TT v JT, 2012 ABQB 668

Court of Queen ’ s Bench of Alberta Citation: TT v JT, 2012 ABQB 668 Date: 20121101 Docket: 4803 150043 Registry: Edmonton Between: TT Applicant - and - JT Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] I initially heard a special chambers application involving these parties in June, 2011. At that time, the parties were having difficulties with access and

section 7 expenses, and the wife, JT, had applied for spousal support. TT had brought an application for shared parenting of their daughter. [ 2 ] From the time of separation, their son, now aged seven, and their daughter, now aged six, had been in JT's primary care. TT had regular access to the children, which he exercised.

[ 3 ] At that time, I ordered greater access to TT, and indicated that while I saw the parents heading towards a shared parenting arrangement, that time had not yet come. I gave TT leave to apply to review the custody and access arrangements in June, 2012.. [ 4 ] There were difficulties settling the terms of the order following the hearing and my written decision, and for a time, JT was not represented by counsel. It was during that period that the order was finalized, although without further input from JT.

The contents of that order remain disputed by her, although no appeal was taken from the formal order. [ 5 ] Following the order, the parties did little or nothing to pursue the initiative of arranging a parenting coordinator to assist with their communication difficulties and to help resolve issues as they arose. [ 6 ] The parties were also unable to resolve child support arrears and s. 7 issues notwithstanding the directions given in my written decision, at the hearing and in the formal order. [ 7 ] The application to review the custody and access arrangements was set to be heard on June 18, 2012, at which time it was expected that other contentious issues would be dealt with. [ 8 ] About a week before the scheduled hearing, I had a conference call with counsel.

Mr. Kampitsch, TT's lawyer, advised that he had just received an affidavit from JT referring to an incident in September of 2011. It is unnecessary for me to go into the details of the allegation, but it arose out of TT bathing his daughter. [ 9 ] Mr. Kampitsch took great exception to the allegation in the affidavit, and demanded that it be excised and not considered by me. Alternatively, he argued that the issue had to become the subject of a Family Law Practice Note 8 intervention. Mr.

Mawani, for JT, advised that JT was not alleging any sexual impropriety but felt that the Court should be made aware of the incident. [ 10 ] I agreed with counsel for TT, and advised that either the affidavit had to be amended, or a Family Law Practice Note 8 intervention would have to be initiated. On June 14, 2012, four days (including a weekend) before the application, Mr. Mawani advised that he had instructions to file the necessary Form 1. The necessary report and form was filed with Child and Family Services on June 14. [ 11 ] Mr.

Mawani's letter advised that the incident had been reported to the Social Services Office in Strathcona County "after consultation with counsellors from M's school and from the Parachutes program". He disputed Mr. Kampitsch's assertion on the part of TT that the incident had been brought to TT's attention before, referring to an email from JT of October 5, 2011 to him stating that the children do not need any help with bathing. That was the extent of the communications between the parties on the subject.

TT professes that he had no idea what JT was talking about at the time. [ 12 ] Apparently, Strathcona County Social Services did not pursue the matter, and neither did JT at the time. [ 13 ] As a result of the investigation necessitated by the Practice Note 8 process, no decisions were made on custody or access changes at the June 18 hearing. It was adjourned in the hopes that there would be a report from Zebra Centre by the end of August. [ 14 ] At the June 18 hearing, JT raised concerns that my June, 2011 decision had not dealt with retroactive s. 3 child support.

I agreed to review the transcript of the June, 2011 hearing and advise whether the matter had been dealt with, or left unresolved. [ 15 ] Then on July 4, 2012, Mr. Mawani sent two affidavits to Mr. Kampitsch, referring to an incident involving the other child some six and a half years earlier. One of the affidavits was by JT. The other was from a friend of hers, advising what she had seen and heard some 6 ½ years ago. Again, I need not go into the details of those allegations but they arose out of TT changing his then six- month-old son's diaper.

[ 16 ] TT, in his affidavit of October 4, 2012, states that this allegation was made a day after his lawyer was advised by Child and Family Services that they would not be pursuing the June 14 report a day before the allegation was brought forward with respect to the other child. JT denies the timing of this and states that she did not know the September 11 incident was not going to be investigated further before she brought up the incidents involving their son. [ 17 ] JT stated in her affidavit that she had been advised to bring this matter forward by someone she consulted at Victim Services.

I referred these allegations and the affidavits to the Zebra Centre in Edmonton to be investigated along with the September, 2011 allegation. [ 18 ] I requested that a report be prepared if possible by the end of August, as the investigations into these matters were holding up a determination of custody and access issues. [ 19 ] Despite JT's arguments that I restrict TT's access to the children over the summer, I did not vary TT's access, notwithstanding the allegations.

I stated at the hearing on June 18 that I had serious concerns over the credibility of the allegation having regard to the fact that it had not been raised until the eve of the application and dated back to September, 2011, and that incident had been followed by uninterrupted access by TT, apparently without further incident. [ 20 ] On July 13, Strathcona Children's Services contacted Mr. Kampitsch advising that there would be no investigation of the 6 ½ year old complaint. Mr.

Kampitsch advised JT's lawyer at that time that TT would now be seeking primary residency of the two children, and not a shared parenting regime. [ 21 ] On July 20, a report was sent to me from Strathcona County Neighbourhood Centre for Children, Youth and Families (NCCYF) relating to the September, 2011 allegation. The letter advised that the investigator's opinion was that the allegation "could not be substantiated as sexual abuse".

