Haig v. Whitmore, 2012 ABQB 343

Court of Queen ’ s Bench of Alberta Citation: Haig v. Whitmore, 2012 ABQB 343 Date: 20120524 Docket: FL01 11388 Registry: Calgary Between: Susan Elisabeth Haig Applicant - and - Ian Logan Whitmore Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] This is a support application emanating from Ontario, pursuant to the Divorce Act , RSC, 1985, c 3 (2nd Supp), ss. 18 and 19 .

This Court attaches as Appendix A to these Reasons the relevant provisions of the Divorce Act . [ 2 ] This Court has received all the information from Ontario, the affidavit of the Respondent (“Whitmore”), and a response affidavit from the Applicant (“Haig”). Included in the information from Ontario are the reasons for the provisional order that Kelly, J. issued on February 5, 2010, which are reported at 2010 ONSC 897 .

[ 3 ] To make Kelly, J.’s judgment, and the provisional order arising from it, enforceable, this Court must confirm her provisional order by making a support order pursuant to the Divorce Act s. 19(7). This is a time consuming and labourious procedure for the litigants; especially in the view of the fact that we now have the technology that would allow a judge (or judges) to receive viva voce evidence, or near- viva voce evidence, via video feeds or closed circuit television feeds.

Nonetheless, this is the process with which the courts are faced. [ 4 ] Kelly, J. presented the facts, as she found them, in her decision. This Court sees no useful purpose in repeating those facts. The intention behind the Divorce Act is that this Court must consider the documents that it receives from the jurisdiction that granted the provisional order, in this case, Ontario, and hear the facts from Whitmore’s perspective. He presented these facts through his affidavit and viva voce testimony. He was represented by counsel during his presentation of his viva voce evidence.

Since then, he has chosen to represent himself. This Court had before it an amicus curiae , who teased out further facts. [ 5 ] This Court also had before it a reply affidavit from Haig. Obviously, there was no way for this Court to have the facts outlined in Haig’s affidavit tested through cross-examination or questioning. This was done in Ontario, and Kelly, J. specifically referred to Haig’s evidence. So, two judges have now received evidence and this Court is required to make an order based, first, on Kelly, J.’s findings and then, on this Court’s findings.

This is the labourious and inefficient aspect of the whole process. [ 6 ] Because of court scheduling, this Court heard Whitmore’s viva voce testimony on October 5, 2011, along with the arguments that Whitmore’s counsel presented. On May 7, 2012, it intended to hear the arguments of the amicus curiae . Whitmore, for whatever reason, objected to the amicus curiae making submissions, so Haig’s counsel made her submissions via telephone, from Ontario. [ 7 ] This is neither an appeal from Kelly, J.’s decision nor a judicial review of it.

However, it is important to emphasize that this Court must still examine her decision against the information that it receives to ensure that it can grant whatever order it makes pursuant to the Divorce Act s. 19(7). This Court finds that hers is a very thorough and sound decision that properly applies the factors that the Supreme Court of Canada outlined in (S)DB v. (G)SR , 2006 SCC 37 , (2006), 61 Alta LR (4th) 1 [“ DBS ”], a case that guides this Court, as well. Without Whitmore’s evidence, this Court would have no hesitation in confirming Kelly, J.’s provisional order, using as its foundation, her decision.

II. Preliminary Matter [ 8 ] Whitmore served a Notice of Constitutional Question (“Notice”) on Attorney General of Canada, Minister of Justice and Attorney General of Ontario and the Minister of Justice and Attorney General of Alberta on April 24, 2012. This was in accordance with the 14-day period set out in the

section 24 of the Judicature Act , RSA 2000, c J-2. None of the Attorneys General chose to intervene. [ 9 ] The first thing to note is that the Notice was served exactly 14 days before the date scheduled for the continuation of the hearing to consider Kelly, J.’s provisional order. This is surprising inasmuch as a period of 7 months had elapsed since this Court adjourned its first sitting. [ 10 ] The second thing to note is that Whitmore, in the Notice, was challenging the provisions of the Interjurisdictional Support Orders Act, 2002 , SO 2002, c 13.

