Ross v Ross, 2013 ABQB 490

Court of Queen ’ s Bench of Alberta Citation: Ross v Ross, 2013 ABQB 490 Date: 20130828 Docket: 4803 079684 Registry: Edmonton Between: Barbara Jean Mary Ross Applicant - and - Patrick Melvin Ross Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Thomas W. Wakeling _________________________________________ ______________ I. Introduction [ 1 ] This is an application under

Part 12 of the Alberta Rules of Court , Alta. Reg. 124/2010 for an order suspending or rescinding child support arrears of $37,262.62 under an order made by this Court on December 12, 1995 (“December 12, 1995 order”), almost eighteen years ago. Barbara Jean Mary Ross alleges that her sons resided with her during periods to which the child support arrears relate. This allegation supports her argument that the amount of her arrears should be reduced. There is also another aspect to her application. She maintains that she does not make enough money to pay the arrears. II. Questions Presented

[2] Is Ms. Ross, in essence, asking for an order under s. 15.1(1) of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) declaring thatPatrick Melvin Ross should have paid child support to her when each of her sons was a “child of the marriage” under s. 2(1) of theDivorce Act? Can she make this request after her adult children ceased to be children of the marriage? [3] If this Court has the jurisdiction to rescind or suspend Ms. Ross’ child support arrears on account of her impecuniosity, doesMs. Ross meet the test in Haisman v.

Haisman, 1994 ABCA 249 , 157 A.R. 47, 51 (C.A. 1994) for evaluating the merits of arescission or suspension application? III. Brief Answers [4] Ms. Ross is, in effect, seeking an order under s. 15.1(1) of the Divorce Act when she alleges that her sons were under her careduring periods arrears accumulated. She is asking for an order declaring that Mr. Ross should have paid child support to her when eachof the boys was a “child of the marriage”. This application is out of time.

A parent cannot bring an application of this kind after a childceases to be a “child of the marriage”. [5] While this Court has no jurisdiction to hear Ms. Ross’ claim that Mr. Ross should have paid her child support, it does havejurisdiction to rescind or suspend the child support arrears if Ms. Ross establishes on a balance of probabilities that in the past she couldnot earn a sufficient income or in the future will be unable to earn a sufficient income to allow her to pay child support. Ms. Ross’application fails to meet the Haisman v. Haisman standard. IV.

Applicable Statutory Provisions [6] Sections 2(1), 15.1(1) and 17(1), (4) and (6.1) of the Divorce Act are set out below: 2(1) In this Act, “applicable guidelines” means (

a) where both spouses or former spouses are ordinarily resident in the same province at the time an application for achild support order or a variation order in respect of a child support order is made ... and that province has been designated by an ordermade under subsection (5), the laws of the province specified in the order, and (

b) in any other case, the Federal Child Support Guidelines; … 15.1(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse topay for the support of any or all children of the marriage. 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses; ...

(4) Before the court makes the variation order in respect of a child support order, the court shall satisfy itself that a change ofcircumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variationorder made in respect of that order. ...

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. [7]

Section 14 of the Federal Child Support Guidelines, SOR /97-175 reads as follows: For the purposes of subsection 17(4) of the Act, any of the following constitutes a change of circumstances that gives rise to the makingof a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change incircumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.5 of the Act enacted by

section 2 of

chapter 1 ofthe Statutes of Canada, (1977). V. Statement of Facts

A. Family Law Application [8] On August 14, 2012 Ms. Ross filed an application seeking an order for the suspension or rescission of child support arrearsof $37, 262.62 and her supporting affidavit sworn August 3, 2012. B. Applicant’s Version of the Facts [9] Ms. Ross married Mr. Ross on March 29, 1985. They had two children. Patrick Joseph Lloyd was born on [...], 1985 andKeith Michael Ross arrived on A[...], 1987. [10] The Rosses were divorced on April 26, 1993. [11] The December 12, 1995 order directed Ms. Ross to pay $225 in child support for each child to Mr.

Ross, with whom the boyswere living at the time. [12] Patrick, the first born, almost immediately after the December 12, 1995 order was made, moved in with his mother. He stayedin her care from January 1996 to April 2005, when he became twenty years old. [13] Keith, the second son, lived with his mother from 2003 to 2005. He left her care when he turned eighteen. [14] Patrick is now twenty-eight. Keith is twenty-six. [15] The mother’s total income for 2003, 2004 and 2005 was $7,063, $5,206 and $1,454 respectively. Her total income for 2011was $1,700. C.

