Brill v Brill, 2017 ABQB 345

Court of Queen’s Bench of Alberta Citation: Brill v Brill, 2017 ABQB 345 Date: 20170501 Docket: 4801 139406 Registry: Calgary Between: Reizel-Vered Brill Plaintiff - and - Erez Brill Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [ 1 ] This decision in the context of Case Management addresses the parties’ disputes in respect of

section 7 expenses. Procedural Background [ 2 ] Through a judicial dispute resolution process dated October 21, 2011 the parties compromised with each other on many issues, including a process for the sharing of

section 7 expenses. Their comprehensive agreement was embodied in a court order (the “ Consent Order ’). [ 3 ] After many months passed, the parties returned to Court in disagreement about, among other things, their compliance with the Consent Order. Following extensive submissions on a range of issues, predominantly arising from the parties’ experience with the Consent Order, a decision was rendered in Case Management on June 24, 2015.

[ 4 ] That then led to multiple disputes over the form of order for the June 24, 2015 decisions. Ultimately, on November 18, 2016, the form of order was determined (the “ Second Order ”). It covered all matters decided June 24, 2015, except the quantification of

section 7 claims. [ 5 ] For

section 7 expenses, the parties could not agree on the effect of what they had agreed to in the Consent Order, as further clarified by the Second Order. In Case Management the Court heard further submissions from the parties with respect to the effect of those two Orders on the further cost claim information supplied by each party. [ 6 ] Thus it is the quantum of

section 7 expenses over which the parties continue to disagree, over which the parties were heard further in Case Management, and over which each party provided additional records and lengthy submissions. That concluded May 9, 2017. [ 7 ] The disputed

section 7 expenses initially related to calendar years 2012 through 2014; given the passage of time and by agreement of the parties it has expanded to include the years since, during which they have continued to litigate this issue, namely 2015 and 2016. Comments on Context [ 8 ] Some comments on the context bear mentioning, even though they may be beyond obvious to the parties. First, the parties are high conflict. Second, neither party has complied with either the Consent Order or the Second Order in its entirety. Both of them appear to prefer to risk the consequences of non-compliance than experience the consequences of complying. [ 9 ] Ms. Brill disagrees with the Court’s past

interpretation of the Orders and, in any event, urges me now to take a pragmatic and sensible view of the actual expenses incurred. This would have the Court overlook any possible non-compliance with the two Orders and instead assess the merits of the underlying individual expenses.

She points to her past understandable pre-occupation with her current partner’s near fatal health condition, her distance from Calgary and the associated difficulty finding a mutually convenient time to communicate with her counsel and difficulty providing documents to her counsel, the language barrier affecting her communications and all source documents, and her evident busy-ness in raising two very active, involved and proficient growing boys. [ 10 ] Mr. Brill may not actually disagree with the various individual expenses incurred.

In other words he never suggested that he would be unwilling to pay for, by way of example, the boys’ future dental and medical expenses. He earlier agreed to do so. He insisted, however, that where appropriate his input would be requested and considered about those expenses prior, and in that way be kept in the loop about such events in his boys lives. He says that never happened. As time went by Mr.

Brill’s frustration escalated over his inability to know about such matters over the course of each year, let alone have a say in the decisions being made about his boys. [ 11 ] Neither side displayed any will to acknowledge any merit to the opposing perspective. [ 12 ] In what Mr Brill regarded to be a vacuum of information flowing about his boys, as he thought was his due under the Consent Order, he commenced further legal process. It was in his economic interest to allow the silence to persist, since it would mean Ms. Brill would not be entitled to reimbursement for what would otherwise be legitimate

section 7 expenses. Those economic interests took a back seat to his paramount desire to get into the information loop and regain his rightful role in decision making about his boys’ best interests. Rulings on

Section 7 Expenses [ 13 ] In deciding the parties’

section 7 expense claims I have not revisited earlier decisions on the

interpretation of the Orders, or replaced the terms the parties agreed upon that those Orders capture, with now a different approach. I have worked strictly from the terms of the two Orders, as I am bound to do. This decision, to be clear, deals only with the application of earlier decisions on the facts as they have been presented. [ 14 ] The first of those Orders, the Consent Order, is foundational. It is the wording the parties could agree to and that they signed off on. Whether or not the parties now like its effect, as clarified by the Second Order or otherwise, is of no consequence.

They have not been replaced by further order or agreement of the parties. They are dispositive of most of the amounts claimed. [ 15 ] My determinations upon applying those Orders to the various claims are itemized in the 3 schedules attached hereto.

Schedule 1 addresses Ms. Brill’s

section 7 claims.

Schedule 2 takes those of her claims from

Schedule 1 that qualify for contribution from Mr Brill, and applies to them the non-refundable travel offset to which Mr. Brill is entitled, and then reconciles the resulting numbers by year against the monthly ‘cash flow mechanism’ Mr. Brill was required to pay, of $250 per month ($3,000 per year).

Schedule 3 addresses Mr. Brill’s

section 7 claims. The specific paragraphs of the Orders which led to the various results are indicated in the attached schedules. For significant claims of greatest contention, I have added the rationale for my conclusion by footnote. [ 16 ] In respect of the determination of

section 7 expenses, as alluded to at footnote 6 on

Schedule 2, a substantial portion of otherwise valid

section 7 expenses incurred by Ms. Brill were found not to be recoverable because she was not able to demonstrate, on a balance of probabilities, that she requested Mr. Brill’s consent to the expense prior to incurring that expense, in accordance with paragraph 19 of the Second Order. Also, though it is of no consequence given the absence of a request for consent, Ms. Brill did not demonstrate on a balance of probabilities that the medical and dental and orthodontic amounts were in excess of insurance, and not just because the existence and nature of such coverage was supplied to the Court after Mr.

