Simmons v Simmons, 2016 ABQB 479

Court of Queen’s Bench of Alberta Citation: Simmons v Simmons, 2016 ABQB 479 Date: 20160830 Docket: 4803 166535 Registry: Edmonton Between: Shelby Simmons Plaintiff - and - Anthony Simmons Defendant _______________________________________________________ Memorandum of decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking difficulties which have been created in part by her own failure to comply with a previous court order concerning parenting and in part by the parties’ inability to communicate civilly, Ms. Simmons applies for sole custody of the parties’ daughter and to reduce the father’s parenting time with his daughter by half. Invoking the father’s paying of a weekly and yearly dividend to his new partner for administrative services, the mother asks the court to impute income to the father for child support purposes. Invoking needless delay, Ms.

Simmons asks for an order to set the proceedings down for trial. [ 2 ] Invoking his fathering of a step-sibling to the parties’ child, Mr. Simmons cross-applies for shared parenting. [ 3 ] The mother’s applications for sole custody and to reduce the father’s access to the child are denied.

The father’s application for shared parenting is also denied. [ 4 ] Neither the mother nor the father have established a material change of circumstance since the last court order on parenting: from the mother’s perspective, the relationship between the parties was difficult prior to the issuance of that order in 2014 and simply have not changed since. From the father’s perspective, in the circumstances here, the fact that his daughter has a new step-sibling is not a

material change of circumstance: this change was foreseeable, and, if addressed, would not have resulted in a different parenting order.

Without a material change of circumstance, a party cannot apply for a change in an existing interlocutory order. [ 5 ] The mother's applications to impute income to the father and to set the dispute down for trial are allowed. [ 6 ] Although the father is entitled to use whatever is permitted by tax laws and jurisprudence to minimize taxes for his company, for child support purposes, the maximum he cannot deduct from the company's gross earnings dividends payable to his current partner. Because Mr.

Simmons is the sole owner of the company from which he earns a living, on an interlocutory basis, the income of the company should be equated with his personal income for child support purposes. Despite the incomplete financial disclosure, on the basis of the material that is before it, the court sets $125,000.00 as the basis on which Mr. Simmons will pay child support until the trial. [ 7 ] In addition to base line support, Mr.

Simmons will pay for his proportionate share of day care expenses for the child: in a high conflict situation, it is not reasonable to ask one parent to minimize s. 7 expenses by having her husband’s girlfriend care for both the child and the child’s new step-sibling. [ 8 ] The matrimonial dispute should be set down for trial: the parties have been separated since late 2013, the dispute between them is not complex, and there has been sufficient time for pre-trial process.

Cases and authority cited : [ 9 ] By the father : MacDonald v MacDonald , 2014 ABCA 91 ; Gordon v Towell , 2010 ABQB 396 . [ 10 ] By the court : D.O. v. D.L . 2013 NBQB 174 ; Caharel v. Caharel 2008 ABQB 238 ; Kozma v Kozma 2012 NSSC 380 ; Ryan v Ryan 2008 ABCA 54 ; Klinger v. Klinger 2013 SKQB 59 ; Betz v. Joyce 2008 BCSC 1704 ; Peters v. Neville 2004 NLSCUFC 18 . 1. Background

a) Factual [ 11 ] The parties are the married parents of a 41/2 year old daughter. The parties separated in the fall of 2013 when their daughter was approximately 2 years old.

There was a good deal of animosity between the parties at the time of separation: the mother obtained a without notice restraining order which had the effect of ousting the father from the matrimonial home on December 19, 2013. [ 12 ] In March, 2014, this court established the following parenting regime: PARENTING The Defendant shall have parenting time with the child of the marriage up to eight days per month, including overnights, such time to be on one week’s notice to the Plaintiff through her counsel. [ 13 ] In the March, 2014 order, there was no child or spousal support award.

Instead, the order stated that “pending sale of the matrimonial home May 19, 2014. . . . the Husband shall pay the following . . .” [ 14 ] Since March 2014, there have been no further court orders for parenting or child support. However, starting in June, 2014, the father has been paying child support in the total amount of $1,362.00 per month, based on income for child support purposes of $120,000.00 and including child care. [ 15 ] In April 2014, the father took his daughter to the emergency services of a hospital because of concern in relation to her evacuation system.

The visit resulted in a medical diagnosis of moderate constipation and the attending physician prescribed medication for its relief. The mother was of the opinion that the hospital visit was unnecessary. [ 16 ] The mother acknowledges that she has not allowed the father to have the access set out in the March 2014 court order: rather, despite the court order, she has decided when, and for how long, the father should have access. [ 17 ] The father is a welder; he has sometimes worked out of a union hall, and usually away from home, even sometimes out of the country, often on a 14 days on, 7 days off, schedule.