Respondent’s Version of the Facts [16] The respondent filed two affidavits in opposition to his former wife’s application – his own sworn December 7, 2012 and thatof Lenora Watson, his common law partner, sworn February 28, 2013. [17] Mr. Ross contests Ms. Ross’s claim that their sons resided with her for extended periods of time: 3. Following the granting of the Divorce Judgment (August 26th, 1993), our eldest child, Patrick ... resided with me. With the exception of about 3 ½ months during the summer of 1998, Patrick continued to reside with me until April 11th, 2000, a few days before his 16th birthday.

He then resided with Barbara until December 25th , 2000 when he moved back in with me. Patrick continued to reside with meuntil June 30, 2001 when he returned again to live with Barbara. Patrick ... continued to reside with Barbara until September 1, 2003,after which he returned to live with me for the 2003/2004 school year until he graduated from Paul Kane High School in June, 2004.After graduating from high school, Patrick was no longer a minor, was no longer attending school and was self-supporting.

I calculatethat, since the granting of the Divorce Judgment, Patrick resided with Barbara for a total of 38 months. 4. Our youngest child, Keith .... also resided with me at the time of the Divorce Judgment. He was suspended from school in March 2005, approximately one month prior to his 18th birthday. ... Keith did not return to school after his suspension. He obtained employmentat Pro Western Plastics, Joey’s Only and Bubbles car wash in St. Albert. [18] Mr. Ross also swore that the Maintenance Enforcement Program has credited Ms.

Ross for all periods Patrick and Keithresided with her and not charged her for any periods after the boys became adults. [19] Ms. Watson’s affidavit largely confirms Mr. Ross’ account of when and where the two boys resided. [20] Mr. Ross stated that the December 12, 1995 order relieved Ms. Ross of her obligation to pay $24,149.96 in child supportarrears due under the orders governing the divorce. He consented to this relief in return for Ms. Ross’s promise to “faithfully pay theongoing child support of $225 per month per child”. Ms. Ross has not kept this promise.

She made some payments from 1994 to 1998and none from 1999 to 2009. In 2010 and 2012 the Maintenance Enforcement Program collected $2,704.05 and $619.27 from Ms. Ross. VI. Analysis A. This Court Has No Jurisdiction To Hear Part of This Application [21] A former spouse may not make an application for child support based on applicable historical income levels of the payorparent under

section 15.1(1) of the Divorce Act after the child ceases to be a “child of the marriage”, as defined in s. 2(1) of the DivorceAct. The Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231, 272 adopted a bright line time test: In their analysis of the Guidelines, J.D. Payne and M.A. Payne conclude that the “material time” is the time of the application [for a childsupport order]. ... I would agree ... An adult, i.e. one who is over the age of majority and is not a dependent, is not the type of person forwhom Parliament envisioned child support orders being made.

This is true, whether or not adults should have received greater amountsof child support earlier in his/her life. Child support is for the children of the marriage, not adults who used to have that status. 2006 SCC 37 , [2006] 2 S.C.R. 231, 272. See also Millar v. Millar, 2007 SKQB 25, ¶ 7 (“a court does not have jurisdiction todeal with child support once the person is no longer a child within the meaning of the Divorce Act”).

[22] But is Ms. Ross making an application for child support? Her application does not state that she is. Her application seeksunder s. 17(1) of the Divorce Act an order suspending or rescinding her obligation to pay child support arrears. [23] She is. [24] Ms. Ross, by asking the Court to suspend or rescind her obligation to pay child support arrears based on her allegation thatshe, not Mr. Ross was the custodial parent, is, in effect, asking the Court to declare that Mr.

Ross should have been making child supportpayments to her for periods of time when each of the two boys was still a minor and a “child of the marriage”. That is certainly the casewith respect to her claim for rescission. If the Court makes the requested order, it will have the effect of reducing the amount of arrearsfor which Ms. Ross is responsible under the December 12, 1995 order. I am satisfied that this is also the case with respect to thesuspension element of her application.

If a suspension order was granted and not subsequently lifted, the effect will be exactly the same as if the December 12th, 1995 order was rescinded. [25] It follows that this Court has no jurisdiction to issue an order under s. 15.1(1) of the Divorce Act pursuant to her claim that shehad custody of the boys while she ran up arrears. This determination does not preclude the Court from hearing the part of Ms. Ross’application not based on an allegation that her sons resided with her for periods of time after December 20, 1995. Ms.

