SLW v WNW, 2017 ABQB 772

Court of Queen’s Bench of Alberta Citation: SLW v WNW, 2017 ABQB 772 Date: 20171212 Docket: 4803 120047 Registry: Edmonton Between: S LW Plaintiff - and - WNW Defendant Restriction on Publication Identification Ban – See the Family Law Act,

section 100. By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. NOTE: This judgment is intended to comply with the ban so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction

[1] This is a viva voce hearing in which the sole issue is the mother’s application for retroactive child support from May 2008. [2] It is the Mother’s position that the facts as presented at the trial clearly show that the Father knew that his income hadincreased, and knew that the child support that he was paying was insufficient.

He continued to underpay the child support and notdisclose his actual income so as to continue to benefit from the underpayment of child support since May 2008, which is the date shesays retroactive child support should be ordered from. [3] The Father’s position is that if any retroactive award should be made, it should only be made back to May 2014 when thepreviously agreed upon child support arrangement clearly broke down, and the Mother indicated she was going back to court.

Prior toMay 2014 the parties had made a reasonable agreement as to child support. [4] The issues that the case law and the facts identify are as follows: 1. What was the custody/parenting arrangement during the relevant periods? 2. What are the parties’ Federal Child Support Guideline incomes? 3. When did the Father receive effective notice that his child support should be increased? 4. Was there any delay on Mother’s part and if so why was there a delay and should this delay prevent recovery of retroactivechild support? 5. Did the Father conduct himself in a blame worthy manner? 6. Date of Retroactivity 7.

Does the Father fall within an exception outlined in DBS v SRG that would prevent the court from awarding retroactivechild support? 8. Would there be undue hardship if retroactive child support is ordered? 9. Does the fact that the two children are no longer children of the marriage preclude the Court from awarding retroactivechild support? 10. Are the children going to benefit from the retroactive award? 11. Is it fair looking holistically at the situation to award retroactive child support?

Analysis [5] The Supreme Court of Canada set out the law pertaining to applications for retroactive child support in its decision in DBS vSRG. 2006 SCC 37 , [2006] S.C.J. No. 37. The law is set out in DBS as follows: 1. With parenthood comes financial responsibility: When a child is born, that child has a right of child support and that right survives thebreakdown of the relationship. The level of support will vary depending on the income of the payor parent (Paragraph 38). 2.

The Federal Child Support Guidelines (the “Guidelines”) quantify the level of support: Under the Guidelines, only two numbers arerelevant: the number of children and the income of the payor parent. Except for cases of shared custody (where additional considerationsapply), an increase in the payor parent’s income increases the total amount of child support owed. When a payor parent does not increasethe level of child support when his or her income goes up, it is the child who loses (Paragraphs 43 to 45). 3. A parent’s child support obligation will only be enforceable once an application to court has been made.

But this does not mean that achild is without a remedy if a parent does not vigilantly pursue the child’s right to support: Once parents are properly before the court,the court has jurisdiction to make retroactive orders so that if a parent does not adequately defend the rights of the child, the court candefend that right (Paragraphs 56 and 60). 4. Orders for retroactive child support may be made in three situations: (

a) where there has already been a court order made - in suchcases, the court order made should reflect the order which should have been made at the time. (See paras. 62, 68 and 69); (

b) where therehas been a previous agreement between the parties; (

c) where there is no court order. In the third situation, it is difficult for the non-paying parent to show that he or she was meeting his or her obligations to the child, in the absence of special circumstances such ashardship (Paragraph 80). 5. Retroactive child support can only be ordered for a child who is a “child” as defined in the legislation at the time of the application (Paragraph 89). 6.

Retroactive orders may not be appropriate in certain circumstances: for example, if the child would get no discernable benefit from theaward, or if a retroactive award causes hardship to the payor parent, it may not be appropriate for a court to enforce the supportobligation retroactively (Paragraph 95). 7. Retroactive awards should not be considered as exceptional: retroactive awards are often justified by the fact that the payor parentchose to bring hardship upon him or herself by not meeting the support obligation due to the child (Paragraph 97). 8.