This Court would have no jurisdiction to rule on the constitutionality of Ontario legislation. As well, the proceedings before this Court are under the federal Divorce Act .

Nonetheless, this Court allowed Whitmore to make his arguments, based on his challenge of the constitutionality of the Divorce Act , as his concerns would be the same whether one is arguing the constitutionality of the Divorce Act or the Interjurisdictional Support Orders Act of either Ontario or Alberta. [ 11 ] Whitmore’s concerns are outlined in the Notice, which are as follows: Natural Justice requires due process, which test the ex parte hearing defined under the Act does not meet. The process contemplated under the Act results in an Order based on an arbitrary process. Fundamental justice has a number of

components including the right to a hearing before an independent and impartial magistrate where there is a decision by the magistrate on the facts and the law. It entails the right to know the case put against one and the right to answer that case. The proceedings under the Act in the case of Haig v. Whitmore did not meet these tests. In Haig v. Whitmore the Respondent was denied the right to be present at the hearing where the case against him was made. He was denied the right to respond to the arguments presented.

These denials resulted in the failure of the magistrate to be able to hear all facts and their relationship to the law. These failures provide the appearance of a magistrate that cannot be independent and impartial. In turn, the Alberta Court is bound by the terms of an Order resulting from a process that denied the Respondent Natural Justice and fundamental justice. [ 12 ] This Court provided its oral reasons for its dismissal of Whitmore’s application, but it is worthwhile to reduce those oral reasons to writing. [ 13 ] The first thing this Court pointed out was that it is not “bound” by Kelly, J.’s order.

In fact, that is why the Divorce Act s. 19 allows this Court to confirm Kelly, J.’s provisional order without variation, confirm it with variation or refuse to confirm it at all. [ 14 ] Parliament recognizes the importance of allowing the Respondent to be heard in any case against him under Divorce Act ss. 18 and 19 . It specifically says that the variation order has no effect against him until a court in the jurisdiction in which he resides allows him to make his case and then determines whether it will confirm or not confirm the provisional order.

This Court must hear Whitmore’s case and then make its own decision as to whether it will confirm or not confirm Kelly, J.’s order. [ 15 ] The whole purpose of the Divorce Act provisions and those of the Interjurisdictional Support Orders Act of the various provinces are to inject an element of fairness into the process. For example, if, in this case, Kelly, J. could make a final order in Whitmore’s absence, knowing that he resides in Alberta and has not received notice of the proceedings, he would have a better argument that he has been denied due process.

However, Kelly, J.’s decision is provisional only; not final. Furthermore, the provisions in the Divorce Act are intended to be fair to a respondent because it does not “force” the respondent to return to the original jurisdiction. He has the right to await the results of the applicant’s application, and then make his arguments in his home jurisdiction. To force him to accede to the Applicant’s jurisdiction would be unfair. The respondent is not bound by any provisional order unless the respondent’s home jurisdiction’s court makes such an order after it gives the respondent a chance to make his case.

This is what has happened in this case. [ 16 ] Furthermore, if there is a lacunae in the evidence, a court in the respondent’s home jurisdiction could seek further evidence from the applicant’s jurisdiction. This also happened in this case when Michalyshyn, J. required Haig to provide further evidence through his order of April 20, 2011. [ 17 ] Thus, this Court found that the Divorce Act ss. 18 and 19 , did not breach Whitmore’s rights pursuant to

section 7 of the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 and dismissed his application. III. Issue [ 18 ] Given the procedures outlined in the Divorce Act , this Court must examine Kelly, J.’s decision in the light of the relevant facts it finds, following its review of Whitmore’s evidence. It must “dovetail” Whitmore’s evidence with Kelly, J.’s findings of fact. [ 19 ] The Divorce Act s. 19(7) states that this Court must determine whether it should 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.