She concluded that "the timing of the concerns being reported by JT are somewhat suspect, as generally a parent who has significant concerns about a child's well being will report these concerns in a more timely manner." [ 22 ] I received a further letter from Strathcona County NCCYF dated August 28 relating to the allegations concerning the parties' son, reciting that JT and the children were interviewed, as was TT.

JT's friend was interviewed by telephone. [ 23 ] The caseworker and her supervisor stated that "there are concerns about the mother's sexualization of the father's interactions...with the children, and the impact that this may have on their development of healthy boundaries and bonds with male figures in their lives." [ 24 ] They advised that the caseworker at Zebra Centre had determined that the children were "safe" (with TT). [ 25 ] The matter came back before me on October 9. At that time, TT sought primary residency of the children.

JT sought the status quo, with no increase in TT's parenting time. [ 26 ] TT also sought solicitor and client costs in relation to the adjourned hearing in June, 2011 and with respect to the Practice Note 8 interventions which he characterized as baseless and a delaying tactic. [ 27 ] In addition to these remedies, TT seeks to have income attributed to JT for 2011 as he has not been provided with copies of the receipts for expenses deducted from her business income for income tax purposes.

TT maintains that some amount should be added to JT's line 150 income for personal benefits from some of the business expenses, or that some of the business expenses are not properly deducted from her income. Because of JT ’ s failure to provide the receipts, he seeks to have her income for 2011 set at the gross amount of business revenue shown in her tax return.

[ 28 ] Further, TT seeks to have JT declared in contempt and sanctioned by the court for such contempt for failing to provide legible copies of the business deductions (following my order that receipts be provided during the June 18, 2012 application) as well as for her failure to facilitate telephone access to TT on weekends when the children were with her, and for refusing to allow TT access to their daughter on her birthday this fall, contrary to the provisions of the June 22, 2011 order. [ 29 ] In her cross-application, JT sought retroactive child support, maintaining that my order of June 22, 2011 dealt only with ongoing child support.

She also seeks s. 7 arrears, noting that these remain outstanding notwithstanding my decision following the June, 2011 hearing. [ 30 ] She objected to portions of TT's most recent affidavit, which appended an email from her to Mr. Mawani in 2010. Apparently, TT had access to JT's email account password, and copied an email exchange between her and her lawyer.

JT characterized this as an invasion of her privacy, and she sought sanctions against TT for doing so and violating her solicitor and client privilege. [ 31 ] JT also objected to any use of the report from Strathcona County NCCYF on the basis that it was co-authored by the social worker who had received the complaint in September, 2011 and who had decided then to do nothing about it. She alleges bias on the author's part. She denies that she is "sexualizing" TT's interactions with the children. [ 32 ] There are thus a number of issues to be decided: 1. Ongoing custody and access;

Section 3 and

section 7 arrears, if any; 3. JT's guideline income; 4. Contempt; 5. Use of JT's email to counsel; 6. Costs. 1. Ongoing Custody and Access [ 33 ] I advised the parties in June, 2011 that their situation appeared conducive to shared parenting, notwithstanding the communication and other difficulties between the parents. JT relies on TS v. AVT , 2008 ABQB 185 where Moen J. held at para. 156 that as the parties could not communicate effectively, shared parenting should not be ordered and “ one parent should take primary responsibility for the child ” . See also JM v.

TLK , 2007 ABQB 211 . [ 34 ] As I recently held in Hestbak v. Hestbak , 2012 ABQB 633 , I am of the view that while communication difficulties are a concern in custody and access issues, they do not by themselves negate a shared parenting arrangement. The nature, cause and source of the difficulties must be explored. In some cases, shared parenting has the beneficial effect of maximizing contact between each parent and the children (satisfying one of the custody and access objectives under the Divorce Act and as discussed in Botticelli v. Botticelli , 2009 ABQB 556 ).

Determining the best interests of the children is first and foremost a factual determination, not a question of law. [ 35 ] Mr. Mawani argues that “ maximizing contact ” does not equate to shared parenting or equal contact. I agree, but where there

are no geographical issues, significant

schedule issues or capability issues between the parents, it is difficult to see why the principle ofmaximizing contact does not lead to serious consideration of shared parenting as a regime that is in the best interests of the children. [36] In Botticelli, Veit J. noted that there were no longer any presumptions in favour of either parent or any parenting regime andthat any analysis was to be based on the best interests of the children. One of the statutory considerations is maximizing contact.

Asregards earlier authorities suggesting that shared parenting was not appropriate where there is substantial conflict between the parents,she stated at para. 24: [24] Incidentally, our Court of Appeal has stated in the past that shared parenting would not be considered on an interim basis wherethe parents are in substantial conflict with each other. Such a conclusion must be based on a presumption that substantial conflict betweenthe parents is not in a child's best interest. Any such presumption no longer applies.

Indeed, contemporary social science literature onparenting may have to be tested in a trial context in order to elucidate the actual relationship between a child's best interest and parentaldisagreement. [37] I agree with Veit J.'s comments and conclusions. [38] Mr. Mawani notes that there is no presumption in favour of shared parenting, citing Young v. Young, (SCC),[1993] 4 S.C.R. 3, Cavanaugh v.

