Hussey v Hussey, 2014 ABQB 656

Court of Queen ’ s Bench of Alberta Citation: Hussey v Hussey, 2014 ABQB 656 Date: 20141028 Docket: FL03 06235 Registry: Edmonton Between: Deborah K.H. Hussey Applicant - and - Eric T. Hussey Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.M. Ross _______________________________________________________ Facts [ 1 ] The Applicant, Mrs. Hussey (now Ms. Scott), seeks retroactive child support to January 1, 2003 for three children, as well as ongoing support for two children. She also seeks reimbursement for

section 7 expenses, primarily in relation to post-secondary education.

[ 2 ] The Respondent, Mr. Hussey, and the Applicant were married in 1988, and divorced in 2000. They had three sons, born in 1992, 1995 and 1998. The Applicant has had primary care of the children since the separation. [ 3 ] The Respondent’s child support obligations were set out in the divorce judgment dated February 2, 2000, in the amount of $713 monthly, payable bi-monthly, based on the Respondent’s guideline income of $39,800.

There was no provision in the judgment requiring annual disclosure of financial information between the parties . [ 4 ] In December 2006, the parties attended a Child Support Resolution Meeting (CSRM). The Respondent was asked to provide his income tax returns for each of the three years prior to the CSRM as well as his last three pay stubs. He did so. This information indicated that his income had increased to $53,000 or higher. [ 5 ] At the 2006 CSRM, the Respondent indicated a willingness to increase his ongoing child support based on his 2005 income.

The Applicant states that she wished to use his higher 2006 income, and also sought retroactive support. The Applicant recalls that the Respondent threatened to seek custody, or shared custody, of the children as well as restrictions on her mobility if she pursued a retroactive support order. The Respondent recalls that he wanted specified access, as well as an assurance that the Applicant would not move again, as she had done some three times since the separation.

He did not agree to retroactive support for a number of reasons, including a post-separation bankruptcy and his belief that the demand was in retaliation for his request for specified access. [ 6 ] The Applicant recalled that no agreement was reached. The Respondent believed that an agreement was reached regarding ongoing child support.

Court documentation indicates that the meeting concluded with a draft order prepared and with the parties directed to mediate access and parenting issues, and to contact the office within one month if the order was agreed to, or if they wished to have a further meeting. [ 7 ] The Respondent recalled that another CSRM was scheduled for February 2007, but that when he attended he was told that the Applicant had cancelled the meeting. The Applicant does not recall scheduling a CSRM in 2007.

Rather, she states that when she returned to her home in Whitecourt following the 2006 CSRM in Edmonton, she was occupied by other matters, including caring for the children. She was also deterred from scheduling a further CSRM because of the costs and time associated with travelling back and forth to Edmonton to bring an application.

In sum, she states that she was not in an emotional or financial state to do anything further in regards to child support. [ 8 ] The Applicant recalls that the Respondent was advised by the Child Support Resolution Officer at the 2006 CSRM that he should be voluntarily increasing child support payments in view of his greater income. The Respondent does not deny this.

He states that he contacted the Maintenance Enforcement Program about paying an increased amount, and was told that the Applicant had not registered the agreement and that without a registered agreement, or court order, they would not collect or pay out a different amount. He tried to get a copy of the agreement from the 2006 CSRM but was told it was unavailable. [ 9 ] The next interactions between the parties regarding child support appear to have occurred in 2013.

The Applicant states that when she raised the issue again, the Respondent told her to get information from Maintenance Enforcement or to get a lawyer. The Applicant does not indicate when or how often these discussions occurred; until she contacted the Respondent in 2013 preparatory to bringing this application. Another CSRM was held in March 2014. No settlement was reached and the Applicant was directed to bring this application, which was filed on March 31, 2014. [ 10 ] By the time this application was filed, the parties’ oldest son had ceased to be a child of the marriage.

He graduated from a post-secondary program in October 2012. The younger boys remain children of the marriage at this time, with one attending a post- secondary program and the youngest still in high school. [ 11 ] As noted above, the Respondent’s guideline income at the time of the divorce judgment was $39,800. The evidence on the application establishes that the Respondent’s guideline income for the years 2003 to 2013 is as set out below. Over the years, due to financial difficulties, the Respondent has taken amounts from his RRSP savings into income, to the point that he has now depleted his RRSP account.

