Ekvall v Ekvall, 2012 ABQB 710

Court of Queen ’ s Bench of Alberta Citation: Ekvall v Ekvall, 2012 ABQB 710 Date: 20121119 Docket: 4803 154679 Registry: Edmonton Between: Bernadette Ekvall Applicant - and - Todd Ekvall Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an application for interim and retroactive spousal support by Bernadette Ekvall against her husband, Todd Edgar Ekvall. Background [ 2 ] The parties had an 18- year relationship.

They cohabited for six months and were married in October, 1992. They separated in July, 2010. There are two children of the marriage, a daughter born in August, 1995 and a son born in December, 1997.

[ 3 ] At the time of separation, Mr. Ekvall remained in the matrimonial home and the two children remained with him. Mr. Ekvall is currently 45 and Ms. Ekvall is 43. [ 4 ] Mr. Ekvall works as an ironworker and welder. He has tickets in both trades. Mr. Ekvall's guideline incomes were $88,574 (2010), $102,814 (2009) and $106,938 (2008). In 2011, he earned $44,633. On cross-examination, he confirmed that before the separation, he earned over $100,000 per year, from 2004 on. His earnings dropped in 2010 because of his care-giving requirements for the children, which he testified continued throughout 2011.

The drop in his income is not as a result of economic conditions or the availability of work; he has turned down out-of-town job opportunities so that he could be home with the children. [ 5 ] Ms. Ekvall worked part-time during the marriage, but without any specific skills. After the parties separated, she took a construction safety course with plans of working in the construction industry. The course lasted from September, 2011 until early October, 2011. She did not pursue work in that industry, however, because at the time an opportunity arose, their son had come to live with her.

He stayed with her from February, 2012 until the end of April, 2012, but has since returned to live full-time with his father. [ 6 ] Ms. Ekvall now works in sales, and earns $15 per hour plus commissions. She expects to earn approximately $35,000 in 2012. [ 7 ] Her guideline incomes have been $25,173 (2011), $27,178 (2010), $20,111 (2009) and $18,306 (2008). [ 8 ] Attached to Mr. Ekvall's affidavit of August 8, 2012 is a spreadsheet he prepared, detailing where the children have been since the parties separated. He acknowledges that their daughter was with Ms.

Ekvall in March and April, 2011, and their son was with her in February, March and April, 2012. According to his calculations, they shared parenting of their son in May, June and July, 2012. [ 9 ] Their daughter was out of both homes in January and February, 2012. I have no reason to doubt the accuracy of his spreadsheet. Positions [ 10 ] Ms. Ekvall seeks spousal support, putting forth a budget showing expenses of $3,018 per month. Her budget appears reasonable, although it includes expenses for legal fees as well as $380 per month for child expenses during her access periods. Mr.

Ekvall did not provide a budget, although Ms. Ekvall estimated his monthly expenses at approximately $4,100, without any allowance for legal fees. [ 11 ] Mr. Ekvall seeks child support, based on an imputed income of $30,000 per annum for Ms. Ekvall. [ 12 ] Both parties argue that the other should have income attributed to them. Ms. Ekvall alleges that Mr. Ekvall worked far less than usual after separation to avoid spousal support obligations. She argues that his income should be attributed at $102,800, which was his 2009 income. That, she says, is the best indicator of his earning capacity.

She disputes that he has been required to cut back his hours or turn down work to be available for child-related needs and notes that he has been able to enjoy holidays since the separation, while she has not. [ 13 ] Ms. Ekvall seeks spousal support based on the difference between her actual incomes for 2010 and 2011, with 2011's income of $25,173 projected for 2012, and Mr. Ekvall's income of $85,574 for 2010 and attributed incomes of $77,673 for 2011 and 2012.

Her ChildView calculations using those incomes show a range of arrears from August, 2010 to September, 2012 between $21,813 (low range) and $25,844 (mid range).

[14] ChildView calculations at various incomes were provided by Mr. Oviatt on Ms. Ekvall's behalf. At $85,574 for Mr. Ekvalland $27,173 for Ms. Ekvall (2010 incomes), the range is from $927 to $1,081 per month. At $77,673 for Mr. Ekvall (attributed) and$25,173 (actual 2011) for Ms. Ekvall, the range is from $818 to $1,092. [15] Mr. Ekvall disputes any obligation to pay spousal support, arguing that his income has dropped significantly since the partiesseparated; that since he has had care of the children most of the time since separation; and that Ms. Ekvall has been free to pursueretraining and work full time.

