Stenhouse v. Stenhouse, 2011 ABQB 530

Court of Queen ’ s Bench of Alberta Citation: Stenhouse v. Stenhouse, 2011 ABQB 530 Date: 20110826 Docket: 4803 137669 Registry: Edmonton Between: Rebecca Ann Stenhouse Plaintiff(Respondent) - and - Chad Anthony Albert Stenhouse Defendant(Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Stenhouse asks the court for retroactive relief, including relief for a period preceding a consent variation order in September, 2007. In addition, he asks for various types of ongoing relief. [ 2 ] Mr. Stenhouse is not entitled to revisit the period preceding the consent order issued in September, 2007: just as appeals are not allowed from consent orders unless special leave is given, special circumstances must be present before leave is given to vary a consent order. Mr. Stenhouse has not advanced any such special circumstances. In the result, Mr.

Stenhouse cannot obtain any relief for any period preceding the consent variation order; from the date of that order forward, Mr. Stenhouse can obtain variations of the consent variation order only if he is able to establish relevant material changes of circumstance arising since the date of the consent variation order.

[ 3 ] Ms. Stenhouse ’ s re-marriage in 2008 constitutes a material change of circumstance in relation to spousal support: even though she had, prior to her re-marriage, been living with her new partner, at the time of the consent variation order in 2007 she did not have a legislative claim for support and for after-acquired property against that new partner. Her re-marriage provided her with both of those legislative benefits. Re-partnering and the acquisition of legal rights in relation to that partner are not determinative of the issue of spousal support.

However, when such a material change of circumstance has been proved by the debtor spouse, the evidentiary burden shifts to the creditor spouse to establish why re-partnering has not negated entitlement to spousal support; the creditor spouse is the only party who is in a position to provide such information. Ms. Stenhouse has not responded in any way to Mr. Stenhouse ’ s claim that her re- partnering should absolve him of any obligation for spousal support. In those circumstances, Mr. Stenhouse ’ s spousal support obligation terminated as of the date of Ms. Stenhouse ’ s re-marriage. [ 4 ] Although Mr.

Stenhouse has, since the consent variation order in 2007, earned more than the amount of the consent variation order, because his four year average of earnings is still very close to what was set in the consent order, Ms. Stenhouse is not asking for any increase, from the beginning of 2008 onward, in the amount of child support paid by Mr. Stenhouse. On this application, there will therefore be no change in Mr. Stenhouse ’ s obligation to pay s. 3 child support; once complete information is available about Mr. Stenhouse ’ s 2011 earnings, either party may bring an application for variation. [ 5 ] Mr.

Stenhouse ’ s potential obligation to pay child support for an adult daughter who intends to pursue post-secondary education is adjourned until this Fall, in order to allow the parties to address specifics, such as the cost of tuition, accommodation, etc. The court observes that, even if there were an estrangement between Mr. Stenhouse and his daughter which was not based on the father ’ s own conduct, such estrangement may not constitute a bar to child support. The authority of the Farden line of cases is doubted. [ 6 ] Mr. Stenhouse did not object to Ms.

Stenhouse ’ s departure from Edmonton; therefore, it would be inappropriate to retroactively reduce his child support obligation when no timely notice of objection was given. However, given the current raising of the issue, and the fact that Ms. Stenhouse is only employed part time, Ms. Stenhouse will, as of September 1, 2011, equally share access travel responsibilities with Mr. Stenhouse. [ 7 ] The previous court order dealing with s. 7 expenses did not require Ms. Stenhouse to provide receipts for such expenses. Mr.

Stenhouse has not, in fact, suffered any financial detriment in relation to the amount of s. 7 expenses paid in 2008. As the Supreme Court noted with respect to claims for general support, the Canadian child support system is based on demand; in the absence of a demand, there are only relatively narrow circumstances in which a court will impose retroactive responsibilities. No such special circumstances are present here. Therefore, with respect to the years 2009, 2010 and 2011, Mr. Stenhouse is given 30 days to provide the court with copies of requests he made of Ms.

