McLean v McLean, 2012 ABQB 313

Court of Queen ’ s Bench of Alberta Citation: McLean v McLean, 2012 ABQB 313 Date: 20120511 Docket: 4803 154965 Registry: Edmonton Between: Donna McLean Plaintiff - and - Alexander Barton McLean Defendant _______________________________________________________ Memorandum of Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ [ 1 ] This is an application by the Defendant for an order fixing the amount of s. 7 expenses for which he is to be responsible on a go- forward basis.

This issue was the subject of a special half-day case management meeting on Monday, April 30, 2012. Both parties appeared in person and through their counsel filed substantial affidavits and supporting documents. At the conclusion of the hearing, I reserved my decision and advised the parties that I would provide them with brief written reasons. [ 2 ] This matter has been under case management since September 7, 2011. The matter of s. 7 expenses has been a highly divisive and complex issue between the parties since the date of separation and, arguably, prior thereto.

From a case management perspective, it presents a very significant obstacle to moving this litigation forward. Background

[ 3 ] The parties married on August 25, 1990 and separated on May 11, 2010. There are three children of the marriage, namely: Carson - currently aged 17; Cierra - currently 14; Savannah - currently 10. [ 4 ] The children of the marriage reside with the Plaintiff, and the Defendant has very little contact with any of them. He is currently only permitted to have supervised access. This lack of contact is the source of considerable distress to the Defendant. A Bilateral Assessment was conducted by Dr. Brian Hindmarch in 2011, pursuant to the order of Greckol J. dated May 30, 2011. After receiving Dr.

Hindmarch ’ s report, the Court directed on December 1, 2011 that a Practice Note 7 Intervention be undertaken by Carol Chandler. Ms. Chandler ’ s report was completed in 2012, and she participated at a Case Management Meeting on March 14, 2012. [ 5 ] By Order dated April 17, 2012, I granted the parties a divorce. The issue of spousal support and the division of matrimonial property have not yet been addressed and remain key issues outstanding between the parties. [ 6 ] The parties ’ guideline incomes were fixed by order of Hillier J. dated July 26, 2011 as follows: Mrs. McLean - $61,789 Mr.

McLean - $150,770 At the hearing of the within application, the Defendant provided a copy of his 2011 T4 slip issued by Boehringer Ingelheim (Canada) Ltd. indicating that his employment income for 2011 was $147,728. In the Defendant ’ s affidavit evidence filed in this application, he states that his monthly net income is approximately $6,000 per month. The Plaintiff had not filed her 2011 income tax return as of April 30, 2011. The affidavit she filed in the within matter did not contain any updated information as to her current income.

Section 7 Expenses - The Order of Hillier J. - July 26, 2011 [ 7 ] On July 26, 2011, Hillier J. directed that the parties were to pay their proportionate share of the following s. 7 expenses from June 1 to July 31, 2011:

a) School uniforms - $742.40

b) Gymnastics - $582.75

c) Driver Training (Carson ) - $1,314.69

d) Orthopedic shoes - $570.75

e) Violin lessons - $1,000

f) Physiotherapy - $64.73

g) Dance shoes/costumes/apparel - $1,215.79

h) Swimming - $45

i) Volleyball - $65

j) YMCA - $123

k) Summer Camp (2010) - $861

l) Piano - $2,477

m) Dance fees and competition - $7,462.99

n) Daycare fees - $6,500

o) School supplies - $745.77

p) Car insurance - $2,600 Total - $26,370.86 [ 8 ] Hillier J. further directed that the parties share equally the s. 7 expenses related to Kumon ($4,275) and Summer Camps ($890) - a total of $5,165.00. He fixed the Defendant ’ s arrears on these s. 7 expenses at $2,582.50. On a go-forward basis, Hillier J. directed that the Plaintiff would be responsible for all expenses associated with Kumon and Violin from August 1, 2011, unless the parties otherwise agree. [ 9 ] He further directed that from August 1, 2011 on a go-forward basis the parties would pay their proportionate share of the following s. 7 expenses:

a) Private school tuition, uniforms, school supplies and any other mandatory expenses;

b) Dance lessons, apparel and footwear;

c) Daycare costs not to exceed $500.00 per month with receipts to be provided. Gas and mileage will continue to be reimbursed over and above the $500.00 payment with receipts;

d) Piano lessons;

e) YMCA monthly membership;

f) Swimming costs;

g) Medical and dental costs not covered by either party ’ s employment benefit plan;

h) Volleyball expenses;

i) Car insurance premiums related to Carson. [ 10 ] The order of Hillier J. further provided that the following category of expenses, being expenses that exceed $500, would be discussed and agreed to by the parties, including:

a) Dance competition fees both inside and outside the Province;

b) Special trips;

c) Driver ’ s training;

d) Car insurance. [ 11 ] Finally, the Hillier J. order set s. 3 child support at $2,737.00 per month commencing August 1, 2011, and directed that s. 7 expenses would be shared proportionately by the Plaintiff and Defendant on a go-forward basis 29.1% and 70.9%, respectively. The Legislation [ 12 ]

