Matthews v Matthews, 2016 ABQB 674

Court of Queen’s Bench of Alberta Citation: Matthews v Matthews, 2016 ABQB 674 Date: 20161129 Docket: FL03 50445 Registry: Edmonton Between: Michelle Matthews Plaintiff - and - Brian Matthews Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this application made pursuant to the Ontario Interjurisdictional Support Orders Act , Ms. Matthews asks for ongoing and retroactive base line child support based on the federal Child Support Guidelines and to set the amount of child support arrears. [ 2 ] Mr. Matthews’ ongoing child support obligation will, of course, be based on the federal child support guidelines and on the most current information about his income. [ 3 ] Ms. Matthews’ claim for retroactive support is limited to the three month period which preceded her application to vary the court order.

In all the circumstances, which include Ms. Matthews’ choice not to take legal proceedings prior to this application, voluntary payments made by Mr. Matthews to contribute to his children’s financial well-being in addition to base line support, the lack of consistency in Mr. Matthews’ earning profile, and the lie told by Mr. Matthews in March 2016 about his 2015 earnings, a 3 month period of retroactivity is fair. [ 4 ] Ms. Matthews will not, until August 1, 2017 at the earliest, financially contribute to the support of the eldest of the parties’ children who is currently living with Mr. Matthews.

[ 5 ] The retroactive portion of the award will be paid by Mr. Matthews by way of payment of $300.00 monthly, in addition to his payment of baseline support. [ 6 ] In the absence of evidence from a government agency concerning arrears, this court is not in a position to set arrears. 1. Background

a) Factual [ 7 ] In the spring of 2016, pursuant to the Interjurisdictional Support Orders Act , 2002, S.O. 2002, c. 13, Ms. Matthews applied to vary the child support order made in Ontario in 2008. In that application, she asked for a variation of the current child support order of $472.00 per month to $1,237.65 per month, and to change the amount of unpaid support arrears owing under the current support order by setting the arrears at $10,958.66 as of February 1, 2016. As of the date of the application, the three children of the marriage –a 17 year old, a 14 year old and a 9 year old - were living with Ms.

Matthews in Ontario. Ms. Matthews indicated in her application that she wanted only the child support guidelines’ table amount and that she wanted that amount to be set using the guidelines or law of the jurisdiction where the father lived, which is Alberta. No special expense claim was attached to her application. She asked the court to impute Mr. Matthews’ income at $65,665.60 if he did not provide sufficient, or any, financial information; she also indicated that she believed Mr. Matthews to have an annual income of about $60,580.00. [ 8 ] In December, 2008, when she was represented, Ms.

Matthews received a final child support order from the Ontario Court of Justice ordering Mr. Matthews to pay child support for the three children of the marriage in the total amount of $472.00 per month based on an annual income of $23,133.00. Mr. Matthews was ordered to file and serve his Answer and Financial statement and 2007 income tax return within 30 days of December 4, 2008. No special, or

section 7, expenses were contained in the order. Mr. Matthews was ordered to serve on Ms. Matthews his income tax return and notice of assessment by July 1 of each year. [ 9 ] In March 2009, Ms. Matthews received a letter from the lawyer who had represented her on the December 2008 hearing. Part of that letter states: The issue of child support was finalized on November 26, 2008. This order has Mr. Matthews paying child support of $472.00 per month. According to Mr. Matthews’ Financial Statement, his annual income is $34,200.00.

According to the Child Support Guidelines, his child support obligation is $669.00 per month. Given the new information regarding Mr. Matthews’ income, it is my opinion that you should seek an order for increased child support. If you would like to apply to the court to vary the child support order, you must apply for a separate Legal Aid certificate as this issue has been finalized. You can have the certificate sent directly to me. We must also wait 6 months from the date of the order, which means that we can apply to the court to vary the child support at the end of May, 2009. [ 10 ] On August 9, 2016, Ms.

Matthews amended her application to add a request for retroactive support for 12 months. In support of that change in her application, she attached copies of some of her emails sent to Mr. Matthews to the following effect: - in August 2012, when she tells him that, since he is working again, it would be nice if he sent some money for back-to-school shopping; - in August 2013 when she asked Mr. Matthews to provide income tax returns and notices of assessment and reassessment for the previous 3 years and his most recent statement of earnings or confirmation of income from his employer.

At that time, she also asked him to contribute to the children’s school clothes and he responded that he would help; - in October 2013, when she asked him for help with winter clothing; - in April 2014, when she told Mr. Matthews that she would be contacting FRO (Family Responsibility Office) to let them know his current address; - in October 2014, when she told Mr.

