Gibson v. Gibson, 2011 ABQB 564

Court of Queen ’ s Bench of Alberta Citation: Gibson v. Gibson, 2011 ABQB 564 Date: 20110915 Docket: FL10 03042 Registry: Red Deer Between: David Curtis Gibson Applicant - and - Lyndsay Erin Gibson (Gauthier) Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Gibson signed a consent child support order on March 12, 2010. Mr. Gibson now asks for relief from the provisions of that order on the basis that the employment which he had on March 12, which was employment in a family-owned business, terminated at the end of March 2010 when the business was wound up. Mr. Gibson states that, since his employment with the family-owned business was lost, he has tried to maintain employment, but, because of health and other issues, he has never, since March 12, 2010, earned close to the amount of income that was used as the basis for the March 12 th order.

In this morning chambers application, Mr. Gibson asks the court to set ongoing child support based on his current monthly income which would, if projected, result in annual gross income of $27,000.00 and to cancel all child support arrears. [ 2 ] Mr. Gibson ’ s application is denied: he has failed to prove, at a minimum, that he did not know, on March 12, 2010, that his parents were going to terminate his employment. Moore .

[ 3 ] By way of additional comment, or obiter , the court observes that both parties have advanced incorrect theories on the setting of income for child support purposes: on the one hand, line 150 income is not always the most fair way of setting income when newer information is known and, on the other, line 150 income may not be all the income which a child support debtor is deemed to have earned. Cases and authority cited [ 4 ] By Mr. Gibson: Lavergne v Lavergne 2007 ABCA 169 , [2007] A.J. No. 580 . [ 5 ] By the court: Moore v Moore 2011 ONSC 4486 , [2011] O.J. No. 3440 . 1.

Background [ 6 ] The parties, who separated in July, 2009, are the parents of two children, aged 8 and 5, who reside with their mother. [ 7 ] On March 12, 2010, the parties, who were each unrepresented, entered into a Consent Parenting Order and Consent Child Support Order in the Provincial Court. That order directs Mr. Gibson to pay base child support of $1,150.00, based on 2009 gross annual income of $80,000.00, and to pay his proportionate share of

section 7 expenses. Mr. Gibson ’ s 2009 Notice of Assessment indicates that his actual income for that year was $84,083.00. [ 8 ] Mr. Gibson ’ s income on March 12, 2010 was derived from employment in a trucking business, Candor Corp, owned by his parents. Mr. Gibson states that his parents closed that business as of the end of March, 2010, giving Mr. Gibson one additional month ’ s salary. [ 9 ] Mr. Gibson next obtained employment in August 2010 with Nabors Drilling as a floor hand.

His 2010 tax return shows that his total income for 2010 was $62,936.00, even though for 3 to 4 months of that year, his only income would have come from EI. Mr. Gibson states that, in December, 2010, he suffered a work place injury which eventually led to his dismissal from Nabors. In Questioning with respect to that incident and its aftermath, Mr. Gibson gave the following sworn evidence: A It wasn't an accident. It was, I injured myself at work. Q Okay what happened? A I was doing my regular duties and pulled the muscles in my back. Q And did you stop working right after this injury?

A No, I worked a day before the rig shut down. Q And then you decided that you couldn't work anymore? A No, I went to a doctor who told me to go see a chiropractor, and then I went back to work for a day -- or two days, sorry, that were about five days apart. The first day I worked, we didn't really do anything, so I didn't hurt my back. But the 9th of January, we did a rig move, and I reinjured my back. Q Was that the second day of work?

A Yes. Q Were you just doing regular duties then? A Yes. Q And since that day have you worked? A No. Well, I worked light duty. Q Okay. So what day did you injure your back the second time? A It would have been the 9th, January 9th. Q And you have worked on light duty since then? A I worked two weeks of light duty. Q And when was that? A In February. Q And how come that ended? A Because I wasn't accepted for WCB. Q And because you weren't accepted ... A They kicked me out of the office. Q And so now you're on disability? A I'm on EI.

