Brandson v Brandson, 2015 ABQB 796

Court of Queen ’ s Bench of Alberta Citation: Brandson v Brandson, 2015 ABQB 796 Date: 20151215 Docket: 4803 162957 Registry: Edmonton Between: Holly Rae Brandson Applicant - and - Alex Brandson Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this special chambers application, the mother of a 12 year old child for whom she has primary care asks the father to contribute on both a retroactive and ongoing basis to that child’s dance expenses of approximately $7,300.00 in 2013/14 and $7,800.00 in 2014/15 and a forecast of approximately the same level of expense in the future. The mother argues that she supports her daughter’s dance passion, and so should the father. In 2014/15, the mother paid a total of $440.00 for the extracurricular expenses of the parties’ two boys.

On May 6 th , 2015, the court found that the father’s income was $48,500.00 and the mother’s income was $15,000.00; on that basis, the father is paying $914.00 per month in s. 3 child support plus $50.00 per month towards arrears. During the course of the application, the mother – who was not represented – stated that she would be satisfied with an order that the father pay 50 per cent of the child’s dance expenses rather than his proportionate share of those expenses.

[ 2 ] The father opposes the application on three grounds: first, the amount of time spent by his daughter on dance is unreasonably high – 11 ½ hours during the week and additional hours as a student teacher on week-ends – and that amount of time encroaches on his access time not only with his daughter but also on his access time with his other children. Second, this level of s. 7 expense for one child is unfair to the parties’ two other children. Third, he cannot afford to pay for these lessons.

After paying s. 3 child support plus arrears, and $1,500.00 on his mortgage, the father, who has alternate week-end access and extended access during vacation periods, has $657.00 per month left to pay for condo fees, utilities, vehicle expenses (lease, gas, insurance), food, credit card and loan payments, etc. [ 3 ] The mother’s application is denied. [ 4 ] The dance expenses are extraordinary extracurricular expenses. [ 5 ] The father has received adequate notice of what has become an application for retroactive support. [ 6 ] The evidence does not satisfy the mandatory requirements of the Guidelines: on the one hand, there is no evidence that dance at this level is “necessary” in their daughter’s best interests and, on the other, the evidence establishes that expenses at this level are not reasonable given the parents’ combined income, the number of their children, and the available evidence about the daughter’s dance prospects.

Therefore, the court is not required to consider the discretionary issue of whether an order should be made in these circumstances. Cases and authority cited By the court : Thompson v Thompson 2013 ONSC 5500 . 1. Background

a) Factual [ 7 ] The parties are the parents of three children, a daughter who is now 12 and two younger boys, one 9 and one 6. The parties separated in late 2012; the mother brought an application for child support in January, 2013. At that time, both parties were represented by lawyers; the mother raised the issue of the cost of dance lessons, and dance competitions, etc. [ 8 ] While the parties were living together, the father paid all of the household bills. After separation, the father appears to have assumed the matrimonial debt.

The mother and children remained in the matrimonial home; when the father started paying child support, the mother paid the mortgage on the matrimonial home and some of the other household expenses. At that time, their daughter’s dance fees were $265.00 per month; in addition, in January 2013, there was a $1,500 competition fee that needed to be paid and the mother indicated that additional choreography fees of $2,000.00 to $3,000.00 would have to be paid in February.

Also, at that time, the mother claimed that the father’s line 150 income was approximately $103,000.00 and that her line 150 income was $2,400.00; the father claimed that the mother earned approximately $30,000.00 per year of undeclared income from her house cleaning business. [ 9 ] In May, 2013, this court approved a consent order, signed by the parties’ lawyers, based on the mother’s guideline income of $30,000.00, and the father’s income of $89,431.00, requiring the father to pay $1,678.00 per month for the support of his children commencing April 1, 2013, and to pay his proportionate share of s. 7 expenses also payable on the first day of each month commencing April 1, 2013.

