Hestbak v Hestbak, 2012 ABQB 633

Court of Queen ’ s Bench of Alberta Citation: Hestbak v Hestbak, 2012 ABQB 633 Date: 20121017 Docket: 4803 142538 Registry: Edmonton Between: Clinton Arnold Hestbak Applicant - and - Diane Paula Leeder (formerly known as Diane Paula Hestbak) Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This matter unfortunately has a long and unhappy history of conflict between these now divorced parties. The daughter over which they fight is 9 ½ years old.

Custody and access have been an ongoing problem and much of the fight is over money – guideline incomes and

section 7 expenses. [ 2 ] The present application is to adjust s. 3 and s. 7 expenses for 2011 based on the parties' actual incomes, and to set ongoing

support payments to take into consideration shared parenting commencing in late February, 2012. [ 3 ] Mr. Hestbak seeks an adjustment starting September 1, 2011 on the basis that the parties effectively shared parenting after that date on the basis of the parties' actual 2011 incomes, and their projected 2012 incomes. [ 4 ] Ms. Leeder opposes the application, claiming hardship and that the adjustment should be done in accordance with the parties' minutes of settlement in 2008 and not retroactively. That would mean an adjustment for 2012 based on her 2011 T-4 income of $15,545.70.

She also seeks sole custody of their child or a return to the pre-February, 2012 custody and access arrangements. Background [ 5 ] By order dated February 1, 2012, I varied the divorce judgment of May 6, 2008 and ordered joint custody and shared parenting of the child on a week on/week off basis, commencing with Mr. Hestbak having the child starting the week of February 23, 2012. [ 6 ] That order followed an order arising out of a special chambers application before me in March, 2011 whereunder I dismissed Mr. Hestbak's application for shared parenting and Ms. Hestbak's (now Leeder) application to terminate Mr.

Hestbak's joint guardianship. [ 7 ] At that time, Ms. Leeder was completing her nursing program and was expected to be able to gain employment as a nurse sometime in the fall of 2011. The one thing that the parties had been able to cooperate over was care of the child to accommodate Ms. Leeder's schooling. Mr. Hestbak had adopted a very flexible approach to his parenting time so that Ms. Leeder could complete her university education. [ 8 ] In that order, I determined the parties' guideline incomes and set their respective obligations.

The obligations were based on the actual earnings for the particular calendar year, requiring provisional amounts to be set with adjustments after actual earnings were know the following year.

That differed from what the parties had agreed to in their 2008 minutes of settlement, which provided that following the exchange of financial information, adjustments would be made effective July 1 of that year on a go-forward basis. [ 9 ] The Divorce Judgment of May 6, 2008 simply states that "an adjustment shall be made" following the exchange of financial information. [ 10 ] The parties did not follow that process themselves, and the application in March, 2011 followed significant difficulties and delays in obtaining Mr. Hestbak's financial information.

The retroactive adjustments made at that time used actual earnings for the relevant year, and not the previous year's earnings. [ 11 ] The March, 2011 order was reviewable after the first week of December, 2011 on the basis that Ms. Leeder's and the child's circumstances would likely have changed by that time, as she transitioned from full-time student to working nurse. [ 12 ] The review was heard on February 1, 2012. By that time, Ms. Leeder was self-represented. I ordered that a shared parenting regime begin. I was advised that Ms. Leeder had indeed graduated and was working as a nurse.

No information was available for her 2011 earnings and her 2012 employment was uncertain. [ 13 ] I thus ordered at para. 5: The Defendant shall provide to the Plaintiff ’ s counsel on or before February 28, 2012 a copy of all her 2011 T-4s, most recent pay stubs from January 1, 2012 to present and copy of 2011 Tax Return upon completion.