He believes that she is presently underemployed, and alleges that she should be making at least $40,000 peryear in construction safety (following the courses she took). He also argues that he had to assume the matrimonial debt after theseparation. [16] Mr. Ekvall argues that Ms. Ekvall's income should be set as high as $40,000 per year. [17] He seeks child support based on an income of $30,000 for Ms. Ekvall, and $60,000 for himself. He calculates that the arrearsowed to him by Ms. Ekvall (offsetting any payments he should have made to her when the children were living with her) are $5,370.

Nos. 7 expenses are alleged by either party. [18] He argues that any spousal support obligations he has to Ms. Ekvall should be fully offset by her child support obligations tohim, because he assumed payment of family debts and on the self-sufficiency principles espoused in the Divorce Act. Analysis [19] There is no evidence that Mr. Ekvall has been deliberately underemployed to avoid any child support obligations or spousalsupport obligations. He has had the children with him most of the time. Ms. Ekvall swears that Mr.

Ekvall told her that if she soughtchild support, he would not let her see the children and would seek child support from her. [20] Ms. Ekvall relies on Mercer v. Mercer, 2004 ABQB 551, in which Watson J. (as he then was) attributed income for childsupport purposes to the husband on the basis of his "languid" efforts in finding alternate employment and that he was "incurious" as tothe children's needs and expenses. He held those to be unreasonable behaviours in relation to s. 19 of the Federal Child SupportGuidelines. He applied Hunt v.

Smolis-Hunt, 2001 ABCA 229, in his analysis. [21] At para. 23, Watson J. held that "intentional" for the purposes of attributing income was proven by establishing intentionalconduct and that the consequence was likely to happen as a result of the person's conduct. [22] I do not see that this case turns on the law. Ms. Ekvall brought her application for interim spousal support within two yearsfrom their separation. The Court's jurisdiction regarding retroactive arrears is set out in D.B.S. v. S.R.G., 2006 SCC 37 , [2006]S.C.J.

No. 37, and there is a clear discretion to go back to the date of separation in this case. The same consideration applies to the arrearsin child support claimed by Mr. Ekvall. [23] The Spousal Support Guidelines are advisory only and have no legal status in Alberta. Hunt v. Smolis-Hunt does not limitthe Court's ability to attribute income for the purposes of spousal support, and it is not necessary to make a determination that anyunderemployment is for the purpose of avoiding or lessening spousal support obligations. [24] Once entitlement has been established under Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813, Bracklow v.Bracklow, (SCC), [1999] 1 S.C.R. 420, and the cases following them, the determination as to amount is amulti-factored analysis based on the length of the relationship, the needs and circumstances of the parties, the parties' reasonableopportunities and, of course, the considerations mandated under the Divorce Act. [25] Here, I have no hesitation in finding that Ms. Ekvall is entitled to spousal support. This was a relatively long-term relationship– 18 years. Ms. Ekvall did not work throughout the marriage, and undertook the majority of child care responsibilities.

That enabled Mr.

Ekvall to pursue his career, and take work assignments that required him to be away from home. That furthered his career, and resulted in him having significant earning capacity. [ 26 ] Ms. Ekvall, on the other hand, did not upgrade her skills or pursue work other than part- time work until after separation. Her contribution to the marriage and the children kept her from pursuing more meaningful and gainful employment.

At the end of the relationship, she left the matrimonial home with little, and her needs were undoubtedly great. [ 27 ] She has, at least on an interim basis, established entitlement on the basis of compensation. [ 28 ] Ms. Ekvall has been successful in nearly doubling her income from the pre-separation period, although her current projected income would not cover her budget, having regard to income tax and other deductions from her pay. She is also entitled to spousal support on the basis of need. [ 29 ] For 2010, there is no doubt that Mr. Ekvall had an ability to pay. His 2010 income was $85,574. Had Ms.

Ekvall applied for interim spousal support in the summer of 2010, the calculation would likely have been based on Mr. Ekvall's 2009 income of $102,600 and her 2009 income of $20,111. She would also likely have received some interim costs. [ 30 ] Mr. Ekvall would have been awarded child support based on Ms. Ekvall's 2009 income, at table amounts for two children. [ 31 ] Mr. Ekvall might have been able to have those obligations reduced after his 2010 income tax return was exchanged (perhaps mid-2011) based on his 2010 income, and Ms. Ekvall's higher income.

