PEO v CDO, 2012 ABQB 230

Court of Queen ’ s Bench of Alberta Citation: PEO v CDO, 2012 ABQB 230 Date: 20120405 Docket: 4803 108405 Registry: Edmonton Between: PEO Plaintiff - and - CDO Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Plaintiff father filed a Notice of Motion on October 1, 2010 claiming ongoing and retroactive child support and

Section 7 expenses based on the Defendant mother ’ s annual Guideline income. The issue before the Court is whether the Defendant mother is obligated to pay:

(

a) Ongoing child support; (

b) Whether she should pay retroactive child support; and (

b) Whether the mother is obligated to pay child support from July 2009 to March 2010. [ 2 ] From July 2009 to March 2010 the child moved around between the father ’ s home, his friends, and the Youth Emergency Shelter. Since March 2010 the child has resided with the father full time, and he is currently in his final term of high school taking one module Social Studies. The child will be 18 as of April 2012. [ 3 ] This was a relatively short marriage as the parties were married in October 1993, and divorced in May 1998. The child was born in April 1994.

From the time these parties separated to December 2001, the child resided with the mother and the father paid child support. From January 2002 the child moved to reside with the father, except for the period of time between July 2009 to March 2010 during which the child ’ s residence is in dispute. Analysis [ 4 ] On August 29, 2002 a Consent Variation Order was granted reserving child support payable by the mother.

On February 2, 2004 the parties entered into an Agreement that provided that the mother pay child support in the amount of $300 a month commencing January 1, 2004, which the mother did so until December 2007. The mother then paid child support in the sum of $500 per month and half of the child ’ s guitar lessons in January 2008 to October 2009. The mother lowered her child support payments to $300 per month for November 2009 and December 2009; and has not paid any child support since. [ 5 ] The father provides the Court with the following summaries as to

Section 3 Child Support Arrears claimed and

Section 7 expenses allegedly outstanding: – S. 3 Child Support 2003 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $448.00 = Child Support paid = Arrears of Child Support $5,376.00 Nil $5,376.00 $52,259.00 448.00

2004 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $580.00 = Child Support paid = Arrears of Child Support $6,960.00 (3,600.00) $3,360.00 $69,116.00 580.00 2005 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $661.00 = Child Support paid = Arrears of Child Support $7,932.00 (4,800.00) $3,132.00 $79,897.00 661.00 2006 Defendant ’ s Guideline Income: Guideline Monthly Child Support: From January to April Guideline Monthly Child Support: From May to December 4 x $820.00 = 8 x $891.00 = Child Support paid = Arrears of Child Support $3,280.00 $7,128.00 (4,800.00 ) $5,608.00 $101,276.00 820.00 891.00

2007 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $751.00 = Child Support paid = Arrears of Child Support $9,012.00 (5,400.00 ) $3,612.00 $85,399.00 751.00 2008 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $553.00 = Child Support paid = Arrears of Child Support $6,396.00 (6,000.00 ) $ 396.00 $61,561.00 533.00 2009 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $611.00 = Child Support paid = Arrears of Child Support $7,332.00 (5,600.00 ) $1,732.00 $69,716.00 611.00 2010 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $621.00 = Child Support paid = Arrears of Child Support $7,452.00 Nil $7,452.00 $70,879.00 621.00

2011 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 12 x $561.00 = Child Support paid = Arrears of Child Support $6,732.00 Nil $6,732.00 $64,462.00 561.00 2012 Defendant ’ s Guideline Income: Guideline Monthly Child Support: 4 x $566.00 = Child Support paid = Arrears of Child Support $2,264.00 Nil $2,264.00 $65,000.00 566.00 S. 7 Expenses Dental Fees 2004 .46 x $177.43 = $ 81.62 2005 .56 x $113.01 = $ 63.29 2006 .61 x 49.91 = $ 30.45 2007 .57 x $84.92 = $ 48.40 2008 .44 x 53.79 = $ 23.67 Total $247.43 Kick Boxing

2010 .44 x $1,350.00 = $ 594.00 2011 .41 x $1,000.00 = $ 410.00 Total $1,004.00 [6] The February 2004 Agreement provided that it would continue until such time as a change was agreed upon by both of theparties, or a change was ordered by the Court. [7] As indicated in her Affidavit, the mother paid the father the following amounts from 2004 to 2009 as agreed upon by theparties: (a) 2004 $3,600.00 (b) 2005 $4,800.00 (c) 2006 $4,800.00 (d) 2007 $5,400.00 (e) 2008 $7,000.00 (f) 2009 $6,400.00. [8] In November 2009 the mother learned from the child that he had not been living with the father or attending school sinceJuly 2009 and has been expelled from school.