Ross is invokingother grounds in support of this relief which do not bring into question the basis for calculating the amount due. B. Ms.

Ross Has Established That There Is a Change of Circumstances as Required by Section 17(4) of the Divorce Act [26] Section 17(4) of the Divorce Act stipulates that [b]efore the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change in circumstancesas provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made inrespect of that order. [27] The Court of Appeal in Haisman v.

Haisman, 1994 ABCA 249 , 157 A.R. 47, 51 (1994) held that “the subsections ofs. 17 which refer to a variation order apply as well to a rescission order [because] recission is, after all, a kind of variation”. Whilerescission is a form of variance, the Parliament of Canada, when it passed s. 17 of the Divorce Act, distinguished between variation,recission and suspension and expressly declared that it was only in cases of variation did the applicant have to establish a change ofcircumstances.

With respect, I am of the opinion that an applicant for a rescission or suspension order does not have to comply with s.17(4) of the Divorce Act. I agree with Justice Scalia and Professor Garner that “a matter not covered is not covered”. Reading Law: TheInterpretation of Legal Texts 93 (2012). Professor Sullivan makes the point this way: “when a drafter lists some but not all members of a class, the interpreter fairly infers that only the listed members are to be included”. Sullivan on the Construction of Statutes 245 (5th ed.2008).

It is not the role of the courts to insert concepts which the legislature declined to include. London Transport Executive v. Betts,[1959] A.C. 213, 247 (H.L. 1958) (“The judges have no right to fill in gaps which they suppose to exist in

an Act of Parliament”) &Goodrich v. Paisner, [1957] A.C. 65, 88 (H.L. 1956) (“No court is entitled to substitute its words for the words of the Act”). [28] But as the Court of Appeal’s decision in Haisman v. Haisman is still good law, I must apply it. [29] Reading s. 17(4) of the Divorce Act as interpreted by Haisman v. Haisman, 1994 ABCA 249 , 157 A.R. 47, 51 (C.A.1994), the Court may not rescind or suspend the December 20, 1995 order unless satisfied that “a change of circumstances as providedfor in the applicable guidelines has occurred since the making of the child support order”. See Willick v.

Willick, (SCC),[1994] 3 S.C.R. 670, 688 (s. 17(4) of the Divorce Act means a “material change in circumstances ... [which] if known at the time, wouldlikely have resulted in different terms”). [30] What are the “applicable guidelines”? [31] “Applicable guidelines” is a defined term in the Divorce Act. In this case, the governing body of rules may be either theFederal Child Support Guidelines or the Alberta Child Support Guidelines, Alta. Reg. 147/2005.

If it is the Alberta Child SupportGuidelines because both former spouses ordinarily resided in Alberta when the December 12, 1995 order was made, the applicable partof the Alberta Child Support Guidelines reads as follows: 14 … [A]ny one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect ofa child support order: … (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change inthe condition, means, needs or other circumstances of either parent or of any child who is entitled to support. [32]

Section 14(

b) of the Alberta Child Support Guidelines establishes the criterion because the child support obligation containedin the December 12, 1995 order was not determined by reference to a table set out in

Schedule 1 of the Federal Child SupportGuidelines, which was not in force until May 1, 1997. [33] Has Ms. Ross established that there is a “change in … [her] condition, means, needs or other circumstances”, as required by s.14(

b) of the Alberta Child Support Guidelines? [34] She has not. [35] While she swears in her August 3, 2012 affidavit that “since the date of the last Order that was made my financial situationhas changed significantly”, she provides no evidence to support this assertion. That her total income in 2003 was $7,063, in 2004 was$5,206, in 2005 was $1,454 and in 2011 was $1,700 does not prove her case. She did not make much in any of the years she chose to reveal her income. See Heiden v. Director of Maintenance Enforcement, (BC CA), 19 R.F.L. 4th 320, 325 (B.C.C.A.

1995) (a court will not reduce child support arrears without clear evidence that there has been a change in circumstances under s. 17(4) ofthe Divorce Act). [36] As Ms. Ross failed to introduce any evidence relating to her “condition …, needs or other circumstances”, the Court cannotconsider these criteria. For these reasons, the Court dismisses Ms. Ross’ application. [37] In the event that the Federal Child Support Guidelines apply because Ms. Ross and Mr. Ross were ordinarily resident in different provinces on August 14, 2012, the date Ms.