I have accepted the Respondent’s position that it is fair in these circumstances to utilize the Respondent’s employment income as his guideline income, rather than his Line 150 income which includes RRSP amounts. 2003 $52,672 2004 $57,243 2005 $56,908 2006 63,285 2007 $58,852 2008 $83,311 2009 $84,640 2010 $102,028 2011 $103,885 2012 $97,253 2013 $81,323

Issues [ 12 ] The issues are: 1. Jurisdiction to award retroactive support respecting the oldest child; 2. Retroactive support – whether it should be ordered and, if so, to what date; 3. Quantum of retroactive and ongoing child support;

Section 7 expenses. 1. Jurisdiction to award retroactive support respecting the oldest child who is no longer a “child of the marriage” [ 13 ] The jurisdiction to award retroactive child support is limited to cases where the child, or children, for whom the award is sought is a child of the marriage. Under the Divorce Act , RSC 1985, c 3 (2nd Supp) : 2(1) “child of the marriage” means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [ 14 ] “Material time” is the time of application. “It only refers to the prerequisite of an application for child support that the child must be under the age of majority or must be older and still financially dependent on the parents at the time that the application is brought” (Payne & Payne, Child Support Guidelines in Canada, 2012 (Toronto: Irwin Law, 2012) at 41). [ 15 ] This is confirmed by the Supreme Court of Canada in DBS v SRG ; LJW v TAR ; Henry v Henry ; Hiemstra v Hiemstra , 2006 SCC 37 at para 89 , [2006] 2 SCR 231 [ DBS ].

It was also addressed more recently by the Alberta Court of Appeal in Calver v Calver , 2014 ABCA 63 at para 28 , 569 AR 170 : “ In short, a court's jurisdiction to make a retroactive support order exists if the child is still a child of the marriage when the payor is served with an application: (

i) for retroactive support ( DBS ); or (ii) to disclose income ( Henry ).” [ 16 ] The oldest child ceased to be a child of the marriage in October 2012, well before the within application was commenced. Furthermore, no application for disclosure of income was filed. However, the Respondent provided disclosure on request for the 2014 CSRM. This also occurred well after the oldest child ceased to be a child of the marriage. As a result, the Court does not have the jurisdiction to entertain an application for a retroactive increase in support with respect to the oldest child. 2.

Retroactive child support – whether it should be ordered and, if so, to what date A. Potential dates for commencement of a child support order [ 17 ] Under DBS , there are at least four potential commencement dates for a retroactive child support order in this case. First, retroactive support can be ordered from the date when increased support should have been paid under the child support guidelines. In this case, that would be sometime in 2003.

During the 2006 CSRM, it was disclosed that in each year from 2003 to 2006, the Respondent’s income had increased from the guideline income used to calculate child support in the 2000 divorce judgment. [ 18 ] Alternatively, retroactive support can be ordered to the date when the Applicant gave the Respondent “effective notice” that child support payments should be reviewed. Effective notice does not require the commencement of an application. “All that is required is that the topic be broached”: DBS , para 121 .

In this case, effective notice occurred by December 2006, when the parties attended the first CSRM. [ 19 ] The Supreme Court indicated in DBS at para 123 that it is generally “ inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.” The Court did not define formal notice, although the decision indicates that it may be different than the commencement of an application. [ 20 ] Under Queen’s Bench Family Law Practice Note No. 4, because t he Applicant is self-represented, she was required to complete a CSRM before her application could be heard in Court.

She filed a Notice to Attend a CSRM on February 10, 2014 and had it personally served on the Respondent on February 18, 2014. The Notice advised that the Respondent would be required to bring a completed, sworn Financial Statement to the CSRM. The CSRM was initially scheduled for March 5, 2014, and was adjourned by consent to March 26, 2014. The CSRM was completed on that date, and the application was filed on March 31, 2014. As a CSRM was a

required step under the Practice Note procedure, I regard service of the Notice to Attend on February 18, 2014 as formal notice. Thus, under this approach, a retroactive award could commence as of February 2011. [ 21 ] Finally, if retroactive support is not appropriate, support would commence in the month that the application was filed, March 2014. [ 22 ] I am not suggesting that these four dates would be the only potential commencement dates in every application for retroactive child support.

After considering all of the particular circumstances of each case, another date may yield a fairer result: DBS at para 130 , Caldwell v Caldwell , 2013 ABCA 268 , at paras 45-53 , 33 RFL (7th) 285. However, in this case no other date is supported by the evidence. B.

