Fidler v Fidler, 2012 ABQB 270

Court of Queen ’ s Bench of Alberta Citation: Fidler v Fidler, 2012 ABQB 270 Date: 20120501 Docket: 4803 136092 Registry: Edmonton Between: Bruce Eugene Fidler Applicant - and - Dawn Kathleen Fidler Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Overview [ 1 ] This is an application to cancel child support arrears and reduce ongoing child support. Mr. Fidler filed the application in British Columbia. On January 4, 2011, Madam Justice Gropper of the British Columbia Supreme Court granted a provisional order, cancelling all of Mr. Fidler’s child support arrears and reducing his ongoing child support with respect to his three children. Mr. Fidler now seeks to confirm the provisional order in Alberta.

Background [ 2 ] The parties were married on May 21, 1994. [ 3 ] On February 20, 2007, Madam Justice Ross granted a divorce judgment in the Court of Queen’s Bench of Alberta. At the time of divorce, the three children of the marriage were: Sarah Cathleen Fidler-Bowers, born [...], 1993; Nicole Lynn Fidler, born [...], 1996; and Chantelle Dawn Fidler, born [...], 2000. [ 4 ] The divorce judgment granted sole custody of the three children to Ms. Fidler, and ordered Mr. Fidler to pay $868 per month in child support, effective February 1, 2006. The divorce judgment also ordered Mr. Fidler to pay $107 per month in

section 7 expenses when he is working, and $39 per month when he is not working. These figures were based on an imputed income of $45,000.00 per year. [ 5 ] Mr. Fidler’s evidence is that he did not have notice of the proceedings which resulted in the divorce judgment, and did not know about the order to pay child support until after it was granted. [ 6 ] In May 2007, Ms. Fidler registered with the Maintenance Enforcement Program (MEP). Since then, Mr. Fidler’s child support payments have been irregular and in small amounts. Between February 1, 2006 and March 12, 2012, Mr.

Fidler paid a total of $2,254.37 for the support of his three children. [ 7 ] As of March 12, 2012, Mr. Fidler’s child support arrears amount to $55,854.55, broken down as follows: Crown arrears: $ 46,466.97 Arrears owing to Ms. Fidler: $ 9,287.58 Penalties $ 100.00 Total arrears: $ 55,854.55 [ 8 ] During the marriage, Mr. Fidler worked as a truck driver in Alberta. In July 2007, he moved to Nanaimo, British Columbia to live with his sister. Mr. Fidler has not found regular employment since moving to British Columbia. [ 9 ] From January to March 2011, Mr. Fidler received social assistance.

From mid February until early March 2011, Mr. Fidler obtained temporary employment with Staples, at a wage of $8.95 per hour. In August 2011, Mr. Fidler obtained employment with Axel Pollard, at a wage of $14.00 per hour. In 2012, Mr. Fidler has worked 6.5 hours cleaning out sumps for Winston Property Management, earning a total of $96.00. This works out to a wage of $14.77 per hour. [ 10 ] Mr. Fidler’s actual income over the past six years is summarized below: 2006 $ 40,081.00

2007 $ 19,892.00 2008 $ 10,352.79 2009 $ 7,290.00 2010 $ 6,815.00 2011 $ 1,725.00 Income Assistance $ 1,194.19 Staples $ 1,561.00 Axel Pollard Total 2011 $ 4,480.17 2012 to date $ 96.00 [ 11 ] At some point after moving to British Columbia, Mr. Fidler’s driver’s license was cancelled because he was in arrears of child support. Mr. Fidler suggests that this is one of the reasons he has been unable to find steady employment in British Columbia. Mr. Fidler’s evidence about when he did and did not hold a driver’s license is somewhat incomplete. I am satisfied that Mr.

Fidler lost his driver’s license at some point after moving to British Columbia in 2007, and got it back in mid-December 2010. However, in September 2011, Mr. Fidler received a letter stating that his driver’s license had again been put “on hold.” The letter explains where one can get more information about license withholding, including a website and a toll free telephone number. Mr. Fidler testified that he understood this letter to mean that he could not drive, though he took no steps to confirm that understanding. Mr.

