NAM v BM, 2017 ABQB 649

Court of Queen’s Bench of Alberta Citation: NAM v BM, 2017 ABQB 649 Date: 20171027 Docket: 4803 175119 Registry: Edmonton Between: NAM Plaintiff Defendant by Counterclaim - and - BM Defendant Plaintiff by Counterclaim _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] NAM applies for interim retroactive child support from her husband, BM. The parties were married in November 1996 and separated in August 2015.

There are three children who have been primarily resident with NAM since the separation. [ 2 ] NAM seeks retroactive child support from the time of separation. [ 3 ] I reserved decision so that I could review the file and NAM’s affidavit in more detail than timing permitted in morning chambers.

Background [ 4 ] The parties separated in August 2015. NAM left with the children. BM remained in the family home until it was sold sometime in May 2017. NAM commenced a divorce action on February 23, 2016. In it, she sought child support from December 1, 2013. [ 5 ] In her affidavit of June 19, 2017 filed in support of an application for interim child support, NAM swore that she received no child support until June, 2016.

She stated that BM had bought some groceries for the children “a few times.” [ 6 ] NAM stated that she had proposed to BM in August 2016 that if he paid $1,450 per month she would give up any claim for arrears. He apparently paid only $725 per month from June 1, 2016 to December 30, 2016. For 2017, he has only paid $350 per month from January to June. He also took the children off his health benefits from work.

NAM states in her affidavit that there was no month after she made the offer to forego arrears in which BM paid $1,450. [ 7 ] BM had counsel following service of the statement of claim until September 2017, when his lawyer withdrew. [ 8 ] Nothing has been filed by BM responding to the application. Disclosure [ 9 ] BM’s disclosure is limited and comes from NAM. BM’s 2014 tax return shows a line 150 income of $76,860.13. That includes $5,000 of RRSP income. No further income information has been provided.

It appears that for the purposes of ongoing child support, BM agreed that his income should be set at $80,555. [ 10 ] NAM’s notice of assessment for 2015 shows a line 150 income of $62,206. Her notice of assessment for 2016 shows a line 150 income of $56,712. She swears that she expects to earn $30,000 in 2017 as she has been on maternity leave since October 2016. [ 11 ] On July 12, 2017 Khullar J granted a consent order giving NAM ongoing child support of $1,518 per month, commencing August 1, 2017. That was based on a pre-disclosure imputed income of $80,555. NAM’s income was set at $62,204.

Retroactive child support was reserved, although BM was ordered to pay $100 per month on account of arrears. [ 12 ] BM was represented by counsel at that time. [ 13 ] The application for arrears was set for September 13, 2017. As BM’s lawyer ceased to act, the September application was adjourned to October 5. No further disclosure was provided by BM, and there was no affidavit evidence from him to refute any of NAM’s claims. [ 14 ] BM appeared in chambers self-represented.

He advised that the children had lived with him for a short period, and that he had been responsible for the matrimonial home until it was sold. He advised that he could not afford to pay any more child support than he has been paying. Analysis [ 15 ] There is no actual information on BM’s current income. Khullar J imputed income to BM the purposes of ongoing child support. It is not clear how that amount was arrived at. [ 16 ] In evidence (through NAM’s affidavit) was BM’s 2014 tax return. In that return, his line 150 income included RRSP income. Ms.

Bristow, on NAM’s behalf, argues that BM’s 2014 line 150 income, including the RRSP component, should be used for the purpose of calculating retroactive child support. [ 17 ] In LS v DS , 2017 ABQB 584 , I expressed concern about including RRSP income to guideline income in ordinary circumstances.

There is an element of double dipping if the payor’s income is primarily income from employment and for some reason the payor has withdrawn monies from an RRSP which has previously been included in the payor’s guideline income and on which child support has been paid. [ 18 ] Here, BM has not disclosed his income for 2015 and 2016. His 2014 tax return shows that the vast majority of his income is from employment. In 2016, he contributed $1,900 to RRSPs. [ 19 ] The parties agreed on BM’s guideline income for the purposes of the order granted by Khullar J.

For the purposes of setting interim retroactive child support, I consider that the appropriate figure on which BM should have been paying child support until the matter was addressed in court was his income from employment, not including the amounts withdrawn from his RRSPs. [ 20 ] The best information available is BM’s 2014 income tax return. For retroactive child support purposes, his guideline income should be set as his income from employment, being $71,860.13. [ 21 ] DBS v SRG , 2006 SCC 37 , sets the presumptive date for retroactive awards as being the date of effective notice.

Further retroactivity may be made in the event of misconduct on the part of the payor. The date of effective notice appears to have been service of the statement of claim, which presumably occurred sometime in February 2016. There is no evidence of any previous demands or of any misconduct on BM’s part. [ 22 ] Here, considering that BM contributed some unspecified amount towards groceries and maintained the family home until it

was sold (albeit gaining the benefit of living there while his family had to obtain alternate accommodation), I consider the appropriate date to use for retroactive purposes January 1, 2016. [ 23 ] BM has not provided any evidence supporting a hardship claim. [ 24 ] Child support from January 1, 2016 to July 1, 2017 (19 months) should have been paid at $1,354.17 per month (based on a guideline income of $71,860.13). That totals $25,729.23. [ 25 ] I recognize that payment of basic

section 3 child support of $1,518 may be challenging for BM. Since the parties separated more than two years ago, he has never paid proper child support, and at best only paid approximately 50 percent of what should have been paid based on his 2014 income. The arrears accumulated over a period of 19 months. At this stage, without having the benefit of budget information from BM, I consider it appropriate that he continue to pay off the arrears at the rate of $100 per month, as previously ordered by Khullar J. [ 26 ] I have no information on any arrears of

section 7 child support, and reserve that amount. [ 27 ] The information contained in NAM’s affidavit of June 20, 2017 is that BM paid $725 per month from June to December, 2016 ($5,075) and $350 per month from January to June, 2017 ($2,100). BM is thus entitled to credit of $7,175 against the arrears calculated above.

That leaves $18,554.23 in arrears, to July 31, 2017. [ 28 ] BM is entitled to credit for any further amounts paid to NAM during July and August, 2017, as well as any payments on arrears pursuant to Khullar J’s order of July 12, 2017. [ 29 ] The amount of retroactive arrears may be adjusted once disclosure of BM’s income for 2015 and 2016 has been disclosed. Conclusion [ 30 ] Child support arrears to July 31, 2017 are set on an interim, pre-disclosure basis at $18,554.23.

That amount should be reduced by any payments made by BM during June and July, 2017 as well as any payments on arrears pursuant to Khullar J’s order of July 12, 2017. [ 31 ] Arrears shall continue to be paid off at the rate of $100 per month as ordered by Khullar J. [ 32 ] Arrears may be adjusted once BM has made proper disclosure of his 2015 and 2016 incomes. [ 33 ] Retroactive

section 7 expenses are reserved. Heard on the 5 th day of October, 2017. Dated at the City of Edmonton, Alberta, this 26 th day of October, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Tracey Bristow Finlay Maxston Law for NAM BM on his own behalf