Balkeron, 2008 ABCA 423, and the principle of maximizing parental contact with the children yieldsto what is found to be in the best interests of the children. [39] TT filed an affidavit sworn May 28, 2012, essentially attesting to his parenting skills and his positive relationship with thechildren. He puts forth a fair amount of criticism of JT. JT responded with a detailed affidavit of June 6, seeking a return to the pre-June,2011 regime.

She rebutted virtually every paragraph in TT’s May 28 affidavit, criticized TT’s parenting and painted the children’srelationship with their father in a negative manner. [40] TT responded with a detailed affidavit of June 14, replying paragraph by paragraph to JT’s criticisms and making more of hisown against JT. [41] JT has raised the level of conflict between her and TT as a reason to maintain the current situation and not move to sharedparenting. She has also raised concerns about TT's parenting style and skills, including discipline. One of the allegations refers to TT"smacking" one of the children.

Another allegation was that TT had broken one of the children's "sun catchers" as a disciplinary measure.TT denies these allegations. [42] JT’s "evidence" of these incidents comes from the children. They are otherwise unsubstantiated. Her hostility towards TTappears to be escalating. The hostility has, according to TT, spread to include JT’s father and her brothers. [43] There is nothing in JT's affidavit of June 6, 2012, or her affidavit of June 27, 2012 which gives me any significant concernabout TT's parenting skills. He denies using corporal punishment and denies breaking the sun catcher.

JT appears to allege that thechildren get cold sores when on his parenting time, and she complains about their clothes and cleanliness while on his parenting time.She objects to the children being left with TT's new partner or her daughter or his parents. She also doubts his commitment to thechildren because of a lack of support for their activities.

These are all denied, and TT has answers for each of these criticisms.Ultimately, I do not see that any of these issues are such as to require any limitations on TT's parenting time. [44] I do have concerns over the level of conflict, and the appearance TT is giving that extracurricular activities are not veryimportant if there is a cost associated with them.

His statement that he “forgot” to make the payments directed by my June 22, 2011 orderrings hollow. [45] However, if there had been any significant parenting issues over the summer as TT exercised access approximately 50percent of the time, I am sure those concerns would have been brought forward.

[ 46 ] It is difficult to decide credibility issues on the basis of affidavits, even when those affidavits have been subjected to cross- examination. Here, the information before me is that the incident involving the daughter in September, 2011 was reported to Child and Family Services, who declined to do anything about it.

JT did not raise it directly with TT, and brought it up for the first time in her affidavit of June 6, 2012 shortly before a custody hearing was to be held in relation to the shared parenting which she has long opposed. [ 47 ] The allegation about the other child some 6 ½ years earlier was never raised with TT until it found its way into JT's June 27, 2012 affidavit.

She stated that "since that time and for the remainder of the marriage, (she) made a point of not leaving (TT) alone with (the children) when bathing, changing or dressing" them. [ 48 ] It is significant that the parties had been separated for nearly four years before this allegation surfaced. In the meantime, TT exercised access regularly, including overnight access and holiday access.

If JT had any credible or legitimate concern over TT's actions as they were described in her and her friend's affidavits of June 27, 2012, one would have expected them to be raised at the earliest stage of custody and access proceedings. [ 49 ] To raise them now, and only in the context of TT's claim for shared parenting, is highly suspicious and casts significant doubts on JT's sincerity. [ 50 ] Indeed, it is inexplicable that JT would raise the September, 2011 issue before the June 18 application date, and wait until later to raise the 6 ½ year old event.

The only conclusion I can come to from the timing and sequence of these reports is that they have been used strategically, to try to do as much damage as possible to TT's chances of gaining shared parenting. [ 51 ] It is completely contrary to the children's best interests to sit on and do nothing about supposed concerns in 2005 or early 2006, not raise them in negotiations for custody and access after separation, not raise them in the context of TT's application for shared parenting in June, 2011, not raise them in June, 2012 when TT's application for shared parenting was renewed, not raise them when the September, 2011 concerns were raised, and wait until after the September, 2011 concerns had gone nowhere in support of JT's position on custody and access to raise them. [ 52 ] If JT had real concerns, it was her duty as a parent to deal with them promptly and ensure that the children were not at risk.

For her to suggest now that the children are at risk in TT's care because of these old allegations has no air of reality to it. Her inaction for 6 ½ years speaks far more loudly than her last-minute complaint. [ 53 ] The same can be said about the September, 2011 incident. If JT had real concerns at that time, she had a duty to deal with them promptly.

Sitting back and not raising them (other than very obliquely) with TT in a manner which he did not understand suggests that she had no real concerns at the time, and the concerns raised in June, 2012 were invented for the purposes of the application. [ 54 ] This conduct gives me great concern for the ongoing well being of the children. JT appears intent on doing whatever she can to prevent TT from having more time with the children. That is not healthy, especially when there is no objective basis for concerns with TT's parenting skills. [ 55 ] The dispute between the parents is heating up.

