Mahamad v. Kolbowicz, 2013 ABQB 343

Court of Queen ’ s Bench of Alberta Citation: Mahamad v. Kolbowicz, 2013 ABQB 343 Date: 20130612 Docket: 4803 142598 Registry: Edmonton Between: Abdulahi Mahamad Plaintiff - and - Susan Kolbowicz Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this morning chambers application, Ms. Kolbowicz applies to retroactively lower her obligation to pay Mr. Mahamad child support in the parties ’ shared parenting regime based on Mr. Mahamad ’ s increased annual income; she claims that, as of June 30, 2012, Mr. Mahamad was to provide income information, that when the information was provided it indicated that he had earned more income than in the previous year, and that her obligation to pay him child support should be retroactive to June 30, 2012. Mr. Mahamad objects to retroactive adjustment of child support on two grounds, first that Ms.

Kolbowicz has not applied in a timely way for a variation and, second, that Ms. Kolbowicz has not paid her share of s. 7 expenses. [ 2 ] Ms. Kolbowicz also applies to retroactively share what she characterizes as s. 7 expenses proportionately based on the June

30, 2012 income information. Mr. Mahamad objects to Ms. Kolbowicz ’ s claim on the basis that a September 2011 court order determined the parties ’ contribution to s. 7 expenses. [ 3 ] Ms. Kolbowicz is entitled to a retroactive downward variation of her child support obligation. Even assuming that Mr. Mahamad is correct in asserting that he completed his financial disclosure as required in June, 2012, the delay between that date and January 2013 when Ms. Kolbowicz brought her application for variation is not, in the circumstances here which did not cause Mr.

Mahamad any prejudice, such a delay as would prevent Ms. Kolbowicz from obtaining a variation. The issue of s. 7 expenses must be dealt with separately. [ 4 ] Neither of the parents is entitled to a contribution from the other with respect to s. 7 expenses. In coming to that conclusion, the court concludes that the September 2011 order dealt with parenting, not with child support, and does not, therefore, determine the current application.

The expenses the mother claims - the cost of soccer cleats, school fees, school bus passes, school field trips including an $8.00 fee for a visit to a Japanese Cultural Association - are not s. 7 expenses, being neither “ extraordinary expenses for primary or secondary school ” under s. 7(1)(

d) of the Guidelines nor “ extraordinary expenses for extracurricular activities under s. 7(1)(

f) of the Guidelines. The expenses claimed by the father are, similarly, not s. 7 expenses. [ 5 ] A parent involved in a shared parenting regime who wishes to have the other parent directly share equally or proportionately in the everyday expenses of the children in the regime would have to apply to the court for a specially crafted order. 1.

Background [ 6 ] The parties are the divorced parents of two children; they equally share parenting of those children. [ 7 ] A Consent Corollary Relief Order, undated but filed on September 2, 2011 at a time when each of the parties was represented, includes the following terms: 1. The terms of this Order shall replace all prior orders relative to the parties ’ parenting of the children of the marriage; . . . 8.

The Plaintiff shall elect and be responsible for the registration of one sport activity for each of the children and the Defendant shall elect and be responsible for the registration of one non-sport activity for each of them, provided the children ’ s wishes shall be given consideration; . . . 13. The parties shall each bear is or her proportionate share of any uninsured cost of any medical dental (including orthodontic) and counseling cost based on teir respective Guideline Incomes; . . . 15. With respect to the children's extracurricular activities, both parties shall:

a. be supportive of the activities chosen by the other party, such that they shall not discourage the children from attending, or allow the children to not attend, or voice their disagreement to the children as to their activities or the choice of venues or clubs or tutors or teachers associated with their activities; b. encourage the children's participation therein; c. be responsible for the transportation of the children to their activities during their parenting time; and, d. in cases of overlap of activities, exercise reasonable discretion to ensure the children's activities are attended; 16.

The children shall be permitted to have a cellular phone each for their own use, to be provided for by the Plaintiff, with existing phone plans to continue until new plans may be agreed to by the parties in writing within fifteen days of this Order being granted, or determined by the court; [ 8 ] The November, 2011 divorce judgment set Ms. Kolbowicz ’ s income for the purpose of child support at $52,880.00 and Mr. Mahamad ’ s income at $35,000.00; as a result, Ms. Kolbowicz ’ s obligation was to pay Mr. Mahanad $254.00 per month in child support.