Ross filed her application to suspend or rescindher child support arrears, which is probably the preferable determination, I will review the change in circumstances provision in theFederal Child Support Guidelines. Subsections 14(

a) and (

b) of the Federal Child Support Guidelines are identical to subsections 14(a)and (

b) of the Alberta Child Support Guidelines. But s. 14(

c) of each of the Guidelines is different.

Section 14(

c) of the Federal ChildSupport Guidelines is as follows: “in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act,enacted by

section 2 of

chapter 1 of the Statutes of Canada, (1997).” [38] Given that the operative order Ms. Ross seeks to rescind or suspend was issued on December 20, 1995, a date well beforeMay 1, 1997 the criterion in s. 14(

c) of the Federal Child Support Guidelines has been met. [39] On the assumption that the Federal Child Support Guidelines are the “applicable guidelines” under s. 17(4) of the DivorceAct, I will consider the merits of Ms. Ross’ application. C.

There Is No Reasons To Rescind or Suspend the December 12, 1995 Order. [40] Section 17(6.1) of the Divorce Act provides that a “court making a variation order in respect of a child support order shall doso in accordance with the applicable guidelines”. [41] There is nothing in the Federal Child Support Guidelines which directs a court to consider specified factors beforeadjudicating an application for suspension or rescission of a child support order, another condition which supports my opinion thatsuspension and recission are not the same as a variation order in s. 17. [42] So when should a court rescind or suspend a child support order? [43] The Court of Appeal in Haisman v.

Haisman, 1994 ABCA 249 , 157 A.R. 47, 55 (1994) provides some guidance asto when it is appropriate to rescind or suspend a child support order: A present inability to pay arrears of child support does not by itself justify a variation order. It may justify a suspension of enforcementin relation to the arrears for a limited time, or an order providing for periodic payments on the arrears.

However, in the absence of somespecial circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilitiesthat he or she cannot pay and will not in the future be able to pay the arrears. [44] Ms. Ross’ August 20, 2012 affidavit does not disclose any facts which would allow this Court to conclude that on a balance ofprobabilities she could not pay her child support debts in the past and will not be able to do so in the future. That she had very lowincomes in 2003, 2004, 2005 and 2011 is not conclusive. Why did she earn so little?

She has not stated that any medical or othercondition has prevented her in the past from working and earning a larger income or will in the future impair her ability to do so. Theonly evidence on this point is contained in Mr. Ross’ affidavit: “As far as I am aware she is healthy and capable of full-timeemployment”. [45] This deficiency in Ms. Ross’ application constitutes sufficient grounds to dismiss her application for both a rescission and suspension order with respect to her child support arrears. See Buzon v. Buzon, 48 R.F.L. 4th 263,268 (Alta.

Q.B. 1999) (application for relief denied because that applicant was healthy and could earn “a sufficient amount to allow himto pay his fair share of support for his children”). [46] Although it is unnecessary to say more, I wish to observe that I see no reason why a parent who has failed to discharge his orher court-ordered financial obligation to a child should automatically be relieved of the burden of shouldering this debt, even if they meetthe test fashioned in Haisman v. Haisman, 1994 ABCA 249 , 157 A.R. 47, 55 (C.A. 1994).

The Court of Appeal was careful tostate that a request to rescind or suspend may be “considered”. People do regularly inherit money and occasionally benefit from goodfortune. I think the bar for excusing scofflaws from their lawful obligations to support their children should not be easy to clear. The lawshould discourage parents from shirking their responsibilities to their offspring. A parent has a primary and overriding obligation toshepherd his or her resources so that he or she can honour any child support obligations.

The failure to do so either shifts the burden tosomeone else or forces the child to suffer the sins of the parent. McCallum v. McCallum, 1999 ABQB 1007, ¶ 22 (“Parents who do notfinancially support their children leave others to pick up the slack”). Neither outcome is tolerable. VII. Conclusion [47] The Court dismisses Ms. Ross’ application with costs to Mr. Ross. Heard on March 14, 2013. Dated at Edmonton, Alberta on August 28, 2013.

Thomas W. Wakeling Justice of the Court of Queens’ Bench of Alberta Appearances: Leonard Thom Thom Law Office for the Applicant Nora K. LeBlanc Gaffney & McGreer LLP for the Respondent