CJD v RIJ, 2017 ABQB 612

Court of Queen’s Bench of Alberta Citation: CJD v RIJ, 2017 ABQB 612 Date: 20171012 Docket: 4803 127885 Registry: Edmonton Between: CJD Plaintiff/Respondent - and - RIJ Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] RIJ applies for retroactive and ongoing child support from CJD following a change in the parties’ custody and access arrangements.

CJD acknowledges that she has child support obligations under the Child Support Guidelines as their daughter is clearly a child of the marriage. However, she submits that there should be no retroactive child support in the circumstances of this case, and she asks that ongoing child support be paid either directly to service providers, into trust for the child’s later benefit, or a combination of those alternatives. Background [ 2 ] I have been case managing this matter since 2012. I took over the case from a colleague who had case managed the matter for some time.

My predecessor herself took over case management from a colleague on his appointment to the Court of Appeal. The child’s parents have actively and continuously litigated over financial and parenting issues since they separated, when their daughter was just over two years old. She is now 16.

[ 3 ] Following a lengthy period when the child was primarily resident with her mother and had generous specified access with her father, RIJ applied for sole custody of the child. The child was 13 at the time. RIJ maintained that he was and had been for some time in a shared parenting role because of the amount of time the child spent with him. He pointed to the wishes the child had expressed to him: to live with him full-time and have some time with her mother. [ 4 ] Counsel for the child was appointed. Further submissions for all parties were made once the child’s counsel was able to assess the matter.

As of the beginning of September 2014, the child began to reside with her father, RIJ, full-time, which was her firmly stated wish. That position was supported by her counsel, who concluded at the time that the child was sufficiently mature to give instructions. My order of October 27, 2014 gave RIJ primary care of the child. [ 5 ] The child has continued to reside with her father since then. Time with her mother has dwindled such that they have not seen each other in the last seven months.

Court ordered access does not happen. [ 6 ] This case is the poster child for the Reforming Family Justice initiative, seeking a new and better approach to resolving family disputes. Here, extensive court intervention has failed to end the disputes between the child’s parents.

As an obvious result of this dysfunction and the failure of the parties to end their fighting, the court-appointed therapist for the child reported recently: Due to (her) defensiveness there is no point in continuing to attempt to forge a therapeutic relationship to focus on healthy interpersonal relationships, critical thinking, problem solving or general life skills in therapy. [ 7 ] Therapy terminated. The child has not seen or spoken to her mother, CJD, since February 2017. The child has had limited contact with her mother since custody and access changed in the fall of 2014.

The child has now cut herself off from her mother’s entire extended family, with whom she had previously enjoyed very good relations. At this stage, she is completely alienated from her mother. CJD blames this on RIJ; he denies any role in alienation and says CJD has brought this on herself. [ 8 ] The child remains in high school, with mainly passing grades, but marks that do not reflect her potential. Her behaviour at school has been challenging to school authorities since I became involved in this case in 2012.

She will continue to be a child of the marriage for some time. [ 9 ] RIJ’s arguments in support of child support, retroactive and ongoing, are simple. He has full-time care of the child. He has very limited means. When their daughter was in her mother’s primary care, RIJ paid child support based on the income imputed to him. Now that he has the child in his primary care, her mother should pay appropriate child support to him, for the child’s benefit. [ 10 ] There is no doubt that the effective date of notice that RIJ wanted child support goes back roughly to the time the custody arrangements changed.

Financial disclosure was ordered by me in an order dated October 27, 2014. The issue of ongoing child support was adjourned pending disclosure. For various reasons, mainly connected with schooling issues and attempting to get appropriate assessments of the child, and counselling and therapy for her, the issue of child support was not formally brought before me until now.

Nevertheless, I accept that the presumptive date for child support is October 27, 2014 following DBS v SRG , 2006 SCC 37 . [ 11 ] RIJ seeks child support from that time, based on CJD’s income as disclosed plus the gross amount of rental income she earns. In his materials, he seeks more than the amount shown in the Guideline tables, based on what he describes as CJD’s “blameworthy conduct,” her assets and the actual cost of care for the child. [ 12 ] CJD says any child support obligations should be based on the line 150 income from her income tax returns.

She recognizes an obligation to pay ongoing support, but has concerns that it may not be properly used for the child’s benefit.

She seeks to pay some expenses, like school expenses, health costs, recreation costs and the like directly to the provider, and to have the balance paid into a trust account to be used later for what she describes as the child’s inevitable upgrading of high school marks, and therapy. [ 13 ] As for arrears, while acknowledging the presumption that retroactive child support starts from the date of effective notice, CJD argues that no arrears should be found, based on the Court’s discretion regarding retroactive support awards, and RIJ’s blameworthy conduct throughout the 14 years the parties have litigated over various issues. [ 14 ] CJD points to the litigation RIJ has commenced against her and her lawyers, the child’s former school, and others, and the fact that RIJ has been declared a vexatious litigant.