[ 14 ] I thus ordered at para 6: Child Support and applicable proportionate share of

Section 7 expenses shall be based upon the income of the parties and retroactively adjusted. In the event the parties cannot agree on the calculations of income, monthly support, retroactive adjustment of support and

Section 7 expenses, the parties may return before Justice Graesser or any other Justice if Justice Graesser is not available for a determination. [ 15 ] Because of ongoing disagreements over activities, s. 7 expenses and parenting concerns, I recommended that they engage a parenting expert. Costs were "rolled forward to be addressed and dealt with at any further application". [ 16 ] Ms. Leeder now takes issue with the February 1, 2012 order, with the most pertinent concern relating to paragraph 6 which says that an adjustment shall take place and shall be retroactively adjusted.

Issues [ 17 ] There are a number of issues raised in this application: 1. Objections to February 1, 2012 Order 2. Guideline incomes 3. Retroactive child support 4. Ongoing child support 5. Custody and access 6. Costs 7. Payment of Adjusted Amounts 1. Objections to February 1, 2012 Order [ 18 ] As Ms. Leeder was self-represented, I invoked Rule 9.4(2)(c). I recognize that the transcript does not use those words, but it was clearly indicated to Mr. Hestbak's counsel that this was the case. The Order was prepared by him, submitted directly to me and was signed.

I realize that I may not have been as clear as I might have been in invoking that Rule, but I did invoke it. [ 19 ] As to the issue Ms. Leeder objects to, that the signed and filed Order uses the word "shall" with respect to a retroactive adjustment in the context of her actual earnings and the effects of shared parenting, my actual words at the hearing were strongly suggestive of that. She argues now that I used the word "may" at the hearing and objects to the wording in the order. She references difficulties settling the terms of previous orders and the need to be precise.

[ 20 ] During the hearing I said on this issue "so the person with the higher income will still be making a payment to the other spouse but that will be adjusted back to -- it may be adjusted back to the beginning of the -- whenever the circumstance changed, whenever you got the higher paying job, whenever you graduated or something like that." [ 21 ] Mr. Lawson, for Mr. Hestbak, then asked if an adjustment date could be set "back to October or November when Ms. Leeder began her full-time work and the shared arrangement was ongoing with school." [ 22 ] I refused to do that, and indicated that Ms.

Leeder should have the opportunity to consult counsel or the Family Law Information Center as to how maintenance is calculated and how adjustments are generally made. [ 23 ] I made no determination of entitlement or what actual adjustment would be made on February 1. Rather, I postponed a decision on that until after financial disclosure and gave no consideration to the provisions of s. 9 of the Child Support Guidelines (the effects of shared parenting) at that time. Those were to be, and are, the considerations applicable to the September 18 hearing before me. 2. Guideline Incomes [ 24 ] Mr.

Hestbak's 2011 income tax return shows an income of $79,937.28. Ms. Leeder's 2011 income tax return shows an income of $15,545.70. Those figures should be used as their 2011 guideline incomes. [ 25 ] For 2012, Mr. Hestbak suggests that he will earn the same amount. Ms. Leeder did not take issue with that. Thus, his 2012 guideline income is set provisionally at $79,937.28. [ 26 ] Ms. Leeder produced a Record of Employment from Calgary Health Region who employed her from October 10, 2011 to March 25, 2012.

Over that period, she worked nine full pay periods, had a pay period off and worked one further pay period before that job ended. Her average bi-weekly income was $2,550 for the 10 pay periods actually worked. [ 27 ] Projecting that for 26 pay periods would equate to an income of $66,300. In his calculations, Mr. Hestbak averaged in the week of holidays with no income and came to projected annual earnings of $55,840. He exhibited a printout from the Alberta Government Wage and Salary Survey website indicating that registered nurses averaged $75,274 per annum.

He has provided ChildView calculations based on shared parenting and guideline incomes for Ms. Leeder at $55,840 and $59,703 which are based on projections of Ms. Leeder's earnings from new employment with Alberta Health Services. [ 28 ] Ms. Leeder worked from January 1 to March 25 with the Calgary Health Region, and then began new employment starting June 4, 2012 on a "regular part time 0.73 FTE position.

