Schimpf v. Schimpf, 2013 ABQB 204

Court of Queen ’ s Bench of Alberta Citation: Schimpf v. Schimpf, 2013 ABQB 204 Date: 20130405 Docket: 4803 155690 Registry: Edmonton Between: Jacqueline Mae Schimpf Plaintiff - and - Bradley John Schimpf Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] In December 2012, Acton J. ordered that this matter be directed to trial: . . . for determination on the issues of: a. Shared Parenting; b. Income of the Defendant; and c. Ongoing and Retroactive Child Support.

The trial so ordered came before me on February 11 and 12, 2013. Shared Parenting [ 2 ] Mr. Schimpf seeks shared parenting of the parties ’ two younger daughters who are age 9 and 11. Ms. Schimpf opposes on the basis that Mr. Schimpf abuses alcohol and that the children are not secure in his care. [ 3 ] The parties were married on April 27, 1991. They separated in the summer of 2008. A divorce judgment was granted in this action on September 10, 2012. [ 4 ] The parties have four daughters who are 9, 11, 17, and 18 years of age. At present they all reside with Ms.

Schimpf. [ 5 ] A few weeks after the parties initially separated, they established a regime whereby their daughters resided in the family home all the time and the parents would live in the home alternating weeks. This arrangement lasted for about a year. In the summer of 2009 Ms. Schimpf and the eldest daughter began living in a rented house in Edmonton. The younger three daughters lived alternating weeks with their father in the original family home and with their mother in her rented home.

A few months after this arrangement began, the second oldest daughter ceased to move back and forth and stayed full time in Ms. Schimpf ’ s residence. The two younger daughters alternated back and forth weekly. This arrangement continued until the fall of 2010. [ 6 ] In mid October 2010, there was an incident after which all four daughters began residing with their mother. The arrangement for alternating residency of the two younger daughters ended. There is a dispute between the parties as to what occurred in the incident. Ms. Schimpf testified that Mr.

Schimpf picked the youngest daughter up from Beavers and drove her to Ms. Schimpf ’ s residence when he was “ so drunk he couldn ’ t speak ” . She testified that the child was upset. Mr. Schimpf acknowledged that he had consumed three or four glasses of wine after 4:00 p.m. that day but denied that he was impaired. He testified that the child was upset because she had lost a toy, though he could not recall the details. In any event, following this incident, all four children began to reside full time with Ms.

Schimpf and have continued to do so ever since. [ 7 ] The first court order relating to the parenting of the children was a consent order granted on June 27, 2011. It gave Mr. Schimpf about three weeks summer access to the children. The order expressly provided for abstinence by Mr. Schimpf during access periods.

It said: During all access periods the Defendant shall absolutely abstain from consuming alcohol in any form. [ 8 ] In February 2012, Hillier J. granted an interim order relating to the two younger children. [The order does not appear to have recognized the two older children as children of the marriage, though they were both under 18 at the time it was granted.] The order granted Mr. Schimpf overnight access alternating Wednesday nights, and Friday to Sunday evening access alternating weekends. The order provided that Mr.

Schimpf was to pick the children up at their school at the commencement of each access period and assigned to the children ’ s teachers the role of ensuring his sobriety. The order said: . . . the Defendant shall pick the children up from school . . . by attending at the school and retrieving the child from their classroom(

s) at which time the Defendant shall speak to the children ’ s teacher(

s) so that the teacher(

s) can satisfy himself/herself as to the Defendant ’ s sobriety. [ 9 ] The order also required the Defendant to drop the children off at Ms. Schimpf ’ s residence at the conclusion of weekend access and to speak to Ms. Schimpf “ . . . as may be necessary so that the Plaintiff can satisfy herself as to the Defendant ’ s sobriety ” . [ 10 ] The order also required:

The Defendant is to absolutely refrain from consuming any alcohol for the period commencing 24 hours prior to and throughout all of his access to the children of the marriage. [ 11 ] The parties operated pursuant to the terms of this order from late February 2012 until mid August 2012. [ 12 ] On July 20, 2012 by consent order, the corollary relief issues were severed and Ms. Schimpf was granted leave to apply for a divorce judgment on an uncontested basis. [ 13 ] In August 2012 while the two younger girls were staying with Mr.

