Brown v Barber, 2016 ABQB 687

Court of Queen’s Bench of Alberta Citation: Brown v Barber, 2016 ABQB 687 Date: 20161205 Docket: FL03 44279 Registry: Edmonton Between: Christina Dawn Brown Plaintiff - and - Daniel Steven Barber Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] Mr. Barber pays child support for two children under the Family Law Act . On September 9, 2016, Mr. Barber filed an application to vary the amount of his child support payments both retroactively and on an ongoing basis.

He sought variation back to 2014. This decision addresses whether the retroactive variation should be made. BACKGROUND [ 2 ] On June 30, 2016, counsel for the parties had discussed the prospect of Mr. Barber bringing an application to vary the amount of his child support retroactively. [ 3 ] Mr. Barber’s guideline income had been set at $60,000 by the Interim Consent Order of Judge Holstrom of May 8, 2014 (Judge Holstrom Order). The Judge Holstrom Order set arrears of support at $18,992 as of May 1, 2014. These arrears were to be defrayed by payment of $300 per month.

According to the submission of counsel for MEP, who attended the application, Mr. Barber’s arrears totalled $28,093.10 as of November 3, 2016. [ 4 ] Mr. Barber provided evidence that in 2014 his actual annual income was $55,506. In 2015 his actual annual income was $46,543. He projected his 2016 actual annual income to be $25,400. [ 5 ] Mr. Barber had applied earlier in the Provincial Court to vary the Judge Holmstrom Order. This application was dismissed by Judge Zalmanowitz on February 25, 2015 (the Judge Zalmanowitz Order).

[6] In March 2016 MEP recalculated Mr. Barber’s income at a “higher rate”. ISSUES [7] While Mr. Barber’s application appears to be straightforward, it engenders some legal complications. Eight questions mustbe addressed:

(1) Does the Judge Zalmanowitz Order block Mr. Barber’s application, in whole or in part, through the operation of the doctrine ofres judicata?

(2) Has Mr. Barber established that a “material change” has occurred?

(3) What is the relationship of a payor’s application under the Haisman decision and a payor’s application for a retroactive variationof the amount of his child support payment obligation?

(4) On the evidence, is Mr. Barber entitled to relief under Haisman?

(5) What factors must be considered respecting a payor’s application for a retroactive adjustment to the amount of his child supportpayment obligation?

(6) If a DBS approach is adopted to a payor’s application to vary child support downwards to match a decrease in income, whatfactors should be considered?

(7) If a payor is entitled to a downward variation of his child support payments, from what date should that reduction be calculated?

(8) On the evidence, is Mr. Barber entitled to a retroactive adjustment to the amount of his child support payment obligation? 1. Does the Judge Zalmanowitz Order block Mr. Barber’sapplication, in whole or in part, through the operation of thedoctrine of res judicata? [8] Mr. Barber’s variation application before Judge Zalmanowitz was unsuccessful. He did not appeal. If the issue of childsupport went to trial, an interim orders would be no obstacle to a retroactive recalculation. I would include Judge Zalmanowitz’s order asan interim order.

Justice Macklin summarized the relationship between trial determinations and interim orders in Thomas v Thomas,2014 ABQB 481 at para 48: [48] …. The Court of Appeal has held that the eventual trial judge has the jurisdiction, as well as the responsibility, to revisit the amountof support ordered on an interlocutory basis back to the effective date of the first interim order: MacMinn v MacMinn (1995), (AB CA), 174 AR 261, 17 RFL (4th) 88 (CA); Lapp v Lapp, 2008 ABCA 15, 425 AR 232, 51 RFL (6th) 11, 93 Alta LR(4th) 1 at para 19; Hartley v Del Pero, 2010 ABCA 182 at para 9.

The trial judge pays no deference to interim orders and, generallyspeaking, any retroactivity in the process is not an impediment: Durocher v Klementovich, 2013 ABCA 115, 544 AR 151. Mr. Barber’s current application arose not at trial but in case management.