Fidler’s evidence is that his job at Axel Pollard ended because his license was put on hold. [ 12 ] At the time of the March 13, 2011 hearing, Mr. Fidler was supporting himself through food banks, collecting scrap metal and other recycling, and through his sister and girlfriend. He was unsure about whether he held a valid driver’s license. [ 13 ] Mr. Fidler’s efforts to find employment since moving to British Columbia have been limited. Mr. Fidler applied for three jobs between Christmas 2010 and August 2011, and approximately five jobs in total since January 2012. Mr.

Fidler’s evidence is that he goes to the Service British Columbia Center every day to check the job boards, and checks online job boards using his sister’s computer from time to time. [ 14 ] Mr. Fidler has two children outside of this marriage. There is some evidence that Mr. Fidler has outstanding child support arrears with respect to one of these children. Mr. Fidler did not provide evidence about the amount of any child support arrears or ongoing child support obligations he may have with respect to this child. [ 15 ] Mr. Fidler owes money to the Canada Revenue Agency.

As of March 10, 2011, his outstanding balance with the CRA was $11,288.08. Procedural History [ 16 ] On December 9, 2010, Mr. Fidler filed an application to vary the divorce judgment, seeking a cancellation of child support arrears and a reduction of ongoing child support. The application was filed in the Supreme Court of British Columbia (BCSC). [ 17 ] On January 4, 2011, Madam Justice Gropper of the BCSC heard the application in Nanaimo. Gropper J found that Mr. Fidler was unable to find employment, despite serious and lengthy attempts. She granted a provisional order, cancelling all of Mr.

Fidler’s child support arrears and reducing Mr. Fidler’s ongoing child support to $240.00 per month, effective January 1, 2011. This was based on an imputed income of $14,560.00 per year. The provisional order also requires Mr. Fidler to provide notice to Ms. Fidler when his income increases, and adjust child support accordingly.

[ 18 ] On September 14, 2011, this matter first came before me for confirmation of the provisional order. Mr. Fidler had failed to provide the Court or Ms. Fidler with financial or job search information since Gropper J’s January 2011 order. The outcome of the September 14, 2011 hearing is summarized below: 1. Mr. Fidler was ordered to provide detailed information regarding his past and current income, employment searches, other income sources and, if applicable, ongoing child support and child support arrears with respect to children of other relationships.

This evidence was required no later than November 4, 2011. 2. Based on Ms. Fidler’s affidavit evidence, it was determined that the eldest child Sarah, born [...], 1993, was no longer a child of the marriage as defined by the Divorce Act , effective February 26, 2009. 3. On an interim and without prejudice basis, Mr. Fidler was ordered to pay $684.00 per month to Ms. Fidler in child support, effective September 1, 2011. This was based on an imputed Guideline income of $45,000.00 per year, pending receipt of further information. 4. The matter was remitted back to British Columbia for Mr.

Fidler to provide further and better information, and adjourned to November 23, 2011. [ 19 ] On November 23, 2011, the matter came before me a second time. Mr. Fidler had not complied with the September 14, 2011 order. The matter was remitted back to British Columbia a second time, to give Mr. Fidler a further opportunity to provide the evidence required for his application. Mr. Fidler was to provide the further information no later than February 21, 2012, and the matter was adjourned to March 13, 2012. [ 20 ] Noting Ms.

Fidler’s objection to the second adjournment, the Court made the adjournment peremptory on Mr. Fidler. The order set out that if Mr. Fidler did not comply with the order to provide the required information, the next Justice hearing the matter may impute an income and make a final order based only on the materials before the Court, or may dismiss the application. [ 21 ] On November 30, 2011, Mr. Fidler filed an affidavit including some further financial and job search information. [ 22 ] On March 13, 2012, the matter came before me a third time. Ms. Fidler was represented by counsel. Mr.