She also points to the difficulties in obtaining any meaningful financial disclosure from RIJ because of various positions taken by him. She also notes that despite clear court orders regarding psychological interventions, counselling and therapy, she has had to make a number of court applications to actually get the court-ordered processes going because of delays by RIJ. [ 15 ] While CJD has been self-represented most of the time I have been case managing this matter, she has from time to time engaged counsel, and Ms.

MacKay pointed out that she is the initial counsel who dealt with the matter for CJD starting in 2003 or so when the parties first separated. [ 16 ] If any arrears are ordered to be paid, CJD asks for time to pay off any arrears, and also asks that the arrears be paid into a trust account to be used for the later benefit of the child. She states that any arrears are at this stage a windfall to RIJ. Analysis Ongoing child support [ 17 ] This matter is governed by the Child Support Guidelines. There are strong policy reasons why the Guidelines should be followed in almost all cases.

It is important that there be few exceptions to the application of the Guidelines, and that a party seeking to have the Court deviate from the Guidelines should bear a heavy onus to prove an exception.

[ 18 ] That is certainly the case with hardship claims under

section 10. It appears to be the case with respect to incomes over $150,000. The Guidelines are the default position, and there is a strong presumption that they should apply. Deviations encourage the parties to litigate, and one of the objectives of the Guidelines was and is to create certainty and prevent disputes that are so harmful to the well-being of children. [ 19 ] I can understand why CJD finds it galling to pay child support to her ex-husband, whom she believes has actively caused her to be alienated from their daughter.

That said, child support is not the right of the parent seeking it; rather it is the right of a child of the marriage to be appropriately supported by her parents. [ 20 ] Where there is rancour between the separated parents, many payors would prefer to direct their support payments so that the money gets spent in ways of which they approve. That is simply not the law; nor should it be. Parliament in its wisdom has established a regime based on statistics and a set of assumed norms.

The payor pays basic child support (section 3 support) based on his or her pre-tax income regardless of their budget; the recipient gets a prescribed amount regardless of whether the amount fails to meet their budget or even exceeds it.

The recipient does not have to account for use of the funds received from the payor. [ 21 ] Allowing the payor to direct how and where the support is used would create and perpetuate a level of control by the payor inappropriate to the parties’ separated and independent status. [ 22 ] While RIJ’s materials suggest that the standard of living enjoyed by CJD is greater than his and the child’s, he has not complied with the requirements of

section 10 of the Guidelines. A claim for more than the Guideline amount is theoretically possible, although I am not aware of any cases where that has occurred. The hardship exception is usually raised by the payor, and it is rarely successful. CJD has not suggested that paying basic

section 3 child support would be a hardship for her, and she advances no such claim. [ 23 ] As a result, CJD shall pay child support for the child commencing September 1, 2017 at the table amount in the Guidelines. Her line 150 2016 income was $95,647, which requires monthly payments of $829. Retroactive child support [ 24 ] Payment of retroactive support does not amount to a windfall for the recipient; it represents support that they should have received but have had to do without. The recipient may have incurred debt, or simply done without.

In either circumstance, it is unfair for the payor, and is a windfall for the payor, to avoid payment because the recipient did not take earlier or more aggressive proceedings to collect it. [ 25 ] Any retroactive award is, of course, governed by DBS . That case acknowledges that there are a number of potential dates for retroactivity. The presumptive date is the date of effective demand for payment or an increase in payment. Using that date avoids the payor being lulled into a sense of security being unaware that support was being sought.

The Court has jurisdiction to use an earlier date, on the basis that parents owe a duty to support their children. However, DBS recognizes difficulties caused by retroactive awards, and generally limits any retroactive award to a period of three years before the date of effective demand, and then only in circumstances where the payor is guilty of misconduct relating to disclosure of income or other wrongdoing relating to support issues. [ 26 ] Here, CJD asks me to use the date of the application as the appropriate date for determining the award, so that there would be no retroactivity.

In response to suggestions that would be a windfall for CJD, Ms. MacKay raised two arguments. CJD argues that she was under-supported by RIJ because there has never been any satisfactory financial disclosure by him. [ 27 ] In CJD v RIJ , 2013 ABQB 84 , I imputed $50,000 per year to RIJ as an estimate of what a beginning teacher might make. I imputed $50,000 to CJD for

section 7 purposes, directing the parties to share

section 7 expenses equally. CJD was not working at that time because of health issues. While RIJ fell into arrears in court-ordered child support from time to time, he generally satisfied his obligations. At the time custody changed, he was some $3,160 in arrears. [ 28 ] While there has never been satisfactory financial disclosure by RIJ, CJD did not meet the burden on herself to quantify any under-reporting of income by RIJ.

