Desjardins v. Bouey, 2013 ABQB 714

Court of Queen’s Bench of Alberta Citation: Desjardins v. Bouey, 2013 ABQB 714 Date: 20131209 Docket: FL03 37107 Registry: Edmonton Between: Kourtney Desjardins Plaintiff - and - Daniel Bouey Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Russell Brown _________________________________________ ______________ I. Introduction [ 1 ] The Plaintiff Kourtney Desjardins and the Defendant Daniel Bouey are parents to a daughter, “FB”, who is almost three years old. Mr Bouey seeks an adjustment of his child support under

Section 9 of the Federal Child Support Guidelines , SOR/97-175 (the “ Guidelines ”). He says that, having access to FB for 40% or more of the time, he is entitled under

Section 9 to have his Guideline table amount of child support set off by Ms Desjardins’ Guideline table amount. [ 2 ] Mr Bouey’s application requires me to consider: (1) how the Court ought to determine whether the 40% threshold prescribed by

Section 9 has been met; and

(2) where the 40% threshold is met, what Mr Bouey must as the applicant parent show to support an adjustment. II. Background [ 3 ] On September 5, 2013, I made various orders which included increased parenting time for Mr Bouey with FB as follows: (

a) Every second Wednesday from after work or Noon (whichever is later) to Monday morning drop-off at FB’s daycare; (

b) Every other Wednesday from after work or Noon (whichever is later) until Thursday morning drop-off at FB’s daycare; and (

c) The parties will divide time equally (or as they may otherwise agree) with FB during Christmas week and New Year’s week. [ 4 ] During the hearing, counsel for Mr Bouey asked me to specify that the arrangement I had ordered constituted “shared” parenting for child support purposes under

Section 9 of the Guidelines , on the basis that he now has a right of access to FB for 40% or more of the time. I did not do so, principally because I did not even have the effect of the newly ordered parenting

schedule before me, and it was not obvious whether that 40% threshold was even met. [ 5 ] The parties are now before me again as, given Mr Bouey’s position on an adjustment of child support, they cannot agree on the form of order. III. Short Answer [ 6 ] Mr Bouey is not entitled to an adjustment from Guildeline level child support. He has not proven that he has crossed the 40% threshold. And, even were he to have met the 40% threshold, he has not put before the Court a record supporting an adjustment based upon the factors listed in

Section 9 . IV. Analysis

Section 9 of the Guidelines [ 7 ]

Section 9 of the Guidelines permits the Court to deviate from the normally applicable Guideline level of child support where the parent “exercises [access] to, or has physical custody of, a child for not less than 40% of the time over the course of a year.” [ 8 ] More specifically,

Section 9 of the Guidelines provides: Shared custody 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 9 ] There are two important observations to be made about

Section 9 . [ 10 ] First,

Section 9 does not automatically entitle Mr Bouey to a set off between each of his and Ms Desjardins’ table child support amounts where he crosses the 40% threshold.

Section 9 speaks of an adjustment, which may or may not entail a set off. I will discuss below the considerations that inform whether a simple set off is appropriate. My point here is that, while setting off table amounts of child support is one kind of adjustment, the record before the Court may support a different kind of adjustment. [ 11 ] Secondly, where Mr Bouey crosses the 40% threshold, the record before the Court may not support any adjustment at all. This is plain on the face of

Section 9. The Court, in deciding the appropriate level of child support where a spouse meets the 40% threshold, must take account of the Guideline table amounts, the increased costs of shared custody arrangements, and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 12 ] In short, for Mr Bouey to secure an adjustment of his child support, he must – in addition to proving that he has met the 40% threshold – put evidence before the Court relating to the considerations mandated by

Section 9 of the Guidelines . [ 13 ] And yet, it appears to be widely assumed among family litigants that meeting the 40% threshold automatically entitles the payor parent to an adjustment of child support. While unfortunate, it therefore appears necessary to reiterate the law on adjustments

under

Section 9 of the Guidelines, the analytical steps which litigants should undertake (and should expect the Court to undertake) whenthey seek to deviate from Guideline level child support, and the evidence necessary to support such a deviation. The 40% Threshold [14] The burden is on Mr Bouey as the payor parent who seeks an adjustment of child support to demonstrate that he reaches the40% threshold prescribed by

