GG v JTG, 2013 ABQB 726

Court of Queen ’ s Bench of Alberta Citation: GG v JTG, 2013 ABQB 726 Date: 20131223 Docket: 4801 101591 Registry: Calgary Between: GG Plaintiff - and - JTG Defendant Restriction on Publication Editorial Ban – On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. Corrected judgment: A corrigendum was issued on December 23, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _________________________________________ ______________

[1] The Applicant, in his role as litigation representative for the children of the marriage, seeks to have the children involved inchild support proceedings in the divorce action involving their parents, GG (“Mother") and JTG (“Father"). [2] The Father and the Mother were married on September 1, 1990. They separated on or about December 31, 1998. The divorcejudgment became effective on January 29, 2001.

They have two children, CG, aged 18 years and AG, aged 16 years (together, the“Children”). [3] On January 24, 2001, the Father and the Mother entered into 3 separate agreements, being a parenting agreement, a divorce,support, and property agreement and a child support agreement ("CSA"). Since the Father and Mother executed the CSA, they abided byits terms until 2011. In 2011, the Father reduced the payment of support that he was paying pursuant to the CSA. In November of 2012,he further reduced the support he was paying. The Father made both these reductions without consulting with the Mother.

As a result,the Mother made an application to enforce the terms of the CSA. An arbitrator was appointed to determine this issue. The arbitratorissued an interim award on December 13, 2012, reinstating the amount payable pursuant to the CSA. The arbitrator issued a secondinterim award for lump sum support. The Father has appealed the arbitrator’s second interim award. [4] The Father set-off costs that the Children understood were the Mother’s obligation under the CSA, but were paid by theFather. That set-off continued until a certain amount was received.

After that time, the Father segregated further child support funds forthe benefit of the Children. The Father also has been directly paying the Children additional support. [5] The CSA states that child support payments under the CSA are to end when the youngest of the Children turns 18 years oldin March of 2015. The Children are aware of the amount of the child support that the Father pays to the Mother and believe the amountof child support paid exceeds the actual costs that the Mother incurs on their behalf or for their benefit. The amounts are substantial.

Thesegregation and management of any surplus funds is a concern to the Children, particularly considering their Father’s child supportobligations under the CSA end when AG turns 18 years old in March 2015. [6] The Mother argues that the CSA was the product of extensive negotiations between the Father and the Mother. They wereboth represented by senior family law practitioners during the time they negotiated the terms of the CSA.

The parties agreed that theCSA and the other documents they executed at that time would meet their needs and those of the Children. [7] The Mother further argues that her use of the funds that the Father pays to her as child support is within her rights pursuant tothe CSA, and the Children do not indicate or assert that their needs are not being met. She further argues that she has no obligation toprovide an accounting of the funds that she receives. [8] The Mother maintains that she is not seeking to vary the CSA. In fact, in her litigation with the Father, she is simply seekingto enforce it.

The CSA itself says that an application to vary or strike out any of its terms would carry with it a penalty for payment ofsolicitor/client costs, as well as payment of security for costs in the amount of $100,000 plus 6% interest calculated from the date of theCSA.

The Mother argues that the Children's application would amount to an application to vary the CSA. [9] The Applicant argues that the Children have a proprietary right in the child support that the Father pays to the Mother, andcites Richardson v Richardson, (SCC), [1987] 1 SCR 857 [Richardson] and Hunt v Smolis-Hunt, 2001 ABCA 229,[2001] 11 W.W.R. 233 [Hunt] in support of his assertion.

He concedes that if this Court were to find that the Children do not have aproprietary right in the child support, they would have no basis on which to seek intervenor status in the litigation involving their parents. [10] It is worthwhile for this Court to transpose the quotations from those cases on which the Children rely. In Richardson at para14, the Supreme Court of Canada said: Child maintenance, like access, is the right of the child ... For this reason, a spouse cannot barter away his or her child's right to supportin a settlement agreement.

