Omar v Ali, 2013 ABQB 703

Court of Queen ’ s Bench of Alberta Citation: Omar v Ali, 2013 ABQB 703 Date: 20131129 Docket: FL01 16073 Registry: Calgary Between: Mustafa Omar Plaintiff(Respondent) - and - Hapon Ali Defendant(Applicant) _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _________________________________________ ______________ [ 1 ] Mr. Omar asks the court for shared parenting of the three children of the relationship, with set-off of child support, and for an imputation of income to the mother. For her part, Ms.

Ali asks for ongoing child support according to the Guidelines, for retroactive support from August 1, 2013, and for an imputation of the father’s income at $120,000.00. [ 2 ] There are no reasons why the maximum contact principle should not be applied here; therefore, the parents shall equally share the parenting of their children in a week on, week off regime. [ 3 ] Because the children have lived in each of the homes currently occupied by each of the parents, and because the lifestyles of the parents appear to be similar, and because the parent’s incomes do not diverge dramatically, a straight set-off is the appropriate child support payment regime here.

The father’s set-off payment of child support to the mother will commence with the December 1, 2013 child support payment. [ 4 ] For the period September 1 – November 1, 2013, on a pre-disclosure basis, the father will pay support to the mother, according to the Guidelines, and based on a projected yearly income calculated from the father’s last 9 months of employment.

Cases and authority cited [ 5 ] By the court: Collin v Doyle [1999] ABQB 101; L.D.C. v J.S. 2001 ABQB 16 ; Nuttall v Rea 2005 ABQB 151 . 1. Background [ 6 ] Mr. Omar and Ms. Ali are the parents of 3 young children, the two older of whom are in school; the youngest is 2 ½ and the eldest is nearly 6. The parents separated when Ms. Ali obtained a without notice emergency protection order in the Spring of 2013; one component of that order was that Ms. Ali was granted exclusive possession of the matrimonial home, although some conditions were attached to that possession. Ms.

Ali, together with the children, left the matrimonial home on September 3, 2013; they are currently living with Ms. Ali’s mother. As a result of an interlocutory, without prejudice, order, Mr. Omar parents his children 3 out of 4 weekends every month. The parents live in separate households, but in the same general neighbourhood, i.e. an approximately 5 minute drive from one another. Each of the parents lives in a house where their own mother also resides. There is no evidence that Ms. Ali has any obligation to pay for room and board in her mother’s home. [ 7 ] Both parents are employed. Mr.

Omar is a medium haul truck driver, employed by an arm’s length established transportation company, on routes that often required that he be away from home for one night. Ms. Ali also works for a transportation company; although she repeatedly stated that her employment was 12 to 14 hours a day 7 days a week, the totality of the evidence establishes that these statements were mere hyperbole.

Historically, each of the parents has relied on their own parent, the children’s grandparent, to provide child care while the parent was unable to do so because of work-related commitments.; for the first 5 and ½ years of the children’s lives, that care was provided by the paternal grandmother and during the last half year that care has been provided by the maternal grandmother. [ 8 ] Until the date of the hearing, Ms. Ali has refused to provide full financial disclosure, including her bank account statements.

She indicates, however, that she has been saving approximately $1,000.00 per month for the children’s education. [ 9 ] Ms. Ali alleges fraud by Mr. Omar in dealings with her as a result of which she signed away her interest in the title to the home in which the parties and their children lived and in which Mr. Omar now resides with his mother who is a joint owner with him of the property. 2.

Parenting [ 10 ] Even though the parties are not married, the maximum contact principle articulated by Parliament in the Divorce Ac,t being a principle of general application with respect to the best interests of children, applies to them as unmarried parents. That principle finds its clearest application in a shared parenting regime. The Supreme Court has reminded us that the principle is mandatory but not absolute and that it cannot apply where it would not be in the children’s best interests. [ 11 ] Ms.

Ali argues that she has been the primary parent of these children and should therefore continue in that role and that shared parenting is not in the best interest of these children because: - She does not drive and she is therefore poorly placed to transport the children to Mr. Omar . - There should be stability in their lives. -The youngest child is still very young. [ 12 ] It is not clear on the materials before me that Ms. Ali was in fact the primary parent of these children: given her own evidence about her work schedule, it is hard to imagine how she could have had any time for active, primary, parenting.

In any event, however, if it ever was a parenting principle that the primary parent should continue to parent the children, it is no longer an operating principle in Canadian courts; that principle has been replaced by the best interests of the children principle. [ 13 ] The mother says that she does not drive. Fortunately, that is no bar to shared parenting in the circumstances here where the father does drive, and where the parents live very close to one another.

Until further order of the court, the father will be responsible for all of the parenting transfer exchanges. [ 14 ] The mother says that there should be stability in the lives of the children. Fortunately, the need for stability is no bar to shared parenting in the circumstances here where it is clear from the evidence that it is the paternal and maternal grandparents who have really provided the bedrock of child care for these children.

