Baker v Baker, 2016 ABQB 515

Court of Queen’s Bench of Alberta Citation: Baker v Baker, 2016 ABQB 515 Date: 20160915 Docket: 4803 140339 Registry: Edmonton Between: Christine Baker Plaintiff - and - Brian Baker Defendant Corrected judgment: A corrigendum was issued on September 20, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.E.

Topolniski _______________________________________________________ Introduction [ 1 ] The Bakers are the parents of two teen-aged boys, who are well-adjusted and accomplished high-level hockey players. [ 2 ] At 45 years old and long divorced, the Bakers’ financial fortunes have taken different turns, which is the driving force for this application for retroactive and increased ongoing child support. [ 3 ] Mr. Baker’s financial star has ascended since the divorce.

Having risen through the ranks of a property development company to the position of president and CEO in 2013, his income (which, in recent years, includes early bonuses and taxable gains on uncashed stock options) has increased very significantly, cresting at $2,217,692 in 2015. Ms. Baker has been a stay-at-home parent since 2003; her present average taxable income is $12,500 (which includes some $10,000 of child tax benefits). [ 4 ] Ms. Baker wants retroactive s 3 support from September 2008 in the sum of $605,373 and increased ongoing support of $29,806 per month.

She abandons her claim for retroactive extraordinary expenses.

[ 5 ] Ms. Baker asserts that there is an untenable disparity in the parents’ standard of living, and wants to provide the children the same experiences that Mr. Baker’s income would allow him to give the children. She asserts that the boys’ needs have dramatically changed since the divorce, and the last extrajudicial increase to child support made in the spring of 2013 by Mr. Baker. [ 6 ] Mr. Baker wants to continue paying the $8,000 per month s 3 child support, and the significant extraordinary expenses that he has been paying since the spring of 2013.

He sees the children as “wanting for nothing” and questions whether the support paid to date has funded not only the children’s needs, but also those of Ms. Baker and her new family. He also questions why Ms. Baker does not earn more income to help to support the children. [ 7 ] Since hardship is not a consideration, these are the issues: 1. Should there be an award for retroactive support? a. Is there a reasonable excuse for Ms. Baker’s delay in seeking retroactive support? i. Is intimidation established? ii. Is financial inability established? b. Is Mr. Baker guilty of blameworthy conduct? i.

What is the effect of breach of the contractual duty of annual income disclosure? ii. Did Mr. Baker privilege his interests over the children’s right to an appropriate amount of support? c. Has Mr. Baker rebutted the presumption that the Guideline Table should apply? d. What are the children’s circumstances? e. Will the children benefit from a retroactive award? 2. Should there be an increase to ongoing support? a. Is there a change in circumstances since the divorce judgment? b. If so, what is the appropriate amount of ongoing child support? c. Should Ms.

Baker be obliged to contribute more to the children’s support? [ 8 ] Some detail about the children, the parents, and the support paid to date frames the discussion. The Children [ 9 ] Joshua is 16 years old. Daniel is 15 years old. They are bright, happy, and well-adjusted children who enjoy healthy relationships with their parents, their step-father, Rob, and their 6 year-old step-sister, Kate. Nothing is known of their relationship with their father’s common-law partner of the past three years. [ 10 ] Joshua and Daniel have lived primarily with their mother since their parents separated in 2006.

Until their early teen years, they enjoyed weekend and weekly evening access with their father. That arrangement changed in 2011, when their father broached the topic about their not particularly enjoying spending weekends at his home. Then, a new regime of unstructured dinner, golf and gym outings, visiting their grandparents, generally hanging out together, and “very constant texting” started. The pre-existing routine of attending the boys’ hockey practices and games continued. According to Mr.

Baker, the new arrangement has worked well, and he sees his relationship with the boys as having been strengthened as they grow older. [ 11 ] Both boys have always played hockey at the highest level for their age. Joshua is presently playing Midget AAA, and Daniel is in a Bantam AAA league. Their hockey consumes 5-6 days a week during the hockey season. In recent years, they also attended private summer hockey camps. [ 12 ] Western Hockey League [WHL] drafts and the prospect of professional careers are in sight for both boys.

Joshua’s call to the WHL is likely to happen this September, and if it materializes, he will move from Edmonton to live with a billeting family for six months of the year. It is expected that Daniel’s call to the WHL could come as early as next year, and that the same routine would follow. [ 13 ] In their limited free time, the boys enjoy being members of a fitness club, a private golf club, and taking in an occasional movie. In the summer months, they spend about ten nights a year at their maternal grandmother’s lake cabin.

Presumably, that time equates to approximately five weekends. [ 14 ] The children have the usual array of portable electronics, phones, tablets and laptops, enjoyed by children of more privileged families. [ 15 ] Last fall, Joshua got his first car, a used 2011 Infiniti.

[ 16 ] The boys have been taught frugality, something the parties practiced during their marriage. At Ms. Baker’s home, they must earn their spending money by doing chores and obeying house rules. Indeed, neither parent lavishes the children with gifts, money for “money’s sake” or an extravagant lifestyle. Perhaps telling of the boys’ view of material things is that when asked by Mr. Baker last holiday season what they wanted for Christmas, the boys replied that they could not think of anything because they had everything.

The Parents [ 17 ] The Bakers’ marriage ended with a separation in 2006 and a divorce in 2008. Their divorce judgement incorporates a comprehensive settlement agreement made in September 2008 that addresses custody (joint), parenting (primary care with Ms. Baker and generous access with Mr. Baker), lump sum spousal support ($140,000), ongoing monthly child support ($4,076 plus 90.91% of s 7 expenses based on $300,000 income for Mr. Baker and a $30,000 imputed income for Ms. Baker), and the division of matrimonial property [Agreement].

Both parties had the advice of independent legal counsel in making the Agreement. [ 18 ] As noted, the Bakers lived frugally during the marriage. Mindful of Ms. Baker’s position that she would have liked to have spent more on the children after the marriage breakdown, Ms. Baker taught the children the value of frugality and hard work. Indeed, these values were so important to the Bakers that they included a term in their Agreement committing one another to instilling a strong work ethic and fiscal responsibility in their children. They agreed: 3.8(

e) to encourage the children to be responsible for and to contribute financially to, their own advancement and education as they get older (such that they will be encouraged to actively pursue summer and part-time employment, to budget their own funds and savings, to learn, foster and maintain a real work ethic and desire for accomplishment and achievement). [ 19 ] While the term is under the heading, “Education,” the broad notion of instilling a strong work ethic and desire for accomplishment and achievement in their children is one the Bakers followed through with.