In addition to paying the amount set out above, the father indicates that he paid for school fees and for many other of the children’s expenses. [ 10 ] In August, 2014, the mother brought an application for changes to the parenting regime, for s. 3 child support based on the Guidelines and for s. 7 expenses which were itemized at $7,944.84 for the daughter, and approximately $900.00 for one son for hockey, On that application, the mother indicated that her income for 2012 was $18,504.00 and her income for 2013 was $13,542.00. [ 11 ] In September 2014, this court approved a consent order, signed by the parties’ lawyers, which: again set the father’s income at $87,562 and the mother’s income at $13,542; tweaked the parenting regime; ordered the father to pay child support of $1,645.00 per month, commencing September 1, 2014; distributed the small amount of profit from the sale of the matrimonial home; and, adjourned the issue of s. 7 expenses to a date to be determined by the parties, or, as lawyers used to say, sine die .

The mother indicates that she didn’t insist that the s. 7 issue be addressed on her lawyer’s advice. [ 12 ] In February 2015, this court granted a divorce judgment to the parties indicating that the 2013 guideline incomes for the father and the mother were $87,562 and $13,542 respectively, and reporting that corollary relief was severed from the divorce judgment.

Both parties were represented at that time. [ 13 ] On May 6, 2015, after attendance at a Child Support Resolution Meeting, and on the consent of both parties who were unrepresented at the time, this court issued an order stating that, based on the father’s income of $48,500.00 and the mother’s income of $15,000.00, the father would pay $914.00 per month for the support of his children, beginning on June 1, 2015, and that the father was in arrears of child support in the amount of $3,072.00, which he would pay off at the rate of $50.00 per month in addition to his regular s. 3 child support. [ 14 ] The mother asserts that the daughter has been taking dance lessons since she was 4, that she enjoys these lessons and would like to continue to do so.

Indeed, she says that dance is her daughter’s passion, and that she supports her in this. [ 15 ] The father, who had earned in the range of $100,000.00 yearly, recently lost his employment in the oil and gas industry.

The father asserts that, even while the parties were living together, he objected to the cost of the daughter’s dance classes; he claims that, while the parties lived together, the mother undertook to assume the cost of the dance classes. [ 16 ] The father is now employed by an arms’ length employer at a yearly salary of $48,500.00; he indicates that, in October 2015, he is in line for other employment, which will not give him the flexibility to contribute very much to the daughter’s need for

transportation to and from her various dance obligations. [ 17 ] Post-separation, the father purchased a condo, which he said resulted in approximately the same cost to him as would the renting of equivalent accommodation suitable for the access parenting which he enjoys. He states that, as of September 2015, his mortgage was $1,515 monthly, with an additional condo fee of $167.00. His utilities, including gas, internet, power and water average $377.00 per month. His gas averages $300.00 per month and his car insurance $115.00.

His food cost for the month (including when he has the children on alternate weekends) is $300.00. He pays $955.00 on his credit card and $370.00 on his loan account. Based on these average monthly payments and his average monthly take home pay, he is in a deficit position of approximately $3,000.00 every month.

He states that, in addition, he owes income tax arrears of approximately $5,000.00 from 2012, property tax of approximately $2,500.00 (which compares to the approximately $4,000.00 in property tax on the home in which his wife and children currently reside), and outstanding credit card and loan debts of approximately $78,500.00. His budget does not include haircuts, vehicle maintenance, bank fees, birthday presents, cell phones, etc.

There has been no questioning of the father’s budget by the mother; nor has the mother raised any concern about inappropriate spending on personal items by the father. [ 18 ] Post-separation, the mother remained in the matrimonial home until August 2013 when the home was sold; she then rented a house. In August, 2014, she moved into her fiancé’s home, which, according to the 2011 municipal tax assessment value, appears to be considerably more comfortable than the home in which the father is currently residing.

Post-separation, she bought a $42,000.00 vehicle; the evidence on which she obtained financing for this vehicle is not before the court. The mother indicates that she expects her income to increase to approximately $24,000.00 for this year. She continues to operate the house cleaning business which she has owned for many years. [ 19 ] The mother provides evidence of the cost of dance lessons for the parties’ daughter. In total, the amount paid for 2013/14 was $7,295.01 and the total amount paid for 2014/15 was $7,835.21.

The mother indicates that, not included in these figures are expenses such as: hair and make-up requirements for competitions, regular dance class clothing wear, parking fees and food to attend competitions, travel costs to out-of-town competitions, hotel fees, etc. The mother’s position is that the total cost for dance lessons, participation in dance competitions, etc. for 2015/16 would be similar to that paid for the last year. [ 20 ] The dance school teaches tap, jazz, ballet, aero, modern, contemporary, improv, musical theatre, voice and hip hop.

