C.W.T. v K.A.T., 2013 ABQB 678

Court of Queen ’ s Bench of Alberta Citation: C.W.T. v K.A.T., 2013 ABQB 678 Date: 20131118 Docket: 4803 158791 Registry: Edmonton Between: C.W.T. Plaintiff (Applicant) - and - K.A.T. Defendant (Cross-Applicant) _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice D.C.

Read _________________________________________ ______________ Facts: [ 1 ] Two applications were made at the first case management meeting held in respect to this family law case: the Plaintiff father, C.W.T., made an application to vary the total amount of child support he is paying based upon a claim of undue hardship; the Defendant mother, K.A.T., made an application to vary access by the father to the two children. The latter application was dismissed with oral reasons on the date of the hearing. The decision on the former application was reserved.

These reasons deal only with the undue hardship application. [ 2 ] The history of this matter is as follows. The parties married in 2008 after living together for a short time. They have two children, K.T. born July 2000 and J.T. born May 2012. The parties separated in October 2011 when Ms. T. was pregnant with J.T. A

statement of claim for divorce and matrimonial property division was filed by Mr. T. on November 28, 2011. A statement of defence and counterclaim was filed by Ms. T. on November 30, 2011. [ 3 ] Mr. T. has a third child, from a previous relationship. M., age 9, lives half time with Mr. T. in a shared parenting regime. He is with Mr.

T. every second week. [ 4 ] Since these parties separated, a number of court applications have been made with the result that they were ordered into case management. [ 5 ] Issues of child support, access and spousal support were dealt with in an order made by Justice Stevens after a special chambers hearing on February 6, 2013 (“Stevens Order”). Pursuant to this order, Ms. T. was granted primary residence of the two children. Mr. T.’s access was dealt with for three separate time periods – one commencing on the date of the order, a second commencing July 1, 2013, and a third commencing September 1, 2013, when Ms.

T. was slated to end her maternity leave and go back to full time employment as a teacher. Mr. T.’s current access varies on a two week rotation. In week 1, he picks up the children from their day home on Tuesday at 5:30 pm and returns them to the day home on Wednesday at 7:30 am. He picks them up from Ms. T.’s home on Friday at 5:30 pm and returns them at 4 pm on Sunday. In week 2, he again picks them up at the day home on Tuesdays, returning them on Wednesday morning as in week 1 but on the weekend, he picks them up on Friday at 5:30 pm and returns them on Saturday at 6 pm.

Additional orders were made dividing holidays, other special occasions and vacation time. Mr. T. estimates that he has the children in his care 36% of the time under this regime. The percentage was not disputed by Ms. T. [ 6 ] In addition, the Stevens Order set Mr. T.’s income at $104,700, including his income is his car allowance and a 2012 bonus. The order set Ms.

T.’s 2012 income at $52,458, anticipating that her 2013 income would be $33,000 but setting it for s. 7 expenses calculation at $88,396, commencing September 1, 2103 because of her anticipated return to work on that date . [ 7 ] The Stevens Order set s. 3 child support at $1,487 per month commencing February 1, 2013. It set arrears at $539.

Section 7 expenses were ordered divided so that Mr. T. paid 54.22% and Ms. T. paid 45.78%. Arrears in s. 7 expenses were set at $353.49. [ 8 ] Additionally, the Stevens Order ordered Mr. T. to pay $786 per month in spousal support retroactive to September 1, 2012 until April 1, 2013 and then $1570 per month from May 1, 2013 to September 1, 2013. Because the spousal support order was made retroactive, there were immediate arrears and these were set at $3,930. The spousal and child support arrears were ordered to be paid at $400 per month commencing February 1, 2013. [ 9 ] Mr.

T. attempted to obtain a stay of the Stevens Order more than once but his applications were refused. He has now brought this application claiming undue hardship. [ 10 ] On behalf of Ms. T., it was argued that Mr. T. is disabled from bringing this application because of the order of Justice Hillier, dated March 21, 2013 (“Hillier Order”), which order provided that Mr. T. could only make application for a stay once he has paid all of the amounts due and owing pursuant to the February 6, 2013 order, including costs of both the February order and the March order. I concluded that the Hillier Order did not disable Mr.

T. from bringing any applications but only an application for a stay and as the present application is an undue hardship application, it is not caught by the Hillier Order. I therefore permitted the application to proceed. Discussion: [ 11 ] The principles which govern an undue hardship claim are set out in s. 10 of the Child Support Guidelines which provides: 10.

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II.

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable atthe end of that time.