As noted, the children are not given money for “money’s sake”. Rather, it is to be earned and valued. Extravagances are not de rigueur . So, while Mr. Baker buys items like the boys’ electronics, fitness and golf club memberships, suits, and Joshua’s car, relative to his income, they are not luxurious purchases. As examples, the suits purchased for the boys come from everyday suit shops, not high-end stores, and the fitness club is not a high-priced club.

Joshua’s used Infiniti came with a ‘responsibility price’ (including maintaining good grades and behaviour, and paying increased insurance premiums if the rate hike was attributable to his driving, and driving his younger brother about when asked by his parents). [ 20 ] Holding a BSc degree and diplomas in chemical engineering and occupational health and safety, Ms. Baker has been a stay at home parent since 2003, after Joshua was born. Since 2009, Ms. Baker has reported an average employment income of $2,000 – $3,000 per year plus some $10,000 child tax benefits. [ 21 ] Ms.

Baker has lived with her present husband, Rob, since 2008. Married in 2009, they have a daughter, Kate, now six years old. Rob is a very engaged stepparent, who is close to the Baker boys. [ 22 ] Ms. Baker, Rob, Kate, and the boys live in a 29 year-old home, presently valued at about $700,000, that she bought in 2008 with some proceeds from the sale of the matrimonial home (received in the property settlement). [ 23 ] Mr.

Baker’s income has risen from $314, 913 in 2009 to $1,500,000 in 2014 (including a gain on uncashed stock options) and $2,217,692 in 2015 (including two bonuses due in 2016, but received early for tax purposes). His forecasted 2016 income is $737,580, give or take $10,000. [ 24 ] Mr. Baker has been in a common-law relationship since 2013. He and his partner live in her home, which is valued at $479,000. (Curiously, neither of the boys has been inside this home and one has never been to the property.) Mr.

Baker is in the process of building a new $2,100,000 house, the details of which are unknown but for the neighbourhood. [ 25 ] Ms. Baker has a number of investments, some of which she initially obtained via the property division. The value of the portfolio (relevant to the suggestion that child support has been used to fund more than the children’s needs) is unclear, given incomplete disclosure; however, between April 2013 and May 2014, it was valued at over $275,000. [ 26 ] Mr. Baker owns a numbered company that holds assets of approximately $550,000 stocks that pays out a small dividend annually.

He manages two investment portfolios for the children, each worth about $3,800. Nothing else is known of his investment portfolio (he refused to answer questions about it in Questioning). [ 27 ] As for activities, Ms. Baker’s life revolves around her children. It is “directed by their hockey schedules,” with practices, games, and tournaments. Holidays are rare, and the family has never vacationed outside of Alberta, a fact Ms. Baker attributes to financial constraints and the boys’ demanding hockey schedules.

As previously noted, the children enjoy about ten nights a summer at their maternal grandmother’s cottage. Presumably, they also enjoy boating there in Ms. Baker’s boat. [ 28 ] Mr. Baker’s life apparently revolves around work, golf, the gym, and the boys’ hockey events. He typically attends one NHL game each year. There is no evidence of his holiday style or other lifestyle choices. The Child Support to Date [ 29 ] The divorce judgement obliged Mr. Baker to pay base child support of $4,076 on his then Guideline income of $300,000.

It also obliged him to pay 90.91% of the extraordinary expenses, a figure that accounted for Ms. Baker’s then Guideline income of $30,000 (derived from spousal support). The amount changed twice, both times at the behest of Mr. Baker. [ 30 ] This chart shows Mr. Baker’s income and the amount of support paid since 2008. His annual reported income is comprised of

salary of $309,000 plus bonuses. Year Reported Income Monthly Base Support Paid 2008 $314, 913 $4,076 2009 $375,383 $4,076 2010 $366,287 $4,076 2011 $556, 054 $5,071 (April-December) 2012 $705, 450 $5,071 2013 $978, 357 $8,000 (May-December) 2014 $1, 589, 854 $8,000 2015 $2, 217, 692 $8,000 2016 $737,580 (Forecast) $8,000 [ 31 ] In reality, Mr. Baker also pays 90.91%-100% of the children’s extraordinary expenses, which are costly. (He is obliged to pay the lesser amount, but the evidence of his also paying the full amount is undisputed). For example, between 2011 and 2015, the extraordinary expenses paid to Ms.

Baker totalled $105,567 (documented) and $15,000 (undocumented), plus $35,700 for private hockey schools and car insurance. These expenses equate to $156,267 or an average of $2,604 per month. Mr. Baker also directly funds the boys’ club memberships at a cost of $487 per month. In addition, he buys their electronics and some clothing. Mr. Baker observes that some of the s 7 expenses (apparently paid for without mention until now) include things like clothing, magazine subscriptions, and food supplements, which he sees as items that ought to be covered by s 3 support.

Fundamental Principles Governing Retroactive Child Support and High Income Earning Payor Parents [ 32 ] The Divorce Act , RSC 1985, c 3 (2nd Supp), ss 15.1 and 17, and the Federal Child Support Guidelines , SOR/97-175, are the statutory authorities for awarding retroactive and ongoing child support. Because Mr.

Baker’s income exceeds $150,000 per year, s 4 of the Guidelines is also in play. [ 33 ] It is trite that parents are obliged to support their children in a manner commensurate with their income and that a recipient parent need not adduce evidence of significant financial need by the children for a retroactive award: Goulding v Keck , 2014 ABCA 138 at para 22 , 373 DLR (4th) 673. [ 34 ] The leading case on retroactive child support is the Supreme Court of Canada decision in S(DB) v (G)SR ; [ W(LJ) v R(TA; Henry v Henry , 2006 SCC 37 , [2006] SCR 231 [ DBS ], which mandates a holistic assessment of entitlement to retroactive child support by assessing this fact-driven, but non-exhaustive list of factors: i. the existence of a reasonable excuse why a recipient parent does not seek support earlier; ii. the conduct of the payor, and whether the payor engaged in “blameworthy conduct”; iii. the circumstances of the child; and iv. hardship [ 35 ] A finding of ‘blameworthy conduct’ by the payor parent or evidence of significant financial need by the children is not a prerequisite for retroactive support: DBS at paras 99, 111 ; Goulding v Keck at paras 48, 51-53 . [ 36 ] Absent blameworthy conduct by the payor parent, a retroactive award should typically be no more than three years from effective notice by the recipient parent that child support should be re-negotiated.