The owner and artistic director of the dance company where the daughter is enrolled indicates that the daughter dances 11 ½ hours during the week, and, in addition, is a student dance teacher on Saturdays. Apparently, the daughter has passed a Royal Academy of Dance Ballet exam and Al Gilbert Technique Tap exam with high marks in both, although no detail is given of the grade, for example, which the daughter has achieved in the Royal Academy of Dance (Ballet) program.

In addition to the time which the daughter spends in dance classes, the father is materially involved in transporting his daughter to and from her various dance obligations; on many occasions, the parties’ sons have also been required to spend time with their father in transporting their sister to her dance engagements. [ 21 ] In a letter dated September 5, 2015, the daughter’s dance teacher speaks of the daughter’s love of the dance program and makes these comments: “[The daughter]’s program and hours are comparable to other dancers she is surrounded by. . .

If you [love] it, you will be good at it, in your heart. . . . Dance is a very demanding sport. . . . I believe she could go on to a professional career if she chooses.” The type of career is not mentioned in the teacher’s letter, but the mother indicates that many graduates from this dance academy go on to become dance instructors on cruise ships. [ 22 ] There is no information about whether the daughter’s dance expenses have been, or could be, claimed as fitness tax credits.

b) Procedural and Legislative [ 23 ] The mother’s application to have the father contribute to s. 7 dance expenses was adjourned to a date to be determined by the parties, or sine die as lawyers used to say, on September 3, 2014. [ 24 ] The Federal Child Support Guidelines set out the definition of "extraordinary expenses" with regard to extracurricular and other activities.

Section 7 reads as follows: 7.

(1) In a child support order the court may , on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation : (

a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of "extraordinary expenses"

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term "extraordinary expenses" means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. (Emphasis added) 2. The dance expenses are extraordinary extracurricular expenses [ 25 ] The daughter’s dance expenses are extraordinary: they meet both

definitions of the expression set out in s.7(1.1) of the Guidelines. 3. The father has received adequate notice of the mother’s claim for what have become retroactive claims [ 26 ] The mother brought her claim for s. 7 dance expenses essentially upon separation; therefore, the father has had adequate notice of what have become retroactive claims. [ 27 ] Nonetheless, because the mother continually agreed to the adjournment of the claim for dance expenses, the court must assess the necessity and reasonableness of the expenses, including the father’s ability to pay those expenses, as at the date of the hearing.

This is not a situation where, knowing of the mother’s claim, the father should have put money aside in case the mother’s claim would be upheld. 4. The dance expenses are neither necessary in the daughter’s best interests nor a reasonable expense to which the father should be required to contribute [ 28 ] The mother does not advance any evidence that the dance costs are necessary for her daughter’s best interests: participation in this extracurricular activity is not required to achieve some developmental goal.

For example, dance lessons are not required to achieve some health objective such as improved flexibility or balance, or some emotional objective such as self-confidence. [ 29 ] In any event, however, it is not reasonable to expect the father to share in the extraordinary expenses for his daughter. [ 30 ] In coming to this conclusion, I have taken into account the process illustrated in Thompson , which, oddly enough, also centered on dance costs. In that case, the trial judge held: 163 . . .I find that the Applicant's income for the purposes of calculating

section 7 expense contributions was as follows: Total 2009 income for child support purposes: $81,018.00 164 The Respondent's income for the purposes of calculating

section 7 contributions for 2009 was as follows: Total 2009 income for child support purposes: $46,768.00 . . .

165 Based on the foregoing, the parties' proportionate shares with respect to

section 7 expenses for 2009 would have been 61% for the Applicant and 39% for the Respondent. I have considered the issue of dance fees which the Applicant paid for Jessie and Paige in 2009 in the amount of $720.00, covering the months of September to December 2009. I am satisfied that this expense qualifies as an extraordinary expense towards which the Respondent should have contributed. The evidence indicates that Jessie and Paige had both been participating in dance prior to the separation, and that this was an expense which both parties had agreed to incur before June 2009.