Her pay ranges between $34.31 to 45.03, presumably depending on the shifts she works. [ 29 ] Based on their representation that she will have 11.08 hours per shift with 29 shifts per 12 week cycle, her earnings can be projected (from June 4 to December 31) as $27,561 to $36,172. I assume that the pay range varies depending on shifts, and the higher pay reflects the less desirable shifts. Those estimates assume no further holidays before the end of 2012. For the purposes of an estimate, I will weigh the lower pay at 2/3 of the time and the higher pay for 1/3 of the time, resulting in a weighted average of $30,431.

Her earnings, as taken from the ROE for January 1, 2012 to March 25, 2012, were $13,377. [ 30 ] Assuming that she did not work between March 26 and June 3, her projected income for 2012 is likely in the range of $43,800. There is no explanation in the materials submitted to me why she is only working .73, but there is no basis for me to infer that she is working less to avoid or lower her support obligations. Such a determination is required to impute a higher income, based on Hunt v. Smolis-Hunt , 2001 ABCA 229 . [ 31 ] I will thus provisionally set Ms. Leeder's guideline income for 2012 at $43,800.

3. Retroactive Child Support a. Basis of Calculation [ 32 ] I recognize that method employed when I reviewed child support on February 1, 2011 (adjusting retroactively for actual earnings) frequently requires the payor to face an immediate assessment of arrears if his or her income has increased. However, that is a circumstance that should be known to the payor and can (and should) be budgeted for.

The retroactive payment is necessary to adjust for the reality that there has been an underpayment and inadequate support was paid. [ 33 ] Paying on the basis of the previous year's income, with prospective changes on July 1 after financial disclosure has been made, is convenient and potentially easier, but if incomes fluctuate, it essentially ensures that support is never based on what the payor is actually earning at the time the payments are actually being made.

In theory, this may sort itself out over a period of years, but when incomes fluctuate significantly, there can easily be hardships imposed on the payor if he or she is paying on a higher previous year's income and the current income has dropped significantly.

There is a corresponding hardship on the recipient if he or she is receiving payments based on a previous year's lower income while the payor is currently enjoying a significant increase in income during the year in which the payments are being made. [ 34 ] There is no simple solution to this, and in the absence of agreement between the parties, it seems to me that the Child Support Guidelines require that payments be based on actual incomes and be adjusted when actual incomes are known. [ 35 ] Here, while the parties agreed to the contrary in their minutes of settlement, that was not carried forward in the Divorce Judgment, and the level of distrust and dispute between the parties that has ensued since suggests that agreement is presently unlikely between them. [ 36 ] Ms.

Leeder now wants to have the method in the minutes of settlement reinstated, such that any payments by her resulting from parenting now being shared instead of primarily with her would be based on her 2011 income of $15,000 and not what she will actually earn in 2012. That is, in the context of these parties, simply not fair. She only worked part of 2011 and was a student for the majority of the year. Her circumstances are now such that she can work full time in the profession of her choice.

She should not continue to receive higher support based on outdated circumstances. [ 37 ] Here, there is no reason to decline to adjust the parties' obligations on a retroactive basis, to the time of the changed circumstances. I did not order that shared parenting commence in the fall of 2011 when Ms. Leeder began to work or had completed school or when the child began a new school. The order for shared parenting was made effective February 24, 2012 when Mr. Hestbak was to have the child for the first of the week-on/week-off rotations.

Thus there is no adjustment to s. 3 payments necessary or appropriate for 2011 other than to have them paid on the basis of Mr. Hestbak's actual 2011 income. He overpaid 2011 by $264 and is entitled to that credit. b. Calculations [ 38 ] Starting March 1, 2012, the parties were in a shared parenting regime. I make no adjustment for February as it was only the last five days of the month affected by the change. Starting March 1, it is appropriate that the parties offset their s. 3 child support obligations based on their provisional 2012 incomes.

Section 9 of the Child Support Guidelines makes that appropriate. The Guidelines provide: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses;

(

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 39 ] The norm is for reciprocal payments to be offset such that the parent with the lower income will still receive some support. Where the 40 percent threshold is exceeded (here, to 50 percent), the equity of an offset is even clearer. [ 40 ] Ms. Leeder cites her debt load as a reason to postpone any adjustment under s. 9. However, I have not been provided with a budget, nor has Mr. Hestbak had any opportunity to respond and provide budgetary information of his own. [ 41 ] Ms.