The court is always free to intervene and determine the appropriate level of support for the child ... Further,because it is the child's right, the fact that child support will indirectly benefit the spouse cannot decrease the quantum awarded to thechild. [Citations excluded, emphasis added]. [11] In Hunt at paras 17 and 18, the Alberta Court of Appeal said: In our opinion, the provisions of the Divorce Act make clear that parents have a joint responsibility to maintain their children. TheSupport Guidelines evidence that the obligation extends from the date of separation. In MacMinn v.

MacMinn, supra, this Court(although dealing with a variation order) described the financial obligation of a parent to support his or her child, specifically in thecontext of retroactive support (at p. 266): Both parents of a child have financial obligations to that child. That obligation arises out of the common law, equity and statute; it is anobligation which exists from the time a child is born. When parents separate, the obligation continues. Thus, it exists irrespective ofwhether an action has been started by the custodial parent against the non-custodial parent to enforce the obligation: Paras v.

Paras(1970), (ON CA), 2 R.F.L. 328 (Ont. C.A.); Mannett v. Mannett (1992), (NS SC), 111 N.S.R. (2d)327, 303 A.P.R. 327 (T.D.). Certainly, from the time an action has commenced, the custodial parent has evinced an intention to pursuehis or her claim against the non-custodial parent. The fact that it may take one or two years to bring an action to trial in no waydiminishes the obligation of the non-custodial parent for the support of his or her child. A joint responsibility to contribute confers a right. That right is the property of the children of the marriage: Richardson v.

Richardson, (SCC), [1987] 1 S.C.R. 857 (S.C.C.). [Emphasis added]. [12] More recently, in S(DB) v G(SR), 2006 SCC 37, 61 Alta LR (4th) 1, the Supreme Court of Canada said at para 54: In

summary, then, parents have an obligation to support their children in a way that is commensurate with their income. This parental

obligation, like the children's concomitant right to support, exists independent of any statute or court order. [Emphasis added]. [13] From these quotations, it is clear that the “right” that belongs to the child is the right to have their parents contributefinancially to their support. The right is the “property” to which Hunt refers. It is incorporeal.

The child does not have a proprietary rightin corporeal property such as money, that makes up the child support. [14] This is reinforced when one analyzes the nature of that “right.” In JD Payne & MA Payne, Canadian Family Law, 2d ed(Toronto, Ont: Irwin Law, 2006) at 263, the authors said: Courts will not hesitate to order child support where a spousal agreement or settlement prejudicially affects the financial welfare ofchildren.

Child support, like access, is the right of the child and neither parent has the authority to waive or restrict the statutory supportobligations that each parent owes to their dependent children.... The test of whether parents have made adequate provision for their childmust be measured against the Federal Child Support Guidelines ... [Emphasis added]. [15] Thus, parents have fulfilled their financial obligation to their children when they have taken care of the financial welfare oftheir children.

That is the nature of the child’s “right.” [16] This is reinforced further by the fact that the Divorce Act, RSC 1985, c 3 (2nd Supp) [Act] does not give a child of the marriage standing to apply for child support. Only a parent can make this application: Wahl v Wahl 2000 ABQB 10, 2 RFL (5th) 307[Wahl] at para 21, citing Tapson v Tapson, (ON CA), [1970] 1 OR 521 at para 7, 2 RFL 305 (CA).

In Wahl JohnstoneJ went on to say at para 25: Although there is no clear statutory prohibition against such applications, the case law appears settled that non-spouses do not havestanding and are precluded from bringing an application. Also, the Guidelines refer to "spouse" in relation to the applicant and therespondent, never the child. [17] This Court finds that the Children do not have any proprietary right to the money that makes up the child support. Do theChildren have a proprietary right in any alleged surplus after their “financial welfare is taken care of?

This is answered, in part, byRichardson at para 14, where the Supreme Court of Canada said, “the fact that child support will indirectly benefit the spouse cannotdecrease the quantum awarded to the child.” As well, this is answered by looking at the purpose for which the Act and courts award childsupport in the first place. The primary purpose of child support is to assist the custodial parent with the day-to-day expenses of raisingthe child: Brett v Brett (1999), (ON CA), 46 RFL (4th) 433 at para 20, 44 OR (3d) 61 (CA).

