Rheault v. Hammond, 2013 ABQB 530

Court of Queen ’ s Bench of Alberta Citation: Rheault v. Hammond, 2013 ABQB 530 Date: 20130918 Docket: 4803 137719 Registry: Edmonton Between: Sylvie Isabelle Rheault Respondent - and - Shawn Richard Hammond Applicant Corrected judgment: A corrigendum was issued on September 24, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment.

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 ] On January 3, 2013 Shawn Richard Hammond filed a family law application.

He seeks an order varying past and future child support obligations recorded in an interim child support order issued on May 10, 2012 requiring him to make payments to Sylvie Isabelle Rheault, his former wife (“May 10, 2012 interim order”). The child support obligations in the May 10, 2012 interim order were based on an imputed annual income of $85,000. II. Questions Presented

[ 2 ] Has Mr. Hammond demonstrated that a “change of circumstances” under s. 14 of the Alberta Child Support Guidelines , Alta. Reg. 147/2005 exists to give this Court jurisdiction to vary the child support orders? [ 3 ] If so, should this Court vary the child support orders? III. Brief Answers [ 4 ] Mr. Hammond has established that there has been a change of circumstances under the Alberta Child Support Guidelines . He has adduced evidence that his annual income for the years after 2003, with the exception of 2008, is substantially less than the imputed annual income of $85,000.

The May 10, 2012 interim order is varied to reflect the evidence now before the Court. IV. Applicable Statutory Provisions [ 5 ] The relevant parts of the Divorce Act , R.S.C. 1985, c. 3 (2d Supp.) read as follows: 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 a child support order or a variation order in respect of a child support order is made…, the laws of the province specified in the order; and

b) in any other case, the Federal Child Support Guidelines. ... 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 a court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order with a last variation order made in respect of that order. [ 6 ]

Section 14 of the Alberta Child Support Guidelines is in this form: [A]ny one of the following constitutes a change of circumstances that gives rise to the making of 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 in circumstances that would result in a different child support order or any provision of it; … V. Statement of Facts [ 7 ] Mr. Hammond and Ms. Rheault were married on December 31, 1999. They have two children. Paxton Ray Hammond was born on January [...], 2001 and Brody Noel Hammond was born on January [...], 2003. [ 8 ] The applicant and respondent separated on March 23, 2004. [ 9 ] On March 8, 2006 Ms.

Rheault filed a statement of claim for divorce and division of matrimonial property and a notice to disclose personal income tax returns and other information. [ 10 ] An affidavit of service filed March 31, 2006 states that the deponent personally served Mr. Hammond on March 12, 2006 with the statement of claim and the notice to disclose. [ 11 ] Mr. Hammond has paid Ms. Rheault child support. There are minor differences between the two as to the amounts paid, as the following table reveals: Year Mr. Hammond’s Version Ms. Rheault’s Version Variance 2004 $6,500 $6,500 $0 2005 $9,780 $7,080 $2700

2006 $6,700 $6,700 $0 2007 $17,600 $17,600 $0 2008 $12,310 $12,310 $0 2009 $4,200 $3,650 $550 2010 $5,000 $5,000 $0 2011 $7,650 $7,350 $300 2012 [1] $8,562 $7,550 $1012 $78,302 $73,740 $4,562 [ 12 ] Mr. Hammond swears in his November 29, 2012 affidavit that “the child maintenance that was paid was agreed to by ourselves. ... I believed that I was fulfilling my obligations to both the children and the Plaintiff”. [ 13 ] On June 17, 2010 the applicant filed a family law application for an order compelling the respondent to disclose income information and served it on Mr.

Hammond’s counsel, who subsequently withdrew as solicitor of record. The product of this application was a July 19, 2010 order allowing Ms. Rheault to serve Mr. Hammond at a post office address in Leduc, Alberta with any other documents in her action. [ 14 ] On April 25, 2012 Ms. Rheault filed a family law application returnable May 10, 2012 seeking child support at a level based on an annual income of $85,000 for Mr. Hammond effective April 1, 2004. Her supporting affidavit sworn on April 24, 2012 contains these passages: 6. Shawn has never fully disclosed his earnings.