The households of each of the parents appears from the evidence and submissions on this application to be very similar; the parents and their parents appear to have the same faith, the same cultural values, the same aspirations for their children. There is no reason to doubt the willingness and ability of the father to provide responsible care for the children which will be very similar to the care provided by the mother.

Indeed, the evidence of the father’s contact with the oldest child’s school in the year prior to the parties’ separation in the Spring of 2013 clearly establishes that the father was very involved with his children, and that, at least for school matters, he appeared to be the “point person”, or the parent whom the school would contact when they needed forms taken care of, etc. The mother states that she has never denied the father access; while this is disputed, it is also largely irrelevant. This father wants regular, normal, parenting of his children; he does not want to be just a week-end Dad.

The existing order, which gives him access to his children on 3 weekends out of 4 was made on an interlocutory basis, and presumably at least in part to compensate for one month during which he had no access whatever with his children. In any event, however, it seems obvious that children will establish a healthier relationship with a parent in circumstances which are not artificial; parenting only on the weekends is artificial since life is composed of weekday living as well as of weekend living.

Weekday bedtimes, weekday homework, weekday chores are all part of normal living and the children have a right to experience that normal living with their father. [ 15 ] The mother says that the youngest child is still very young. While that it is true, fortunately, the fact that the families live very close to one another will allow mid-week visits while the children are living in the household of the other parent.

[ 16 ] In the result, the children will live with each parent in a week-on, week-off regime, beginning Sunday, December 8 at 4 p.m. when the father will pick the children up from the mother’s home. He will deliver the children to the mother’s home at 4 p.m. on Sunday, December 15, and the weeks will alternate in that fashion until further order of the court or until the parents agree to any variation.

While the children are in the care of the father, the mother will have the opportunity of visiting with them on Tuesday and Thursday evenings from 7 to 8 p.m. and a similar right is extended to the father while the children are in the mother’s care. 3. Ongoing child support [ 17 ] A 50/50 shared parenting situation does not inevitably lead to a set-off of child support obligations.

Section 9 of the Federal Child Support Guidelines states that where one parent has the physical custody of children for more than 40% of the time, the child support arrangements will be determined not only by taking into account the guideline incomes for each of the parents, but also by assessing both the increased costs of shared custody arrangements; and the conditions, means, needs and other circumstances of each parent.

The case law cited above also makes it clear that a straight set-off is not always the final answer in fixing child support obligations in a shared parenting situation . [ 18 ] Here, a shared parenting regime will not increase costs for the parents: the children have lived in the homes of each of the parents, so each household is well equipped to receive the children. [ 19 ] Here also, the circumstances of the parents appear to be remarkably similar: each of the parents has historically worked long hours, and each of the parents has in place reliable alternate child care arrangements.

Nor does there appear to be a very great discrepancy between their disposable incomes: although the father earns more, the mother has fewer expenses. [ 20 ] In those circumstances, commencing December 1, 2013, and continuing until further order of the court, the father will make straight set-off child support payments. 4. Income for child support purposes [ 21 ] This is a pre-disclosure, without prejudice, order. The father’s income for child support calculation purposes will be his gross annual income as projected and calculated from his last 9 months of pay stubs.

It is not appropriate, at this stage, to impute to him the income which he earned in 2012 and which he maintains was a spike because of extra overtime worked to obtain financing for the matrimonial home. When the father’s financial disclosure is complete, the court will be able to determine if his 2012 gross income is indeed a fair representation of his average income over the last three years. [ 22 ] The mother’s gross annual income is imputed at $50,000.00. The mother appears not yet to have recognized that when she makes a claim for child support, she is obligated to provide financial disclosure.

Once her disclosure is complete, the court can, of course, revisit the determination of her income. 5. Retroactive child support [ 23 ] While the mother was living in the matrimonial home, the father was paying all of the expenses for that home; in addition, he was making some payments that were directly connected to the children, such as school fees, etc. [ 24 ] Once the mother left the matrimonial home with the children, the father should have commenced paying child support.

Therefore, for the period September 1, 2013 to November 1, 2013, the father will pay to the mother child support based on the Federal Child Support Guidelines and his income as calculated according to the directions given above. That total amount of retroactive support will be added, in three equal monthly payments, to the set-off child support payment which the father will make commencing on December 1, 2013. 6. Costs [ 25 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 13 th day of November, 2013.

Dated at the City of Calgary, Alberta this 29 th day of November, 2013.

J.B. Veit J.C.Q.B.A. Appearances: Nicholas Urie, Merchant Law Group LLP for the Applicant (Ms. Ali) Lynsey Mincher, Foster LLP for the Respondent (Mr. Omar)