Matthews that she saw that he was working and hadn’t paid a dime of child support in over a year, and that he owed over $5,000.00; - in August 2015, when she asked about back-to-school shopping contribution; - in March, 2016, when she received a T4 form from Mr. Matthews indicating income of approximately $33,000. In the same exchange, she asked him for “the other” T4 and told him that he had worked at more than just that one job. He responded, “No I didn’t”; - in June 2016, when she asked for $446 for a one week summer camp for one child. She subsequently advised Mr.

Matthews that she had paid $970.00 for one child’s camp, but $875.00 was reimbursed and asked him to split the difference.; - in July, 2016, when Ms. Matthews asked for a contribution to back-to-school shopping. [ 11 ] Ms. Matthews states in her application that she wishes the application to be based on Alberta law. [ 12 ] Mr. Matthews replies that it is true that, at one time, he owed $5,000.00 in child support; he said it was because he had no income. He adds that since he started working two years ago, he has paid the $5,000.00 back. He also claims that Ms.

Matthews, her boyfriend, and all the children went on a holiday to Cuba. [ 13 ] Ms. Matthews' only application to increase child support is the current one. Her application includes no evidence concerning arrears.

[ 14 ] Ms. Matthews agrees that, despite frequent urging by Mr. Matthews, she has been unwilling to provide him with the children’s health care registrations. [ 15 ] The parties agree that, as of September 1, 2016, their oldest son has been living with his father in Edmonton. [ 16 ] Ms. Matthews has not provided financial disclosure. [ 17 ] In his answer to Ms. Matthews’ application, Mr. Matthews estimates that his 2016 income will be approximately $63,000.00. He attaches a pay stub for the pay period ending on July 2, 2016.

This paystub shows year-to-date earnings of nearly $32,000.00; extrapolating the y-t-d information for 26.1 pay periods results in an estimated income for 2016 of $63,734.66. [ 18 ] Mr. Matthews provides his 2015 CRA Notice of assessment which indicates line 150 total income of $62,931.00 and his 2014 Notice of assessment which indicates line 150 total income of $33,640.00. [ 19 ] In his reply, Mr. Matthews also asks the court to lower his child support obligation from the table amount to $800.00 per month because of his high access costs.

He provided information about his partner’s income, the child who lives with them, and an estimation of household costs. He also attached information from Air Canada, a hotel and a car rental company to show that the average cost of a one week visit to the Toronto area is approximately $3,887.17 in summer and approximately $2,445.01, at spring break. Mr. Matthews asserts, and Ms. Matthews agrees, that in the spring of 2016, he did go to Toronto for one week to visit his children. [ 20 ] At the hearing on August 10, 2016, Mr.

Matthews indicated that he was no longer seeking to lower his child support obligation below the table amount.

b) Procedural [ 21 ] Ms. Matthews’ application was served on Mr. Matthews. Ms. Matthews asked, and was given leave, to appear by telephone in the Alberta court proceedings. [ 22 ] Throughout the proceedings, a lawyer from the Family Law Information Centre of Alberta Justice facilitated the hearing by providing information to the parties and to the court. That lawyer makes it clear to the parties that she does not represent either of them and cannot provide them with legal advice. For the Alberta respondent, she recommends obtaining legal advice and provides contact information for a Lawyer Referral Service and for the Legal Aid Society of Alberta.

c) Legislative [ 23 ] Alberta’s Interjurisdictional Support Orders Act deals, in

Part 3, Division 2, with variation of an existing support order brought by a person normally residing outside of Alberta and includes the following provisions: Choice of law 31(1) In determining the entitlement to receive or to continue to receive support for a child, the Alberta court must first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Alberta court must apply the law of Alberta.

(2) In determining the amount of support for a child, the Alberta court must apply the law of the jurisdiction where the person liable to pay the support ordinarily resides.

(3) In determining the entitlement of a party other than a child to receive or to continue to receive support and the amount of that support, the Alberta court must apply the law of Alberta.

(4) If under the law of Alberta a party other than a child is not entitled to receive or to continue to receive support, the Alberta court must apply the law of the jurisdiction in which that party ordinarily resides.

(5) If a party other than a child is neither entitled to receive or to continue to receive support under the law of Alberta nor under the law of the jurisdiction in which that party ordinarily resides, the Alberta court must apply the law of the jurisdiction in which the parties last maintained a common habitual residence. Order 32(1) On the conclusion of a hearing, the Alberta court may, in respect of a party or a child, or both, (

a) make a support variation order (

b) make an interim support variation order and adjourn the hearing to a specified date, (

c) adjourn the hearing to a specified date without making an interim support variation order, or (

d) refuse to make a support variation order.

