Chen v Xiong, 2016 ABQB 415

Court of Queen ’ s Bench of Alberta Citation: Chen v Xiong, 2016 ABQB 415 Date: 20160722 Docket: 4803 168464 Registry: Edmonton Between: Qi Chen Plaintiff/applicant - and - Tao Xiong Defendant/respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this morning chambers application, Ms.

Chen asks the court to: vary the father’s child support obligation in conformity with the Federal Child Support Guidelines; direct the father to pay his proportionate share of retroactive and ongoing s. 7 expenses; award her costs. [ 2 ] The father contends that he should not pay retroactive s. 7 expenses for child care because he was initially told there were no such expenses, in the interim between the parties’ divorce in 2014 and the 2016 application he was not asked to contribute to those expenses, and that he was only recently advised of the claim for those expenses; on an ongoing basis, he agrees to pay 50% of the child’s playschool expenses.

[ 3 ] The application for retroactive s. 7 expenses is denied: the mother did not ask for contribution towards these expenses until this application was brought and she has not provided an explanation for her failure to do so. As of the date of the parties' divorce in 2014, the father was told that there were no child care expenses.

The mother subsequently incurred child care expenses, but did not claim, or demand, or apply for, a contribution to those expenses from the father until this application was brought. [ 4 ] Waiver is not a factor here; however, the mother wrongly asserts that it is not possible to waive a claim for child care.

The Divorce Act explicitly authorizes even deviations from the Guidelines for basic support; those statutory provisions obviously apply equally to s. 7 expenses. [ 5 ] Based on his consent, on a without prejudice, ongoing basis, the father will pay s. 3 child support as ordered in the divorce judgment and 50% of the cost of his child’s playschool fees. Cases and authority cited [ 6 ] By the court : D.B.S. v. S.R.G . 2006 SCC 37 . 1.

Background [ 7 ] The parties, who separated in 2013 and divorced in 2014, have one child who is currently 4 years old. [ 8 ] In the statement of claim for divorce which she issued in June 2014, Ms. Chen asked for s. 3 support based on the Federal Child Support Guidelines, together with the father’s proportionate share of day care expenses for the child. The pleading indicated that the mother’s parents had cared for the child for the two years prior to June 2014. [ 9 ] In the affidavit sworn on July 18, 2014 and filed in support of her claim for a divorce judgment, Ms. Chen stated, in para. 12(

d) in relation to special or extraordinary expenses allowable under the Guidelines, that there were $0.00 per year of babysitting/daycare costs and added: The Plaintiff has incurred no babysitting/daycare costs at the present time because her parent is and has been providing full time babysitting care to the Child. [ 10 ] On October 6, 2014, this court issued a divorce judgment without oral evidence. The form of judgment, which had been prepared by Ms. Chen’s lawyer, had included the following section: 5. The Defendant shall pay to the Plaintiff 50% of

Section 7 expenses which are reasonable and accepted by both parties, payable on the first day of the month following the date on which such expenses are incurred. However, that

section of the form of judgment was struck out and initialled by the parties before being signed by the duty judge. [ 11 ] On March 18, 2016, Ms. Chen filed an affidavit in support of her current application to which she attaches a statement from Little People’s Day Care and After School Care for the parties’ child which indicates that from July to December 2014, Ms.

Chen incurred monthly expenses of $227.00 for the child, and that from January 2015 to April 2015, there were monthly expenses of $227.00, for the months of May and June, there were expenses of $182.00 per month, for the month of July $120.00, for the month of August $360.00, for the month of September $320.00, for the month of October $280.00, for the month of November $320.00, and for the month of December $200.00. Ms. Chen also attaches receipts for payments in 2016 for $360.00 for January, and $40.00 for February. [ 12 ] Ms.

Chen also attaches to her affidavit a receipt from Ermineskin Community Playschool for the enrolment of the parties’ child in the playschool for a 3 year period beginning September 2015, at a cost for the 2015-16 school year of $115.00 per month or a total of $1,035.00 for the year. [ 13 ] She swears in her affidavit that she could not earn her living without placing the child in a daycare facility and that she wanted the parties’ child to “obtain learning and training at a playschool so that she is able to adapt to Canadian living at an early age” and that she “wanted the child to make friends with other children” in a daycare or playschool. [ 14 ] As to the amount of her claim, she states that her proportional share of the day care expense for 2014 is 26%, for 2015 is 46%, and for 2016 is 38%.