Stenhouse in each of those years for receipts for s. 7 expenses. If Mr. Stenhouse did not, in fact, make any such requests, then no retroactive s. 7 variation is granted. Insofar as ongoing s. 7 expenses are concerned, from September 1, 2011 onward, Ms. Stenhouse will provide to Mr. Stenhouse by December 31 and July 31 of every year, her claim for s. 7 expenses for the previous 6 months; Mr. Stenhouse will then have 30 days in which to either pay the claimed expenses or bring forward an application for the court to determine s. 7 expenses. [ 8 ] Mr.

Stenhouse has not proved that his former wife is intentionally underemployed with a view to avoiding child support obligations. Therefore, the court will not impute additional income to Ms. Stenhouse in relation to her proportional obligation in relation to s. 7 expenses. 1. Background [ 9 ] Mr. and Ms. Stenhouse separated in 2004 and were divorced by way of desk divorce in 2006. The terms of the divorce judgment relevant to child and spousal support were: ...

AND UPON the Plaintiff having been found to have a guideline income of $0.00 per annum and the Defendant to have an imputed guideline income of $58,000.00 per annum; ... 4. IT IS FURTHER ORDERED:

THAT the Defendant shall pay to the Plaintiff the sum of $837.00 per month for the support of the children of the marriage, commencing March 1, 2004 and continuing on the first day of each and every month thereafter until further Order. The Defendant shall be given a credit of $1,100.00 on the arrears which represents some past support payments. 5. IT IS FURTHER ORDERED: THAT the Defendant shall pay to the Plaintiff the sum of $500.00 per month for spousal support, commencing July 1, 2006 and continuing on the first day of each and every month thereafter until further order. 6. IT IS FURTHER ORDERED: THAT the Defendant shall pay to the Plaintiff his share of the children ’ s

section 7 expenses being $83.00 per month, commencing July 1, 2006. [ 10 ] In 2006, prior to the granting of the divorce judgment, this Court found Mr. Stenhouse guilty of contempt for failing to provide requested financial disclosure; the penalty imposed on Mr. Stenhouse for his contempt was that Ms. Stenhouse was granted leave to apply for a divorce judgment and was entitled to ask the court to impute income to Mr. Stenhouse. As indicated above, the court did impute income to him. [ 11 ] In September 2007, after a dispute resolution meeting, Mr. and Ms.

Stenhouse signed a consent variation order which explicitly maintained most of the provisions of the 2006 divorce judgment, including for example the term relating to spousal support, but which adjusted Mr. Stenhouse ’ s income, thereby affecting his baseline and proportional child support obligations. The relevant terms of the consent variation order were: AND UPON the parties agreeing that Chad Anthony Stenhouse has an annual Guideline Income of $47,500.00; AND UPON the parties agreeing that Rebecca Ann Stenhouse has an annual Guideline Income of $2,600.00; ... IT IS HEREBY ORDERED THAT: 1.

Except as otherwise varied by this Consent Variation Order, the pre-existing Order of the Honourable Justice E.F. Macklin, dated August 9, 2006, remains in full force and effect. 2. Chad Anthony Stenhouse shall pay to Rebecca Ann Stenhouse the sum of $682.00 per month, payable on the 1 st day of each month, commencing March 1, 2004, for the support of the following children: ... 3.

Chad Anthony Stenhouse shall pay to Rebecca Ann Stenhouse the sum of $77.00 per month for additional expenses for the child(ren), payable on the 1 st day of each month, commencing March 1, 2004, allocated as follows: Total Annual Amount or Child Nature of Add-on Amount Percentage Dance Lessons 990.00/Yr $77.00/month Curling and Soccer

[ 12 ] The Stenhouses are the parents of two children, a daughter who has just turned 18 and graduated from high school and who intends to embark upon post-secondary education in a different city from the one in which she and the children ’ s mother currently reside. There has been an estrangement between Mr. Stenhouse and his daughter, although it appears that, recently, efforts have been undertaken by each of them to repair that rift. [ 13 ] The father is asking for extended access to his son during summer and certain other vacations. The mother has no objection to such increased access. [ 14 ] In 2008, Ms.

