Bacon v. Bacon, 2013 ABQB 550

Court of Queen ’ s Bench of Alberta Citation: Bacon v. Bacon, 2013 ABQB 550 Date: 20130923 Docket: 4803 158914 Registry: Edmonton Between: Billie Jo Bacon Applicant - and - Keray Quinton Bacon Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ [ 1 ] The Applicant wife seeks the following relief in a Family Law Special Application: a. A finding of contempt of court against the Respondent husband for his alleged breaching of an Order granted in this Court on April 27, 2012 with respect to Disclosure;

b. Retroactive child support based on imputed income of $61,776 to the Respondent commencing April 1, 2011 in accordance with the following table: Date Income of Applicant Income of Respondent Number of children in Applicant’s care Amount of child support owing April 1, 2011 – May 3, 2011 (1) $10,000 $61,776 3 $1,176.00 May 3, 2011 – July of 2011 (2) $10,000 $61,776 1 $948.00 July 1, 2011 – late August 2011 (2) $10,000 $61,776 3 $2,352.00 September 2011 – December 31, 2011 (4) $10,000 $61,776 2 $3,436.00 January 2012 - October 25, 2012 (10) $10,000 $61,776 2 $8,760.00 October 25, 2012 – Present (7) $10,000 $61,776 1 $3,612.00 TOTAL $20,284.00 c. Ordering prospective

Section 3 child support to the Applicant for the one child of the marriage who resides primarily with her based on her Annual Guideline Income of only $10,000.00; d. Severing the Corollary Relief from the divorce proceedings. [ 2 ] The husband appears on his own behalf even though initially he apparently intended to retain legal counsel, and request an adjournment to do so. However before me the Respondent decided that he could not afford to retain legal counsel in any event and wished to proceed.

I pointed out to the Respondent that he had failed to file any Confirming Letter as required, and because he also had filed no Affidavit before me, his ability to defend the Application was restricted. In order to be fair to the Respondent, however, I allowed him to respond to the Application, but directed that he had to file an Affidavit as soon as possible, which would have to be provided to counsel for the Applicant as well for his response, if any. These steps have now been completed. The Parties [ 3 ] The Applicant wife and the Respondent husband married in May 1997 and have 5 children together.

The parties separated approximately on the 15 th of April, 2011, at which time the husband moved out. At the time of their separation in mid April 2011 there were 3 remaining children of the marriage. [ 4 ] The wife submitted that she had two children of the marriage residing primarily with her until October 25, 2012.

The following table represents the time periods during which the Applicant was the primary care giver of the 3 children after the separation in my assessment based on the evidence before me: Dates No. of children of the marriage No. of children with the Applicant No. of children with the Respondent April 15, 2011 – May 3, 2011 3 3 0 May 3, 2011 – July 2011 3 1 2 July 1, 2011 – late August 2011 3 3 0 September 1, 2011 – December 31, 2011 3 2 1 January 1, 2012 – Present 2 1 1 [ 5 ] The husband was served with a Statement of Claim for Divorce and Division of Matrimonial Property, along with a Notice to Disclose filed on December 12, 2011.

The husband did not respond and was Noted in Default on March 2, 2012. An Order was issued in this Court on April 27, 2012 giving the husband 30 days to provide Disclosure. The husband produced only his 2008 Notice of Assessment which showed an income of just under $41,000.00, and he has otherwise not complied with the Disclosure Order, which is the basis upon which the Contempt finding is now being sought. The Applicant believed that the husband was making approximately $26.00 to $27.00 per hour based on information received by one of the children of the marriage who is currently residing with the father.