Section 7 of the Federal Child Support Guidelines provides in part: 7(1) In a child support order the court may, on either spouse ’ s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child ’ s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family ’ s spending pattern prior to separation...

Analysis [ 13 ] It seems abundantly clear from the various affidavits on file, as well as the representations made by the parties and their respective counsel at successive Case Management meetings that the parties are not able to communicate with one another relative to issues pertaining to the rearing of their three children. Despite the direction of Hillier J. in his July 26, 2011 Order, there has been no discussion between the parties relative to ongoing s. 7 expenses. [ 14 ] Mr. McLean has consistently taken the position that he is constantly being flooded with receipts for expenses incurred by Mrs.

McLean relative to the children ’ s activities and that “ discussion ” amounts to Mrs. McLean demanding payment for expenses she

has unilaterally decided are appropriate for the children. Mr. McLean also takes the position that his annual income simply does not permit him to continue to fund all of the children ’ s extracurricular activities. He says that the parties were living beyond their means during the course of the marriage and that Mrs. McLean ’ s unwillingness to even discuss this issue was one of the principal reasons that he decided to leave the marriage. He says that many of the claimed s. 7 expenses should be paid for by Mrs. McLean from the s. 3 monthly child support. Further, he claims that Mrs.

McLean continues to press him to pay for Kumon and Violin notwithstanding the order of Hillier J. Finally, Mr. McLean says that now that he has his own household to support, the combined income of both parties simply cannot support all of these extracurricular activities and that joint decisions must be made to determine priorities. [ 15 ] Mrs. McLean, on the other hand, has consistently expressed her frustration with Mr. McLean ’ s tardiness in reimbursing her for the various receipts that she has provided to him relative to the children ’ s extracurricular activities. Moreover, she maintains that Mr.

McLean willingly supported all of these same activities during the course of the marriage, and she simply cannot understand why he now seems to be saying that the two of them can no longer afford to maintain these same activities. Mrs. McLean takes the position that the children are doing extremely well in school and have achieved great success in their extracurricular activities, particularly dance, and that she cannot understand why Mr. McLean could even consider discontinuing any of these long-standing activities. Mrs. McLean also challenges the fact that Mr.

McLean is actually incurring rental expenses for his new residence given that the residence is owned by Mr. McLean ’ s mother. [ 16 ] Based on all of the evidence before me, it seems abundantly clear that Mrs. McLean is determined to have the children continue in all of their current activities whether or not Mr. McLean contributes financially to them. She simply does not accept that the joint income of the parties cannot support all of the extracurricular activities. [ 17 ] I now turn to the various s. 7 expenses that were the subject of submissions by both parties on April 30, 2012.

I set the parties ’ proportionate share of these s. 7 expenses at the same level determined by Hillier J., namely 70.9% for Mr. McLean and 29.1% for Mrs. McLean. Tempo Tuition [ 18 ] The children all attend Tempo, a private school in Edmonton, at an annual cost of $13,770 for all three children. Mr.

McLean agrees to continue to support the children ’ s attendance at this school, though he suggests that this issue should be reviewed a year from now once Carson has graduated from high school, Cierra has completed Grade 9 and Savannah has completed Grade 6. [ 19 ] The annual tuition at Tempo is a substantial expense to the parties, representing the largest single s. 7 expenditure. Whether Cierra and Savannah continue at Tempo beyond the 2012-2013 academic year requires a joint decision by the parties. Mrs. McLean is on notice that Mr.

McLean has significant concerns about this continuing expense, and she cannot simply assume that he will continue to pay for private school education for Cierra and Savannah beyond next year. Nevertheless, in my view, Mr. McLean should continue to pay his proportionate share of this expense for the 2011-2012 and 2012-2013 academic years. I calculate this to be $9,762.93 or $813.58 per month. School Uniforms [ 20 ] Mrs. McLean indicates that the cost of school uniforms for the three children is approximately $500 per child per year for a total of $1,500.