The divorce judgment also stated that “ the parties shall pay their respective proportionate shares of the eligible extra expenses incurred for children of the marriage . . . ” (emphasis added); although the language of “ eligible extra expense ” is not further defined in the divorce judgment, I take that language to refer to s. 7 expenses. The parties were to exchange income information by June 30 of every year. [ 9 ] Ms. Kolbowicz asserts that, in August 2012 - not by June 30, 2012 as required in the order - she received some of Mr.

Mahamad ’ s 2011 tax information, specifically his re-assessment, but that she did not receive all of Mr. Mahamad ’ s financial information until March, 2013. [ 10 ] In January 2013, Ms. Kolbowicz brought an application to vary child support. That application became the subject of a child support resolution meeting, which was not successful. [ 11 ] In February, 2013, on Ms. Kolbowicz ’ s application, and upon concluding that her guideline income had remained at $52,880.00 but that Mr. Mahamad ’ s guideline income had increased to $44,733.00, the court reduced Ms.

Kolbowicz ’ s ongoing child support obligation to $118.00 per month, commencing March 1, 2013. The issue of retroactive child support was to be addressed at a child support resolution meeting on February 15, 2013 and, if that was not successful, at a court hearing on March 7, 2013. The 2.5 hour child support resolution hearing of February 15, 2013 did not result in settlement of the disputed issue. The hearing before me was the hearing envisaged in the February 15, 2013 order. [ 12 ] Ms. Kolbowicz claims a proportionate contribution by Mr.

Mahamad to what she describes as s. 7 expenses consisting of school fees (field trips, including for example an $8.00 fee for a visit to the Japanese Cultural Association, bus passes, school fees), music lessons, and sports equipment. Her claim is for a total of $2,133.10. For his part, Mr. Mahamad claims that Ms. Kolbowicz should, by analogy, contribute to the $2,096.95 that he has spent on recreational level sports activities for the children and for cell phone fees. [ 13 ] I understand that the parties are currently involved in case management 2. Ms.

Kolbowicz is entitled to a retroactive variation of child support to July 1, 2012 [ 14 ] Mr. Mahamad has two objections to a retroactive downward variation of child support: first, he argues that, having provided his income information to Ms. Kolbowicz in June, 2012 as required, it is now too late for her to apply for a retroactive downward variation. Second, he argues that Ms. Kolobowicz should not be entitled to a downward variation of child support when she has not paid her proportionate share of s. 7 expenses.

[ 15 ] I note, as well, that there is a dispute between the parties with respect to the timing of Mr. Mahamad ’ s financial disclosure: Ms. Kolbowicz affirms that the required disclosure has only recently been completed, whereas Mr. Mahamad maintains that he provided full financial disclosure to Ms. Kolbowicz ’ s then lawyer in June, 2012 and that if the information had not been complete at that time, the lawyer would surely have taken steps to require him to comply. Mr. Mahamad does, however, acknowledge that his 2011 income as reported by him to Ms. Kolbowicz was $44,733.00. Mr.

Mahamad does not provide the confirmation which he says he received from Ms. Kolbowicz ’ s then lawyer that his disclosure was completed in June, 2012. [ 16 ] On this morning chambers application, it is not possible to resolve the dispute between the parties concerning the date on which Mr. Mohamad ’ s financial disclosure was completed. Therefore, taking Mr. Mahamad at his word with respect to when his financial disclosure was complete, I nevertheless note that Ms. Kolbowicz applied, as early as January 2013, for a variation of her child support obligation to reflect Mr. Mahamad ’ s improved financial situation.

In the circumstances of this case, in particular the great number of applications that have arisen between these parties, I conclude that even if there was a delay by Ms. Kolbowicz from July 1, 2012 to early January 2013 in bringing her application, that delay did not prejudice Mr. Mahamad, who knew that his receipt of child support would be based on his income; in the result, even if there was such a delay as claimed by Mr. Mahamad, that delay should not prevent Ms. Kolobowicz from receiving a variation. [ 17 ] The issue of the obligation in relation to s. 7 expenses must be considered separately. [ 18 ] In

summary on this point, from July 1, 2012 to March 1, 2013, Ms. Kolobowicz ’ s obligation to pay monthly child support to Mr. Mahamad is varied downward from $254.00 per month to $118.00 per month. 3. None of the expenses claimed by either parent are s. 7 expenses [ 19 ] Neither of the parents is entitled to a contribution from the other in relation to s. 7 expenses. [ 20 ] In coming to that conclusion, I begin by accepting that, if the September, 2011 order of this court had established an obligation to pay for certain extracurricular activities, that order would bind the parents unless and until it was varied.