Starkie appeared for the Director of Income and Employment Supports and MEP. Ms. Hillenbrand, from the Family Law Information Center, appeared for the Attorney General as a Friend of the Court. Mr. Fidler appeared and gave oral evidence by telephone. Issues [ 23 ] In order to determine whether Gropper J’s provisional order should be confirmed in Alberta, the following issues must be decided: 1. Should Mr. Fidler’s child support arrears be cancelled, and if so, in what amount? 2. Should Mr. Fidler’s ongoing child support, as set out in the divorce judgment, be varied?

Law Section 19(7) of the Divorce Act , RSC 1985, c 3 (2 nd Supp) [ Divorce Act ] sets out the Court’s jurisdiction with respect to an application

to confirm a provisional order:

(7) Subject to subsection (7.1), at the conclusion of a proceeding under this section, the court shall make an order (

a) confirming the provisional order without variation; (

b) confirming the provisional order with variation; or (

c) refusing confirmation of the provisional order.

(7.1) A court making an order under subsection (7) in respect of a child support order shall do so in accordance with the applicableguidelines. [24] In Haisman v Haisman (1994), 1994 ABCA 249 , 157 AR 47 (CA), the Alberta Court of Appeal set out the test toretroactively reduce or cancel child support arrears: Where a former spouse has not been able, for relatively short periods of time in the past, to make child support payments as they camedue, this circumstance does not justify a variation order which has the effect of reducing or eliminating arrears of child support.

Where the past inability to make child support payments as they came due has lasted for a substantial period of time, but the formerspouse did not apply during that time for a variation order, the situation may be different. On a later application to vary, a judge will haveto decide, with the benefit of hindsight, whether it would have been appropriate to suspend enforcement of the support orderduring the time when the former spouse was unable to pay, or whether at least a temporary reduction in the child supportpayments would have been in order.

A judge should view with considerable skepticism any claim that a reduction in the supportpayments, temporary or indefinite, would have been proper. However, if he or she decides that it would, the judge may for this reasonreduce accordingly the arrears of child support which have built up. In my view this is a special circumstance. I wish to emphasize that the mere accumulation of arrears, without evidence of a past inability to pay, is neither a change under s. 17(4)of the Divorce Act, nor a special circumstance. A present inability to pay arrears of child support does not by itself justify a variation order.

It may justify a suspension of enforcement inrelation to the arrears for a limited time, or an order providing for periodic payments on the arrears. However, in the absence of somespecial circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilitiesthat he or she cannot pay and will not in the future be able to pay the arrears.

In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of childsupport so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse orjudgment debtor cannot then pay, and will not at any time in the future be able to pay, the arrears. [Emphasis added.] Positions of the Parties [25] Mr. Fidler seeks a cancellation of child support arrears, along with all related interest and default charges.

He also seeks avariation in ongoing child support payments, based on an imputed income of $14,560.00 per year. Under the B.C. Child Support Tablesfor the support of two children, this corresponds to a payment of $236.00 per month. [26] Ms. Fidler does not object to a reduction of child support arrears based on Mr. Fidler’s actual income, so long as the amountowed to her is preserved ($9,287.58). With respect to ongoing child support, Ms. Fidler agrees that Mr. Fidler should not be imputed anincome of $45,000.00, but does argue that he could be earning more than he has actually earned. Ms.

Fidler is prepared to accept animputed income based on a wage of $14.00 per hour, 35 hours per week, 52 weeks per year. This amounts to a yearly income of

$25,480.00. Under the B.C. Child Support Tables for the support of two children, this corresponds to child support payments of $398.00 per month. [ 27 ] MEP agrees that, based on Mr. Fidler’s evidence, a reduction in child support arrears is appropriate. However, MEP takes the position that Mr. Fidler should be imputed some past income higher than what he actually earned, and a cancellation of all child support arrears is not appropriate. 1. Should Mr. Fidler’s child support arrears be cancelled, and if so, in what amount? [ 28 ] In order to grant Mr.