Q So the payments that you received up until February, were any of that disability, or was it WCB payments? A I received disability in January to February before I went back to the office and then I received my regular pay for the two weeks that I was in the office and then I didn't receive anything after that. Q And so you were not approved for disability after February? A No. Q How come? A Because they said if I had the proper treatment, I should have been back to work. Q And what was the proper treatment? A Physiotherapy. Q And who recommended that? A My doctor, Hopfner, and Nabors' doctor.

I can ’ t remember his name. Q So physiotherapy was recommended to you? A Yes. Q And did you take that? A I did physiotherapy for the two weeks I was in the office.

Q How come you didn't do it before then? A Because I couldn't afford to. Q And how come you haven't done it since then? A Because I can't afford to. Q Have you looked at any programs that might cover physiotherapy being unemployed? A They cover half of it. I still have to pay for the other half. Q How much is the cost? A I don't know the cost. Q Did you call anyone to find out the cost? A I did, but I don't have it written down. Q Was there any other treatment that was recommended? A Just regular home exercises. Q Are you doing those? A Yes. Q Are you still seeing your doctor for this injury?

A I haven't been back to see him in a bit, no. Q When was the last time? A Probably March. Q And so is it fair to say that you're no longer on any treatment plan with your doctor for this injury? A No, I'm looking for work right now. Q So do you think you're fit to go back to work? A As of now I am, yes. Q Back to the condition that you were in before the injury? A No, I wouldn't be able to do the same work. Q What limitations do you have? A I can't do the same heavy lifting I did before. Q Can you do any lifting? A Yes. Q So just not heavy? A No. Q Have you found that that restriction affects your employability?

Are you finding that there is lots of jobs out there? A No, not from what I used to do.

Q Have you applied at any jobs? A Yes, I have. Q Where? A I've applied for fencing jobs, oilfield maintenance jobs. I've enrolled in class to study for electrician. Q To get a ticket? A Yes. Q Do you have any prior education in that? A No, I don't. Q Any other applications? A Complications? Q Applications. A Applications, just a bunch of electrical companies. I was trying to get an apprenticeship program started. Q How do you submit these resumes? A Usually Internet or fax. Q Can you provide me with proof of the applications that you have made? A I can try to find e-mails, I guess. Q Along with your resume?

A But most of them are done through the library, so I don't know if they will still be there. Q Any proof that you can get that you have made applications and a copy of your resume? A I can give you my resume, yes. [ 10 ] Mr. Gibson has not provided any medical evidence relating to any health condition from which he has suffered since March 12, 2010. [ 11 ] In June, 2011, Mr. Gibson obtained seasonal employment with R.R. Restoration, as a fence installer, at a monthly rate that varies between $2,000.00 and $2,500.00. [ 12 ] Nabors and R.R. Restoration are arm ’ s length businesses relative to Mr.

Gibson. [ 13 ] Ms. Gibson is employed as a waitress; her line 150 income for 2010 is $9,513.86 and is comprised of employment income, universal child care benefit, and employment insurance or similar benefits. She has provided receipts for babysitting expenses for the period October 2009 to March 2010 totalling $2,400.00. [ 14 ] Mr. Gibson has never voluntarily paid child support: since the court order in March 2010, automatic deductions have been made from his income and, between July 2009 and March 2010, when no court order was in place, Mr. Gibson did not offer child

support. Mr. Gibson states that, in addition to automatic withdrawals effected from his income, he also provided Ms. Gibson with onepayment of $686.00. 2. Has Mr.

Gibson proved that, at the time of the consent order, he did not know that his employment would be terminated? [15] For the purposes of this application, I take it that, at a minimum, when a litigant applies to vary a consent order, thatapplicant must prove a material change of circumstance as that term is defined, for example, in Moore: 10 A 'material change of circumstances' means a change that, if known at the time, would likely have resulted in different terms in theorder. If the 'change' was known at the time, it cannot be the basis for a variation of the original order.

The civil onus of proof is uponthe Applicant to establish that there has been a 'material change of circumstances' (see Willick v. Willick, (SCC), [1994]S.C.J. No. 94 (S.C.C.)). (Emphasis added) [16] When I say, at a minimum, I intend to underscore that fact that since every interlocutory order can only be varied if a materialchange of circumstance is proved, something more may be required when the interlocutory order in question is a consent order.

