Takaoka v. Takaoka, 2013 ABQB 733

Court of Queen ’ s Bench of Alberta Citation: Takaoka v. Takaoka, 2013 ABQB 733 Date: 20131217 Docket: 4803 140475 Registry: Edmonton Between: Keith Jeffrey Takaoka Plaintiff - and - Tracie Lynn Takaoka Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ Background [ 1 ] This is a Special Family Law Chambers Application by Ms. Ryll (formerly Takaoka) for unpaid

Section 3 child support payable by Mr. Takaoka from April 2005 to August 2007; and unpaid

Section 7 special expenses from April 2005 to January 2010. Mr. Takaoka also makes an application for

Section 7 expenses for the period during 2011 to 2013, during which time he has had the children exclusively. [ 2 ] These Parties were married in February 1996 and have two children presently 15 and 17 years of age.

The Parties Positions [ 3 ] These Parties entered into written Minutes of Settlement dated August 25, 2006 which contained a clause requiring Mr. Takaoka to pay

Section 3 child support in the sum of $1,100.00 each month, along with a 50/50 sharing of all

Section 7 expenses. At the time the children were primarily in the mother’s care approximately 80% of the time according to the mother. Even before the written agreement the mother deposes that there was a period of time from April 2005 (to the time of the written Agreement in August 2006) whereby the Parties had a verbal agreement that the father would pay the mother $1,100.00 per month in child support, because the father wanted to claim the children in his 2005 tax year. [ 4 ] Subsequently according to the father the Parties altered the parenting

schedule whereby they had the children on an alternating one week on/one week off basis. The mother deposes however that the primary custody arrangement that she had with the children remained in effect until January 2010, with only slight variations where the children would stay an extra week with the other parent. [ 5 ] The mother deposes that in January 2010 after Revenue Canada found out that the father was still claiming the children on his taxes despite paying child support, and the father was fined. The children then, according to the mother, all of a sudden started living with the father.

On October 22, 2010 the custody of the children was ordered to be with the father in this Court, by virtue of the children’s choice.

The mother was ordered to pay ongoing child support and arrears of child support to the father in the amount of $631.00 per month commencing October 2010 and continuing thereafter. [ 6 ] Currently the mother makes a retroactive claim for child support from April 2005 to August 2007 submitting that the father failed to make any child support payments to her during that period of time. [ 7 ] The father’s position is that the Parties lived together with the two children until October 1, 2006, during which period the father paid all of the costs of the household.

From October 1, 2006 to August 2007 when the matrimonial home was sold, the father did not pay child support for a few months, but the mother agreed that this was forgiven as the father absorbed the costs of selling the matrimonial home, and the mother received a disproportionate share of the sale proceeds, namely 80%.

The father also submits that at this time the children were already de facto primarily residing with him. [ 8 ] The father’s position is that he did not have to pay any child support until October 1, 2007, but he had started paying $1,100.00 in March 2007 until May 2009, when he increased that payment to $1,290.00 per month. This continued until the Court Order of October 22, 2010 in which he was given the primary residence of the children. According to the father neither party made any claim or demand for

Section 7 expenses during the time prior to January 2010, when by the mother’s acknowledgement the children go to primarily reside with the father. [ 9 ] With respect to their Minutes of Settlement dated August 25, 2006 the father submits that although a parenting regime and child support is set out in writing, the de facto situation is that the parenting

schedule was reversed shortly thereafter, and that the mother should have been paying the father for the period between October 1, 2006 onwards as he had the primary residence of the children. [ 10 ] Finally the father argues that the mother had the opportunity to make the claim that she is now making when this matter was before this Court in October 2010, but she made no demand of the father.

Accordingly it is submitted that pursuant to D.B.S v S.R.G , 2006 SCC 37 , the Court should consider the reason for the recipient’s delay in seeking child support, the conduct of the payor parent and the past and present circumstances of the children. Here it is submitted that the father has not engaged in any blameworthy conduct; and that the mother has unnecessarily delayed seeking child support.

The reason the mother has unnecessarily delayed seeking child support according to the father is that the Parties never physically finally separated until the matrimonial home was sold in August 2007; and notwithstanding what the Minutes of Settlement may say, the mother agreed verbally to a one year hiatus in which the father did not have to pay child support of any kind. [ 11 ] The mother’s position is that there was no verbal agreement or deferral of the payment of child support of any kind, and that the written Minutes of Settlement and Matrimonial Property Agreement signed in August 2006 make it abundantly clear that the father was to pay the mother $1,100.00 in child support and

Section 7 expenses were to be shared equally 50/50. These child support payments should have continued until January 2010 when the children went to live primarily with their father.

In further contradiction of the father’s position that the Parties did not separate until the matrimonial was sold in 2007, the mother provides the Court with a written Lease Agreement between her and her landlord for herself and the two children that begins on the March 16, 2005 for a period of one year. [ 12 ] The father submits that this Lease Agreement is essentially a sham, as the landlord was a personal friend or boyfriend of the mother. [ 13 ] The mother explains the delay in her bringing this retroactive child support and

Section 7 claim. When the Parties were before the Court in October 2010 the mother instructed her counsel to bring this application at that time but due to communication problems between the mother and her counsel or incompetence by her counsel at that time, the application was never made, and the mother discharged the lawyer and made a complaint to the Law Society about him. [ 14 ] The mother then pursued claims for retroactive support again between April and August 2011, but then had to search for approximately 18 months for the father to be able to serve him with the application.

