issues relating to the child’s relationship with her biological father, extended family relationships, discipline issues and family activities. [ 45 ] Mr. Green indicated in his cross-examination that he did not want to pursue a relationship with T.A.G. That is essentially irrelevant to the question. The fact that Ms.

Green has not actively pursued the biological father for support is, following Theriault , irrelevant for the present purpose of determining whether Mr. Green should support T.A.G. on an interim basis. Mr. Green may have remedies against the biological father, but that is for another day in another proceeding. [ 46 ] I am satisfied that on an interim basis, Mr. Green should be treated as standing in loco parentis to T.A.G. A final determination of that issue, however, should be made at trial, where the issue of whether Mr.

Green made an unconditional commitment to T.A.G. can be determined on viva voce evidence and full consideration of all relevant considerations. A trial is thus directed on that issue, with Ms. Green bearing the onus of proving the relationship. Child Support [ 47 ] Having made the interim finding above, Mr. Green is responsible to pay guideline support for T.A.G. commencing August 1, 2011 and continuing until further order of the court. His guideline income is set provisionally at $85,000.00. As noted above, Ms. Green’s provisional guideline income is $0 for s. 7 purposes.

Spousal Support [ 48 ] There is no serious issue that Mr. Green has an obligation to pay spousal support for some length of time. This was a six and a half year relationship, and the parties had been married for nearly five years before they separated. Ms. Green did not work during the marriage, by agreement of the parties. Her health issues, while they predate the marriage, have been exacerbated by the marriage breakdown and her ability to work at present is compromised. She has a need for support, and Mr. Green has an ability to pay. [ 49 ] Ms.

Green has put forward a budget of approximately $6,000.00 per month, after tax. That amount exceeds Mr. Green’s total after tax income. There is a contest between the parties as to whether Mr. Green has assets (other than RRSP’

s) of any real value. There is no cash in the bank to draw on, and Ms. Green has been supporting herself largely on credit while Mr. Green is living with his mother. [ 50 ] This is not a situation where there is enough money to go around. [ 51 ] Ms. Green is living in the matrimonial home and is enjoying the benefit of Mr. Green’s interest in it for the time being. The home has been ordered sold, although I have no information as to the progress of the sale process. The current order has Mr.

Green paying $1500.00 in spousal support and he is required to pay the mortgage payments on the home of approximately $1,800.00 per month. [ 52 ] There is no doubt that the mortgage payments have to be made. There is also no doubt that Ms. Green cannot support herself and T.A.G. on $1500.00 per month. Her car expenses are $1000 per month, leaving only $500 with which to pay for utilities, food and other essentials. [ 53 ] Mr. Green deposes to debts over and above the mortgage totally $160,000.00 which require servicing.

He has his own personal expenses, including $1,000.00 per month which he says he is paying to his mother as rent.

[ 54 ] Mr. Green’s child support obligation (before any s. 7 expenses) will be approximately $750.00 per month. The spousal support advisory guidelines suggest a range of relatively small payments; nowhere close to the $1,500.00 per month Mr. Green is paying now, let along requiring him to make the mortgage payments. Such payments, however, do not recognize the reality of the situation. The mortgage payments need to be paid until the house can be sold. Ms. Green needs support until she can re-establish herself in the work world. Both of these considerations would appear to be relatively short term. [ 55 ] If Mr.

Green continues to pay the mortgage payment of $1,800 per month, which is not tax-deductible, his available gross income available for support obligation and his own support is perhaps $5,250.00. Out of that, he has to pay interim child support of $750.00, leaving $4,500.00 available for his financial obligations and support, support for Ms. Green and provision for income taxes.

He should not be required to fall behind in his income tax obligations just because he has some control over when they are paid. [ 56 ] At this stage, and until the house has been sold (or further court order in the event the house does not sell promptly and Ms. Green’s employment circumstances change), he should pay $1,000.00 per month in interim spousal support commencing August 1, 2011, in addition to child support and keeping the mortgage payments current. [ 57 ] At the application, I directed that Sanderman J.’s order continue until I was able to made a decision. So that Ms.

Green will have the benefit of the full amount of this order for July, Mr. Green should pay her an additional $250.00 before the end of July as additional interim spousal support. Costs [ 58 ] Without requiring Mr. Green to cash in RRSPs, there would not appear to be any available assets for costs. Ms. Green has been successful in establishing an ongoing basis for interim spousal support, and for interim child support for T.A.G. She is entitled to costs of this application, but not payable until proceeds from the sale of the house become available for distribution between the parties.

Heard on the 23 rd day of June, 2011. Dated at the City of Edmonton, Alberta this 20 th day of July, 2011. R.A. Graesser J.C.Q.B.A. Appearances: Richard D. Smith Stillman LLP for the Plaintiff

Rostyk Sadownik Wheatley Sadownik for the Defendant