At leastin Alberta, by analogy to the Alberta Rules of Court which require leave to appeal a consent order whereas no leave is required to appealother interlocutory orders, perhaps some factor additional to a material change of circumstance would recognize the unique character ofa consent order. However, it is not necessary to determine the latter issue for the purposes of this application. Here, the consent orderwas agreed to by Mr. Gibson on March 12, 2010. He now states that his employer - his parents’ company - closed the business onMarch 31, 2010. [17] In the circumstances here, where Mr.

Gibson did not have an arm’s length relationship with his employer and, in addition,where Questioning revealed that Mr. Gibson had what appears to be a somewhat cavalier attitude to employment and to his child supportobligations, it is necessary for Mr. Gibson to establish that, on March 12, 2010, when he agreed to pay a certain level of child support, hehad no idea that his parents were closing up the business at the end of that month. Mr. Gibson has not provided evidence of that kind. [18] In the result, Mr. Gibson’s application must be denied. 3.

For the purpose of child support, income should be assessed on the most fair basis possible [19] Having concluded that Mr. Gibson’s application must fail, it is not necessary for me to deal with the other issues that wereraised by him during the course of his application.

Nevertheless, for the guidance of the parties in the period before any new steps aretaken in the proceedings, it may be useful to consider the parties’ approach to the assessment of income for the setting of child supportsince, with respect, I am of the view that each of the parties has advanced an incorrect analysis of the applicable law. [20] Ms. Gibson suggests that income for the purposes of setting child support obligations should only be adjusted annually andon the basis of the last income tax return.

With respect, I disagree. [21] As our Court of Appeal held in Lavergne: 28 While using the amount identified at line 150 of the payor's individual tax return is a certain and simple means to determineannual income, it will not always be fair. Thus, the Guidelines provide alternative methods to determine income where the provisions ofs. 16 would not result in a fair determination. These methods are to fulfill the objectives stated in s. 1(a), that the Guidelines are intendedto ensure that children "continue to benefit from the financial means of both spouses after separation".

The use of the past year's incometax return, without subsequent adjustment to reflect the actual income, is inconsistent with the Guidelines' multi-step approach todetermining income and with the general discretion granted to the court to specify annual income for the purposes of calculating childsupport obligations. While the Guidelines method is more complicated than relying only on historical income information, it better

fulfills the objective that children should continue to benefit from the financial means of both parents after separation by providing them with those benefits on a more timely basis. [ 22 ] In other words, while taking the previous year ’ s line 150 income as the basis for the next year ’ s payment obligations will often be a fair, inexpensive way of settling child support obligations, for example for parents with ongoing employment with the same employer where changes to the remuneration regime are essentially predictable, taking the previous year ’ s line 150 income would be grossly unfair if a dramatic change of income could be proved, thereby either depriving the support creditor of substantial child support for a period of a year or crippling the support debtor by imposing a level of payments that cannot be afforded. [ 23 ] Sensibly, the law requires that a fair way of calculating income be adopted, and that will not always be the application of line 150 income. [ 24 ] However, Mr.

Gibson is equally incorrect when he suggests that the only basis for establishing income for child support purposes is reliance on line 150 income: as the Guidelines make perfectly clear, a court is entitled, in appropriate circumstances, to impute income to parents. [ 25 ] In other words, a person who experiences a dramatic drop in income at a time when they are subject to child care obligations are vulnerable to direct evidence (statements made orally or by email, for example, that they will not pay child support) or indirect evidence (behaviour which demonstrates a disregard for child support obligations) that will authorize a court to deem income to that person over and above line 150 income. 4.

Costs [ 26 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 7 th day of September, 2011. Dated at the City of Red Deer, Alberta this 15 th day of September, 2011. J.B. Veit J.C.Q.B.A. Appearances: Bruce Bothwell, Siewert Bothwell for the Applicant, Mr. Gibson R.D. Young, Lee Inglis Albrecht for the Respondent, Ms. Gibson