(2) The Alberta court may make a support variation order that is retroactive.

(3) A support variation order may require support to be paid in periodic payments or as a lump sum, or both.

(4) If the Alberta court refuses to make a support variation order, the Alberta court must give reasons for its decision.

2. Mr. Matthews’ ongoing child support is based on the most current income information [ 24 ] Given the date of service on Mr. Matthews of Ms. Matthews’ application for an increase in child support, the increase in Mr. Matthews’ ongoing child support commences on June 1, 2016. He was served with the application after that date, but he was aware, prior to that date, that the application was forthcoming. [ 25 ] Mr. Matthews’ obligation is calculated according to the simplified Alberta tables of the federal child support guidelines. [ 26 ] As of June 1, 2016, Mr.

Matthews’ monthly child support obligation is a total of $1,200.00 for three children, whose names and dates of birth are known to the parties and will be set out in the eventual order. [ 27 ] As of September 1, 2016, because of the change of residence of the parties’ oldest child, Mr. Matthews’ monthly child support obligation decreases to $904.00 per month. For the reasons which I will set out hereunder, even though one child of the marriage is now living with Mr. Matthews, Ms. Matthews will not, at this time, contribute to that child’s financial support in Mr. Matthews’ household. 3. Ms.

Matthews is entitled to retroactive child support beginning March 1, 2016 [ 28 ] Case law establishes that an application to vary child support, if granted, will typically take effect from the day on which the respondent had notice of the application. Here, although Mr. Matthews only received notice of the application in June, 2016, Ms. Matthews asks for an order that is variously claimed as retroactive for either one year or one and a half years. [ 29 ] When the Ontario court first made an order for child support, Ms.

Matthews received timely, useful, practical information from a lawyer about the way in which she could increase the amount of child support she received. At that time, for reasons which were never made clear to me, she chose not to pursue that option. Not only was she provided with timely advice about how to apply for an upward variation of child support, I can conclude that she was also provided with information about the way in which she could enforce paragraph 9 of the court order which required Mr. Matthews to serve on Ms. Matthews “his Income Tax Return and Notice of Assessment by July 1 st of each year”.

At all times since the first order was granted, Ms. Matthews had the means to serve Mr. Matthews with notice of an application for variation because she had contact information for Mr. Matthews’ mother. [ 30 ] One might conclude that there were two real reasons for Ms. Matthews’ failure to vary or enforce the original order: if Mr. Matthews were out of work, he could ask to have his child support obligation suspended and, any money which Mr. Matthews agreed to send to Ms. Matthews would be received direct by her whereas money paid by Mr. Matthews pursuant to the order would be paid to the government because Ms.

Matthews was on social assistance at the time. [ 31 ] . Although Ms. Matthews took no formal steps in relation to the order, there is no minimizing the heavy burden which Mr. Matthews placed on his wife at the time of separation: she was left, alone, to care and provide for 3 young children, one of whom was not of school age and one of whom had special needs. [ 32 ] Over time, things presumably improved somewhat for Ms. Matthews. She earned a diploma and obtained what appears to be stable, rewarding, employment. [ 33 ] Although Ms.

Matthews was well aware that her original support order did not deal with special, or

section 7, expenses, from time to time she asked Mr. Matthews to contribute, direct, to those expenses. Neither party has provided evidence of the amount of additional support Mr. Matthews may have contributed as a result of those requests, but it appears that he did make some payments direct to Ms. Matthews for child-related expenses, even if those payments were not required by any court order and may not have been properly characterized as s. 7 expenses. [ 34 ] Mr. Matthews indicates that he left Toronto because he could not afford to live there any longer. He returned to his mother and lived with her.

I accept that he would not have done so except for necessity. Mr. Matthews states that, from time to time, while he was in Newfoundland, he was out of work. Although he received CRA assessments, or even re-assessments, in the years between 2009 and 2015 – except for 2013 when he did not file and apparently was not pursued – he did not provide copies of those assessments. We therefore do not know what Mr. Matthews’ income pattern was during those years. We do know, however, that, whether employed or not employed, Mr.

Matthews never asked for a suspension of child support obligations and, by early 2016, he had essentially paid off his arrears, leaving him in the situation where the court could say that he had paid the amounts ordered by the Ontario court in 2008. [ 35 ] We do know Mr. Matthews’ total income for 2014 and 2015 and his anticipated income for 2016. Because the limited information that we do have suggests that Mr.