Stenhouse married the man with whom she had been living virtually since the parties separated; she and her new partner have no children together. [ 15 ] In 2009, Ms. Stenhouse and her new husband and the children left Edmonton to live in Hardisty, a community which is approximately a 45 minute drive from Edmonton. 2. Should the court revisit matters which arose prior to the consent variation order on September 12, 2007? [ 16 ] The court will not revisit issues that arose prior to the consent variation order of September 12, 2007; no basis has been shown by Mr.

Stenhouse for taking such an extraordinary step. [ 17 ] Mr. Stenhouse asks the court to go back to the 2006 divorce judgment and “ fix up ” various problems which he asserts have occurred.

He argues that he suffers from a learning deficit which made him unusually dependent upon his former wife for advice during the family law proceedings and that what he agreed to was patently unfair - for example a guideline income and, for another spousal support when his wife was living with another man - and, moreover, that he must have received grossly inadequate treatment during the dispute resolution process given the presumptively inadequate wording of the consent variation order itself. [ 18 ] With respect, the arguments advanced by Mr.

Stenhouse are not persuasive. [ 19 ] From a purely technical perspective, R. 505(3) - even though it deals specifically with appeals - illustrates the general principle of the law concerning consent orders and judgments: when people agree to a judgment or order and promise to be bound by it, they should not lightly be relieved of their promise.

Moreover, the Rule recognizes the basic difficulty of retroactively changing a pattern which one party had the right to rely on; the person who proposes to vary an order has led the party opposite to believe that an order will bind their future behaviour and the opposite party has a right to rely on that assumption.

Naturally, however, there are some circumstances in which a litigant can ask the court to vary a consent order, for example, if the order was obtained by fraud, if the litigant did not have capacity when they gave their consent, if unforeseeable material changes have occurred in the relevant circumstances, etc. But these are exceptional circumstances, the proof of which must be made by the party asking for the variation. [ 20 ] Mr. Stenhouse states that he had a reading disability which made him more than usually vulnerable to the advice given to him by his then wife. With respect, and accepting Mr.

Stenhouse ’ s assertion of a learning disability, the evidence on the application establishes that Mr. Stenhouse has, in the past, earned in the neighbourhood of $60,000.00. With that kind of a track record, it is clear that Mr. Stenhouse has ability and, at a minimum, is able to ask for assistance when he needs it. If he didn ’ t understand the court documents, he should have asked for help from a responsible person who was not involved in the proceedings. It is not unreasonable for the court to impose on Mr.

Stenhouse an obligation to do what is reasonable in all the circumstances, including his learning disability. [ 21 ] Mr. Stenhouse argues that the dispute resolution process was patently unfair to him. With respect, he has proved no such thing. For obvious reasons, the dispute resolution process itself must remain confidential; those negotiations are privileged. The form of order consented to by Mr. Stenhouse after the conclusion of the negotiations, is not facially absurd.

While it may seem somewhat odd that a spouse would agree to pay spousal support to a spouse who has re-partnered, in the circumstances here, given the very young age of the parties when they became involved with one another, it is not absurd that Mr. Stenhouse might feel some responsibility for the ongoing financial support of his first wife. Also, it should be noted that the dispute resolution process itself is not limited to written

submissions; on the contrary, it relies heavily on the participation of the litigants. Even if Mr. Stenhouse has a learning disability, he knows what the facts are in relation to his relationship with his former wife and his children, and he knows what his own income picture is. There is no evidence that he suffered any disadvantage in the dispute resolution process. [ 22 ] In

summary on this point, Mr. Stenhouse has failed to prove that his promise in 2007 should be swept aside. The court will only consider matters from September 2007 forward.. 3. Spousal support [ 23 ] Mr. Stenhouse ’ s spousal support obligation is terminated as of the date of Ms. Stenhouse ’ s marriage in 2008.