Schimpf during a period of summer access, another incident involving the use of alcohol by Mr. Schimpf occurred. As a result of this incident Ms. Schimpf (or one of the elder sisters) ended Mr. Schimpf ’ s summer access a day or so early and Ms. Schimpf unilaterally ended Mr. Schimpf ’ s ongoing access. He has had little access since. [ 14 ] Ms. Schimpf was away on vacation at the time of the incident. Mr. Schimpf testified that on a day when the two younger girls were staying with him but engaged in activities with friends, he went out for lunch with a friend and drank three beers with his lunch.

He went home and in the early evening made dinner for his daughters. At about 7:00 or 7:30, his eldest daughter arrived to take the younger daughters away. She said this was because he had been drinking. He acknowledged in his testimony that the court order requiring him to absolutely refrain from the consumption of alcohol during a period of access to his children was in force at the time and that he violated it. [ 15 ] Ms. Schimpf testified that Mr. Schimpf used and abused alcohol throughout the marriage. She identified several incidents, in addition to the two incidents mentioned above, in which Mr.

Schimpf was in contact with the children when it was obvious to any observer that he had been drinking to excess. Mr. Schimpf denied that he had been excessively drinking on these occasions. She testified that in her view, because of his alcohol abuse, the children are not safe when in his care. She further testified that the children are reluctant to visit their father because of his alcohol abuse. [ 16 ] Mr. Schimpf denies being an alcoholic. He denies having a drinking problem.

He testified that though he has a doctor who he sees regularly, neither his doctor nor any other doctor has told him that he is an alcoholic or that he needs help. He testified that he drinks only socially – maybe two or three times a month depending on the social situations in which he finds himself from time to time. When he testified on February 12, he said the last time he had consumed alcohol was in the first week of January. [ 17 ] He acknowledged that when the parties separated in the summer of 2008 he attended an AADAC alcohol abuse counselling program. He went because Ms.

Schimpf had told him that because of his drinking the marriage was over. In his testimony he acknowledged that he was drinking too much at the time – a couple of drinks almost every evening. So he enrolled in the counselling program in an effort, at least initially, to save his marriage. He testified that he went to AADAC for over three years taking a number of courses including a relapse prevention course. He also saw a counsellor weekly. From August 2008 to August 2010 he abstained from drinking.

He resumed using alcohol “ when I discovered that my issues were about relationship and divorce and it was made clear to me that in order for me to be successful I needed to make choices and not have other people make choices for me ” . [ 18 ] No documentation relating to Mr. Schimpf ’ s involvement with AADAC was offered in evidence. Neither was any medical evidence offered. His testimony that no doctor has told him he is an alcoholic is an inadequate substitute for positive evidence from a qualified physician that he has assessed Mr.

Schimpf and concluded that he does not have alcohol abuse issues. [ 19 ] In June 2011 Mr. Schimpf consented to an order that required him to abstain from the use of alcohol when exercising access. In February 2012 Hillier J. imposed an onerous regime in order to provide reasonable assurance that Mr. Schimpf had not consumed alcohol before or during an access visit. Mr. Schimpf acknowledges that in August 2012 he violated the abstinence requirement. These circumstances, in my view, create a practical onus on Mr.

Schimpf to establish, by convincing and independent evidence, that he does not abuse alcohol and that there is no need to be concerned for the safety of the children while they are in his care. The evidence he has offered is his own opinion that he does not abuse alcohol and does not have a problem. In my view that is insufficient in the circumstances. [ 20 ] I decline to order shared parenting. The status quo shall continue. The parties shall have joint custody of the children of the marriage with primary residence of the children to be with Ms. Schimpf.

[ 21 ] Adjustments are required to the access regime. As mentioned, Mr. Schimpf has had only minimal access since August 2012. The parties did not focus much attention on this aspect of the matter at trial. There appear to me to be two main matters which require attention. [ 22 ] First, the evidence indicated that the two younger daughters have become estranged to some extent from their father. There was considerable indication in her behaviour in the courtroom during the trial that at least a significant contributing factor to that estrangement may be that Ms.

