Duckett v Duckett, 2013 ABQB 635

Court of Queen ’ s Bench of Alberta Citation: Duckett v Duckett, 2013 ABQB 635 Date: 20131025 Docket: 4801 152181 Registry: Calgary Between: Brenna Corin Duckett Plaintiff - and - Nicholas James Duckett Defendant _ ________________________________________ ______________ Reasons for Decision of the Honourable Mr. Justice G.H. Poelman _________________________________________ ______________ I. Introduction [ 1 ] The applicant, Mr. Duckett, seeks a determination of whether retroactive child support is owed.

That question, in turn, has led to a dispute over whether there has been “shared parenting” of their two children since separation, such that there would be a set off of support obligations. [ 2 ] More importantly, in my view, is what effect should be given to an agreement the parties made shortly after separation regarding, among other things, their parenting arrangements and support obligations. [ 3 ] In addition, it must be determined what parenting

schedule should apply in the future, and the child support obligations arising therefrom.

II. Factual Background [ 4 ] The parties began living together in September 2004, were married on August 5, 2006, and separated on June 9, 2011. They have two children, a daughter (nearly 5 years old), and son (3 years old). [ 5 ] At the time of separation, the parties resided at their matrimonial home in Airdrie. They continued to live in the same home, despite their separation, until August 21, 2011. Mr. Duckett then moved to his parents’ home in Cochrane. Ms. Duckett remained in the matrimonial home until its sale in February 2012. She purchased a home in Okotoks, and moved there in March 2012.

At the end of September 2013, Mr. Duckett moved to Okotoks, where he lives close to Ms. Duckett’s residence and their daughter’s school. [ 6 ] Ms. Duckett is a teacher, and during separation, attained a master’s degree from the University of Lethbridge. While pursuing her graduate degree, she was able to continue working fulltime, being required to attend in Lethbridge only during her summers. [ 7 ] Mr. Duckett was a landscaper during the marriage. Early in 2011, he took paternity leave and was laid off on his return to work on July 25, 2011.

He enrolled at the Southern Alberta Institute for Technology for a program commencing September 2011, and graduated in May 2013. He is now employed as a joint venture analyst in the oil and gas industry. [ 8 ] Shortly after their separation, the parties negotiated (without legal representation) a detailed agreement. Pursuant to their agreement, they resolved all matrimonial issues. The agreement also addresses parenting and child support matters, although the degree to which it has been followed on these issues is partly in dispute. [ 9 ] The exact amount of time Mr.

Duckett has spent with the children is disputed. On the evidence of both parties, however, it is clear that he has had significant and meaningful time with them. [ 10 ] Apart from vacation periods, Mr. Duckett had the children from Thursday afternoon until Monday morning every second week, and on the alternate weeks had them from Thursday afternoons until Friday mornings. When Ms. Duckett moved to Okotoks, he brought the children back on Sunday evenings on the weekends he had the children, to avoid early Monday morning travel times with the children. III.

Retroactive Child Support [ 11 ] Each party claims that the other would owe retroactive child support from date of separation. Part of the dispute turns on whether there was a “shared parenting” arrangement within the meaning of

section 9 of the Federal Child Support Guidelines (“ Guidelines ”) [1] , in which each party had not less than 40 percent of parenting time over the course of a year. Typically (although not inevitably), in cases of shared parenting child support is based largely upon calculation of the support each parent would owe to the other based upon income, with the amounts set off. Mr. Duckett was unemployed for most of this period, and thus probably would be a net beneficiary. [ 12 ] I will address, presently, whether there was shared parenting in this case.

However, in my view, past child support obligations depend primarily on the effect of the parties’ agreement. [ 13 ] Their agreement is a five-page document signed by both parties and witnessed. It sets out their financial obligations, the division of their property, parenting schedules, and child support obligations. It acknowledges that Mr. Duckett is not employed, and is pursuing post-secondary education agreed upon before the separation agreement. It expressly waives Mr.

Duckett’s entitlement to child support while he is unemployed, and also expressly provides for shared custody based upon the time each parent spends with the children during their waking hours. Above their signatures, the parties acknowledged their agreement was based upon “their own free will without coercion and in sound mind.” [ 14 ] In Ms. Duckett’s first affidavit, she alleged that she signed the agreement under stress, without consulting a lawyer, without understanding what Mr. Duckett meant by shared parenting, and to avoid his badgering. Her allegations were, I find, definitively answered by Mr.