i) Ms. Stenhouse re-marriage constitutes a material change of circumstance [ 24 ] Ms. Stenhouse ’ s remarriage in 2008 constitutes a material change of circumstance with respect to the issue of spousal support. While Ms. Stenhouse began cohabiting with a new partner in 2005, in other words, almost as soon as she separated from Mr. Stenhouse, by 2007 when the parties consented to a variation of their divorce judgment, Ms. Stenhouse was not legislatively entitled to support from her new partner because she had not cohabited with him for long enough and they did not have a child together.

Moreover, the legislation which provides for the support of adult interdependent partners does not provide any property benefits. It is true that a person who does not have the benefit of legislative presumptions concerning support and division of property may yet have an equitable claim for either or both, but such a claim is difficult to prove. Therefore, Ms.

Stenhouse ’ s marriage in 2008 gave her important legislative rights which she did not have prior to that date and therefore constituted a material change in the spousal support analysis. ii) Because an apparently material change of circumstance in relation to spousal support has been proved by Mr. Stenhouse, Ms. Stenhouse has the obligation of proving that the change has not altered her entitlement to support; she has failed to do this [ 25 ] In the circumstances here, once Mr. Stenhouse has established an apparent material change of circumstance, the evidentiary burden shifts to Ms.

Stenhouse to prove that her re-marriage has not caused a material change of circumstance relative to her former husband. [ 26 ] The shift of evidentiary burden arises because knowledge of the particulars of the claim against each of her husbands is limited to Ms. Stenhouse: Mr. Stenhouse does not have access to Ms. Stenhouse ’ s current husband ’ s financial information. Mr. Stenhouse has done the most he can do by pointing to an apparent material change of circumstance. [ 27 ] Ms.

Stenhouse has not advanced any basis for a continued claim for spousal support against her first husband now that she has re-married. [ 28 ] On the evidence presented here, Mr. Stenhouse ’ s spousal support obligation terminates on the date of Ms. Stenhouse ’ s re- marriage. 4. Child support

a) Should access costs be deducted from Mr. Stenhouse ’ s obligation? [ 29 ] Mr. Stenhouse ’ s claim for a retroactive reduction in child support because of access travel costs is denied: the imposition of retroactive obligations is an anomaly in a demand system. Mr. Stenhouse has not established any of the circumstances that would make it appropriate to impose a retroactive obligation. However, taking his current application as notice of an application to vary the access

terms prospectively, the court acknowledges that, from September 1, 2011 onward, Ms. Stenhouse must equally share access travel costs. [ 30 ] As the Supreme Court of Canada noted in a comprehensive judgment about retroactive orders, since Canada ’ s child support system is based on a demand, it is generally unfair to impose an obligation on a party prior to the time when a demand was made of them.

Indeed, the Supreme Court generally narrowed the circumstances in which retroactive support would be payable to those situations where the respondent knew, or should have known, of a legal support obligation. [ 31 ] Here, Mr. Stenhouse either did not object to Ms. Stenhouse ’ s departure, with the children, from Edmonton or he actively consented to that departure. Either way, Mr. Stenhouse ’ s failure to make a timely objection to Ms. Stenhouse ’ s departure left her with a legitimate basis for assuming that her departure from Edmonton would cause no change to the child support regime.