Here, the father argues that the September 2011 order required each parent to pay for the extra-curricular activity for which they were responsible. With respect, I disagree; I am of the view that the September 2011 order aims at resolving parenting issues, i.e. which parent will decide on which extracurricular activities the children of the marriage will participate in, not who must pay for those activities. In coming to that conclusion, I rely first on the wording of para. 1 of the order which specifically states that the order relates to parenting, not to child support.

Second, I note that the expression “ be responsible for ” , which might conceivably include financial responsibility, is explained in para. 15 of the order: in this order, “ being responsible for ” means transportation, etc. Finally, I rely on the fact that where the September 2011 order does address financial responsibility, it says so explicitly, as in para. 13 and in para. 16 relating to cell phones. In

summary then, the father ’ s argument that each of the parties is financially responsible for the activities which they choose under the September 2011 order cannot be maintained. I note, as well, that although the September 2011 order indicated that the cost of the cell phones could be decided by a court in the absence of agreement by the parties, neither of the parents has brought a motion relating to that issue. In

summary on the issue of the effect of the September 2011 order, I conclude that that order has no effect on the support obligations of the parties. [ 21 ] In the absence of a court order which determines obligations in relation to s. 7 expenses, the court must then turn to general principles in relation to such expenses. Ms. Kolbowicz is of the view that, because the parents are engaged in a shared parenting regime, all of the child-related expenses should be shared, either equally or proportionally according to income.

In my view, this approach to expenses, while understandable, does not represent the existing state of the law. In the current system, once the base line support is paid, only s. 7 expenses are shared, proportionately. That is because the base line support is intended to deal with all “ normal ” child care expenses. Here, because of the difference in their incomes, the mother does not receive base line support from the father; rather, he receives such support from her.

That attribution of base line support is intended to level the child centered burdens on the parents. [ 22 ] In a shared parenting regime, if one parent wished to have the other contribute directly to all child-related expenses, that is to contribute in excess of the baseline support, it would be necessary for the parties, or the court in the absence of agreement between the parties, to establish the arrangement that will apply to their particular shared parenting regime.

It may well be, for example, that - despite the shared parenting regime - the children will be in the care of the same parent at the beginning of each school year, so that the same

parent is the parent who must, at the least, front-end child centered school expenses. If one of the parents wants the other to contribute to such ordinary child centered expenses, that parent would have to build such an expectation into the shared parenting regime, or have the court decide the issue.

Here, there is no court order which regulates the payment of child centered expenses as between these parents; this court must then apply the general law relating to s. 7 expenses to these parties. [ 23 ] The general law with respect to s. 7 expenses is that only the expenses which are identified in s. 7 of the Federal Child Support Guidelines as claimable expenses will be considered as s. 7 expenses.

None of the expenses claimed by either of these parents come within the categories established by the Guidelines; in the language of the divorce judgment, none of the expenses claimed by either parent is an “ eligible extra expense ” . Sports programs at a recreational level, the level in which these children participated, do not generate “ extraordinary expenses for extracurricular activities ” as required by s. 7(1)(

f) of the Guidelines; the, relatively small, expenses for registration and for equipment and the like are only ordinary expenses for extracurricular activities. If these children were involved in soccer at a club level or at what might be described as a competitive level, the expenses would be higher and would then qualify as “ extraordinary ” . Similarly, the music lessons for which the children have been enrolled are ordinary expenses, there being no indication that extraordinary lessons are being provided as might be the situation with a particularly gifted child, or one who is aiming at a career in music.

Similarly, the school expenses which are claimed by Ms. Kolbowicz are not “ extraordinary expenses for primary or secondary school education ” as required by s. 7(1) (

d) of the Guidelines; they are the normal registration and school fees that all school children pay. In

summary, none of the expenses claimed by either parent is a s. 7 expense to which the other parent must contribute. [ 24 ] I can understand Ms. Kolbowicz ’ s concern that one $8 field trip during the course of a school year may not be all that burdensome, but that the cost of several $22 field trips during the course of a school year imposes a burden on her that may not be fairly shared by the children ’ s father. In this particular case, the father claims that he has paid roughly the same amount of child centered expenses as the mother has paid during the period in question - $2,096.00 to $2,133.00.

So, it may be that in the particular situation here, there is no unfairness to either parent arising from the fact that they do not have an order which clearly sets out the expenses which each of them is required to pay. However, if the existing result is not acceptable to either parent, then that parent would have to apply for a variation to the existing orders to establish a particularized financial regime. Heard on the 7 th day of March, 2013. Dated at the City of Edmonton, Alberta this 11 th day of June, 2013. J.B. Veit J.C.Q.B.A. Appearances: Ms. Kolbowicz On her own behalf Mr. Mahamad On his own behalf