Court of Queen ’ s Bench of Alberta Citation: FU v AR, 2016 ABQB 156 Date: 20160316 Docket: 4803 160824 Registry: Edmonton Between: FU Applicant/Plaintiff - and - AR Respondent/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] The parties appeared on January 22, 2016 for a family law special chambers application. [ 2 ] The Applicant Ms. U seeks joint or sole custody of the parties’ son AR with primary residential care of him. She also seeks

child support based on the Respondent Mr. R’s Guideline income. She claims retroactive child support going back to the parties’ separation in May, 2011. Mr. R opposes the application, and seeks joint or sole custody of AR. [ 3 ] At the special chambers application, I directed Mr. R to provide his 2015 income tax return or T-4s for 2015 by February 15, 2016 and reserved on the issues relating to child support. [ 4 ] I made an interim order with respect to custody and access of AR, and noted that the parties are headed towards trial on the issues between them. Those issues include day to day care for AR, as Mr.

R takes issue with Ms. U’s parenting skills amongst other things. He considers that he is the more appropriate parent to have day to day care of AR. There are no matrimonial property or spousal support issues, so the trial will focus on AR. [ 5 ] My order arising out of the January 22, 2016 special chambers application has been signed, and essentially maintained the existing arrangements for AR but specified that the parties would share school holidays in addition to the rotation that was established by Ackerl J in November, 2014. Background [ 6 ] The parties married in April, 2008. AR was born in August, 2008.

The amount of time AR has spent with each party since separation is contested. Ms. U began to work shortly after the parties separated. Mr. R continues to work for the same employer he was working for when the parties separated. He has apparently always worked the evening shift, meaning that AR has spent most of his overnights with Ms. U. [ 7 ] AR statement of claim for divorce was issued on behalf of Ms. U in January, 2013. In it, she sought ongoing child support and retroactive child support going back to May, 2011. [ 8 ] The first order in this matter was granted by Ackerl J on November 13, 2014.

It ordered that the parties have joint custody of AR. Mr. R was given access from Fridays after school until Monday mornings when he dropped AR off at school. Ms. U was given one weekend per month. Mr. R was also given access on the Wednesday evening before Ms. U’s weekend. [ 9 ] Mr. R was ordered to pay

section 3 child support of $460 per month commencing December 1, 2014 and section. 7 expenses of $109.00 per month. These amounts were based on a pre-disclosure income of $54,416 for Mr. R and of $15,416 for Ms. U. [ 10 ] An interim order dated September 8, 2015 clarified that Ms. U was to have AR on the third weekend of each month. Various applications were adjourned to the January 22, 2016 special application. [ 11 ] The main area of dispute over AR’s past custody and access is Mr. R’s claim that before AR commenced kindergarten, he was in Mr. R’s care 85-90% of the time.

Kindergarten started in September, 2013. [ 12 ] It is clear that the access time ordered by Ackerl J in November, 2014 does not amount to 40% of the time. Those arrangements were confirmed by my order of January 22, which clarified that the parties would share school holidays equally, and Mr. R’s weekend time would be extended if the weekend fell on a long weekend. Those clarifications do not bring Mr.

R’s time to 40%, such that full child support should still be payable on the basis of the court-ordered access. [ 13 ] It appears that AR was in daycare during the day from September, 2011 until he began kindergarten in September, 2013. As an observation, it appears that AR was looked after by Ms. U at least on weekday overnights and she appears to have been responsible for daycare. As such, daycare hours may be “credited” to her care time with AR, although that is an issue that will ultimately have to be determined by the trial judge. [ 14 ] Mr. Mussieux, counsel for Ms. U, notes that Mr.