IV. Discussion [ 20 ] Whitmore provided this Court with much evidence that is irrelevant to this matter. What we are dealing with is whether he is required to pay retroactive child support, based on the principles outlined in DBS . The pressure he felt while he and his counsel were negotiating the consent agreement that resulted in Justice Backhouse’s consent order is not relevant. The fact that Haig was a lawyer familiar with family law and that he is not, is not relevant.

He had able counsel while he was negotiating the consent agreement, although he did not have counsel when the consent agreement was reduced to a consent order. The fact that he did not feel the Federal Child Support Guidelines (“ Guidelines ”) were binding on him and that the parties would be negotiating an appropriate level of support is not relevant.

The Guidelines are binding on him and are not just recommended numbers, absent agreements otherwise, of which there was none. [ 21 ] This is a “money issue.” In other words, the legislature, through its adoption of the Guidelines , has made the calculation of child support relatively simple.

Again, the parties may agree to depart from the Guidelines , but a court must be satisfied that such departure will not prejudice the children, for whose benefit the Guidelines were created: Divorce Act s. 15.1. [ 22 ] Based on Kelly, J.’s decision, and after reading Whitmore’s affidavit, Haig’s affidavits and hearing Whitmore’s evidence that he provided to this Court through his viva voce testimony, this Court confirms Kelly, J.’s provisional order with respect to the retroactive Divorce Act s. 3 child support, subject to some minor variations that it discusses later in these reasons.

There is nothing that convinces this Court that it should not confirm Kelly, J.’s provisional order with respect to retroactive Divorce Act s. 3 child support. This order has legal effect throughout Canada: Divorce Act s. 20(2). [ 23 ] This Court feels duty-bound to address specifically some of the arguments that Whitmore placed before it. The Consent Order [ 24 ] Kelly, J. made reference to a consent order that Backhouse, J. granted on February 8, 2006 (the “Consent Order”).

Before the parties entered into the Consent Order, they had entered into a consent agreement, which contained many of the provisions set forth in the Consent Order. [ 25 ] Certain terms of the Consent Order are important for the purposes of this discussion. These include that the parties would have joint custody of the child of the marriage, HRW, and that HRW would reside primarily with Haig, and provisions concerning access. There are also provisions concerning expenses that the two other children might incur. With respect to child support, as it relates to HRW, the Consent Order provides: 7.

The father [Whitmore] shall pay the mother [Haig] the Table Amount of child support for [HRW] pursuant to the Child Support Guidelines in the amount of $984.00 per month based on his income of $131,500.00, commencing October 1, 2005. The parties acknowledge that the father has prepaid child support in the amount of $8,397.00. 8. Commencing May 15, 2006 and on the 15 th day of May in each year thereafter, the parties shall provide each other with a copy of their respective Tax Returns and Notices of Assessment, whenever it is received.

The parties will then review the amount of support payable with reference to the Guidelines and will determine the appropriate amount payable and if there is a change in the amount payable, the father shall commence payment of the appropriate amount as of June 1, 2006. 9. The parties shall contribute equally to [HRW’s] special and extraordinary expenses, which are agreed upon in advance, with the agreement not to be unreasonably withheld. The parties acknowledge that [HRW’s] current or anticipated special expenses include the following:

... (

i) The cost of up to a maximum of twelve (12) return airline tickets per year for [HRW] to visit with her father each month in Calgary; mother to make travel arrangements and to establish a separate airmiles account for [HRW]; (

h) The cost of up to a maximum of twelve (12) return airline tickets per year, to cover any combination of the following events: [HRW’s] father to visit with [HRW] in Toronto, upstate New York or New Hampshire; for [HRW] to visit her father in Calgary in addition to her monthly flight; ... (father to make travel arrangements and to use any employment travel benefits to him). ... 12. The parties will reconcile their contributions for [HRW’s] extraordinary expenses as set out in paragraph 9 herein ...

Commencing in 2006 and each year thereafter, the parties shall provide receipts and an accounting to each other for these expenses and twice yearly, namely, June 1 st and December 1 st , and they shall equalize their respective payments. [ 26 ] No one is questioning the fact that Whitmore has made all payments required of him pursuant to the Consent Order. The question, however, is whether he was correct in his assumption that the amount is fixed, unless the parties agree that a more “appropriate amount” is payable.

