Peregrym v Peregrym, 2011 ABQB 558

Court of Queen ’ s Bench of Alberta Citation: Peregrym v Peregrym, 2011 ABQB 558 Date: 20110914 Docket: 4814 001496 Registry: St. Paul Between: Michelle Katherine Peregrym (Ingrey) Plaintiff/Respondent - and - Daniel Peter Peregrym Defendant/Applicant Corrected judgment: A corrigendum was issued on September 22, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The parties are divorced parents of a child who is currently 10½ years of age. The parties separated in August 2003, and divorced in June 2005 after an eight year marriage. The child has been in the primary care of the mother since the date of separation. [ 2 ] The parties ’ last joint matrimonial residence was in Lloydminster, Saskatchewan. On separation, the mother moved to Saskatoon and the father moved to Edmonton.

The mother remained in Saskatchewan from May 2004 until August 2008, when she moved to Surrey, British Columbia with her new husband and with the child. The father has remained in Edmonton, Alberta throughout. [ 3 ] The parties had entered into a Consent Judgment for Divorce, but before the Divorce Judgment the mother, with the help of

her counsel, agreed to a reduction in child support from the Guideline amount to the amount of $400 per month. The father has never paid full Guideline child support, nor has he ever paid any

Section 7 expenses. [ 4 ] The Respondent filed a Statement of Arrears in late 2010 claiming arrears of over $13,000 based on the particulars of the Divorce Judgment, and not the agreement with respect to reduced child support of $400 a month. The arrears were declared November 20, 2010 and the Applicant has been paying a minimum of $900 child support per month there after. [ 5 ] The current situation is that the child is now 10 ½ years of age, and has been living in Surrey, British Columbia for three years.

The parties ’ respective recent annual incomes are as follows: – YEAR Recipient Payor 2007 $26,669.15 $106,700.52 2008 $21,071.28 $125,045.00 2009 $49,049.14 $113,710.00 2010 $46,814.00 $102,868.00 [ 6 ] The father claims high access costs as the basis for his current application to extinguish all arrears. He argues that he should only have to pay ongoing child support on his current Guideline income. There is a temporary Stay of Enforcement until this matter has decided.

The issue before the Court is whether there should be any relief granted to the father for the costs of his access to the child of the marriage. Analysis [ 7 ] When these parties cohabited, they lived in Lloydminster, Saskatchewan. The Applicant father was attending school in Edmonton for approximately four months, when the parties separated. It was his apparent intention to complete his schooling at NAIT, and return to Lloydminster to cohabit with the Respondent. The Respondent mother moved from Lloydminster to Prince Albert, Saskatchewan, and then from Prince Albert to Battleford, Saskatchewan.

The mother then permanently moved to British Columbia in the summer of 2008.

The Applicant father ’ s position has been that the child has been with him for most summers for at least six weeks; that he has also had access at least one week each Christmas and every Spring Break; and in addition he has had at least five or six visits in British Columbia each year. [ 8 ] The parties do not agree on how often the father has visited the child since the child has been in British Columbia, but he has been very involved in the child ’ s life. [ 9 ] The mother ’ s position on access is that the father has had access to the child approximately twice every two months, and since she began living in Surrey, British Columbia, he has had access approximately every six to eight weeks. [ 10 ] The Applicant works shift work and has to exercise his access around his shifts.

He has been responsible for one hundred percent of his access costs, and he estimates that he spent for the years 2008 through November 2009 over $11,000 in access costs. The

Applicant is claiming annual access costs at $6,080 per year, and asks the Court to deduct a hundred percent of his access costs from the amount that would otherwise be payable.

The Applicant ’ s position is that he had foregone any previous claim to compensation with respect to high access costs, and did not challenge the residency of the child, because he was relying on the reduced level of child support that he was paying at $400 a month to compensate him for his costs. [ 11 ] After the Respondent mother registered her Statement of Arrears with Maintenance Enforcement, the Applicant brought an application to extinguish the arrears, and to specify ongoing support. As of May 27, 2011, the arrears of $13,852 have been paid down to approximately $10,000.

The father ’ s annual income has increased significantly since the separation. [ 12 ] At the time that this matter was argued before me on July 6, 2011, the Applicant had attempted to argue his “ undue hardship ” , without being in a position to fully support that argument. The Court gave counsel until the end of the summer to provide it with further information regarding the respective household incomes of the parties. This information was only recently supplied.

I am now aware that in addition to the Applicant ’ s current earnings of $102,868 per year, that his common-law spouse in 2010 line 150 total income is just over $48,000.