R swore on October 20, 2014 that “when (AR) entered Kindergarten in September of 2013 an arrangement fell into place where he was dropped off by me at school for 8:30 am each Monday and picked up by me at 3:20 pm each Friday. [ 15 ] Mr. R’s affidavit details additional access beyond every weekend, such that his evidence supports an argument that AR was in his care at least 40% of the time. [ 16 ] That is denied by Ms. U in her affidavit of November 12, 2014. She stated that “the statement by the Defendant that he has looked after my son 80% of the time prior to kindergarten is ludicrous. The weekend

schedule has been in place for a number of years...” [ 17 ] Her affidavit and application requested one weekend per month, which was granted by Ackerl J in November, 2014. That suggests that she may not have had AR for weekends until that was ordered by Ackerl J. [ 18 ] There are obviously credibility issues that cannot be determined on a chambers application and likely require oral evidence at trial. [ 19 ] Information provided in response to disclosure indicates that Mr. R earned $54,830.15 for 2013 and $61,428.35 for 2014. Mr. R’s 2015 income was $60,702.21.

Both parties complain about the timeliness and completeness of the other party’s disclosure. [ 20 ] Ms. U’s income was $15,416 for 2013 and $27,596 in 2014. She expected to earn $36,000 in 2015. No exact figure has as yet been provided. It is relevant for the 2015

section 7 split and for the

section 7 split on an ongoing basis. [ 21 ] Ms. U also seeks Mr. R’s share of daycare costs dating back to September, 2011 when AR was first enrolled in daycare. She has paid all daycare costs until November, 2014 when Ackerl J directed that Mr. R pay $109 towards

section 7 expenses.

Analysis

Section 3 support [ 22 ] As a starting point, I expressed concern at the special chambers application about any retroactive support orders before September, 2013 when AR started kindergarten. I note that Ackerl J’s order of November, 2014 reserves child support arrears back to September, 2013 and no earlier. [ 23 ] There is conflicting evidence as to the care of AR before September, 2013 that cannot be resolved on a special chambers application, and I see no valid reason to vary or go behind Ackerl J’s order at this time.

These are all interim orders, and may be finalized by the trial judge who will have the benefit of full evidence live and in person from the parties. Thus this decision will only go back to September, 2013. [ 24 ] Mr. R’s evidence, if accepted, indicates that he has had AR in his care for more than 40% of the time until Ackerl J’s order in November, 2014. If he had AR every weekend, that would amount to 40% by itself. [ 25 ] Indeed, his evidence, if accepted, has him as the primary caregiver from the time of separation until kindergarten.

That would absolve him from any child support obligations before kindergarten started in September, 2013 and require him to pay split child support from then until Ackerl J’s order based on shared parenting. In other words, he would not have to pay any child support until AR started kindergarten, and would pay split child support from September, 2013 until Ackerl J’s order in 2014. [ 26 ] Thereafter, it appears clear that Mr. R has not had access to the extent of 40%, and that will not change without the agreement of the parties or a court order at trial. [ 27 ] That result AR would be the best Mr.

R could hope for. Thus, his best case scenario has him paying split child support from September, 2013 to November, 2014 and then full child support thereafter. [ 28 ] The affidavits of the parties are diametrically opposed on the subject, and while it appears unlikely that Ms. U ever had AR in her care for less than 40% of the time, the parties are highly conflicted. Their affidavits tell completely different stories and they cannot be fairly tested without some oral evidence. [ 29 ] I conclude, therefore, that the best I can do for retroactive

section 3 child support is to set the parties’ guideline incomes as follows: Mr. R 2013 $54,830 2014 $61,428 2015 $60,702 Ms. U 2013 $15,416 2014 $27,596 2015 $36,000 (provisional) [ 30 ] Ms. U’s income is provisionally set only, and may have to be adjusted when her actual 2015 income is known. I expect that Ms. U now knows what she has earned in 2014, and has received all necessary T-4 slips from her employer(s). That information should be shared with Mr.

R forthwith, and should be used for the purposes of calculating the parties’ obligations for 2015 and ongoing. [ 31 ] Child support should be calculated for the purposes of this order on the basis of a split for the period September 1, 2013 to and including November 1, 2014 on the basis of the above numbers. Child support for the period commencing December 1, 2014 should be calculated on the basis of the above numbers. [ 32 ] The proportionate time spent by AR with each parent from May, 2011 until Ackerl J’s order in November, 2014 will have to be determined by trial. I am satisfied that Mr.