He argues that the amount set forth in the Consent Order was a result of a matrix of factors with which the parties had to deal and, by fixing this amount in 2006, he has had certainty in his financial affairs. [ 27 ] The court in DBS recognized that a person who diligently pays a court-ordered support amount will be presumed to have fulfilled their support obligation towards their children. This provides the person with certainty in managing their affairs and predictability (at para 75). The court went on to say, at para 74: ...

However, the court order does not absolve the payor parent ... of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of [the amount set forth in the court order] in defining parents' obligations necessarily diminishes. In a situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for a court, acting pursuant to the Divorce Act ..., to vary an existing order retroactively.

The consequence will be that amounts that should have been paid earlier will become immediately enforceable. [ 28 ] This is in keeping with the Guidelines s. 14 and the Divorce Act s. 17(4), which allows a court to consider a change in circumstances that would justify a court making an award for retroactive support. What would constitute a change in circumstances? DBS provides us guidance on this, as well, when it said, at para 64: ... An increase in income that would alter the amount payable by a payor parent is also a material change in circumstances ...

Thus, where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations. [Citations omitted.] The Agreement [ 29 ] As mentioned earlier, that parties entered into an agreement and the terms of the agreement were reduced to the Consent Order.

Whitmore argues that the agreement (and, hence, the Consent Order) were the result of negotiations between the parties, or, more accurately, their counsel at the time, and involved a matrix of matters that they had to balance to arrive at the agreement. Whitmore argues that it would be unfair for a court now to unravel the agreement, or parts of it. [ 30 ] The court in DBS dealt with this argument, as well. It said, at para 78: In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should

recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents.

However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it ... [Citations excluded.] [ 31 ] Kelly, J. was aware of the “holistic nature” or the matrix of factors that went into the agreement. Whitmore similarly advised this Court of that matrix.

This Court agrees with Kelly, J. that even though the parties, through the agreement and the Consent Order, attempted to balance varying interests, the circumstances markedly changed from the time when the parties negotiated the agreement, such that a court must intervene; Whitmore’s actual support obligations were not being met. Disclosure [ 32 ] Whitmore argues that neither party complied with the disclosure requirement contained in the Consent Order para 8. He further argues that even had the parties so complied, the Guidelines do not set the child support he was bound to pay.

The amount would be an “appropriate amount payable.” [ 33 ] With respect to the disclosure requirement, Backhouse, J. did not recommend that the parties exchange financial information annually; she ordered it. Whether Haig provided her financial information to Whitmore was not the issue before Kelly, J. nor is it an issue before this Court. Whitmore breached the Consent Order para 8. [ 34 ] With respect to whether the Guidelines set the child support that Whitmore was bound to pay, the Consent Order itself says that the amount of support payable will be reviewed “with reference to” the Guidelines.

Further, Whitmore, by virtue of Consent Order para 7, knew that the child support was tied to his income and the Guidelines . As well, if child support was not tied to his income, why did the Consent Order require the parties to exchange the income tax information contained in Consent Order para 8? This Court does not accept Whitmore’s argument, in this regard. [ 35 ] Without Whitmore’s income tax information, there would be no way for Haig or a court to determine an “appropriate amount,” whether through negotiation or with reference to the Guidelines .

All this points to whether Whitmore has engaged in blameworthy conduct. This Court wants to make it clear that it is not accusing Whitmore of intimidating Haig or lying to her. As well, it is not accusing him of hiding his income increases from Haig in the hopes of avoiding larger child support payments, although his failing to respond to her requests for information is certainly questionable behaviour.

However, DBS said that, “Not disclosing a material change in circumstances – including an increase in income that one would expect to alter the amount of child support payable – is itself blameworthy conduct” (at para 24). [ 36 ] Although his compliance with the Consent Order could mollify his blameworthiness, DBS tells us that a court might want to compare the amounts that Whitmore was paying pursuant to the Consent Order, as against the amount he should have been paying pursuant to the Guidelines .