In 2012, his total income was $128,163.00 and his net income was just about the same amount. [ 18 ] The father has had a new partner since the fall of 2013; they have one child together who is approximately one year old and are expecting a second child. The partner, who is an adult, is not employed outside the home; the father pays her $275.00 per week, declared as divided, plus a yearly dividend, which was $45,000.00 in 2015. He says: his partner handles the business end of the company – she plays a major role in this business.

I would not be able to run this business without her – I would have to hire a replacement. She works hard for that money, and I think she is underpaid for her work. [ 19 ] The father has not yet made full financial disclosure; amongst other issues, the year-end date for his company is March 31.

b) Legislative [ 20 ] The Divorce Act states: Variation, Rescission or Suspension of Orders

Order for variation, rescission or suspension 17

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, . . . (

b) a custody order or any provision thereof on application by either or both former spouses or by any other person. Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. [ 21 ] Alberta’s Family Law Act states: Best interests of the child 18(1) In all proceedings under this Part except proceedings under

section 20, the court shall take into consideration only the best interests of the child. 2. Some exhibits to Ms. Simmons’ affidavit of July 21, 2016 should be struck [ 22 ] As a preliminary matter, Mr. Simmons asks the court to strike certain exhibits to Ms. Simmons’ affidavit. [ 23 ] I agree that her exhibits A, E and J. are unsworn statements from third parties and should therefore not have been included in Ms. Simmons’ affidavit. It would be ludicrous if parties could evade the court’s limitation to one affidavit in

section 25 of Family Law Practice Note 2 by filing unsworn statement from third parties. These exhibits will be struck. [ 24 ] I agree that Ms. Simmons’ exhibit B is irrelevant since it deals with matters arising prior to the March, 2014 order; however, that exhibit is in response to Mr. Simmons’ equally irrelevant statements in his affidavit. I will therefore not strike it. [ 25 ] I agree that exhibit D should not have been attached; it would be ludicrous if parties could evade the court’s limitation on affidavits to 8 pages in

section 26 of Family Law Practice Note 2 by attaching as an exhibit a further, unsworn, statement from the affiant. Exhibit D will be struck. [ 26 ] I agree that exhibits F and G appear to be documents received by a third party with respect to whom a request was not made to file an affidavit; those exhibits will be struck. 3. Parenting

a) Need for material change of circumstance on an interlocutory application [ 27 ] With respect for those who differ, see para. 52 of Gordon, I am satisfied that, in parenting disputes, whether dealing with married or unmarried parents, after one parenting court order has been granted, no further order can be obtained on an interlocutory application except by showing a material change of circumstance. [ 28 ] Here, the parties are married and we are therefore proceeding under the Divorce Act , which, together with the case law, makes it clear that not only al change, but a material change in the circumstances of a child is a necessary pre-requisite to an application to vary an existing parenting order. [ 29 ] In my view, the same standard applies in applications made pursuant to the Family Law Act: both statutes establish that any change must be made in the best interests of the child affected, but only the Divorce Act specifically requires a change from the previous order.

However, without incorporating a similar standard on variation applications, courts will continue to be burdened by “heavily litigated matters” which do not assist the parties to those matters and prevent other serious matters from having access to the court’s very restricted resources.

b) The mother has not established a material change of circumstance since March 2014. There are no new communication difficulties between the parents [ 30 ] Although the mother’s application requested sole custody and the cutting down of Mr. Simmons’ parenting time, at the actual hearing, wisely she did not press those requests but focused instead on resisting Mr. Simmons’ request for shared parenting. [ 31 ] In any event, the mother has not proved any material change of circumstance since the court last made a parenting order.

The parties had an acrimonious relationship prior to the March, 2014 order, and, unfortunately, that has, more or less, continued. The father was, prior to March, 2014, working for long stretches out of town and that has, more or less, continued.

c) The father has not established a material change of circumstance since March 2014. In the circumstances here, the birth of a step-sibling is not a material change of circumstance [ 32 ] As to whether the birth of step-siblings is a material change of circumstance, my colleague Ross J. said in Caharel : 24 The birth of twin half-sisters is also a change that affects the children's needs and the father's ability to meet them. The Court of Appeal did not hold in Ryan v. Ryan, supra that the birth of a half-sibling is not a material change; the question in that case was whether

it was foreseeable. The birth of a child is a momentous event for parents and siblings alike. In this case, the father says that the childrenare excited about the birth of the twins. The mother is of the view that the presence of newborn twins in the fathers' home will changethe dynamics of the home and make it difficult for the father to respond to the older children's needs. From either perspective, the changeis material to the children's needs and to the ability of the father to meet their needs.

