Calver v Calver, 2013 ABQB 469

Court of Queen ’ s Bench of Alberta Citation: Calver v Calver, 2013 ABQB 469 Date: 20130816 Docket: 4803 130476 Registry: Edmonton Between: Neil David Calver Applicant - and - Tara Johanna Calver Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ [ 1 ] The Applicant husband is making an application to vary child support payable to the Respondent wife. The Respondent wife has cross-applied for retroactive child support from January 1, 2006, and retroactive s.7 expenses.

These parties were married in October, 1994 and separated in December, 2003. They were divorced in October, 2006, and the parties have three children presently ages 20, 18, and 15. The father lives in Kamloops, British Columbia and works in Fort McMurray, Alberta as a pipefitter. The mother resides in Edmonton, Alberta and works as a teacher’s aide. [ 2 ] In February, 2004 the parties entered into an interim consent order whereby the mother was given custody and primary residential care of all three children, and the father was required to pay the mother $500 per week in child support.

The father was required to provide yearly financial disclosure, which he did not comply with. His yearly income has increased steadily since 2006.

[3] Although the oldest child is no longer a child of the marriage as she is over the age of majority, and ceased being a student ata postsecondary education as of May, 2012, the mother claims retroactive s.7 expenses for her. Additionally the youngest child relocatedto Kamloops in June, 2011 to live with the father, and in November, 2011 the parties entered into a consent order granting the fatherprimary residential care of the youngest child.

The father recently filed an application to vary child support due to that change incircumstance. [4] Accordingly the two issues before me are the amount of child support payable by the father to the mother on a go-forwardbasis; and whether the mother is entitled to retroactive child support/s.7 expenses, and if so, from what date and for which children. Analysis [5] At the time of the 2004 order, the mother had the primary residential care for all three children.

The father now argues thatsince the oldest child no longer qualifies as a child of the marriage and since he has the primary residential care of the youngest child,child support should be decided on the basis of each party having the primary residential care of one child of the marriage. [6] The father argues that as a pipefitter in Fort McMurray, his income varies greatly from year to year due to the availability ofovertime. He averages his income out over the last three years at $188,049, and says that his 2013 income can be extrapolated to beapproximately $182,000.

Combining these methods the father submits that the Court should impute an income for him in the sum of$185,000 for purposes of calculating child support. [7] I conclude that there will be a variation of ongoing child support for the two remaining children of the marriage on the basisof the split custody arrangement commencing July 1, 2013, being retroactive to June 1, 2012, based on the parties’ incomes for 2012. [8] The father’s 2012 T4 indicates that his income for tax purposes is just under $215,000.

However in addition to his T4income, the father also receives $195.00 for each day that he works in Fort McMurray as an allowance, pursuant to the union agreementwith his employer. The father works one week on and one week off in Fort McMurray, and depending on the number of days he workshis annual allowance while working in Fort McMurray will be between $36,000 and $48,000 a year. [9] The father submits that since this allowance is tax-free, and meant to reimburse him for added expenses while working inFort McMurray, he should not have to account for this allowance for child support purposes in any manner.

Both counsel agree that thereis no direct authority dealing with this issue, but the mother submits that the father is obligated to show how this living allowance isactually spent on his living expenses in Fort McMurray. [10] There appears to be no evidence before the Court about the fact that it is actually costing the father between $3,000 and$4,000 a month to live in Fort McMurray. The father does say that he spends approximately $2,000 flying in and out of Fort McMurrayto his home in Kamloops, and another $1,000 a month to rent a room in Fort McMurray.

In this regard I note that it is approximately atwelve-hour drive between Kamloops and Fort McMurray (approximately double the drive from Edmonton to Fort McMurray made bythousands each day which takes approximately 6 hours), with estimated fuel charges being $200 for each round trip. [11] Accordingly I conclude that while flying may cost the father approximately $2,000 a month, clearly driving would besignificantly less expensive.

In this case it is not clear what the father actually spends having to live and work in Fort McMurrayapproximately two weeks out of every month. [12] There is one Alberta case, McCaffrey v Della Longa, 2008 ABQB 183 that dealt with a member of the LegislativeAssembly’s expense allowance in the context of determining annual guideline income. In that case the applicant wife argued that certainallowances paid to the respondent husband while he was serving as an MLA should be included in his income.