Section 9. This means the Court should start with the presumption that the primary parent (here, MsDesjardins) has access to and physical custody of FB all of the time. (Evans v Gravely (2001), (ON SC), 14 RFL(5th) 74 (ONSC) at para 15.) Mr Bouey, being the parent asserting that he has access to or has physical custody of FB 40% of the time ormore must demonstrate that he does so. [15] We have little appellate guidance to assist litigants on how to calculate time for the purposes of the 40% threshold containedin

Section 9 of the Guidelines, and none from the Supreme Court of Canada. Our Court of Appeal has made clear, however, that itinvolves a calculation. (LC v ROC, 2007 ABCA 158). “Deeming” that the 40% threshold is met is therefore not acceptable practice. “Forthe purposes of calculating child support, the percentage allocation of custody time must conform to the actual evidence on this point”. Inother words, the 40% threshold is a bright line.

To view it as otherwise, said the Court of Appeal (at para 11), “would permit a court tocircumvent the threshold set by Parliament.” [16] How, then, is the calculation to be done? [17] In Kolada v Kolada, 1999 ABQB 409, my colleague Veit J held that the appropriate way to calculate the percentage of time achild is in the care of each of its parents is to calculate the total number of hours that the child spends in the care of, or in theresponsibility of, each parent. She specifically rejected determining the percentage by calculating the number of days.

This would lead toan unfair result, she observed, where (as here) a child spend parts of some days with each parent. That unfairness might be addressed bypermitting both parents to credit themselves with a whole day where each of them spend part of a day with a child, but this would notgive the Court as accurate a picture of time spent in the care or responsibility of each parent. Moreover, it would inevitably present askewed calculation, since it would result in a total number of days per year greater than 365 or 366.

It is, as Veit J concluded (at para 17),“simpler, clearer and more fair to account for the time spent by the children according to the number of hours they are … within aparent’s responsibility.” [18] Two points flow from this. First, we count hours, not days. Secondly, exercising “a right of access to”, or having “physicalcustody” of a child, for the purposes of

Section 9 of the Guidelines, means having the child in a parent’s care or (where the child is not ineither parent’s presence at any given time) having responsibility for the child. (For example, while neither parent would usually be atschool or daycare with the child, one of the parents might be responsible for the child if he or she needs parental care during school anddaycare hours. I will discuss this further below.) [19] Justice Veit’s decision in Kolada was described by Johnstone J in Low v Robinson, 2000 ABQB 60 at para 60 as stating “themethod of calculation of access time adopted in Alberta”.

In that case, she observed that the applicant parent had sought “significantlyincreased hours of access with little responsibility during their waking hours”. See also Lavoie v Wills, 2000 ABQB 1014 at para 119(Rooke J, as he then was); and Chase v Chase, 2003 ABQB 1057 at para 15 (Veit J). [20] I agree with Veit J’s method of calculation, because it is consistent with the purposes of child support.

Child support is basedon the idea that a child should benefit from both parents’ ability to support him or her in the same way as the child would benefit werethe parents still together, in accordance with the parents’ relative abilities to contribute to that support. This is why child support is thechild’s entitlement, and not the parent’s. It is designed to benefit the child by assisting the recipient parent in caring for the child, and inundertaking responsibility for the child. It is not designed to assist the recipient parent merely to spend time with the child.

Consequently,if a payor parent spends more time with the child without providing care or undertaking responsibility for the child, the child must stilllook to the recipient parent to provide that care and responsibility.

As Bastarache J said for the majority at the Supreme Court of Canadain Contino v Leonelli-Contino, 2005 SCC 63, [2005] 3 SCR 217 at 225 (Contino), “[m]ore time spent with a child may not involveincreased spending or significant savings for the other parent.” Inasmuch, however, as the payor parent spends more time actually caringand undertaking responsibility for the child, the child’s needs to be met by the recipient parent are, at least in theory (although some ofthe recipient parent’s costs may be fixed), correspondingly diminished (along with recipient parent’s need for child support). [21] A reference point of care and responsibility helps the Court fairly account not only for parenting time with a child, but also forparenting time away from a child.

Meaning, the time during which a parent is responsible for a child can include time in which thatparent and the child are not in each other’s physical presence. I referred earlier to the example of school and daycare. Specifically, acourt considering an adjustment of child support under

Section 9 of the Guidelines will want to know who, as between the parents, isresponsible for the child during school or day care. If the child is ill or injured while under the supervision of a teacher, a daycare workeror any other third party and needs parental care, which parent will be expected to respond? [22] Similarly, a focus upon care and responsibility helps the Court fairly account for the quality of time spent by each parent withthe child. Is a substantial portion of one parent’s time with the child consumed by holidays and vacations?