Whenever I even ask him what he earns, he will not answer. He says, oh, I was laid off for a bit, and then I worked on my own, and I do not know. He has sporadically paid child support. … He just gives me any amount and I have no idea what his earnings are or have been. I have to continually beg for the support, and just be grateful when he pays. I had my lawyer write to his lawyer and ask for his tax returns and his lawyer got off the record. I brought an application for him to provide his income and earnings.

He did not show up to court and did not provide any of his tax returns or pay stubs as he was required to do. … If we had his tax returns and earnings, we could figure out if he has been paying and is paying the right amount. Without those, we have no idea. ... 8. ... [Shawn] earns at least double what I do. … He is a welder and I know he can earn about $70,000 - $85,000. ... 10. Shawn works as a welder. I know that in 2001 he earned about $26.00 per hour.

Without his record of employment and without receipt of his income tax returns and notices of assessment, I can only guess what he earns, and if he does not provide proof, then I ask that his income be set at $85,000 ongoing and retroactive to 2004. It may be that he earns or can earn up to $77,000, but there is no incentive for him to provide records of his employment unless his income is set high enough. ... I attach … a print off of all of base line hourly wages for welders as a guideline. A general welder earns $32.00 per hour, and Shawn is more than a general welder. 11.

Shawn worked at Ja-Co Welding and Consulting Ltd. in Leduc as a welder foreman or manager and I think still works there. He is very secretive about his work and earnings. Imputing his income and $85,000 for 8 yrs 4 mo means child support should’ve been around $1,120 for 2, and his total owing is higher than $112,000. He paid $69,540. He owes $42,460. [ 15 ] Counsel for Ms. Rheault served Mr. Hammond with the family law application and Ms. Rheault’s affidavit by enclosing them in an April 24, 2012 letter addressed to Mr. Hammond’s Leduc post office address. Part of this letter reads as follows: [Ms.

Rheault is] seeking ongoing and retroactive child support, setting your income at $85,000 and basing child support upon that number and proceeding with the Divorce. … Sylvie wants this matter done properly so that you are paying the child support you’re supposed to pay. That is only known by your income and we have not received your income tax returns from 2004. That is why we are asking the Court to set it very high. That way you will want to advise the Court what you really earned. [ 16 ] On May 10, 2012 Justice Acton imputed Mr.

Hammond’s annual income at $85,000 and ordered him to pay child support based on the imputed annual income for the period commencing April 1, 2004. The May 10, 2012 interim order credited Mr. Hammond with payments of $69,540 made to Ms. Rheault for child support prior to the issuance of the order. It also ordered Mr. Hammond to pay an additional monthly amount of $100 commencing June 1, 2012 until child support arrears were eliminated. Justice Acton also dispensed with the requirement that Ms. Rheault have Mr. Hammond’s consent to seek a desk divorce. The recital stated that Mr.

Hammond was not present in court and had not provided his income information to the court. [ 17 ] On May 15, 2012 Ms. Rheault noted Mr. Hammond in default in her divorce and division of matrimonial property action. [ 18 ] On May 28, 2012 Ms. Rheault’s counsel forwarded the May 10, 2012 interim order to Mr. Hammond by way of his Leduc post office address. Part of this letter reads as follows: I enclose a court Order for child support going back to the date of separation. This Order was granted by the Honourable Madam Justice L.D. Acton on May 10, 2012.

Despite requests from my office, and from Sylvie directly, you did not provide proof of your income. Your income was imputed for

every year and ongoing at $85,000 and child support was set accordingly. I asked the Court to set it high enough as an incentive for you to provide me with your actual earnings. If you provide us with Revenue Canada printouts of your income from 2004, we will review the Order if the incomes are different to recalculate the actual arrears, provided we are able to come to an agreement on paying some lump sum payments for past child support owing. This will be up to Sylvie. ... The law sets out the amount of child support you are required to pay to Sylvie to support her raising the children.

All she has ever tried to do is find out what you earn so that a proper amount could be paid, rather than just waiting for a payment in any amount that you wanted. ... Let me know if you intend to provide your income tax printouts from 2004. In the meantime, you will still have to pay the $1,215.00 plus $100 per month. There will be arrears so that you are not paying more than you will likely owe. [ 19 ] Mr. Hammond swore that he contacted Ms. Rheault’s counsel after he learned of the May 10, 2012 order. Nothing positive came of this effort. [ 20 ] Mr.