Blameworthy Conduct [ 23 ] The Respondent’s position is that he is not guilty of any blameworthy conduct in this case, and thus no retroactive support should be ordered. [ 24 ] This requires a consideration of whether and when the Respondent may have engaged in blameworthy conduct, and of the significance of blameworthy conduct in the context of assessing a claim for retroactive child support. [ 25 ] The Respondent was not in violation of any disclosure obligation in the divorce judgment, or under court rules, as there was no provision in the divorce judgment requiring annual disclosure.

The Respondent did provide disclosure when requested to do so in advance of the 2006 and 2014 CSRMs. [ 26 ] The Respondent’s income had increased between the date of the divorce judgment and the 2006 CSRM, and he had not disclosed this to the Applicant. However, this is not necessarily blameworthy conduct. [ 27 ] In DBS , at para 108 : [A] payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behavior…[A] court should consider the previous court order or agreement that the payor parent was following.

Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. [ 28 ] The evidence does not establish that the Respondent was or should have been aware before the 2006 CSRM that his child support obligation had increased. He was following the divorce judgment.

He was in financial difficulties and had undergone a bankruptcy shortly after the divorce. Furthermore, he incurred access costs as a result of the Applicant’s decision to relocate. [ 29 ] During the 2006 CSRM, the Applicant submitted that she was intimidated by the Respondent. The Respondent denies that he acted inappropriately; he simply wished to raise issues affecting his access to the children. The CSRM report does not disclose any problematic behaviour during the meeting or any concern regarding potential future contact between the parties.

Future contact was contemplated in relation to a draft child support order and the parties were directed to mediate access and parenting issues. I note as well that the Applicant’s explanation as to why she did not take further steps to pursue an increase in child support after the 2006 CSRM focused at least as much on practical difficulties and other concerns in her life as on any concern about actions the Respondent might take. [ 30 ] In my view it has not been shown that the Respondent engaged in blameworthy conduct before or during the 2006 CSRM.

He was entitled to raise issues regarding his access to his children. [ 31 ] However, the evidence shows that it was made clear to the Respondent at the 2006 CSRM that he should increase his child support payments proportionately to his increased income. As mentioned above, I am of the view that the Respondent was served with effective notice that his child support payments should be increased at the 2006 CSRM.

At that point he was aware that the 2000 order was less than his actual obligation in 2006, and he knew, in most of the years that followed, that his income was increasing further, and that this would have the effect of increasing his child support obligation. Nonetheless, he did not disclose his increased income to the Applicant until the 2014 CSRM, and he did not take any steps to increase his child support payments voluntarily. [ 32 ] Blameworthy conduct is “anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support”: DBS , at para 106 .

This includes “not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable”: DBS , at para 124 . [ 33 ] I conclude that the Respondent has engaged in blameworthy conduct since the 2006 CSRM. [ 34 ] The Respondent argues that blameworthy conduct is a condition of any order for retroactive support.

That is not what the Supreme Court of Canada held in DBS , as emphasized by the Alberta Court of Appeal in Kupsch v Kupsch, 2011 ABCA 286 at para 10 , [2011] AWLD 4128 , and Goulding v Keck , 2014 ABCA 138 at para 22 , 373 DLR (4th) 673 [ Goulding ] . [ 35 ] In DBS , the Supreme Court commented on the significance of blameworthy conduct when considering circumstances in which retroactive support might be ordered from a date prior to effective notice, at para 124 : T he date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start.

This situation can most notably arise where the payor parent engages in blameworthy conduct . Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not

disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially.

A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments. (Emphasis added.) [ 36 ] The absence of blameworthy conduct before the 2006 CSRM supports the position that retroactive support should not be ordered prior to the date of effective notice (December 2006).

It is not an answer to a claim for retroactive support since that time, especially in view of the Respondent’s subsequent blameworthy conduct when he knowingly failed to disclose his increased income in an attempt to avoid increased support obligations. [ 37 ] In relation to ordering retroactive support to the date of effective notice, blameworthy conduct is just one factor to consider. Other factors include the reason for any delay in applying for a variation, the needs of the children, and the hardship occasioned by a retroactive award. C.

Other Factors [ 38 ] The Applicant delayed bringing this application for over seven years. The explanations she has proffered for the delay are that it was difficult to travel to Edmonton and she was mentally and emotionally worn out by circumstances in her life, including caring for the children and dealing with a demand for information by Revenue Canada.

She was also concerned about the “Respondent’s threats” to seek specified access and to limit her mobility with the children. [ 39 ] The courts must be sensitive to practical concerns associated with child support applications, including a lack of financial or emotional means to bring an application: DBS , at para 101 . While these concerns may explain some period of delay, in my view they do not excuse the very significant delay in this case.