The doctrine of res judicata would apply to prevent him fromsimply re-applying for an interim variation after the earlier unsuccessful application. [9] However, a party to a child support order may apply for a variation on the basis of a material change in circumstances.Section 77 of the Family Law Act provides as follows: 77(1) In this section, “variation order” means an order made under subsection (2).

(2) The court may … make an order varying, suspending or terminating a support order or any part of that order, prospectively orretroactively ….

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that (

a) a change of circumstances, including those provided for in the prescribed guidelines, has occurred since the making of the order orthe last variation order made in respect of that order, or (

b) evidence of a substantial nature that was not available at the previous hearing has become available, and in making the variation order, the court shall consider that change of circumstances or evidence. [10] With specific regard to the doctrine of res judicata and variation applications, Justice Jones wrote as follows in CAG v SG,2012 ABQB 529 at paras 90, 91, 99, and 106: [90] …. If we return to Kent J.'s decision in McDonald, the court's overwhelming concern should be with achieving the proper balancebetween the administration of justice on one hand, and concerns for fairness between the parties and the best interests of the child on theother. The Divorce Act achieves this in

section 17 by requiring a party to demonstrate a material change in circumstances to ground aclaim for variation of a previous order issued under the Act.

[91] Of the cases in which courts held that applications for variation were barred as res judicata , the uniting factor is that the party requesting variation was unable to demonstrate a material change in circumstances…. [99] Again, the key issue in the variation of support orders under

section 17 of the Divorce Act is whether there has been a material change in circumstances. If there has been a material change, a court has a great deal of discretion to amend a previous order. If not, a court is barred from doing so on the basis of res judicata . [106] In

summary, therefore, I do not see the doctrine of res judicata barring an application by SG for rescission of his child support arrears where there has been a material change in his circumstances. By virtue of

section 17 of the Divorce Act , I believe this principle also applies to rescission of spousal support arrears. [ 11 ] Hence, the Judge Zalmanowitz Order and the doctrine of res judicata will not block Mr. Barber from revisiting the variation of his child support payment obligations if he has demonstrated that a “material change in circumstances” occurred after the Judge Zalmanowitz Order. 2. Has Mr.

Barber established that a “material change in circumstances” has occurred? [ 12 ] Justice Erb summarized the law respecting a “material change in circumstances” in SLF v JWF , 2016 ABQB 635 at para 70 : In LMP v LS , 2011 SCC 64 , the Supreme Court confirmed that under s. 17(4) of the Divorce Act , the test for a “material change” is a change that is substantial, continuing, and “if known at the time, would likely have resulted in a different order”. A change in the payor’s annual income is generally considered a material change under s. 17(4) of the Divorce Act : Lee v Chung , 2011 BCSC 404 . [ 13 ] Mr.

Barber’s 2014 actual annual income was only modestly lower than the $60,000 set by the Judge Holstrom Order. That information, I infer, would have been before Judge Zalmanowitz. Mr. Barber’s 2015 and 2016 annual incomes were significantly lower than $60,000 - $46,543 and $25,400, respectively. That information could not have been before Judge Zalmanowitz. [ 14 ] Hence, Mr. Barber has demonstrated that a material change in circumstances occurred after both the Judge Holstrom Order and the Judge Zalmanowitz Order. The doctrine of res judicata does not block further consideration of Mr. Barber’s application. 3.

What is the relationship of a payor’s application under the Haisman decision and a payor’s application for a retroactive variation of the amount of his child support payment obligation? [ 15 ] The relief afforded child support payors under the Court of Appeal’s decision in Haisman (sub. nom. R.H. v.

M.H.) , 1994 ABCA 249 and the retroactive variation of the amount of payors’ child support payment obligations are linked tactically, evidentially, and in effect, yet the two remedies are conceptually distinct. [ 16 ] Setting aside “special circumstances,” the Haisman remedy is available concerning arrears that accumulated under a valid order, whether that order has been varied (still leaving arrears) or not. The focus of the remedy is on the payor’s present ability to pay. It is a form of hardship application.