Children's needs cannot be considered in isolation,and certainly they include the need to form strong and stable relationships with other family members, including new siblings. This maynot be a predominant need for a particular child in particular circumstances, but at least it deserves consideration on the merits. [33] To the same general effect is the decision in Kozma: 4 The court cannot consider the merits of an application to vary the custodial provisions of an Order until it is satisfied there has been amaterial change in the circumstances of the child since the last custody order was made.

A more specific discussion about thisrequirement has been provided by Justice McLachlin (as she then was) in Gordon v. Goertz, (S.C.C.), at paragraph 13: 1. there must be a change in the condition, means, needs or circumstances of the child or the ability of the parents to meet the needs ofthe child; 2. the change must materially affect the child; 3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

If the criteria set out by Justice McLachlin are proven on a balance of probabilities by the party alleging the change, the court must thendetermine what is in the child's best interest. 5 Not all changes in a child's life are "material" changes. The fact that a child will age, a parent may move, a new partner may appear,new siblings born may all be foreseen and reasonably contemplated. However, these common life changes often are consideredsufficiently material for courts to rearrange parenting plans.

The reason may be because there is evidence that the change has or will"materially affect the child". [34] Depending on the circumstances, the existence of new step-siblings might not be a material change of circumstance: Ryan. [35] Many decisions deal with the birth of a new step-sibling as one part of what was, overall, a material change; typically thosecases involve a mobility application where one parent is seeking leave to move away from the other parent in order to be with a newpartner. Relatively frequently, those applications include a parenting expert’s opinion on what is in a child’s best interests.

See examplesof these situations: Klinger, Betz. Neither of those situations is present here. [36] In the result, there is no bright line rule about step-siblings; the court must consider in the case before it whether the existenceof step-siblings is an unforeseeable change and whether, if that change had been addressed in the earlier application, it would haveresulted in a different order. (i). The arrival of a step-sibling in the circumstances here was foreseeable [37] This arrival of a step-sibling here is not as clearly foreseeable as was the case in Peters.

Nevertheless, given the age of thefather and the fact that he had started a new relationship with a woman of child-bearing age at the time the order was made in 2014, itwas foreseeable that the father would have additional children with his new partner. [38] For completeness of the record, I should just add that the April 2014 hospital event was not a material change of circumstancerelative to the March 2014 parenting order. (ii) The arrival of a step-sibling does not materially affect the parties’ daughter [39] Assuming that it had been explicitly foreseen in 2014 that Mr.

Simmons would have other children with his new partner, Ihave concluded that this is not a situation where the resulting order would have been in any way different. Mr. Simmons was then, and isnow, a person who often works out of town for relatively long periods of time. In those circumstances, it would not have been reasonableto have established a shared parenting regime. [40] I have concluded that the change in family dynamics with the existence of a one year old step-sibling and the prospect ofanother step-sibling in early 2017 is not a material change in relation to the parties’ daughter.

I have no doubt that the parties’ daughterloves her little step-brother and will love the step-sibling who is on the way. However, a potential 8 day block of time every monthduring which the child can constantly interact with both step-siblings is an adequate bonding opportunity with those children. Nothingbefore me on this application suggests that increasing the amount of parenting time to 15 days would increase the quality of the step-sibling bonding experience.

d) Conclusion: both the mother’s and the father’s application for an interlocutory parenting change is denied [41] For the reasons set out above, both the mother’s application for sole parenting and the reduction of the father’s parenting ofthe child and the father’s application for shared parenting are denied. [42] The mother is reminded, however, that any future breach of the current court order which allows the father to have up to 8days’ overnight parenting time on one week’s notice to her may well result in a contempt application.in addition to parentingconsequences.

e) Control of documents [43] There is no clear statement in the materials about where the child’s passport, social insurance certificate and birth certificatehave been held. In any event, the mother can retain these documents but should provide them to the child’s father should he require them

for some immediate purpose. The only such purpose that I can foresee is that the mother should provide the child’s passport to the father upon two weeks’ written request from him which outlines when he is leaving and when he will be returning with the parties’ daughter. 4. Child support

a) Income should be imputed to the father [ 44 ] Mr. Simmons has not yet completed his financial disclosure. Amongst other reasons are the fact that his company’s fiscal year end is the end of March and the wildfires at Fort McMurray in the spring of this year which interrupted his work in that community. [ 45 ] His current child support order is based on a premiss of $120,000.00 yearly gross income, an assessment made in 2014, presumably from 2013 information. It is reasonable to assume that Mr.

Simmons’ income has increased a little from 2013. [ 46 ] The father says that he understood that, coming into the hearing, the parties had agreed that, on an interlocutory, without prejudice, basis, his income for child support would be deemed to be $128,000.00. The mother doesn’t deny that those discussions took place but maintains that there was no agreement because the lawyers had not yet spoken with their clients and suggests that settlement negotiations should not be put before the court. I agree. [ 47 ] For the following reasons, the court concludes that, on an interlocutory basis, Mr.