Hammond indicates that he then retained counsel who wrote to Ms. Rheault’s counsel on October 9, 2012. Part of his October 9, 2012 letter is set out below: [W]e understand that you have received from Mr. Hammond copies of his Notices of Assessment which disclose his Line 150 income has seldom amounted to the amount that your client sought to attribute to Mr. Hammond. We note from your correspondence of May 28, 2012, that you requested of the Court that the attributed amount be “high enough as an incentive for you to provide me with your actual earnings”. You have now received that disclosure ... . ...

The clear inference to be drawn from your ... [May 28, 2012] correspondence is that if Mr. Hammond were to provide you with the income information that the child maintenance would be set at his actual income. It now appears that will not be the case. If so, our instructions are to bring an application and seek costs on a solicitor and his own client basis. [ 21 ] On September 24, 2012 Justice Thomas signed a desk divorce judgment, incorporating the child support obligations set out in Justice Acton’s May 10, 2012 interim order. [ 22 ] As noted in the introduction, on January 3, 2013 Mr.

Hammond applied to vary the May 10, 2012 interim order. [ 23 ] He relied on an affidavit sworn on November 29, 2012. This affidavit declares that Mr. Hammond did not receive Ms. Rheault’s April 25, 2012 application or the May 10, 2012 interim order until July 2012. He claims that Ms. Rheault had ample opportunity to notify him of her intention to seek a court order for child support payment: 5. During the relevant period of time during March, April and May of 2012, the Plaintiff and I spoke frequently in relation to matters involving the children, and my access.

That I would see the children almost every weekend, along with speaking with the Plaintiff during evenings. At no time was I ever informed by the Plaintiff that a Court Application was being contemplated, or that a Court Application had been initiated, nor did the Plaintiff ever indicate to me that she was seeking to attribute to me income of $85,000.00 per year. Had I been so informed, I would immediately have provided her with the appropriate information. Additionally, the Plaintiff was well aware of my income.

In 2006 the Plaintiff’s solicitor, Christine Barker drafted Minutes of Settlement and Divorce Judgment … which disclosed my income as $52,000.00. [ 24 ] Mr. Hammond also filed as exhibits to his November 29, 2012 affidavit notices of assessment from 2004 to 2011 inclusive which reveal total income as follows: 2004 $66,874 2005 $47,489 2006 $57,361 2007 $52,316 2008 $99,811 2009 $33,106 2010 $50,815 2011 $77,115 He stated as well that “[m]y expected income for the year 2012 is $75,000. [ 25 ] On January 22, 2013 Ms.

Rheault filed her affidavit sworn January 21, 2003, in opposition to her former husband’s application, parts of which are set out below: 3. Shawn has brought an application to vary an interim order granted in May 2012. … Shawn’s delay has been unreasonable. He waited 7-8 months to change the Order and in changing the Order he is most unreasonably seeking to erase $50,000 for his children. That is what I have already paid for the children due to him not paying the proper amount or regular child support. ... 8.

Since the [May 10, 2012 interim] Order, Shawn was supposed to pay the ordered amount of child support and arrears. He has not

made regular payments and has entirely stopped paying any child support since October 2012. … Not only is [he] in arrears from theCourt Ordered payments [from June 1, 2012 to January 31, 2013] of $7520, but the entire $42,460 is also due … . 9. He should not be able to bring any application unless and until he brings his current child support payments up-to-date. ... 14. If Shawn is allowed to proceed with his application, then $100 per month to pay down the arrears is too little. It takes too long. Iwant costs as it was his lack of co-operation where I had to incur all these legal expenses. ... 16.

I refute that Shawn and I ever quote “agreed” on child support … . I have had counsel and we have tried to get his financialdisclosure all these years. He never showed me his pay stubs or his tax returns prior to my getting the divorce. … I always took theposition he should be paying based on what he earned. [26] In a January 23, 2013 order Justice Crighton directed that the terms of the May 10, 2012 interim order and the September 24,2012 divorce judgment and corollary relief order remain in effect.