If the payor establishes the requisite inability to pay, the Court may vary or rescind a child support order “so as to reduce or eliminate arrears.” The key passages in Haisman are found in paras 23 – 27 : [23] ….Where a former spouse has not been able, for relatively short periods of time in the past to make child support payments as they came due, this circumstance does not justify a variation order which has the effect of reducing or eliminating arrears of child support. [24] Where the past inability to make child support payments as they came due has lasted for a substantial period of time, but the former spouse did not apply during that time for a variation order, the situation may be different.

On a later application to vary, a judge will have to decide, with the benefit of hindsight, whether it would have been appropriate to suspend enforcement of the support order during the time when the former spouse was unable to pay, or whether at least a temporary reduction in the child support payments would have been in order. A judge should view with considerable skepticism any claim that a reduction in the support payments, temporary or indefinite, would have been proper.

However, if he or she decides that it would, the judge may for this reason reduce accordingly the arrears of child support which have built up. In my view this is a special circumstance. [25] I wish to emphasize that the mere accumulation of arrears, without evidence of a past inability to pay, is neither a change under s. 17(4) of the Divorce Act , nor a special circumstance. [26] A present inability to pay arrears of child support does not by itself justify a variation order.

It may justify a suspension of enforcement in relation to the arrears for a limited time, or an order providing for periodic payments on the arrears.

However, in the absence of some special circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilities that he or she cannot pay and will not in the future be able to pay the arrears. [27] In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child support so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtor cannot then pay, and will not at any time in the future be able to pay, the arrears.

[For a more elaborate set of factors considered in hardship applications, see Ross v. Vermette, 2007 SKQB 272, Wright J, at para 6: [6] In this province, the factors to be considered on an application to rescind arrears have been set out in a number of cases includingJensen v. Jensen (1990), (SK CA), 28 R.F.L. (3d) 350 (Sask. C.A.); Snider v. Kennedy (1994), (SK KB), 118 Sask.R. 178 (Q.B.); Kaatz v. Kaatz, 2001 SKQB 480, 212 Sask.R. 62 (Q.B.); Wolkowski v. Doroshenko, 2002 SKQB 114 ,216 Sask.R. 237 (Q.B.); Wiome v. Wiome, 2002 SKQB 402, [2002] S.J. No. 615 (Q.B.) (QL); Wurmlinger v.

Cyca, 2003 SKQB 152, 231Sask.R. 282 (Q.B.); Oxman v. Oxman, 2004 SKQB 93, [2004] S.J. No. 158 (Q.B.) (QL); and Jewell v. Dixon, 2005 SKQB 204 , [2005]S.J. No. 283 (Q.B.) (QL). Those factors are: 1. The nature of the maintenance order sought to be varied; 2. The ongoing financial capacity of the payor; 3. The ongoing needs of the child; 4. Any unexplained delay in enforcing arrears; 5. Any explanation as to the delay in seeking relief from the arrears; 6. Whether enforcement of payment of the arrears would cause hardship to the payor; and 7.

The payor’s ability to pay the arrears at the time they were incurred.] [17] Note that Haisman contemplates as a “special circumstance” the “past inability to make child support payments as they camedue [that] …lasted for a substantial period of time, but the former spouse did not apply during that time for a variation order” (para 24). This special circumstance points to the second type of remedy. The statutory and jurisprudential environment has evolved sinceHaisman.

Under the current statutory regime, this type of special circumstance would be addressed through an application to vary to thechild support order, and at least if the application were by a payee to increase support, the application would be governed by the criteriaset out in DBS v SRG, [2006] 2 S.C.R. 231, 2006 SCC 37. [18] The conceptual difference between a DBS application to vary and a Haisman hardship application is that if the DBSapplication is successful, as a matter of law, either no arrears are owing or the amount of arrears is reduced, based on the new calculation.As Justice Macklin put this point in Thomas v Thomas at para 75, “While technically this final order imputing income could beconstrued as a reduction in the arrears owing, it is in fact a recalculation of the actual amount he should have been obliged to pay basedon a full hearing of the evidence.” In Haisman hardship circumstances, arrears that were properly calculated are eliminated or reduced.Thus in Thomas v Thomas, for example, arrears were reduced through a variation but a Haisman application to eliminate the remainingarrears was dismissed (see paras 76 – 80). 4.