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [12] In Hanmore v Hanmore, 2000 ABCA 57 at para 9, our Court of Appeal described s. 10 as providing a “detailed road map forthe Court to follow in deciding whether guideline amounts should be reduced because of undue hardship” and said an applicant seekingsuch a reduction must satisfy a two stage test: [13] The first stage requires the applicant party to prove specific facts establishing the undue hardship.

S. 10(2) sets out a non-exhaustive list of circumstances that may give rise to such a claim. [14] If undue hardship is established, the applicant must show that his or her household would enjoy a lower standard of livingthan the household of the other parent should child support not be reduced. Arguments of the Parties: [15] In this case, Mr. T. points to three circumstances that he says establish the first part of the test. Firstly, he says he has his twochildren of his relationship with Ms. T., for 36% of the time.

This means that he must have reasonable accommodation for them and mustfeed, house and transport them while they are in his care. Secondly, he points to the fact that he is obliged by court order to pay childsupport and s. 7 expenses for his son M. Lastly, he points to the fact that he was required as a consequence of the Stevens Order to payspousal support. [16] On behalf of Ms. T., it was argued that Mr. T.’s expenses related to parenting of the children of this relationship in his ownhome is not to be taken into account under s. 10(2)(

b) of the Guidelines. That

section contemplates only situations in which parents live along distance apart and an access parent must incur high costs in order to see his or her children. [17] The second basis upon which Mr. T. brings his application is his child support obligations to his older child M. [18] The evidence was that Mr. T. has parented M. since he was 9 months old, sometimes on a full time basis. After a trial in thesummer of 2013, Mr. T. and M.’s mother were ordered into an equal shared parenting regime. M. lives with Mr. T. every other week.However, because M.’s mother earned much less than does Mr.

T., he was ordered to pay $508 per month for s. 3 maintenance to M.’smother. As was pointed out by counsel for Ms. T., this amount will not actually begin to be paid until April 2014 because, in accordancewith the order, it has been set off against a previous over-payment made by Mr. T. to M.’s mother. In addition, Mr. T. must pay $460 permonth for M.’s daycare. M.’s mother is, of course, required to pay her proportionate share, ordered to be $98 per month but she is notactually paying this and so Mr. T. is at the moment paying the entire amount. [19] Ms. T. does not dispute that Mr.

T.’s access costs to M. are a valid consideration pursuant to s.10(2)(

d) of the Guidelines to betaken into account in a claim for undue hardship and does not dispute that he has been ordered to pay these amounts. [20] The third basis upon which Mr. T. claims undue hardship is his legal requirement to pay spousal support to Ms. T. In fact, hisargument was that the arrears should simply be cancelled because he is unable to pay them. He believes the amounts ordered in theStevens Order were based on erroneous information respecting Ms. T.’s needs. In making this argument, however, what he seeks reallyamounts to an appeal of the Stevens Order and no appeal was taken.

I have no jurisdiction to consider an appeal of that order. I can,however, treat the amount he is required to pay on a monthly basis for arrears, being $400 per month as a circumstance to be taken intoconsideration in the undue hardship claim under s, 10(2)(c). [21] The total amount of the spousal support ordered was $14,138, which together with some

section 3 arrears and reimbursementfor an amount owed for medical expenses paid by Ms. T. resulted in a total of $15,030.49 in support arrears ordered pursuant to the Stevens Order. A recent Maintenance EnforcementProgram (“MEP”) statement of account shows $11,318.41 still owing, less his child support payable October 2013 which had not beencredited when the statement was obtained. Both parties agree, that Mr. T. has been current with respect to his s. 3 payments, so all ofthese arrears relate either to spousal support or s. 7 amounts. The Stevens Order was that arrears were payable at $400 per month. Ms.

T.agrees the amount of $400 should be taken into account under s.10(2)(c) . Reasons for Decision: [22] In respect to the claim based upon access costs with K.T. and J.T., I conclude that s. 10(2)(

b) is not restricted only to accesscosts for long distance parents. Although many of the cases which consider this

section do involve situations where parents live asignificant distance from one another and the access parent must incur extensive access costs, this

section is not limited to access costs insuch circumstances. Counsel was unable to point to any case which establishes this limitation and my own research does not establish it. [23] Certainly expenses incurred to travel a long distance can constitute undue hardship. See for example: AC(

D) v DC(S), 1999ABQB 17; Adams v Loov, 1998 ABQB 511; Fontaine v Andal, (SK QB) at para 15; Hutton v Hutton, 2000 BCSC913; Smith v Masellis Smith, 1999 ABQB 767; Wainman v Clairmont, 2004 NSSC 39 at paras 24-25; and Wright v Fulop, 2002 ABQB977 at para 11. However, these cases do not explicitly limit application of the

section to costs incurred because parents reside asignificant distance away from each other. [24] Further in many other cases other access related expenses have been found to justify a finding of undue hardship either along

with or independent from travel expenses. In MWB v ARB , 2013 BCSC 885 the court considered the expenses for travel for the access parent between Vancouver and the Kootenays, but also included the mother’s involvement in destabilizing the father’s finances: see paras 275-278.