The Court also declared that the “requirement to make the abovepayments effected [sic] January 2013 and each and every month shall be a prerequisite and condition of the Defendant being able toproceed with his application to vary. Should the Defendant default, then he cannot proceed with his application to vary”. Another term ofthe January 23, 2013 order directed that Mr. Hammond’s application be heard on April 25, 2013 in special chambers. [27] Ms. Rheault filed a supplemental affidavit of arrears sworn March 26, 2013. She states that “[o]n January 23, 2013, theHonourable Madam Justice M.G.

Crighton ... required that he pay me at least $1315 per month from January 2013 to be able to continuewith his Court application to vacate the child support arrears”. It would appear from exhibit C to her March 26, 2013 affidavit that Mr.Hammond has discharged that obligation. Exhibit C discloses that Mr. Hammond has paid $8650 for child support “since the Order ofMay 10, 2012”, including approximately $1475 for each of January, February and March of 2013.[2] [28] Mr.

Hammond, in an affidavit filed April 4, 2013, states that “[b]eginning in January of 2013, I have been payingMaintenance Enforcement the sum of $1500 per month for the months of January, February and March. My pre-authorized payments are made on the 17th of each month and the April payment will automatically be withdrawn on April 17th, 2013”. [29] On April 11, 2013 Ms. Rheault filed a family law cross-application seeking a number of remedies, including retroactive andongoing spousal support. [30] On April 19, 2013 Mr.

Hammond filed a family law application seeking an order setting aside the noting in default filed May15, 2012. [31] On May 2, 2013 Mr. Hammond filed his affidavit sworn May 1, 2013. The exhibits to this affidavit included Mr. Hammond’sincome tax returns for 2007, 2008 and 2012, several T4 statements of remuneration paid to Mr. Hammond in 2010, 2011, 2012 and 2013pay period statements. VI. Analysis A. Mr.

Hammond Has Established That There Is a Change of Circumstances as Required by Section17(4) of the Divorce Act [32] Section 17(1) of the Divorce Act provides that “[a] court of competent jurisdiction may make an order varying, rescinding orsuspending, prospectively or retroactively, … a support order or any provision thereof on application by either ... former spouses”. [33] Mr.

Hammond seeks an order varying child support obligations and rescinding accrued child support arrears. [34] Section 17(4) of the Divorce Act limits the circumstances under which a court may vary a child support order: Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances asprovided 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. [35] In Ross v.

Ross, 2013 ABQB 490, ¶ 27 I explained why I held the view that a “variation order” under s. 17(4) of the DivorceAct did not include a rescission or suspension order, an opinion at odds with that expressed by the Court of Appeal in Haisman v.Haisman, 1994 ABCA 249 , 157 A.R. 47, 51 (1994): The Court of Appeal in Haisman v. Haisman … held that “the subsections of

section 17 which referred to a variation order apply as wellto a rescission order [because] rescission is, after all a kind of variation”. While rescission is a form of variance, the Parliament ofCanada, when it passed

section 17 of the Divorce Act, distinguished between variation, rescission and suspension and expressly declaredthat it was only in cases of variation did the applicant have to establish a change of circumstances. With respect, I am of the opinion thatan applicant for a rescission or suspension order does not have to comply with section 17(4) of the Divorce Act. I agree with JusticeScalia and Professor Garner that a “matter not covered is not covered”. Reading law: The

Interpretation of Legal Texts 93 (2012).Professor Sullivan makes the point this way: “When a drafter lists some but not all the 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 Executives v. Betts, ... (H.L. 1958) (“The judgeshave no right to fill in gaps which they supposed to exist in

an Act of Parliament”) & Goodrich v. Paisner, … (H.L. 1956) (“No court isentitled to substitute its words for the words of the Act”). [36] I recognize that Haisman v. Haisman, 1994 ABCA 249 , 157 A.R. 47 (C.A. 1994) is still good law and that I mustapply it. [37] The Supreme Court of Canada in Willick v.

Willick, (SCC), [1994] 3 S.C.R. 670, 688 declared that a “ changeof circumstances” means a “material change in circumstances … [which] if known at the time, would likely have resulted in differentterms”. [38] Because s. 17(4) of the Divorce Act ties “change of circumstances” to “applicable guidelines”, one must ascertain the identityof the “applicable guidelines”. [39] “Applicable guidelines” is a defined term in the Divorce Act. I am satisfied that the “applicable guidelines” in this case are theAlberta Child Support Guidelines because both former spouses were ordinarily resident in Alberta when Ms.