It then said at para 108: ... [T]he closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met ... Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order.

However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. [ 37 ] Based on Whitmore’s income, Kelly, J. at para 47 found that the difference between the monthly Guidelines amount and the monthly amount Whitmore actually paid were as follows: June 2006-June 2007 $169 June 2007-June 2008 $1,795

June 2008-June 2009 $1,344 June 2009-January 2010 $457 These amounts are “sufficiently pronounced.” Thus, this Court, like Kelly, J., finds that Whitmore engaged in blameworthy conduct, by not disclosing his increases in income and not increasing his child support payments as his income increased. Hardship [ 38 ] There are three aspects to Whitmore’s argument that he would suffer hardship if this Court were to confirm Justice Kelly’s provisional order. First, Whitmore pays amounts to his elderly mother and had paid amounts to his unemployed, mentally-challenged brother.

Second, the other children of the marriage would have suffered had he been required to pay the increased amount. Finally, because of the quantum of retroactive support that Kelly, J. ordered, he would have to liquidate assets to meet that payment. [ 39 ] With respect to the first argument, Whitmore has no legal duty to support any other person, other than his children: Guidelines s. 10(2). Thus, any money that he sends to his mother and brother does not factor into this Court’s determination of whether he should have been paying more for HRW’s support.

With respect to the second argument, DBS at para 115 , speaks of hardship that the payor parent’s new family would suffer. Here, Whitmore is single and has no other familial responsibilities to meet. Finally, it is difficult to understand any hardship that Whitmore would suffer if he were required to liquidate assets. By his own admission, he lives a frugal lifestyle and yet, he has been earning an average of $242,000 per year from 2006 to 2008, as found by Kelly, J. at para 41, and he was expecting to earn about $300,000 in 2011.

Granted, part of his earlier earnings were capital gains of which Haig allegedly received some benefit, which this Court will deal with momentarily, but he still earned a substantial amount of money. [ 40 ] Whitmore fails in his hardship argument. HRW’s Circumstances [ 41 ] Whitmore argues that HRW is a “middle-class, teenage child.” In other words, she received the benefits that such a child would receive as she was growing up. Kelly, J. found that HRW would have had a better lifestyle had Whitmore made the increased child support payments. It is difficult to dispute Kelly, J.’s finding.

At the same time, it is difficult to dispute Whitmore’s argument that HRW was not wanting for things as she was growing up. DBS at para 113 , said that, “the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her.” [ 42 ] We can only speculate how different HRW’s life would have been had Whitmore paid the increased child support.

However, we must remember that HRW’s circumstances are relative and we must assess HRW’s life, as compared to another child whose parents earned the amount of money that Whitmore and Haig earned. Furthermore, the court in DBS at para 113 , said that, “This is not to suggest that the payor parent’s obligation will disappear where his/her children do not ‘need’ his/her financial support.” [ 43 ] This Court acknowledges that Whitmore’s argument with respect HRW’s circumstances is his strongest.

However, DBS at para 99 , tells us that none of the factors is decisive and that a court “should strive for a holistic view of the matter and decide each case on the basis of its particular matrix of facts.” Capital Gains [ 44 ] Whitmore argues that part of his income is made up of capital gains that he received on his disposition of certain shares, specifically, his shares in Imperial Oil Limited (2006) and TransCanada Pipelines Limited (2008). He testified that the parties dealt with the value of the shares of which he disposed as part of the division of their matrimonial property.

What that means is that if his income were to include those capital gains, there would be “double counting,” inasmuch as Haig has already received the benefit of that property.

[ 45 ] Whitmore presented no evidence concerning these shares and the capital gains that he derived from the sale of those shares. When one looks at the January 30, 2005 separation agreement, it does not refer to these shares. Paragraph 5.1 of that agreement says: In order to purchase the wife’s interest in the matrimonial home and to equalize the parties’ net family property, the husband shall pay to the wife the sum of $289,064.50 within thirty (30) days of this Agreement being signed by both parties.