The allowances receivedamounted to approximately $18,000 a year, and apparently were for travel expenses and subsistence allowances. [13] My colleague McIntyre, J. did not include these allowances in the husband’s income for the following reasons at paras 182and 183: 182 In some circumstances an argument might be made that a living or expense allowance, while not "income" may constitute "means"of a spouse for support: Jordan v. Jordan (2005), 260 Sask. R. 188, 2005 SKQB 129 at para. 15.

However, a review of Exhibit 16 makesit clear the monies received by the Respondent as an expense allowance were clearly meant to either reimburse him for costs incurredwhile performing his duties as an MLA or assist in defraying such costs. It would be unjust to classify such payments as funds availablefor child support. I agree with Vertes J. in O'Brien v. O'Brien, (NWT SC), [1999] N.W.T.J. No. 56, 1999CarswellNWT 47 (N.W.T.S.C.) that allowances for actual expenses incurred should not be included in income.

In particular, I adopt hisholding at para. 6: With respect, I do not think it is appropriate to include a living allowance in the calculation of income. [ ... ] The living allowance paid tothe respondent is reimbursement for expenses incurred by the respondent when he is attending sessions of the legislature (since he doesnot live where the legislature sits). How many days the legislature would be in session varies from year to year. It is thereforespeculative.

The allowance is non-accountable but it is essentially reimbursement for expenses incurred to earn an income. 183 The wording of Exhibit 16 is similar to that seen in O'Brien. The expense allowance the Applicant wishes to include is described as"an allowance not subject to tax, to pay for expenses incidental to the discharge of an MLA's duties." A review of the Respondent'sexpense allowances and reimbursements shows that they are reasonable.

Based on the above, I will not add the Respondent's expensesinto his income o to otherwise rule that they are available as means to support his children. [14] I conclude that there are some material differences between the MLA expense allowance, and the present tax-free allowancethat the father is receiving in this case. The father in the present case lives in Kamloops with his new family but essentially spends half ayear living and working in Fort McMurray.

In other words he has arguably two residences, unlike the MLA situation where the MLAincurs expenses for travel and expenses while he/she is away from their one residence. The second difference that I find in the presentcase is that the husband’s allowance does not “ necessarily reimburse him for costs incurred” or assist him in “defraying such costs” as

there is no evidence before me that the payor in this case actually expends between $3,000 to $4,000 each month in additional living expenses for being in Fort McMurray. [ 15 ] Obviously $3,000 to $4,000 tax-free is a significant expense or living allowance, over and above a $200,000 plus annual salary. [ 16 ] Accordingly I conclude that although it is not income, it is appropriate to add half of the annual difference between the T4 income and the actual pay statements represented by the tax-free allowance received by the father to his income as being available as means to support his children.

Therefore based on the estimate of $3,000 to $4,000 a month that counsel has provided me for this allowance, I add $1,500 a month ($18,000 a year) to the father’s 2012 T4 income of $215,000 for purposes of ongoing child support, for a total of $233,000 on a go forward basis. [ 17 ] The ongoing child support for the two remaining children of the marriage will be calculated on the basis of the split custody arrangement commencing July 1, 2012, and is retroactive to June 1, 2012 based on the parties’ income for 2012.

I conclude that the mother’s income for 2012 is $45,000, and that the father’s income for 2012 is $233,000. Ongoing

Section 7 Expenses [ 18 ] The mother seeks an order that the father pay his proportionate

section 7 expenses for the middle child’s postsecondary schooling expenses. The middle child graduated from high school in June, 2013, and will be attending a two-year Fine Arts program at a university in Edmonton full-time. The fees for this program are $8,710 for year one, and $8,642 for year two. This order is granted. Retroactive Child Support [ 19 ] The mother seeks retroactive child support back to January 1, 2006. At the time of the February, 2004 order the father’s annual guideline income was set at $85,000.

His actual guideline incomes since 2006, and the child support arrears being claimed herein are described below in the following tables: Year Income Child support per month Child support per year 2006 $104,919.00 $2,004.00 / month $24,048.00 2007 $147,227.00 $2,684.00 / month $32,208.00 2008 $180,455.00 $3,209.00 / month $38,508.00 2009 $145,657.00 $2,660.00 / month $31,920.00 2010 $189,138.00 $3,346.00 / month $40,152.00 2011 $160,178.00 $2,889.00 / month for January 2011 to July 2011 for split custody (all 3 children) $1,934.00 / month net for August 2011 to December 2011 (2 children/1 child split custody) $20,223.00 $9,670.00 2012 – based on pay statement $255,812.72 $3,084.00 / month net for January 2012 to May 2012 (2 children/1 child split custody) $1,752.00 / month net for June 2012 to December 2012 (1 child/1 child split custody) $15,420.00 $12,271.00