In my view, children ’ s clothing is not, generally speaking, an extraordinary expense covered by s. 7. Rather, this is the very type of expense that is intended to be covered by regular child support payments. While it seems clear that the children are required to have special clothing, i.e. uniforms, as part of their attendance at Tempo, Mrs. McLean would be required to buy them clothing suitable for school even if uniforms were not required.

However, in recognition of the fact that the school uniform likely costs more than other suitable clothing, I find that 20% of this amount does represent an extraordinary s. 7 expense and that Mr. McLean should contribute $100 per year per child for this item. This amounts to a total of $300 per year or $25 per month. Piano Lessons, Gymnastics & Swimming Lessons [ 21 ] Mr. McLean is prepared to continue to support the children ’ s piano lessons, Carson ’ s participation in gymnastics, and Savannah ’ s swimming lessons. Mrs.

McLean advises that the piano lessons are spread out over a 10-month period each year and that the total cost for all three children is $1,480 a year. Mr. McLean ’ s share of this expense is $1,049.32 or $87.44 per month. Mrs. McLean also

advises that Carson ’ s gymnastics costs $671 per year. Mr. McLean ’ s proportionate share of this expense is $475.74 or $39.65 per month. Finally, Savannah ’ s swimming lessons are stated to cost approximately $75.00 per month and that she participates in this activity for 10 months per year. I calculate Mr. McLean ’ s share of this expense at $531.75 or $44.31 per month. [ 22 ] Dance is a key element of the McLean children ’ s extracurricular activities.

As previously indicated, the evidence before me clearly indicates that the children have achieved significant success in their longstanding involvement in this activity. It is clear that this is an activity that existed long before the parties separated in 2010. I accept Mrs. McLean ’ s contention that Mr. McLean fully supported these activities during the marriage. Mrs.

McLean indicates that the dance fees for the children in 2011 are as follows: Carson $2,569 (Viter Ukrainian Dancers; Dance Unlimited); Cierra $3,135 (Team Alberta Ukrainian Dancers; Viter Ukrainian Dancers; Dance Unlimited); Savannah $2,894 (Shumka School of Dance; Team Alberta Ukrainian Dancers; Dance Unlimited). [ 23 ] Mr. McLean indicates that he is prepared to support one dance activity per child. Given the long-standing participation of the three children in their current dance activities, I am of the view that it would not be appropriate to curtail any of the current dance activities.

As such, I find that Mr. McLean ’ s proportionate share of this s. 7 expense is $1,821.42 (Carson); $2,222.72 (Cierra); and $2,051.85 (Savannah). This works out to monthly expenses attributable to Mr. McLean of $151.79 (Carson); $185.23 (Cierra) and $170.99 (Savannah). Dance Clothing & Accessories [ 24 ] Mrs. McLean indicates that she expended $5,041.71 for dance equipment for the three children in 2011.

Included in this amount are such things as costume rental, dry cleaning of costumes, the cost of a CD player for home rehearsal purposes, as well as boots, shoes, nylons and various other items of clothing used in conjunction with dance activities. Mr. McLean takes the position that at least some of these items ought properly to be covered by his s. 3 monthly child support. Having reviewed the various receipts that have been provided by Mrs. McLean relative to this item, I agree that 25% of these expenses are not properly s. 7 expenses. As such, I would reduce the overall amount to $3,781.28 of which Mr.

McLean ’ s proportionate share is $2,680.93 or $223.41 per month. Child care and gas expenses for caregiver [ 25 ] As previously indicated, Hillier J ’ s order of July, 2011 included daycare costs up to $500 per month to be shared on a proportionate basis by the parties. He also directed that gas and mileage would continue to be reimbursed over and above the $500 limit set for daycare expenses. This arrangement has continued to the present, though at a previous Case Management meeting, it was agreed that it was not appropriate for Mrs.

McLean ’ s mother to receive mileage as well as reimbursement for her gas expenses related to the transportation of the children to their various activities. [ 26 ] I accept Mrs. McLean ’ s explanation regarding the key role that her mother (the children ’ s Grandmother) has played in supporting and assisting the children with their various extracurricular activities, particularly as it relates to driving them to and from these activities. I also accept Mrs. McLean ’ s explanation of the role that her mother has played in assisting in the overall care of the children. In my view, Mrs.

