CWT v KAT, 2014 ABQB 719

Court of Queen ’ s Bench of Alberta Citation: CWT v KAT, 2014 ABQB 719 Date: 20141127 Docket: 4803 158791, FL03 17538 Registry: Edmonton Between: C.W.T. Plaintiff - and - K.A.T. Defendant C.W.T. Plaintiff/Respondent - and – C.O. Defendant/Applicant _______________________________________________________ Reasons for Judgment of the

Honourable Madam Justice D.C. Read _______________________________________________________ A. Overview: [ 1 ] After the father of three children from two separate relationships was ordered to pay child support for his oldest child based upon the Child Support Guidelines, he sought and obtained an order lowering his child support for his two other children from his second relationship, based upon a claim for undue hardship. He later sought to reduce the amount he paid for his oldest child based upon undue hardship.

The mother of the younger two children concurrently sought to increase the amount paid for her children because of a change in circumstances. The two applications were heard together. B. Background to Present Applications: [ 2 ] C.W.T. (the “Father”) and C.O. (now married and with a different last name) lived together from October 2002 until August 2005 when they separated. They have one child, M.T. born November, 2004. After the separation, numerous court applications were made until finally the question of parenting and child support for M.T. was heard in a two-day trial in August 2013.

Joint parenting of M.T. was ordered (“C.W.T.-C.O. Order”) with M.T. to spend alternate week on/week off with each of his parents. The Father’s income was found to be $102,783. C.O.’s income was found to be $37,872. The Father was ordered to pay an off-set amount of $508 per month for M.T.’s support commencing September 1, 2013. However, because of previous overpayments, the Father did not actually have to commence paying the set-off amount until April 2014. The Father was also ordered to pay his proportionate share of s. 7 expenses for M.T., being M.T.’s after school care fees.

The evidence before me was that the after school care payment totalled $480 per month and the Father’s proportional share was $384. [ 3 ] The evidence was, as well, that the Father has been paying the total amount of $480 directly to the after school care provider. [ 4 ] By the terms of the C.W.T.-C.O. Order a one-time claim could be made for undue hardship after February 1, 2014. [ 5 ] C.O. has married and lives with her husband who is also employed. C.O. has two younger children with her now husband. [ 6 ] The Father married K.A.T. on August 19, 2008.

They have two children together, K.T. born July 2010 and J.T. born May 2012. The parties separated before J.T.’s birth and the Father commenced divorce proceedings in November 2011. Again, there is a history of numerous court applications. After a special chambers application in February, 2013, it was ordered (“C.W.T.-K.A.T. Order”) that K.A.T. would have primary care of the children. This order also required the Father to pay s. 3 child support of $1487 per month commencing February 1, 2013. He was ordered, in addition to pay 54.22% of the children’s daycare costs.

Further he was ordered to pay $786 per month in spousal support retroactive to September 1, 2012 until April 1, 2013 and then $1570 per month from May 1, 2013 to September 1, 2013. The order was structured in this fashion because K.A.T. was still on maternity leave at the time of the order but was scheduled to return to work as a teacher in September 2013. Arrears were also set, consisting mostly of spousal support. The Father was ordered to pay these arrears at $400 per month. [ 7 ] The evidence before me was that the daycare costs for the two children totalled $1570 per month until the summer of 2014.

The Father’s proportionate share for s. 7 expenses was 54.22% or $851 per month. [ 8 ] The Father brought an undue hardship application in the C.W.T. v. K.A.T. matter in October, 2013, claiming that his combined C.W.T. v. C.O. and C.W.T. v. K.A.T. child support obligations were too high. I agreed and by written decision (“Hardship Order”) concluded that his obligations to his two families, taken as a whole, met the requirements of s. 10 of the Child Support Guidelines. As indicated above, the Father was disabled by order from bringing a hardship application in the C.W.T. v.