On the evidence, is Mr. Barber entitled to relief underHaisman? [19] Again setting aside “special circumstances,” Haisman directs that arrears shall not be reduced or eliminated unless theapplicant establishes, on a balance of probabilities, that the payor cannot now and will not at any time in the future be able to pay thearrears. [20] On the evidence before me, Mr. Barber has not satisfied that the Haisman test. True, Mr. Barber is now unemployed. He isretraining. The Alberta job market is currently poor.

Nonetheless, the evidence did not support the conclusion that he will be unable tofind new work, particularly in the area in which he is now training. 5. What factors must be considered respecting a payor’sapplication for a retroactive adjustment to the amount of hischild support payment obligation? [21] The question is whether the Supreme Court’s DBS approach to applications for the retroactive increase of child supportgoverns (with appropriate changes) applications for the retroactive decrease of child support.

Does DBS apply both to underpayment andoverpayment applications? [22] In my opinion, the DBS framework applies to a payor’s variation application based on past reductions in income. [23] The trend of the authorities is to apply the DBS approach to payors’ overpayment or downward variation applications. Amodified DBS approach was adopted by Justice Erb in the recent case of SLF v JWF at paras 71-78, by Justice Hawco in CLW v SVW,2016 ABQB 546, and by the Ontario Court of Appeal in Gray v. Rizzi, 2016 ONCA 152.

There is, I concede, a line of authority that doesnot apply DBS to payors’ downward variation applications. See, for example, Brown v Brown (sub. nom. P.M B. v. M.L.B.), 2010NBCA 5. In Buckingham v Buckingham, 2013 ABQB 155, Justice Strekaf, as she then was, adopted the Haisman approach to arrears,since there were special circumstances as contemplated in Haisman: the payor had been in an automobile accident, became unemployed,and was unable to pay ordered child support. Justice Strekaf’s approach to the period preceding the automobile accident, though, isconsistent with a DBS approach: see para 64.

In CAG, Justice Jones also adopted a Haisman approach, again because of specialcircumstances: a payor’s medical condition had unexpectedly deteriorated after the spousal support and child support was ordered. The

foundational authority in Alberta respecting payor applications to vary based on changed income is Fleury v Fleury , 2009 ABCA 43 . No mention is made of DBS in this decision, although it too is consistent with a DBS approach. [ 24 ] A suitably modified DBS approach to a payor’s variation application makes sense. The criteria and approach for increasing child support should be the criteria and approach for decreasing child support. What works for up should work for down. The overarching issues are the same. The best interests of the child must be secured.

Using a similar approach to payor and payee variation applications promotes the objectives of the Federal and Alberta Child Support Guidelines : 1 The objectives of these Guidelines are (

a) to establish a fair standard of support for children that ensures that they benefit from the financial means of both parents, (

b) to reduce conflict and tension between parents by making the calculation of child support orders more objective, (

c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of child support orders and encouraging settlement, and (

d) to ensure consistent treatment of parents and children who are in similar circumstances. Fairness and consistency are promoted through the use of similar tests for payors and payees. The DBS factors were designed to promote children’s interests, so applying those factors to payor applications should similarly promote those interests. The DBS factors have some jurisprudential history, which provides guidance and contributes to consistency in application. 6.

If a DBS approach is adopted to a payor’s application to vary child support downwards to match a decrease in income, what factors should be considered? [ 25 ] Justice Yungwirth in Roseberry v Roseberry , 2015 ABQB 75 , revd og 2015 ABCA 218 summarized the DBS factors at para 19 (QB): [19] In balancing the child support payor’s interest in certainty and predictability with the child’s right to support, DBS focussed any entitlement to retroactive child support on the following four fact-driven factors: (

i) Whether there is a reasonable excuse for support not being sought earlier; (ii) The conduct of the payor, and whether the payor engaged in blameworthy conduct; (iii) The circumstances of the child or children; and (iv) Any hardship occasioned by a retroactive award …. [ 26 ] Justice Brown in Gray v Rizzi provided a helpful discussion of the modification of the DBS factors for a payor’s variation application based on reduced income, commencing at para 55: 55 In Corcios v. Burgos , 2011 ONSC 3326 (Ont.