2012 – based on his T4 $214,646.71 $2,566.00 / month net for January 2012 to May 2012 (2 children/1 child split custody) $1,488.00 / month net for June 2012 to December 2012 (1 child/1 child split custody) $12,830.00 $10,416.00 Total (1) all years including using income from 2012 paystatement (2) all years including using income from 2012 T4 $224,420.00 $219,975.00 Child Support Paid by the Applicant Father to date for January 1, 2006 up to and including December 1, 2012: Year Child support payable Total per year 2006 $500.00 / week x 52 weeks $26,000.00 2007 $500.00 / week x 52 weeks $26,000.00 2008 $500.00 / week x 52 weeks $26,000.00 2009 $500.00 / week x 52 weeks $26,000.00 2010 $500.00 / week x 52 weeks $26,000.00 2011 $500.00 / week x 52 weeks $26,000.00 2012 $500.00 / week x 52 weeks $26,000.00 Total $182,000.00 Retroactive s.7 Expenses [ 20 ] The arrears being claimed by the mother retroactively amount to approximately $40,000 with respect to basic child support.

Additionally, the mother is claiming for retroactive

section 7 expenses for the oldest child, who has not been a child of the marriage since May, 2012. [ 21 ] The mother deposes in her materials that the oldest child took upgrading at NAIT for the 2011/2012 school year, and her fees, tuition and books were just over $5,000. The mother deposes that she paid the program deposit, application fee and first semester fees; and then her mother paid an additional $1,150 at $1,214 to help out with the first and second semesters.

Accordingly the mother deposes that she paid a total of $3,590.34 towards the oldest child’s school, and she requests that the father be required to pay his proportionate share of that amount. [ 22 ] Furthermore the mother deposes that the oldest daughter was accepted into the Civil Engineering Technologist Program at NAIT, but could not attend because she could not afford it, and the father refused to support her schooling.

The father’s mother however helped out with this child’s schooling expenses whenever more money was required. [ 23 ] The mother argues that the oldest child was deprived of her opportunity to go to school and has subsequently chosen to be a volunteer instead after her recent marriage to support her husband’s schooling expenses and efforts. Accordingly, she submits that a

retroactive payment from the father to the mother at this time would benefit the oldest child in the future if she decides to return toschool.

The mother has been, it appears from her affidavit evidence, very supportive of her children’s efforts to obtain an education.Therefore rather than being a wind fall as submitted by the father, she sees this situation as money being repaid rightfully to those peoplewho it should have benefitted in the first place. [24] This issue of retroactive support for children who have ceased to be children of the marriage is addressed in paragraphs 86 to90 of DBS v SRG, 2006 SCC 37 , 2006 2 SCR 231 which reads as follows: 86 A first circumstance is where an application is brought which concerns a child who is no longer eligible for support under therelevant scheme.

While the federal and provincial regimes differ in how they classify children -- the Divorce Act refers to a "child of themarriage" while the Parentage and Maintenance Act refers to children under 18 years of age -- a problem will always arise where aretroactive award is being sought for a person for whom the court does not have jurisdiction to order child support. 87 The Parentage and Maintenance Act is clear in this regard, giving courts the power to order support only for children under the ageof 18 or, for certain expenses, within the two years after they were incurred: see s. 16(3).

This does not necessarily imply that those overthe age of 18 will be ineligible for support. In T. (P.) v. B. (R.), the Alberta Court of Appeal confirmed that such support may be availableunder the (now-repealed) Maintenance Order Act, R.S.A. 1980, c. M-1. Without commenting on the correctness of this decision -- whichwas not the subject of argument in the present appeals -- I will merely state that a person for whom support is being requested isobviously able to apply under any applicable statutory regime that provides for such an award.

It then becomes a matter of statutoryinterpretation to determine whether retroactive support is contemplated by that statutory regime, keeping in mind that the provinces arenever bound to mirror the statutory regime enacted by Parliament. But where support (including retroactive support) is only requestedpursuant to the Parentage and Maintenance Act, a court will not have the jurisdiction to order support if the child in question was over18 at the time the application was made, or if certain expenses occurred more than two years in the past. 88 The situation under the Divorce Act is more complex.