C.O. matter until after February 1, 2014 and only the C.W.T. v. K.A.T. matter was before me. My order required the Father to continue to pay his proper proportionate share of the children’s s.7 expenses but lowered the s. 3 amount payable for the two children from $1,487 per month required in the C.W.T. v. K.A.T. matter to only $250 per month, reduced further to only $70 per month once the Father had to recommence paying his proportionate share of M.T.’s after school care. The decision was based upon equalizing the standards of living in both households. [ 9 ] I am case manager for the C.W.T.-K.A.T. matter. C.

Present Applications: [ 10 ] The Father brought an undue hardship application in the C.W.T.-C.O. matter on April 23, 2014. Although scheduled to be heard on May 5, 2014, it was adjourned. Because of my involvement in the C.W.T.-K.A.T. matter, I was requested to also hear the C.W.T.-C.O. undue hardship application. Both the Father and C.O. agreed.

K.A.T. was informed of this through her counsel and was requested to bring any application she wished to make to vary the Hardship Order concurrently. [ 11 ] On July 18, 2014, the Trial Coordinators office sent all three parties a letter confirming that the C.W.T.-C.O. undue hardship application was set down for November 6, 2014 before me. The letter stated the purpose of the case management hearing was to “hear the matter of undue hardship of the Father as it pertains to C.O. and its effect of ( sic ) the standards of living calculation and payments to K.A.T.”.

[ 12 ] K.A.T. brought an application on October 26, 2014 to vacate or vary the Hardship Order, as was contemplated in my direction to the parties. As was also contemplated in my direction, it was scheduled to be heard November 6, 2014, in conjunction with the C.W.T.-C.O. undue hardship application. [ 13 ] For reasons that are unclear, on October 17, 2014, the Father filed a further undue hardship application which he filed in both the C.W.T.-C.O. matter and the C.W.T.-K.A.T. matter.

Although the wording of his April application and his October application differed somewhat, in substance the two applications claimed the same relief – that the incomes of all three households be equalized and that all of the children be treated equally. D. Evidence: [ 14 ] The following evidence was filed: a. An affidavit affirmed by the Father on April 23, 2014, filed only in the C.W.T.-C.O. matter; b. An affidavit sworn by C.O. on May 2, 2014, filed only in the C.W.T.-C.O. matter; c. An affidavit sworn by K.A.T. on October 15, 2014, filed only in the C.W.T.-K.A.T. matter; d.

An affidavit affirmed by the Father on October 17, 2014, filed in both the C.W.T.-C.O. matter and the C.W.T.-K.A.T. matter; e. An affidavit sworn by C.O. on October 22, 2014 filed in both the C.W.T.-K.A.T. matter and the C.W.T. v. C.O. matter; f. An affidavit termed a ‘reply’ affidavit sworn by K.A.T. on October 29, 2014 filed in only the C.W.T. v. K.A.T. matter; g.

An affidavit, termed a ‘reply’ affidavit, affirmed by the Father on October 30, 2014 and filed in both the C.W.T.-C.O. matter and the C.W.T.-K.A.T. matter. [ 15 ] The Father complained at the hearing that he had not had an opportunity to respond to K.A.T.’s October 29, 2014 affidavit and said that his affidavit affirmed on October 30, 2014 was intended to reply only to the affidavit sworn by C.O. on October 22, 2014. He requested an adjournment to permit him to file a further affidavit. This application was denied.

I conclude that the Father has no right under the applicable practice note to file any further affidavits. His filing of a further application substantially in the form of a previous application did not alter the evidence he was permitted to file. E. Decision: a. Findings of Fact: [ 16 ] I make the following findings of fact from the evidence. a. The Father’s 2013 income tax return shows line 150 income of $100,713. Based upon his year to date income in 2014, his projected income for 2014 is $97,349.

His 2014 year to date income includes both the amount the Father received as a bonus in 2014 as well as what he receives from his employer as an automobile expense. Although the Father argued these two amounts should be subtracted from his income, there is no principled reason to do so. Just before the hearing, the Father provided some information that his income had recently increased. He said he did not have time to return to all of his materials to be filed to make the necessary corrections. His 2014 income may, therefore, be somewhat higher than projected. b.