In Wainman v Clairmont at paras 24-25 the Court considered the fact that the respondent access parent paid for the cost of transporting the children to sports while exercising access, the fact that she had to upgrade her accommodations to properly house the children during access, and the cost of activities for the children as well as travel costs associated with exercising access.

In Smith v Masellis Smith , 1999 ABQB 767 , Verville, J noted that in addition to travel expenses the access parent had to spend $1,400.00 per month on a rental premises to provide a decent residence for her children while exercising access. At para 42, he said: The facts in this case are that Dr. Masellis' access costs go beyond "the inevitable consequence of dividing limited resources between the two households". This basis alone is justification for the Court to use its discretion and reduce the table amount. The Court may use a standard-of-living test, but it is not obliged to do so.

While some Courts use their discretion to focus on determination of what constitutes "unusually high" access costs and "unusual travel" distance and do not inquire further, other Courts have to gone on to consider the parties' respective standard-of-living. [ 25 ] In A v B , 2010 BCSC 1790 , Dley, J found undue hardship where the father had to pay an access supervisor $320 a month and bear the cost of counseling associated with the access. [ 26 ] The provision speaks of ‘unusually high expenses related to access to a child’.

It does not limit these expenses to travel costs. [ 27 ] I note, further, that s. 9 of the Guidelines, establishes that if a parent exercises a right of access to or has physical custody of a child for at least 40% of the time, the parent may apply for a corresponding reduction in child support payable pursuant to the Guidelines. Mr.

T.’s time with his children does not meet this threshold but as he has them 36% of the time, his access to them comes perilously close to that marker. [ 28 ] As a consequence, his access expenses can be assumed to be higher than those of a parent who exercises only sporadic or weekend access to the children. He must have reasonable accommodation for the children and must cover many of their meals, clothing, transportation and other expenses. [ 29 ] I conclude, therefore, that Mr.

T. has proven that three specific circumstances enable him to meet the first part of the test set out in Hanmore . [ 30 ] The second part of this test requires a comparison of standards of living. [ 31 ] The Childview computer program provides a method for calculating comparisons in standards of living in undue hardship claims. A number of these calculations were provided by the parties and I requested several others from the Family Law Information Centre during the course of the hearing. The parties saw these and had an opportunity to provide further written argument in respect to them.

The calculations varied somewhat because of different input figures. However, in each case the standard of living in Ms. T.’s household was considerably higher than in Mr. T.’s. The ratios varied only slightly but put Ms. T.’s household standard of living in the range of 4.91 to 4.96 and Mr. T.’s at only 2.79 to 2.96. This equates to a considerably lower standard of living in Mr. T.’s household than in Ms. T.’s. [ 32 ] I am aware than even given this finding, I retain a discretion to refuse to reduce the guideline amount. However, I conclude that Mr.

T. has met the test and has shown that his hardship is more than awkward or inconvenient. It is exceptional, excessive and disproportionate in the circumstances. [ 33 ] Although he pays child support, Mr. T. has the care of three children for a considerable amount of his time. He is not able, therefore, to live in a one bedroom apartment or to share accommodation with a roommate. His income includes a car allowance and a once yearly bonus. However, this year the bonus was almost entirely garnisheed to pay arrears in maintenance.

Further, his monthly take home pay is being garnished by MEP at $3,000 per month leaving him with net take home pay of only $3,265 [ 34 ] Further, the garnished amount does not pay the entire amount owing to MEP each month. It is apparently capped in accordance with a policy of MEP not to garnish more than 40% of a payor’s net income each month.

What he actually owes is $2,395 per month (s. 3 support for all three children plus the $400 payment ordered for arrears of spousal support) plus $851 per month for his share of the daycare expense for K.T. and J.T. and a further $362 for his share of after school care for M. as a consequence of the two orders, for a total of $4,008. [ 35 ] Mr. T. claims he is left with $1,300 per month to pay all of his other expenses after he pays his child support and spousal support obligations. By my calculations, the actual amount is somewhere between $1,700 and $1,800 per month but it hardly matters.