If the payor parent is in arrears under the existing order, the factors against making retroactive orders are less likely to apply

(Paragraph 98). 9. Delay in making an application for retroactive child support is a consideration, but delay does not automatically rule out a retroactive order: Delay may be excused in the following cases: (

a) if the applicant harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; (

b) if the applicant lacked the financial ability to bring the application; (

c) if the applicant experienced emotional impediments to bringing the application; (

d) if the applicant received inadequate legal advice (Paragraph 101). 10. Delay in applying for retroactive child support is less likely to be excused if the applicant knew that higher child support was warranted, but chose not to apply for it arbitrarily (Paragraph 101). 11. There are two main factors against awarding retroactive child support: (

a) the payor parent’s interest in certainty – if the payor parent informs the applicant of income increases in a timely manner and is not otherwise blameworthy, a retroactive order is less likely (see para. 102); (

b) the recipient parent should not be encouraged to delay seeking appropriate support for the child (Paragraph 103). 12. Child support is the right of the child and cannot be waived by the recipient parent: therefore delay does not eliminate the payor parent’s obligation; it is merely a factor for the court to consider in exercising its discretion to make a retroactive order (Paragraph 104). 13.

Each parent’s behaviour should be considered in balancing the competing factors for and against retroactive orders: courts should take an expansive view of what is blameworthy conduct, which is defined as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate level of support (Paragraph 106). 14.

A payor parent who does not increase support automatically is not necessarily guilty of blameworthy conduct: the gap between what a parent should be paying and what that parent actually is paying, in a good indicator of whether or not blameworthy conduct exists, with a small gap suggesting no blameworthy conduct and a large gap suggesting blameworthy conduct (Paragraph 108). 15.

The present circumstances of the child must be considered in the exercise of the discretion to award retroactive child support: a child enjoying a high standard of living will benefit less from a retroactive award than a child who is in need (Paragraphs 111 and 113). 16. A court must also consider any hardship that will result from a retroactive award in exercising its discretion: for example, if a retroactive award adversely affects a payor parent’s other children, this must be considered. Hardship of a payor parent is less of a concern if it results from his or her blameworthy conduct (Paragraphs 115-116). 17.

When should a retroactive order commence?: There are four options: (

a) the date when the application was made; (

b) the date when formal notice was given to the payor parent; (

c) the date when effective notice was given to the payor parent; or (

d) the date when the amount of child support should have increased. As a general rule, the proper date is the date of effective notice. (See para. 118). The first two options should not be selected because parents should not be penalized for using an application to court as a last resort (Paragraph 120). 18. The “effective date” is the date when it was indicated to the payor parent that child support needs to be recalculated (Paragraph 121). 19.

The date when child support should have increased is a fairer option when the payor parent has engaged in blameworthy conduct: once a payor parent engages in blameworthy conduct, he or she can no longer assume that the child’s support entitlement is being met (Paragraph 124). 20. Examples of blameworthy conduct: (

a) where the payor parent intimidates the recipient parent; (

b) where the payor lies to the recipient; (

c) where the payor withholds information; (

d) where the payor fails to disclose an increase in income from which one would expect to alter the child support payable (Paragraph 124). 21. Blameworthy conduct will move the presumptive date of retroactivity to the time when circumstances changed materially (Paragraph 124). 22.

In the majority of circumstances, a retroactive order will be limited to three years, provided that the payor parent has acted responsibly and has not engaged in any blameworthy conduct: but if the payor parent has not disclosed any changes in circumstances such as increased in income, the presumptive date of retroactivity should be moved back to the date when circumstances changed materially (Paragraph 125). 23.

In fixing the amount of retroactive child support, the Guidelines should generally be followed: if the date of retroactivity is not prior to May 1, 1997 (when the Guidelines came into force) the Guidelines should be followed. However courts ordering retroactive support pursuant to provincial statutes have greater flexibility in tailoring the award to fit the circumstances (see para. 127). The presence of undue hardship can yield a lesser award (see para 128).

A court can also adjust the effective date if there has been unreasonable delay in bringing an application after effective notice was given (Paragraph 130). 24. The Supreme Court of Canada suggests that a general discretion exists concerning the amount of a retroactive award: at para. 130 the court states “unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case.” 25.

Summary of factors for a court to consider in applications for retroactive child support: in considering these applications, a court should look at all of the relevant circumstances. The payor parent’s interest in certainty must be balanced with fairness to the child. The court should consider if the applicant has supplied a reasonable excuse for any delay, as well as the conduct of the payor parent, the needs and circumstances of the child and any hardship occasioned by the granting of a retroactive order (Paragraph 133). What was the Custody/Parenting Agreement of the Children

[ 6 ] The Mother was clear that all three of the children had resided primarily with her from May 2008 until May 2014. The Mother’s two witnesses confirmed that they saw the children primarily with the Mother during this period of time, however they had limited opportunities being outside the family unit to actually know what was actually happening on a regular basis. [ 7 ] The Father testified that he and his present wife have been married since August 2006, and that his present wife has been a stay at home mother and has primarily been responsible for accounting for the family finances.

