B.G.F. v. D.M.F., 2012 ABQB 698

Court of Queen ’ s Bench of Alberta Citation: B.G.F. v. D.M.F., 2012 ABQB 698 Date: 20121109 Docket: 4801 150602 Registry: Calgary Between: B.G.F. Plaintiff - and - D.M.F. Defendant Restriction on Publication: Identification Ban – See the Family Law Act ,

section 100. By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.C. Hawco _______________________________________________________ [ 1 ] The parties were married in December of 1987 and divorced on March 13, 2000. They had been separated for some four years before that.

They entered into a Consent Order on April 23, 1997, after having been separated for almost two years before that time. [ 2 ] The Order provided that Ms. F. would have sole custody of the two children: a boy aged 5 and a girl aged 3.

[ 3 ] Mr. F. agreed to pay $575.00 per month per child for support and $450.00 per month spousal support until further order. The spousal support was to be reviewed in one year. It did not take place. [ 4 ] At separation, Mr. F. was with the Canadian Army earning approximately $46,000 per year. Ms. F. was a registered nurse, but was not working full-time at the date of separation. [ 5 ] Ms. F. claimed that she began experiencing medical problems after the separation, as did her children. The boy had been diagnosed with asthma, Tourette ’ s syndrome and attention deficit hyperactivity disorder.

Her daughter developed hyperactive behaviour problems as well. These problems delayed her returning to work for a period of time. [ 6 ] Ms. F. ’ s family doctor, Dr. Christopher Morgan, submitted an opinion stating that, along with the problems referred to above, the boy had severe behavioural issues and learning disabilities, and had had in the past, seizures with psychotic episodes. In his view, the boy has been left with chronic psychological and cognitive deficits which will limit his vocational opportunities. He believes that he will likely require support from his mother for many years. [ 7 ] Dr.

Morgan further opined that the daughter has had “ a litany of psycho-education-behavioural issues during her lifetime. ” [ 8 ] Finally Dr. Morgan opined that Ms. F. “ has her own share of medical conditions. She has been seen by psychiatry and has been on anti-depressant/anti-anxiety medications intermittently over the years. ” She presently works as a nurse but has experienced a number of job-related injuries over the years. [ 9 ] Mr. F. left the military in August 1999 and went back to school from then until June 2001.

From August 2001 to the present, he has been working for Schlumberger in the United States and Canada. [ 10 ] In December 1999, he applied, in the Court of Queen ’ s Bench of New Brunswick for a provisional order to reduce his child support and spousal support as his income was less than the table amount under the then Federal Child Support Guidelines. He was granted an order to that effect. However, when the matter did eventually come to the Supreme Court, it was not confirmed in British Columbia where Ms.

F. was living and residing with the children. [ 11 ] The order from the Supreme Court of British Columbia rejecting the variation was issued in May 2001. Mr. F. began making his payments of $1,600.00 per month after receiving that order, but was then some $23,000.00 in arrears. Mr. F. received an order permitting him to pay off the arrears at $100.00 per month, which was subsequently increased to $150.00 per month. [ 12 ] Some time in 2010, Ms. F. sent a request to the Maintenance Enforcement Program in British Columbia querying whether the amount that Mr. F. was paying toward arrears could be increased.

Other than that, no request was made to Mr. F. by Ms. F. for an increase in support. It should be noted, however, that Ms. F. does say she attempted to communicate with Mr. F. in 2007 and 2009 via an email address which she had, but she stated she received no reply. Mr. F. says that he was not aware of any attempt by Ms. F. to contact him and states that he could always be contacted through the Maintenance Enforcement Program because he sent all of his payments through them and they had his contact information. Ms. F. was aware of this. [ 13 ] Ms. F. is presently working as a registered nurse.

In 2011, she claimed an income of just over $31,000. Mr. F. says that she did not include within that $19,200 of child and spousal support as well as some $23,800 which he paid to her on June 10, 2011 towards all arrears. She is presently living in Victoria. [ 14 ] Mr. F. is still working for Schlumberger in Canada. His income in 2011 was $213,000. He lives in Calgary. [ 15 ] In January of this year, Mr. F. brought an application to pay child support in accordance with the guidelines and to terminate

spousal support. In March of this year, Ms. F. brought an application seeking to vary the child support, and to vary the spousal support, both retroactively. [ 16 ] Ms. F. ’ s grounds for seeking to vary the child support as well as the spousal support are because Mr. F. ’ s income has increased significantly, her health had deteriorated and both children remain dependant on her, notwithstanding that her son is now 20 years old. Whether the son is still a child of the marriage [ 17 ] I am satisfied that the son is not a child of the marriage at this time.

That status ended when he completed his high school this past year and became 19, the age of majority in British Columbia. [ 18 ] I appreciate that Dr. Morgan has submitted his opinion that the son has “ chronic psychological and cognitive defects which will limit his vocational opportunities ” . However, I am not convinced that this young man falls within the category of a disabled child. [ 19 ] The boy has graduated from high school with fairly good marks. He appears to be able to do well at volunteer work at a children ’ s camp. He appears to be an athletic young man.