JT is now raising 2005 or 2006 issues; TT is responding by raising year-and-a- half-old concerns about his safety at the hands of JT and her family. JT wishes to revisit many of the minute details of pickup and drop- off times discussed at length at the June, 2011 application. TT appears to be taking an unreasonable approach to

section 7 expenses. None of this is in the best interests of the children. [ 56 ] Zebra Centre concluded that the children were safe, and referred to a 50-50 access arrangement. Strathcona County NCCYF recommended that the parties attend a Child Development and Parenting Program. I encouraged them to work with a parenting expert. TT deposes that he has enrolled in several parenting programs which will take place in November, 2012. JT has (at least on the evidence before me) done nothing to attempt to improve her parenting skills or her communications with TT.

[ 57 ] Ultimately, I am concerned that TT's relationship with the children may be undermined if he does not have greater contact with them. There is nothing in the evidence to persuade me that either parent lacks the necessary skills to properly parent the children.

There is nothing in the evidence to persuade me that either parent has special skills, or that there are bonding or attachment issues which would favour more time with one parent than the other. [ 58 ] In my view, the communication difficulties between the parents, and their increasing hostility towards each other, may be neutralized or minimized by equalizing their parenting time. In that way, neither parent has any greater opportunity to influence the children than the other; neither parent has any greater opportunity to undermine the children's relationship with the other. Control issues will be minimized.

There is nothing in the circumstances before me that I consider to make shared parenting contrary to the best interests of these children at this time. Indeed, I find that shared parenting is in their best interests, and is necessary at this time to help ensure that they have a healthy and appropriate relationship with both parents. [ 59 ] It may be that this is an interim measure. If the hostilities between the parents continue, the children will undoubtedly suffer. Those circumstances may ultimately require the appointment of counsel for the children and potentially a bilateral custody assessment.

These are parents of somewhat limited means. They have already spent an inordinate amount of money on their dispute. Further expenditures of family resources could undoubtedly be spent on activities and amenities, rather than lawyers and counsellors. [ 60 ] At this stage, however, I consider shared parenting to be in the best interests of these children. I direct that the parties immediately develop a plan for 50/50 parenting of the children, minimizing exchanges. Holiday time will be divided equally, preserving as best as possible the long weekend and holiday

schedule worked out in June, 2011 and contained in the June 22, 2011 order. [ 61 ] The parents need to stay out of court. They need to concentrate their energies and attentions on how to be better parents and how to be better co-parents for their children. [ 62 ] Before bringing any further applications, the parents must each take or retake the High Conflict Parents after Separation Course, as well as the followup course Focus on Communications.

They shall also take the program recommended by Strathcona County Child and Family Services, the Parenting and Child Development Program. [ 63 ] If there are any urgent matters that cannot wait until after the parties have taken these courses, they may apply to me for leave to bring any necessary application. I expect the parents to sort out themselves, or with the assistance of a parenting coordinator, details like pickup and drop-off times, locations and other arrangements necessary to facilitate the shared parenting and shared holiday time. 2.

S. 3 and S. 7 Arrears [ 64 ] Having reviewed the transcript of the proceedings of June 22, 2011, and the reasons I issued following that hearing, I accept that the matter of s. 3 arrears was not dealt with. I recited in my decision that the parents had resolved the s. 3 issues, and that was not correct. My decision focused on s. 7 issues and spousal support. [ 65 ] I acknowledged that JT had an entitlement to spousal support but had not demonstrated an immediate need for it.

I essentially set off any spousal support claims to the date of the application on the basis of TT having assumed a larger portion of the matrimonial debt (as there were no assets to share) and his having paid the expenses of the matrimonial home after the separation and before JT and the children moved out of it. [ 66 ] S. 3 expenses were not otherwise dealt with, and need to be addressed now. [ 67 ] TT began to pay child support in August, 2009. That month, he paid $1,124. Starting September 4, 2009, he paid $345 twice a month until June 17, 2011. He missed a payment in December, 2009 and January, 2010.

Starting in July, 2011, after the special chambers application in June, he began to pay $437.50 twice a month, plus four payments of $277.50 to catch up for 2011.

[ 68 ] Mr. Mawani has provided a calculation of payments and arrears to June 30, 2011. It is not clear from his

schedule what guideline income he uses for each period for TT. [ 69 ] It is unclear as to whether he has calculated the required payments from the previous year's income. I believe that is what was done in June, 2011 when the payments for 2011 were set, based on TT's actual 2010 income and TT was required to "catch up" the difference to June 30 as TT had been paying on a different income to that time.

What was not done was for the payments for 2010 to be retroactively adjusted based on 2010's actual income. [ 70 ] Since 2011's payments were based on 2010's income, there may need to be an adjustment based on TT's actual 2011 income as I assume that his 2011 tax return was provided to JT before the end of June, 2012. Surely the parties can make the necessary adjustments to 2011 and ongoing for the balance of 2012 and into 2013 when TT's actual 2012 income is known. [ 71 ] As I held in Hestbak v.

Hestbak , absent agreement of the parties as to different procedures, the default position for the court is to adjust child support obligations based on actual guideline incomes for the calendar year. That usually requires retroactive adjustments to the amount of the ongoing payments for the current calendar year, and for the payments made for the previous calendar year now that actual and not projected incomes for that year are known. [ 72 ] Incomes are rarely static, so the payor will in July of each year usually find him or herself in a deficit or credit position.