Brill’s opportunity to address the Court on that point had been spent. [ 17 ] The result is the sum of $13,382.92 due to Mr. Brill from Ms. Brill. This is the combination of his overpayment to date of $10,986.73 (Schedule 2) and Ms. Brill’s share of Mr. Brill’s

section 7 expenses of $2,396.19 (Schedule 3). If the cash flow mechanism

was not in fact paid, the parties will need to adjust the amounts due to, or to be credited to, Mr Brill. For example, the Court understands that MEP adjusted the travel credit against the cash flow mechanism, so a net of $50 per month was paid by or levied from Mr. Brill to Ms. Brill. [ 18 ] A final comment is warranted, about paragraph 16 of the Second Order. It says: Notwithstanding what has been set out in this Order or any previous Order, all

section 7 expenses shall be shared equally by the Plaintiff and the Defendant. This does not mean that all of the other provisions within the two orders in respect of

section 7 expenses are meaningless and of no effect. Rather, this paragraph 16 speaks to the parties’ agreement that each will bear 50% of all

section 7 expenses that satisfy the remaining provisions of the Orders, not an amount proportionate to their respective incomes as they change from time to time. That is the limit of its effect. Costs [ 19 ] If the parties cannot agree on costs, they may make any such request to me by letter, provided that they do so within 21 days of the date of this decision. Since the Second Order already addresses costs to June 24, 2015, any request for costs associated with this decision may only be for the steps thereafter and, of course, relate only to the

section 7 claims disputes. Also, a draft bill of costs should be included in any such request. [ 20 ] Any response to a request for costs must also be submitted by letter and received within 3 days of the date of any initial letter request for costs. Dated at the City of Calgary, Alberta this 1 st day of June, 2017. P.R. Jeffrey J.C.Q.B.A. Appearances: W.T. Aaron, Q.C. for the Plaintiff B.Y. Minuk for the Defendant

SCHEDULE I : Ms. Brill’s

section 7 Claims Year Column 1 Qualifies under para 14 Column 2 Qualifies under para 15 Column 3 Do Not Qualify

2012 3,929.35 193.08 (1) 2013 3,664.08 220.89 (2) 4,275.45 (3) 2014 4,682.18 716.66 (4) 103.00 (5) 2015 3,875.21 886.15 (6) 45.95 (7) 2016 7,633.10 4,098.28 (8) 1 Line #s 4 & 5 2 Line #s 5 & 9 3 Line # 3 Not an appropriate expense to require Mr. Brill to contribute to. Even if this did qualify, it is beyond the scope of the “after school child care” that the parties agreed Mr.

Brill would contribute to without prior consent, therefore it would only qualify under para. 15, except that by para. 19 the claim is not recoverable because consent was not requested prior. 4 Line #s 9-19 5 Line # 4 6 Line #s 4, 6 & 7 7 Line # 3 8 Line #s 4, 14, 15, 17 The therapy at Line 17 is properly a recoverable s.7 expense since it was an extraordinary expense, was in the boys’ best interests, and was incurred primarily to assist them manage the changes and adjustments from their parents’ separation.

SCHEDULE 2: Year Column 1 Pre-approved s.7 expenses

(1) Column 2 Non-refundable Travel Offset

(2) Column 3 Resulting Amount Payable by Mr. Brill

(3) Column 4 Amounts Prepaid by Mr. Brill

(4) Column 5 Owed By/(Due to) Mr. Brill (5) (6) 2012 1,964.68 1,964.68 (3,000.00) (1,035.32) 2013 1,832.04 (1,200.00) 632.04 (3,000.00) (2,367.96) 2014 2,341.09 (2,400.00) (3,000.00) (3,000.00) 2015 1,937.61 (2,400.00) (3,000.00) (3,000.00) 2016 3,816.55 (2,400.00) 1,416.55 (3,000.00) (1,583.45) TOTAL (10,986.73) (1) 50% of Column 1 in

Schedule 1, that is, 50% of those expenses falling under para. 14 of the Second Order.

(2) Paras. 10-13 of the Second Order; this amount only reduces the amounts in Column 1 to zero and no more, as displayed in Column 3.

(3) The difference between Columns 1 & 2, representing the amount of pre-approved s.7 expenses remaining after application of the non-refundable travel offset.

(4) Paras. 17 and 18 of the Second Order – the ‘cash flow mechanism’ the parties agreed to.

(5) Result of reconciliation in paras 17 and 18 of the Second Order.

(6) Nothing is included in this column from the para. 15 qualifying expenses (Column 2 of

Schedule 1) since no prior consent was requested, in accordance with para. 19 of the Second Order.

SCHEDULE 3: Mr. Brill’s

section 7 Claims

Year Qualifying Under paragraphs 14, 20 - 24 Recoverable Portion (50%) 2012 2,205.25 1,102.63 2013 1,601.11 800.56 2014 986.00 493.00 2015 2016 TOTAL $2,396.19 Note: The percentage reduction for late provision of receipts in para. 19 of the Second Order does not apply to these para. 14 expenses, just as it did not apply to those of Ms. Brill.