Since the spring of 2008 their evidence is that parenting of the three children became fluid between the households. The children were often in Sue’s care even when the Father was working out of town. Leading up to May 2014, the children were spending more and more time with the Father, especially the oldest who began to spend little time with the Mother. [ 8 ] There is no dispute that residence of the children was primarily with the Mother in May 2008, when the Father returned to work in Ft. McMurray.

The issue before me is whether primary residence of all three children may have changed prior to May, 2014 when the Mother decides that the children are no longer welcome in her home and when she made it clear she wanted retroactive child support.

As I noted in Yakimitz v Chorkwa , 2013 ABQB 443 at paragraph 9 , “a mathematical minute by minute calculation will not be the sole criteria for determining shared parenting.” [ 9 ] On balance I prefer the Father’s evidence that parenting evolved to become flexible in that the children were being cared for by either him, or his present wife Sue, and that it was more than when he had days off work. Further, in the two years leading up to May, 2014, the oldest child was spending less and less time with the Mother as he himself testified to.

By the time the Mother declared in May 2014 that the three children were no longer welcome in her home, the oldest child was already living with the Father. I conclude that the three children for purposes of this Application primarily resided with the Mother until May 2011. The Parties’ Federal Child Support Guidelines [ 10 ] The parties’ Federal Child Support Guideline incomes for the period of 2008 to 2016 are set out in their income tax returns and are basically agreed upon by the parties as outlined in the table below.

For 2017, the Mother has averaged each party’s last three years income tax as no 2017 information has been provided: Year Mother Father 2008 $25,511 $192,734 2009 $17,295 $204,690 2010 $15,348 $266,628 2011 $11,685 $238,653 2012 $20,414 $233,713 2013 $24,242 $328,736 2014 $16,542 $312,433 2015 $13,001 $340,147 2016 $2,224 $281,756 *2017 (Three Year Average) $10,589 $311,445 [ 11 ] While the Mother’s Guideline income for the purpose of calculating support is not contested given the relatively minor difference in resultant child support payable, it should be noted that the Mother’s 2015 and 2016 tax information was not provided to the Father until after both sides had concluded their testimony.

As such, there was never an opportunity to examine the Mother on why her income was drastically lower those two years (especially 2016), than it was in the years 2008 to 2014. [ 12 ] There is also no evidence to confirm that the Father’s 2017 income will be his three-year average. As such, given that the 2017 calculations should be known by the time these Reasons are relied upon, the Father’s actual 2017 income can be adjusted retroactively in early 2018.

Was there any Delay on the Mother’s Part, and if so why was there a Delay, should this Delay Prevent Recovery of Retroactive Child Support? [ 13 ] One major focus of the Father in this hearing is the Mother’s delay in seeking retroactive child support. However the Supreme Court went on to explain that “at the same time, courts must be sensitive to the practical concerns associated with a child support application, and should not hesitate to find a reasonable excuse where the recipient harboured justifiable fears.

Equally, absent any such anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice… On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted but decided arbitrarily not to apply.” [ 14 ] In the circumstances of this case the Mother has articulated that the delay in her application to the court was for both of the reasons that the Supreme Court of Canada deemed appropriate.

I have no difficulty accepting that the Mother had very limited financial means and could not afford an application due to her low income. The history of the litigation also makes it reasonably clear that the Mother was aware that the process would be lengthy and expensive as the last retroactive child support application ended in a trial: see S.L.W. v W.N.W. , 2006 ABQB 447 per Acton J. [ 15 ] I conclude that while the Mother provided no documentary evidence to support her remortgaging of her home, or having

incurred credit card and family debt as a direct result of the under payments, the great disparity in incomes between these parties makes it obvious that the low income Mother was under significant financial restraints in terms of advancing this application, and that any delay was justified. However, there is some evidence in the interactions between the parties which suggests that the Mother was not obviously intimidated by the Father or by his use of the judicial process. The Transcripts of Questioning on Affidavit by the summer of 2014 contains the Mother’s communication with the Father.