R’s child support obligation is a minimum of the amount calculated above. It may increase following a detailed review of child care to the time of Ackerl J’s order in November, 2014, but would not decrease on any of the information before me.

Section 7 expenses [ 33 ] With the incomes above, it is straightforward to calculate the

section 7 split between the parties for

section 7 expenses on an ongoing basis. [ 34 ] As far as arrears or retroactive

section 7 support, Ms. U claims ongoing day care based on a monthly expense of $165 starting September 1, 2015. She seeks arrears relating to daycare expenses

[ 35 ]

Section 7 expenses may be shared proportionate to income, regardless of whether the parent incurring a

section 7 expense is the primary caregiver or has care of the child for at least 40% of the time. I would observe that it would be rare for a parent other than the primary caregiver to be paying the daycare costs absent some agreement to that effect with the primary caregiver. [ 36 ] Ms. U’s affidavit of December 10, 2015 calculates daycare expenses and prorates them in paras 31, 32 and 33: 31. As indicated in my previous Affidavit, Avidan has been attending Youngstown daycare or before/after school care from September 2011 to August 2014 as indicated at Exhibit “F’ of my September 24 2014 Affidavit.

The amount was $204.00 up until August 2014 when it changed to $140.00 in September and then it went to $165.00 at Red Apple in September of this year. I have been paying the daycare for that entire period with the exception of the period between January 2014 up to August 2014 which is when the Defendant paid the daycare directly. I also paid for some daycare expenses prior to September 2011 however I am not pursuing that amount in this Application. 32. So the Defendant’s proportional share of the

section 7 expenses given our incomes would be 70% for 2011, 62% for 2012, 78% for 2013, 69% for 2014 and 635 for 2015. His share of the total daycare arrears would be $571.00 for 2011, $1518.00 for 2012, and $1909.00 for 2013. The Defendant paid directly for 8 months of 2014 at the $204.00 amount and therefore my arrears for that period would be $506.00. I then paid for September, October and November at the new amount of $140.00 which would put his arrears at $290.00 for that period of time.

I was incorrect in my previous Affidavit when I indicated that the Defendant paid the daycare in September 2014 as I subsequently found out that he in fact did not pay that month. In fact it was not until the daycare arrears were several months behind that I was notified that the Defendant had stopped paying for the daycare. He paid $109.00 for December 2014 when it should have been $97.00. For the first eight months of 2015 he paid $109.00 when it should have been $88.00 and for the final 4 months of 2015 he paid $109.00 when it should have been $104.00. 33. So in conclusion, the

section 7 daycare retroactive expenses would be determined by the following calculation 571 + 1518 + 1909 - 506 + 290 - 12 - 168 - 20 = $3582.00. [ 37 ] Mr. R has put no materials forward disputing or challenging those calculations. I recognize that the calculation of any actual arrears may be complicated, and I have no information independent from Ms. U’s affidavit and confirming letter as to the extent to which Mr. R actually paid the $109 per month ordered by Ackerl J in November, 2014. [ 38 ] As such, arrears in

section 7 expenses should be calculated on the basis of the parties’ proportionate incomes going back to September 1, 2013. Mr. R is entitled to credit for any amounts paid to Ms. U or directly to daycare, but it should be made clear that the onus is on him to prove payments by way of receipts, cancelled cheques or the like. [ 39 ] Ms. U also seeks the Mr. R’s contribution for medical expenses incurred in 2015 totalling $126.18. Mr. R should pay his proportionate share of that amount. [ 40 ] Arrears back to September 1, 2013 should be calculated in the manner described above.

It does not appear that they will be that great, as Mr. R has been paying some amounts directly to day care. [ 41 ] On a go forward basis, Mr. R should continue to pay Ms. U $109 per month, which should be adjusted on an annual basis when the parties have exchanged their disclosure. If there are expenses other than daycare, Mr. R may have some arrears. It seems to me that with these parties it will be simpler if Mr. R has a fixed amount to pay on a monthly basis with an adjustment provision to ensure that there is no underpayment or overpayment. Hardship [ 42 ] Mr.