The Applicant claims that one child is living with him full time, but the Respondent argues that it is their understanding that his common-law spouse ’ s child resides with them half time. [ 13 ] As for the Respondent, she has recently disclosed through her counsel that the Respondent ’ s husband currently earns an annual salary of just under $78,000 a year as an RCMP officer. [ 14 ] Both counsel concede that there is not much difference in the Household Income Ratio between these two families, although the Applicant ’ s position is that he does not have to show hardship to apportion the access costs as that is within the inherent jurisdiction of the Court. [ 15 ] The Respondent argues that much of the access costs that the Applicant is claiming has never actually been expended.

The Applicant argues that he was never provided with

Section 7 expenses so that he cannot have been expected to pay them. [ 16 ] Our Court of Appeal in Ruel v Ruel , 2006 ABCA 170 dealt with a somewhat similar situation and access costs. In Ruel the parties had five children from their marriage, and the mother had been the primary caregiver of the children since their birth. When the parties separated in June 2001 the mother lived in Leduc, Alberta and the father in Beaumont, Alberta, which are both located very close to each other just south of Edmonton.

In January 2003 the mother moved to Cold Lake, Alberta with her new husband 280 kilometres northeast of Edmonton near the Alberta/Saskatchewan boarder. The father remained living just outside of Edmonton. Initially the mother agreed on a temporary basis to do all the driving to facilitate the father ’ s access because the father did not have a vehicle with five seat belts for all the children. [ 17 ] Later in April 2004 a Court order concluded that the father was “ grossly underemployed ” and imputed an income to him of $45,000 a year.

The terms of access provided that “ transportation for all access shall be shared equally ” between the mother and the father with the father responsible for picking up the children from the mother ’ s home at the beginning of the access visit, and the mother responsible for picking up the children from the father ’ s home at the end of the visit.

In November 2005, the mother filed a motion seeking to vary the father ’ s access to the children and asking that the driving for the access visits no longer be shared with the father, as a result of the father ’ s voluntary move on October 31, 2004 to Tumbler Ridge, British Columbia, a small town situated in the northeast corner of British Columbia located 780 kilometres away from Edmonton.

This meant the driving from Cold Lake through Edmonton to Tumbler Ridge, British Columbia involved a journey of over 1,000 kilometres, although there was a more direct route if one were to drive from Cold Lake to Tumbler Ridge not through Edmonton, in which case the distance would be just under 900 kilometres. [ 18 ] As of December 2005 Mr.

Ruel was in arrears of child support in a considerable sum, and in January 2006 the Chambers Judge declined to vary the substance of the 2004 Court order requiring that each parent do half of the driving required in connection with access and to pay the costs associated therewith. Ms. Ruel had a young child with her second husband, and Mr.

Ruel was apparently in a common-law relationship and also had another child. [ 19 ] Our Court of Appeal decided in Ruel as follows: – 8 In assessing the merits of this appeal, we assume, without deciding, that a court has a residual discretion to require a custodial parent to assume a portion of the access burden even where the non-custodial parent has not satisfied the Child Support Guidelines in terms of

establishing "unusually high" access costs and "undue hardship" flowing therefrom (s. 10 (2)(b)).

However, even assuming that this is so, we have concluded that the chambers judge erred in determining that the mother should bear 1/2 of the incremental burden involved, including the driving required and the time and cost that this would take, now that the father has moved from the Edmonton area to Tumbler Ridge, B.C. 9 It appears that the chambers judge took the view that since the mother had moved to Cold Lake and both mother and father had been ordered under the 2004 court order to split the driving and the costs involved in facilitating access consequential upon her move, that it was therefore appropriate to continue this equal division of responsibility for access costs when the father chose to move to Tumbler Ridge. 10 However, in deciding whether it was appropriate to impose on the mother a portion of the incremental access costs arising by reason of the father's voluntary move to Tumbler Ridge, the chambers judge failed to take into account certain relevant factors. 11 First, the chambers judge failed to take into account the fact that the mother is not employed and has no independent source of income.

This is critical to the issue of whether a custodial parent ought to be required to bear a portion of the access burden, not simply because it affects the financial capacity of the custodial parent to comply with the order but more fundamentally, because it might well also affect the ability of the custodial parent to meet the basic needs of the children of the marriage. By contrast, the father's income, not disputed by the father, as set by the court under the 2004 court order, is $45,000 per year.

The amount of that income is obviously relevant to the issue of whether it is fair and reasonable to impose on the custodial parent, in this case the mother, any portion of the incremental access costs, whether in terms of time or otherwise. 12 Second, the chambers judge did not take into account the fact that the father was in significant arrears in payment of child support at the time of the application to vary. Whether some portion of those court-ordered child support payments may be successfully challenged by the father in other proceedings, on the basis he has already paid some of them, is a different issue.