Or do the parents substantiallyshare the hard, quotidian work (and often drudgery) of preparing meals, cleaning, helping with homework, overseeing piano practice,getting the child to taekwondo or rugby practice, resolving disputes and enforcing expectations? (Dennett v. Dennett (1998), (AB KB), 61 Alta LR (3d) 245 at para. 12(f) (QB, Romaine J.)

Section 9, after all, refers to a parent who “exercises aright of access”. That parental right, properly understood, imports parental responsibilities. A parent who “exercises a right of access”therefore demonstrates that he or she is doing so by assuming and discharging those responsibilities. [23] While not disputing the suitability of focussing upon parental caring and responsibility (as opposed to mere parenting time),the Manitoba Court of Appeal in Mehling v Mehling, 2008 MBCA 66 at para 42 rejected an hourly calculation of time as an instance of a

“minute-by-minute” calculation. While it expressly refrained from ruling out a calculation on the basis of hours, it considered that “an assessment of the time that a parent is with, or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting.” [ 24 ] I find myself in respectful disagreement with the Manitoba Court of Appeal. To reiterate, I accept that the assessment of time should account for the time that a parent is responsible for the children (as Veit J held in Kolada ).

That reference point, however – of actual care and responsibility, rather than “Dad’s time” and “Mom’s time” – does not preclude an hourly calculation. [ 25 ] Let me offer this example from the parenting arrangement I ordered in respect of FB to show why an hourly calculation – and not, for example, a daily calculation – is more fair.

In circumstances where a child is dropped off at school or (as here) at day care by one parent (let’s say “Dad”), and picked up from school or day care by the other parent (“Mom”), a daily calculation might be unfair and unreflective of the allocation of true parental caring and responsibility between the parties. Depending upon the child’s age, Dad may well have made an important contribution in preparing the child for her day, including waking her, ensuring that he or she is appropriately washed and dressed, and preparing breakfast and perhaps lunch.

When the child reaches school age, Dad may have also had to help her with last-minute issues like locating homework and seeing to her on-time departure for and arrival at school. Should that time not be recognized in calculating time for the purposes of

Section 9 ? I think it should.

Yet, a daily-based calculation in favour of Mom for that day would undervalue Dad’s important parenting time that morning. [ 26 ] It is, again with respect, therefore insufficient to support a daily (or weekly) calculation in opposition to an hourly calculation by saying (as the Manitoba Court of Appeal said in Mehling at para 42 ) that “an assessment of time that a parent is with, or responsible for the children and their needs … [is] a more realistic approach.” I recognize that there is something unseemly about parties getting out their stopwatches, and it is hard not to conclude that the purpose of child support may be lost upon parents who engage in minute-by- minute calculations.

The Court cannot, however, ignore that many successful parenting arrangements entail split days, during which each parent is truly responsible for a child for a part – often an important part – of a single day. This is not to detract from the concern that the calculation should account not merely for time spent, but for time caring and being responsible for a child.

Rather, it is to say that this concern is not served by diminishing the significance of either parent’s time spent in the enterprise of truly caring and being responsible for the child. [ 27 ] In other words, the quantitative determination of whether the 40% threshold is met also entails a qualitative evaluation. The Court must look to and calculate the allocation of time spent caring and undertaking responsibility, and not merely at parenting time as ordered by the Court or agreed upon by the parties.

That understood, it remains open to the Court to examine each parent’s time spent caring and being responsible for a child on an hourly basis (a point which was conceded in Mehling at para 42 ). Indeed, it is – for the reasons stated by Veit J in Kolada – fairer to do so. Done this way, the arithmetic calculation that our Court of Appeal has affirmed is required by

Section 9 of the Guidelines does not preclude an emphasis on the functions allocated within a shared parenting regime. [ 28 ] Has Mr Bouey met his burden of proving that he has crossed the 40% threshold in respect of FB? On the blended qualitative and quantitative analysis contemplated by Kolada , he has not. [ 29 ] Even on a purely quantitative basis, Mr Bouey does not meet the 40% threshold, for three reasons. [ 30 ] First, he does not count time properly.