Duckett’s following affidavit, which demonstrated the exchange of drafts over two weeks, with much of the text of the agreement emanating from Ms. Duckett’s work computer. Despite the difficulties of making credibility findings in chambers, on this point Ms. Duckett’s allegations are demonstrably untruthful and, notably, were not repeated after Mr. Duckett’s responding evidence, despite subsequent affidavits. [ 15 ] When the agreement was made, Mr. Duckett was about to attend school and Ms. Duckett had a strong career as a teacher, being enhanced by her continuing post-secondary education.

The parties set out a parenting schedule, allocated their assets, and specifically addressed child support by, among other things, providing that Ms. Duckett would owe no child support to Mr. Duckett because of her other parenting responsibilities (primarily daycare expenses), and that the parties would contribute equally to specified expenses. [ 16 ] The Divorce Act , [2] in

section 15.1(3) , states that presumptively child support will be ordered in accordance with the Guidelines . However,

section 15.1(5) provides that a different amount may be awarded “if the court is satisfied (

a) that special provisions in ... a written agreement respecting financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.” [ 17 ] When there has been marital breakdown, it is unfortunately the court, rather than the parents, that must ultimately determine the best interests of the children, including whether reasonable arrangements for child support have been made. However, some deference should be given to the considered mutual decision of the parents.

That is particularly the case when they have largely implemented the terms of an agreement without any evidence of disadvantage to their children. They have done so in this case. To their credit, they have settled the division of matrimonial property, and until this application, had no disputes over the payment of child

support. I find there is no credible evidence of Ms. Duckett ever asserting that the agreement was not in the best interests of the children or was inequitable and should not be implemented. [ 18 ] To undo this agreement more than two years later and apply the Guidelines as though it did not exist would, in my view, be inequitable within the meaning of

section 15.1(5)(b). Further, on the evidence, Ms. Duckett has not taken any clear steps to repudiate the agreement and assert Guidelines child support obligations. For her to now rely upon statutory entitlements as though the agreement did not exist, after Mr. Duckett has spent two years in school, would be unjust. [ 19 ] In arriving at this conclusion, it is relevant (although not determinative) to consider what result might have obtained in the absence of the agreement.

That is because Guidelines support is a standard by which to consider the reasonableness of the provision these parties made for the benefit of their children and whether that level of support would now be inequitable. Unfortunately, such analysis requires delving into conflicting evidence regarding each party’s share of parenting time. [ 20 ]

Section 9 of the Guidelines contemplates calculating parenting time “over the course of a year.” The first one-year period following separation is from July 2011 through June 2012. Mr. Duckett put into evidence a parenting calendar based on his contemporaneous records for this entire period. Ms. Duckett submitted calculations for the period January 2012 and following. If Mr. Duckett’s calculations are used for the twelve-month period, he had 45 percent of parenting time; if Mr. Duckett’s figures are used for July through 2011, and Ms. Duckett’s figures for January through June 2012, Mr.

Duckett’s parenting time was 42 percent. Mr. Duckett was unemployed for this entire period, and thus under a shared parenting regime would probably have been entitled to child support from Ms. Duckett. [ 21 ] For the next twelve-month period, July 2012 through June 2013, a variety of approaches to parenting time are possible based on the evidence. Mr. Duckett’s information for the period through January 2013 is available. For the entire period, Ms. Duckett’s information is available on two alternative calculations, hours or days.

From this evidence I have made several calculations leading to a range of parenting time for Mr. Duckett between 31 percent and 40 percent. [ 22 ] Over the two-year period from date of separation, depending on which party’s calculations used, and what approach is taken (hours or days when that alternative is available on the evidence), the range of Mr. Duckett’s parenting time is from 36.5 percent to 42.5 percent. [ 23 ] On the whole of the affidavit evidence, I find that the parties had a shared parenting arrangement during the first year following separation.

During the second year, the evidence is less clear, partly because Ms. Duckett’s unilateral move with the children to Okotoks necessarily made a small reduction in Mr. Duckett’s parenting time. Nevertheless, even for the second year, I conclude that the essence of the arrangement would probably have met the test in the Guidelines for “shared parenting”. Assisting in that finding would be my conclusion that both parties initially intended to implement shared parenting. Impediments to that arrangement arose from Ms.