K.A.T.’s 2013 income tax return shows line 150 income of $44,225. Based upon her year to date income in 2014, her projected income for 2014 is $85,434. c. K.A.T. was denied certain allowable tax credits by the Canada Revenue Agency. Although she intends to appeal the denial, it has resulted in the short term in K.A.T. having less disposable income. d. C.O.’s 2013 line 150 income was $35,997. Her projected 2014 income based upon her year to date income is difficult to determine. In September 2014, she began a 0.7 positon with a new school board.

Her income has increased but because this income commenced only in September, one cannot use it to extrapolate her annual income. e. C.O.’s husband D.D.’s 2013 line 150 income was $129,945. f. The after school care for M.T. totals $5980 per year. It is $480 per month from September to June and $590 per month in July and August. This is paid even though M.T. does not attend after school care in the summer months in order to keep his spot. g. No other s.7 expenses are claimed for M.T. although some are incurred both by C.O. and by the Father. h.

The Father is entitled to claim the equivalent to married amount for M.T. on his income tax returns He is also entitled specifically by the order to claim the entire amount of the after school care expense for M.T. on his taxes, notwithstanding that he is not obliged to pay the entire cost. i. The Father has been paying the entire amount of M.T.’s after school care to the provider, although it is not clear why. C.O. says she has tried to pay the Father directly her proportionate share but these cheques have not been cashed. The Father denies he has received these cheques.

On affidavit evidence, I am unable to determine whose evidence is more credible and reliable. In any event, the Father’s

legal obligation is to pay only his proportionate share of M.T.’s after school care j. Daycare for K.T. and J.T. totalled $1570 per month until September 2014, subject to a credit. Since then it has been reduced and now totals $1450 per month. k. The credit the Father is entitled to amounts to $792 for July and August 2014 day care costs. This credit results because K.A.T. was able to hold the children’s daycare spaces at a reduced cost over the summer months of July and August. l. Other s. 7 expenses for K.T. and J.T. are pre-school and dance for K.T. and swimming for both K.T. and J.T.

The cost for pre- school is $1477 per year ($125 registration and field trip fees plus $126 per month for 10 months) or $123.08 per month over 12 months. The cost for dance is $630 per year (registration fee, tuition, costume deposit) or $52.50 per month over 12 months. The cost for swimming actually incurred is $107 or $8.92 per month over 12 months. K.A.T. has paid these amounts herself without contribution from the Father although she seeks it. m. The Father has had no on-going obligation to pay spousal support and has not since September 2013.

Although his budget and his argument indicate that he has an on-going amount payable of $400 per month, which he calls “spousal”, this payment is, in fact, a payment on arrears of both spousal and child support. The Father received an income tax refund of just over $9000 after filing his 2013 income tax return. He could have paid off his arrears completely had he chosen to do so. n. Total arrears owed by the Father on the C.W.T. v. K.A.T. matter as of the date of the hearing are agreed to be $4610.29. Total arrears owed by the Father on the C.W.T. v.

C.O. matter on the date of the hearing are $1400 less the amount C.O. should have been paying for after school care or $980 for a total still owing of $420. b. Assumptions and Issues Not decided: [ 17 ] In his affidavits, the Father made arguments and made reference to law making it appear that he was seeking relief in respect to a number of other issues. The hearing date was specifically set aside to deal only with the two undue hardship applications. One half day was scheduled. No applications were formally made for any other relief.

To the extent they were made informally, these other applications are refused both because of my specific directions respecting what issues would be dealt with at this hearing and because the other parties had insufficient notice that these other issues would be heard. [ 18 ] Therefore, retroactive adjustment downward of child support payable in the C.O. matter is refused. I note that the C.W.T.- C.O. Order was not appealed. [ 19 ] An order to make parenting time between the Father and K.A.T. equal is refused. I note that the C.W.T.-K.A.T. Order was not appealed.