The chambers judge ought to have dealt with the arrears issue prior to rendering a decision on who would bear the incremental access burden.

And if that issue could not be resolved without a trial of the issue, then that too ought to have been considered by the chambers judge in deciding whether it was appropriate to impose a further financial and time obligation on the mother. 13 Third, the chambers judge failed to consider the additional - and disproportionate - obligation that would be imposed on the mother if she were required to assume an equal share of the incremental access burden given the fact that she is also the primary caregiver for a sixth child, an infant. 14 For these reasons, we have concluded that in these circumstances, it would not be reasonable or fair to impose on the mother a further financial and time burden by requiring her to bear any portion of the incremental access costs arising from the father's voluntary move to Tumbler Ridge. 15 Thus, we allow the appeal regarding the access burden and require the father to assume responsibility for the incremental access burden attributable to his move to Tumbler Ridge, including the additional driving time involved by reason of that move.

The mother will remain responsible for transporting the children a distance equivalent to 1/2 of the distance between Cold Lake and Edmonton, including the time it takes to drive them that distance. [ 20 ] In the present case at bar, the father stayed in Edmonton and never moved anywhere however he would have been driving six hours even if the mother had not relocated to British Columbia.

Conclusion [ 21 ] In the present matter we have a November 3, 2004 letter from counsel for the mother addressed to counsel for the father clearly agreeing to an amendment of the Divorce Judgment and Corollary Relief Order to allow for the payment of only $400 for child support on what appears to be a temporary basis. The November 3, 2004 letter from counsel for the mother pre-dates the Divorce

Judgment which is not finalized until June 2005. [22] In addition to underpaying child support for 6½ years, the father has paid no

Section 7 expenses.

Section 7 expensesessentially consist of daycare expenses because the child was 3 years old when the parties separated, and horseback riding lessons. [23] The father argues that he never received any notice of

Section 7 expenses to pay, and relies on the principles set out in D.B.S.v. S.R.G., 2006 SCC 37 , 2006 S.C.C. 37 where there is an arrangement between the parties that was reasonable having regardto all of the circumstances.

As this agreement was reached with the help of counsel, the Applicant father submits that the Court shouldextinguish all of his child support arrears. [24] I accept that paragraph 8 of Ruel which reads:– 8 In assessing the merits of this appeal, we assume, without deciding, that a court has a residual discretion to require a custodial parentto assume a portion of the access burden even where the non-custodial parent has not satisfied the Child Support Guidelines in terms ofestablishing "unusually high" access costs and "undue hardship" flowing therefrom (s. 10 (2)(b)).

However, even assuming that this isso, we have concluded that the chambers judge erred in determining that the mother should bear 1/2 of the incremental burden involved,including the driving required and the time and cost that this would take, now that the father has moved from the Edmonton area toTumbler Ridge, B.C. is the law in Alberta notwithstanding that it was technically obiter in that case. [25] I conclude that D.B.S. adopts a holistic approach, and eschews a needs based approach with respect to the child.

Therefore itis submitted that the father should be paying proper Guideline income retroactively for period of three years pursuant to the Guidelines,including

Section 7 expenses, if his 3½ years of arrears are to be cancelled. [26] The father’s high access costs are academic in this case because the father cannot meet the second part of the “unduehardship” test, given that both parties’ household incomes are roughly the same herein. [27] Accordingly the father’s arrears of $13,852 can be extinguished, but he will pay full retroactive child support plus

Section 7expenses as claimed, all retroactive as of December 1, 2010, when the mother began her claim herein. There will be no costs awardedherein given the mixed success of both parties. Heard on the 6th day of July, 2011. Dated at the City of Edmonton, Alberta this 13th day of September, 2011.

Donald Lee J.C.Q.B.A. Appearances: Michael Furman Glenora Law Office for the Defendant/Applicant Anne Ferguson-Switzer, Q.C. Cleall for the Plaintiff/Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Donald Lee _______________________________________________________ Please note the below two paragraphs have been changed to read as below: [25] I conclude that D.B.S. adopts a holistic approach, and eschews a needs based approach with respect to the child.

Therefore it is submitted that the father should be paying proper Guideline income retroactively for period of three years pursuant to the Guidelines , including

Section 7 expenses, if his 3 ½ years of arrears are to be cancelled. [27] Accordingly the father ’ s arrears of $13,852 can be extinguished, but he will pay full retroactive child support plus

Section 7 expenses as claimed, all retroactive as of December 1, 2010, when the mother began her claim herein. There will be no costs awarded herein given the mixed success of both parties.