Hiscock v Hiscock, 2012 ABQB 337

Court of Queen ’ s Bench of Alberta Citation: Hiscock v Hiscock, 2012 ABQB 337 Date: 20120522 Docket: 4804 006036 Registry: St. Paul Between: Charlene Hiscock Respondent/Plaintiff - and - Earl Hiscock Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Present Application [ 1 ] This is an application by the father to eliminate all arrears of child support for the one remaining child of the marriage because based on his annual income in 2010 $27,710, he has been overpaying. The Applicant ’ s income has fallen over a period of several years as follows: –

Year Income Source 2007 $75,891.00 Income Tax Return 2008 $75,921.72 Income Tax Return 2009 $42,765.80 Income Tax Return 2010 $27,710.52 T4 and T4E [ 2 ] The Applicant father also seeks an eight month credit for the time when the oldest child of the marriage lived with him between March 10, 2008 to October 31, 2008. The Respondent mother objects to any credit for child support during this period of time submitting that while the child may have stayed overnight on occasion with the Applicant, she continued to be the primary caregiver.

Furthermore the Respondent submits that the Applicant entered into a Consent Order confirming her primary care of the children just two months prior to the date that he now claims that the child lived with him. The mother however agrees that the Applicant should receive a reduction for $9,481 to his arrears for the time when that oldest child ceased to be a child of the marriage. [ 3 ] The Applicant indicated that he moved from Alberta to Winnipeg in October 2008, at which time the oldest child went to live with her boyfriend.

The Applicant indicates that he was forced to move to Winnipeg because he had lost his home here in Alberta given that Maintenance Enforcement was taking away most of his income such that he could not afford to continue to maintain his home here. [ 4 ] The Respondent opposes the application to cancel all arrears, and submits that approximately $28,000 in arrears is still owing. The Respondent submits that the Applicant has been underemployed since 2008, as reflected by his decreasing income, that he has produced no medical letter to indicate why he has not been able to work or to work at full capacity.

Therefore the Court should impute income to him for being intentionally underemployed of $62,500 annually resulting in monthly child support payments of $541. The Respondent also submits that the Applicant is estopped from bringing the present application to vacate all arrears retroactive to 2008 because he was too slow in bringing forward this application, and only brought the application forward when it directly affected him as a result of garnishees by Maintenance Enforcement. Background [ 5 ] These parties were married in August 1994, and separated and divorced in June 2001.

The parties had two children, a now 20 year old who is no longer a child of the marriage; and a 16 ½ year old child who continues to reside primarily with the Respondent as she has since the date of separation. [ 6 ] There was a Special Chambers Application heard on December 14, 2011 in this matter by my colleague Belzil J who ordered on an interim without prejudice basis that the Applicant father pay the Respondent mother the sum of $400 a month for the support of the one child of the marriage until further Court Order.

The Applicant father was granted a stay of enforcement on any child support arrears until this Special Family Law Chambers hearing of May 16, 2012. Analysis

[ 7 ] The remaining child of the marriage has always been in the primary care of the Respondent mother since the date of separation. The oldest child, who is now no longer a child of the marriage, appears to have been estranged from the mother since 2008. She stayed with the father at times during the period of time between March and October 2008, and then moved in with her boyfriend.

It is not possible for the Court however to make a definitive finding as to whether or not the oldest child actually lived with the father for a period of eight months in 2008, but the daughter did not live with the mother either during most of 2008 and beyond. [ 8 ] It also appears that the father never paid any voluntary child support, but he does acknowledge the amount of the present arrears at approximately $28,000. The father did make a formal offer to settle this matter, but that offer was never accepted by the mother.

The mother submits that there should be an inferred income for the father, who is an auto mechanic, of $62,500, which would result in ongoing child support of $541 a month. My colleague on hearing this matter on December 14, 2011 set ongoing child support on an interim without prejudice basis at $400 a month. [ 9 ] The mother argues that the father has been deliberately underemployed as evidenced by his steadily decreasing income since 2008 when he earned $75,000. The father claims that his current income is just over $20,000 a year as a self-employed mechanic in East Coast Auto.