This does not require legal action; raising the topic with the paying parent may be enough. If there is blameworthy conduct, the date when the payor parent ought to have increased the support is the more appropriate start date: DBS at para 124 . [ 37 ]

Section 4 of the Guidelines outlines two ways of calculating base or ordinary child support, where the payor’s income exceeds $150,000. The relevant part reads: Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is (

a) the amount determined under

section 3; or (

b) if the court considers that amount to be inappropriate, (

i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children [ 38 ] The principles governing support applications when the payor parent’s income exceeds $150,000 are found in the seminal

case, Francis v Baker, (SCC), [1999] 3 SCR 250, 177 DLR (4th) 1. They are also neatly summarized in Ewing vEwing, 2009 ABCA 227 at para 46, 457 AR 238: i. There is a presumption that the Table applies to all incomes, including incomes over $150,000. A party seeking to deviate fromthe Table has the onus of rebutting the presumption. (paras. 41, 43) ii. Children can expect the Table amount on the first $150,000 and a fair additional amount for that portion that exceeds $150,000.The closer the amount is to $150,000, the more likely it is that the Table amount will be awarded. (para. 41) iii. Where the presumption is rebutted, the Guideline figures can be increased or reduced under

section 4. (para. 42) iv. The test for deviation from the Table amount is that the evidence in its entirety must be sufficient to raise a concern that theTable amount is inappropriate. The evidence for departure from the Guidelines must be clear and compelling. A party seeking deviationis not required to testify or adduce evidence and no unfavourable conclusion should be drawn from a failure to do so. It is recognized thata party may not possess the required relevant evidence. (para. 43) v.

The actual situation of the children is central, and the condition, means, needs and other circumstances of the children must beconsidered in the assessment of the initial determination of inappropriateness and the determination of appropriate support. (para. 44).No single element of legislative purpose is to be given more weight than the actual circumstances of the children (para. 39). A properconstruction of

section 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with thoseof fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. (para.40) vi. To determine appropriateness the court must be armed with sufficient information, and trial judges have discretion to determineon a case-by-case basis whether a child expense budget is required to provide that information and they have the power to order it. (para.45) Custodial parents are not required to produce child expense budgets in all cases under

section 4. vii. Although frequently child support results in a benefit to the wife, the legislative objective is maintenance for the children ratherthan household equalization or spousal support. (para. 41) viii. While standard of living can be considered in assessing need, at some point support payments will meet even a wealthy child’sreasonable needs. When the Table amount is so in excess of the child’s reasonable needs it must be considered a functional wealthtransfer to a parent, or de facto spousal support. (para. 41) ix.

The test for whether expenses are reasonable will be met by the paying parent if the budgeted expenses are so high as to“excee[d] the generous ambit within which reasonable disagreement is possible”: Bellenden v. Satterthwaite, [1948] 1 All ER 343 at 345(para. 49). [Emphasis in original citation]. 1. Should there be an award for retroactive support? [39] To recap, Ms. Baker wants the Guideline Table amount of retroactive child support from September 2008 to today ($605,373).Mr.

Baker urges that the amount paid has, and will completely meet the children’s needs and more; and that their circumstance does notwarrant an additional award. In his view, Ms. Baker’s claim is a thinly veiled claim for de facto spousal support. [40] At para 101, DBS directs that while a delay in seeking child support is not presumptively justifiable, the court should not: ...hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictivelyto the application to the detriment of the family.

Equally, absent any such an anticipated reaction on the part of the payor parent, areasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was giveninadequate legal advice. [41] Ms. Baker contends that she did not have the financial wherewithal to move for increased support sooner than she did andthat, in any event, she was too intimidated to do so. The evidence does not support her views. This is what transpired. [42] Ms. Baker’s first request for Mr. Baker’s financial information was on October 9, 2010.

Then, she said “I realized that wenever reviewed our 2008 T4’s, so while we are waiting for my 2009 return, can you please provide a copy of your 2008 assessment.” Mr.Baker responded with word that he might have to get a copy from his accountant. There is no evidence about what happened after thatexcept that the support continued on the original amount until April 2011, when Mr. Baker increased it to $5,071. [43] Next, on July 12, 2012, Ms. Baker asked Mr. Baker to use a child support calculator and his 2011 T4 to calculate the (proper) support effective that July 1st. Mr.

Baker responded that he did not yet have his assessment and would let her know when he did.Apparently, he did not, and in November, 2012, Ms. Baker again asked for the assessment and recalculation. Mr. Baker’s response wasthat he had the assessment, but was looking for some legal advice about the support payments and would keep her posted. There is noevidence that he did either. [44] Then, on April 5, 2013, Ms. Baker wrote asking if Mr. Baker had talked to a lawyer yet saying, she had and relayed what thelawyer said, which was that annual disclosure, and the Guideline Table amount are mandatory. Mr.

Baker replied with word that he was“not intending to be difficult and would not be,” saying that the monthly payments were “starting to get too large for two boys who lackfor nothing,” and asking for a week to reengage with the lawyer. The email closed with “Chat soon.” Within two weeks, Mr. Baker

delivered his 2010 - 2011 tax information, and made his proposal to pay the lower of the Guideline Table amount to the maximum of $8,000 per month plus the extraordinary expenses, all of which he began paying the next month. [ 45 ] Eight months passed without further word. Then, in late January 2014, Ms. Baker advised that the amount was unfair suggesting that amounts over $8,000 could go to a savings account for the boys. Mr. Baker responded with a request for time to think about it. Apparently, he did not get back to her, and Ms.