The Mother was calling the Father “immature,” “a thief and a liar,” and was referring to his new wife as a “babysitter.” The Mother “overrode a grounding in the Father’s house.” Hembroff, J noted in his decision S. v W.W. , 2008 ABQB 36 at paragraph 25 that “S.W. swore she understood her failure to obey the Court Orders prior to the April 10 th Order was very wrong and that she saw the absolute need to be cooperative regarding access and be supportive of both W.W. and his wife S.W.’s role in parenting her children,” yet there are the Mother’s somewhat nasty text messages to the Father after she sent the children to live with the Father. [ 16 ] Also important is that the Mother admitted that she knew how to register and unregister Orders with the Maintenance Enforcement Program, and she acknowledges she chose not to enforce certain arrears. [ 17 ] I conclude that while the Mother’s delay in bringing her application is justified by her very limited financial resources, I am uncertain that the delay was also caused by her fear of the father, and by any intimidation he exercised towards her. [ 18 ] The Supreme Court articulated two concerns that they are trying to address when they do not allow a retroactive child support award due to delay.

The first is the payor parent’s interest in certainty. Here the Father cannot use this argument as Justice Acton’s November 2 nd , 2006 Child Support Order at paragraph 8 had made it clear that the Father was to pay his child support based upon his yearly income and it was to be adjusted each year: “It is ordered that the Defendant child support obligations for 2007 and forward shall be based on the preceding year’s income with retroactive payments being made, as appropriate, each year once his actual income figure is known.

There is no argument that the Father can make about “certainty” to resist adjusting his child support obligations, although the Mother did not formally demand the Father’s tax returns until 2014. The Mother understood the “deal” the Father and her made to be in conformity with the 2006 Court Order. It is only the Father’s position that the deal was different, and did not consider the Federal Child Support Guidelines . [ 19 ] The second consideration is that the recipient parent should not be encouraged to delay. However the information regarding the Father’s actual income was essentially within his control.

If the Father had disclosed his actual income to the Mother, then there would be a reasonable justification to disallow the retroactive award because then she would have knowingly forgone increases in child support. Up until the Mother actually received the actual income information from the Father, his actual income was largely unknown to her.

I find that the Father at the very least was selective about the information he provided when he stated his income had not gone up from the 2008 year, but not advising the Mother that he was still under paying his child support obligations ( See page 5, paragraph 12 of the Affidavit of the Father sworn on September 16, 2015) . Did the Father Conduct Himself in a Blame-Worthy Manner? [ 20 ] The Supreme Court in DBS explores the ramifications of the payor parent’s conduct on the awarding of retroactive child support in paragraph 105-109.

The Father has previously been deemed to have acted in a blameworthy manner and had a retroactive child support award made against him in 2006 by Acton J. Furthermore, that November 2, 2006 Order contained an exchange of information obligation, and an additional obligation that the Father would base his child support obligation on his previous year’s income with an adjustment on his actual income each year, all of which he failed to do. [ 21 ] This background here is different from the background of all the cases in the Supreme Court cases collectively known as DBS .

The Father here is familiar with the Child Support Guidelines , knows how to calculate under the Guidelines , knows his income and has been ordered to readjust each year. [ 22 ] The Supreme Court has articulated that blameworthy conduct is “anything that privileges the payor parent’s own interest over his/her children’s right to an appropriate amount of support”, and that hiding one’s income increases from the recipient parent in hopes of avoiding larger child support, or misleading the recipient parenting into believing that the child support obligation is being met are blameworthy conduct.

In this matter, I find that this blameworthy conduct is present. [ 23 ] In the cases before the Supreme Court in DBS , the disclosure requirements did not form part of the relevant order or there were no previous court orders, unlike here where the Father had an obligation to exchange his income information. The Father argues that as the Mother did not provide her income, that should void her request for child support. However the Mother’s income information is only relevant for

Section 7 expenses and she did not claim any contribution from the Father, even though the evidence demonstrated that she incurred hockey expenses, hockey equipment purchases, hockey sticks, tournament fees and braces. [ 24 ] I do acknowledge though that the Mother’s financial information was not provided in a timely manner when two of the children were living primarily with the Father.

If it was the Mother’s intention to do a clear-cut s. 3 and s. 7 arrangement with the Father, her financial information would have been relevant for this limited purpose. [ 25 ] The Father also argues that the parties had an agreement, although there is nothing in writing to verify the Father’s position with regard to that agreement. The Mother stated that the agreement that they had was in line with the previous 2006 Court Order, and she pointed to the fact that the Father did provide her with a $2000 payment in April or May 2009 in support of her position.