Schimpf ’ s actions and attitude have alienated the children against Mr. Schimpf. Mr. Schimpf believes he has a reasonable relationship with his older daughters. In my view an attempt should be made through counselling to repair the relationship between Mr. Schimpf and his younger daughters. [ 23 ] Second, in my view, imposing the role of sobriety assessor on the children ’ s teachers, in the manner set out in the interim order of February 9, 2012, is not viable in the long term. Yet some form of sobriety assessment for each access visit appears to be necessary given Mr.

Schimpf ’ s knowing disobedience of the existing order and the absence of evidence that he does not abuse alcohol. [ 24 ] To address these matters I make the following directions: 1. The parties shall retain a psychologist to provide counselling at least to Mr. Schimpf and his two younger daughters with a view to restoring the relationship between Mr. Schimpf and his two younger daughters. 2. Ms. Schimpf shall cooperate with facilitation of the counselling and, if the psychologist considers it advisable, shall participate in the counselling. 3. Mr. Schimpf, by his counsel, shall advise counsel for Ms.

Schimpf within 20 days of the release of these Reasons of the name of the psychologist he proposes the parties retain. 4. If Ms. Schimpf does not agree with Mr. Schimpf ’ s proposal as to the psychologist, her counsel shall advise Mr. Schimpf ’ s counsel of the names of three psychologists who would be acceptable to her. 5. Within five days of the receipt of advice pursuant to #4 above, Mr. Schimpf shall advise Ms. Schimpf ’ s counsel of the name of the psychologist from the list provided pursuant to #4 and shall make arrangements for counselling with that psychologist. 6. Mr.

Schimpf ’ s right to access to the two younger daughters pursuant to the order of Hillier J. granted February 9, 2012 and entered December 5, 2012 shall be suspended until at least the first counselling session involving Mr. Schimpf and his two younger daughters has occurred or the court otherwise orders. 7. Subsequent to the first counselling session referred to above, Mr. Schimpf shall have supervised access to his two younger daughters on Saturdays from noon to 5:00 p.m. starting on a Saturday designated by the psychologist.

The supervisor shall be a person agreeable to both parties and, if both parties and one or other of the older daughters agree, may be one of the older daughters. If the parties are unable to agree as to a supervisor, Mr. Schimpf shall apply on two days notice to me for further directions. 8. Mr. Schimpf shall be at liberty to apply for an order granting him unsupervised access at any time after at least three sessions of supervised access have occurred. In such application Mr.

Schimpf shall provide the court with a report from the psychologist confirming that the counselling has taken place and stating the psychologist ’ s opinion as to whether and, if so, what access Mr. Schimpf should have to his two younger daughters. In such application Mr.

Schimpf shall also provide either independent medical evidence as to whether or not his use of alcohol creates any concern with regard to his having unsupervised access, or a method of independently assessing his sobriety at the commencement, during and at the end of an access period. [ 25 ] I direct that the cost of the counselling I have ordered be paid by Mr. Schimpf. In light of that direction it is appropriate, in

[ 25 ] I direct that the cost of the counselling I have ordered be paid by Mr. Schimpf. In light of that direction it is appropriate, in my view, to direct that enforcement in respect of a portion of Mr. Schimpf ’ s child support obligation be stayed. I address that point further below, in the context of child support. Mr. Schimpf ’ s Income [ 26 ] The second issue directed to be tried was as to Mr. Schimpf ’ s income. [ 27 ] Child support was addressed in the interim without prejudice consent order granted on June 27, 2011. Mr. Schimpf ’ s annual income was stated to be $42,218.00 in that order.

He was ordered to pay $1108.00 monthly child support. That order was acknowledged by the parties in the Divorce Judgment granted September 10, 2012. No change to Mr. Schimpf ’ s child support obligation was suggested at that time. [ 28 ] Mr. Schimpf is a journeyman electrician. Until recently he had worked consistently in that trade since 1987. From about 2002 until September 2010 he worked for an electrical contracting firm. In the last year or year and a half of that time he was a project manager. [ 29 ] Mr.