I find that this was an activity that was important to both children, and that it was in their best interests to continue with this activity given their previous involvement in dance and the challenges which they experienced at the time as a result of their parents' separation . I am also satisfied that the expense was beyond what the Applicant could reasonably cover. She was living in an apartment to minimize her expenses at that time, since the Respondent was residing in the matrimonial home. Her net worth was only approximately $25,000.00, the majority of which consisted of her interest in Harmony.

Taking into consideration the parties' combined incomes in 2009, I conclude that the children's dance expense was reasonable. The net amount of the dance expense after taking into consideration the child fitness tax credit was $612.00 . The Respondent should have contributed $238.00 to this expense. . . . 167 With respect the

section 7 expenses for 2010, the parties' incomes for the purposes of

section 7 apportionment must be determined. . . . Total 2010 income for child support purposes: $85,172.00 168 The Respondent's income for the purposes of calculating the parties' respective contributions to

section 7 expenses would have been as follows: Total 2010 income for child support purposes: $46,897.00 . . . 169 The parties' proportionate shares with respect to

section 7 expenses for 2010 would have therefore been 60% for the Applicant and 40% for the Respondent. The Applicant incurred expenses relating to dance registration fees and dance supplies for Jessie and Paige in the amount of $2,757.22 in 2010. I am satisfied that these expenses are s. 7 extraordinary expenses, for the same reasons as I have outlined above with respect to dance expenses in 2009. In addition, Paige and Jessie were involved in a theater program through Theatre Aquarius in 2010. The Applicant incurred fees totalling $790.00 for both children in 2010 .

I find that the Respondent was aware of the children's participation in this program and did not have any objection to their involvement in this extracurricular activity. The children were only involved in two activities, and the fees involved were in my view reasonable. I find that the children very much enjoyed their involvement in the theatre program, and that it was in their best interests that they be involved in theater. Having regard for these factors and the combined incomes of the parties in 2010, I conclude that these expenses fall within the definition of

section 7 extraordinary extracurricular expenses. The total amount of

section 7 expenses which the Applicant incurred in 2010 for dance and theater was approximately $3,500.00. The net amount of the expenses after taking into consideration the child fitness tax credit was $3,350.00. The Respondent's proportionate-to-income share would therefore have been $1,340.00. . . . 173 The parties' proportionate shares with respect to

section 7 expenses for 2011 would have therefore been 61% for the Applicant and 39% for the Respondent. The Applicant incurred expenses relating to dance and theater in the amount of $4,712.54 in 2011. The increase in the cost of these activities was attributable to the children moving to competitive dance. The parties both testified that they struggled financially following the separation. I have reviewed the Applicant's Financial Statement sworn July 12, 2012 and the Respondent's Financial Statements sworn April 18, 2011 and December 20, 2012 to obtain an understanding of their respective financial positions.

The Applicant's Financial Statement sworn July 12, 2012 did not include the children's dance and theater related expenses. If the expenses had been included, she would have shown a monthly surplus of approximately $1,280.00. However, her housing expenses were extremely low as she was living in a small apartment and attempting to save up for a house. The Respondent showed a monthly deficit of approximately $1,180.00 in his Financial Statement sworn December 20, 2012.

Having regard for the parties' respective financial situations in 2011, I conclude that it was not reasonable to expect the Respondent to contribute to the additional expenses related to competitive dance. I find that the amount of $3,500.00 which the Applicant incurred for extracurricular activities in 2010 was the upper limit of what was reasonable having regard for the parties' respective financial situations, and I have therefore used that figure for the purposes of the

section 7 calculation. The net amount of this expense after applying the child fitness tax credit was $3,350.00. The Respondent's proportionate share would therefore have been $1,306.00. . . . 182 Turning to

section 7 expenses, I find that the Applicant incurred $6,573.95 in relation to dance and theater classes in 2012. The further increase in the cost of these activities was attributable to the children continuing with competitive dance. For the same reasons which I outlined above in relation to the

section 7 expenses for 2011, I conclude that the sum of $3,500.00 was the upper limit for extracurricular expenses which the parties could reasonably afford, and I have therefore used that amount for the 2012

section 7 calculation. The net amount of this expense after applying the child fitness tax credit would have been $3,350.00. The Respondent's

proportionate 40% contribution would have been $1,340.00. [ 31 ] Dealing first with the composition of the family, it appears that in Thompson there were only two children, that both children were involved in dance and theater, and that the claimed costs related to two children. Here, the parties have three children and the dance costs relate only to one child. It would clearly be totally impossible for the parents to spend a total of $24,000.00 a year on extracurricular expenses for their children.