I agree that this information would suggest that the parties had reverted back to the 2006 order. [ 26 ] With respect to the 2006 Order, it is also clear that the parties were deviating from that Order even before the May 2008 transition of the children to the Mother’s primary care in that the Father was providing support beyond what was actually Ordered.

Further, the Mother herself never paid s. 3 or s. 7 child support for the period of April to December, 2007, when all the children were in the Father’s care, yet she has collected on the Father’s pre-2006 arrears as late as 2015 when she re-registered that Order with the Maintenance Enforcement Program.

[ 27 ] Even if the parties had an agreement in variation of what the Mother testified to, the agreement should not be upheld for the entire period as the Father withheld certain key financial information. He never provided his income tax information, and did not tell the Mother that his income had more than doubled. The Father confirms that he never provided his income tax information to the Mother, nor did he ever actually communicate his actual income to the Mother until after 2014.

I conclude that the Father should not benefit from his own blameworthy conduct after May 2011. [ 28 ] I also conclude that while there was no written agreement between the parties, there was an agreement nonetheless of some sort between the parties given their conduct between May 2008 and May 2011 that restrains me from awarding retroactive child support that the Mother claims for that period.. Date of Retroactivity [ 29 ] From May 2008 until May 2011, I conclude that the parties had their own child support agreement.

The Father has been cooperative in adjusting child support post May 2014, when the Mother clearly became dissatisfied with their agreement. [ 30 ] Prior to May 2014, the Father adjusted his support several times when the Mother requested he do so. Those situations included contributing towards the children’s s. 3 expenses and taking over the children’s s. 7 expenses (2008), a lump-sum payment (2009), and increasing his monthly s. 3 amount (2013). [ 31 ] I order three years of retroactivity from the Mother’s effective date of notice in May, 2014.

Such retroactive child support to May, 2011 would coincide somewhat with the Mother withdrawing in November 2011, from the Maintenance Enforcement Program (enforcing child support arrears dating back to the 2006 Order). That withdrawal from Maintenance Enforcement Program was a verifiable indication to the Father that the existing child support arrangement was satisfactory to the Mother, otherwise she would have not declined those arrears.

Does the Father Fall Within an Exception Outlined in DBS that Would Prevent the Court from Awarding a Retroactive Child Support? [ 32 ] The Father does not fall within any of the four exceptions outlined in DBS in that firstly the payor parent has not satisfied his obligation in “some other manner”. Upon cross-examination and through the documents provided to the court, the Father indicated that his position to the court in 2006 was that he could not afford to pay for the children’s hockey expenses.

This resulted in an Order wherein if the Father did not consent to the children playing hockey, the Mother could still choose to enroll them in hockey but she would have to pay the entire expense. Then subsequently the Father wanted the children to play hockey, and stated he would pay. However this is not a contribution to the children’s support, and even if this was a

Section 7 expense, his asserted contributions to

Section 7 expenses, which are not confirmed as benefiting the three children involved in this application, only reduces his arrears somewhat. I find that the contributions the Father can prove, represented a minimal contribution to the Mother and the children. Furthermore, the information was uncontested that the Mother still incurred the obligation of transporting the children to these activities and provided much of the equipment. [ 33 ] I do acknowledge though that the Father was prejudiced by the delay on the Mother’s

part in pursuing her claims. The Father cannot produce at trial proof of many of his alleged s. 3 and s. 7 expenditures he made on the Mother’s behalf, partly because of the delay. The delay also denied him the ability to even decide whether he would still make those types of expenditures had the Mother simply been receiving s. 3 table amounts. The Father may not have made those expenditures given that was a part of the deal he and the Mother reached between themselves starting in May 2008.

By awarding the Mother her requested s. 3 table amounts, she is effectively getting full child support plus the Father’s s. 3 and s. 7 expenditures on her behalf which she acknowledges benefitted her and the children. [ 34 ] The second exception is where the payor parent has taken all reasonable steps to fulfill his obligations.

Here, the Father’s obligations were clear as the 2006 Court Order outlined that the Father was to provide his income information and adjust his payments every year, and that did not happen. [ 35 ] The third exception is where there is a previous arrangement that considers the Guidelines , which is not the case here. The Father was clear that the agreement that he states the parties made did not consider the Guidelines .