There has been no change in circumstances to justify a change in parenting time. [ 20 ] The Father has the two children from his relationship with K.A.T. with him for no more than 36% of the time. K.A.T.’s evidence is that the C.W.T-K.A.T Order is being followed. The Father gave evidence during the C.W.T.-K.A.T. hardship application that the amount of time the children were in his care totalled 36%. This percentage was not disputed by K.A.T. The Father wishes to re- calculate the percentage amount now based upon evidence he says points to a higher percentage.

K.A.T. provides evidence which she says points to a lower percentage. I am not able to make findings of fact on disputed affidavit evidence. I have assumed for the purpose of these applications that the C.W.T-K.A.T.

Order is being followed and that, therefore, the Father has K.T. and J.T. with him 36% of the time. [ 21 ] Even if it could be shown that the Father has K.T. and J.T. 40% of the time, his laboured calculations as set out in paragraphs 45 to 50 of his affidavit affirmed October 30, 2014, provide ample evidence of the reason Parliament saw fit to give discretion to judges to refuse to set off amounts payable under the Guidelines, pursuant to s. 9 of the Child Support Guidelines.

I would exercise this discretion to refuse to set off, were it necessary. [ 22 ] No penalties added by the Maintenance Enforcement Program (“MEP”) for late payments will be reduced or cancelled. MEP was not represented at this hearing and an application to reduce MEP penalties was not contemplated in my direction respecting this hearing. [ 23 ] The Father also appeared to make an argument to impute income to C.O. This application was not contemplated in my direction respecting this hearing and is denied. F. Reasons for Decision: i.

Law [ 24 ] The principles which govern an undue hardship claim are set out in s. 10 of the Child Support Guidelines which provides: 10.

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II.

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [ 25 ] In Hanmore v Hanmore 2000 ABCA 57 , at para 9 (leave to appeal denied [2000] SCCA No 182), the Alberta Court of Appeal established the test for undue hardship claims and offered some helpful comments. [ 26 ] Briefly, the Court in Hanmore concluded that where a claim of undue hardship is made under s. 10 of the Guidelines, there is a two stage test: 1. The applicant must prove specific facts establishing undue hardship.

Section 10(2) provides a list of potential circumstances but there may be more. 2. If undue hardship is established, the applicant must show that the applicant's household would enjoy a lower standard of living than the household of the recipient parent if child support was not reduced. [ 27 ] Even where a lower standard of living is found in the payor's household the Court retains a discretion to refuse to reduce the guideline amounts. [ 28 ] The Court noted that the objectives of the Guidelines are found in s. 1.

The Guidelines are to ensure that families in similar circumstances are treated the same and to ensure children benefit from the support of both parents following separation. Too broad a definition of undue hardship would defeat these goals and as such, undue hardship should only be recognized in exceptional circumstances ( Hanmore at para 10 ).

These goals must be in mind when considering an application for undue hardship. [ 29 ] In coming to its decision, the Court in Hanmore reviewed a number of cases concluding that "the burden of establishing a claim of undue hardship is a heavy one...the hardship must be more than awkward or inconvenient. It must be exceptional, excessive, or disproportionate in the circumstances": Hanmore at para 17 .

Notably relevant to the present case, the Court also found that "obligations to a new family" or a "lower standard of living than the payee spouse" alone, are not sufficient to establish undue hardship - specific evidence of undue hardship is required: Hanmore at para 17 . [ 30 ] Hanmore was recently applied by this Court in St. Laurent v St. Laurent 2014 ABQB 519 . [ 31 ] In St.

Laurent , my colleague Graesser, J. considered an application for undue hardship where the payor parent had child support obligations to four children in two families: The obligations of the applicant included (roughly) $1,800 for child support and arrears for his first family and $250 in child support for the second. Payment of these obligations left the payor with $1240 on which to live. Graesser, J. concluded that this left the payor under the poverty line with an income similar to that of an adult receiving assistance through Assured Income for the Severely Handicapped.