The disproportionate expenditure of money and time on one child is one factor which weighs against this expenditure being reasonable. [ 32 ] Dealing next with the need to continue with the extracurricular expenses, in Thompson there was apparently evidence that the children were subjected to challenges as a result of their parents’ separation. There is no such evidence here.

Nor is there evidence that the daughter has any exceptional talent that would justify incurring extraordinary expenses; on the contrary, the evidence is that she is, more or less, in the same situation as the other students in her classes at only one dance academy in Edmonton. [ 33 ] As to the situation prior to separation, while it is true that the daughter was participating in dance while the family was living together, the evidence on this application is that, while the parties were living together, the father objected to the high cost of dance and the mother, by conduct if not explicitly, agreed to pay for dance on her own.

This is different from Thompson where participation in dance was agreed between the parties and where the parents shared the cost prior to separation. [ 34 ] Also in Thompson , it appears that the parties were able to take advantage of the fitness tax credit to greatly reduce their real cost for dance.

There is no information from these parties about that aspect of the matter; it may be that the mother was not showing sufficient taxable income to be in a position to claim a tax credit for the amount that she was spending on dance. [ 35 ] Looking next at the incomes of the parties, I must accept their incomes as agreed by them a few months ago; nothing material has changed since then. The mother may hope that her income will increase in the future, but, given the experience of the past few years, there is no basis on which such improvement can be confidently predicted.

Their combined incomes of $63,500.00 must therefore be compared to the dance expenses of approximately $8,000.00 – taking into account make-up and other related expenses. That amount is, roughly, the amount which Statscan says that an average household in Canada paid for food in 2013, or an average household paid for recreation in 2013.

That amount can also be compared to Thompson where the 2011 combined income of the parents was approximately $132,000.00, the claimed expenses were approximately $4,700.00 and the court imposed an upper limit of $3,500.00 on the contributable s. 7 expenses. [ 36 ] As to whether a disproportionate expenditure on one child could be justified in light of the parties’ overall financial circumstances, I note that, here, the matrimonial debt is so large, and the prospects of paying off that debt appear so remote that the father should presumably be taking some professional advice as to whether, and how, he could satisfy that debt in the reasonable future.

In any event, however, the father is facing a monthly deficit of approximately $3,000.00 plus outstanding debt in excess of $75,000.00. It is not clear how the parties ended up with such large matrimonial debt, although the mother does not suggest that the father spends inappropriate amounts on any of his personal interests.

In any event, from the financial information provided by the father and from the fact that the parties’ then lawyers appeared content to regularly understate the father’s income for child support purposes, it appears that the father has had the main responsibility for the payment of matrimonial debt both pre- and post- separation.

Without knowing anything specific about the financial circumstances of the mother’s re-partnering, except that she drives an expensive vehicle, lives in a more comfortable home than does the father, and is apparently free of matrimonial debt, the mother appears to be comfortably off and able to provide the children with a standard of living which is at the least equal, and perhaps better, than the standard of living in the father’s home. At one time post-separation, the father was living in his car.

In other words, the financial circumstances of these parents are very different from those in Thompson ; here the father’s financial health is precarious. He is in no position to be incurring additional debt and, without doing so, he could not possibly afford any share in these dance lessons. [ 37 ] It is not clear that the result would have been different had the mother brought her application while the father was still earning $100,000.00 a year.

However, the evidence is clear that, at this period in his life, the father cannot afford to contribute to his daughter’s dance commitments. [ 38 ] Because the mother’s claim does not meet the mandatory requirements of necessity and reasonableness, it is not necessary for the court to go on to consider whether this is one of the situations in which the court should exercise its discretion to require the non- custodial parent to contribute to s. 7 expenses. 5. Costs [ 39 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision.

Heard on the 16 th day of September, 2015. Dated at the City of Edmonton, Alberta this 14 th day of December, 2015.

J.B. Veit J.C.Q.B.A. Appearances: Holly Rae Brandson, Applicant, on her own behalf Alex Brandson, Respondent, on his own behalf