McLean ’ s mother should be compensated for the time she devotes to child care and for her out-of-pocket expenses in providing transportation to and from activities. [ 27 ] However, Mr. McLean has expressed a strong desire to play a more active role in the lives of his children. He says that he is able to provide some of the support to Mrs. McLean that is currently being provided by her mother. In my view, there is some considerable merit to Mr. McLean ’ s contention that the effect of his mother-in-law ’ s very active involvement in the lives of his children is to exclude him from playing a more active role.

[ 28 ] In my view, Mr. McLean should be permitted to play a more active role in the lives of his children. He has the present ability to assist in the onerous transportation responsibilities resting on Mrs. McLean relative to the extracurricular activities of the children. Accordingly, I would direct that Mr. McLean should continue to pay his proportionate share of the $500 per month cost of child care for the months of May and June, 2012, but that this expense be suspended for the months of July and August.

The summer months can be used as a period of transition to enable the parties to make some new arrangements whereby Mr. McLean takes on some of the responsibility for transporting the children to extracurricular activities. Effective September 1, 2012, I direct that s. 7 daycare costs will be capped at $250 per month, this item to be reviewed in a Case Management meeting on or before December 31, 2012. Gas expenses incurred by Mrs. McLean ’ s mother for the purposes of transporting the children to extra-curricular activities will continue to be shared by the parties. Summer Camps [ 29 ] Mrs.

McLean asks that the cost of summer camps planned for 2012 for each of the children be treated as s. 7 expenses. Specifically, she refers to the following planned activities: Carson - Red Boot Camp (1 week) - $445; Cierra - Red Boot Camp (1 week) - $445; Savannah - Cooking or Gymnastics - 1 week - $250.00 - Shumka Camp (1 week) - $475. [ 30 ] Mrs. McLean confirms that all three children are going on a trip to the Ukraine this coming summer. In my view, there is a need to reduce the overall monthly and annual cost of s. 7 expenses associated with the children ’ s extracurricular activities.

This is one area where I believe a curtailment of an activity will have minimal impact on the children. More important, the determination of Mr. McLean ’ s summer parenting time with the children, notably Savannah and Cierra, has yet to be determined. In my view, given the recent Practice Note 7 Intervention Report prepared by Carol Chandler, the re-introduction of regular parenting time with their father is a matter of urgent priority for at least Cierra and Savannah.

The final determination of any extracurricular activities for the children for the summer beyond the Ukraine trip should await the outcome of the upcoming Case Management meeting scheduled for May 25, 2012 to fix the summer access schedule. Carson ’ s Braces [ 31 ] Mr. McLean provided evidence that he expended a total of $2,560 for Carson ’ s braces (orthodontics) over and above the amount covered by his medical plan with his employer. He also says that he will continue to be required to pay $160 per month over and above the portion covered by his medical plan until April or May, 2013.

In my view, this is a legitimate s. 7 expense that should be shared by both parties. As such, I find that Mrs. McLean is responsible for $744.96 of the amount already expended by Mr. McLean and for $46.56 per month effective May 1, 2012. Special Trips [ 32 ] Mrs. McLean asks the Court to find that the following special trips be treated as s. 7 expenses:

a) Quebec School Trip (spring, 2012) - Cierra;

b) Ukrainian Viter Trip (summer, 2012) - Carson, Cierra, Savannah;

c) Costa Rica School Trip (spring, 2013) - Carson. [ 33 ] In my view, the Ukrainian Viter trip planned for the summer of 2012 for all three children is not a proper s. 7 expense. While I have no doubt that the trip could be of great potential value to all three children, this is the very type of extraordinary expense that should have been the subject of discussion and agreement between the parties before any financial commitment was made to take this trip. Mr. McLean ’ s affidavit evidence clearly states that he was never consulted by Mrs.

McLean about this trip but, rather, simply asked to pay once she made the decision to incur this very significant expense. Under all of the circumstances, I am not prepared to include this as a s. 7 expense. [ 34 ] More information is required with respect to Cierra ’ s participation in the Tempo school trip to Quebec in the spring of 2012, and Carson ’ s proposed participation in the school trip to Costa Rica in the spring of 2013. While I have endeavoured to minimize the requirement for Mr. and Mrs.

McLean to interact with one another relative to the upbringing of their children, this sort of expense and activity requires the parties to make joint decisions. As previously indicated, I do not have sufficient information to enable me to assess the significance of either of these trips to Cierra ’ s and Carson ’ s “ connection ” to, and sense of belonging in, their respective school classes. I am also left not knowing the extent to which fund-raising activities offset the cost of the trip to Quebec this past spring, or will offset the cost of the trip to Costa Rica during Carson ’ s graduation year at Tempo.