This is based on his income for 2014 of $35,505.00 and hers of $12,533.00, his income for 2015 of $37,811.00 and hers of $32,054.00, and his income for 2016 of $39,000.00 and hers of $15,000.00. At the hearing, Ms. Chen agreed, on a without prejudice basis that any ongoing s. 7 expenses should be shared between the parents on a 50/50 basis. [ 15 ] In April, 2016, this court issued an order in which Ms. Chen was ordered to present evidence of the after-tax amounts of childcare incurred by her for the years 2014, 2015 and 2016. On July 19 th , Ms.

Chen presented Childview calculations indicating the following: Year Father’s income Mother’s income Child care paid Net child care claim 2014 $37,811.00 $32,054.00 $1,406.00 $ 998.00 2015 $34,679.00 $23,023.00 $3,390.00 $2,882.00 2016 $11,946.00 $15,000.00 $ 918.00 $ 918.00 [ 16 ] It will be seen that these incomes differ from the numbers set out in para. 15; these numbers are, however, advanced by the mother/claimant and will therefore be taken as the correct figures. [ 17 ] Ms. Chen has recently had another child; it is not clear if she is receiving maternity benefits or if she will return to her

employment. [ 18 ] Mr. Xiong indicates that, beginning in January, 2016, he started an apprenticeship to become a journeyman machinist and that this change in circumstances has reduced his income from employment even if one added in his EI payments. Moreover, he states that he has been off work altogether for medical reasons; the note from a physician which supports this claim merely indicates that Mr. Xiong is or will be off work for medical reasons from April 6 to April 20, 2016. Although the note does not indicate the medical condition which prevents Mr. Xiong from working, through his lawyer Mr.

Xiong indicates that the reason is stress. Mr. Xiong also advises that he intends to move this summer to Toronto with an adult child from a previous relationship and that he intends to return to China to visit a relative who is seriously ill.

Because of this uncertainty concerning his employment status, he proposes that, on a without prejudice basis, the court should leave his s. 3 child support obligation at the amount set out in the divorce judgment until both his and his former wife’s, employment status has solidified. [ 19 ] The parties were before this court in morning chambers on this application on April 5, 2016. At that time, the father was unrepresented.

The presiding judge explained to the father that, even if there was, at one time, no claim made for child care expenses because the mother’s parents were taking care of the child, that situation could change over time and that, generally, a parent is liable to contribute to reasonable child care expenses. However, the chambers judge told the mother’s lawyer that, given the mother’s very low income for 2014, and generally low income, the most which the mother could expect was a contribution from the father to after-tax child care expenses.

It is clear from listening to the recording of the April 5 th hearing that the chambers judge was not purporting to make a finding that the father owed retroactive child care expenses; on the contrary, the chambers judge suggested to the father that he should consider filing an affidavit setting out his understanding of the negotiations concerning child care and that he should consider getting advice from duty counsel. 2.

Because the mother did not make an effective demand for child care expenses, the court does not award retroactive s. 7 expenses [ 20 ] Waiver does not arise here: there is no evidence from either party which puts the possibility of waiver into play.

To be clear, the fact that the mother told the father, and the court, in mid-2014 that she did not have any child care expenses does not mean that she was promising not to incur such expenses in the future; the fact that the s. 7 paragraph in the draft judgment was removed by consent of the parties does not mean that the mother agreed never to make a s. 7 claim against the father in the future. [ 21 ] However, in this context, I note that, under the Divorce Act , although the application of the Guidelines is usual, it is not impossible for a parent to waive child support or to consent to an amount that is less than the amount set out in the Guidelines, or for the court to determine that, for example, a matrimonial property arrangement benefits the child and that a consequent adjustment to child support is reasonable.

In that latter connection, it is perhaps possible for a court to consider that a parent who undertakes, for the benefit of the child, to sponsor some of the child’s relatives to come to Canada has used some of their property for the benefit of the child and to record those reasons. Child support order 15.1

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1). Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just. Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. Reasons

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in

accordance with the applicable guidelines, the court shall record its reasons for having done so. Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. Reasonable arrangements

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

In the result, the mother’s insistence that she knows that she could not waive a claim for s. 7 expenses and did not do so is not of assistance to the court on this application. [ 22 ] What is of assistance to the court is the reminder from the Supreme Court of Canada in D.B.S . that Canada’s child support system is an application-based or demand system: Application-Based Regimes 56 The above description of the child support system in Canada is replete with notions of free-standing obligations and parental responsibility.