He says (through his counsel’s submissions, and not through an affidavit) that FB was in his care in October 2013 for 240 hours, and in Ms Desjardins’ care for 278 hours. He does not account for the hours FB spent in day care or with her maternal grandmother. As I have explained, this is not the correct way to calculate parenting time for the purposes of

Section 9 of the Guidelines . Merely because FB is in day care or with her grandmother does not mean that neither parent is responsible for her during that time. I note that Mr Bouey does not, for example, depose that he would be the parent responsible for offering parental care to FB were such care to become necessary in the course of her time at daycare or with her grandmother. [ 31 ] In fairness to Mr Bouey, Ms Desjardins also counts time improperly.

She (again, through her counsel’s submissions, and not through an affidavit) says that, in October 2013, FB was in her “direct care” for 367 hours, and in Mr Bouey’s “direct care” for 237 hours, with the corresponding percentages being 49% and 31%, respectively. Her estimate as to Mr Bouey’s time is similar to his estimate. Her estimate as to her own time diverges from Mr Bouey’s, because she appears to claim responsibility for FB during the time she spends with her grandmother.

This ought to have been explicitly set out in an affidavit, rather than having been left to be implied from a chart appended to written submissions. More to the point, however, Ms Desjardins does not assign responsibility between the parents for the remaining 20% of the time, presumably because this represents FB’s time at day care. Again, this is not the correct way to calculate parenting time for the purposes of

Section 9 (unless neither parent truly is responsible for seeing to FB’s parenting needs should a problem arise during her time at day care). [ 32 ] The second reason Mr Bouey has not demonstrated having met the 40% threshold is that he relies solely on the time he spent with FB in October 2013. That is insufficient.

Section 9 requires Mr Bouey to show that he has a right of access to or physical custody of FB for at least 40% “of the time over the course of a year ”. (Emphasis added.) The present parenting arrangement is, by the terms of my earlier order, reviewable without either party having to show a material change in circumstance in June 2014, which means that the current arrangement may not be in place for an entire year. [ 33 ] Third, were I to assume that the present parenting arrangement were to remain in place for “the course of a year”, and were I to make certain generous quantitative and qualitative assumptions, specifically: (1) that Mr Bouey consistently exercises access to FB every second Wednesday from 3 pm to Monday at 7 am, and (during alternating weeks) from 3 pm Wednesday to 7 am Thursday, and for an entire week during Christmas/New Year’s; and (2) that he is the person caring and responsible for FB throughout, including during her daycare hours and her time with her grandmother, Mr Bouey cannot demonstrate having met the 40% threshold.

His regular parenting time over the year would include 26 weeks of 112 hour access (2,912 hours) and 26 weeks of 16 hour access (416 hours) for a total of 3,328 hours. This is 176 hours short of 40% of the

hours (3,504) in a year. Even if Mr Bouey were to have access to FB for an entire week during Christmas, that would not elevate his time with FB to the 40% threshold. [ 34 ] I reiterate that the foregoing assumes something that Mr Bouey did not demonstrate – specifically, that he is the parent responsible for FB during her time at daycare and with her grandmother during “his” access days. Considerations under

Section 9 [ 35 ] As Mr Bouey has not been able to demonstrate having met the 40% threshold, I do not need to consider whether he is entitled to an adjustment of child support under the Guidelines . That said, in light of his assumption (which, I emphasize, is unfortunately shared by many similarly situated litigants) that crossing the 40% automatically entitles him to an adjustment of child support, I add the following observations about considerations that guide the Court where a parent is able to demonstrate to the Court that he or she meets the 40% threshold, properly calculated, and seeks an adjustment of child support. [ 36 ] Although I have already canvassed the effect of

Section 9 , it is worth reiterating here that it does not entitle a parent to an automatic adjustment of child support obligations where he or she meets the 40% threshold. What

Section 9 entitles him or her to is a determination of child support obligations in accordance with the three statutory factors, specifically: (

a) The amounts set out in the Guideline Table for each spouse; (

b) The increased costs, if any, of the shared custody arrangement, and (

c) The conditions, means, needs and other circumstances of the child, and of each parent. ( Conway v Conway , 2011 ABCA 137 at para 5 ). [ 37 ] It follows that it is possible that a court, having evaluated the evidence and applied those

Section 9 factors, might leave child support obligations unchanged from Guidelines levels. ( Schick v Schick , 2008 ABCA 196 at para 18 ). No presumptions, either of maintaining or of deviating from Guideline levels, operate under