Schimpf testified to the effect that when he took on caring for his daughters on alternating weeks, he was not able to devote as much time to his work as he had devoted previously. His employer became dissatisfied with his level of commitment. He was let go in 2010. Mr. Schimpf attributed the change in his level of commitment to the increase in his child care responsibilities in the year after the parties separated. He did not acknowledge any connection to his alcohol use. Since September 2010 Mr.

Schimpf has not had regular employment. [ 30 ] The evidence includes Canada Revenue Agency Notices of Assessment for Mr. Schimpf for three years. It also includes the T4 slips issued by his employers in those years. The information they provide is as follows: T4 Employment Income Total Income (Line 150) 2008 79,057.20 130,681.00 2009 81,252.61 98,726.00 2010 48,218.31 48,774.00 [ 31 ] Mr. Schimpf testified that his 2008 and 2009 total income included significant dividends from Ms. Schimpf ’ s company which were shown as Mr. Schimpf ’ s income for tax purposes but which were never actually paid to him.

His 2007 Tax Return

Summary is in evidence. It shows $40,625.00 in dividend income as well as $64,260.93 employment income. The 2008 Tax Return

Summary shows $40,625.00 dividend income. No Tax Return

Summary for 2009, 2010 or 2011 is in evidence. He also testified that the 2009 income included some funds taken out of RRSP savings. I accept that his income for child support purposes for 2008 should not include the dividend income. [ 32 ] In cross-examination Mr. Schimpf was asked about his general unemployment since the fall of 2010. He acknowledged that during that time he has lived off his savings. He testified that he had “ personal stuff ” to get over and that he “ needed to reinvent ” himself. He was going to AADAC regularly during this time, though as noted, this was, according to his evidence, preventative and not responsive treatment.

[33] Mr. Schimpf testified that at the time of trial he was working on a small contract renovating a condominium. He was beingpaid $25.00 an hour on a 40-hour week. That equates to an annual income of about $50,000.00. [34] The issue relating to Mr. Schimpf’s income is whether income greater than the amount he acknowledges he earns at presentshould be imputed to Mr. Schimpf. Ms. Schimpf submits that he is under-employed and is not doing much to acquire work which wouldremunerate him at the level he was earning during the marriage. She submits that his income of $75,000.00 per year should be imputedto him. [35]

Section 19 of the Federal Child Support Guidelines contemplates the imputation of income in nine situations. Eight of themclearly do not arise in this case. The ninth (s. 19(1)(a)) is: the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by theneeds of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse. [36] The Alberta Court of Appeal held in Hunt v. Smolis-Hunt, 2001 ABCA 229 , [2001] 11 W.W.R. 233 that: A court should only impute income under s. 19(1)(

a) of the Guidelines when it has evidence of the obligor’s intention to avoid orundermine child support obligations. [37] There is no such evidence before me. The evidence does establish that Mr. Schimpf has been employed in the last few yearsat a level significantly below the level of his employment prior to that. That would support the conclusion that he is under-employed. However the evidence does not establish that he has become under-employed in order to avoid or undermine child support obligations. [38] I decline to impute income to Mr. Schimpf.

I find that his income for child support purposes is currently $50,000.00. Mr.Schimpf’s child support obligation from January 1, 2013 should be determined on that income. His s. 3 child support before January 1,2013 is pursuant to the order of June 27, 2011. The evidence adduced did not justify any adjustment of Mr. Schimpf’s income for childsupport purposes for any time preceding January 1, 2013. Ongoing and Retroactive Child Support

Section 3 Child Support [39] The third issue directed to be tried was “ongoing and retroactive child support”. [40] Mr. Schimpf’s ongoing and retroactive s. 3 child support obligation will be determined using the following annual incomeamounts: 2008 79,057.00 2009 81,253.00 2010 48,218.00 2011 48,218.00

2012 48,218.00 2013 50,000.00 [ 41 ] The income for 2012 and 2013 will be subject to adjustment when Mr. Schimpf ’ s income tax information for those years is provided, as the order will require.

