Spurrell v Spurrell, 2012 ABQB 238

Court of Queen ’ s Bench of Alberta Citation: Spurrell v Spurrell, 2012 ABQB 238 Date: 20120417 Docket: 4804 8487 Registry: Grande Prairie Between: Bradley Lloyd Philip Spurrell Applicant - and - Barbara Anne Spurrell Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. J.

Hall _______________________________________________________ [ 1 ] The Applicant father has applied to have his child support payment reduced on the basis that parenting is now shared between the Applicant and the Respondent, and on the basis that each party has provided new income figures that differ from those that were current as at the time of a Consent Order and then a Divorce Judgment. [ 2 ] Originally the mother had primary care of the two children with the father paying $1,621 per month in child support, based upon his annual earnings at that time. [ 3 ] The father wished to move to shared parenting of the children.

An agreement was reached between the parties that a gradual

move to such new parenting status would occur, and in fact it has occurred. The parties consented to an Order making such provision which order was granted by this Court on October 13, 2010, The order recited that the mother earned $21,628.54 per annum and the father earned $107,000 per annum. [ 4 ] Notwithstanding this recital of the father’s income the father agreed to continue to pay $1,621 per month in child support and it was so ordered.

It is to be noted that the $1,621 is the amount originally payable which was based on an annual income for the father of $114,080. [ 5 ] The parties had agreed, however, that the father’s child support payments would remain at $1,621 per month notwithstanding his modest drop in income to $107,000 per annum and notwithstanding that the mother was earning $21,678.54 per annum. [ 6 ] The terms of the October 13, 2010 order were carried forward into the Divorce Judgment and Corollary Relief Order of March 28, 2011, to the satisfaction of both parties. [ 7 ] Now a year later, the father seeks to have his payments reduced, by taking into account his present income ($115,840 per annum), taking into account the mother’s present income ($26,950.00 per annum), and attributing child support obligations each to the other, based upon the shared parenting regime.

The father presents a budget and maintains that his present payments have him “under water”. He recites the provisions of

section 9 of the Federal Child Support Guidelines, and argues the conditions, means, needs and circumstances of the parties and the children make it equitable to charge the mother with child support payments while the father cares for the children.

The father says changes in earnings of the parties constitute a material change in circumstances, such that a recalculation of this nature should occur. [ 8 ] The mother says she agreed to the terms of the Consent Order and then the Divorce Judgment on the basis that the father had agreed to pay full child support and not claim any from her, notwithstanding the change in shared parenting, and notwithstanding her earnings of $21,678.54 per annum. [ 9 ] I agree that changes in income of the parties constitute a material change in circumstances.

However, the mother’s change in circumstance has been that her income has gone from $21,628.00 to $26,950, an increase of $5,332. [ 10 ] That is the only change in the mother’s circumstances. Her previous income was known and contemplated by the parties when the terms of the Consent Order and then the Divorce Judgment were agreed upon.

I find that she is required to pay child support, but only on the increase in her earnings, since the original $21,628 was previously factored in, by agreement. [ 11 ] The child support guidelines call for payment for child support for two children, on an income of $5,332.00 per annum, of $0.00 per month. [ 12 ] Since the father requests an adjustment, his increased income must also be considered. His income has increased, to $115,840 per annum.

Under the child support guidelines, for two children, he is now required to pay $1,642 per month to the mother. [ 13 ] The Court will set off the $0 per month payable by the mother against the $1,642 payable by the father, to arrive at a net obligation by the father of $1,642.00 per month. [ 14 ]

Section 7 expenses shall continue to be borne 70% by the father and 30% by the mother, as there has not been a significant change in their relative incomes. [ 15 ] The father has failed to convince me that the minor changes in income have resulted in a material change in the conditions,

means, needs and circumstances of the parties, so as to justify a change in his obligations. Though he suggests that the mother is intentionally underemployed, there is a paucity of evidence to support that argument. [ 16 ] The father made his deal, well knowing that the mother was earning $21,628 per annum at the time. Only the increase in the mother’s earnings beyond that amount should be included in this calculation. The father is free to attempt to make out, in future years, a change in conditions means, needs and circumstances; or a claim that the mother is underemployed.

However, on the evidence before me, he has failed to make out those claims at this time. [ 17 ] The mother shall have costs from the father of this special chambers application in the amount of $1,000.00. Heard on the 04th day of April, 2012. Dated at the City of Calgary, Alberta this 11th day of April, 2012. R. J. Hall J.C.Q.B.A. Appearances: Michael E. Wheaton for the Applicant Erin Brideau, Student-at-Law for the Respondent