The Applicant indicates that she was concerned with the Respondent’s reaction to an application, but she also knew that an application would very likely result in increased child support. Further the Respondent had agreed to a prospective increase at the 2006 CSRM and the Applicant did not take steps to put this order into effect.

The Respondent’s interest in seeking a court order for specified access or restrictions on future mobility with the children does not excuse the Applicant’s failure to seek child support. [ 40 ] The Supreme Court also held in DBS , at para 103 , that recipient parents should “not be encouraged to delay in seeking the appropriate amount of support for their children.

From a child’s perspective, a retroactive award is a poor substitute for past obligation not met.” This concern is highlighted in this case where the delay was so long that the oldest child can no longer benefit from a retroactive award. [ 41 ] Although the unreasonable delay weighs against a retroactive award, it must be considered alongside the Respondent’s blameworthy conduct in not disclosing to the Applicant that his income and child support obligation continued to increase after the 2006 CSRM.

Had the Applicant known that the Respondent’s income had increased, she may have brought her application earlier. [ 42 ] The circumstances of the children are also to be considered. The Respondent submits that the household income in the Applicant’s household is higher than in his own, and that the children therefore enjoyed a relatively high standard of living. [ 43 ] Tax documents indicate that while household income may have been somewhat higher in the Applicant’s household, the difference is not particularly substantial.

The Applicant’s household income for 2013 was approximately $130,000 compared to the Respondent’s household income of approximately $115,000. Both parties have remarried. The Respondent has one child of his new marriage, and two step-daughters who no longer live with him, but who he helped support in the past.

The Applicant also has a step-son. [ 44 ] This factor does not impose an evidentiary burden to prove “significant need” on the part of the children. “A payor parent cannot avoid a retroactive award by arguing that, despite his or her past default, the recipient parent was able to sufficiently care for the child on his or her own”: Goulding , at para 51 . I am satisfied that the children have continued to have a need for support, particularly as they have entered or will soon enter post-secondary education.

The Respondent has not contributed to the costs of this and the older children have had to incur large student loans. [ 45 ] The Respondent claims that a retroactive award will cause undue hardship to him. He has experienced financial difficulties, as demonstrated by the depletion of his RRSP savings. Both he and his youngest son have medical issues. The Respondent is diabetic and his son has a pineal cyst in his brain which has led to frequent hospitalizations. The Respondent’s budget shows that he is living pay- cheque to pay-cheque.

His expenses include approximately $1200 per month in car payments. [ 46 ] Neither the Respondent’s nor his son’s medical issues appear to have affected his income or expenses. The Respondent’s financial difficulties are not due to matters beyond his control; they result from his own decisions and priorities. While a retroactive award would pose a financial challenge, this can be mitigated by a structured payment plan. The Respondent’s childcare expenses are and will be less in the future than they have been in the past.

His youngest son is now in school, and his stepdaughters are independent, as is his oldest son. [ 47 ] Balancing the relevant factors, in my view a retroactive award is justified. I find it significant that the Respondent failed to disclose his increased income following the 2006 CSRM, when he admits he was advised that his child support payments should remain proportionate to his income. The Applicant has unreasonably delayed bringing this application, but that can be taken into consideration in setting the commencement date for a retroactive award.

The children’s needs support an award, and any hardship can be mitigated by an appropriate payment plan. [ 48 ] The Supreme Court in DBS selected the date of effective notice as the “default option” for commencement of retroactive support, qualified by the requirement that discussions move forward after effective notice, at para 123:

While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three year period: see s. 25(1)( a )of the Guidelines .

In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent. [ 49 ] The Court did not provide different tests or factors to distinguish circumstances in which three years before formal notice is an appropriate starting point, rather than effective notice. In my view it is an appropriate starting point in this case in view of the unreasonable delay in bringing this application after the 2006 CSRM.

While delay, considered in light of other factors, and in particular the Respondent’s failure to disclose increased income since 2006, does not make a retroactive award unfit in this case, it does support application of the “usual” rule that the award should not be retroactive to a date more than three years before formal notice. The commencement date for the award will thus be February 2011. 3.

Quantum of retroactive and ongoing child support [ 50 ] As noted above, the award cannot include a retroactive amount for the oldest child. [ 51 ] The Respondent has been paying child support for three children in the amount of $713 per month. Since February 2011, his child support obligations, even for two children, exceed the $713 that he has paid. Therefore, I will credit the Respondent’s past payments by subtracting $713 from the amount that he should have been paying. [ 52 ] The Respondent’s 2011 guideline income (as I have determined it, to include income from employment only) was $103,885.