Rheault filed the originalchild support application on April 25, 2012 and when Mr. Hammond filed a variation application on January 3, 2013. [40]

Section 14(

a) of the Alberta Child Support Guidelines stipulates that a change of circumstance exists “in the case where theamount of child support includes a determination made in accordance with the applicable table, any change in circumstances that wouldresult in a different child support order or any portion of it”. [41] Justice Acton’s May 10, 2012 order fixed Mr. Hammond’s child support obligation based on an imputed income of $85,000.The evidence Mr. Hammond provided in his November 29, 2012 and May 1, 2013 affidavits reveals that his total income for each of theyears from 2004 to 2012 inclusive was not $85,000.

A tax year in which Mr. Hammond’s total income was not $85,000 constitutes achange in circumstances for the purposes of s. 14 of the Alberta Child Support Guidelines. This is because the courts would have arrivedat a different child support order had it been aware of this information. [42] The conclusion is not one that Ms. Rheault can vigorously complain about. Her counsel’s May 28, 2012 letter implicitly statesthat Ms. Rheault will agree to revisit the amount of child support after Mr. Hammond discloses his income information. B. Mr.

Hammond’s Child Support Obligations Under the May 20, 2012 Order Will Be Varied 1. Introduction [43] Section 17(6.1) of the Divorce Act directs a court making a variation order to “do so in accordance with the applicableguidelines”. [44] My review of the Alberta Child Support Guidelines does not disclose any factors which a court must take into account whenconsidering the merits of a variation application other than the tables which fix the proper amount of child support. [45] So what principles determine when a child support order should be varied? [46] The Supreme Court of Canada in D.B.S. v.

S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231 laid out the ground ruleswhich apply. I have reviewed these important rules in detail in Young v. Smith, 2013 ABQB 521 and will not do so here. 2. Start Date for a Variation Order [47] In D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231, 283-84 Justice Bastarache discusses the appropriate startdate for a child support order that is not prospective: Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount of supporthave failed.

Yet this does not mean that formal recourse to the judicial system should have been sought earlier. To the contrary, litigationcan be costly and hostile, with the ultimate result being that fewer resources – both financial and emotional – are available to help thechildren when they need them the most.

If parents are to be encouraged to resolve child support matters efficiently, courts must ensurethat parents are not penalized for treating judicial recourse as a last resort. … A recipient parent should not have to sacrifice … [her]claim for support … during the months when … [she] engages in informal negotiation … . Choosing the date of effective notice as a default option avoids this pitfall.

By “effective notice”, I am referring to any indication by therecipient 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 be broached. [48] A court should demand very little of a spouse or former spouse who is seeking judicial recognition of the commencementdate for a child support obligation which has existed in law since the date of separation.

The test should be easy to apply so as to avoiddisputes as to its application – the simpler the better. [49] In this case Ms. Rheault first formally notified Mr. Hammond that she intended to make child support an issue on March 8,2006 when she filed her statement of claim for divorce and division of matrimonial property and a notice to disclose/notice of motion,which were served on Mr. Hammond on March 12, 2006. So Mr. Hammond had formal notice on March 12, 2006. [50] Given that D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231, 284 contemplated a start date up to three years

before the payor parent received formal notice, it is open to this Court to select April 1, 2004 as the start date. [51] There is another route to this April 1, 2004 start date, even if one selects May 10, 2012 as the date of formal notice, becauseMs. Rheault delayed more than six years to advance her child support claim contained in her statement of claim. D.B.S. v. S.R.G., 2006SCC 37 , [2006] 2 S.C.R. 231, 284 (a “prolonged period of inactivity” on the part of the payee parent following the date ofeffective notice may justify using a later start date). [52] Ms.

Rheault’s April 25, 2012 affidavit leads me to conclude that on a balance of probabilities that Ms. Rheault asked Mr.Hammond for child support payments as soon as they separated on March 23, 2004. Exhibit A to her April 25, 2012 affidavit disclosesthat Mr. Hammond paid Ms. Rheault $1300 for each month in the period August 1 to December 31, 2004. [53] But this determination alone would not justify setting April 1, 2004 as the start date, if Mr. Hammond did not have formalnotice until May 10, 2012. The following passage in Justice Bastarache’s D.B.S. v.