Based on a 44 hour work week, the $27.00 hourly wage would result in the husband earning approximately $62,000.00 per year. [ 6 ] The husband responds that their son must have misunderstood what he earned per hour, because the son took the husband’s overtime pay rate as being his regular hourly remuneration. As for the alleged non-disclosure, the Respondent says that he did not receive all of his tax assessments until after the 30 days allowed, but as soon as he received his assessments, he provided them to the

Applicant’s lawyer. [ 7 ] As for paying retroactive child support, the husband admits that he has never paid child support formally, but he would voluntarily send money whenever the children asked him. The husband also complains that the parties were together for 21 years, during which time the wife obtained her high school diploma and also completed a Business Management course, which she never did anything with. He alleges that she provided false information to social services and to Maintenance Enforcement, which has accordingly severely disadvantaged him.

Since there is no claim for spousal support, I conclude that these concerns are not particularly relevant. [ 8 ] The husband also deposes that he has severe health issues that could leave him permanently disabled or dead. Contempt Finding [ 9 ] The Applicant seeks $500.00 payable by the Respondent as a fine which is sufficient to allow the husband to purge his contempt of the Disclosure Order. The husband acknowledges that he failed to comply with the Disclosure Order within the 30 day time period.

However given that the husband lives and works in Saskatchewan, and has now fully complied with the April 27, 2012 Order, I decline to sanction him further for his acknowledged contempt. Retroactive Child Support [ 10 ] The husband acknowledges that he has never paid any formal child support, but insists that he has provided financial assistance to his children voluntarily whenever they have needed help. However it is unclear on the record how much financial assistance the husband has actually given the children and when he has given it.

It is clear that the mother has had day-to-day care of the children for the time period specified in the table produced previously above even on the husband’s version of the facts. The wife has received no direct financial assistance from the husband since the separation. The husband has an obligation to provide child support for those children during the periods of time they were residing primarily with the wife.

Retroactive child support accordingly will be ordered commencing April 2, 2011, which is in accordance with D.B.S. v S.R.G ., 2006 SCC 37 . [ 11 ] The husband’s Annual Guideline Income has now finally been disclosed and it is not the amount that the wife initially sought to have imputed at $62,000.00 per year. The husband’s current disclosure establishes to my satisfaction that his Annual Guideline Income is $32,751.00 per year. The wife’s Guideline Income will be set at $10,000.00 per year.

The number of children in the Applicant’s care is one as of January 1, 2012, not two children claimed to be in her care until October 25, 2012.

One of the children in question has provided the Court with an unsworn note through his father in his sworn Affidavit of September 18, 2013 that indicates that he has not lived with his mother since January of 2012, and that he lived with his father between March 2012 and July 2012. [ 12 ] The arrears payable by the husband to the wife will be repaid in monthly sums of $50.00 per month beginning the first day of October 2013, and continuing on the first day of each month thereafter until the balance has been paid in full. Ongoing

Section 3 Child Support [ 13 ] The husband will pay the wife ongoing

Section 3 child support in accordance with the Guidelines in the sum of $250.00 per month beginning June 1, 2013, continuing on the first day of each month thereafter until there remains to be no more children of the marriage, or until further order of this Court. This amount of $250 a month is the basic ongoing

Section 3 child support offset amount that the husband is required to pay the wife given that each party has one child of the marriage residing primarily with them. It is based on the Parties’ Annual Guideline Income as found by the Court of $32,751.00 per year for the husband and $10,000 per year for the wife.

Severing the Corollary Relief from the Divorce Proceedings [ 14 ] Given that the children are adequately provided for by this first ever order of the Court in this regard, it is clearly appropriate for both parties to have the corollary relief separated from the divorce proceedings so that there can be a timely resolution of the divorce.

Costs [ 15 ] The husband will pay the Applicant costs in the sum of $500.00 in respect of this Special Chambers application, which unfortunately was necessitated by the husband’s lack of response and cooperation in this matter, which lead to the eventual formal filing of the Application in March 2013, and which has delayed the conclusion of this matter. Heard on the 12 th day of September, 2013. Dated at the City of Edmonton, Alberta this 23 rd day of September, 2013.

Donald Lee J.C.Q.B.A. Appearances: Scott D. Armstrong Jenkins & Jenkins for the Applicant Keray Quinton Bacon On his own behalf