The actual last agreement or order that considered the Guidelines was this Court’s November 2006 Order which the Father chose to disregard. [ 36 ] The fourth exception is where the payee parent failed to diligently pursue child support, which was the case until May 2014. Accordingly my retroactive award will only be back to May 2011 Undue Hardship [ 37 ] The Father does not advance, nor does he meet the criteria set under the Guidelines for undue hardship, although an inability to pay retroactive arrears monthly could create such a hardship. Are the Children Going to Benefit from the Retroactive Award?

[ 38 ] It is not a requirement that all of the children must receive a benefit for the retroactive award to be valid. It is a consideration which, when looked at in light of the corresponding blameworthy conduct of the Payor parent, can be overridden. The information at trial was uncontested that the Mother provided as best she could for the children. It was also uncontested that she did not save and was in debt as a result of her providing for the children as best she could.

It was also uncontested that the Mother was not able to take the children on trips like the Father did and could not as easily and readily provide for extras for the children. The Mother made it clear that the award would still benefit the youngest child and would alleviate some of the financial burden that she was forced to take on as a result of the Father’s failure to provide appropriate child support as outlined in the Guidelines . The Father confirmed that in regards to the previous award of retroactive child support, the Mother bought items for the children and provided a benefit to the children.

There is no reason that was articulated to suggest that she would not once again benefit the youngest child, who is still a child of the marriage as defined by the Divorce Act . [ 39 ] In conclusion, while the answer to this question with respect to the two oldest children is ‘No’ since the Mother has cut off all support for those two children since May 2014, the youngest child would still benefit from a retroactive award. Although the Mother confirmed that the youngest child’s needs are currently being met, the Mother could pay down debt linked to the Father’s under- payment of child support.

Is it fair looking holistically at the situation to award retroactive child support? [ 40 ] The Father made $176,411 after-tax in 2016, which is his latest income information available. The child support arrears being ordered represents a relatively small portion of his yearly income. Conclusion [ 41 ] The concluding paragraph (135) of the Supreme Court of Canada’s

summary of the law in DBS articulates the problem posed by applications for retroactive child support: The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them.

Thus while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed. [ 42 ] With respect to the issues that DBS require to be dealt with regarding retroactive child support awards that I began these Reasons with, these are my findings and conclusions.

What was the Custody/Parenting Arrangement during the Relevant Periods? [ 43 ] I find that the custody/parenting arrangement in May of 2008 was that the Mother clearly had the primary care of all children, and that this primary care continued until approximately May 2011, when the Father moved to Fort McMurray to take up employment. After May 2011, the parenting situation evolved to become more fluid in that the children were being cared for at various times by the father, or his present wife.

This situation continued until the Mother declared in May 2014 that all three children were no longer welcome in her home. The oldest child had already been living in any event with the father for approximately two years leading up to the May 2014 declaration by the Mother.

What are the Parties’ Federal Child Support Guideline Incomes? [ 44 ] The parties Federal Child Support Guidelines Incomes are as follows: Year Mother Father 2008 $25,511 $192,734 2009 $17,295 $204,690 2010 $15,348 $266,628 2011 $11,685 $238,653 2012 $20,414 $233,713 2013 $24,242 $328,736 2014 $16,542 $312,433 2015 $13,001 $340,147 2016 $2,224 $281,756 *2017 (Three Year Average) $10,589 $311,445

[ 45 ] There is no evidence to confirm that the Father’s 2017 income will be his three-year average which was used in this table. As such, given that the 2017 calculations should be known by the time these Reasons are relied upon, the Father’s actual 2017 income can be adjusted retroactively in early 2018. When did the Father Receive Effective Notice that his Child Support Should be Increased? [ 46 ] The Father received effective notice that his child support should be increased in May 2014.

Was there any Delay on Mother’s Part and if so why was there a Delay and Should this Delay Prevent Recovery of Retroactive Child Support? [ 47 ] There was delay on the Mother’s part, but that delay was justified on the basis of her very limited financial resources, and by the extensive litigation she was involved in during the first retroactive child support claim she made in 2006. The Mother would have justifiably been concerned with having to endure the emotional and financial strain of a second retroactive child support claim.

The delay, however, was not justified based on the evidence before me because of any intimidation exercised on the part of the Father, or threats that the Father may have made against the Mother, or because of any vindictive reaction or action that the Mother may have reasonably assumed the Father would have taken against her or the family.