There is a presumptionthat the custodial parent will do their best to provide for both the child’s immediate needs and their future care and education: Simon v Simon (1999), (ON CA), 1 RFL (5th) 119, 46 OR (3d) 349 (CA) [Simon] at para 38. This is the reason why courts areloathe to allow the payor parent to pay child support to the child directly.

For example, in Lobbes v Lobbes (1992), (SK KB), 103 Sask R 248 (Unif Fam Ct), Dickson J said at para 3: The purpose of a child support order is to assist the custodial parent to provide for the child's needs, not to provide the child with moneythat she may spend as she chooses. The mother must provide shelter and food and other necessaries for Coreen. If the father's support ispaid directly to Coreen, the mother will not receive the assistance she needs, unless Coreen gives the money to her. If she does that, whatpurpose would be served by varying the order?

If it is the father's intention to transfer spending discretion from the mother to Coreen, Iwill have no part of such a plan. As custodial parent, the mother has a duty to provide necessaries for Coreen. She cannot discharge thatduty if she is not permitted to budget whatever money is available for that purpose. [18] Similarly, in Mylrea v Benoit (2003), (ON SC), 42 RFL (5th) 82 (Ont SCJ) [Mylrea], Misener J refused toallow the payor Father to limit the amount of child support going to the custodial parent, with the balance to be paid into a trust accountfor the benefit of the children.

In so doing Misener J quoted from the Ontario Court of Appeal’s decision in Simon where MacPhersonJA said, in part, at para 38: Unless there is strong evidence establishing the need for a trust (e.g. the misuse of support payments by the custodial parent), I see noreason to interfere with the way in which the parent balances the present and future needs of the child in his or her custody. [19] Thus, in Mylrea at para 32, Misener J found as follows: There is not the slightest evidence that Ms.

Benoit needs the assistance of the court in using the support payments in the best interests ofthe children, and therefore no right for me to deprive her of the full amount of their entitlement. [20] Thus, if courts generally do not allow payor parents to dictate how or where the child support will go, it seems even moreremote to allow the children, who do not have a proprietary interest in child support payments to have a say in how or where the childsupport will go. Of course, this is subject to the proviso that the custodial parent must be meeting the needs of the children.

No one hasalleged in this case that the Mother is not meeting the Children’s needs, or is misusing the child support payments. [21] The Children state that “There is no suggestion that the Children are alleging any kind of misfeasance ...”: Children’s Brief,November 1, 2013, para 27. They go on to argue that “The point is that they have unquestionable rights without a legal forum fromwhich to assert them”: ibid. The “unquestionable right” in this case is the right to receive child support, which is paid from the Father tothe Mother for the Children’s benefit.

The parents of the Children believed that the amount for child support was sufficient provide“shelter and food and other necessaries” for the Children and the Children’s “future care and education.” As the Alberta Court of Appealsaid in Haisman v Haisman (1994), 1994 ABCA 249 , 22 Alta LR (3d) 56 at para 80, 157 AR 47 (CA), “a judge shouldconsider any agreement between the parents, and should give effect to it where the agreement provides for an appropriate level ofsupport for the child.” Without attempting to fetter the discretion of the arbitrator in this case, this Court is satisfied that the agreementprovides for an appropriate level of support for the Children.

If the child support “indirectly benefits” the Mother, this is not somethingto which the children have a proprietary or any interest.

[22] Granted, the child support payments are large. But does this take it outside the general rules by which this Court is bound?This Court finds that the quantum itself is not a sufficient reason to intervene in what the parties have resolved through the CSA, andother agreements between them.

This Court is mindful of the Supreme Court of Canada’s decision in Francis v Baker, (SCC), [1999] 3 SCR 250, 50 RFL (4th) 228 [Francis], where Bastarache J said at para 41: In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefitto the custodial parent. However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act,which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of childsupport payments.

Subsection 26.1(2) of the Act states that "The guidelines shall be based on the principle that spouses have a jointfinancial responsibility to maintain the children of the marriage in accordance with their relative abilities to contribute to the performanceof that obligation" (emphasis added). While standard of living may be a consideration in assessing need, at a certain point, supportpayments will meet even a wealthy child's reasonable needs.