His mortgage payment alone is almost $1,500 per month, according to his budget and there is little he can do to reduce his accommodation expense given that he has his three children with him for a considerable time each week. Mr. T. describes the home as a 1,300 square foot bungalow with three bedrooms. It does not appear to be extravagant. Two boys and a girl aged 9, 1, and 3 respectively cannot reasonably be expected to share a bedroom. Nor can they reasonably be expected to sleep on a couch or floor. [ 36 ] Mr. T. says he has gone into debt almost $24,000 in the past year and one can understand why.

He runs a significant deficit each month according to his budget, which is far from extravagant. [ 37 ] I recognize that Mr. T. is not currently paying the $508 per month owed for M. because of previous overpayments to M.’s mother. He will commence paying this amount however, in April 2014. As a consequence, his current situation is slightly less difficult than the numbers above would suggest. In fact, however, because MEP is garnishing $3,000 per month, his monthly income available for all other expenses remains as stated above.

As well, he is, in fact paying all of M.’s day home expense of $460 per month, rather than only his proportionate share because Ms. O., M.’s mother is not contributing the amount she has been ordered to. One assumes, however, that Mr. T. can register the amount he must pay with the MEP and so, in the long run, this problem can be alleviated as he can continue the set off arrangement with the amounts he must pay.

[ 38 ] Ms. T. also suggests that any undue hardship claim should be made against Ms. O. However, under the terms of that order no claim may be made for undue hardship until after February 1, 2014 so that also is not currently an option for Mr. T. [ 39 ] Having considered all of the foregoing, I have concluded that Mr. T. has proven undue hardship. His present situation is untenable. He is unable to pay all of the amounts he has been ordered to pursuant to the Stevens Order and the order obtained in respect to M.

He is not purposely failing to pay all of the amounts owing; he is simply unable to. [ 40 ] Although Ms. T. suggested it, I reject the idea as well that Mr. T. should be forced to liquidate his remaining assets to pay arrears. Firstly, matrimonial property division has not yet occurred and so it is unclear what assets he actually has. Secondly given the deficit he runs each month, any liquidation would provide only a temporary fix. If he continues to accumulate a deficit each month arrears would simply rebuild. [ 41 ] The question is what relief he is entitled to.

Certainly, he cannot be permitted to use this application as a back door means of appealing either order and so any reduction must be temporary. I am also cognizant that K.T. and J.T. should not be made to suffer financially in their mother’s house in order to alleviate suffering in their father’s house. [ 42 ] I have determined that the best way of remedying the situation without causing undue hardship at Ms. T.’s is to try to equalize the standards of living between the two households and, thus permit the children the same standard of living in each household.

At my request, the Family Law Information Centre did a further Childview calculation to determine the amount by which s. 3 child support should be reduced in order to equalize the standards of living in both homes. [ 43 ] My instructions were to do these calculations based upon Mr. T.’s income of $104,700 as determined by the Stevens Order and to use Ms. T.’s now income of $90,796. I further instructed that the program include the actual amounts being paid by Mr. T. for child care for all three children but not to include the amount paid for M.’s s. 3 support until April when it will actually begin to be paid.

The resulting calculation shows that in order to equalize household standards of living now, Mr. T.’s s. 3 payment should be reduced to $250 per month. A copy of this calculation is attached as

Schedule A to this judgment. [ 44 ] Effective December 1, 2013, I direct that s. 3 child support for K.T. and J.T. be reduced to $250 per month. [ 45 ] A further Childview Calculation was obtained to take into account the situation which will exist as of April 1, 2014 when Mr. T. must begin to pay the $508 per month ordered to be paid to M.’s mother and can begin to set off against this amount, Ms. O.’s proportionate share of M.’s daycare expense. This calculation shows that the two households’ standard of living would be equalized if Mr. T. were to pay $70 per month. A copy of this calculation is attached as

Schedule B to this judgment. [ 46 ] Effective April 1, 2014, therefore I direct that s. 3 support for K.T. and J.T. be reduced to $70 per month. [ 47 ] This order is reviewable on the earlier of the following events: if any application is successfully made by Mr. T. to claim undue hardship in respect to the order made for support of M.; when both parties have available and exchange their filed 2013 income tax returns provided that any recalculation would result in Mr. T. paying different child support in respect to this matter; or, on any other change of circumstances. [ 48 ] Costs under Column 1 of

Schedule C are payable by the Respondent to the Applicant unless for special reason, in which case costs may be spoken to if required. Costs are to be paid forthwith but may be set off against arrears owing at MEP. Heard on the 28 th day of October, 2013. Dated at the City of Edmonton, Alberta this 15 th day of November, 2013. D.C. Read J.C.Q.B.A. Appearances:

C.W.T. Self-Represented Litigant Robert M. Curtis, Q.C. McCuaig Desrochers LLP for the Defendant (Cross-Applicant)