Leeder cites hardship, but undue hardship is not made out on the information she has provided in her affidavit. If she is having trouble making ends meet on her current income from nursing, she may have to consider going to full time or taking additional shifts when available. Any claim for undue hardship must be properly made and supported by sufficient evidence under s. 10 of the Guidelines. [ 42 ] Thus, Mr. Hestbak's provisional payment is $688 per month. Ms. Leeder's payment based on $43,800 per annum is $349 per month. The net payment to Ms. Leeder should therefore have been $339 per month starting March 1.

Mr. Hestbak has, to and including September 1, 2012, paid $6,390 and has thus overpaid by $2,641. [ 43 ] In the result, I find that Mr. Hestbak has overpaid by a total of $2,905. [ 44 ] The calculations for 2012 should be adjusted after financial disclosure in 2013 so that they will reflect payments based on actual incomes. This will undoubtedly result in an underpayment or overpayment. If there is an overpayment, that should be recovered by a reduction in ongoing payments so that the overpayment will be recovered over the next 12 months.

If there is an underpayment, that will be paid by an addition in ongoing payments such that the underpayment will be paid over the next 12 months. 4. Ongoing Child Support [ 45 ] Ongoing child support will be set provisionally for 2012 and 2013 at the incomes projected above. For 2012, the necessary adjustments will be made effective July 1, 2013 after financial disclosure has been made by each party.

The payments starting July 1, 2013 will be based on the parties' 2012 guideline incomes as determined following financial disclosure in June (or earlier) 2013, and adjusted effective July 1, 2014 following the same formula and procedures discussed above. 5. Custody and Access [ 46 ] As decided by me at the hearing on September 18, 2012, I am not satisfied that there should be any adjustments to the custody and access provisions set by my order of February 1. Despite the ongoing difficulties with trust and communication between the parties, and issues over activities, participation and support for activities, Ms.

Leeder has failed to pursue the parent coordinator route encouraged by the Court and instead seeks a change in custody. [ 47 ] Failure or refusal to communicate or to take meaningful steps to overcome communication and trust issues cannot be used as a means to defeat shared parenting. Indeed, in my view, ongoing trust and communication difficulties may be a reason for imposing a shared parenting regime on the parties to overcome power imbalances and avoid alienation. In this regard, I recognize that I may appear to be taking a different approach than that described by the Court of Appeal in Richter v.

Richter , 2005 ABCA 165 at para. 11 :

11 First, as a general proposition, joint custody and shared parenting arrangements ought not to be ordered where the parents are insubstantial conflict with each other, and certainly not before trial especially when there is also significant disagreement on the evidence.The best interests of a child are not well served by imposing régimes which invite continued court applications on all matters, big andsmall. As the British Columbia Court of Appeal noted in Stewart v. Stewart (1994), (BC CA), 2 R.F.L. (4th) 53 atpara. 9 (B.C.C.A.), citing Kruger v. Kruger (1979), (ON CA), 11 R.F.L. (2d) 52 at p. 79 (Ont.

C.A.): [Joint custody] requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness mustbe sincere and genuine ... and as suggested by my colleague Moen J. in T.S. v. A.V.T., 2008 ABQB 185: 154 "Joint custody requires a sincere and genuine willingness by both parents to work together to ensure the success of thearrangement. Where such is lacking, an order for joint custody may not be in the best interests of the child.": R.A.L., supra.

In otherwords, where parents are in substantial conflict with each other, it is often inappropriate to order joint custody and shared parenting:Richter, supra. [48] These are stated as general principles, but not as rules. They certainly describe laudable aspirations and the "perfect world".These principles may be applicable in some circumstances, but often are not helpful in others. I do not see them as being as applicablewhere the communication issues are one-sided.