The adjustment is usually made as of July 1, when the payments which have been based on the actual income for two years ago are adjusted to reflect the actual income for the previous year. That will be the new base, on which the ongoing guideline payment will be calculated. There will also be an adjustment for the past calendar year, now that actual incomes are known. If the income is higher than the previous year's (on which the payment was based), there will be a shortfall and some instant arrears.

If the income has dropped, there will be a credit. [ 73 ] Adjusting s. 7 payments retroactively on the basis of fluctuations in income is possible as long as the parties have kept track of their payments and the proportions used for their respective contributions, although the parties may be content to use the proportions as they exist when the payments are incurred, and not adjust retroactively when actual incomes are known.

I am not aware that there is a consistent practice of adjustments of s. 7 payments. [ 74 ] The parties may agree, and sometimes do, that payments will be based on the previous year's actual incomes, adjusted annually each July 1 after financial disclosure has been made. The payments starting July 1 will be based on the previous year's guideline income. Payments from January to June, which will usually have been based on the guideline income for the year before the previous year (set in July of the previous year) are left unadjusted.

There is no retroactive calculation based on the fact that the previous year's actual income is now known. [ 75 ] There is a certainty to this process, and an ease of calculation although strictly speaking it is a departure from the Guidelines. Nevertheless, the parties do not have to claim arrears, or seek retroactive adjustments. [ 76 ] With these parties, I do not know what their actual guideline incomes may be.

For TT, that should be easy to determine as I believe his sole source of income is from employment and would be reflected in his income tax returns. [ 77 ] For clarity, and to assist the parties in calculating arrears (if any), TT's obligations for the period July 1, 2009 to December 31, 2009 are to be based on his actual income for 2009, as shown by his tax return. His obligations for 2010 are to be based on his actual income for 2010 as shown by his tax return. His obligations for 2011 are to be based on his actual income for 2011 as shown by his tax return.

I leave it to the parties to make any necessary adjustment with respect to 2011. Any overpayment or arrears resulting from this should be spread over the payments remaining until and including June 1, 2013. [ 78 ] For 2012, TT's obligations are provisionally to be based on his actual income for 2011. If they have not been, they should be adjusted such that his payments starting January 1, 2012 will be based on his 2011 income. If his income increased in 2011 over his 2010 income, he will be in arrears. Any arrears are to be spread over the remaining payments until and including the June 1, 2013 payment.

If his income decreased in 2011 from his 2010 income, any overpayment will be recovered by spreading a reduction over the remaining

payments until and including the June 1, 2013 payment. [ 79 ] The complication with respect to 2012 is that TT does not accept JT's 2011 income tax return as reflecting her "real" guideline income. This could become relevant for the payments over the balance of 2012, but I have a discretion with respect to adjustments regarding shared parenting, and opt to make no adjustment on account of shared parenting for 2012. Any adjustment will be made starting January 1, 2013.

That will give the parties some time to attempt to agree on JT's guideline income for 2011, and perhaps a formula relating to her business expenses to be used on an ongoing basis. [ 80 ] Effective January 1, 2013, s. 3 payments will be based on the parties' 2011 guideline incomes. For TT, that will be as shown by his 2011 income tax return. For JT, that will have to be agreed or determined as directed in the

section below, dealing with JT's 2011 guideline income. Because of shared parenting, each party will pay the other guideline child support based on the current tables, and the payments will be netted. I am aware of no reason why the usual practice of doing this netting process should not be followed here. This will result, I expect, in TT making a smaller payment to JT than he has been to date. [ 81 ] Starting July 1, 2013, payments shall be based on the parties' 2012 guideline incomes. Because of shared parenting, the payments will be netted.

Unless otherwise agreed by the parties, the process described above will be followed, such that once 2012's actual incomes are known, payments from January 1, 2012 to June 1, 2013 will be retroactively adjusted to reflect 2012's actual income. Arrears or overpayments will be spread over the payments to and including June 1, 2014. And so on. S. 7 Expenses [ 82 ] It is unclear why the parties have not resolved the s. 7 expenses.

I left them to do that following the June 22, 2011 hearing and with directions that included a directed payment regarding pre-school expenses, consultation before incurring expenses for which there was an expectation of contribution, and an arbitrary determination that an individual expense above $40 shall be considered extraordinary, requiring consultation and agreement (not to be unreasonably withheld). Each parent was entitled to choose one extracurricular activity for each child; other activities for which contribution or support was expected needed to be agreed.

A mechanism for processing expenses covered, or partly covered, by TT's health plan was also provided. [ 83 ] The parties appeared to be in agreement as to their respective guideline incomes and the resulting percentages. [ 84 ] I frankly do not know what was missing from the directions given by my June 22, 2011 order, or why the parties have been unable to resolve those issues. I would certainly expect them to be able to deal with expenses after June 22, 2011 themselves, with those directions. Pre-June, 2011 s. 7 expenses were, I believe, dealt with.

If it was not clear, it was certainly implied, if not express, that the parents would proportionately fund the extracurricular activities chosen by each of the parents. That does not depend on costs. If JT chooses swimming for both children, the total cost of the swimming programs is to be shared proportionally.

She need not consult TT about that, nor can he refuse to pay his share because one of the costs is under $40. [ 85 ] Similarly, JT is to contribute to the costs of the activity chosen by TT on the same basis. [ 86 ] I cannot comment on the practice usually followed regarding retroactive adjustments of s. 7 expenses. If incomes change, the parents' respective percentages will change with them. It appears to me to be impractical to revisit s. 7 expenses when they have been paid on an ongoing basis, when provided to the payor in a fashion they have agreed to or been ordered to follow.