S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231,284 judgment temporarily blocks the way, assuming formal notice was given May 10, 2012: [E]ven if the effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regimeappears to have contemplated this issue by limiting a recipient parent’s request for historical income to a three-year period: see s. 25(1)(

a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually beinappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

This part of his judgment recognizes that certainty value is more important than the fairness value the payee parent relies on in seeking achild support order which reflects the payor parent’s actual total income. [54] Another segment of Justice Bastarache’s judgment allows the court to override the payor parent’s certainty interest if to do sois appropriate, because the blameworthy conduct of the payor parent diminishes the paramountcy of his certainty interest: The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactiveorder should start.

This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parentengages in such conduct, there can be no claim that ... [he] reasonably believed … [his] child support entitlement was being met. Thiswill … be the case where the payor parent … withholds information. Not disclosing a material change in circumstances – including anincrease in income that one would expect to alter the amount of child support payable – is itself blameworthy conduct.

The presence ofsuch blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances change materially. ... 2006 SCC 37 , [2006] 2 S.C.R. 231, 285. [55] I have no reservation in concluding that Mr. Hammond engaged in blameworthy conduct. He either failed or refused todisclose to Ms. Rheault important income information for years, in spite of a formal request to do so served on him on March 12, 2006and informal requests following the separation on March 23, 2004. A spouse who persistently refuses to undertake

an act which is easyto perform and is important to the welfare of his children cannot expect the court to respond sympathetically when he laments theonerous financial burden the application of the blameworthy conduct principle forces him to shoulder. [56] For these reasons, I conclude that there is no reason to vary the April 1, 2004 start date Justice Acton selected in her May 10,2012 interim order. 3.

Varied Quantum of the Child Support Order [57] Section 17(6.1) of the Divorce Act directs “[a] court making a variation order in respect of a child support order … [to] do soin accordance with the applicable guidelines”. [58] Section 3(1) of the Alberta Child Support Guidelines stipulates that [u]nless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table according to the number of children under the age of majority to whom the order relates andthe income of the parent against whom the order is sought ... . [59] “Income”, according to s. 2(1)(

b) of the Alberta Child Support Guidelines means “the annual income determined undersections 15 to 20 [of the Guidelines]”. [60] Applying ss. 15 to 20 of the Alberta Child Support Guidelines leads to the conclusion that Mr. Hammond’s annual income foreach of the years after 2003 is the total income in the T1 General form issued by the Canada Revenue Agency adjusted in accordancewith

schedule 3 of the Alberta Child Support Guidelines. The following table reproduces Mr. Hammond’s total income for each of thesetaxation years: Year Total Income2004 $66,8742005 $47,4892006 $57,361 2007 $52,316

2008 $99,8112009 $33,1062010 $50,8502011 $77,1152012 $80,787 [61] If Ms. Rheault wishes to contest whether the amounts set out in the preceding table constitute Mr. Hammond’s total incomefor any of the taxation years under the Alberta Child Support Guidelines, she must notify the Court in writing within twenty businessdays following the date of this judgment. If she does not do so, the Court orders that Mr. Hammond annual total income be set at theamounts recorded in the preceding table and that his historical and ongoing child support obligations be calculated using these amounts.See Harding v.

Harding, 2003 ABQB 305 ¶ 23 (“It would ... be inequitable ... to allow the existing [child support] order to stand in viewof the information with respect to earnings now before the Court”). 4. Variation of the Payment of Child Support Arrears Is Necessary [62] Mr. Hammond’s child support arrears are the difference between the amount calculated in accordance with the preceding partand the child support payments he has made in the period commencing April 1, 2004 and ending on the date of this judgment, using theinformation provided by Mr. Hammond in his November 29, 2012 affidavit. If Ms.

Rheault wishes to contest the amount of the childsupport Mr. Hammond paid in 2005, 2009, 2011 and 2012, the years for which there is disagreement, she must notify the Court withintwenty business days following the date of this judgment. If she does not do so, the amounts Mr. Hammond claims he has paid for childsupport will be relied on to calculate the amount of his child support arrears. [63] Paragraph 5 of Justice Acton’s May 10, 2012 interim order required Mr. Hammond to pay an additional $100 every monthcommencing June 1, 2012 to reduce child support arrears. As Ms.