Baker’s next move was to serve a disclosure notice on August 27, 2014 (filed July 16 th ). Mr. Baker replied to the notice and also served a disclosure notice. [ 46 ] In the period between April 17, 2014 (the date of Mr. Baker’s proposal) and August 27, 2014 (service of Ms. Baker’s disclosure notice), Ms. Baker obtained advice from Maintenance Enforcement Program staff and two lawyers. [ 47 ] The next action involving both parties was December 22, 2015, when Ms. Baker filed her application that brings the parties to court today. 1(

a) Is intimidation established? [ 48 ] There must be some objectively reasonable basis to find intimidation or “continuing apprehension” as a reasonable excuse for not moving forward with a claim for increased child support: Greenall v Greenall , 2010 BCSC 583 at para 53 , 2010 CarswellBC 1018. [ 49 ] It is evident that Ms. Baker does not like talking to Mr. Baker about money and that she perceives his approach as “all a business deal.” However, that does not establish intimidation. [ 50 ] There is no evidence of intimidating, aggressive, abusive, controlling or hostile behaviour by Mr.

Baker during the marriage, the divorce or in the ensuing years thereafter to lend credence to Ms. Baker’s assertion. Similarly, there is no evidence of emotional incapacity on Ms. Baker’s part during any of these periods to lend credence to the notion. [ 51 ] The communications referenced in the evidence also do not support the allegation. In contrast, most are quite cordial. The least cordial (but certainly not improper) communication concerning child support is Ms. Baker’s email of April 12, 2013, in which she puts her foot down, demanding action and telling Mr.

Baker her view of what the law requires of him, saying: You will hunt forever trying to find a lawyer who will tell you exactly what you want to hear. Good luck though because the law speaks for itself and every lawyer will tell you that. You are not an extreme case… I want to get this rectified right away. [ 52 ] This is not the voice of a person intimidated by her former husband. [ 53 ] As with her general claim of intimidation, there is no evidence to found Ms. Baker’s assertion of specific intimidation attributable to Mr. Baker’s talk of seeking legal advice about his support obligations.

While this might have made Ms. Baker uncomfortable, there is no evidence of such communications having an intimidating tone or tenor. Interestingly, Ms. Baker points to Mr. Baker’s April 17, 2013 email replying to her request for increased child support a few days earlier as a “veiled threat.” As the reader of many exchanges between disputing parents, I see it as a non-threatening statement. The relevant portion reads: If I adjust the Federal Child Support Guidelines table amount for my 2012 income it comes out to $9, 542.04 per month.

I feel that this amount is excessive for reasonable expenses incurred per month for the boys. Especially considering the additional

Section 7 expenses I pay. I understand that once my income exceeds $150,000, the court has discretion to depart from the table amount of support. I would like to propose the following: On an ongoing basis we follow the Child Support Guidelines table amount up to a maximum of $8,000 per month. I will thus pay either (

a) the table amount based on my current income information, or (b) $8000 per month. In addition, I will continue to pay my proportionate share of

Section 7’s. If you don’t agree, I really feel I need to have the opinion of a judge to either instruct me to pay the Guideline amount or agree that it is excessive and reduce it. The numbers are just getting too large. .... Christine, I mean no offence by suggesting a reduced amount. I hope you see it that way. [ 54 ] The evidence discloses one incident of Ms. Baker yielding to Mr. Baker’s demands in connection to financial matters. Although it is not terribly germane to the issue, I will nevertheless touch upon it for completeness. It relates to the (legally unenforceable) contract Mr.

Baker entered into with Joshua for the Infiniti. Ms. Baker considered the terms too onerous for Joshua, but after a “standoff,” ultimately capitulated to Mr. Baker’s “hard ball negotiation” and signed an acknowledgement of the deal, which she says typifies Mr. Baker’s “cold, insensitive attitude.” Ms. Baker is certainly entitled to her view of the contract. Others may see it instead as a parent instilling a sense of responsibility and ownership in his child. [ 55 ] As the court found in Greenall v Greenall , I find Ms. Baker’s claim of intimidation to be over-stated. 1(

b) Is financial inability established? [ 56 ] Ms. Baker asserts that she was financially incapable (having to save until July 2014) to pay for a lawyer. Like her claim of intimidation by Mr. Baker, I also find this notion to be overstated.

[ 57 ] Mindful that recipient parents should not have to deplete all of their savings and investments and be left with no “rainy day” money, this was not Ms. Baker’s circumstance. Between April 2013 and July 2014, Ms. Baker’s savings ranged from $31,016 - $66,942. She also had investments, the amount of which is not clear, but presumably was not meagre. While the evidence does not give specifics of Ms. Baker’s RRSP and other investments from April 2013 - May 2014, the incomplete records produced show her current investments exceeding $275,000. In short, Ms.

Baker had the financial wherewithal to move sooner to retain a lawyer than she did. [ 58 ] Given my finding, I need not address the contention that Ms. Baker also could have accessed the same credit facilities used by her to purchase a luxury item about the same time she retained a lawyer. Conclusion on Delay [ 59 ] There is no reasonable excuse for Ms. Baker’s delay, which is but one of three DBS factors in play in this case: Goulding v Keck at para 39 . 1(

b) Is Mr. Baker guilty of blameworthy conduct? [ 60 ] Blameworthy conduct is a term of art that includes “anything that privileges the payor parent’s own interests over the children’s right to an appropriate amount of support”: DBS at para 106 . [ 61 ] In Goulding v Keck at para 44 , the Alberta Court of Appeal held: DBS says that failing to disclose a significant increase in the payor’s income may be “blameworthy conduct”. ... Since DBS , many courts have held that a failure to disclose amounted to “blameworthy conduct”, weighing heavily in favour of a retroactive award....

The payor’s subjective intention is rarely relevant - the real question is whether the payor’s conduct had the effect of privileging his or her interests over the child’s right to support . [ 62 ] While our Court of Appeal says the “payor’s subjective intention is rarely relevant,” the British Columbia Court of Appeal opines that “[b]lameworthy conduct is a question of the defendant’s subjective mental state”: Price v Price , 2010 BCCA 452 at para 27 .

These statements are not mutually exclusive, and are consistent to the effect that the court is entitled to consider the payor’s “subjective intention.” In this vein, the Supreme Court of Canada has also indicated that, “[w]hether a payor parent is engaging in blameworthy conduct is a subjective question”: DBS at para 108 . [ 63 ] In relation to determining whether blameworthy conduct exists, the Supreme Court admonished that “[a]t all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix”: DBS at para 99 . [ 64 ] Ms. Baker urges that Mr.