Generally, it makes sense for the percentages to be set on July 1 each year, based on the guideline incomes for the previous year. Expenses submitted or incurred thereafter would be shared on the new percentages. [ 87 ] Generally, it is impractical to retroactively adjust the

section 7 payments once the new percentages have been determined. Accountants can do this if accurate records have been kept, but in many cases, the parents do not set up Quickbooks or sophisticated accounting programs to track their s. 7 expenses. Many parents "pay as you go", reimbursing the other in accordance with whatever formula they are applying at the time. That type of process should be encouraged, rather than discouraged. [ 88 ] To go back eighteen months and adjust based on the actual guideline incomes of the parties just determined for that calendar

year, may be an exercise that adds unnecessary work or strife to the parents. I realize that there may be hardships resulting from this general practice, however. One parent may incur $8,000 for orthodontic work, in a year where his or her income has declined and the other parent's income has increased. Fairness might dictate an adjustment based on the parties' actual incomes.

But for the $100 items, and where the fluctuations in income are not great, the parties should generally leave well enough alone. [ 89 ] In my view, retroactive adjustments of s. 7 expenses, where the parties have been regularly submitting expenses to each other and reimbursing each other, should be discouraged and should be the exception and certainly not the rule. [ 90 ] Here, because s. 7 payments do not appear to have been regularly submitted and paid, the parties should use their actual 2011 incomes and the proportions resulting from those incomes for any proper s. 7 expenses which were incurred after June 22, 2011 or which were unresolved by my decision following the June 22, 2011 hearing.

Again, as noted before, I believe that all issues before that time were resolved so the only issue should be s. 7 expenses after that date. [ 91 ] Any calculation will have to await determination of JT's guideline income for 2011 as discussed below. [ 92 ] It is clear between these parties that there are communication difficulties with ongoing s. 7 expenses. There has been little prior consultation, and little agreement when there has been consultation. The absence of prior consultation should not operate as a bar to a later claim if the expense was medically or educationally required.

If it is activity related, prior consultation need not take place with respect to the "chosen" activities. That being said, consultation is always a good thing, even if it does not result in agreement. Refusal to agree (especially where that might be characterized as unreasonable) is likewise not a bar to ultimate recovery. These matters are always subject to court review. [ 93 ] With these further directions, before coming back to court on any s. 7 issues, the parties shall first go through the Child Support Resolution program. 3. JT's Guideline Income for 2011 [ 94 ] JT runs a day home out of her residence.

Her income tax return discloses the gross income from this business, and deducts expenses attributed to the business. She then reported the net income as her line 150 income, which was always relevant for s. 7 purposes and is now relevant for s. 3 purposes as well. For 2011, her line 150 income was stated to be approximately $20,000. [ 95 ] Her 2011 income tax return shows a gross income of $39,096. TT has been attempting to obtain the receipts for these deductions, so that he can analyze whether the receipts are in fact business-related, or whether there is some personal benefit to the expenses claimed.

In the absence of seeing the receipts, he seeks to have me impute the full $39,096 as JT's 2011 income. [ 96 ] One of the difficulties expressed on TT's behalf is that he has never been given legible copies of the receipts for the s. 7 expenses JT is claiming. This appears to be a technology issue, although there is a trust issue underlying this. TT wants to see originals; JT doesn't want to let the originals out of her possession. To the extent that I need to make a direction, JT should make a legible copy of any receipt and provide it to TT or his counsel.

If TT or his counsel want to see the originals for some reason, arrangements should be made for JT to get the originals to her lawyer and TT or his lawyer can go to her lawyer's office to look at the originals and presumably compare them with the copies they have received. [ 97 ] It is not uncommon when assessing guideline incomes for the Court to look to s. 19(1)(

g) of the Federal Child Support Guidelines, and add back in certain of the business expenses where it determines that: (

g) the spouse unreasonably deducts expenses.

[ 98 ] Sometimes, the Court is of the view that a business deduction or portion of it carries with it some benefit which might, for child support purposes, be added back into the income of the parent, irrespective as to whether the deduction is a "legitimate" business deduction for income tax purposes. [ 99 ] Without knowing what the expenses are, especially for a business operated out of the home, there is a likelihood that a careful review will disclose some personal benefits which should be taken into account in setting the parent's guideline income. [ 100 ] Without the ability to review the expenses, and make reasonable judgments as to the existence and quantification of any personal benefit, I cannot make any meaningful findings as to JT's guideline income. [ 101 ] All receipts for deductions should be provided to TT with JT's tax return in accordance with the financial disclosure provisions applicable to these parties.

The receipts need to be complete and legible. [ 102 ] For JT's 2011 tax year, these receipts should be provided by November 30, 2012.

If the parties cannot agree on an appropriate amount to be added to JT's income, the issue should be taken to the Child Support Resolution office, as a pre-condition to bringing the matter back to court. [ 103 ] I would encourage the parties to attempt to agree on a formula to be applied in future years, so long as JT is running the same business, so that an agreed percentage is automatically added back to her income for guideline purposes rather than have this as an annual source of conflict and uncertainty. [ 104 ] It is important that this process take place promptly, as determining JT's 2011 guideline income is necessary to determine the proportions for reimbursement to her of any outstanding s. 7 expenses, as well as for the determination of child support as of January 1, 2013. 4.