Rheault emphasizes in her family law cross-application filed April 11,2013, “[t]he $100 per month repayment

schedule will not see the Plaintiff repaid for 42 and a half years (she just turned 40) until she is82 years old ...”. [64] An arrears payment plan that provides little benefit to a payor parents’ child while the child is under the age of majorityundermines the purpose of child support. The Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231,280 sensibly concluded that a child needs support while he or she is under the age of majority. A plan which fails to meet this goal issuspect. [65] If I had reason to conclude that Mr.

Hammond was in a position to immediately pay the amount of his child support arrears, Iwould order him to do so forthwith. There is no evidence which reveals that Mr. Hammond controls substantial assets the disposition ofwhich would allow him to eliminate his child support arrears. Indeed, just the opposite is the case. Mr. Hammond was discharged frombankruptcy in September 2012. [66] But it is not in his children’s best interest for the Court to sanction any arrears payment plan which does not impose anonerous burden - just short of being an undue hardship - on Mr. Hammond.

The debtor parent must eliminate child support arrears asquickly as possible. I repeat the message I delivered in Ross v. Ross, 2013 ABQB 490, ¶ 46: The law should discourage parents from shirking their responsibilities to their offspring. A parent has a primary and overridingobligation to shepherd his or her resources so that he or she can honour any child support obligations. The failure to do so either shifts theburden to someone else or forces the child to suffer the sins of the parent. … Neither outcome is tolerable. [67] I order Mr.

Hammond to pay, commencing October 1, 2013, $600 per month in addition to his current child supportobligations until he has eliminated his child support arrears. Interest will accrue at the annual rate of two percent on any arrears. C. Mr. Hammond’s Child Support Arrears Will Not be Reduced or Suspended [68] Mr. Hammond seeks an order setting aside child support arrears. [69] In Haisman v.

Haisman, 1994 ABCA 249 , 157 A.R. 47, 55 (1994) the Court of Appeal recorded the conditionswhich must exist before a court may rescind or suspend child support arrears: A present inability to pay arrears of child support does not by itself justify a variation order. It may justify a suspension of enforcement inrelation to the arrears for a limited time, or an order providing for periodic payment on the arrears.

However, in the absence of somespecial circumstance, a variation order should only be considered where the former spouse has established on the balance of probabilitiesthat he or she cannot pay and will not in the future be able to pay the arrears. See also Stephenson v. Racine, 2009 ABCA 233, ¶ 6 (“The mere accumulation of arrears without evidence of past inability to pay is notsufficient, nor is it a special circumstance that would justify a reduction in arrears”) & Schmidt-Paborn v.

Lucas, 2005 ABQB 495, ¶ 22(“the applicant [seeking the cancellation of child support arrears] must prove, during the period when the arrears accumulated, he did nothave the means to pay the amount of support ordered by the court and that he will never have the ability to pay those amounts in thefuture”). [70] None of Mr. Hammond’s affidavits disclose any facts which would support a conclusion by this Court that he could notdischarge child support debts in the past or will not be able to do so in the future. Mr. Hammond is a welder.

Welders are currently ingreat demand in Alberta and have been in great demand for many years. They can make a lot of money. [71] The Court dismisses Mr. Hammond’s application to reduce his child support arrears. D. Mr. Hammond Must Pay

Schedule C Costs and an Additional Sum To Recognize the Legal Fees Ms. Rheault Incurred ToSecure Mr. Hammond’s Income Information

1. Indemnification Aspect [ 72 ] Ms. Rheault swears in her April 10, 2013 affidavit that she has “incurred charges of over $10,000 towards my legal fees since bringing the application for the relief in May 2012 and have had to do this given not only the lack of co-operation by Shawn, but his deliberate refusal to be honest about his disclosure ...”. [ 73 ] The amount Mr. Rheault has had to expend on legal fees to secure relevant income information for Mr. Hammond - which he had an incontestable obligation to provide - most surely has been to the direct short term detriment to Mr. Hammond’s two boys. [3] Ms.