S.C.J.), Chappel J. adapted the S. (D.B.) principles to a motion to change a child support order where the payor requested a retroactive decrease in support or rescission of arrears. I find it hard to improve on the analysis set out at para. 55 of her reasons. I adopt her analysis and summarize the key principles below. 56 First, when applying the adapted S. (D.B.) principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco , at para. 24.

As Chappel J. stated, “Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.” 57 Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due. 58 A payor’s request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears.

Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent. 59 Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears.

As Chappel J. stated: “[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly.” 60 The present case falls into this second category. While there is no fixed formula a court must follow when exercising its discretion in this circumstance, Chappel J. identified the following factors to guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial; 2. The ongoing needs of the support recipient and the child; 3. Whether there is a reasonable excuse for the payor’s delay in applying for relief; 4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears; 5.

The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: “Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears”; 6.

Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears; 7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.

As put by Chappel J.: [I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order. [ 27 ] I note that the issue of potential repayment by the payee spouse was expressly taken into account by the Court of Appeal in Fleury and by Justice Strekaf in Buckingham at para 56 . 7.

If a payor is entitled to a downward variation of his child support payments, from what date should that reduction be calculated? [ 28 ] With DBS in mind, the presumptive date from which the reduction would be calculated would be the date of effective notice that a downward change in support was being pursued. That notice should have been accompanied by financial disclosure.

This was the starting point set by the Ontario Court of Appeal in Gray v Rizzi : 61 If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following S. (D.B.) , a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment.

It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given. 62 Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide “reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately.” As put by Chappel J.: A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred. [ 29 ] The Gray v Rizzi / DBS approach to the recalculation date is consistent with the Alberta authorities.

In Fleury , the recalculation date was set as the date specified in the notice of motion because the payee had no reason to believe until then that a retroactive downward variation would be sought (see paras 28, 29, 31 – 33). In that case, formal notice was effective notice. We read the following in Buckingham at para 64 : The father will pay child support arrears as follows:

a) Arrears will be determined with regard to two time periods. The first period spans from the date of the Order until the father’s car accident. For this period, the father will continue to owe arrears under the original $400 per month Order. During this first time period, the father knew what his income was and could have brought an application to vary the Order and did not. I will not assume that the mother knew that the father was earning a lower income that would entitle him to pay less under the Guidelines, as he was gainfully working throughout this time.

The mother is entitled to rely on the Order and on the fact that the father could have brought a variation application should he have thought it appropriate.

b) The second time period spans from the date of the father’s accident until Dallas turned 19, for which he will pay arrears based on the Guideline amount for a $20,000 annual income. The father was no longer employed or earning any income throughout this period and was unable to pay any child support. The mother should presumably have known at this point that the Order might no longer be appropriate based on the father’s inability to work.

Therefore, I will take her to have had notice of a potential change to the Order from the date of the accident onward, and the father’s arrears for this time period will be calculated based on the Guidelines. That is, for the first period, there was no effective notice. The payor could have brought a variation application but did not. Therefore no downward variation was ordered. For the second period, the mother had effective notice from the circumstances, even without

discussions providing express effective notice. 8. On the evidence, is Mr. Barber entitled to a retroactive adjustment to the amount of his child support payment obligation? [ 30 ] In this case, effective notice is conceded to have occurred on June 30, 2016 through discussions between the parties’ counsel. This case has no features like those in Buckingham that would push the date of effective notice to an earlier point. [ 31 ] With respect to the application of the Gray v Rizzo/ DBS factors, timing of change of circumstances [ 32 ] Mr. Barber’s income declined over the years.