R seeks relief from the above obligations on the basis of hardship. He says that he is the sole parent of his two daughters from a previous marriage. His concise letter, filed December 23, 2015, says “every year, I make about $50,747.84”. He describes his net as being $3,000 per month and details expenses of $3,265.14. His list of expenses does not appear unreasonable, but he is clearly under- stating his income. His income for the last three years has averaged nearly $59,000. [ 43 ] Hardship claims are governed by

section 10 of the Federal Child Support Guidelines: 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. Circumstances that may cause 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. Standards of living must be considered

(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. Standards of living test

(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. [ 44 ] I cannot conclude on the numbers before me that a hardship claim is made out. The household standards of living would appear to be similar and the evidence suggests that even with full child support, Mr. R would continue to have a greater household income than Ms. U. As has been pointed out in many cases, hardship claims are rarely successful and require evidence as to the respective standards of living in each home. That evidence is absent here, but is something that may be pursued at trial. The possibility of Mr.

R being successful because of his obligations to his daughters, however, does not persuade me that any adjustments should be made at this time. [ 45 ] AR is only eight, and there are many years of child support ahead to make any adjustments resulting from findings favourable to Mr. R at trial. He is by no means certain to obtain any relief, or to establish that he has had AR in excess of 40% at any point in time, or that Ms. U might owe him any child support for any period she may not have had AR for at least 40%. Those are issues for trial. [ 46 ] Ms. U’s evidence is to the effect that Mr.

R has additional sources of income that have not been disclosed. That again is something that will have to be pursued for trial purposes, but I cannot make any such finding on the evidence before me. [ 47 ] Essentially, Mr. R is supporting himself and his two daughters plus making child support payments. Ms. U is supporting herself and AR. While she has remarried, her husband is apparently in Spain awaiting immigration approvals. There is no information as to any contribution by him to Ms.

U’s living expenses. [ 48 ] Hardship is something that will have to be determined by the trial judge. [ 49 ] The evidence on this application does not permit me to make any finding or make any inferences or assumptions concerning hardship. Conclusion [ 50 ] For any meaningful calculations to be done, it is necessary for Ms. U to provide her actual 2015 line 150 income, either by way of a copy of her tax return or by providing her T-4(

s) for 2015. This should not be controversial, as her income is important only for the purposes of the

section 7 split. [ 51 ] As noted above, Ms. U is entitled to a minimum of split child support from September 1, 2013 to November, 2014. The relevant incomes are known for that period so calculation should be straightforward. After November, 2014, Ms. U is entitled to full child support based on Mr. R’s guideline incomes. 2016 payments should be based on Mr. R’s actual 2015 income as set out in his recent disclosure. [ 52 ] Issues concerning child support before September 1, 2013 as well as the period from then until November, 2014 will have to be dealt with at trial. [ 53 ]

Section 7 arrears will be calculated back to September 1, 2013 and will be based on the parties’ proportionate incomes. Knowing Ms. U’s 2015 income is essential to accurate calculations being made so these issues can be resolved without further dispute. The calculations should be straightforward based on Ms. U’s claims for day care and medical expenses over that period, minus any amounts Mr. R can demonstrate that he has paid, supported by third party receipts or cancelled cheques. [ 54 ] No relief is granted on the basis of hardship. That is an issue for trial. Payment of arrears [ 55 ] It is unclear what amount will result from the above calculations. I encourage the parties to work out a

schedule for payment of the arrears. My expectation is that the arrears would be paid off over a similar period of time they took to accumulate: about 30 months. It would not appear unreasonable for Mr. R to retire the arrears over that period of time. This is an issue that might be revisited at trial if the parties are otherwise unable to agree. Heard on the 22 nd day of January, 2016. Dated at the City of Edmonton, Alberta this 15 th day of March, 2016.

Robert A. Graesser J.C.Q.B.A. Appearances: Michael J. Mussieux, Mussieux Law for the Applicant/Defendant AR, Self-Represented for the Respondent/Defendant