Where a party refuses to address communication issues or pursue strategies where suchissues may be ameliorated, it is very difficult to see how perpetuating the difficulties is in his or her (or their) child's best interests. Thepursuit of parental grievances is usually contrary to the child's interests, as that may ensure that the parental homes are filled with stressand anger, and result in even poorer communications. [49] Rewarding a non-communicative parent by restricting access to the other parent is generally not appropriate, where the otherparent is also a good parent.

Shared parenting may have the unfortunate result of creating parallel universes for the children, but it atleast provides the children with equal or roughly equal time with each parent. It also limits the opportunity for alienation by a parent, andbalances the power and control between both parents. In many cases, that balancing reduces the need for communications. [50] This is a case where the exception to the general principles applies. Ms. Leeder cannot by her unwillingness to involve aparenting coordinator or take other steps to minimize conflict between her and Mr.

Hestbak rely on these poor communications and herpoor relationship with Mr. Hestbak (and his with her) to regain primary residential custody. [51] There has been no change in the circumstances which led me in March, 2011 to favour a transition to shared parenting, and inFebruary, 2012 to implement it. [52] This aspect of Ms. Leeder's cross-application is dismissed. 6. Costs [53] I did not award costs at the time of the first application before me as it was obvious that custody and access arrangementswere going to be reviewed sometime hence.

When I reviewed those arrangements and directed shared parenting in February of this year,it was again obvious that a further application was likely necessary following financial disclosure for 2011. [54] The latter two applications flowed out of the first. For these applications, Ms. Leeder was self-represented. She opposed therelief sought by Mr. Hestbak and has in the main been unsuccessful. The first application, which was a special chambers application withbriefs, was one where Ms. Leeder was substantially successful. The application resulting in shared parenting was opposed by Ms.

Leederand she was unsuccessful. The current application was one where direction from the Court was necessary, as the parties could not agreeon guideline incomes and their settlement agreement suggested a different result than I ordered. Mr. Hestbak sought significantly moreretroactive adjustments than were awarded. I view neither party as having succeeded in the main on the current application. At best, the

results could be described as divided. [ 55 ] These parties should be working together in their children's best interests. Cost awards may make the parties think twice before forcing a court application rather than attempting to settle issues out of court. There is no reason why access issues (once the basic parenting regime has been established) should not be capable of being worked out by the parties themselves, as long as they are acting reasonably and in their children's best interests.

The same may be said for most child support issues, especially s. 7 expenses. [ 56 ] There may be a further application if the parties are now unable to agree on s. 7 expenses. The breakdown is fixed for 2011 and earlier, and for 2012 is at least established on a provisional basis. If the parties are unable to work together and resolve these, and further court applications ensue, it should be expected that the unsuccessful party will bear a measure of costs.

Such costs may well exceed the amounts in dispute, so I encourage the parties to avail themselves of measures outside court to resolve any remaining or ongoing issues. [ 57 ] Ms. Leeder seeks solicitor and client costs from Mr. Hestbak. Such costs are rarely ordered in matrimonial cases, and there are no special circumstances here, on either party ’ s part, warranting penalty costs. Ms. Leeder is entitled to a set of costs including briefs for the special chambers application in March, 2011. Mr.

Hestbak is entitled to a set of costs for the contested chambers applications in February 2012, without any fee for briefs. On column 2, that would entitle Ms. Leeder to $1,250 and Mr. Hestbak to $750. 7. Payment of Adjusted Amounts [ 58 ] Mr. Hestbak is entitled to an adjustment in his favour in the amount of $2,905, minus $500 in costs, equalling $2,405.00, being the net amount awarded to Ms. Leeder. That amount should be repaid to him by way of a proportionate reduction in his monthly payments to Ms.

Leeder starting November 1, 2012 and to be repaid by the June 1, 2013 payment. [ 59 ] There will have to be an adjustment for 2012 and ongoing 2013 payments effective July 1, 2013 following financial disclosure in the spring of 2013. Heard on the 18 th day of September, 2012. Dated at the City of Edmonton, Alberta, this 17 th day of October, 2012. Robert A. Graesser J.C.Q.B.A. Appearances: Andrew Lawson for the Applicant

Diane Leeder on her own behalf