The first family, while not well off, was above the poverty line. On these facts, the Court was satisfied that the onus of proving undue hardship was met – that is that there was undue hardship and that the other household enjoyed a higher standard of living. [ 32 ] In determining what relief to give, the Court acknowledged that the payor spouse would have difficulty supporting himself on just $1240 per month but noted that Mr. St. Laurent was partly responsible for his problems as he owed arrears.

[ 33 ] The Court did not find reason to reduce the s. 3 payments or arrears as previously ordered, finding that those were reasonable given the income of the applicant. However, the Court found it had more discretion regarding the s. 7 payments arising from daycare ordered those reduced from $600 to $300. This was, in part, because of the particular family circumstances where the Court concluded the older children could care for the younger thereby reducing the need for childcare. Mr. St.

Laurent was ordered to continue to pay his proportionate share of other s. 7 expenses. [ 34 ] The Court acknowledged that over half of Mr. St. Laurent’s after-tax income went to supporting his children but determined that “he must accept that his primary responsibility is to support his children”.: St. Laurent at para 61 . ii. Undue Hardship Application in C.W.T. v.

C.O . [ 35 ] I will deal firstly with the application for undue hardship filed by C.W.T. in the C.W.T. v C.O. matter since it was filed first in time. [ 36 ] The Father provided evidence about his current finances which show difficult financial circumstances but I have concluded it is unreliable. In the body of his October 17 affidavit, he provided figures which he said indicated he had $2840 per month to live on after paying his present support obligations. This calculation is based upon what he alleges is net income of $4946 per month.

However, his most recent pay stubs, also provided in that affidavit, show that his actual net income at least for September, 2014 totalled $7906.66. I note, as well, that the employer deducted $788 for a garnishment payment from the gross amount paid from each of the amounts C.W.T. was paid that month for a total of $1576. Other evidence provided makes it clear that MEP has garnished the Father’s income because he has growing arrears in maintenance payments. As well, the pay stub shows a deduction for an RRSP contribution of $385.13.

As a consequence, by my calculations, the Father’s actual net income for September was over $9000. His evidence was that he has “just found out” he received a raise and his September paycheque reflects a retroactive payment “to July 15”.

What is clear, however, is that the net amount deposited in his account in September is far different from the net amount he used in his calculations in paragraph 9 of his affidavit. [ 37 ] By my calculations, the Father’s net income is, in fact, close to $7000 per month if one adds back the garnished amount and the amount he has deducted each month for purchase of RRSPs. [ 38 ] Further, net take home pay is not what is considered in child support calculations under the Alberta Child Support Guidelines .

Section 16 specifies that “total income” as set out in the tax return is the correct amount to use. One of the reasons for this is that net amounts reflect deductions made by an employer and not, necessarily, the amount of income a party has at his or her disposal. The Father has a number of tax credits which he is able to make use of. For example, he is able to use the equivalent to married deduction for his son M.T. and by agreement with C.O., he deducts the entire cost of M.T.’s after school care notwithstanding that he is not liable to pay the entire amount.

I am not aware what deduction information he has provided his employer so it may be that more income tax is deducted than he actually is required to pay. In evidence was the fact that the Father received an income tax refund of some $9000 in respect to his 2013 tax assessment. [ 39 ] Based upon all of this, I am far from satisfied that the Father’s evidence respecting his actual net income is accurate and I conclude that I can place little reliance upon it. [ 40 ] The Father also provided a budget of his estimated current expenses as

schedule C to his October affidavit. This budget purports to show a monthly deficit of $1483 per month but again, I have concluded that it is inaccurate. To begin with, the budget uses the same ‘net income’ that I have commented on above. Further, the budgeted expenses are also not what they appear at first glance. For example, the budget includes a car payment of $600 but indicates this has yet to be incurred. It also includes the full amount of M.T.’s after school care and a number called ‘spousal arrears’ of $400 per month as well as something he called MEP penalties and interest at $25.