Suspicions are not a basis to impute more income than was done. [ 29 ] The more compelling argument is that CJD has been put to great cost in getting compliance with my orders relating to the assessment and counselling for the child. [ 30 ] I acknowledge that it was a tortuous process to have RIJ sign necessary consents and agreements with assessors. It took many case management applications. Through most of my time as case management judge, CJD has been self-represented (as has RIJ). CJD was represented by counsel on at least one of the applications to compel compliance with counselling orders.

No costs were awarded on any of these applications, as the imperative was to get assessment and counselling going. None of those appearances would have been required had RIJ cooperated. It is not a situation where costs were allowed or expressly disallowed. They were not discussed. [ 31 ] Ultimately, the assessment and counselling processes were thwarted by the child’s refusal to cooperate.

While child support is the right of the child and is not normally affected by the actions of the recipient, all of CJD’s efforts and expenses relating to having the child assessed and given therapy were for the benefit of the child. She should be given credit for some of those expenses. [ 32 ] Normally, self-represented litigants are not awarded costs for successful court appearances. There is a discretion which may be exercised in a self-represented litigant’s favour, in appropriate cases.

No information was provided that CJD lost time from work or incurred expenses in relation to these appearances, except for the one that Ms. MacKay was involved in. For that appearance, I award CJD $1,500. [ 33 ] That amount should be offset against any child support arrears. [ 34 ] I accept Ms. MacKay’s calculation of the retroactive arrears, based on CJD’s line 150 income for the period January 1, 2015

to August 31, 2017. RIJ did not point out any errors in those calculations. That is the starting point. Those arrears total $13,008. [ 35 ] Support would normally be payable for November and December 2014, but CJD’s line 150 income was below the threshold for child support. [ 36 ] From that amount, CJD is entitled to deduct the child support arrears owed to her by RIJ of $3,160. She is also entitled to deduct RIJ’s 50 percent share of the assessment costs paid by her, being $3,150. I award CJD $1,500 by way of costs relating to the applications to enforce the orders relating to assessment and counselling.

That amount is to be deducted from the arrears. That will leave $5,198. [ 37 ] CJD indicated at the hearing that she was not able to pay arrears in a lump sum. That is not unusual, and retroactive arrears are frequently ordered to be paid over time. It seems to me that the appropriate time for payment of these arrears is over the same length of time it took to accumulate. Here, that is exactly three years. The amount of $5,198 will be paid by way of 36 monthly instalments of $145, commencing November 1, 2017. [ 38 ] This is an unusual case. Normally the arrears would be paid to RIJ.

Here, he actively attempted to thwart the assessment and counselling process. Delays in proceeding with those interventions likely aggravated the alienation between the child and CJD. CJD asked that if she is directed to pay any retroactive amounts, the arrears be put in trust and used for future counselling and academic upgrading. [ 39 ] RIJ’s ability to contribute to future counselling is uncertain. Reading the counsellor’s report gives a likelihood that future counselling will be necessary for the child to progress in a positive way.

If post-secondary education is in the child’s future, it is likely that academic upgrading will be necessary, having regard to her performance at school to date. [ 40 ] CJD’s obligation to contribute to post-secondary expenses is uncertain. Case law recognizes that a parent may not have to contribute to a child’s education past Grade 12 and age 18 if the child is alienated from the parent for no good reason. There is no good reason for the child’s alienation from her mother.

It may be unreasonable for an adult child to expect support from a parent the child wants nothing to do with, other than his or her money. [ 41 ] So a trust fund here is a good idea. This is an exceptional case, calling for exceptional remedies. The payments I have directed CJD to make shall be paid into court to the credit of this action. [ 42 ] The funds may be disbursed to or for the child as may be agreed by the parents, or ordered by the Court. Any amount remaining after the child is no longer a child of the marriage shall be paid as agreed by the parents, or as ordered by the Court at the time.

Hopefully, they will be well spent in the best interests of the child. [ 43 ] There will be no costs on this application. RIJ was substantially successful, but as a self-represented litigant there are no special circumstances warranting an award of costs in his favour. Heard on the 4 th day of October, 2017. Dated at the City of Edmonton, Alberta, this 12 th day of October, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Michelle L. MacKay Gordon Zwaenepoel

for CJD RIJ on his own behalf Christina E. Riddoch Family Law Office (Legal Aid) for the child