The child returned to the father’s home and returned to school in April 2010. [9] In October 2010 the mother began to suffer severe health issues, as outlined in her Affidavit which increased her expensesand impacted her ability to work. She was on medical leave for two and a half months in late 2010. In May 2011 the mother injured herminiscus and was again unable to work. She had surgery in June 2011 to be followed by a six week recovery period. The surgery was notsuccessful and her return to work was delayed until September 2011. Numerous medical appointments and physiotherapy appointmentswere required.

The mother’s heart issues identified in October 2010 did not resolve with medication and she was required to have heartsurgery on February 6, 2012 and was again off work. She has been informed that the surgery, to address her irregular hear beat andPremature Ventricular Contractions and irregular EKGs was not successful.

She is required to follow up with her specialist at the end ofFebruary and at this point her ongoing treatment is not known. [10] The mother knew her obligation to pay child support is based on her Guideline incomes as evidenced by the DivorceJudgment and Corollary Relief Order which compelled the Plaintiff to pay her proper child support. [11] Since 2002 the mother has not disclosed her income to the father. The 2004 Agreement was entered into without independentlegal advice and was based on the mother’s representation that child support of $300.00 per month was all she could afford.

Around 2007despite requests by the father for increased child support, the mother continued to maintain that she could not afford to pay more. [12] Aside from half of the guitar lessons, the mother has never paid any other

Section 7 expenses. [13] The father relies on D.B.S. v S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231 (S.C.C.) which adopted the date of

“ effective notice ” from when the retroactive child support award should be ordered. The father ’ s position is that “ effective notice ” was provided in 2007 when the father asked the mother to increase the child support payments. The mother however disputes that any such request was made by the father in 2007. [ 14 ] The Supreme Court of Canada directs that generally a retroactive award should go back 3 years unless the payor parent engages in blameworthy conduct.

The father ’ s position is that the mother engaged in blameworthy conduct by not disclosing her increased income and by indicating to the father that she could not afford to pay more. [ 15 ] The father also relies on Waddle vs.

Carr , 2008 ABCA 315 which indicates that the Court should take an expansive view on what constitutes blameworthy conduct. [ 16 ] It is the father ’ s position that the mother ’ s obligation to pay child support continued between July 2009 and March 2010 even though the son was living in various places, as the father maintained his home for the child and was financially responsible for him as he moved in and out. Conclusion [ 17 ]

Section 15.1(5) of the Divorce Act , R.S.C. 1985, c.3 states as follows: – Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. [ 18 ] The Parties in their February 2004 Agreement acknowledged that the application of the Guidelines to their circumstance would result in an amount of child support that was inequitable given their respective financial obligations. The parties divorced at a time when the mother was unemployed. She was unable to support herself and the parties ’ child without retraining.

The mother commenced a nursing program funded by student loans against which she is still making payments. During the period of her retraining, primary residence of the child was transferred to the father. These were the factors that the parties took into account in making their February 2004 Agreement and had a Court Order been sought at the time or in the years following, it is likely that the Court would have been satisfied and would have ordered child support in the amounts that the parties had agreed to from time to time.

It would be unfair to re- determine child support over that period in these circumstances, particularly when the father was aware from the terms of the February 2004 Agreement that he had the option of seeking a change from the Court and he did not. [ 19 ] Furthermore as decided in D.B.S. v S.R.G. at para 95 retroactive awards are not to be awarded automatically in every case. Nor are retroactive awards to be regarded as exceptional orders to be made in exceptional circumstances.

The Court is to approach a claim for retroactive child support holistically, balancing competing principles and always maintaining the core principles of child support in the analysis. The Court must consider all of the following factors, none of which are determinative standing alone: 1. The reason for the recipient ’ s delay in claiming support. 2. The payor ’ s conduct.

3. The child ’ s past and present circumstances. 4. Whether a retroactive award would result in hardship. Reasons for the Recipient ’ s Delay in Claiming Support [ 20 ] The first time the matter of an adjustment of child support came to the Court was in November 2010 although the parties did communicate by email earlier in 2010 regarding the child ’ s difficulties and in June 2010 the father sent emails to the mother regarding the difficult time the child was experiencing. [ 21 ] The mother provided the disclosure required of her income.

The father states in 2007 that he had asked the mother to increase her child support payments but the mother denies that this is so. The father offers no additional evidence to prove that he made this request so I cannot accept 2007 as the effective notice date. [ 22 ] Although the Parties were not represented by legal counsel, there is no requirement that there be independent legal advice whenever parties agree to amendments.