Did the Father Conduct Himself in a Blame Worthy Manner? [ 48 ] The Father was blame worthy in this matter because he failed to disclose his income as required by an existing Court Order issued by this Court in November 2006, after a trial in which the Mother was successful in obtaining a retroactive child support order against the Father. The November 2006 Court Order specifically required that the Father’s child support obligations for 2007 and beyond shall be based on each year’s proceeding income with retroactive payments being made, as appropriate, each year once his actual income figure was known.

It is insufficient that the Father believed that he had some sort of agreement with the Mother with respect to child support, because it was still a requirement that he disclose his income on an annual basis, which he failed to do. Furthermore the Father engaged in some misleading conduct when he suggested to the Mother that his income had not gone up from 2008, when that clearly was not the case. Date of Retroactivity [ 49 ] I have concluded that there will be a retroactive child support order to May 2011, due to the circumstances in this case.

Does the Father Fall Within an Exception Outlined in DBS v SRG that Would Prevent the Court from Awarding Retroactive Child Support? [ 50 ] I conclude that the Father does not fall within any exception outlined by the Supreme Court of Canada. Firstly, although the Father may have satisfied some of his obligations in some other manner by paying for hockey expenses, his contributions to s. 7 expenses cannot be confirmed as benefitting the three children involved in this application, given that his present wife also had a child who incurred hockey expenses during roughly the same time period.

It was also a relatively minimal contribution to the Mother and the children, given the Father’s substantial income and the Mother’s low earnings. [ 51 ] With regard to the second exception, the Father’s obligations under the 2006 Court Order were not complied with, given his failure to disclose. [ 52 ] The third exception with regard to a previous arrangement which considers the Guidelines , was by the father’s own evidence not applicable here because whatever arrangement or agreement these parties had by his own evidence did not consider the Guidelines . [ 53 ] Finally with respect to the fourth exception, I conclude that the payee parent did not fail to diligently pursue child support because of her severe lack of financial resources due to her low income, and given her previous experience in having to go to trial to obtain the 2006 Court Order for retroactive child support against the same father.

Would there be Undue Hardship if Retroactive Child Support is

Ordered? [ 54 ] The Father never advanced an undue hardship claim, and given his income, no undue hardship claim could ever have been successfully advanced. Does the Fact that the Two Children are no Longer Children of the Marriage Preclude the Court from Awarding Retroactive Child Support?

Are the children going to benefit from the retroactive award? [ 55 ] It is not a requirement that all children must directly benefit from a retroactive reward in order for it to be valid and appropriate, especially in light of the blameworthy conduct of the payor parent in not following the Court Order to disclose income on a regular basis, that arose from his failure in the 2006 trial on retroactive child support.

The Mother’s low income throughout this process stretching back virtually through the three children’s entire lives was a direct result of her rather gallant attempts to provide for all three as best she could under her very limited means. As a result of simply not having enough money to support all three of her children, the Mother incurred a significant financial burden and still has debt remaining, which could be paid off by this retroactive child support award. Furthermore the retroactive child support award will still directly benefit the youngest child.

Is it Fair Looking Holistically at the Situation to Award Retroactive Child Support? [ 56 ] Given the Father’s confirmed 2016 after tax income of over $176,000, and his pattern of earnings throughout the ten year period prior to 2016, especially relative to the Mother’s low earnings and income, there can be no holistic reason not to award retroactive child support in this case.

The award of retroactive child support although still to be calculated, represents a relatively small portion of the Father’s yearly income, and earning capabilities, especially when the total repayment amount can be made by month installments. [ 57 ] However between 2008 and 2011, the parties made adjustments to their support arrangement factoring in the children’s needs and each party’s ability to pay.

For the Father to pay close to ten years of retroactive support back to May 2008 when the Mother knew how to enforce her child support rights and did not do so is also not appropriate. [ 58 ] There will be a retroactive order for child support to May 2011, repayable immediately by monthly installments in an amount to be determined by the Court when the total amount due and owing is calculated. Heard on the 25 th and 26 th of April and 21 st and 22 nd of September, 2017. Dated at the City of Edmonton, Alberta this 13 th day of December, 2017. Donald Lee J.C.Q.B.A.

Appearances: Terri-Lynn McLaughlin Jenkins & Jenkins for the Plaintiff Mother Curtis Ready Miller Boileau Family Law Group

for the Defendant Father