A new vehicle has not been purchased. As I have already indicated, I find as a fact that the Father could have paid off all arrears at MEP with his income tax rebate had he chosen to do so and thus avoid MEP penalties and interest as well as on-going monthly payments on arrears. To the extent that the Father has not paid off his arrears, he must live with the consequences of that decision and any on- going expense resulting from the fact that he has not, should not be considered for purposes of an application for hardship. [ 41 ] I note, as well, that the Father continues to contribute to an RRSP.

In argument he indicated that he did this because his employer matched contributions. Although I am sure this makes contributing more attractive, an RRSP contribution is not an expense or deduction which can be taken into account when considering available income in a hardship application. The Father has benefitted from this contribution in that the value of his RRSP has increased significantly over the past year. [ 42 ] His obligations to his three children based upon the current amounts payable totals approximately $3200.

If I am correct, and the Father’s actual take home pay is closer to $7000 per month than to the amount he alleges, he still has between $3000 and $4000 to live on each month. While this will not afford him a high standard of living, it will not leave him in poverty. [ 43 ] Over all, I conclude that the Father has not met the onus he has to prove that he is suffering undue hardship. I decline to reduce the amount he must pay to C.O. iii Variation of Undue Hardship Application in C.W.T. v.

K.A.T. [ 44 ] In my previous order, the Hardship Order, I specifically permitted a variation application of that order on a change of

circumstances. I conclude that there has been a change in circumstances since my previous order. K.A.T. has been forced to take on significant debt in the past year. Her evidence was that when the previous order was given, she had almost no debt. She now has over $12,000 in debt, not counting her legal costs and over $40,000 in total consumer debt. K.A.T.’s financial situation has deteriorated in the past year. [ 45 ] On the other hand, the Father’s has improved. He has not had to draw on his line of credit. He has regularly paid off his credit card each month.

His RRSP and his other investments have increased in value. [ 46 ] I conclude, therefore, that the application to review and vary the previous undue hardship application is properly brought. [ 47 ] K.A.T. earned an income of $44,225 per year, according to her 2013 tax return. Based upon her year to date income in 2014, her projected income for 2014 is $85,434. The Father’s income was higher at $100,578.60 per year according to his 2013 tax return. Based upon his year to date income, his projected income for 2014 is $97,349. [ 48 ] Both parties must pay their share of childcare expenses.

On the evidence, K.A.T. has, in fact, had to pay more than her share and the Father less than his share because of confusion at MEP which I will refer to below. Further K.A.T. has paid all of K.T.’s preschool and dance costs as well as swimming costs for both children. As well, she has had significant legal fees. She has gone significantly into debt over the past year, and says she fears she will have to sell her home in order to pay down debt and decrease costs. [ 49 ] K.A.T.’s budget is not extravagant.

She says, and I accept, that she has had to borrow money from her mother in order to make ends meet. [ 50 ] On the other hand, the Father has not suffered similarly. As I have already said, his budget is not accurate. He has also been able to maintain and even increase his assets. His bank account shows he has never been in an overdraft position since the last application.

His debt has not significantly increased. [ 51 ] It may be, as well, as claimed by K.A.T., that the Father’s standard of living is improved by gifts from his generous mother. [ 52 ] K.A.T. says that the Father misrepresented his financial situation when he made his undue hardship application in the fall of 2013. I have not reviewed the affidavits he filed at that time to satisfy myself of the accuracy of her claim of misrepresentation of his situation.

In any event, the decision was not appealed and I will not second-guess it now. [ 53 ] However, on the evidence before me now, I am not satisfied that a continued reduction in s. 3 support for K.T. and J.T. is warranted on the basis of undue hardship. I am concerned, in fact, that if I do not require the Father to pay the required amount of s. 3 support, the children will suffer in their mother’s home. [ 54 ] I note that the Father’s and K.A.T’s budgets show similar costs for mortgage, utilities, and insurance. K.A.T also has a car payment.