Rheault’s total income for 2011 and 2012 was $40,851 and $41,933 respectively. Her total income is so small that she cannot expend over $10,000 on legal fees without harming the interests of her children. [ 74 ] Under these circumstances, it would be grossly unfair not to take this fact into account when assessing costs. 2.

Schedule C Costs [ 75 ] Mr. Hammond must pay Ms. Rheault’s costs in accordance with

Schedule C of the Alberta Rules of Court , Alta. Reg. 124/2010 even though he has enjoyed partial success in his application. Had he complied with his legal obligations first formally brought to his attention on March 12, 2006 when he was served with Ms. Rheault’s statement of claim for divorce and division of matrimonial property and notice to disclose, I am satisfied that his January 3, 2013 application would have been unnecessary. There would have been no need for a variation order had Mr.

Hammond honoured his legal obligations and disclosed relevant income information Justice Acton needed to make an evidenced-based child support order. Justice Acton was forced to impute Mr. Hammond’s total income for eight taxation years because Mr. Hammond had “failed to provide income information when under a legal obligation to do so”, the criterion in s. 19(1) (

f) of the Alberta Child Support Guidelines . In addition, Mr. Hammond must pay Ms. Rheault an additional $2500 for costs to partially indemnify her for legal fees incurred to secure income disclosure. E. Outstanding Issues [ 76 ] On April 11, 2013 Ms. Rheault filed a family law cross-application seeking s. 7 Divorce Act expenses from March 23, 2004, the date of separation, and spousal support for the same period. [ 77 ] If Ms. Rheault still wishes to have the Court resolve these issues she must notify the Court within twenty business days of the date of this judgment.

I will reserve jurisdiction to determine how these issues may best be resolved if she does seek judicial determination of these outstanding issues. I am not seized with this issue. In the interim, Ms. Rheault may wish to consider whether it is necessary, as Mr. Hammond argued, to amend her statement of claim for divorce and division of matrimonial property to expressly seek spousal support as a remedy. VII. Conclusion [ 78 ] The Court orders that the May 10, 2012 interim order is varied in these respects: 1. Mr.

Hammond’s total income for each of the years 2004 to 2012 inclusive is the amount set out below unless Ms. Rheault notifies the Court in writing within twenty business day of the date of this judgment that she wishes to contest these amounts: Year Total Income 2004 $66,874 2005 $47,489 2006 $57,361 2007 $52,316 2008 $99,811 2009 $33,106 2010 $50,815 2011 $77,115 2012 $80,787 2. Mr. Hammond’s child support obligation for the period April 1, 2004 to December 31, 2012 inclusive for his two children is the amount set out in the applicable table under the Alberta Child Support Guidelines less the amounts Mr.

Hammond paid to Ms. Rheault in child support in this period. The amounts Mr. Hammond has paid to Ms. Rheault in this period is the amount set out under the column “Mr. Hammond’s Version” in the table which is part of paragraph 11 of this judgment unless Ms. Rheault notifies the Court in writing within twenty business days of the date of this judgment that she contests the amounts paid in 2005, 2009, 2011 or 2012. 3. Mr. Hammond’s child support obligation for the period commencing January 1, 2013 is based on a total income of $80,787 unless a different amount is adjudged under paragraph 1. 4. Mr.

Hammond must pay, in addition to the current child support obligation set out in paragraph 3, $600 on October 1, 2013 and the first day of each following month until he has paid all child support arrears. Interest on any arrears accrues at the annual rate of two percent. [ 79 ] The Court orders Mr. Hammond the pay Ms. Rheault’s costs, calculated in accordance with

Schedule C of the Alberta Rules

of Court , and an additional $2500. Heard on April 25, 2013. Dated at Edmonton, Alberta on September 18, 2013. Thomas W. Wakeling Justice of the Court of Queen’s Bench of Alberta Appearances: J. Robert Neufeld Neufeld, John Robert Graham for the Applicant Catherine M. Zrymiak Weary & Zrymiak for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Thomas W. Wakeling _______________________________________________________ The appearances have been to the following: Appearances:

J. Robert Neufeld Neufeld, John Robert Graham for the Applicant Catherine M. Zrymiak Weary & Zrymiak for the Respondent