The father acknowledges that he had moved to the United States during this period of time, but he was allowed to do so, and that the mother could have located him either through the children or through his businesses. The mother points out that she asked the children as to the whereabouts of the father, but they were either not allowed to, or did not reveal his whereabouts. As far as searching for the father’s businesses, the mother deposes that she did that but was unsuccessful.

Analysis [ 15 ] After reviewing the written filed materials on this matter both before the hearing began, and during the Special Application on November 27, 2013, I advised the Parties that there appeared to be several issues of credibility and asked the Parties to direct their mind as to whether or not a Special Chambers Hearing was the appropriate forum to deal with this matter.

The husband through his counsel has no difficulty in dealing with this matter by way of a viva voce hearing, but the wife opposed this idea. [ 16 ] The father asserts that notwithstanding the written Minutes of Settlement and Matrimonial Property Agreement signed in August 2006 requiring him to pay child support of $1,100.00 per month and splitting

Section 7 expenses equally, that there was some agreed upon deferral of these payments for a period of at least on year. Any claim for retroactive child support on its merits in April 2005 to the date of the Minutes of Settlement is problematic given that there is nothing in writing and given the long delay. However it is also self-serving for the father to claim that there was an oral side agreement effectively nullifying the requirements of the August 25, 2006 Minutes of Settlement with respect to child support.

The father does point to the fact that the mother received 80% of the proceeds of the former matrimonial home, and that the 80% share is disproportionately large because of the side arrangement that he did not have to pay child support. [ 17 ] The mother submits that she received 80% of the net sales proceeds from the former matrimonial home because she had in the Minutes of Settlement agreed to waive all claims for spousal support, and additionally she had given up all claims for interest in the husband’s various businesses.

The mother provides the Court with a letter from her lawyer at the time of signing the Minutes of Settlement and Matrimonial Property Agreement cautioning against her completion of this document because of the lack of complete disclosure with respect to the husband’s businesses and the non-existent valuation of those businesses. [ 18 ] Accordingly the mother argues that the disproportionately high share from the sale proceeds of the former matrimonial home was the result of these factors and had nothing to do with the side agreement which allowed the father to stop paying child support temporarily.

This also explains why the Minutes of Settlement provided for a 50/50 sharing of the

Section 7 expenses when clearly the father’s income was significantly larger than the mother’s. In any event it appears that the father has made no payments according to the mother with respect to

Section 7 expenses from April 2005 to January 2010. [ 19 ] With respect to the father’s claim of

Section 7 expenses since the children went to primarily reside with him, I note that the mother has provided the Court with a recent statement of account from the Alberta Maintenance Enforcement Program for the reported years 2010, 2011, 2012 up to November 1, 2013. It appears to indicate that the mother is up to date with respect to any monies owing to the father. [ 20 ] The mother appears to have a credible claim for retroactive child support and retroactive

Section 7 expenses because of the written documentation herein. But the Court has not been able to test the credibility of either the mother or the father. [ 21 ] Pursuant to D.B.S . the mother’s delay in seeking her child support may also have been reasonable in the circumstances given that she has been acting on her own, and has had considerable difficulties locating the father to serve him. Although the matter could have been dealt with in October 2010 when the Parties were before the Court, a falling out between the mother and her lawyer led to that application not being made at that time apparently.

Once again the credibility of these assertions is untested. [ 22 ] With respect to the father’s claim for

Section 7 expenses since he has had primary custody of the children at the beginning of 2011 to the present, there is no indication based on the Maintenance Enforcement statement provided to me by the mother that there are any child support arrears of any kind, but the basis of those statements of Account could be limited or modified by further oral evidence. [ 23 ] As such I cannot at this time grant the mother’s application for retroactive child support for the children from the date of the Minutes of Settlement as signed in August 2006 until January 2010 when the children went to reside primarily with the father.

Additionally until a trial of an issue is held in this matter, I cannot determine that the father is responsible for half of the

Section 7 expenses claimed by the mother from the date of the Minutes of Settlement in August 2006 until January 2010. Conclusion [ 24 ] Rule 7.1.(1)(

a) reads as follows: 7.1(1) On application, the Court may (

a) order a question or an issue to be heard or tried before, at or after a trial for the purpose of (

i) disposing of all or part of a claim, (ii) substantially shortening a trial, or (iii) saving expense, [ 25 ] The outstanding issues herein are directed to proceed to a trial of an issue on the Order marked as

Schedule A to these Reasons.

Heard on the 27 th day of November, 2013. Dated at the City of Edmonton, Alberta this 17 th day of December, 2013. Donald Lee J.C.Q.B.A. Appearances: Peter Spitz Wallace & Spitz for Keith Takaoka Lynn Ryll (formerly Takaoka) On her own behalf