Fidler’s application to reduce arrears, he must establish either a past inability to pay, or a current and future inability to pay. With respect to a past inability to pay, the evidence must establish that it would have been appropriate to suspend enforcement of the order or that a reduction in child support payments would have been in order. [ 29 ] The provisional order, which Mr. Fidler seeks to confirm, cancels all child support arrears. Gropper J. held that Mr. Fidler’s evidence met the high test to cancel all child support arrears based on a past inability to pay. [ 30 ] I agree that Mr.

Fidler’s evidence establishes a past inability to pay child support at the level set out in the divorce judgment, an imputed income of $45,000.00 per year. I am satisfied that had Mr. Fidler applied for a variation order earlier, a reduction in child support payments would have been appropriate. [ 31 ] However, I decline to confirm the provisional order, in so far as it cancels all child support arrears. Even a reduction in arrears based on Mr. Fidler’s actual income over the past five years does not result in a complete cancellation of all arrears. [ 32 ] I am not satisfied that Mr.

Fidler has taken reasonable steps to find employment since moving to British Columbia. This is Mr. Fidler’s application, and he must therefore provide the Court with evidence that the divorce judgment should be varied, including evidence of his efforts to find a job. The evidence Mr. Fidler has provided to the Court about his job search is incomplete. Based on the evidence that is before the Court, Mr. Fidler has not been diligent in finding employment. In my view, he has also not been diligent in making inquiries as to the status of his driver’s license. [ 33 ] While Mr.

Fidler held a driver’s license, he found employment with Axel Pollard at $14.00 per hour. This most accurately reflects the income that Mr. Fidler could be earning. [ 34 ] The divorce judgment is retroactively varied such that from February 1, 2006 to December 1, 2007, Mr. Fidler’s child support payments will be calculated based on his actual income. Effective January 1, 2008, Mr. Fidler’s income will be imputed based on a wage of $14.00 per hour, 35 hours per week, and 52 weeks per year. This amounts to an imputed income of $25,480.00 per year. [ 35 ] Sarah temporarily lived with Mr.

Fidler in British Columbia, beginning in mid October 2008. Ms. Fidler’s evidence is that Sarah lived with him for approximately 3.5 months. Mr. Fidler’s evidence is that Sarah lived with him for 5 months. There will be a further reduction of Mr. Fidler’s child support arrears, to adjust for Mr. Fidler’s support of Sarah for four months in 2008-2009. As set out below, Mr. Fidler’s payments during this period are set at $533.00 per month for three children. Based on $177.67 for one child for four months, Mr. Fidler’s arrears will be reduced by a total of $710.68. [ 36 ] In the result, Mr.

Fidler will be left with $32,388.95 in child support arrears, as set out below: Year Actual Income Imputed Income Payment Total

2006 Feb - Dec 40,081.00 - 766.00 8,426.00 2007 Jan - June 19,892.00 - 425.00 2,550.00 July - Dec 420.00 2,520.00 2008 Jan - Dec 10,352.79 25,480.00 533.00 6,396.00 2009 Jan - Feb 7,290.00 25,480.00 533.00 1,066.00 March - Dec 400.00 4,000.00 2010 Jan - Dec 6,815.00 25,480.00 400.00 4,800.00 2011 Jan - Dec 4,480.17 25,480.00 400.00 4,800.00 2012 Jan - Feb 96.00 25,480.00 398.00 796.00 Total Child Support to be paid by Mr. Fidler 35,354.00 Less what Mr. Fidler paid in child support arrears (2,254.37) Less adjustment for Sarah’s time with Mr. Fidler

(710.68) Total child support arrears after reduction 32,388.95 [ 37 ] The mid-2007 change in child support payments reflects that Mr. Fidler moved to British Columbia in July 2007. Up to June 2007, the payments are based on the Alberta tables. After and including July 2007, the payments are based on the British Columbia tables. The reduction in child support payments in 2009 reflects that Sarah was no longer a child of the marriage, effective February 26, 2009. [ 38 ] The amount of child support owing to Ms. Fidler will be preserved, as will the $100.00 penalty.