In the circumstances here, it would be unfair to deprive Ms. Stenhouse of child support at this time based on an application that could have, and should have, been brought when the mobility issue first arose. [ 32 ] However, from this time onward, Mr. Stenhouse ’ s legitimate concern about the unfairness of imposition of access travel costs on him must be recognized. From September 1, 2011, onwards, Ms. Stenhouse will share equally in travel access responsibilities with Mr. Stenhouse.

b) Does Mr. Stenhouse have to support the adult child of the marriage ? [ 33 ] On this application, Mr. Stenhouse argued that his adult daughter who had just turned 18 and graduated from high school was no longer a “ child of the marriage ” in the context of child support because of the daughter ’ s estrangement from him. He said that, if he chose to do so, he would make arrangements direct with his daughter for her ongoing support. In the event, however, Ms.

Stenhouse agreed that the issue of child support for the parties ’ adult daughter should be adjourned until the daughter finalized arrangements for post-secondary education so that the parties would have firm figures on tuition, accommodation, summer employment, bursaries, etc.

Therefore, it is not necessary for this court to determine the issue of the effect, if any, of estrangement on the support of an adult child. [ 34 ] Nonetheless, with a view to encouraging an eventual comprehensive review of the commentary in Farden on that issue, during the course of the hearing I indicated to the parties the areas in which the Farden approach might not be followed. First, even the Farden approach would require a trial of the issue of who was responsible for the estrangement, the adult or the child. A trial of that type of issue is not only difficult but may well be beside the point.

Just as Parliament has decreed that the behaviour of spouses is generally not relevant in support matters, there is a lot to be said about taking the issue of behaviour out of the analysis of entitlement to child support. This is particularly true since we would have to be dealing, on the one hand, with children who, by their very nature, are not expected to be able to deal with complicated personal issues with the same maturity as can be expected of their parents. Second, it may be that some of the decisions which have followed the Farden lead have wrongly conflated “ control ” and “ charge ” .

Third, even those decisions, like Farden , which have not committed the “ control ” error, may not have adequately weighed the fact that Parliament did not import an estrangement factor into the legislation. Fourth, Parliament may have been attempting, in the Divorce Act , to set a social standard: a parent has a financial responsibility for their child until that child can reasonably withdraw from the parent ’ s charge. Parliament appears, however, to have left it up to the courts to determine when an adult child can withdraw from a parent ’ s charge.

That analysis will presumably vary according to the facts of each particular case.

Just as a parent who can afford to pay for winter boots and clothing for their child, but declines to do so on the basis that, in their view, it is good for the child to “ toughen up ” by walking to school in Northern Alberta in January in sockless sandals would surely be ordered by the court to pay an amount of child support which takes into account the need for appropriate winter clothing, so might a court decide that, given a child ’ s abilities and personal contribution and the parents ’ means, it is necessary for a particular child to obtain a post-secondary education in order to become financially independent and that it is appropriate for the child ’ s parents to contribute financially to that education.

Naturally, it is not every child, nor every post- secondary program, nor every proposal for financial commitment that will be endorsed by the court: it must be reasonable for the particular adult child to continue education at the post-secondary level, the program must be full-time and a reasonable one in which to engage, and the child may have to contribute towards the cost of their education. Nevertheless, it is difficult to understand how an entitlement to support could depend upon estrangement.

Fifth, it may be considered anomalous for Parliament to have established a system of spousal support which is completely independent of estrangement, indeed is only triggered by estrangement, but to have envisaged a system of child support where estrangement would be a relevant factor.

If a wife must support a husband who has completely repudiated her, why should she not also be required to support her adult child who has also completely repudiated her but who requires a post-secondary education to become finally independent? [ 35 ] However, as indicated above, the issue of support of the adult child is adjourned until one of the parties returns the matter to court on notice.

[ 36 ] On this application, the only difference between the parties on the issue of support for the adult child is whether the father should be paying support for July and August, 2011. I have concluded that he need not pay for such support at this time. At this moment, the adult child has finished secondary education. It is not known whether she is employed during the summer; my understanding is that although she intends to attend post-secondary education, she has not yet enrolled in any program. An intention to pursue schooling is not necessarily a sufficient basis for the award of child support.