Baker is guilty of blameworthy conduct by failing to comply with the Agreement to provide annual income disclosure, adjusting the support as required, and benefitting from the money that he should have paid. Ms. Baker contends that, notwithstanding the Agreement, which imposes positive obligations on both parties to disclose their income annually, her failure to disclose her income for all but 2009 is irrelevant. She argues that her income is negligible and Mr. Baker has the duty to pay. [ 65 ] Mr. Baker points to the fact that both Ms. Baker and he have largely ignored their mutual contractual obligation.

He contends that Ms. Baker’s corresponding failure to disclose her income is relevant to an assessment of his conduct. He also argues that his income is public in nature, and the support he paid has satisfactorily met the children’s needs. 1 (b)(

i) What is the effect of the breach of the contractual duty to disclose income annually? [ 66 ] As in this case, the parties in Goulding v Keck had a settlement agreement that provided for mutual income disclosure and support adjustments annually. There, both parties failed to comply, the support recipient never asked for the information, and the payor simply forgot about the agreement. Assuming the payor’s explanation was true, the Alberta Court of Appeal distinguished the case from DBS saying that by accepting the term in the agreement, the payor could not continue to rely on the original support.

Absent unfairness, the term was enforceable. “Even an honest and blameless error on the part of the payor does not absolve him or her of responsibility for paying the support to which the child has been entitled”: Goulding v Keck at para 46 . [ 67 ] Further, in Goulding v Keck , the payor did not pay child support for four years. Then, after entering into the agreement, he paid support based on a Guideline income of $40,000, when he was in fact making over $117,000 .

In the ensuing years, his income increased to over $134,000, but did not pay on his actual income until confronted with a request for a recent paystub. The Court found blameworthy conduct. [ 68 ] Goulding v Keck is binding insofar as it concerns the court’s ability to find blameworthy conduct by a payor parent in this circumstance. The result is, of course, fact driven and focused on the effect of the payor’s conduct that would shore a retroactive award of child support. [ 69 ] Like the payor in Goulding v Keck , Mr. Baker’s having twice increased the support payable to Ms.

Baker is an acknowledgment that he knew he had to pay more support. As with his failure to provide annual income disclosure, it is facially blameworthy. The question is, if that is enough to constitute blameworthy conduct in the context of the DBS framework. [ 70 ] Both parties were contractually obliged to exchange income information annually, but until 2013, each had a laissez-faire approach to their obligations. Typically, neither volunteered their annual disclosure. When asked, Mr. Baker sometimes delivered the information. Other times he, like Ms. Baker, did not. [ 71 ] Some of Ms.

Baker’s financial disclosure remains incomplete to this day. I reject the notion that her disclosure is irrelevant because “her income was negligible.” Parents served with a notice to disclose are obliged to honour the request. It is not a one-way

street.

The other parent and the Court are entitled to know all of the relevant facts to assess the matter fairly. [ 72 ] Critically, the Alberta Court of Appeal in Goulding v Keck did not expressly discuss the effect of “mutual blameworthiness” in the situation where both the payor and the recipient have both breached the agreement that positively obliged them to disclose their financial information to each other. [ 73 ] The Saskatchewan Court of Appeal decision in Koback v Koback , 2013 SKCA 91 , 423 Sask R 35, which also concerns a situation where both parties ignored a separation agreement requiring annual financial disclosure, is informative.

The chamber’s judge found its breach by the payor parent blameworthy, which was a significant consideration in granting retroactive support: at para 8. While the appellate court upheld much of the award and described the lower court’s finding, it did not comment on its propriety.

Significantly, the appellate court commented that, “both parents bore blame for the delays in disclosing their financial information to each other.” The Court did not specifically discuss the effect of both parties’ conduct on the payor’s blameworthiness, but approved the chambers judge’s conclusion that, “[w]hen adults consensually agree in the form of a separation agreement, having had the benefit beforehand of independent legal counsel, it is the court’s duty to hold the parties to their bargain”: paras 3, 8, 30. [ 74 ] In this context, it is pertinent that in Goulding v Keck , the Alberta Court of Appeal, at paras 31-32, also determined that parties have a duty to know what they have agreed to; the general rule is that liability to perform contracts is strict; and negligence or intent to do harm is not a requirement. [ 75 ] The characterization and consequence of a mutual breach of a settlement agreement are addressed in Jones v Jones , 2014 ABQB 669 , 54 RFL (7th) 109.

Although distinguishable, as both parents were substantial income earners and neither knew if the other was the higher income earner of the two, the case is instructive.

There, the Court ruled: “[i]f failure to disclose financial information in these circumstances is blameworthy conduct, then both parties engaged in such conduct” because “[w]hat is good for the goose must be good for the gander”: paras 30-31. [ 76 ] I agree with the notion of mutual blameworthiness, which is consistent with the Supreme Court’s admonition that courts “should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix”: DBS at para 99 . [ 77 ] Based on a holistic assessment of the facts of this case, including the positive contractual obligations on both parties to disclose their financial information under the Agreement, Ms.

Baker’s corresponding failure to disclose mitigates Mr. Baker’s blameworthy conduct: DBS at para 99 ; Koback v Koback , at para 30 . [ 78 ] The analysis, as to whether Mr. Baker is blameworthy or not, does not end with both parties being blameworthy in terms of their mutual failure to disclose vis-à-vis their Agreement. It simply moves the inquiry to a probing of whether Mr. Baker’s conduct privileged his interests over his children’s right to an appropriate amount of support. 1(b)(ii) Did Mr.

Baker privilege his interests over the children’s right to an appropriate amount of support [ 79 ] To reiterate, in DBS at paras 106-107 , the Supreme Court of Canada held that: [It] would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.... No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them.

Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct:” [ 80 ] It also indicated that, “[w]hether a payor parent is engaging in blameworthy conduct is a subjective question”: DBS at para 108 . [ 81 ] The BC Court of Appeal observes: “[b]lameworthy conduct is a question of the defendant’s subjective mental state”: Price v Price at para 27 . [ 82 ] Obviously, it is no excuse to ignore one’s obligations because the recipient parent never asks for disclosure.

Indeed, DBS and Goulding v Keck direct that ignoring a contractual term can constitute blameworthy conduct.

Logically, they do not go so far as to say that it always will, since the focus must be on the effect of the impugned conduct. [ 83 ] This is not a case of a payor knowing of the financial difficulties in the recipient parent’s household and his child’s unmet needs, or misleading and lulling the recipient parent into a false belief that court action would be fruitless like the case of Schick v Schick , 2008 ABCA 196 , 433 AR 242. [ 84 ] The pre- Goulding v Keck decision of Rowbotham J, as she then was, in Archibald v Archibald , 2007 ABQB 486 , 427 AR 271, while distinguishable as there was no contract in play, is nevertheless relevant.

There, the Court found that the existence of readily accessible public information about a payor parent’s income could militate against finding blameworthy conduct. [ 85 ] Like the payor in Archibald v Archibald , Mr. Baker’s annual compensation was readily accessible on the internet. More significantly, Ms. Baker’s evidence shows that she sourced that information. So, while similar to the recipient parent in Archibald v Archibald , whose knowledge was presumed by virtue of her shareholdings in the payor’s employer, Ms. Baker had actual knowledge. (Ms. Baker also received shares in Mr.

Baker’s employer as part of the parties’ property division, but it is unclear if she retained them for any length of time). In this context, it is noteworthy that Mr. Baker’s various positions are also shown on his business email account that he used to communicate with Ms. Baker. [ 86 ] While the logic in Archibald v Archibald accords with the notion that blameworthy conduct requires something more than a

passive and unconscious failure to disclose, I am, nevertheless somewhat troubled by the idea that payor parents with publically accessible incomes can simply point to that as a means of avoiding or minimizing their income disclosure duty. The problem is twofold. First, it shifts the payor’s onus to disclose to the recipient spouse to go on a search mission. Second, such information may not include all of the requisite details. This general concern of a recipient spouse having to search out information aside, every case must be determined on its unique facts, and the facts of this case are that Ms.

Baker knew of the ability to access information of Mr. Baker’s compensation package and did just that. [ 87 ] As will be seen from the discussion of the children’s circumstances, Mr. Baker’s contractual default after April 2013 did not privilege his own interests to the prejudice of the children’s right to proper support. The evidence does not show that Mr. Baker chose to ignore, minimize, or avoid his obligations to his children. His belief in the fulfillment of his support obligations is reasonable and supported by the evidence.

As such, it is the type of “good indicator” that his conduct in this period is not blameworthy, as discussed in DBS at para 108 . [ 88 ] In the result, while Mr. Baker is blameworthy for breaching his contractual duty to disclose his income annually, Ms. Baker’s like breach is a mitigating factor.

More importantly, the evidence does not establish that he privileged his interests over his children’s right to an appropriate amount of support to meet the children’s actual condition, means, needs and circumstances . [ 89 ] Having considered the issues of delay and blameworthy conduct, as well as the relevant legal principles established in DBS at para 124 , the most appropriate start date for retroactive support, if any, is the date of Ms.

Baker’s service of notice to disclose on August 27, 2014. (The sixteen month gap between service of the disclosure notice and the motion for this application is disconcerting, but the delay cannot be attributed solely to one party.) 1(

c) Has Mr. Baker rebutted the presumption that the Guideline Table applies? [ 90 ] To succeed in rebutting the presumption that the Guideline amount should apply, Mr. Baker must raise a concern that it is inappropriate or unsuitable: Francis v Baker at para 43 ; Ewing v Ewing at para 46 . [ 91 ] As will be seen from the following discussion, the totality of the evidence raises a concern that the current child support sufficiently funds the children’s conditions, needs, and other circumstances. Relevant is Ms.

Baker’s proposed monthly budget for ongoing support for the children, which is $13,664.66, compared to the sought-after monthly Guideline amount of $29, 806. [ 92 ] In my view, Mr. Baker has rebutted the presumption concerning the Guideline applying. 1(

d) What are the children’s circumstances? [ 93 ] In determining whether a retroactive award is justified, the present and past circumstances of the children are considered. The Supreme Court of Canada said this in DBS , where it noted at para 111 : A child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. As I mentioned earlier, it is a core principle of child support that, after separation, a child’s standard of living should approximate as much as possible the standard (s)he enjoyed while his/her parents were together.

Yet, this kind of entitlement is impossible to bestow retroactively. Accordingly, it becomes necessary to consider other factors in order to assess the propriety of a retroactive award.

Put differently, because the child must always be the focus of a child support analysis, I see no reason to abstract from his/her present situation in determining if a retroactive award is appropriate. [ 94 ] The Baker children are entitled to the standard of living that they might have enjoyed but for their parent’s divorce; however, as our Court of Appeal reminds us in Ewing v Ewing at para 61 : ...not every increase in annual income translates into a change of a family’s lifestyle, even when the family is intact and not embroiled in litigation.

A family would often treat exceptional increases in income differently than increases that are routinely anticipated...Moreover, not every wealthy family lives at the same standard as every other wealthy family. [ 95 ] Said another way, the mere existence of an income disparity, even a significant one, can, but does not always, equate to children living a lesser (or lower) lifestyle than they would have enjoyed but for the divorce. [ 96 ] The determination of child support engages a child-centred analysis of the children’s condition, needs and other circumstances and their parent’s ability to pay.

This consideration is not to be displaced by an assumption that children are automatically entitled to share in the entirety of the payor parent’s wealth: Ewing v Ewing at para 54 . [ 97 ] Like the child in Ewing v Ewing , there have been no significant changes to the Baker boys’ lifestyle since their parents divorced. They live in the same home they have lived in since 2008. Apart from school, hockey and fitness consume most of their time.

What little free time they do have is taken up with an occasional movie outing, golfing, and summer weekends at their grandmother’s lake cottage. [ 98 ] While the children’s vacations are few, it is not simply because their mother does not have the financial wherewithal to fund holidays. More rational is that their hockey schedules play a large

part in interfering with vacations. Mindful that there are undoubtedly some school holidays that are not spent for hockey related activities, other than a period after Christmas and spring break last year, Ms. Baker could not recall whether the boys could take time away from hockey for a holiday in the last five years. She also explained that a holiday last spring break was not available because of these proceedings. [ 99 ] No expense has been spared to fund the children’s consuming passion for hockey. The only new extracurricular activity of any significant cost in recent years is golf, which is also covered by s 7 support.

[ 100 ] The children have continued to learn the value of a strong work ethic and fiscal responsibility that their parents long ago agreed to teach them. Telling in this regard are: their advising their father that they could not come up with a Christmas gift idea because they had everything, the relatively modest car purchased for Joshua, and the deal he had to make with his father for the car. [ 101 ] It is difficult to reconcile this circumstance as a case of children having fewer opportunities or a lesser lifestyle with the recipient parent than they would with their payor parent.

It is certainly not like the (evident Disneyland Dad) case of Archibald v Archibald , where the payor father travelled with the children to Europe and vacation resorts, took them skiing to his mountain resort property (something the family enjoyed doing during the marriage), and flying in his private jet, while their mother could offer them none of those things. There is no evidence to suggest that Mr.

Baker fits the bill of a Disneyland Dad. [ 102 ] The evidence of the parties’ lifestyles and choices does not establish that the children have lesser opportunities and experiences with their mother than their father. The one exception is their golf club membership, but as junior members that is likely not much of an extravagance. [ 103 ] Similarly, this is not a case of a recipient parent having to just make do by living frugally. Largely, it is about choices.

The Bakers’ Agreement and post-divorce conduct demonstrate their conscious decision to instill life lessons of frugality, fiscal responsibility and a strong work ethic in their children during their marriage, and to continue those lessons after the marriage ended. The cautions in Ewing v Ewing at paras 54 and 61 resonate. [ 104 ] As will be detailed further under the next heading, the children’s monthly budget proposed by Ms. Baker ($13,664.66) includes certain unrealistic or inappropriate expenses, and shows that the current level of support meets the children’s particular needs. 1(

e) Will the children benefit from a retroactive award? [ 105 ] Although decided in the context of prospective child support, the test, in Francis v Baker at para 49 , for whether expenses are reasonable is instructive. It is whether the budgeted child expenses are so high as to exceed the generous ambit within which reasonable disagreement is possible. [ 106 ] Ms. Baker argues that the $605,373 retroactive award of support sought will strongly benefit the boys. Some of the purposes she intends to use the retroactive award for are to: • Renovate and upgrade her home.

This planned project includes a new kitchen, new flooring, windows, driveway, roof, shed and deck, and some repairs to other areas of the house, including the boys’ bedrooms ($212,000). • Build a bunkhouse and outdoor shower for the boys at her mother’s cottage ($26,000); • Buy a new car ($50,000); and • Fund vacations to Disneyland, Hawaii and Europe for the three children, Rob and herself ($100,000). Although not particularized in the same detail, many of these items are also included in Ms.

Baker’s monthly budget for ongoing child support: home maintenance ($500), cottage ($300), home improvements ($5,000), and vacation reserve ($2,000). [ 107 ] While it is reasonable to expect some wear and tear on a house two teenage boys live in, the extensive renovations intended by Ms. Baker do not meet the aim or objective of child support: Selleck v Selleck , 2011 ABCA 374 at para 13 , [2011] AJ No 1417 . Like the intended home renovations, the bunkhouse project is an unreasonable ask. [ 108 ] Ms.

Baker’s intention to spend $50,000 on a new vehicle also exceeds the bounds of reasonableness in furthering the aim of child support. Accepting that she uses her and Rob’s vehicles to shuttle the boys to hockey and other events, some wear and tear compensation might be reasonable, but a new vehicle is not. I note that Ms. Baker’s monthly budget includes $400 per month for servicing, which, given the amount, presumably includes some wear and tear factor.

Finally, there is the issue of Joshua having his own car, and how that impacts the intention to purchase a new vehicle and the monthly servicing budget. [ 109 ] As for the intended vacations, presuming the boys could or would take time away from hockey to go away on vacation, while they would benefit from them, the aim of child support is literally to support them. Although it would be nice for Ms.

Baker’s family to holiday and travel together, the aim and objective of child support is not to pay the way of the children’s stepfamily. [ 110 ] While child support can result in a benefit to the recipient parent, the legislative intention is maintenance for the children rather than household equalization or spousal support: Francis v Baker at para 41 . An award of retroactive support in this case will result in household equalization or spousal support for Ms. Baker. Conclusion on Retroactive Support [ 111 ] Mr.

Baker has rebutted the presumption that the Guideline Table amount should apply. [ 112 ] A holistic assessment of entitlement to retroactive child support leads to the conclusion that an award of retroactive child support is unwarranted despite the significant increases to Mr. Baker’s income. 2. Should there be an increase to the s 3 support? [ 113 ] Section 17(4) of the Divorce Act authorizes the court to vary a previous support order if a change of circumstances occurs.

2(

a) Is there a change in circumstances since the divorce judgment? [ 114 ] The significant increase in Mr. Baker’s income constitutes a material change in circumstances. 2(

b) What is the appropriate amount of ongoing child support? [ 115 ] To recap, Mr. Baker is presently paying s 3 support of $8,000 per month plus 90.91%-100% of the children’s extraordinary expense. Ms. Baker’s monthly budget, sought for the children, is $13,664.66. The Guideline amount sought is $29,806. [ 116 ] Mr. Baker is concerned that the existing level of child support has resulted in a transfer of wealth or de facto spousal support, and that any further increase would exacerbate the matter. His unease stems from Ms.

Baker augmenting her investments (the amount of which is quite unclear), reducing her mortgage by $170,000 over eight years including recent lump sum, and double up payments of $63,900; the latter of which $10,000 is shown as coming from an investment, in a period when Ms. Baker and Rob’s average combined annual income was $25,000-$30,000. [ 117 ] In the (very many) undertakings asked of and given by her in Questioning, Ms. Baker accounted for how she spent the proceeds from the sale of the matrimonial home and provided numerous banking records. [ 118 ] Mr. Baker contends that the budget proposed by Ms.

Baker unfairly attributes excessive costs for the children and in some respects is unreasonable. Ms. Baker views her budget as a reasonable estimate of what she needs to close the lifestyle gap between what the children can enjoy in her home and Mr. Baker’s. Acknowledging that she and Rob have not had any other source of income, she denies that she used any child support to fund the items that cause Mr. Baker’s consternation about funding more than the children’s expenses. [ 119 ] Having already found that Mr. Baker has rebutted the presumption that the Guideline should automatically apply in the context of Ms.

Baker’s claim for retroactive support, the assessment turns to whether, and if so, to what extent an increase of s 3 child support is warranted. [ 120 ] Again, the inquiry is child-centered and the principles in Francis v Baker and Ewing v Ewing , previously discussed, apply to this aspect of the analysis. Relevant also is that in high income cases, reasonableness of discretionary expenses replaces the concept of need : Archibald v Archibald at para 28 . [ 121 ] In Archibald v Archibald , Rowbotham J (as she then was) reviewed the authorities applying Guideline , s 4.

She concluded that while, in most of the cases, the award was for the Guideline amount, and the budget prepared by the recipient parent justified such payment: para 35. [ 122 ] I also note that in Moors v Moors , 2013 ABQB 740 , 579 AR 59, which involved one child, the monthly budgeted costs for which were $10,450 per month, inclusive of all s 7 and private school fees, Hunt McDonald, J awarded $10,000 per month observing that the recipient mother was not seeking the Table amount, that the amount sought was reasonable in the circumstances.

Further, the private school fees previously paid for separately by the payor father were included in the amount sought. [ 123 ] With that backdrop, I turn to assess Ms. Baker’s proposed monthly budget, mindful of the direction in Francis v Baker at para 49 concerning the test for whether expenses are reasonable. [ 124 ] Mr. Baker points to budget items that are disproportionately attributed to the boys. His observation is correct. Ms. Baker inaccurately allocates 50% of Housing and Lodging, when the proper allocation of these costs, assuming their propriety, is 40% or 2/5 of the household budget. [ 125 ] Mr.

Baker also points to certain items that he views as excessive or inappropriate under the Housing and Lodging estimated budget. Again, his point has merit. Included in Ms. Baker’s estimate are a $5,000 claim for Home Improvements and a $300 claim for Cottage. Through counsel, she concedes these claims are to pay for various upgrades and renovations discussed in the context of retroactive support over five years.

While some amount is certainly reasonable for wear and tear repairs or renovations attributable to having two teenaged boys in the home, the $5,300 claimed for these items is unreasonable: Selleck v Selleck . A more reasonable amount is an extra $500 per month in addition to the $500 already claimed for home maintenance. Any actual costs for the use of Ms. Baker’s family cottage can come from the budget for vacation reserve. [ 126 ] Ms. Baker’s estimated budget under the Transportation portion of her budget claims 50% of her and Rob’s vehicle costs ($1,094).

As Joshua has his own car, Daniel’s proportionate share of the amount is 20%. [ 127 ] There are several concerns about the direct expenses budgeted for the boys; some larger than others. Some of these claims would be perfectly reasonable for the children of a high-income earning payor; however, the assessment is focused on these children and their lives. As such, the claim for Oiler’s season tickets ($1,083) is simply unrealistic given the boys’ hockey commitments and history.

More realistic and reasonable is funding occasional, single purchase NHL tickets from the $1000 allocated for entertainment and activities fund. I note that the budget also attributes $500 for restaurant expenses. [ 128 ] Ms. Baker’s estimate for the boys’ groceries ($1,500) does not account for Joshua’s 6-month absence playing hockey. Appreciative of Ms. Baker’s concern that the billeting family might ask for some help paying for groceries, the better approach if that happens, is to treat the actual cost as a

section 7 expense. [ 129 ] The estimate of $2000 for a vacation reserve is more than twice Ms. Baker’s $10,000 estimate for taking the boys on a trip out of the country (given in Questioning and speaking of a trip to Disneyland). Adjusting the amount to $1,667 doubles Ms. Baker’s estimated travel cost goals for the children.

[ 130 ] The $300 attributed solely to the boys for streaming TV and like TV services is not primarily of concern because of its dollar value. Rather, it is that the services are for the benefit of all household members, and the proper allocation is 40%. [ 131 ] The $500 claim for Cash Expenses does not specify what types of expenses would be covered.

Presumably, they would be small purchases of consumables, parking costs and the like, which are properly subsumed in other claims. [ 132 ] Appended is an adjusted budget of $8,032.93, which accounts for the matters discussed and notes some items that are not varied but may be of interest to the parties. [ 133 ] The adjusted budget amount plus the s 7 expenses for which Mr. Baker is responsible is an appropriate amount of support to fund the Baker children’s present circumstances, and provides a reasonable pool for discretionary expenses.

This amount is well below the Guideline Table amount, demonstrating that application of the Table would lead to a transfer of wealth or de facto spousal support, which offends the legislative aim of child support. [ 134 ] I need not address Mr. Baker’s concerns about how Ms. Baker and her new family have funded their past expenses. 2(

c) Should Ms. Baker be obliged to contribute more money to the children’s support? [ 135 ] Mr. Baker’s counsel urged that Ms. Baker should be required to contribute more to the children’s financial support. [ 136 ] As noted, Ms. Baker has been a stay-at-home parent from the time Joshua was born. Until this hearing that appears not to have been an issue. Indeed, emails from Mr. Baker to Ms. Baker indicate his gratitude for her hard work and commitment in raising the children. Whatever prompted the change in attitude has not been verbalized. [ 137 ] Appreciating that Ms.

Baker’s circumstances have changed (her youngest child, now school-aged, and Joshua, soon to be away from home for six months of the year), I decline to entertain Mr. Baker’s impromptu bid to have income imputed to her without formal application. Should he choose to make such application he is, of course, entitled to do so. Conclusion on Ongoing Support [ 138 ] In the result, there is no sound reason to increase ongoing child support despite Mr. Baker’s jump in income. In finding as I do, I am mindful that Mr.

Baker’s s 7 expenses, which have been very significant, will be reduced when Joshua begins playing hockey with his WHL team this fall. However, and in any event, that does not alter the outcome of this child-centered analysis . Overall Disposition [ 139 ] Ms. Baker’s application for retroactive child support and increased ongoing support is dismissed. [ 140 ] Mr. Baker’s impromptu request to have income imputed to Ms. Baker fails. [ 141 ] The parties may speak to the issue of costs, if necessary, within 45 days of the date of this decision. Heard on the 15 th day of June, 2016.

Dated at the City of Edmonton, Alberta this 15 th day of September, 2016. J.E. Topolniski J.C.Q.B.A. Appearances: Thomas Colquhoun TC Family Law Group for the Plaintiff

Richard Hajduk Hajduk Gibbs LLP for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.E. Topolniski _______________________________________________________ Highlighting in para [38] has been removed. At para [135], support was added to the end of the sentence. Minor formatting changes have been made.

Appendix A