Arrears accumulated because of his inability to make the child support payments when they came due. nature of the obligation to support, whether contractual, statutory or judicial [ 33 ] The obligation was under court order, based on the Alberta Child Support Guidelines . ongoing needs of the support recipient and the child [ 34 ] I recognize that there is some conflict in the affidavit evidence about Ms. Brown’s income. In any event, I do not have evidence that would permit me to impute income to Ms. Brown. At this stage of proceedings and for the purposes of this application, I cannot conclude that Ms.

Brown and the children do not have significant ongoing needs. reasonable excuse for the payor’s delay in applying for relief [ 35 ] Mr. Barber did provide an explanation for his failure to apply for a variation earlier: [M]y costs of access and prolonged litigation to deal with the changes in my parenting time have left me relying on friends and family to cover my expenses.

Since my income has changed I have been struggling with financing the response to all the parenting allegations filed by Christina and paying professional fees associated with that and had no money and little resources to launch a variation support application (Affidavit filed September 9, 2016, para 7). I appreciate Mr. Barber’s financial difficulties. A variation application, though, would have been straightforward (“my income is no longer what it was; here is evidence of what it is”), although even an earlier application should have provoked a legal response similar to the present response.

The evidence does not permit the inference that the marginal cost of adding this type of application to the admittedly intense and high-conflict litigation would have been prohibitive. Further, the longer the delay, the greater the potential reliance or expectation interest of the payee respecting the unchallenged order. I have considered Justice Strekaf’s comments in para 64 of Buckingham quoted above: …. the father knew what his income was and could have brought an application to vary the Order and did not.

I will not assume that the mother knew that the father was earning a lower income that would entitle him to pay less under the Guidelines, as he was gainfully working throughout this time. The mother is entitled to rely on the Order and on the fact that the father could have brought a variation application should he have thought it appropriate. ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears [ 36 ] Mr. Barber is currently unemployed. He has returned to school for retraining in an effort to move himself out of cyclical unemployment. Mr.

Barber has been employed in the past and he is taking steps to augment his earning potential. While over the short term his ability to make payments to the outstanding arrears will doubtless be impaired, over the longer term (into 2017) I infer that his income and job security will improve and he will be able to make payments toward outstanding arrears.

His temporary diminished ability to pay could be addressed through an application for a remedy other than variation. conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient [ 37 ] On the issue of financial disclosure, Mr.

Barber deposed that “my counsel provided Christina’s counsel with my tax return summaries for the last 3 years in person on June 30, 2016” (Affidavit filed September 9, 2016, para 4(b)). Counsel for MEP provided information about Mr. Barber’s payment history. He has made child support payments although he has not succeeded in reducing the amount of the arrears. delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears [ 38 ] Ms.

Brown has not delayed in the enforcement of the child support obligation. hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears

[ 39 ] Ms. Brown would not be required to repay any amount as a result of a variation in Mr. Barber’s obligations. The application would affect arrears owing only. CONCLUSION [ 40 ] The arrears were set back in 2014. Mr. Barber has known about the arrears and could have applied for a variation to reduce the arrears at an earlier time – as indeed he did before Judge Zalmanowitz. The initial amount of the arrears relate to a time when Mr. Barber should have been paying child support but did not. The money is needed for the children. The arrears exist for their benefit. The children are young.

There is time for the children to receive what should have been paid while they need financial support most. [ 41 ] I conclude that Mr. Barber is entitled to a retroactive variation of the amount of his child support obligations only following the date of effective notice, June 30, 2016. The variation will be effective July 1, 2016. As of that date and until further court order, Mr. Brown’s guideline income for the purposes of calculating child support shall be set at $25,600 per year. [ 42 ] I do not intend a patronizing and moralizing tone. I realize that Mr.

Barber’s employment situation has been deteriorating. I realize that this litigation is exacting a significant financial and emotional toll on all participants. My concern has been to determine the arrangement that, on the evidence, best promotes the interests of the children. Heard on the 21st day of November, 2016. Dated at the City of Edmonton, Alberta this 5 th day of December, 2016. W.N. Renke J.C.Q.B.A. Appearances: Rebecca Bell for the Plaintiff Brooks Topp Academy Place Law for the Defendant