Leeson v. Chow, 2012 ABQB 755

Court of Queen ’ s Bench of Alberta Citation: Leeson v. Chow, 2012 ABQB 755 Date: 20121210 Docket: 4803 161463 Registry: Edmonton Between: David Bruce Leeson Plaintiff - and - Foon Chu Chow Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These Parties began living together in October 2005 and were married in November 2005. They began living separate and apart within the same residence in April 2012.

The wife physically moved out of the former matrimonial home on October 1, 2012, pursuant to the Interim Corollary Relief Order granted on September 4, 2012 in this Court. There are two children of the marriage - a daughter 21 years of age and a 6 ½ year old son. The husband adopted the 21 year old child, and he is the 6 ½ year old child ’ s biological father. [ 2 ] One of the he issues presently before me is whether the Parties shall have joint shared custody of the child which is requested by the husband or whether the primary residence of the child should remain with the wife.

[ 3 ] The wife proposes that the husband have parenting time from noon each and every Saturday until noon Sunday, and additionally from 3:00 p.m. each and every Wednesday to 9:00 a.m. Thursday.

The mother submits that as the child is born to a Canadian-Chinese family, it is in the best interests of the child that he have a reasonable opportunity to learn his second language by attending a local Chinese school on Saturday between the hours of 10:00 a.m. and noon. [ 4 ] The wife also submits that the husband should not get shared custody of the child given that he does not have the necessary skill, knowledge, experience, and cannot give his undivided care and attention to a young boy. She submits that the child will not be physically and emotionally taken good care of.

Joint Shared Custody - Conclusion [ 5 ] The wife ’ s main argument against the husband having joint shared custody appears to center around the child ’ s attendance of a local Chinese school on Saturday mornings, and the fact that the child apparently suffered from some allergy attacks. There is also some allegation of physical abuse, but that does not appear to have been pursued at the Special Chambers hearing of this matter.

As for the attendance at Chinese school, the husband is supportive enough that he will take the child to classes. [ 6 ] It is true that the wife has been a traditional stay at home mother throughout the 6 ½ year relationship that these parties were in, and the child is allergic to a number of food items. The mother alleges that the father chose to allow the child to eat or contact these allergic items, but there is no real evidence before me to suggest that this was the case.

It appears moreover that this child had these serious food allergies they were only laterally discovered, and the husband is no more at fault for this than the wife would be. [ 7 ] The wife also argues that the father is incapable of taking care of a 6 ½ year old child in a shared custody arrangement, but there is no evidence before me of this either. It is quite clear that both parties are good parents to their young son. The husband has essentially retired now that he is 65 years of age, and it appears that he is certainly ready, willing and able to meet the child ’ s needs on a shared custody basis.

I conclude that he will have joint shared custody of the 6 ½ year old child, and that this will begin as of the child returning to school after the Christmas break in January 2013. The Husband ’ s Annual Guideline Income [ 8 ] The husband is the sole director and shareholder of a limited company that is presently being wound down. He worked part-time as a school bus driver. He ’ s 2011 guideline income according to his is $59,714.00.

I agree with his counsel that his 2012 Gross Annual Income will also be less in 2011 because the company is being wound down, although I am uncertain at this point as to how much less it will be.

The husband runs his bus driver income through his company, and he essentially stopped working July 31, 2012. [ 9 ] The wife takes the position that since the company has over $800,000 in actual retained earnings, and it is in his sole shareholder discretion to determine the dividend income payable to him, that the husband ’ s annual income for the purpose of determining child support should be imputed at atleast $80,000.

This would certainly be consistent with the husband ’ s income prior to 2011 which is actually closer to $100,000, but is not consistent with the situation since he began winding down his company and beginning his retirement/semi-retirement in 2011. [ 10 ] It is important to note that this winding down and semi-retirement/retirement pre-dated the actual separation of the parties by more than a year, so it is unrelated to any deliberate intention to reduce or eliminate his child support obligations, which is alleged by the wife.

Also telling in this regard is the manner in which the husband has paid pursuant to the Interim Corollary Relief Order issued in this Court on September 14, 2012. The terms of that Order in terms of payment required the husband pay the wife $700 on account of child support beginning September 1, 2012; $2000 per month in spousal support commencing September 1, 2012; and required the husband to obtain a satisfactory lease providing accommodation for the wife and the child, and to pay for all of the utility expenses.

I am advised that in fact the husband paid pursuant to that September 2012 Order not only the spousal and child support, but also the rent and utilities for the apartment of $1395.00, something that he was not in my opinion obliged to do pursuant to the Order.

[ 11 ] I conclude that although the husband has actually over $800,000.00 of investments still retained in his corporation, he is entitled to dividend those amounts out to support his retirement. I conclude the husband ’ s annual guideline income is $60,000 for 2011 and 2012. This is appropriate given that his 2012 gross annual income should be less than 2011, and given that he has no actual employment income after July 2012. The husband ’ s annual guideline income can be reviewed again after he completes his 2012 personal income tax return, and the July 2012 corporate returns are completed.