Matthews was not, generally, earning in the $62-63,000.00 range, it might be appropriate to average his income over the last 3 years to establish the deemed income that would be the basis for ongoing support. I have chosen not to do this: Mr. Matthews appears to be well settled now in Alberta and, without any further information, the level of income he earned in 2015 and will presumably earn in 2016 will, hopefully, establish a new base line level of income for him. [ 36 ] At the hearing, Mr. Matthews withdrew his undue hardship application based on high access costs. However, at the hearing, Ms.

Matthews had not responded to his hardship application. Section 21(3) of the federal child support guidelines would, of course, have required her to disclose her income and the income of any other person living in her household. The fact that she and her children have apparently been able to afford an international vacation is not relevant to Mr. Matthews’ position. Even if Ms. Matthews is living with a person who earns more money than Mr. Matthews and even if Ms. Matthews is not earning as much money as Mr. Matthews’ current partner, none of that affects the amount that Mr.

Matthews must pay in child support. [ 37 ] It is, nonetheless, odd that Ms. Matthews did not provide her own financial information during the course of this application. Even after Mr. Matthews withdrew his hardship application, he provided information that the parties’ eldest child had moved to Alberta to live with him. Ms. Matthews responded that this arrangement was not permanent. That may be. However, the court’s obligation is to make support orders based on current circumstances. The Ontario court order which suspended Mr. Matthews’ access rights has been overtaken by the parties’ own decisions. Ms.

Matthews “allowed” Mr. Matthews to see the children earlier this year and “allowed” the oldest child to move to Alberta. In those circumstances, there would normally be a simple set-off of child support obligations for the

oldest child based on Ms. Matthews’ line 150 income. [ 38 ] Having taken all of this information and lack of information into account, I have concluded that what is fair in the circumstances here is to: - require Mr. Matthews to make retroactive child support payments as of March 1, 2016, i.e., to begin the retroactive period at the time when he lied to Ms. Matthews about his 2015 income; - relieve Ms. Matthews from making any child support payments for the oldest child until August 1, 2017 at the earliest. If the child should return to live with Ms. Matthews prior to August 1, 2017, Ms.

Matthews can, of course, bring a further application to vary the order made in this decision. However, if the parties’ oldest child should remain a child of the marriage as of August 1, 2017, and continue to live with Mr. Matthews, then Mr. Matthews could bring an application for support of that child at any time after August 1, 2017. Although formal retroactivity will – for the reason given - only commence in March, 2016, it is clear that Mr. Matthews knew, from 2008 on, how child support was calculated and that it was his obligation to keep Ms. Matthews informed of his line 150 income. He failed to do so.

To make up for his lack of forthrightness, even in the face of Ms. Matthews’ failure to take formal steps, Ms. Matthews will not be required to contribute financially to the welfare of the parties’ oldest child until August 1, 2017 at the earliest. [ 39 ] In

summary, Mr. Matthews will pay a total of $2,184.00 to Ms. Matthews as a retroactive award ($1,200.00 - $472.00 = $728.00 x 3 = $2,184.00). 4. Payment of retroactive child support [ 40 ] The retroactive portion of Mr. Matthews’ ongoing child support obligation will be paid by him at the rate of $296.00 per month commencing September 1, 2016 and will continue to be paid by him at that rate on the 1 st day of the month until the retroactive portion of the award has been paid off. In other words, starting September 1, 2016, Mr. Matthews’ total child support payment will be $1,200.00 per month ($904.00 + $296.00 = $1,200.00). 5.

Summary [ 41 ] To summarize: - from June 1, 2016 to and including August 1, 2016, Mr. Matthews will pay $1,200.00 in total monthly base line child support for the three children of the marriage; - from September 1, 2016 until further order of the court, Mr. Matthews will pay $904.00 in ongoing base line child support for the two children of the marriage who continue to reside with Ms. Matthews; - from September 1, 2016, until further order of the court, Mr. Matthews will, on the first day of each and every month, pay an additional $296.00 per month to Ms.

Matthews as part payment of the total retroactive award and those monthly payments will continue until the retroactive portion of the award, i.e. $2,184.00, has been paid off; - Mr. Matthews is not ordered to pay any s. 7 expenses since none were requested by Ms. Matthews. 6. The court is unable to set arrears [ 42 ] Neither party has presented the court with records of the provincial governmental agency which deals with arrears. Therefore, the court is unable to set the arrears in this matter. 7. Costs [ 43 ] Neither party will pay any costs of this hearing.

Heard on the August 10, 19, September 15, October 6, 2016 Dated at the City of Edmonton, Alberta this 28 th day of November, 2016 . J.B. Veit J.C.Q.B.A.

Appearances: Michelle Matthews, on her own behalf Brian Matthews, on his own behalf