Simmons should pay child support, commencing September 1, 2016, on a deemed income for child support purposes of $125,000: - Ms. Simmons’ suggestion that income be deemed to be $160,000.cannot be adopted. There is insufficient evidence on this application to make that presumption.

Counsel are reminded that a family special hearing is just a long morning chambers matter, i.e. if factual determinations could not be made in morning chambers, they probably can’t be made in special chambers and the dispute has to be resolved by trial; - from the 2015 unaudited statement of income from his company – Gauge Welding Ltd. – we see that his income for operations for that year was $135,199.00 without taking income taxes – presumed to be approximately $19,000.00 - into account; - on the other hand, until Mr.

Simmons makes full financial disclosure so that it is possible to determine, for example from his personal bank accounts and credit card statements whether it is Gauge which is paying for Mr. Simmons’ partner’s truck or whether those payments are coming from Mr. Simmons’ after tax personal income, and similarly whether the payments for Mr. Simmons’ partner’s condo in British Columbia are coming from Gauge or from Mr. Simmons’ after tax personal income, it is not clear how much of the approximately $190,000.00 in revenue by Gauge is actually spent on Gauge-related expenses.

Similarly, once full disclosure has been made, it will be possible to determine whether all the automotive and small tool expenses attributed to Gauge were properly characterized as Gauge expenses. In the meantime, an estimate of $125,000.00 as Gauge’s and Mr. Simmons’ net income from operations appears reasonable, including when previous years’ statements are taken into account; - I reject Mr. Simmons’ claim that his current partner is doing $60,000.00 worth of work for the business. In 2012, prior to the parties separation, Mr.

Simmons was not paying this amount of fees for administrative services; on the material before me, there is no reason to suppose that his administrative costs have increased to the amount he proposes. While Mr. Simmons should not, of course, be deprived of any means provided in tax law and collateral case law of lowering the tax obligations of Gauge Welding, for child support purposes, the income of the company should essentially be equated with Mr. Simmons’ income. [ 48 ] At the trial, this interlocutory assumption of income for Mr.

Simmons can, of course, be adjusted up or down as the evidence discloses, and appropriate consequential adjustments will be made to the child support account. [ 49 ] The lack of the most current information from Ms. Simmons is yet another reason to actively advance a trial date. [ 50 ] No specific information was put before the court on this application concerning retroactive child support; therefore, that is an issue that will be adjourned to the trial of this matter.

b) Section 7 expenses should include child care but not swimming [ 51 ] Mr. Simmons suggests he should not have to pay for child care because his partner is not employed outside the home and could care for her boyfriend’s child along with her own. [ 52 ] With respect, Mr. Simmons’ suggestion is simply not reasonable in the circumstances here. There is a high degree of animosity amongst all 4 individuals who are actively engaged in the life of the Simmons’ daughter. To suggest that this be magnified by having Mr.

Simmons’ girlfriend care for the parties’ daughter would simply likely result in a heightened degree of animosity which is not in the child’s best interests. [ 53 ] The day care provider chosen by the mother is reasonable: the service is an independent provider located in the same complex as the school which the daughter attends. It is also reasonable for parents with this level of combined income to provide as many opportunities as reasonable for socializing their child, and day care is one mechanism for achieving that end. [ 54 ] Therefore, commencing September 1, 2016, Mr.

Simmons will contribute proportionately to his daughter’s daycare expenses at SIGIS by forwarding his contribution to MEP within 5 business days of his having received a written receipt of the monthly cost from the daycare provider. [ 55 ] Ms. Simmons has not provided any particular information about the costs for swimming. Moreover, in the circumstances here, it is highly unlikely that swimming costs would constitute an extraordinary extracurricular activity. In the result, Mr. Simmons’ obligation in relation to s. 7 expenses does not include a contribution to swimming lessons.

5. Setting this dispute down for trial [ 56 ] It is necessary to arrange for this dispute to be tried as soon as possible. Even if the parties could agree on a Form 37 today, it is likely that the earliest trial time that could be made available is the fall of 2017. Therefore, the parties will have until September 15, 2016 to agree to a litigation plan, failing which the court will allow Ms. Simmons to book a 5 day trial without having filed a Form 37. 6. Costs [ 57 ] 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 3 rd , 8 th and 9 th days of August, 2016. Dated at the City of Edmonton, Alberta this 30 th day of August, 2016. J.B. Veit J.C.Q.B.A. Appearances: Collista A. Coles Huizinga, Di Toppa, Coles & Layton for Ms. Simmons Bruce Reid Long Family Law Group for Mr. Simmons