Under s. 15.1(1), an order may be made that requires a parent to pay "for thesupport of any or all children of the marriage". The term "child of the marriage" is defined in s. 2(1) as a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from theircharge or to obtain the necessaries of life; The question then arises when the "material time" is for retroactive child support awards. If the "material time" is the time of theapplication, a retroactive child support award will only be available so long as the child in question is a "child of the marriage" when theapplication is made.

On the other hand, if the "material time" is the time to which the support order would correspond, a court would beable to make a retroactive award so long as the child in question was a "child of the marriage" when increased support should have beendue. (Emphasis) 89 In their analysis of the Guidelines, J. D. Payne and M. A. Payne conclude that the "material time" is the time of the application:Child Support Guidelines in Canada (2004), at p. 44. I would agree.

While the determination of whether persons stand "in the place of ...parent[s]" is to be examined with regard to a past time, i.e., the time when the family functioned as a unit, this is because a textual andpurposive analysis of the Divorce Act leads to this conclusion; but the same cannot be said about the "material time" for child supportapplications: see Chartier v. Chartier, (SCC), [1999] 1 S.C.R. 242, at paras. 33-37. An adult, i.e., one who is over theage of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made.

This istrue, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children ofthe marriage, not adults who used to have that status. 90 Under both the Parentage and Maintenance Act and the Divorce Act, therefore, it will not always be possible for a court to enforcean unfulfilled child support obligation by the payor parent because of the limited enforcement jurisdiction of courts as conferred bystatute. Conclusion [25] I conclude that retroactive

Section 7 expenses is still payable to the oldest child of the marriage pursuant to paragraph 88 ofDBS. Although child support is for children of the marriage, not adults who were formerly children of the marriage, DBS allow for thisat the end of para. 88 if at the “material time” the child was still a “child of the marriage” when the increased child support should havebeen due. The other

interpretation advanced by the father herein would allow the payor parent to potentially or actually improperly evaderetroactive support payments simply by delaying the process until the child ceases to be a child of the marriage, a scenario that DBSlogically would not allow.

Accordingly, retroactive s.7 expenses paid by the mother for the oldest child’s education of $3,590.34 will bepaid by the father in his proportionate share. [26] It is conceded and it is obvious that the husband has not been compliant with the 2004 order, since his income from 2006onward clearly establishes that he has made significantly more than $85,000 a year. The father submits however that the mother wasnonetheless aware of the father’s change in income for quite some time, and that there has been delay on her

part in bringing theapplication for retroactive child support.

Given this delay on her part, the father submits that the mother should be limited to retroactivechild support for the three-year period prior to the date of formal notice in accordance with DBS. [27] DBS v SRG deals with this issue at paras 118 to 125, particularly at paragraph 124 which read as follows: 118 Having established that a retroactive award is due, a court will have four choices for the date to [page283] which the award shouldbe retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the datewhen effective notice was given to the payor parent; and the date when the amount of child support should have increased.

For the

reasons that follow, I would adopt the date of effective notice as a general rule. 119 Separation is a difficult time for families. But especially when the interests of children are at stake, it is vital that parents resolvematters arising out of separation promptly. The Guidelines and similar provincial schemes facilitate this task by providing a measure ofconsistency and predictability in child support matters. Still, as I have noted above, these child support regimes do not go so far as toprovide for automatically enforceable support orders.

Whether dealing with an original order, or circumstances that may merit avariation, the responsibility always lies with parents to negotiate the issue honestly and openly, with the best interests of their children inmind. 120 Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount ofsupport have failed. Yet, this does not mean that formal recourse to the judicial system should have been sought earlier.

To the contrary,litigation can be costly and hostile, with the ultimate result being that fewer resources -- both financial and emotional -- are available tohelp the children when they need them most. If parents are to be encouraged to resolve child support matters efficiently, courts mustensure that parents are not penalized for treating judicial recourse as a last resort. Accordingly, the first two start dates for retroactiveawards -- i.e., the date of application to court and the date of formal notice -- ought not be used.

So long as the enforcement of childsupport obligations is triggered by formal legal measures, a perverse incentive is created for recipient parents to avoid the informalresolution of their disputes: MacNeal v. MacNeal (1993), (ON SC), 50 R.F.L. (3d) 235 (Ont. Ct. (Gen. Div.));Steinhuebl v. Steinhuebl, (ON CA), [1970] 2 O.R. 683 (C.A.). A recipient parent should not have to sacrifice his/herclaim for support (or increased support) during the [page284] months when (s)he engages in informal negotiation: Chrintz; see Dickie v.Dickie (2001), (ON SC), 20 R.F.L. (5th) 343 (Ont.