The father was aware, or should have been fully aware, that the February 2004 Agreement indicated that either could bring a Court application if the parties did not have an agreement regarding the amount of child support to be paid.

The mother proceeded on her understanding that the child support as paid was satisfactory to each of them taking into account all of the circumstances. [ 23 ] The parties ’ Divorce Judgment, Consent Variation Order and February 2004 Agreement was before the period of time when it became standard to include “ exchange Income Tax Returns ” clauses in judgments, orders and agreements. [ 24 ] Had the father wanted the mother to assist with dental fees in 2004 they could have been addressed in the February 2004 Agreement.

If he had wanted the mother to address dental fees in 2005 or later, they should have been addressed during discussions that led to increased child support payments in 2005 and onward. Payor ’ s Conduct [ 25 ] It cannot be said that the mother ’ s conduct was such that there were acts or omissions that privileged her interests over her child ’ s right to child support. The mother did not hide her income, or mislead the father, or intimidate the father from pursuing increased child support. The mother followed their Agreement and child support was adjusted from time to time over the years.

It cannot be said that she acted unreasonably. The Child ’ s Past and Present Circumstances [ 26 ] The evidence presented to the Courts suggests that the child ’ s needs were fulfilled. D.B.S. provides that a Court should not merely conclude that had there been more support, the child would have had more.

Whether a Retroactive Award Would Result in Hardship [ 27 ] The mother has provided evidence that she does not have the ability to pay the amounts of child support that the father seeks on a retroactive basis because of her ill health, and the impact this has had on her employment and the increased out of pocket medical expenses she has faced since October 2010. Further the mother ’ s health problem have not been resolved and her future income is somewhat uncertain.

The Father ’ s Retroactive Child Support Application 2009/2010 Support [ 28 ] In November 2010 the father clearly signalled his position that he was not satisfied with the February 2004 Agreement, although the parties did communicate earlier in 2010 by email regarding the child ’ s difficulties.

This issue is complicated by the fact that the child did not reside with the father at all times from July 2009 to April 2010. [ 29 ] It is the mother ’ s position that at most she should have paid child support of $662 per month based on her Canadian equivalent income of $70,879 for a period of nine months; or $5,598 total. Against that amount ($6,400 - $3,666 = $2,734) $2,734 should be set-off regarding an overpayment in 2009 leaving a balance owing of $2,864.

In 2009 the mother should have paid child support of $611 per month based on Canadian equivalent income of $69,717 for a period of six months (January to June) or $3,666 in total. She paid $6,400. In the result, it is submitted that no more than $2,864 is payable by the mother. [ 30 ] I conclude that having regard to

Section 15.1(5) of the Divorce Act it is determined that $2,864 is owing by the mother to the father for the 2009 through 2010 period. 2011 Support [ 31 ] It is submitted that in the circumstances bearing in mind

Section 15.1(5) of the Divorce Act support should be determined at no more that $500 per month or $6,000 for 2011. Further the mother is presently unable to pay that amount, and seeks a payment arrangement regarding any award made. [ 32 ] I conclude that the mother shall pay the father $566 a month or $6,792 for 2011 based on the Parties ’ respective 2011 Guideline incomes. 2012 Support [ 33 ] In the circumstances, bearing in mind

Section 15.1(5) of the Divorce Act and the mother ’ s ill health and financial circumstances, it is submitted that child support should be determined at no more than $500 per month. [ 34 ] I conclude that ongoing child support will be paid at the rate of $547 a month based on the mother ’ s current $65,000 a year income until the child completes his current final high school term in June 2012, even though he is currently only taking one course and is therefore not currently enrolled full time.

If the child returns to post-secondary school in September 2012, child support will continue in September 2012 at the rate of $547 a month. Otherwise the mother will begin paying on her arrears of child support as I have ordered herein at the rate of $547 a month until those arrears are totally repaid.

Section 7 Expenses [ 35 ] As for

Section 7 expenses claimed by the father, I conclude that they are now largely historical. Therefore no additional

Section 7 expenses will have to be paid. The largest outstanding

Section 7 item relates to kickboxing, which I conclude was not discussed with the mother and is therefore not a proper

Section 7 expense.

C osts [ 36 ] Subject to any prior meaningful offers to settle by the mother that I am not aware of, the father is awarded costs for this application. Whatever success the mother had in this application, the reality is that she has made no payments since December 2009. Heard on the 3 rd day of April, 2012. Dated at the City of Edmonton, Alberta this 5 th day of April, 2012. Donald Lee J.C.Q.B.A. Appearances: Douglas B. Holman for the Plaintiff Shirley A. McNeilly, Q.C. Emery Jamieson LLP for the Defendant