At this specific point in time, Mr. Stenhouse ’ s daughter is not in full-time attendance at a post-secondary educational institution and she cannot therefore be characterized as a child of the marriage in respect of whom support must be paid. However, since the father has been given notice of his daughter ’ s intentions in relation to ongoing education, he is liable to a retroactive order, going back to July 1, 2011, if it develops that his daughter does enroll in a full-time post- secondary program.

c) Is Mr. Stenhouse entitled to receipts for

Section 7 expenses allegedly incurred in the past? [ 37 ] Mr. Stenhouse ’ s claim for retroactive receipts for s. 7 expenditures is denied: the imposition of retroactive obligations would be particularly unfair if it required a litigant to do something which they were unlikely to be able to do. [ 38 ] As can be seen above, the consent variation order did not require Ms. Stenhouse to provide receipts for s. 7 expenditures.

As opposed to income tax information, which must separately be provided to the government which keeps its own records, absent a court order, there is no reason why a parent would necessarily keep records of s. 7 expenses. As indicated above in relation to the application for a retroactive reduction in support based on travel costs, it is usually unfair to impose on a litigant a retroactive obligation; it is even more unfair to impose upon them a retroactive obligation to do something which they cannot reasonably be expected to be in a position to do. [ 39 ] On the evidence presented on this application, Mr.

Stenhouse did not, in fact, suffer any financial disadvantage in relation to s. 7 expenses in 2008: although the actual type of expense may have been different from that originally envisaged, the amount of the actual expense does not disadvantage Mr. Stenhouse. [ 40 ] With respect to the years 2009, 2010 and 2011, Mr. Stenhouse is given 30 days to provide the court with copies of requests he made of Ms. Stenhouse in each of those years for receipts for s. 7 expenses. If Mr.

Stenhouse did not, in fact, make any such requests, then no retroactive s. 7 variation is granted. [ 41 ] Insofar as ongoing s. 7 expenses are concerned, from September 1, 2011 onward, Ms. Stenhouse will provide to Mr. Stenhouse by December 31 and July 31 of every year, her claim for s. 7 expenses for the previous 6 months; Mr. Stenhouse will then have 30 days in which to either pay the claimed expenses or bring forward an application for the court to determine s. 7 expenses.

d) Should the court impute income to Ms. Stenhouse with a view to increase her proportional share of s. 7 expenses? [ 42 ] No income should be imputed to Ms. Stenhouse at this time: Mr. Stenhouse has failed to prove that she is intentionally underemployed with a view to avoiding child support obligations. [ 43 ] Although Ms. Stenhouse has a Grade 12 education and is not earning as much as the statistically average Grade 12 graduate, Mr. Stenhouse has failed to prove that her employment status is motivated by the goal of avoiding child support obligations. On the contrary, Ms.

Stenhouse, who is presumably being supported by her current husband, states that there are relatively few employment opportunities in Hardisty and that her current part-time employment is the best that she can do. I observe that, given the age of the parties ’ son and given the fact that he will now be in Edmonton on alternate Fridays so that his father can take him to medical appointments, it will no longer be appropriate for Ms. Stenhouse to link her part-time employment to her son ’ s medical needs. 5. Payment of arrears

[ 44 ] Mr. Stenhouse ’ s arrears will have to be recalculated as a result of his partial success in relation to spousal support. If the parties are not agreed on a

schedule for the payment of arrears, they must bring a separate application for the court to determine such a schedule. 6. Costs [ 45 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the distribution of this decision. Heard on the 10 th day of August, 2011. Dated at the City of Edmonton, Alberta this 25 th day of August, 2011. J.B. Veit J.C.Q.B.A. Appearances: Marilyn Sheckter, Legal Family Crisis Clinic for Mr. Stenhouse J.D. Kiriak, Kiriak Law Office for Ms. Stenhouse