Section 7 Child Support [ 42 ] There are two issues in relation to s. 7 child support:

a) What is Ms. Schimpf ’ s income for child support purposes?

b) Are the expenses claimed by Ms. Schimpf as s. 7 expenses properly so characterized? Ms. Schimpf ’ s Income [ 43 ] Ms. Schimpf is a communication consultant. She has worked in that field for 22 years. For several years she has operated through a corporation of which she is the sole director and shareholder. [ 44 ] The issue in relation to her income is whether the line 150 total income assessed to her by Revenue Canada fairly reflects all the money available to her for payment of child support.

The Guidelines in s. 18(1) provide: Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse ’ s annual income as determined under

section 16 [line 150] does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in

section 17 and determine the spouse ’ s annual income to include (

a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (

b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation ’ s pre-tax income. [ 45 ] The evidence before me indicates the following regarding Ms. Schimpf ’ s income and that of her corporation: 2008 Income from Employment Line 101 42,422.08 Taxable amount of dividends Line 120 40,625.00 Total Income Line 150 84,333.79 Adjusted Total Income (see next paragraph) 76,209.00

Corporation Pre-Tax Income Not in evidence Corporation Dividends Paid Not in evidence Corporation Retained Earnings 5,773.00 2009 Income from Employment Line 101 42,000.00 Taxable amount of dividends Line 120 0.00 Net Business Income Line 135 10,000.00 Total Income Line 150 52,300.00 Adjusted Total Income 52,300.00 Corporation Pre-Tax Income 46,521.00 Corporation Dividends Paid 0.00 Corporation Retained Earnings 43,580.00 2010 Income from Employment Line 101 46,000.00 Taxable amount of dividends Line 120 85,000.00 Total Income Line 150 131,000.00 Adjusted Total Income 114,000.00 Corporation Pre-Tax Income 65,570.00 Corporation Dividends Paid 68,000.00 Corporation Retained Earnings 32,857.00 2011 Income from Employment Line 101 48,842.08 Taxable amount of dividends Line 120 62,500.00 Total Income Line 150 120,681.02 Adjusted Total Income 108,181.00 Corporation Pre-Tax Income 84,916.00 Corporation Dividends Paid 50,000.00 Corporation Retained Earnings 55,682.00 [ 46 ] In three of the four years for which information is in evidence, part of Ms.

Schimpf ’ s income was dividend income. Pursuant to s. 5 of

Schedule III of the Guidelines it is necessary to replace the taxable amount of those dividends which was included in her line 150 income with the actual amount. The taxable amount of dividends is 125% of the actual amount. The adjusted total income for each year is shown above.

[ 47 ] In my view, in determining whether the line 150 total income fairly reflects all the money available to Ms. Schimpf for the payment of child support, it is useful to compare the line 150 income to the total of Ms. Schimpf ’ s income from employment and her corporation ’ s pre-tax income: Year (

A) Adjusted Line 150 Total Income (

B) Income from Employment (

C) Corporation Pre-Tax Income (

D) Total B + C Difference D - A 2008 76,209.00 42,422.08 Not available Not available Not available 2009 52,300.00 42,000.00 46,521.00 88,521.00 36,221.00 2010 114,000.00 46,000.00 65,570.00 111,570.00 -2,430.00 2011 108,181.00 48,842.08 84,916.00 133,758.08 25,577.08 3 yrs total 274,481.00 136,842.08 197,007.00 333,849.08 59,368.08 [ 48 ] In 2010 Ms. Schimpf ’ s line 150 income exceeded the total of her employment income and her corporation ’ s pre-tax income by nearly $2,500.00.

In the other two years for which the evidence supplies the required information, corporation pre-tax income exceeded line 150 income by about $61,800.00. Over the three years, corporation pre-tax income exceeded line 150 income by $59,368.00. In my view Ms. Schimpf ’ s line 150 income does not fairly reflect all the money available to her for the payment of child support in those three years. In my view her income for child support purposes for each of 2009, 2010 and 2011 should be increased by $20,000.00, a part of the pre-tax income of her corporation in each of those years.