The term “net family property” is defined in the Ontario Family Law Act , RSO 1990, c F.3, s. 4, as follows: “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting, (

a) the spouse’s debts and other liabilities, and (

b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage; (“biens familiaux nets”) [ 46 ] There is nothing before this Court that indicates what went into the equalization payment of the net family property. Certainly, the purchase of Haig’s interest in the matrimonial home would be easy to calculate.

To prove that the shares were part of the equalization payment, Whitmore must show the shares formed part of the net family property. All this Court has before it is his testimony that the shares were included, without a valuation of those shares, and how those shares were divided.

It also has his argument that deals with this issue, but that argument provides no detail. [ 47 ] Taking a holistic approach that DBS tells us to take, and in the interests of fairness, this Court agrees that there should be no “double counting” and it must provide Whitmore with an opportunity to show that there was “double counting.” Whitmore will have 45 days from the release of this judgment to provide sworn proof that the shares were included in the net family property and that Haig received credit for the value of those shares.

He must file that affidavit with this Court and with the Ontario Superior Court of Justice and serve Haig’s counsel with filed copies within that period. [ 48 ] If his evidence provides satisfactory proof that the shares were included in the division of matrimonial property and Haig received a portion of the value of those shares as part of the equalization payment, his income for the years in which he received those capital gains will be reduced. [ 49 ] In the meantime, he will pay the full amount of the retroactive child support, as determined by Kelly, J. and as varied in this judgment, to Haig’s counsel.

Haig’s counsel will hold the difference in her trust account until he provides the evidence referred to above. If he does not provide that evidence within 45 days from the release of this judgment, Haig’s counsel may release that amount to Haig. If he provides that evidence and Haig’s counsel is satisfied with it, she will return that amount to Whitmore. If she contests the evidence, she may appear before Kelly, J. or this Court, on notice to Whitmore, to resolve this issue.

Date of Retroactivity [ 50 ] Because this Court agrees with Kelly, J.’s finding that Whitmore is blameworthy, it confirms the date of retroactivity that she found. Guidelines S. 7 Expenses [ 51 ] The issue concerning the retroactive Guidelines s. 7 expenses requires this Court to examine more closely the Consent Order

and the Guidelines s. 7 expenses that the parties actually incurred. It might be worthwhile to remind ourselves of the provisions of Guidelines s. 7. They provide: 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 the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term “extraordinary expenses” means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

I) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and

(

v) any other similar factor that the court considers relevant.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. [ 52 ] The expenses listed in Guidelines s. 7 are exhaustive. In other words, we cannot add to the list simply because the parents incur the expense for the child’s benefit. However, Whitmore has incurred expenses that fall within Guidelines s. 7. For example, he has paid for all of HRW’s university tuition (less the bursary amount from his employer).

Rather than having this Court go through every receipt for every alleged expense, it might be worthwhile for Whitmore to review his records to obtain receipts that fall within, or might fall within, a Guidelines s. 7 expense. It is unfortunate that Whitmore no longer has counsel, as it might be an easy task for counsel to review the expenses and determine whether they fall within Guidelines s 7.

Despite this, if the parties are unable to agree that an expense is a Guidelines s. 7 expense, they may make submissions to this Court on why the expense would or would not fall within Guidelines s. 7 and this Court will rule on it. [ 53 ] As well, Whitmore paid for airline tickets to have HRW visit him and for him to visit HRW. Although these do not strictly fall under Guidelines s. 7, this cost did fall within the contemplation of the parties when they agreed to the Consent Order. Whitmore may set-off his proportionate share of the cost of airline tickets contemplated by Consent Order paras 9(

I) and 9(

j) against the amount he owes for Guidelines s. 7 expenses. These must relate only to HRW’s trips. Any uncertainty concerning this will be resolved in Haig’s favour. For example, a credit card expense in favour of Air Canada will not fall within this category, unless Whitmore can produce evidence that HRW was the individual who flew using that ticket. As well, all of Whitmore’s flights are too uncertain at this stage to fall within this category. [ 54 ] This Court has gone through the numerous flight itineraries that Whitmore provided to this Court, and entered as an exhibit in these proceedings.

