Jackson v Vizzuso, 2014 ABQB 686

Court of Queen ’ s Bench of Alberta Citation: Jackson v Vizzuso, 2014 ABQB 686 Date: 20141112 Docket: FL03 17579 Registry: Edmonton Between: Sheena Elizabeth Rice Jackson Applicant - and - Nicola Paolo Vizzuso Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Ms. Jackson seeks an order for retroactive child support.

At the time the application was filed she sought ongoing and retroactive child support, but by the time the application was heard, she had abandoned the request for ongoing support. [ 2 ] Ms. Jackson and Mr. Vizzuso lived in a common law relationship for a total of about 18 months between February 1994 and January 1996. Their son was born on March [...], 1994. [ 3 ] On November 21, 1997 an order issued requiring Mr. Vizzuso to pay $475.00 per month child support beginning December 15, 1997 and continuing until the parties’ child attained the age of 18 years. The order recited that Mr.

Vizzuso’s annual income was $34,345.00. Mr. Vizzuso has made the payments required by this order, albeit often as a result of continuing attachment orders.

[4] The parties’ son turned 18 on March [...], 2012. [5] The evidence establishes that Mr. Vizzuso’s income from at least 2006 to the end of 2012 was substantially more than thelevel upon which the 1997 order was based. Ms. Jackson seeks an order requiring Mr. Vizzuso to pay the difference between theguideline child support amount applicable to his actual income from 2006 to the end of 2012, and the child support he actually paid. [6] Mr. Vizzuso takes the position that Ms. Jackson brought this application after the parties’ son had turned 18 (on March [...],2012) and was no longer a child under the Family Law Act s. 44(

b) definition. He submits that the application was made too late. He relies on Calver v. Calver (2104) 2014 ABCA 63 , 95 Alta. L.R. (5th) 63 (Alta. C.A.) which holds that the court’s jurisdiction tomake a retroactive support order exists if the child is still a child when the payor is served with the application but does not exist if theapplication is made after the “child” is no longer a child. [7] Ms. Jackson originally filed this application on June 8, 2012. Its return date was originally June 22, 2012. There weredifficulties serving Mr. Vizzuso.

But the materials indicate he had counsel involved by June 21, 2012 so it is clear he had been served bythat date. The first hearing before a judge of this court was on August 12, 2012. At that time the materials before the court were notsufficient to determine whether or not the parties’ son was still a child as defined by the Family Law Act s. 44(b). Rooke A.C.J. orderedthat Mr. Vizzuso on an interim without prejudice basis resume payment of child support in the amount that had been ordered in 1997pending hearing of the application. [8] Production of school records thereafter was not done efficiently.

The August 12, 2012 order was stayed pending productionof the required records. They were produced. Other delaying events intervened. The application was finally presented in special familychambers on September 3, 2014. [9] The Family Law Act s. 46(

b) provides: “child” means a person (

i) who is under the age of 18 years, or (ii) who is at least 18 years of age but not older than 22 years of age, and is unable to withdraw from his or her parents’ chargebecause he or she is a full-time student as determined in accordance with the prescribed guidelines. [10] The Alberta Child Support Guidelines s. 3(3) provides: For the purposes of . . .

section 46(b)(ii) of the Act, a full-time student is a person who is enrolled in a course or courses that constitute afull-time program of study during an academic term at (

a) a school as defined in the School Act . . . (

d) a school or institution that in the opinion of the court is substantially similar to those referred to in clauses (

a) to (c). [11] The materials before the court establish that the parties’ son was registered as a student at St. Joseph’s High School in Grade12 until June 29, 2012. He was then registered again in 3 courses at St. Joseph’s in September 2012. His attendance and diligence in thefall of 2012 was wanting. He completed one course but not the other two. The school indicated that he would not therefore be allowedto continue as a student at St. Joseph’s after January 2012. [12] Mr.

Vizzuso does not dispute that the course load for which his son was registered as at the end of June 2012 or for the 2012fall term was insufficient for him to qualify as a full-time student. He submits that because the graduation ceremony for Grade 12 hadoccurred in May 2012, and because his son did not apply himself in the fall of 2012, he was not in fact a full-time student any time afterMay 2012 and particularly at the time Ms. Jackson served this application. [13] The Family Law Act definition does not require anything more than enrollment in a course that constitutes a full-time programof studies.

It does not require that the child be diligent in his or her studies or that they complete the course. It may be that evidence thatregistration was undertaken for the purpose of coming within the definition when the child had no actual intention of attending school ordoing the work would justify the conclusion that the child was not in fact a child at the relevant time. But the evidence here is not of thatnature. The parties’ son attended the course of studies in which he was enrolled in the fall of 2012, perhaps not consistently, butconsistently enough to complete one course.

In any event the evidence establishes that he was registered as a full-time student as of June29, 2012, a date after this application was filed and had been served on Mr. Vizzuso. [14] I conclude that Ms. Jackson’s application was brought while her son was a child within the meaning of the Family Law Act. [15] Ms. Jackson made efforts to have Mr. Vizzuso’s child support obligation increased to reflect increases in his income in 2009and 2011. She engaged the services of the Child Support Resolution Office. Mr.

Vizzuso attended the meetings as required andprovided information as to his income which had indeed significantly increased since the 1997 order. However, the process did notresult in a resolution. Ms. Jackson did not bring an application at the time. [16] In these circumstances it seems clear that the 1997 order required adjustment and that Mr. Vizzuso knew it requiredadjustment. Indeed Mr. Vizzuso acknowledged as much when cross-examined on his affidavit. [17] I am satisfied that there should be an order for retroactive child support. The date to which the order should be retroactive is

three years prior to the service of this application – that is to July 1, 2009. (DBS v. SRG 2006 SCC 37 , [2006] 2 S.C.R. 231 atpara. 123.) Child support will be payable until the date on which the parties’ son ceased to be a child under the Family Law Act which Ifix as December 31, 2012. [18] I reject Mr. Vizzuso’s argument that a retroactive child support order will give Ms. Jackson an unjust windfall since she is nolonger required to pay for her son’s support. Mr.

Vizzuso did not properly address his responsibility to provide financial support in theappropriate amount for many years, though he was fully aware of the extent of that responsibility. Rather, Ms. Jackson was required tomake do with significantly less financial resources than she ought to have had available for the support of the parties’ son. That sheshould be compensated now for having done so is, in my view, entirely just. [19] I find that Mr.

Vizzuso’s income for the relevant period was as follows: July 1, 2009 to December 31, 2009 87,936.00 2010 128,150.00 2011 73,247.00 2012 73,247.00 [20] The amount of child support will be determined using the Federal Child Support Guidelines Table which applies by virtue ofthe Alberta Child Support Guidelines, s. 3(3). Mr. Vizzuso shall have credit for whatever child support payments he made in respect ofthe relevant periods. [21] Ms. Jackson shall have costs of this application. [22] I further order that so long as Mr.

Vizzuso pays $500 per month no later than the 15th day of the month to which paymentrelates, starting on December 15, 2014, enforcement of the judgment debt which this decision creates will be stayed. [23] Ms. Jackson’s counsel advised at the hearing of this application that she was about to leave the practice of law. If Ms.Jackson requires assistance in the preparation of the formal order she might seek it at the Family Law Information Centre. Heard on the 3rd day of September 2014. Dated at the City of Edmonton, Alberta this 12th day of November 2014. B.R. Burrows J.C.Q.B.A. Appearances: Emem K.

Madu for the Applicant Hu Eliot Young for the Respondent