As evidence is not available with respect to 2008, there is no basis upon which to deviate from her adjusted line 150 income for that year. [ 49 ] I find Ms. Schimpf ’ s income for child support purposes to be as follows: 2008 76,209.00 2009 72,300.00 2010 134,000.00 2011 128,181.00 2012 128,181.00 2013 128,181.00 [ 50 ] The income for 2012 and 2013 will be subject to adjustment when Ms. Schimpf ’ s income tax information and corporate

financial statements for those years are provided, as the order will require. [ 51 ] In reaching the determination of Ms. Schimpf ’ s income I have rejected a submission made by Mr. Schimpf in this context. He submitted that some of the expenses charged by Ms. Schimpf ’ s corporation against its gross income appeared unreasonable. He submitted, based mainly on the amount of some expenses, that they were incurred for Ms. Schimpf ’ s personal benefit and were not legitimate business expenses. In my view the evidence does not provide a basis for a finding to that effect.

It goes no further than justifying speculation. Are the Expenses Claimed by Ms. Schimpf as s. 7 Expenses Properly so Characterized? [ 52 ] At trial Ms. Schimpf provided a list of expenses she claimed as s. 7 expenses incurred from 2008 to 2013 inclusive. They totalled $43,214.08. [ 53 ] Counsel have advised that of these expenses, there is no dispute that expenses totalling $34,422.22 are appropriately characterized as extraordinary expenses within s. 7. They are also agreed that $6,936.41 are not properly characterized as extraordinary expenses within s. 7.

They do not agree with respect to 12 individual expenditures totalling $1855.45. In my view, of the 12 expenses only two are established to be s. 7 expenses - the cost of two immunizations in 2010 - $84.00 total. [ 54 ] I find the s. 7 expenses for which the appropriate pro-rata contribution by Mr. Schimpf is payable to be as follows: 2008 357.40 2009 17,239.70 2010 5,484.79 2011 1,575.99 2012 4,909.34 2013 4,939.00 Stay of Enforcement [ 55 ] I indicated above that I would address the cost implications of my order regarding counselling in the context of child support.

I expect that the determinations made above will result in Mr. Schimpf being liable for past child support. He will also have ongoing child support obligations. [ 56 ] I order that enforcement of all child support obligation resulting from the determinations made in this decision in respect of any period preceding April 1, 2013 be stayed for one year if Mr. Schimpf takes all reasonable steps to have the counselling ordered above commence before July 1, 2013. If the ordered counselling has not commenced by July 1, 2013 the stay of enforcement so ordered shall be cancelled unless Mr.

Schimpf establishes that he has done everything reasonably within his power to cause it to commence. For this purpose counselling shall be deemed to have commenced when Mr. Schimpf has had one meeting with the psychologist retained to provide the counselling. The stay of enforcement shall not apply to any child support obligation for a period after April 1, 2013.

[ 57 ] After the expiry of the stay ordered in the preceding paragraph, there shall be a further stay of enforcement of all child support liability of Mr. Schimpf for any period preceding April 1, 2013 so long as Mr. Schimpf pays at least $300.00 a month in respect of the pre-April 1, 2013 child support liability in addition to his ongoing monthly child support obligation. Future s. 7 Expenses [ 58 ] Counsel for Mr. Schimpf, in written submissions filed March 15, 2013, suggested specific limitations that should apply to future s. 7 expenses. The point was not addressed by Ms. Schimpf ’ s counsel.

I will make no determination in that regard. The parties are at liberty to include a provision in the formal order dealing with this point if they can agree to one. Otherwise the formal order will be silent on the point. Costs [ 59 ] There has been mixed success. Each party will bear their own costs. Heard on the 11 th and 12 th days of February 2013. Dated at the City of Edmonton, Alberta this 5 th day of April 2013. Brian R. Burrows J.C.Q.B.A. Appearances: Douglas N. Skovberg for the Plaintiff Navdeep S. Virk for the Defendant