This year, he might have had his obligations further reduced on the basis of his much lower income for 2011. It is unclear what Mr. Ekvall will earn for 2012. Ms. Kawulka, on his behalf, suggests $60,000 may be a reasonable projection. [ 32 ] On the basis of Mr. Ekvall earning $60,000 per year and being the primary caregiver for the two children, and Ms. Ekvall earning $30,000 per year, ChildView shows a range of between $415 and $550 per month in spousal support. The Child Support Guidelines would see Ms. Ekvall paying $436 per month for the children on a $30,000 income. Conclusion [ 33 ] Had Ms.

Ekvall pursued interim spousal support immediately following the separation, it is likely that Mr. Ekvall's income would have been set at approximately $100,000 and Ms. Ekvall's income at something over $20,000. That would likely have been adjusted in June to reflect her higher 2010 income and Mr. Ekvall's lower 2010 income. ChildView at $85,574 for him and $27,178 for her indicates a range of $927.00 to $1,225.00 with the mid-range being $1,076. [ 34 ] Ms. Ekvall's budget shortfall (not taking into account child support obligations) would likely have amounted to approximately $750 per month.

It seems to me that a monthly payment in that amount would cover her budget shortfall. To make child support payments, Ms. Ekvall would have to cut down on the direct expenses for the children herself and find economies in her budget. [ 35 ] Applying this logic retroactively, Mr. Ekvall should have been paying Ms. Ekvall $750 per month in spousal support for 2010. He paid a total of $500, for which he is entitled to credit. What would have occurred on the mid 2011 review? Ms. Ekvall's earning picture was not changing significantly. Mr. Ekvall earned $44,663 in 2011.

That represented working less than half the time he had in previous years. As at the end of June, he had worked nearly 60 percent of the hours actually worked for 2011 and had thus earned about $25,000. On an application to set support, it is likely that for spousal support purposes, his income would have been set higher than $50,000. In my view, attributing income to him of $65,000 would be a more realistic assessment of his "with children" earning capacity.

These were not children requiring pre- or after-school care. [ 36 ] Using that income range would not significantly affect ChildView calculations, and it would enable Mr. Ekvall to fulfill his spousal support obligations and permit Ms. Ekvall to meet her relatively modest budget.

[ 37 ] I therefore hold that Mr. Ekvall should have been paying, and should continue to pay, $750 per month in spousal support commencing August, 2010, continuing until further order of the Court. This is an interim award. [ 38 ] Any issues concerning Mr. Ekvall bearing a disproportionate share of matrimonial debt should be considered in the context of the matrimonial property settlement. He has had the benefit of the use of the matrimonial home and other matrimonial assets since the parties separated. [ 39 ] A further consideration is the child tax credit, which has apparently been paid to Ms.

Ekvall notwithstanding that the children have been with Mr. Ekvall most of the time. That is something that I leave to the parties to sort out between themselves, whether as an offset against spousal support obligations or otherwise. [ 40 ] Ms. Ekvall is obliged to pay child support based on her 2010 and 2011 guideline incomes taken from her filed tax returns. 2012 payments should be based on her estimated income of $135,000.00. Mr.

Ekvall's child support obligations should be based on his tax return incomes for 2010 and 2011 as there is no evidence that his drop in income was motivated by an intent to reduce child support obligations. His 2012 guideline income is provisionally set at $70,000. I accept the breakdown of residency as set out in the

schedule to Mr. Ekvall's affidavit for the purpose of calculating child support payment obligations and any arrears. [ 41 ] Mr. Ekvall is entitled to set off any ongoing spousal support payments to Ms. Ekvall against her child support obligations to him. Any spousal support arrears may be set off against child support arrears owed to him. [ 42 ] I trust that the parties will be able to make the necessary calculations. If they are unable to do so, I will retain jurisdiction to finalize the accounting between the parties, as well as to deal with a

schedule for the payment of any arrears if required. [ 43 ] I am indebted to counsel for their thorough briefs and able arguments. Heard on the 4 th day of October, 2012. Dated at the City of Edmonton, Alberta this 16 th day of November, 2012. Robert A. Graesser J.C.Q.B.A. Appearances: Slader E. Oviatt for the Applicant

Micia T. Kawulka for the Respondent