The arrears will be broken down as follows: Crown arrears: $ 23,001.37 Arrears owing to Ms. Fidler: $ 9,287.58 Penalties $ 100.00 Total arrears: $ 32,388.95 2. Should Mr.

Fidler’s ongoing child support, as set out in the divorce judgment, be varied? [ 39 ] The Court’s jurisdiction to vary a child support order is set out in section 17(1) of the Divorce Act , which provides: Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [ 40 ] The provisional order varies the divorce judgment, and requires Mr.

Fidler to pay $240.00 per month in child support, effective January 1, 2011. This is based on an imputed income of $14,560.00 per year, which is described as a minimum wage income.

[ 41 ] I agree that Mr. Fidler’s evidence establishes a material change of circumstances such that the divorce judgment should be varied to reduce Mr. Fidler’s ongoing child support obligations. Mr. Fidler’s evidence establishes that he is not able to earn an income of $45,000.00 per year. [ 42 ] However, I decline to confirm the provisional order with respect to the amount of Mr. Fidler’s imputed income and ongoing child support obligations. For the reasons set out above, I am not satisfied that Mr. Fidler is capable of earning only a minimum wage income.

The $14.00 per hour wage more accurately reflects what Mr. Fidler is capable of earning. [ 43 ] The divorce judgment will be varied such that Mr. Fidler’s child support payments will be based on an imputed an income of $25,480.00 per year. Effective March 1, 2012, Mr. Fidler will pay $398.00 per month to Ms. Fidler for the support of the two children, Nicole and Chantelle. 3. Should Mr. Fidler’s obligation to pay

section 7 expenses, as set out in the Divorce Judgment, be varied? [ 44 ] As per the Divorce Judgment, Mr. Fidler was to pay s. 7 expenses of $107 per month when working and $39 per month when not working. The evidence is clear that for much of the time since the parties’ separation, that Mr. Fidler has not been working and that he should be obliged to pay $39 per month. Despite him not working, I have already imputed income for many of these years which has left him with significant s. 3 child support arrears. [ 45 ] There is little, if any, evidence before me as to the children’s

section 7 activities other than what is set out in some receipts which are appended to Ms. Fidler’s affidavit of September 8, 2011. This issue was also not raised by any of the parties during the course of these proceedings. Given Mr. Fidler’s significant obligations for s. 3 child support, I decline to include any obligation for s. 7 child support in the calculation of arrears, as per paragraph 36 of these Reasons. Conclusion [ 46 ] Pursuant to section 19(7) of the Divorce Act , I confirm the January 4, 2011 provisional order of Gropper J. with variation.

The divorce judgment is retroactively varied such that Mr. Fidler’s child support arrears for the February 1, 2006 to February 29, 2012 period are reduced to $32,388.95, preserving the $9,287.58 owed to Ms. Fidler. [ 47 ] Going forward, the divorce judgment is varied such that Mr. Fidler’s child support payments will be calculated based on an imputed income of $25,480.00 per year for the support of the two children. Effective March 1, 2012, Mr. Fidler will pay $398.00 per month to Ms. Fidler for the support of Chantelle and Nicole. [ 48 ] Finally, I would direct that for any payment made by Mr.

Fidler relative to his ongoing s. 3 child support, he shall be given a two-for-one credit which shall be recorded by the respective Directors of Maintenance Enforcement in Alberta and the Family Maintenance Program in British Columbia. He is also required to make a payment of $50 per month towards his child support arrears until such arrears are paid in full. He shall be given a stay of enforcement from the relevant maintenance enforcement authorities provided that his arrears payment and his ongoing s. 3 child support payment are made in full by the end of each month in which they are due.

Heard on the 13 th day of March, 2012. Dated at the City of Edmonton, Alberta this 30 th day of April, 2012.

M. David Gates J.C.Q.B.A. Appearances: The Applicant on his own behalf N.G. May for the Respondent K. J. Hillenbrand for the Attorney General of Canada (Family Law Information Center) as a Friend of the Court T. K. Starkie for the Director of Income and Employment Supports and MEP