However, one must not forget that the regimes enacted by Parliament and the province of Alberta are application-based regimes. Except where a court is already seized of a divorce or separation matter, the court's jurisdiction over child support payments will arise only upon application by a person authorized pursuant to the legislation: see s. 15.1(1) of the Divorce Act and s. 7(1) of the Parentage and Maintenance Act (the latter provision uses the more permissive language of "an application may be made").

Accordingly, a parent's child support obligation will only be enforceable once an application to a court has been made. This policy choice means that the responsibility of ensuring that the proper amount of support is being paid, in practice, does not lie uniquely with the payor parent.

Therefore, one parent must make a demand for child support from the other parent; if the other parent does not comply with the demand, the requesting parent must bring a court application in order to give the court the jurisdiction to make an order compelling payment of child support. [ 23 ] As expected, if even basic child support is demand-based, it is all the more clear that additional support in relation to s. 7 items is demand based. [ 24 ] Here, the father swears that the mother never made a claim for child care expenses from him until she served him with this application; the mother has not responded to that evidence.

If she had made a claim, I expect that the mother would be able to lead evidence of it through an email or letter. In the result, I accept the father’s evidence that the first demand by the mother for s. 7 expenses was made with this application; therefore, the maximum amount which the mother could recover from the father is his proportionate share of the after-tax s. 7 child care expenses incurred from the date of the filing of the application.

There is no evidence of any such expenses: the date of the last payment made to Little People’s Day Care is in February, 2016, i.e. prior to the commencement of this application. [ 25 ] A parent’s failure to make a demand for child support may be explained: the parent did not know that they had to make a demand, or the parent was physically or emotionally unable to make a demand, or the other parent misled them about their income, etc. In this case, however, there is no explanation for the mother’s failure to make a demand and then bring a timely application.

On the contrary, the mother was legally represented throughout and the striking out of the s. 7 expenses on the draft divorce judgment at the least identified s. 7 expenses as a potential issue between the parties.

Here, the mother has advanced no explanation for her failure to claim these expenses until March 2016. [ 26 ] (Parenthetically, I note that although the mother has receipts for daycare expenses for the period July-December 2014, in light of the absence of a s. 7 obligation in the divorce judgment and the evidence of the mother in her July 18, 2014 affidavit, there could not be any award made to the mother for child care expenses which predate the divorce judgment in October 2014.) [ 27 ] In

summary on this issue, the father has no obligation to pay retroactive child care expenses. 3.

On a without prejudice basis, the court orders the father to pay s. 3 child support based on notional income to him of $35,000.00 and 50% of the parties’ child’s playschool expenses [ 28 ] Given that neither the father nor the mother is currently employed, the father proposes that his obligation to pay s. 3 child support should continue, on the basis set out in the divorce judgment, at least until the parties’ employment situations have become more settled. [ 29 ] While that proposal is accepted, the court makes that ongoing order on a without prejudice basis, i.e. from December 1, 2015 onward, the father’s income for child support purposes remains to be determined on the basis of evidence yet to be presented.

It should be noted that this court makes no finding that the father was unable to be employed from November 30, 2015 onward. [ 30 ] Similarly, the mother’s income for 2016 onward is left to be determined. [ 31 ] In addition, on an ongoing basis, the father agrees to pay 50% of the child’s playschool expenses; there is no evidence of what the 2016-17 playschool expenses will be. Within 30 days of having been notified of the amount of the playschool expenses for the 2016-

17 school year, the father will pay 50% of the expense which the mother has incurred. 4. Costs [ 32 ] If the parties are not agreed on costs, I can be spoken to within 30 days of the release of this decision. Heard on the 4 th day of May and the 19 th day of July 2016. Dated at the City of Edmonton, Alberta this 21 st day of July, 2016. J.B. Veit J.C.Q.B.A. Appearances: Henry Kam-Shing Yung, Biamonte Cairo & Shortreed LLP for the applicant, Ms. Chen Sarah Dargatz, Family Law Office for the respondent, Mr. Xiong