Duckett’s unilateral change of the children’s residence (although she may well have had legitimate reasons for her move), and occurred over a relatively short period of the children’s lives – ending when Mr. Duckett moved to Okotoks. [ 24 ] My analysis is not directed at making a definitive finding on whether there was shared parenting under

section 9 of the Guidelines, but in the context of considering what effect should be given to the parties’ agreement under

section 15.1(5) of the Divorce Act . In my view, the evidence clearly establishes that the parties intended to implement a shared parenting arrangement with the financial implications that would normally result from a set off under

section 9 of the Guidelines . As part of that arrangement, they settled their property division, and agreed that Ms. Duckett (as the highest income earner) would pay for daycare, and Mr. Duckett would waive his entitlement to child support for his parenting time. Further, from the evidence and the terms of the agreement, I find that the parties recognized the value of Mr. Duckett leaving the labour-intensive, seasonal occupation of landscaping in favour of an educational course which would generate a higher, more secure long-term income stream. [ 25 ] Mr. and Ms. Duckett settled their property issues commendably.

Mr. Duckett has established himself in a career and new residence likely to give the children a higher degree of financial and emotional stability and security in the future. All of this is consistent with what, on the evidence and from the text of the agreement, the parties considered to be in the best interests of their children after separation. Deference should be shown to the views these parents had at the time. Furthermore, on the evidence I am convinced that Mr.

Duckett has proved the wisdom of his commitment to a new career, and his relocation to Okotoks shows his commitment to the non- financial aspects of his parenting responsibilities. [ 26 ] Having regard to

section 15.1(5) of the Divorce Act , I find that the arrangements made by the parties in their agreement have been for the benefit of their children, and to apply the Guidelines without regard to the agreement would be inequitable. In finding this, I have regard as well to the fact that for at least

part if not the entire period in dispute, Mr. Duckett might well be the net beneficiary of child support payments under the Guidelines . Regardless of who might be the net beneficiary, however, there is no evidence on which I can conclude that disregarding the agreement in favour of retroactive Guideline support would be in the best interests of the children. [ 27 ] Therefore, in my view neither party is entitled to whatever retroactive child support might result from a recalculation of support pursuant to the usual Guidelines analysis and calculations, whether under

section 3 or

section 9. It is consistent with the parties’ agreement, however, that new calculations of child support obligations pursuant to the Guidelines begin as soon as reasonably possible after Mr. Duckett completed his education. The evidence establishes that he began employment in his new career in mid-May 2013. Later in this decision, I will address the calculation of child support after that date. IV. Future Parenting

Schedule [ 28 ] I have found that each parent has spent a significant amount of time with the children since separation, such that for at least most of the period there has been shared parenting. Mr. Duckett has now moved to Okotoks, living very close to the residence and school of his children. He seeks increased parenting time. Ms. Duckett now concedes some additional time should be allocated to him. However, the parties cannot agree on how much time each parent should have with the children, and how it should be scheduled [ 29 ] Mr. Duckett seeks shared parenting, preferably “a week/week exchange to reduce the number of necessary exchanges” (from

his brief) or, in the alternative, an additional four “overnights” each month added to the existing schedule. Ms. Duckett opposes shared parenting and any “week on/week off” arrangement, believing that she should continue to be the children’s primary caregiver, that the children are too young for week on/week off shared parenting, and having concerns about Mr. Duckett’s alcohol consumption.

She urges a continuation, with modest adjustments, of the existing schedule. [ 30 ] The authorities and section 16(10) of the Divorce Act emphasize that in most cases, children should have as much contact with each parent as possible. There are many other factors, their weight varying according to the circumstances of each case, relevant to determining the degree and form of such contact. [ 31 ] Both parties have spent significant time with their children, and have demonstrated good parenting abilities.

I cannot find any evidentiary basis for questioning either party’s commitment or ability to provide for all of the physical, emotional, cultural, moral and spiritual aspects of their children’s lives. [ 32 ] Ms. Duckett raised concerns about Mr. Duckett’s use of alcohol. The most probative evidence is his convictions for driving while impaired. However, they are too dated to be of much significance on this application. There is no evidentiary basis for concern that he is intoxicated while caring for the children (if ever). He has answered the concerns raised in the affidavits of Ms. Duckett.

I find no basis in the allegations about alcohol consumption to justify depriving the children of the time they should otherwise spend with each parent. [ 33 ] In considering the best interests of children, stability is always an important factor. Unfortunately, in separated families changes are inevitable. Furthermore, these children have already experienced a number of changes in their young lives: separation, moving to Okotoks, and living with their mother’s new partner and his children. I am also satisfied that Mr.

Duckett’s move to Okotoks will reduce much of the disruption in the children’s lives caused by exchanges between parents. [ 34 ] In determining the amount of time children should spend with each parent, the court should not ignore the conduct of the parties regarding access. Ms. Duckett’s conduct has sometimes demonstrated reluctance to facilitate Mr. Duckett’s parenting time. Her move to Okotoks might be justified because of her parent’s residence there. However, she has given no explanation for doing so without notice to Mr. Duckett, let alone consultation with him.

