Murray v. Murray, 2012 ABQB 791

Court of Queen ’ s Bench of Alberta Citation: Murray v. Murray, 2012 ABQB 791 Date: 20121227 Docket: 4803 129096 Registry: Edmonton Between: Nancy Frances Murray Applicant (Defendant) - and - Derek James Murray Respondent (Plaintiff) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] There are two main issues in dispute, whether Ms. Murray has established an entitlement to spousal support and whether Mr. Murray must pay his proportionate share of what Ms. Murray claims as s. 7 expenses. [ 2 ] Ms. Murray, who has a Class 1 driver ’ s licence, maintains that she has not been employed since 2010 because she decided that her children needed her. In support of this contention, Ms.

Murray has filed an opinion prepared recently, rather than in 2010, by a counselling psychologist who states, in part, “ I do believe current opinion trends in our government and society concur, that being a fully committed and involved parent is certainly a full time job; not just in the sense of 8-5 but more like 24/7".

[3] Ms. Murray, who is unemployed, claims approximately $500.00 per month on a go forward basis, and $10,000.00 inarrears, as s. 7 expenses. These expenses include chiropractic expenses for two of the four children. Mr.

Murray, because of familialhistory, who does not wish to be involved with decisions involving the children, states that he should not be required to pay arrears of s. 7expenses because, on the one hand, he was not consulted about the cost of extracurricular expenses and, on the other, because he hasbeen responsible for all of the children’s counseling costs and was also responsible for all of the children’s s. 7 expenses while theparties’ children were living with him as the primary residential parent. [4] Because of the contradictory nature of the evidence advanced in this chambers application relating to her ability to beemployed, Ms.

Murray’s claim of entitlement to spousal support is not made out; she is, however, entitled to have this issue tried. Inconnection with any such trial she must comply with the requirements of the Rules of Court and Form 37. [5] Mr. Murray will pay his proportionate share of the cost of one school trip and Blue Cross coverage as retroactive s. 7expenses. All other claims for retroactive s. 7 expenses brought by the mother for s. 7 expenses are not properly described as“extraordinary” extracurricular expenses.

Rather, those claims for hockey and soccer and football registration are normal extracurricularexpenses, which are expected to be paid from the slightly more than $2,000.00 child support payment the father makes each month. [6] As to ongoing s. 7 expenses, Mr. Murray will pay a maximum of $200.00 per month in addition to his other child supportobligations for expenses which are properly characterized as s. 7 expenses. To that end, Ms. Murray will provide receipts to Mr.

Murrayfor the amounts claimed as such expenses and, if the parties are not agreed that the claimed expenses can be justified under theguidelines, then Ms. Murray will bring an application for payment of those expenses. [7] As to ongoing base child support, when new income information requires recalculation of support, that recalculation isusually made on a go forward basis rather than retroactively. The situation here does not take it out of the ordinary recalculationtreatment.

Recalculation on a go forward basis does not harm the support creditor; retroactive recalculation could create an unfairness forthe support debtor. Cases and authority cited [8] By Mr. Murray: Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420; P.J.G. v. Z.I.G., 2010 ABQB 711;King v. King, 2011 ABQB 234; Shields v. Shields, 2008 ABCA 213. 1.

Summary [9] This family has had a highly charged emotional history. The parties were divorced in June 2008; the divorce judgmentreferred to, and endorsed, an order of the court in May, 2008 which granted primary residential care of the parties’ four children to thefather with supervised access to the mother. The court did not order the mother to pay child support because “she is currentlyunemployed”. In March 2010, the court ordered shared parenting of the children; child support was not addressed in that order.

In April2010, all of the children returned to live with their mother; the court order addressed the father’s child support and noted that retroactivechild support and s. 7 expenses were contested. In December 2010, this court set the father’s ongoing child support obligation,established child support arrears - which the order stated could be reduced if the father could establish that he had overpaid the mother in2008 - and ordered the father to pay $100.00 per month towards the arrears in addition to his baseline support.