In some cases, courts may conclude that the applicable Guideline figure isso in excess of the children's reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousalsupport. I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter therealm of wealth transfers or spousal support. But courts cannot ignore the reasonable needs of the children in the particular context of thecase as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines.

Need, therefore, is but one of the factorscourts must consider in assessing whether Table amounts are inappropriate under s. 4.

In order to recognize that the objective of childsupport is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines' objectives,courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children's reasonable needs soas no longer to qualify as child support. ... [Italicized emphasis in original, underlined emphasis added]. [23] This Court was not provided with sufficient information to determine whether in this case, the child support that the Fatherpays the Mother is indeed a wealth transfer.

In fact, in Francis, it was the payor Father who was arguing, among other things, that thepayments that the trial judge ordered was a wealth transfer. In this case, the Father has made no such argument to this Court. In fact theFather did not appear before this Court. It was the Children who were arguing that the child support the Father is paying to the Mother isa wealth transfer. If, as this Court has found, that the Children have no standing to enter into the child support fray, they similarly haveno standing to make an allegation that this is a wealth transfer.

It is for the Father to make this argument and he has not. Furthermore, theChildren argue that their “essential proposition is that they should have a say in this wealth considering it is their property”: Children’sBrief, November 1, 2013, para 33. As this Court has found, the children have no proprietary interest in the child support monies. [24] This Court certainly has the ability to allow the Children to intervene in their parents’ litigation.

Rule 2.10 of the AlbertaRules of Court, Alta Reg 124/2010 [Rules] provides: 2.10 On application, a Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rightsand privileges specified by the Court. [25] The Children argue as follows: The test for intervenor status is easily met by the Children in the present circumstances. There is no question that they have a specialinterest in the proceedings.

That special interest, and why it is particularly appropriate for the Children to have intervenor status, is amplyillustrated by a number of both legal and factual matters. To start, the Children have an unquestionable property right in the child support at issue in the proceedings. They also have a Mother andFather that owe fiduciary duties towards them with respect to that child support. Children’s Brief, November 1, 2013, paras 24-25. [26] This Court does not accept these arguments for two reasons.

First, it has found that the children do not have a proprietaryinterest in the payments that make up the child support. In other words, they do not have a property right in the child support, but a rightto receive child support. Second, there is no evidence before this Court that the Father or the Mother have breached any sort of fiduciaryduty towards the Children.

In fact, the evidence that the parties presented to this Court indicate that the parents are meeting the financialneeds (and wants) of the Children. [27] In R v Hirsekorn, 2011 ABQB 156 at paras 12-15, Wittmann CJ summarized the principles that this Court must apply whenconsidering whether to grant a person status to intervene in an action pursuant to Rules r 2.10, when he said: In Papaschase Indian Band No. 136 v. Canada (Attorney General), 2005 ABCA 320 (Alta.

C.A.), Chief Justice Fraser, speaking for theCourt, said at para 2: It may be fairly stated that, as a general principle, an intervention may be allowed where the proposed intervenor is specially affected bythe decision facing the Court or the proposed intervenor has some special expertise or insight to bring to bear on the issues facing thecourt. She went on at para 3 to cite Canada (Minister of Indian & Northern Affairs) v. Corbiere (1996), 199 N.R. 1 (Fed.

C.A.) where it wasstated "... an Intervenor in an appellate court must take the case as she finds it and cannot, to the prejudice of the parties, argue newissues which require the introduction of fresh evidence." Para 5 of Papaschase is also instructive referring to a two-step approach to the determination of an Intervenor application where it isstated that the Court typically considers first the subject matter of the proceeding and second determines the proposed Intervenor'sinterest in the subject matter.

Another principle articulated at para 6 of Papaschase is that where cases involve constitutional issues or which have a "constitutionaldimension", courts are generally more lenient in granting Intervenor status.