S.C.J.). 121 Choosing the date of effective notice as a default option avoids this pitfall. By "effective notice", I am referring to any indication bythe recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic bebroached.

Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certaintybecomes less compelling. 122 Accordingly, by awarding child support from the date of effective notice, a fair balance between certainty and flexibility ismaintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent's interest in certainty, whileawarding retroactive support from the date it could have been claimed originally erodes this interest too much.

Knowing support isrelated to income, the payor parent will generally be reasonable in thinking that his/her child's entitlements are being met where (s)he hashonestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support. 123 Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions shouldmove forward. If they do not, legal action should be contemplated.

While the date of effective notice will usually signal an effort on thepart of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that thepayor parent's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually beinappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent'srequest for historical [page285] income information to a three-year period: see s. 25(1)(

a) of the Guidelines. In general, I believe thesame rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to adate more than three years before formal notice was given to the payor parent. 124 The date when increased support should have been paid, however, will sometimes be a more appropriate date from which theretroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct.

Once thepayor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was beingmet. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholdsinformation. Not disclosing a material change in circumstances -- including an increase in income that one would expect to alter theamount of child support payable -- is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptivedate of retroactivity back to the time when circumstances changed materially.

A payor parent cannot use his/her informational advantageto justify his/her deficient child support payments. Underlining Mine. 125 The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protectedonly up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to thepoint when the recipient parent broaches the subject, up to three years in the past.

However, in order to avoid having the presumptivedate of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the materialchange in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, Isee no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially.

A payor parentshould not be permitted to profit from his/her wrongdoing. [28] Additionally the father submits that any retroactive award must be offset against overpayments made by the father as a resultof the change in circumstances, and that retroactive support should only be ordered with respect to the middle child. The oldest child hasnot been a child of the marriage since May, 2012, and is not entitled to retroactive support; and the youngest child went to live with thefather as of November, 2011. [29] The father was obviously aware that his annual income exceeded $85,000 by 2006.

The mother actually deposes in heraffidavit that she remembered the father earned around $100,000 per year for the two years prior to their separation when they wereliving in Edmonton. After the separation the father moved to British Columbia and claimed that he could not work resulting in a decreasein his income for 2004-2005.

The mother deposes that her Legal Aid coverage ran out due to the amount of time it took for thenegotiations after the separation, and not only did the father refuse to provide and disclose his annual income information to the motherthereafter, he would not even provide his 2010 or 2011 Notices of Assessment to facilitate the oldest child’s efforts to apply for a studentloan.

The mother deposes that father never provided his Notices of Assessment until recently pursuant to the present application. [30] The mother states in her affidavit evidence that she suspected that the father’s income increased since 2004, but when she

asked the father verbally on multiple occasions to share his tax returns, he would not tell her anything about his income and made it appear to her that she did not have the right to see or get his financial income, notwithstanding that the 2004 court order directs him to provide that information to her. Significantly, since the father had moved to British Columbia, and because the mother did not have the financial means to hire a lawyer, the mother was not able to deal with this matter until late 2012.

It is a notorious fact that the reciprocal enforcement of court orders when parties reside in different provinces is exceedingly slow and can be expensive. [ 31 ] While the father complains that the mother did not make her retroactive child support on a timely basis, it appears that he also with his significantly greater financial resources failed to bring an application with respect to the change in circumstances that occurred when the youngest child moved in with him in June of 2011.

This was likely because the circumstances of his career’s increased income would have had to have been disclosed at the time. [ 32 ] Accordingly applying paragraph 124 of DBS , I conclude that the mother is entitled to retroactive child support from January 1, 2006 in the present circumstances. The youngest child’s retroactive child support will only be to the point of when she goes to live with the father which is June, 2011. For the youngest child, anything after 2011 will be dealt with on the new regime based on the split custody arrangement as previously ordered.

The oldest child’s retroactive child support ceases May, 2012 when she no longer was a child of the marriage. The father may pay the oldest child directly as he requested in order to avoid the possibility of the mother dissipating the funds for her personal use. Heard on the 5 th day of July, 2013. Dated at the City of Edmonton, Alberta this 15 th day of August, 2013. Donald Lee J.C.Q.B.A. Appearances: Trevor A. Kelly Snyder & Associates LLP for the Applicant Souriya Kousonsavath Souriya Kousonsavath Professional Corporation for the Respondent