The order also set section7 arrears at $1,000.00 and ordered the father to pay $100.00 per month towards the s. 7 arrears; the order did not establish any specifiedpayment in relation to ongoing s. 7 expenses. The December 2010 order noted that the mother’s income was $18,470.00 and the father’sincome was $85,670.00. In August 2011, in a consent order, this court gave sole custody of the children to the mother but did notaddress any support issues. [10] The court orders identified above represent only some of the orders made by this court in relation to this family.

I note thatthe court also made orders on at least the following dates: September 18, 2003, 18 December 5, 2007, December 18, 2008, September 9,2009, May 5, 2010, October 21, 2010, and March 15, 2011. It does not appear that the parties have ever had a trial in this court of any ofthe contentious issues that have arisen between them

[ 11 ] On this application, the father has agreed to remove the current court ordered provisions requiring the mother to restrict her travel with the children outside Canada and to provide the father with an itinerary and contact information during any such travel. [ 12 ] The father also agrees that his support obligations should be specified payable on two specific dates each month; he proposes that those be the dates on which he is paid.

In the absence of any uniformly applicable dates, this court orders that, starting on January 1, 2013, one half of the father ’ s total child support obligation, i.e. baseline support plus instalment payment of support arrears plus instalment payment of s. 7 arrears plus ongoing s. 7 expenses, will be paid on the first day of each month and that the other half of the obligation will be paid on the 15 th day of every month.

The parties can, of course, change those two dates as may be mutually agreeable. [ 13 ] The mother ’ s claim for approximately $10,000.00 in retroactive s. 7 expenses from January 1, 2011 to August 7, 2012, includes one school trip for one of the children for which a cost of approximately $1,500.00 is claimed and Blue Cross health care coverage for all children for that period for a total cost of approximately $1,000.00.

The other claims are for soccer, football and hockey registration and equipment, some after school club programs, and a little bit of chiropractic care. [ 14 ] In 2005, the mother was involved in a motor vehicle accident. She received a settlement from her claim arising out of that accident; it is not clear on this application whether any portion of that settlement was paid in relation to past or future loss of income. Conceivably, the income replacement portion of a settlement might be viewed as income in a child support context. 2. On this application, Ms.

Murray has not established an entitlement to spousal support; her claim for such support will have to be tried under Form 37 proceedings [ 15 ] Ms. Murray claims entitlement to spousal support on a compensatory basis in relation to her employment between 1998 and 2000 as a class 1 truck driver while her husband attended NAIT. During that period, she earned between $30,000.00 and $40,000.00 according to her tax returns.

She also has a Nail Technician Certificate and a Rehab Practitioner Diploma. [ 16 ] She also claims entitlement based on her decision to stay at home to care for her children from July 2010 until the fall of 2012. (The children were born in 1995, i.e. now 17; 1997, i.e. now nearly 16; 2001, i.e. now 11 and 2002, i.e. now 10.) In relation to this latter basis for her claim, she provides a letter, dated October 31, 2012, from a person who describes herself as M.Sc., Counselling Psychology, (but without indication that she is a registered psychologist); that letter reads in part: . . . [ in January, 2011]. it was my recommendation that Nancy Murray remain an at home, full time parent.

The following points will support my recommendation 1. It was imperative that Nancy Murray be available at any given moment during the day and/or night to deal with any immediate crisis situation involving her children. . . Also, besides dealing with crisis situations, the children needed extra attention and mothering . . . . 3. It is this therapist ’ s opinion, and I do believe current opinion trends in our government ad society concur, that being a fully committed and involved parent is certainly a full time job; not just in the sense of 8-5, but more like 24/7.

With the daunting circumstances of Nancy Murray and her children, this would be multiplied manifold. This statement from the therapist seems somewhat at odds with Ms. Murray ’ s own statement in one of her affidavits that she decided to quit employment in 2010 in order to make herself more available to her children. Indeed, one of the court orders notes that Ms. Murray earned more than $18,000.00 in for the relatively small part of 2010 during which she was employed. Also, the therapist ’ s statement in para. 3 of her opinion letter may not accord with current cultural norms; Mr.