The Wife ’ s Annual Guideline Income [ 12 ] The wife has not been employed since the youngest child was born in April 2006, she says at the request of the husband. As such she was a full-time mother and caregiver throughout their relationship. The Parties first met each other in 2003, at which time the wife was working full-time at a food court in West Edmonton Mall until she was pregnant with the Parties ’ child in June 2005. [ 13 ] The husband takes the view that the wife in intentionally under employed or unemployed and should be imputed income of approximately $26,000 per year.

The wife is 45 years old and has no medical conditions that would limit her employability. The wife is of the view that she should not have to work until the child has completed grade 6, approximately 5 ½ years from now.

The wife did report interest in investment income of approximately $5,000.00 on her 2011 income tax return, so she obviously has some investments that she could use to contribute to her own support. [ 14 ] The husband seeking to impute employment income at $10 per hour working 40 hours per week for a total of $20,800.00, plus her interest income for a guideline income of $25,619.00. [ 15 ] I conclude that although the wife did not work during the marriage, she should be employable in the retail or restaurant field where she previously worked, and there is no reason not to do so at this time.

I impute her income for guideline purposes at $20,000 per year. Child Support, and Whether Child Support Remains Payable for the Oldest Child [ 16 ] The Interim Order issued in September 2012 requires the husband to pay child support for two children in the sum of $700 per month.

With shared custody, and the husbands income of $60,000 per year and the wife ’ s income of $20,000 per year, the guidelines would require child supports payments of approximately $600 during the oldest child ’ s academic months from September through April, and less for the one child during the oldest child ’ s non-academic months of May through August. [ 17 ] There is an issue with respect to the oldest child ’ s education expenses.

The husband adopted the oldest child after the marriage, and she is currently attending a post secondary technical institute, after having completed three years of a four year Bachelor of Science degree at the University of Alberta. When the oldest child made the choice in September 2012 to drop out of university and go to NAIT she did not discuss this with the husband or even inform him of this until after the fall. The husband takes the position that the oldest child is no longer a child of the marriage because she is not diligently pursuing education that would lead to any identifiable gainful employment.

The child earned employment of $7,000 in 2011, and the husband argues that she can contribute to her own support and education expenses. [ 18 ] The wife submits that the child was responding to the job market and her future employability which were greatly enhanced by her decision to leave university and go to NAIT.

She argues that the child should no be cut off from support because of this. [ 19 ] The oldest child ’ s tuition fees are just under $5,000, and I conclude that given the daughter ’ s decision to drop out of the four year BSc program after having completed three years, she should be responsible for her half of tuition fees and books at NAIT through her part-time earnings of $7,000.00. However child support remains fully payable for this child during the academic months of September through the end of April.

Spousal Support [ 20 ] The wife submits that she is entitled to spousal support because as a result of the breakdown of the marriage she is suffering

economic disadvantage through her loss of her opportunity to share the income stream of her husband, and has no likelihood of becoming self sufficient within the next five years. It is her position that the husband pay her spousal support of approximately $1500.00 per month for this five year period, plus he pay the rent and utilities for her apartment of $1395.00 each month. [ 21 ] I conclude the rough equalization of resulting cashflow of the Parties requires the husband to make Interim Spousal Support payments of $1000.00 per month commencing December 1, 2012.

This quantum of spousal support can be reviewed again after the husband files his 2012 personal income tax return, and provides his July 31, 2012 corporate tax return. [ 22 ] The wife also seeks to move back into the former matrimonial home that she vacated October 1, 2012, and to have the husband make all payments except her property taxes and utilities which she would be responsible for. This is an impractical solution given that the wife has already moved out of the former matrimonial home, and she is in no position as conceded by her counsel to purchase the former matrimonial home from the husband.

The husband has already been paying her monthly rent pursuant to the September 2012 Interim Corollary Relief Order. I understand that this lease expires after a six month term, and so I direct that the husband will continue to make the rent and utility monthly payments of $1395.00 until the expiry of the lease at the end of March 2013, in addition to his other payments as herein ordered.

After April 1, 2013, he will not have to make any further payments on the apartment, but given that he is been making these payments already voluntarily, I conclude that it would be unfair to stop them in the middle of the wife ’ s current lease. Costs [ 23 ] As both parties have had some success in this Special Family Law Chambers hearing, no costs are awarded. Heard on the 6 th day of December, 2012. Dated at the City of Edmonton, Alberta this 10 th day of December, 2012. Donald Lee J.C.Q.B.A. Appearances: Diana J. Gosselin Diana J.

Gosselin Professional Corporation for the Plaintiff Henry Yung Biamonte Cairo & Shortreed LLP for the Defendant