He also appears to be a likeable and sociable young man, according to his own Facebook postings. He has applied for and has been admitted to a trade school. There are presently no openings but there will be in 2013. [ 20 ] According to his mother, the young man is simply not able to work and remains dependant upon her.

Based upon his high school marks, his employment opportunities, his various athletic and social skills, I am simply unable to consider this young man to be someone that must be dependant on his mother for continued support. [ 21 ] When he does attend trade school on a full-time basis and if he is still dependant on his mother at that time, he will once again become a child of the marriage, and Ms. F. will be entitled for support. That, of course, is subject to variation should the circumstances warrant.

Retroactive Child Support [ 22 ] There is a duty on the payor parent to support his or her children in a manner that is commensurate with his income, even when there is an agreement in place with which he has complied. In D.B.S. v. S.R.G. [2006] 2 S.C.R. 231 , 2006 SCC 37 , (2006) 61 AltaLR (4th) 1. [ 23 ] The basic principles of this case, as set out simply and succinctly in the headnote, pp. 4 and 5 of the Alberta Law Report are: Parents have an obligation to support their children in a way that is commensurate with their income, and this obligation exists independently of any statutes or court order.

Under the Federal scheme, a payor who does not increase support payments to correspond with is his or her income will not have fulfilled his or her obligation. ... There are three situations in which it may be appropriate for court to order a retro-active award ... The second is where support has previously set out in an agreement between the parents. These agreements should be given considerable weight, but where circumstances have changed, a retro-active award may be ordered if permitted by the applicable statutory regime. ...

In exercising their discretion to order retro-active support, courts must balance the payor ’ s interest in certainty with a need for fairness and flexibility. In doing so, a court should consider the reasonableness of the delay in seeking support, the conduct of the payor, and the circumstances of the child, and the hardship occasioned by a retro-active award. ... The award should generally be retro-active to the date when effective notice was given to the payor.

The effective notice refers to any indication by the recipient that support should be paid or that the current amount of support needs to be renegotiated. It will usually be

inappropriate to make a support award retro-active to a date more than three years before notice was given. However, blameworthy conduct of a payor moves the presumptive date of retro-activity back to the time when increased support should have been paid. [ 24 ] To reiterate, Mr. F. left the military in 1999 and went to college for two years. He had to borrow to do so and earned very little. He applied for provisional order to reduce the payments and was successful. However, the Supreme Court in British Columbia refused to confirm that order.

In May 2011, when advised, he resumed his support payments of $1,600.00 per month. [ 25 ] Mr. F. did not act unfairly during the agreement. He did bring an application to vary, but this was denied, eventually. He took some time to clear up the deficit, and did so in June 2011. He had incurred approximately $80,000 in debt to re-educate himself. He did not miss any payments (except those for which he believed he had a provisional order). This case does not begin to fall within the type of conduct referred to by the trial judge or the Court of Appeal in Henry v.

Henry, 2005 ABCA 5 . [ 26 ] However, as the Supreme Court of Canada set forth in D.B.S. (which, of course, also dealt with the appeal on Henry ), the obligations on the payor whose income has increased substantially is to support his children, whether or not a request for more money is made. [ 27 ] Therefore, this Court must consider, among other things, the conduct of Mr. F.. I simply do not find any “ blameworthy conduct ” on his part. [ 28 ] I do note that Ms. F. has stated in one of her affidavits that she made an attempt to contact Mr. F. in 2007 and 2009, without success. Mr.

F. ’ s reply to that was that the Maintenance Enforcement Program in British Columbia always had his contact information. It would also appear from his affidavit that the decision to cut off all contact between himself and his children was not his, but Ms. F. ’ s decision. [ 29 ] In the end result, following the reasoning of the Supreme Court in D.B.S. , I am of the view that it would be inappropriate to make support award retro-active to a date more than three years before notice was given. That notice was not given until March 2012. The child support will be retro-active to April 1, 2009.

Spousal Support [ 30 ] At the time of separation, Ms. F. was a registered nurse. She still is. The period of co-habitation was eight years. She has been receiving support now for approximately 16 years. [ 31 ] Ms. F. has indeed borne the brunt of childcare and appears to have early in her children ’ s lives, perhaps more than her share of child-related problems. [ 32 ] Upon the evidence that I have read, neither of the children should be considered to be disabled. One is now an adult and one will soon be. Whether they remain dependent upon Ms.

F. appears to me to be a decision on their part and on their mother ’ s part. [ 33 ] The spousal support was to have been reviewed after one year. It was never reviewed. I see no reason why spousal support should continue beyond the end of this month, being November 2012. It does not seem to me to be either just or reasonable to continue paying spousal support under all of the circumstances. [ 34 ] As there has been divided success, there will be no cost to either party. Heard on the 1 st day of November, 2012.

Dated at the City of Calgary, Alberta this 9 th day of November, 2012. G.C. Hawco J.C.Q.B.A. Appearances: Daniel Colburne for the Plaintiff Robert C.P. Smyth for the Defendant