It identified six trips that HRW made from Toronto to Calgary. He also presented this Court with a chart that identifies these trips, and others. [ 55 ] This Court sees no need to amend the Consent Order with respect to the Guidelines s 7 expenses. The parties will share equally HRW’s Guidelines s. 7 expenses. Whitmore testified that there were many other matters that the parties negotiated, which resulted in their agreement that the Guidelines s. 7 expenses would be shared equally between them. Income was only one factor.

To this extent, this Court varies Kelly, J.’s provisional order. [ 56 ] Whitmore testified that he has paid 100% of some of HRW’s Guidelines s. 7 expenses. In addition to the cost of airline tickets, referred to above, he may set-off 50% of the Guidelines s. 7 expenses of which he paid 100%, along with 50% of the cost of the airline tickets for HRW to fly from Toronto to Calgary and back.

This Court emphasizes that it is only dealing with the Guidelines s. 7 expenses for HRW; not the Guidelines s. 7 expenses for any of the other children, or Whitmore himself, and no expenses other than the Guidelines s. 7 expenses. [ 57 ] It should be noted that if Haig has already paid her 50% share of any of those expenses, Whitmore may not set-off those amounts. [ 58 ] Henceforth, the parties will strictly abide by the Consent Order s. 9, except that they will now seek HRW’s cooperation concerning her travel from Toronto to Calgary and back.

It is extremely important that this Court address HRW’s needs at this stage. We must remember that she is now a young adult, who is attending a post-secondary institution. It might not be feasible for the parties to comply with Consent Oder ss. 9(

I) and 9(j). HRW’s social life and education might not be conducive to this

schedule and the parties must be sensitive to this. HRW should not be forced to do anything that she does not want to do.

V. Conclusion [ 59 ] This Court confirms Kelly, J.’s provisional order, subject to the following changes: (

a) Whitmore’s income and, hence, retroactive child support will be reduced for the years his capital gains are included in his income, so long as he provides sworn evidence that the shares, the sale of which resulted in the capital gains, were part of the equalization payment of net family property, as set forth above; (

b) Whitmore may set-off his 50% share of the Guidelines s. 7 expenses that he has actually paid, along with 50% of the cost of HRW’s airline tickets from Toronto to Calgary and back, provided Haig has not already paid him her share of those amounts; and (

c) henceforth, the parties will strictly abide by the Consent Order in terms of disclosure, the cost of HRW’s flights from Toronto to Calgary and back (subject to her wishes) and Guidelines s. 7 expenses. [ 60 ] From the date of Kelly, J.’s order to the time that HRW is no longer a child of the marriage, the Guidelines will determine the amount of child support that Whitmore will pay to Haig for HRW’s support. This means that Whitmore must make yet another retroactive payment to cover the period from Kelly, J.’s order, to the date of this order. Heard on the 5 th day of October, 2011 and on 7 th day of May, 2012.

Dated at the City of Calgary, Alberta this 24 th day of May, 2012. K.D. Yamauchi J.C.Q.B.A. Appearances: Shirley Eve Levitan for the Applicant Wendy Young Alberta Justice Family Justice Services Amicus Curiae

Michelle Bailey Widdowson Kachur Ostwald Menzies LLP for the Respondent (until January 15, 2012) Respondent self-represented from January 16, 2012 Appendix A to the Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi Relevant Provisions of the Divorce Act , RSC, 1985, c 3 (2nd Supp) 15.1

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. ...

(3) A court making an order under subsection (1) ... shall do so in accordance with the applicable guidelines.

(4) The court may make an order under subsection (1) ... for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. 18.(1) “provisional order” means an order made pursuant to subsection (2).

(2) Notwithstanding paragraph 5(1)(

a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and (

a) the respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of

section 17.1 in respect of the matter, and (

b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this

section and

section 19, the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under

section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it.