Section 9 . [ 38 ] It also follows that insufficient evidence relating to the

Section 9 factors will preclude any adjustment of child support from Guideline levels. Our Court of Appeal in Conway stressed the importance of having an adequate record to conduct the analysis under those factors. Citing the majority decision of the Supreme Court in Contino , it said (at para 4 ) that “common sense assumptions” are not sufficient. The Court requires evidence about the increased costs of sharing custody and about the conditions, means, needs and other circumstances of the child and of each parent to support an adjustment of child support under

Section 9. [ 39 ] To be clear, both parents must provide such evidence or risk an adverse result. Both the payor parent and the recipient parent must each put their best foot forward in respect of the

Section 9 factors. [ 40 ] Had, therefore, Mr Bouey managed to prove that he met the 40% threshold as it is properly determined I would still have refused to adjust child support, as there is virtually no evidence before me about his increased costs or about the conditions, means, needs and other circumstances of FB. [ 41 ] For example, in considering the amounts set out in the Guideline Table for each spouse (the consideration prescribed in

Section 9 (a)), the Supreme Court said in Contino (at paras 41 and 49 ) that a simple set-off between each parent’s Table amounts is an appropriate starting point. (See also Weaver v Cahill , 2011 ABCA 290 at para 7 ). The set-off is not, however, the automatic order, although Mr Bouey deposes that it is: “[s]hould I be successful in obtaining shared parenting of FB, there would be a set off amount regarding

section 3 child support ....” Mr Bouey assumes too much. The set off is, as the Supreme Court states, only a starting point. The Court must also examine the recipient parent’s continuing ability to meet the child’s financial needs, bearing in mind that many costs are fixed. If the evidence shows that both parents are making contributions to those needs, the Court is then left having to determine whether the adjustment to the set-off amount being sought corresponds to each party’s respective contribution to the expenses associated with the child.

For that, the Court must have before it evidence verifying how each respective contribution compares to the applicable Table amount. [ 42 ] No such evidence was put before me. [ 43 ] Further, and even where the payor parent’s contribution comes close to the applicable Table amount, the Court must have evidence before it regarding both parents’ financial situation and about the standard of living in each of the parents’ respective households.

This is because, if a straight set-off would lead to a substantial difference in the standard of living enjoyed by the child as between the parents’ respective homes, it is open to the Court to modify the set-off amount. As the majority said in Contino (at para 51 ), one of the overall objectives of the Guidelines is to avoid (so far as possible) great disparities between households.

Relevant evidence here would also include details regarding any contribution to the household by either parent’s new partner or spouse. (See Sahaluk v Alberta , 2013 ABQB 618 at para. 15 .) [ 44 ] The only evidence put before me on this point is Mr Bouey’s sworn statement, made in support his original application for increased access, that “[w]e both have proper homes for FB and all that FB would require from loving parents.” That is insufficient. [ 45 ] In considering whether the payor parent is now burdened with increased costs as a result of the shared custody arrangement (the consideration prescribed in

Section 9(b)), the Court must have before it the budgets and, where possible, evidence of actual expenditures of each parent so that increased costs of shared custody can be globally assessed and apportioned in accordance with each parent’s income.

[ 46 ] No such evidence was put before me. [ 47 ] Finally, in considering the conditions, means, needs and other circumstances of the child, and of each parent (as is required by

Section 9 (c)), the Court must again have evidence before it regarding the standard of living enjoyed by the child in each household, and the financial situation of each parent (which, again, would require accounting for any contribution to each parent’s financial situation by a new partner or spouse). This is because the Court must assess each parent’s ability to maintain the appropriate standard of living in the circumstances.

At a bare minimum, parties must provide financial statements or child expense budgets must be provided. ( Wilkie v Wilkie , 2009 SKQB 119 ). [ 48 ] While some financial information was put before the Court for the purposes of the earlier application, no evidence was put before me regarding the standard of living enjoyed by the child in each household. V. Conclusion [ 49 ] It follows that Mr Bouey is not entitled to an adjustment of child support. He does not meet the 40% threshold, properly calculated.

And, even if he had met it, he has not provided evidence allowing the Court to evaluate, in light of the factors listed in

Section 9 of the Guidelines , whether a deviation from Guideline level child support is appropriate. [ 50 ] If the parties cannot agree on costs, they may be spoken to within 60 days of these reasons. Heard on November 27, 2013. Dated at Edmonton, Alberta on December 9, 2013 Russell Brown J.C.Q.B.A. Appearances: Jerry D Kiriak Kiriak Law Office for the Plaintiff Melanie J Bowbell Pollock & Pollock for the Defendant