The mother submits that the father ’ s current financial disclosure shows one month ’ s sales of almost $16,000. However the 10 month November 2010 to August 2011 Profit and Loss Statement for the business between November 2010 and August 2011 after expenses shows a loss of $5,621; and the Balance Sheet shows a very minimal Equity as of August 19, 2011 of $1,535. Conclusion [ 10 ] The Court has the authority to impute income when a payor is intentionally underemployed pursuant to Section 19(1)(

a) of the Guidelines which read as follows: – 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 11 ] In Alberta the binding authority on this point is found in Hunt v Smolis-Hunt , 2001 ABCA 229 which establishes that income should only be imputed to the payor where there are sufficient circumstances which permit the Court to infer that the intention of the payor was to undermine or avoid his child support obligations. [ 12 ] The Applicant in this case is an automobile mechanic, and he continues at all material times to have been an auto mechanic.

He has never left this trade. The Applicant has moved from employer to employer for a variety of reasons. He left the province in 2008 because he lost his home and most of his assets as a result of not being able to afford to continue to pay for it given the ongoing Maintenance Enforcement garnishees. He left another employer after 3 months in mid 2010 when management changed in that auto dealership and he was no longer welcome to remain.

His most recent endeavour has been to open his own auto repair business in late 2010 with the financial support of his new spouse. [ 13 ] Accordingly the father argues that if one accepts his reduced income since 2008, he owed approximately $2,763 as of December 31, 2011. Since January 1, 2012 the Applicant has made five payments of $400 as required by the December 19, 2011 Court Order. He has also had his entire 2011 income tax refund of $2,975 garnisheed.

By these calculations the father would have actually have a credit of $1,327 and owe no arrears. [ 14 ] While it is correct that the Applicant has produced no medical information which limits his ability to work, and the Applicant has never voluntarily paid child support, the mere fact that the Applicant ’ s income has steadily declined from $75,000 since 2008 to just over $20,000 currently does not in and of itself allow Courts in Alberta to impute income for being intentionally underemployed.

It must on the basis of Hunt v Smolis-Hunt be established that the primary intention of the payor was to undermine or avoid his child support obligations. In this case I conclude that the father ’ s reduced income was partly as a result of losing most of his assets and having to leave the Province in some distress both emotionally and financially. After his short 3 month stint of employment when he moved back to

Alberta to be closer to his children in July 2010, he started a business repairing vehicles that will see his income rise back to more normallevels for an auto mechanic. It is too soon however to impute his income much beyond that requiring the current interim child supportpayments of $400 a month. His present 2011 annual Guideline income proposed at $23,000 is on the other hand too low for an automechanic, even at this time. [15] I also respectfully disagree with the Respondent’s submission that the father is estopped from now bringing forward thisapplication to extinguish all arrears.

While the father brought this application to extinguish arrears after it directly affected him as a resultof the continuing garnishees. Most people do not bring such applications until it directly affects them. I do not believe that this factor plusthe fact that he could have brought this application earlier means that he is now estopped from bringing it.

The father did not return toAlberta until July 1, 2010, and his application was heard at the end of 2011. [16] It is my conclusion that half (or $14,000) of the acknowledged arrears of $28,000 should be extinguished given the father’sinability to pay in accordance with Haisman v Haisman 1994 ABCA 249 , 1994, A.J. No. 553 based on the Applicant’s reducedincome since 2008. On an ongoing basis child support payments of $400 a month will continue as per the existing December 19, 2011Court Order on an interim without prejudice basis. Costs may be spoken to within 30 days. Heard on the 16th day of May, 2012.

Dated at the City of Edmonton, Alberta this 22nd day of May, 2012. Donald Lee J.C.Q.B.A. Appearances: Lawren Wowk Grey Munday Stolfa Wowk LLP for the Applicant/Respondent Jay Conlin Lakeland Law Group for the Respondent/Plaintiff