(3) Where a court in a province makes a provisional order, it shall send to the Attorney General for the province (

a) three copies of the provisional order certified by a judge or officer of the court; (

b) a certified or sworn document setting out or summarizing the evidence given to the court; and (

c) a statement giving any available information respecting the identification, location, income and assets of the respondent.

(4) On receipt of the documents referred to in subsection (3), the Attorney General shall send the documents to the Attorney General for the province in which the respondent is ordinarily resident.

(5) Where, during a proceeding under

section 19 , a court in a province remits the matter back for further evidence to the court that made the provisional order, the court that made the order shall, after giving notice to the applicant, receive further evidence.

(6) Where evidence is received under subsection (5), the court that received the evidence shall forward to the court that remitted the matter back a certified or sworn document setting out or summarizing the evidence, together with such recommendations as the court that received the evidence considers appropriate. 19.

(1) On receipt of any documents sent pursuant to subsection 18(4), the Attorney General for the province in which the respondent is ordinarily resident shall send the documents to a court in the province.

(2) Subject to subsection (3), where documents have been sent to a court pursuant to subsection (1), the court shall serve on the respondent a copy of the documents and a notice of a hearing respecting confirmation of the provisional order and shall proceed with the hearing, in the absence of the applicant, taking into consideration the certified or sworn document setting out or summarizing the evidence given to the court that made the provisional order.

(3) Where documents have been sent to a court pursuant to subsection (1) and the respondent apparently is outside the province and is not likely to return, the court shall send the documents to the Attorney General for that province, together with any available information respecting the location and circumstances of the respondent.

(4) On receipt of any documents and information sent pursuant to subsection (3), the Attorney General shall send the documents and

information to the Attorney General for the province of the court that made the provisional order.

(5) In a proceeding under this section, the respondent may raise any matter that might have been raised before the court that made the provisional order.

(6) Where, in a proceeding under this section, the respondent satisfies the court that for the purpose of taking further evidence or for any other purpose it is necessary to remit the matter back to the court that made the provisional order, the court may so remit the matter and adjourn the proceeding for that purpose.

(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 applicable guidelines.

(8) The court, before making an order confirming the provisional order with variation or an order refusing confirmation of the provisional order, shall decide whether to remit the matter back for further evidence to the court that made the provisional order.

(9) Where a court remits a matter pursuant to this

section in relation to a child support order, the court may, pending the making of an order under subsection (7), make an interim order in accordance with the applicable guidelines requiring a spouse to pay for the support of any or all children of the marriage.

(9.1) Where a court remits a matter pursuant to this

section in relation to a spousal support order, the court may make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the making of an order under subsection (7).

(10) The court may make an order under subsection (9) or (9.1) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (11) Subsections 17(4), (4.1) and (6) to (7) apply, with such modifications as the circumstances require, in respect of an order made under subsection (9) or (9.1) as if it were a variation order referred to in those subsections.

(12) On making an order under subsection (7), the court in a province shall (

a) send a copy of the order, certified by a judge or officer of the court, to the Attorney General for that province, to the court that made the provisional order and, where that court is not the court that made the support order in respect of which the provisional order was made, to the court that made the support order; (

b) where an order is made confirming the provisional order with or without variation, file the order in the court; and

(

c) where an order is made confirming the provisional order with variation or refusing confirmation of the provisional order, give written reasons to the Attorney General for that province and to the court that made the provisional order. 20.

(1) In this section, “court,” in respect of a province, has the meaning assigned by subsection 2(1) and includes such other court having jurisdiction in the province as is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this section.

(2) Subject to subsection 18(2), an order made under any of sections 15.1 to 17 or subsection 19(7) , (9) or (9.1) has legal effect throughout Canada.

(3) An order that has legal effect throughout Canada pursuant to subsection (2) may be (

a) registered in any court in a province and enforced in like manner as an order of that court; or (

b) enforced in a province in any other manner provided for by the laws of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.