She has shown little flexibility in accommodating the difficulties her move presented for his time with the children. [ 35 ] In contrast, Mr. Duckett’s conduct demonstrates his commitment as a parent. Despite Ms. Duckett’s move to Okotoks, he persevered in spending as much time as possible with his children. He has purchased a residence at some distance from his place of work and his parents’ home, in order to be close to his children’s environment. Despite Ms. Duckett’s criticisms, I am convinced that Mr.

Duckett has spent as much time in the recreational and school activities of his children as reasonably possible given the distance between their residences. [ 36 ] These children are gifted with two good parents, each of whom has shown commitment and nurturing aptitude. Their relationship with each parent should be fostered as much as possible. Their young age makes it reasonable to implement equal parenting with minimal disruption to their lives. [ 37 ] For these reasons, I conclude that it is in the best interests of the children for them to spend approximately equal time with each of Ms. Duckett and Mr.

Duckett. That will occur through exchanges on Sunday evenings, with alternating weeks at each parent’s home. Likewise, vacation periods and special holidays will be allocated equally. I have been concerned about what arrangement best addresses concerns about stability in the children’s lives; in my view, given the close residence of the parents and the age of the children, a

schedule based on alternating weeks is likely to have increased benefits of regularity and predictability for the children, and therefore is most conducive to stability in their lives. [ 38 ] In my view, it is best for this arrangement to be implemented gradually. Initially, therefore, on each week Mr. Duckett will have the children in his care and control from Wednesday afternoon, commencing at 3:30 p.m.; ending, on alternate weeks, either on Friday at 3:30 p.m., or on Monday, at 7:30 a.m. In December, on weekends spent by the children with Mr.

Duckett, they will remain in his care and control until Tuesday at 7:30 a.m. The children will spend equal time over the Christmas vacation with the parties, and commencing January 2014, will spend their time equally, on an alternating week-by-week basis with each parent. [ 39 ] If the parties agree on a different way to implement the transition towards shared “week on/week off” parenting they are at liberty to modify my transitional

schedule according to their agreement. Likewise, if they agree that it would be best to implement the “week on/week off” shared parenting more quickly, their agreement will govern on that point. [ 40 ]

Section 9 of the Guidelines contemplates determining whether there is a shared parenting arrangement based on parenting time over the course of a year. The arrangement I have ordered will establish a shared parenting arrangement. It is consistent with the intention of the parties in their written agreement, implemented with some imperfections since their separation in June 2011, although my decision is based on what I find to be in the children’s best interests. It is not an enforcement of the agreement. V.

Current Child Support Obligations [ 41 ] During submissions, counsel for each of the parties indicated that if a shared parenting arrangement was implemented, child support should be calculated by setting off the amounts each parent would owe to the other under the Guidelines , with no modifications based upon increased costs of shared custody arrangements or other circumstances (section 9(

b) and (c)). In any event, there is no evidence upon which any other calculation could be made. Therefore, I order that child support be calculated by setting off the amounts each parent would owe to the other according to the applicable tables. [ 42 ] As I said earlier, my decision not to order retroactive child support related to the period from separation through May 2013. Therefore, child support payments based upon shared parenting under

section 9 of the Guidelines will begin effective June 1, 2013.

Sections 3, 15 and 16 (and the definition of “income” in

section 2) of the Guidelines provide that child support payments should typically be based upon each paying parent’s annualized income. [ 43 ] Therefore, taking into account Ms. Duckett’s maternity leave and Mr. Duckett’s anticipated incomes (from information submitted by Mr. Duckett’s counsel), I set the annualized Guidelines incomes at $51,728 for Ms. Duckett and $34,375 for Mr. Duckett. I ask counsel to determine the proper calculations and net amounts owing based on these amounts commencing June 1, 2013.

Paragraph 10 (maintenance enforcement) and 11 (annual exchange of income tax documents) of Form FL-27 from the Alberta Rules of Court shall be incorporated in the order. VI. Incidental Matters [ 44 ] The parties have leave to

schedule a further appearance to address matters arising out of this decision, including costs, if they are unable to agree. Heard on the 3 rd day of October, 2013. Dated at the City of Calgary, Alberta this 25 th day of October, 2013 . G.H. Poelman J.C.Q.B.A. Appearances: Ms. Tera Yates, for the Plaintiff Mr. Patrick G. Leamy, for the Defendant