K.A.T’s take home income is remarkably similar to that claimed by the Father. The Father asserts that he has great difficulty living on what he takes home but does not appear to acknowledge that K.A.T has similar expenses. I also disagree that the Father continues to incur debt in order to care for his children. The debt he shows was incurred over three years ago and seems connected with the costs of the previous litigation and not for the purposes of caring for his children.

While K.A.T.’s legal fees have increased her debt substantially in the past year, her evidence shows that she has incurred $12,000 in debt solely in order to pay living costs, including care for the children. [ 55 ] I conclude that the Hardship Order has inadvertently created a hardship for K.A.T. She has K.T. and J.T. for more than half of the time. She is their primary parent. Continuation of the Hardship Order will continue the imbalance. The Father has paid greatly reduced child support for K.T. and J.T for a year. He has not used the time and resources he has had in order to decrease arrears.

Indeed, it appears his arrears have increased as he has not paid all of his share of the children’s daycare. The present situation cannot continue. I order that on an ongoing basis commencing November 1, 2014, the Father shall pay the full amount of his s. 3 support for the two children of his relationship with K.A.T. as well as the full amount of his share of the children’s childcare costs. [ 56 ] Undoubtedly my order will result in financial stress for the Father. He will have to budget carefully and do without extras. He may have to dip into assets or incur debt.

In order to allay his financial pressure, at least somewhat, I will not require that he contribute at this time to the children’s other extra-curricular activities – pre-school, dance and swimming. [ 57 ] In passing, I would also note that K.T. and J.T. currently have high child care expenses incurred because both their parents work and the children are young. However, as K.A.T. points out, this situation is temporary and the children will require only before and after school care once they both get into school.

They are fortunate that their mother is a teacher and so child care expenses in the summer should be lower. [ 58 ] I conclude that for on-going child support purposes, the Father’s income should be set at $97,349 and K.A.T.’s income shall be set at $85,434. Both parents must exchange their income tax returns each year as soon as they have filed them but in any event no later than May 15 in each year and shall exchange all related notices of assessment and reassessment as soon as received.

Once the income tax returns are received, the parties will review and readjust the amount of child support payable based upon the line 150 income shown on their income tax returns, such adjustment to be retroactive to January 1 each year. [ 59 ] I order, in addition, and to reduce further conflict and legal costs that both parents may incur whatever recreational expenses they consider appropriate and in their child’s best interests but, unless they have obtained the prior written consent of the other party, the other party shall not be required to share in these expenses.

If such consent is obtained, each party will pay their proportionate share of the agreed to expense. [ 60 ] I order, as well, that both parents will maintain the children on their health benefits plan and any health expense shall be

submitted to K.A.T.’s plan as primary payor and to the Father’s plan as secondary payor. They shall share any uninsured portion in accordance with their proportionate incomes. [ 61 ] I understand that MEP has confused the amount the Father should have been paying in attempting to interpret my previous order. This has resulted in the Father paying less than ordered. I ordered that he should pay $851 per month as his share of the childcare expense. In fact, MEP required him to pay only $598 per month. Between November, 2013 and October 2014. The Father owes $3036 ($253 x 12) as arrears for childcare expenses.

If this amount was not included in the agreed arrears of $4610.09, set out above, then it should be added to it. [ 62 ] C.O. has been successful in the C.W.T.-C.O. matter and is entitled to her costs under Column 1 of

Schedule C. K.A.T. has been successful in the C.W.T.-K.A.T. matter and is entitled to her costs under Column 1 of

Schedule C. Heard on the 6 th day of November, 2014. Dated at the City of Edmonton, Alberta this 27 th day of November, 2014. D.C. Read J.C.Q.B.A. Appearances: C.W.T. self represented Megan L. Dawson for the Defendant, K.A.T. C.O. (now C.D.) self represented