I direct the parties to come back to me for a decision on these two items once this additional information has been obtained, assuming that they are not able to come to a mutually acceptable arrangement between themselves. Driver Training; Car Insurance for Carson; Computer for Cierra [ 35 ] Mrs. McLean asks the Court to include the following as s. 7 expenses: a) $1,320 - AMA Driver Training education for Cierra; b) $2,268 - car insurance for Carson (per year); c) $1,329.00 - computer for Cierra. Mr. McLean takes the position that these items should be covered by the table support amount that he provides Mrs.

McLean for their three children. [ 36 ] In principle, I agree that Cierra ’ s driver training course should be treated as a s. 7 expense. However, I have some reservation as to the actual cost of same and direct that Mrs. McLean and/or Cierra provide Mr. McLean with some options in terms of the cost of the AMA and other similar programs. Mr. McLean, in conjunction with Cierra, can select a program.

He will, of course, be required to pay his proportionate share of this expense. [ 37 ] With respect to Carson ’ s insurance, I am of the view that this item does not fall within the ambit of s. 7 FCSG. [ 38 ] I am not prepared to include the cost of Cierra ’ s computer as a s. 7 expense. On the evidence and representations before me, it seems clear that this purchase was not discussed with Mr. McLean in advance as required by the Hillier J. Order. [ 39 ] Finally, Mr. McLean asks the Court to take into consideration the fact that he covered 100% of the cost of both the Bilateral Assessment Report prepared by Dr.

Brian Hindmarch and the Practice Note 7 Intervention Report prepared by Carol Chandler. These two processes cost him $14,850 and $13,250, respectively. Mr. McLean asks the Court to set off Mrs. McLean ’ s share of these costs against the total amount of s. 7 expenses owing to her. In his affidavit sworn March 4, 2012, Mr. McLean initially says that Mrs. McLean should be responsible for 50% of these assessments. (He subsequently seems to suggest that Mrs. McLean should be responsible for 100% of the cost of the assessments.)

[ 40 ] For her part, Mrs. McLean takes the position that the costs of these expert reports should be dealt with in conjunction with the ultimate distribution of matrimonial property. [ 41 ] In my view, the cost of these two assessments should be shared equally by the parties. As such, each party is responsible for $14,050. I direct that 50% of that amount, namely $7,025, be credited to Mr. McLean immediately, with the balance to be credited to him in conjunction with the ultimate distribution of matrimonial property. [ 42 ] The following is a

summary of my conclusions relative to Mr. McLean ’ s responsibility for s. 7 expenses: Total Mr. McLean Mr McLean Mrs. McLean (Total) (Monthly) Tempo Tuition $13,770 $9762.93 $813.58 School Uniforms $1500 $300 $25 Dance Fees Carson 2569 1821.42 151.79 Cierra 3135 2222.72 185.23 Savannah 2894 2051.85 170.99 Total Mr. McLean Mr. McLean Mrs. McLean (Total) (Monthly) Piano Lessons 1480 1049.32 87.44 Gymnastics 671 475.74 39.65 Swimming Lessons 750 531.75 44.31 Dance Equipment 3781.28 2680.93 223.41 (75%) Carson ’ s Braces 2560 1815.04 744.96 (Lump Sum) Carson ’ s Braces 160 113.44 46.56

( Ongoing) Child care 6,000 4,254,00 354.50* Child care (effective 01/09) 3,000 2,127.00 177.25 Gas for Caregiver variable variable s. 3 Child Support $2,737 Sub Total $4,722.53 Drivers ’ Education Further information required Special Trips Quebec (completed) Further information required Costa Rica (Carson) Bilateral 14,850 $14,050 Assessment Practice Note 7 13,250 Intervention [ 43 ] The stay of enforcement on the arrears of support shall be extended until May 25, 2012 so as to allow the parties to re- calculate the outstanding arrears in light of this decision. [ 44 ] The parties may address the Court and request revised calculations if there are any inaccuracies in the financial information as set out herein.

Heard on the 30 th day of April, 2012. Dated at the Town of Peace River, Alberta, this 11 th day of May, 2012.

M. David Gates J.C.Q.B.A. Appearances: C. Coles for the Plaintiff G. Hammermeister for the Defendant