[28] In Alberta (Minister of Justice) v Métis Settlements Appeal Tribunal 2005 ABCA 143 at paras 4-5, 367 AR 34, Fraser CJAsaid: Intervenor status may be granted when the proposed intervenor will be specially affected by the decision facing the Court or has somespecial expertise or insight to bring to bear on the issues facing the Court: R. v. Morgentaler, (SCC), [1993] 1 S.C.R.462 (S.C.C.) at para. 1; Indian Residential Schools, Re (2000), 2 C.P.C. (5th) 243, 2000 ABCA 217 (Alta. C.A.) at para. 10, citingAthabasca Tribal Council v.

Alberta (Minister of Environmental Protection) (1998), 235 A.R. 387, 1998 ABQB 875 (Alta. Q.B.) at para.4. Intervenor status may also be granted where the proposed intervenor's interest in the proceedings may not be fully protected by theparties: United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) (2002), 312 A.R. 351, 2002 ABCA 243 (Alta. C.A.). However, it is inappropriate for an intervenor to extend legal argument well beyond what the courts below and the parties haveadvanced: Deloitte & Touche LLP v.

Ontario (Securities Commission) (2003), 2003 SCC 61 , 232 D.L.R. (4th) 1, [2003] S.C.J.No. 62 (S.C.C.) at para. 31 (per Iacobucci J. for the Court). [29] The Children do not meet the tests articulated in these cases on many different bases. The case involving their parents does nothave a “constitutional dimension.” The parents have negotiated the terms of the CSA, which provides for generous child support that theFather is to pay to the Mother. The arbitrator reinstated the amount that the Father was paying pursuant to the CSA, and made an interimaward for a lump sum.

The latter is the matter that the Father is currently appealing. In other words, the Father is continuing to pay childsupport, which the Mother is receiving. The Children have no proprietary or any other interest to protect that the Father and Mother havenot already addressed in the CSA.

The parents are honouring the Children’s right by the Mother receiving child support. [30] The Children will not bring any special expertise or insight into their parents’ current litigation. [31] Finally, and most importantly, if this Court were to allow the Children intervenor status, their arguments in seeking to havecertain of the child support placed into trust, or to have a say in the direction and future use of the alleged surplus child support paymentswould “extend legal argument well beyond what the courts below and the parties have advanced.” The CSA requires none of theseremedies and neither the Father nor the Mother is raising them.

Their issues are very narrow. [32] Thus, this Court will not allow the Children to intervene in their parents’ proceedings involving child support. [33] The children argue, as an alternative, that the Applicant be appointed as amicus curiae. The parties did not spend a great dealof time in their oral argument, or a great deal of space in their written briefs, addressing this issue. The Children argue that “the courtcould appoint the [Applicant] as amicus curiae with rights to advocate the Children’s position”: Children’s Brief, November 1, 2013,para 28.

The Mother argues as follows: In order for an amicus curiae to be appointed, the Court must satisfy itself that it would be clearly in need of assistance from the amicusto determine the issues in the proceedings. The Respondent submits that the Court (or Arbitrator in these circumstances) does not needassistance to determine the issue as to whether there has been a breach of the Agreement and determination as to enforcement and costs.A new issue in the proceedings (the revision of the Agreement) cannot be introduced by an Amicus curiae given that their role is to assistthe court with the issue before it.

Mother’s Brief, November 7, 2013, para 25. [34] The Mother is quite correct that historically, courts saw an amicus curiae as a disinterested party whose role was to assist thecourt. In Canada (Attorney General) v. Aluminum Co of Canada (1987), (BC CA), 10 BCLR (2d) 371, 35 D.L.R.(4th) 495 (CA) [Aluminum Co], Seaton JA said for the majority at paras 35-36: In England the use of amicus curiae is still substantially restricted to the three traditional situations.

The first is where a matter ofimportance is before the court which could affect many other persons and the court invites the Attorney General to appear as amicuscuriae ... The second is to address the court to prevent injustice. The amicus can call the attention of the court to decisions or points oflaw that might have been overlooked ... The third is to represent the unrepresented ... For convenience I will use the term "amicus curiae" to refer to those fulfilling the roles to which I have referred. I would not call themintervenors because they do not intervene.

