Cloutier v. Cloutier, 2012 ABQB 336

Court of Queen ’ s Bench of Alberta Citation: Cloutier v. Cloutier, 2012 ABQB 336 Date: 20120518 Docket: FL04 01256 Registry: Grande Prairie Between: Marie Gertrude Denise Cloutier Applicant - and - Steven Cloutier Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In December, 2011, the child ’ s paternal grandmother applied for retroactive child support from the respondent father. The claim was for the period August 1, 2010, the date on which the applicant and Kenneth Breland became the 17 year old child ’ s guardians by way of a Family Law consent order, to date.

In February, 2012, the child went to live with her father ’ s wife ’ s sister, a home in which she had lived prior to the consent guardianship order. [ 2 ] The application for retroactive support is denied: within a family, relatives might make arrangements that are reasonable to them although they may be difficult to explain to an outsider. The respondent never attempted to evade the payment of child support; the applicant just never asked for it. Of course, once requested it must be paid. However, since February, 2012, the child in question has not

lived with her grandmother but has, instead, gone back to live with her father ’ s mother ’ s sister who has not asked for support payments. In all the circumstances, therefore, the applicant is entitled to child support for two months, December 2011 and January 2012. If the child should return to live with her grandmother, then the grandmother could renew her application for child support. 1. Background [ 3 ] Until 2007, the child in question lived with her mother and had visits with her father. Between 2007 and 2009, because the mother was ill, the child went to live with her father. That did not go well.

In 2008, she went to live for a time with her paternal grandmother. However, the grandmother states “ at that time, [the child] wanted to live with [her father ’ s wife ’ s sister]. After two months of living with [her step-aunt], the child ’ s father removed her from that home and placed her in another home. ” The grandmother continues: “ [the child] had been doing well at [her step-aunt ’ s]; she was receiving good marks and she wanted to stay there. [Her step- aunt] wanted her to stay but [the child ’ s father and his wife] made this decision even though it was against [the child ’ s] best interests.

When I confronted [my son] about it, he said he wanted to teach her a lesson. ” [ 4 ] The grandmother acknowledges that she never asked the father for child support. The grandmother has not provided her own financial disclosure as she would be expected to do under the Federal Child Support Guidelines as a person asking for support. 2.

Is the grandmother entitled to child support while the child with respect to whom she is a guardian is living with her? [ 5 ] Clearly, s. 50 of the Family Law Act authorizes a court to order a parent to pay child support either to a guardian (s. 50(1)(b)) of a child, or to a person who has the care and control of a child (s. 50(1)(c)).

The grandmother, who is the child ’ s guardian, is entitled to payment of child support when she is caring for the child within the meaning of the Act. [ 6 ] Clearly, then, the grandmother is entitled to support, according to the Federal Child Support Guidelines for the months of December 2011 and January 2012. 3.

Is the grandmother entitled to retroactive support? [ 7 ] I have concluded that the grandmother is not entitled to retroactive child support. [ 8 ] As the Supreme Court of Canada indicated in its recent series of decisions on retroactive support, in Canada, child support is based on demand. [ 9 ] Within a family, relatives might make arrangements for all kinds of matters, including child support, that are reasonable to them although they may be difficult to explain to outsiders.

It is far from inconceivable that a grandmother might take on the financial responsibility of a grandchild for a variety of reasons, including - but certainly not limited to - having relatively better financial circumstances than the child ’ s parent. If a guardian doesn ’ t ask for money, the child ’ s parent doesn ’ t know that the guardian wants money. Here, the child ’ s father never attempted to evade the payment of child support; the applicant just never asked for it.

Nor is any reason advanced by the grandmother - such as emotional or financial difficulties which prevented her from getting advice that she could ask for child support - why she did not ask for child support prior to December, 2011. [ 10 ] In the result, the grandmother ’ s claim for retroactive support is denied. 4. Is the grandmother entitled to child support when the child is not living with her and the person with whom the child is living has not asked for support?

[ 11 ] Whether or not a child is actually living with the person who is asking for support is not the determining factor in determining whether child support should be paid to that person: for example, parents are sometimes entitled to child support even while their child is living away from home while attending post-secondary educational institutions. However, the thrust of the Family Law Act suggests that whether the person who is asking for support is actually the person with care of the child is a factor to be taken into account in making child support determinations.

It would not make sense, for example, to order a parent to pay guideline child support both to a guardian and also to the person with actual care of the child. [ 12 ] Here, the status of the child is unclear. It is clear that the child left the grandmother ’ s home in February, 2012 to return to her step-aunt ’ s residence. It is clear from the grandmother ’ s own evidence that the child has, over the past few years, enjoyed living at her step-aunt ’ s. In the result, it is not clear that the child will actually return to live with her grandmother.

There is no evidence that the child ’ s step-aunt has asked for child support. If the step-aunt requested support, or if the child returned to live with her grandmother, then the issue of child support would, of course, be revisited. 5. Conclusion [ 13 ] For the reasons set out above, the grandmother ’ s application for child support is allowed, in part; she is entitled to support, according to the Federal Child Support Guidelines, for the months of December, 2011, and January, 2012. 6. Costs [ 14 ] If the parties are not agreed on costs, I may be spoken to within 30 days of receipt of this decision.

Heard on the 16 th day of May, 2012. Dated at the City of Grande Prairie, Alberta this 18 th day of May, 2012. J.B. Veit J.C.Q.B.A. Appearances: Jennifer F. Villebrun, Villebrun Law Office for Applicant Glenn A. Taylor, Taylor & Company for Respondent