Contempt [ 105 ] TT seeks declarations of contempt against JT in relation to failing to provide copies of her business expenses in accordance with my order of June 18, that she has withheld telephone access from TT and that she failed to give TT parenting time on their daughter's birthday, both contrary to the order of June 22, 2011. [ 106 ] As to the business expenses, I am satisfied that the business expense documents were provided in legible form, subject to TT or his counsel having the necessary technology or skills or combination of technology and skills to download the images.

There was no deliberate withholding of this information, and no contempt is made out. [ 107 ] As for telephone access, that was discussed at the June 22 hearing, but does not form part of the order. JT's failure to facilitate telephone access as discussed is disappointing but is not contempt. [ 108 ] JT refused to allow TT access to their daughter on her birthday this fall. The order of June 22, 2011 clearly provides that TT is to have access on their daughter's birthday in even years. This is an even year. No reason has been provided as to JT's breach of the order.

While she disputed many terms before it was finalized in February, 2012 and has since then complained that some of the terms in the February version which was signed are not accurate, TT having their daughter on her birthday in even years was not in dispute. [ 109 ] TT has established that JT breached the order. No reason has been proffered other than that JT misunderstood the order. Breach of an order is not always contempt of court. I am reluctant to find JT in contempt of court on account of this breach.

Were I to do so, I would suspend any sanction for a period of a year, on the basis that JT could purge her contempt by strict compliance with any of her obligations under the June 22 order or subsequent orders as they relate to parenting.

[110] Rather than make a contempt finding, however, I will simply note that JT now has a history of non-compliance. To redressthe loss of access to his daughter this year, TT will have access to his daughter on her birthday in both 2013, as well as his regular "even"access in 2014. 5. Use of JT's emails to counsel [111] TT essentially hacked into JT's email account. They had been separated for some time and TT had no right or entitlement toview JT's private communications.

To the extent that JT had previously given him access to her email by giving him her password (ifthat is what happened), TT must have realized that any consent while they were married to sharing information was no longer valid. Hisincursion into JT's email was a clear violation of her privacy rights. [112] What he found was an arguably disturbing exchange between JT and her lawyer, which could be interpreted as evidencingsome potential risk or threat to his safety. Mr.

Kampitsch argues that JT's lawyer had a duty to disclose the email at least to the police,following ethical rules permitting a lawyer to breach solicitor-client privilege or confidence if disclosures are made which the lawyerbelieves pose a threat that a serious crime may be committed. [113] Firstly, I do not see that the communication, even if producible, is currently relevant. If the communication evidenced apotential risk to TT, that was over a year and a half ago. Nothing happened in that regard and the communication is not relevant to anylive issue before the Court. Secondly, Mr.

Mawani advised that he did not consider the communication, when he received it, to represent a threat to TT. He treated itas an idle threat, or more accurately an expression of anger by JT as to the then-current situation. In other words, he did not treat itseriously. [114] Had he treated it seriously, he might have exercised a discretion to act on it. I do not see that his failure to act on it can be asource of criticism after the fact, when in fact nothing untoward occurred. Had something occurred after Mr.

Mawani's determination toignore the communication, that might be on his conscience, but would not be a clear ethical breach. [115] I am not aware of a duty to disclose on the part of a lawyer who has been given information by a client that the client intendsto commit a crime, even a crime of violence.

The lawyer may be freed in some circumstances from keeping the confidence, but does nothave a duty to warn or take positive steps in reaction to the disclosure to him. [116] I believe this conclusion is consistent with, Smith v Jones, (SCC), [1999] 1 SCR 455, in which the SupremeCourt ruled that a lawyer was freed from solicitor-client privilege in the limited circumstances where: 1. There is a clear risk to an identifiable person or group of persons, 2. There is a risk of serious bodily harm or death, and 3.

The danger is imminent. [117] The Court emphasized that relief from solicitor-client privilege is available only when those conditions are met, and that thisis a discretionary matter. [118] Had Mr. Mawani acted on the communication, he could just as easily have faced criticism from JT (and perhaps a complaintto the Law Society of Alberta as to breach of confidence) on the basis that it was clear from the "ha ha" at the end of the message that shewas not serious.

[ 119 ] In any event, the communication here is irrelevant and I need not decide the privilege issue. That being said, I cannot see how a client's disclosure of an intent to commit a crime, or asking the lawyer how to do it, could be subject to solicitor and client privilege in the first place. It is one thing to ask "what might happen to me if I did X?" and to ask "how can I do X?". The first scenario may be asking for legal advice. The second would not appear to be a privileged communication. [ 120 ] The key in civil proceedings is relevance.

Unless the discussion pertains to an issue in the litigation, it is difficult to see how it might have to be disclosed. Not everything on a lawyer's file is privileged and confidential, or subject to solicitor and client privilege. Not all communications between a lawyer and his or her client are privileged. The client must be seeking legal advice, and the lawyer must be giving it or obtaining information on which to base advice. [ 121 ] Disclosure is based on relevance and materiality.