They are barristers who assist the court, usually at the court's request, and are disinterested. [Citations excluded]. See also R v Lee (1998), (NWT SC), 125 CCC (3d) 363 [Lee] at para 11, which adopted the“English” restrictions. [35] The role of the amicus curiae has expanded somewhat in the realm of the criminal law. See e.g. Lee; R v Cairenius (2008), (ON SC), 232 CCC (3d) 13 (Ont SCJ). But see R v Samra (1998), (ON CA), 41 OR (3d) 434,129 CCC (3d) 144 (CA). [36] Amici curiae have been permitted to appear in applications for judicial review.

In 1447743 Alberta Ltd v Calgary (City), 2011 ABCA 84, 41 Alta LR (5th) 366, Martin JA provides many of the factors that courts will consider when deciding whether to allow thetribunal, whose decision is under attack, to participate in the proceedings. The principles that Martin JA provided in that context do notappear to be apropos in a family law context. [37] In Bhajan v Bhajan, 2010 ONCA 560, 322 DLR (4th) 332, the Ontario Court of Appeal was considering whether to allow theJustice for Children and Youth to intervene as a friend of the court in “certain matrimonial litigation” involving the parents.

Certainfindings of Weiler JA are relevant only to litigation that takes place in Ontario, as Ontario Rules of Civil Procedure, RRO 1990, Reg 194,r 13.02 says, “Any person may ... intervene as a friend of the court for the purpose of rendering assistance to the court by way ofargument.” [Emphasis added]. She went on to say at para 8: An additional consideration in deciding whether to appoint amicus curiae is whether there will be a party responding to the appeal. One

of the roles of amicus curiae is to help the court if no one responds to an appeal or a party is unrepresented. [38] In Alberta, there is no such provision in the Rules and, in particular, such a provision flies in the face of traditional approach,where the amicus curiae is seen as a disinterested person who renders assistance to the court. As Weiler JA said at para 7, “The word‘argument’ in r. 13.02 imports the notion of advocacy and reasoned persuasion.” [39] Weiler JA does not tell us the issues that were before the Ontario Court of Appeal.

When one looks at the follow-up caseB(AC) v B (R), 2010 ONCA 714, 325 D.L.R. (4th) 653, it is clear that the cases that Weiler JA had before her were custody disputes andnot disputes involving child support. Similarly, the case that the Children provided to this Court involved a custody and access dispute:Young v Young (1989), (AB KB), 22 RFL (3d) 444 (Alta QB).

This should come as no surprise in those types ofcases, as the amici curiae in those cases are sometimes referred to as “parenting experts” or as providing the “voice of the child” or anexpert that provides courts with some other type of intervention pursuant to the practice notes that the court frequently issues. In suchcases, at times, the reports, or testimony of such amici curiae are the only credible, neutral evidence that the court has. [40] The situation is different in child support litigation.

In that case, the children (or the children’s amicus curiae) can providenothing that is not already before the court through the parents. If the children have an interest that is not otherwise protected by theparents, the court might allow the children to intervene, such as when the custodial parent is using the child support for purposes otherthan for the benefit of the child. As already discussed, this Court has found that the Children in this case have no such interest.

Granted,the Children are “unrepresented” in the litigation, but they have no interest to protect, other than their right, which the parents protect byway of the child support itself, provided the court finds the child support to be adequate to meet the goals of child support. [41] Accordingly, in this case, this Court finds that neither the court, nor the arbitrator, needs the assistance of an amicus curiae. [42] Thus, it dismisses the Applicant’s application to allow the Children to intervene in their parents’ litigation. It also dismissesthe Applicant’s application to be appointed as amicus curiae.

Heard on the 20th day of November, 2013. Dated at the City of Calgary, Alberta this 6th day of December 2013. K.D. Yamauchi J.C.Q.B.A. Appearances: Ronald J Robinson for the Applicant Krysta H Ostwald Widdowson Kachur Ostwald Menzies LLP for the Respondent GG

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ The identifying Restriction of Publication ban on the front page was incorrectly inserted under the Family Law Act ,

section 100. The new Restriction of Publication ban should read as follows: Editorial Ban – On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment.