Sittig v Patenaude, 2016 ABQB 617

Court of Queen’s Bench of Alberta Citation: Sittig v Patenaude, 2016 ABQB 617 Date: 20161108 Docket: FL01 15921 Registry: Calgary Between: Genevieve Michelle Sittig Applicant - and - Jean-Francois Patenaude Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction [ 1 ] In October 2012, the Applicant, Genevieve (Michelle) Sittig commenced an application under the Interjurisdictional Support Orders Act (“ ISO ”) in British Columbia, seeking to vary a consent order made in B.C. Provincial Court on May 28, 2010, which set base child support at $100 per month.

The 2010 court order stated that it was to continue until March 1, 2011, without providing any indication as to what, if any, child support was to be payable thereafter. [ 2 ] Notwithstanding the terms of the order, the Respondent continued to pay $100 per month until the amount was increased to $300 on April 24, 2013. In her current application, Ms. Sittig seeks to increase this amount to $605 per month or the current Guideline amount corresponding to the Respondent's income. [ 3 ] The parties were in a common-law relationship from September 1, 2001, until approximately July 2007. They have one

child, Solance, born June 23, 2002. The Applicant currently resides in Nelson, British Columbia, together with Solance, now 14 years of age, while the Respondent lives in Calgary with his wife and their three young children aged 6, 3 and 1. [ 4 ] Ms. Sittig contends that she has been seeking an increase in child support since January 2012, but the Respondent has consistently refused. The Respondent concedes that there was a request for additional child support in an email from the Applicant dated January 1, 2012, but nothing further.

History of the Proceedings [ 5 ] The matter was first heard in the Court of Queen's Bench of Alberta on April 24, 2013. At that time the matter was remitted back to British Columbia for further evidence required to determine the Respondent's undue hardship application. On an interim without prejudice basis, the Respondent's base child support was increased to $300 per month commencing May 1, 2013, until a full hearing of this matter could take place.

The Respondent is fully up to date on these monthly child support payments. [ 6 ] This application was back before this court on December 16, 2015 for dismissal based on the Applicant's alleged non- compliance with the direction to provide additional evidence. Both parties were provided with notice of this date.

The Applicant responded and advised that she had submitted the requested material directly to the Court and took issue with the plan to dismiss her application for non-compliance. [No materials were ever located within the courthouse in Calgary.] The Respondent appeared in person on December 16, 2015, at which time the matter was adjourned to March 23, 2016. Both parties filed updated evidence in advance of the March 23, 2016 hearing date. [ 7 ] The Respondent gave viva voce evidence during both the April 24, 2013, and March 23, 2016 hearings.

After hearing the Respondent’s evidence, and considering the other materials filed by both parties, I reserved my decision to further consider the matter. These are my reasons for decision. The Financial Circumstances of the Parties [ 8 ] The Applicant is employed as a gas meter reader in Nelson, B.C. She has occupied this position since July 2013 and has earned an income of approximately $50,000 per year since that time. She lives in a small one bedroom apartment with Solance. Her monthly expenses total $4,300, including $690 for rent. She has assets of approximately $5,400 and no current debt.

While she is not seeking contribution to s. 7 expenses for Solance, she incurs monthly costs of $170 for various activities and lessons, as well as $32 per month for a camp. [ 9 ] The Respondent filed various documents pertaining to his income and expenses. As previously indicated, he also gave vive voce evidence during both the April 24, 2013, and March 23, 2016, court appearances. At the time of the April 24, 2013 court appearance, the Respondent was working with North Caribou Air as an aircraft engineer, earning $33/hour. He worked some overtime.

At that time, he was married and stated that he was the sole source of support for his wife, her two children (then aged 15 and 16), as well as his own two young children. In his evidence, he stated that his wife was a full-time mother and not working outside of the home. His wife received $620 per month in child support from the father of her two older children, though the Respondent stated that this amount was not paid on a consistent basis. [ 10 ] As of March 23, 2016, the Respondent has three children with his current wife, aged 6, 3 and 1 years.

He is now working at Westjet as a maintenance planner, earning $33.65 per hour. His income in 2012-2016 is as follows: 2012 - $73,984; 2013 - $92,690 (including RRSP income); $89,613 (without RRSP income); 2014 - $92,896 (with RRSP income); $89,723 (without RRSP income); 2015 - $89,213; 2016 - $79,000 (estimated, including $4,000 net business income). [ 11 ] The corresponding table amounts payable for one child under the Alberta Child Support Guidelines are $632 (2012); $803 [or $775] (2013); $805 [or $776] (2014); $772 (2015); and $679 (2016) per month, respectively.

The Respondent’s Undue Hardship Claim [ 12 ] The Respondent gave evidence and filed various materials in support of his undue hardship claim. He alleges undue hardship on the basis of his legal duty to support others (his wife and her two children from a prior relationship, as well as their three young children), as well as significant outstanding debt and the high cost of visiting his son in British Columbia. [ 13 ] With respect to current debt, he claims that this was debt incurred while the parties were still together.

He says that he owes $10,187 to Visa, currently in collections, as well as student loans totalling $25,691, also in collections. He further indicates that he has made no payments towards his Visa debt and only modest payments to the student loan. Further, he referred to the high cost of access to his son, stating that his expenses are $600-$700 per trip. Though he provided no confirmation or proof of any of these access expenses, he claimed to have made 10 trips since 2010. [ 14 ] The Applicant disputes these expenses and points to a November 18, 2010 court order suspending the Respondent's access to his son.

However, in his evidence before the court, the Respondent testified that he continues to have access to his son, with the full agreement of the Applicant, notwithstanding the existence of this court order. He testified that his last access visit took place in November 2011, and that the Applicant makes visitation difficult.

[15] Finally, the Respondent refers to his legal duty to support his current wife, their three children, as well as his wife’s twochildren from a prior relationship. Analysis [16]

Section 31 of the ISO requires the court to apply the law of the province in which the payor of child support resides; in thisinstance, the law of Alberta. In light of the fact that the parties were not married, the Alberta Family Law Act is the applicablelegislation. Specifically,

section 51 refers to making a child support order in accordance with the prescribed guidelines, namely theAlberta Child Support Guidelines. [17] The topic of undue hardship is addressed in s. 10 of the Guidelines as follows:

(1) On either parent’s application, a court may award an amount of child support that is different from the amount determined underany of sections 3, 4, 8 or 9 if the court finds that the parent making the request, or child in respect of whom the request is made, wouldotherwise suffer undue hardship.

(2) Circumstances that may cause a parent or child to suffer undue hardship include the following: (

a) the parent has responsibility for an unusually high level of debts reasonably incurred to support the parents and their children prior tothe separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to or parenting time or contact with a child; (c) [not applicable] (

d) the parent has a legal duty to support a child other than a child of the parents or a child of the other parent who is a party to theapplication, who is (

i) under the age of majority...

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court ifit is of the opinion that the household of the parent who claims undue hardship would, after determining the amount of child supportunder any of sections 3, 4, 8, or 9, have a higher standard of living than the household of the other parent.

(4) In comparing standards of living for the purpose of subsection 3, the court may use the comparison of household standards of livingtest set out in

Schedule 2.

(5) Where the court awards a different amount of child support under subsection (1), it may specify in the child support order areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount of supportpayable the end of that time.

(6) Where the court awards a different amount of child support under this section, it must record its reasons for doing so [18] It is significant, in my view, that the Guidelines, both Federal and those pertaining to Alberta, are considered to be a floor, nota ceiling. The decided cases on the point make it clear that the threshold for finding undue hardship is high. Something more is requiredthan simply an allegation that the payor cannot afford to pay the Guideline amount.

A claimant seeking relief on the basis of unduehardship must not only establish a lower household standard of living, but also that he or she falls within one of the enumeratedcircumstances (or an analogous circumstance) set out in subsection 2 of the Guidelines. [19] In Hanmore v Hanmore, 2000 ABCA 57 at para 17, the Court of Appeal, after reviewing a series of authorities dealing withthe undue hardship provision set forth in the Federal Child Support Guidelines, stated as follows: It is evident from these authorities that the burden of establishing a claim of undue hardship is a heavy one.

We agree with the commentof Wright, J. [Messier v. Baines, (SKQB)] that the objectives of the Guidelines will be defeated if Courts deviatefrom the established guidelines without compelling reasons. The hardship must be more than awkward or inconvenient. It must beexceptional, excessive, or disproportionate in the circumstances. Further, it is not sufficient that the payor spouse has obligations to anew family or has a lower household standard of living than the payee spouse. The applicant must specifically identify the hardshipwhich is said to be undue.

A general claim regarding an inability to pay or a generic reference to the overall expense of a new householdwill not suffice. We adopt the words of Prowse, J.A., in Van Gool: [51] The onus is on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant hasthe legal responsibility for another child or children and/or because the standard of living of the applicant’s household is lower than thatof the other spouse.

The applicant must lead cogent evidence to establish why the table amount would cause undue hardship. [20] I am satisfied that the Respondent has a lower standard of living than the Applicant based on an application of

Schedule 2,Comparison of Household Standards of Living Test, and applying the most current financial information provided by the parties. Thesecalculations are set out below:

a) Applicant’s Household Standard of Living 2015 Income (anticipated) $50,492.51 less Federal and Provincial taxes payable $10,477.38 less E. I. source deductions and contributions to CPP $3,409.60

Annual Income $36,605.53 Plus Child support. Otherwise payable ($679/month) $8,148 Annual Adjusted Income $44,753.53 Household Income Ratio 3.01

b) Respondent’s Household Standard of Living 2016 Income (anticipated ) $79,000 less Federal and Provincial taxes payable (estimate) $15,800 less E. I. source deductions and contributions to CPP $3409.60 Annual Income $59,790.40 Less Child Support Otherwise Payable ($679/mo.) $8,148 Plus Child Support Payable to Respondent’s wife ($620/mo.)* $7440 Annual Adjusted Income $59,082.40 Household Income Ratio 2.03 [ 21 ] The above calculations are based on the Respondent paying the table amount of child support based on his anticipated 2016 income of $79,000.

I have also included in this calculation the receipt of monthly child support payments of $620 by the Respondent’s wife, relative to two children from a prior relationship and I used the low income measures amount for a household of 7 [2 adults and 5 children]. [ 22 ] The Respondent’s filed materials indicate, however, that these two children were 17 years of age and 19 years of age, respectively, as of March, 2016. The 17-year-old child was stated to be a high school student with no income. The 19-year-old child was stated to be unemployed and living at home.

While there is no evidence before me as to the ongoing financial responsibility of the payor father of these teenage children, it seems reasonable to conclude in the circumstances that he is no longer paying monthly child support to the Respondent’s wife. [ 23 ] I have, accordingly, calculated the household income ratio for the Respondent on an alternative basis, deducting the child support payable to the Respondent’s wife and applying the low income measures amount based on a household of five persons [2 adults and 3 children].

The result is a household income ratio of 2.16 for the Respondent. [ 24 ] For the purposes of comparison, I have also calculated the Applicant’s and Respondent’s household income ratios using the current interim without prejudice child support amount of $300 per month. The result is a household income ratio of 2.764 for the Applicant and 2.35 for the Respondent. [ 25 ] Thus, in all iterations, the Applicant and Solance enjoy a higher standard of living than the Respondent and his family. Nevertheless, this conclusion is not determinative in considering the issue of undue hardship.

I must go on to determine whether the Respondent has established that the circumstances are exceptional, excessive or disproportionate. [ 26 ] In both his viva voce evidence, and his written materials, the Respondent placed some reliance on his financial responsibility for his wife’s two children from a previous relationship. As a general proposition, the Respondent’s financial responsibility for his own child, Solance, must take priority over any financial responsibility that may exist relative to the children of his wife’s former relationship.

The father of the Respondent’s wife’s two children from her previous relationship obviously has legal and financial responsibilities towards these children, as evidenced by the monthly child support payable to the Respondent’s wife. [ 27 ] I cannot, however, ignore the practical reality that the Respondent’s monthly household expenses include the cost of maintaining these two other persons. On the evidence before me, the payment of child support by the father of these two children has been sporadic and thus undependable.

Furthermore, at least one of these children is past the age of majority, and not attending post- secondary education. As such, this child would, in all likelihood, no longer be a child of the marriage for the purposes of determining child support. It is unclear as to the status of the child reported to be 17 years of age as of February 15, 2016. Under the circumstances, it seems likely that this child has now attained the age of majority and is no longer a child of the marriage.

What does appear to be clear, however, is that both children continue to reside with the Respondent and his wife. [ 28 ] I accept the Applicant’s evidence that she agreed to child support in the amount of $100 per month in 2010 on the basis that this was to be a somewhat temporary arrangement. At the time, the Respondent was then in the process of moving to Alberta with his new partner, her two children from a previous relationship, and the couple’s then new baby. Mr.

Patenaude had recently obtained a job as an aircraft maintenance engineer in Alberta and the Applicant anticipated that he would shortly be in a position to pay increased child

support. [ 29 ] Unfortunately, the Applicant appears to have taken no steps until October, 2012, when she filed the within application, to seek any increased child support. Rather, she appears to have accepted the $100 per month payment by the Respondent long after the legal obligation to make this payment terminated.

While she claims to have made numerous requests of the Respondent to increase the amount of child support, there is no evidence in her materials to substantiate this claim. [ 30 ] I accept the Respondent’s evidence that he struggles every month to make ends meet, given his ongoing financial responsibilities. The materials filed by the Respondent, relative to his monthly budget support his contention in this regard. I also accept his evidence that the Visa and student loan debt that he carries were acquired during the relationship with the Applicant.

As such, certainly as regards the Visa debt, the Respondent has assumed full responsibility for a debt that is actually a joint debt. That said, I agree with the observations of Hawco J. on April 24, 2013, that the magnitude of debt in this instance is not significant. [ 31 ] Having carefully considered all of the circumstances, I am satisfied that the Respondent has demonstrated that his ongoing responsibility for the support of three children, in addition to his debt-load and what costs he will incur for access whenever he exercises it, has created a situation of undue hardship.

In my view, the circumstances are, indeed, exceptional and disproportionate, so as to justify a reduction in the amount of child support that would otherwise be payable in accordance with the Guidelines. I would, accordingly, direct the Respondent to pay child support in the amount of $400 per month, effective December 1, 2016. Heard on the 23 rd day of March, 2016. Dated at the City of Calgary, Alberta this 8th day of November, 2016 M. David Gates J.C.Q.B.A. Appearances: Mr. Patenaude Self-Represented Ms. Young Friend of the Court