General questioning on character and credibility is unlikely to be found relevant and material for the purpose of pre-trial disclosure or questioning. [ 122 ] As the communication here is not relevant and has no bearing on these proceedings, I take no notice of it. [ 123 ] As I stated above, solicitor and client privilege and the confidential relationship lawyers and clients have is essential to the lawyer's ability to give proper and informed legal advice. Clients will only make full disclosure of facts and events to their lawyers if they have assurance that their disclosures will be kept confidential.

The Courts should, in my view, be diligent to avoid erosion of this important principle. [ 124 ] There is little recent law on whether in a civil case the Courts have a discretion to exclude illegally obtained evidence. The main body of law is to the effect that relevant evidence is admissible in civil cases no matter how it was obtained.

This point was clearly put by Crompton J. in the 19th century: "It matters not how you get it; if you steal it even it would be admissible in evidence": R v Leathham (1861), 8 Cox CC 498 at 501. [ 125 ] There are authorities suggesting that there is a discretion to exclude evidence which has been obtained in violation of Charter rights in civil cases. In Seddon v. Seddon , [1994] BCJ No. 1729 (S.C.) , the Court excluded "wiretap" evidence where the husband had been surreptitiously recording the family communications within the home. Thackray J. held that Mrs.

Seddon's Charter rights were violated and applied s. 24(2) of the Charter . While I agree with the result in that case, and the condemnation of surreptitious recordings of family conversations in the family home and the breach of privacy inherent in that, I disagree that this could be characterized as a Charter breach. [ 126 ] Having regard to my finding that the communications are irrelevant, it is not strictly necessary for me to address whether there is a discretion to exclude even where the evidence is relevant.

I would only observe that such a discretion likely exists outside of the Charter , having regard to circumstances which might put the administration of justice into disrepute. I include illegally obtained evidence, where criminal or regulatory offences have been committed in the obtaining of evidence, and other matters such as breaches of the implied undertaking of confidentiality.

The Courts should not countenance unlawful or unseemly practices, and it seems to me that turning a blind eye to such practices may put the appearance of fairness into question. [ 127 ] Here, an argument can be made that hacking into someone's email account and copying information is a theft of some sort.

Had I concluded that the emails were relevant, I would have exercised the discretion I believe I have to exclude them on the basis of the manner of their discovery. [ 128 ] Sadly, raising this questionable material dropped TT to the same level as JT with respect to her late use of the allegations which generated the PN 8 process. It was tactical, and used only to attempt to discredit JT.

Hopefully, their children will never find out what the parents have done or tried to do to each other in their fight for control of the children. [ 129 ] Notwithstanding my condemnation of TT for hacking into JT's private communications and attempting to use solicitor-client communications for irrelevant purposes, I will not impose any sanctions other than my harsh words. The issue did not of itself cause an application, nor did it occupy a significant portion of the time necessary to argue the application.

6. Costs [ 130 ] Until TT's actual guideline incomes have been used to calculate his child support obligations for the applicable years, I do not know if he is in arrears or not. He paid $3,549 in 2009, $7,935 in 2010 and $10,500 in 2011. He is entitled to credit in those amounts for those years. [ 131 ] It is unfortunate that the s. 7 payments have not been sorted out. [ 132 ] The main purpose of the scheduled June 18 hearing was to discuss and determine whether shared parenting should be implemented. Arrears were raised shortly before that hearing.

The hearing was adjourned because of JT's recent disclosure of the September, 2011 incident and the resulting PN 8 investigation. Her subsequent disclosure of the 2006 incidents further delayed the hearing of the shared parenting application. It would not be unfair of me to say that JT's actions sandbagged TT's hopes of having shared parenting determined in June, and some of his efforts in that regard were either wasted or had to be duplicated for the present application. [ 133 ]

Schedule C allows $150 for a contested adjournment application. Costs are always in the discretion of the Court, and the Court has a discretion to award multiples of

Schedule C costs or solicitor-client costs in appropriate cases. Mr. Kampitsch prepared and submitted a brief for that appearance. For the current application, he has had to submit a further brief and prepare further affidavits. [ 134 ] While there has been mixed success on the s. 3 and s. 7 issues, TT has not distinguished himself regarding his attitude towards s. 7 expenses and his reluctance to pay them. However, the main application and most of the time spent at the hearing related to child custody and shared parenting. TT has been successful on that application. He is entitled to costs for it.

I will not at this stage award costs to either party regarding s. 3 or s. 7. If any further applications are required, I expect that costs will feature heavily in them. [ 135 ]

Schedule C provides a range of $1,000 to $2,000 for a family law special application where briefs or confirming letters have been prepared. [ 136 ] I award TT triple Column II costs for the adjournment of the June 18 application ($450) and Column II costs ($1,250) for the application of October 9. Conclusion [ 137 ] No applications may be made by either party until the conditions set forth above have been met. Thereafter, until further order, applications may be made only by my leave or by the leave of the Associate Chief Justice or his designate. Heard on the 9 th day of October, 2012.

Dated at the City of Edmonton, Alberta, this 31 st day of October, 2012. ________________________ R.A. Graesser J.C.Q.B.A.

Appearances: Ronald E. Kampitsch Merchant Law Group LLP for the Applicant / Plaintiff Karim Mawani The Art & Science of Dispute Resolution for the Respondent / Defendant