Murray must be given the opportunity of challenging the therapist ’ s opinion as to whether Ms. Murray could have, or should have, maintained employment from 2010 to date. [ 17 ] Mr. Murray ’ s position is that Ms. Murray is well able to support herself at the same level she was able to support herself prior to the marriage, that the marriage has not been an economic hindrance to Ms. Murray and that he should not be required to pay his former wife anything by way of retroactive or future spousal support. [ 18 ] It is impossible to determine from the affidavit evidence alone whether Ms.

Murray is entitled to spousal support and, if so, in

what amount and for which periods. Ms. Murray will therefore have to have this issue tried. In relation to that claim, Ms. Murray will have to comply with the requirements of the Rules of Court and Form 37. [ 19 ] I observe, as well, that a trial of the various contentious issues between these parties is probably long overdue. Even though the parties were divorced in 2008 and have been in court on a great many occasions since then, they have never had any of the issues in dispute tried.

A trial will not only give the court to make a more satisfactory determination of the credibility of each of the parties, but it will also be a useful reminder to the parties of the cost - both financial and emotional - of ongoing legal proceedings.

Section 7 expenses [ 20 ] The definition of

section 7 expenses in the Federal Child Support Guidelines includes the notion of “ extraordinary ” extracurricular activities. In other words, the guidelines anticipate that the contribution of one parent to normal extracurricular activities is included within the monthly child support obligation. Here, Mr. Murray pays approximately $2,000.00 in monthly child support; part of that payment should cover normal extracurricular activities. The Murray children are involved in normal extracurricular activities, soccer, football, hockey, an after-school activity with the Boys and Girls Club, etc.

No additional claim can be made in relation to those activities. [ 21 ] Part of Ms. Murray ’ s retroactive s. 7 claim is for two expenses which are permissible: one relates to a school trip to Quebec and the other relates to Blue Cross health care expenditures. Mr. Murray will pay his proportionate share of those claims. The actual amount of his proportionate share will, however, be deferred until a court makes a trial determination on the issue of Ms. Murray ’ s spousal support claim. In that context, Mr.

Murray ’ s claim that his former wife should have, during 2011 and that part of 2012 for which s. 7 expenses are claimed, been employed and that deemed income should be attributed to her may perhaps be treated as a counter- claim. [ 22 ] On a go-forward basis, Mr. Murray ’ s proposal that, beginning January 1, 2013, he pay a maximum of $200.00 per month over and above his regular, and arrears, payment of child support and any arrears payment of s. 7 expenses which may still be outstanding is adopted. On a go-forward basis Ms. Murray will provide receipts to Mr.

Murray for the amounts claimed as such expenses and, if the parties are not agreed that the claimed expenses can be justified under the guidelines, then Ms. Murray will bring an application for payment of those expenses. 4. Ongoing base child support [ 23 ] If I have understood Ms. Murray ’ s position, she asks the court to declare that, having now received income information from Mr. Murray she wishes to readjust his support payment for 2012 and declare some arrears which she would like to have paid in a lump sum. [ 24 ] With respect, this is not the approach which is mandated under our child support regime.

When new income information is made available, a recalculation of support is made on an onward, not a retroactive, basis. As will be obvious, this system does not impose any hardship on the support creditor since, in the last pay period, e.g. when the one child of the marriage turns 18 and is not in full time attendance at an educational institution, the support debtor will pay according to the last income recalculation even though the income debtor may, at that stage, actually be retired from employment.

The roll forward character of child support therefore does not harm the support creditor and prevents potential unfairness to the support creditor in labelling child support obligations as “ arrears ” , and therefore subject to unique enforcement mechanisms, when the support creditor is not, in fact, in default of any court order. [ 25 ] In the result, if Mr. Murray ’ s base child support obligation should be recalculated because he earns more money now that he did in the previous year, his new level of base support should be set to commence on January 1, 2013. 5. Costs

[ 26 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 24 th day of October, 2012. Dated at the City of Edmonton, Alberta this 21 st day of December, 2012. J.B. Veit J.C.Q.B.A. Appearances: Keith Shustov, Barr Picard for Mr. Murray Kenneth J. Alyluia, Gledhill Larocque for the Ms. Murray