The guideline payment for two children is $1,482, less a credit of $713, equals an underpayment for those two children in the amount of $769 per month. For 11 months (February to December 2011), this results in a total underpayment of $8,459. [ 53 ] For 2012, the Respondent’s guideline income was $97,253, which results in a payment for two children of $1,385.

Less a credit of $713, that leaves an underpayment of $672 per month or $8,064 for the year. [ 54 ] For 2013, the Respondent’s guideline income was $81,323, resulting in a payment for two children of $1,163, less a credit of $713, leaving an underpayment of $450 per month, or $5,400 for the year. [ 55 ] For 2014, using the 2013 guideline income, the underpayment is $450 per month for 10 months or $4,500. [ 56 ] The total retroactive award to and including October 2014 is $26,423. [ 57 ] Ongoing

section 3 child support is payable in the amount of $1,164, payable bi-monthly in payments on the 1 st and 15 th of each month in the amount of $582, commencing November 1, 2014. [ 58 ] The second oldest child of the marriage is in a post-secondary program at this time. When he graduates, if the Respondent’s income remains the same, his monthly child support obligation will be $701. At this time, the Respondent will be able to make increased payments towards the arrears. Until that time, I would direct that the Respondent make payments towards the arrears in the amount of $100 per month, in addition to his ongoing child support payments.

Section 7 Expenses [ 59 ] The Applicant seeks an order requiring the Respondent to share

section 7 expenses equally with her, although her own guideline income is less than the Respondent’s. I will give that order prospectively. Upon the Applicant providing receipts for proper

section 7 expenses, the Respondent will be obliged to pay 50% of those expenses. [ 60 ] I have considered the Applicant’s claim for retroactive

section 7 expenses relating post-secondary costs, and have determined not to make a retroactive order in this regard. For the post-secondary costs of the oldest child, no retroactive order can be made as he is no longer a child of the marriage. For the second child, the

section 7 expenses claimed by the Applicant relate to living expenses while the child is residing in Edmonton to attend a post-secondary program. The Applicant has been paying for the child’s living expenses, while his tuition and textbook and equipment costs have been covered by student loans. The Respondent’s

section 3 payment is a sufficient payment towards living expenses. If, in the future, educational expenses are not covered by the child himself through the mechanism of student loans, a

section 7 claim may be made. But the child will continue to have an obligation to contribute to his own educational expenses, whether through student loans or part-time employment. Conclusion [ 61 ] In conclusion, it is hereby ordered that

section 3 child support obligations of the Respondent, Eric Thomas Hussey, are to be adjusted as follows: o From February 2011 to December 2011 –

section 3 child support is $1,482, less a credit of $713 for a total of $769, on the basis of an income of $103,885 payable for two children of the marriage; o From January 1, 2012 to December 31, 2012 –

section 3 child support is $1,385, less a credit of $713 for a total of $672, on the basis of an income of $97,253 payable for two children of the marriage;

o From January 1, 2013 to December 31, 2013 –

section 3 child support is $1,163, less a credit of $713 for a total of $450, on the basis of an income of $81,323 payable for two children of the marriage; o From January 1, 2014 to October 31, 2014 –

section 3 child support is $1,163, less a credit of $713 for a total of $450, on the basis of an income of $81,323 payable for two children of the marriage; o The total retroactive award to and including October 2014 is $26,423 payable in the amount of $100 per month, in addition to his ongoing child support payments. o Ongoing

section 3 child support is $1,164, payable bi-monthly in payments on the 1 st and 15 th of each month in the amount of $582, commencing November 1, 2014 [ 62 ] In addition, the Respondent will be responsible for 50% of future

section 7 expenses. This amount will become payable upon the Applicant providing the Respondent with receipts for proper

section 7 expenses. [ 63 ] The Applicant is seeking costs for medical expenses resulting from the stress of bringing this application as well as costs associated with travel expenses incurred by attending Court in Edmonton. These are not items that are included in the calculation of costs. Costs primarily serve as a means off-setting a portion of the cost of legal representation. The Applicant was self-represented and as such, she will be entitled only to the costs she incurred serving documents upon the Respondent. Heard on th e 11 th day of September, 2014.

Dated at Edmonton, Alberta this 27th day of October, 2014 . J.M. Ross J.C.Q.B.A. Appearances: Deborah K.H. Scott Self-represented Brooks Topp Academy Place Law for the Respondent