Phillips v Phillips, 2017 ABQB 813

Court of Queen’s Bench of Alberta Citation: Phillips v Phillips, 2017 ABQB 813 Date: 20171116 Docket: 4801 158321 Registry: Calgary Between: Michelle Debra Phillips - and - Lenard Michael Stuart Phillips Corrected judgment: A corrigendum was issued on February 22, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Endorsement Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] This is my decision on the parties’ cross applications to vary child support.

This is essentially an addendum to my Oral Reasons for Judgment delivered on October 20, 2017 dealing with parenting issues between these parties. [ 2 ] I have already ordered that Mr. Phillips will have sole legal custody of the parties’ 15 year old son, J and that their 10 year old daughter, S, will reside primarily with Ms. Phillips. Mr. Phillips has parenting time with S from Friday to Sunday for the first three weekends of each month plus one evening each week.

S will have equal time with each parent in the summers. [ 3 ] Prior to these changes to the parenting schedule, both children had parenting time with each parent on a week on/week off basis. The changes occasioned by my Order constitute a change in circumstances under s.17(4) of the Divorce Act and so allow me to review and vary child support accordingly. The Child Support Orders [ 4 ] The history of child support orders in this matter is as follows: in 2013, the parties signed a Consent Order indicating that Mr. Phillips’ Guideline Income was $74,139 per year and Ms. Phillips’ Guideline Income was $52,989.

Based on those figures, Mr. Phillips agreed to pay Ms. Phillips the amount of $311 per month under their then shared-parenting arrangement. That Consent Order was then incorporated, along with the same Guideline incomes, into the parties Divorce Judgment and Corollary Relief Order dated July 22, 2014 (the “2014 Order). The 2014 Order contained a standard clause requiring the parties to exchange financial information each year.

[ 5 ] The 2014 Order remained in place until the parties brought their current applications concerning parenting and child support, which applications were filed in the summer of 2016. On an interim basis, Justice MacLeod made an Order on September 9, 2016 (the “2016 Order) that said the parties agreed that Mr. Phillips’ Guideline Income was $66,509 and that Ms. Phillips’ Guideline Income was $78,000. On that basis, the net interim child support ordered was payable by Ms. Phillips in the amount of $170 per month. [ 6 ] Shortly after the 2016 Order, Ms. Phillips lost her job with Enbridge.

By further Order dated January 10, 2017, her child support was suspended for November, 2016 to and including January, 2017 after which any issues regarding child support payable for 2017 were to come before me at the hearing of this matter on October 2, 2017. Retroactive Child Support [ 7 ] Mr. Phillips now wants an Order declaring that Ms. Phillips owes him $18,206 in child support for the years 2013 to 2017. He bases this claim on the fact that she failed to provide him with annual tax returns and Notices of Assessment as required by the 2014 Order. Ms.

Phillips agrees that, based on her actual incomes in those years, some retroactive child support should be payable. However, she disputes the amount, wanting to include 2012 (when she says she was underpaid) and rejecting his attribution of income to her in 2016, which she says included pension contributions that were not income. [ 8 ] The law dealing with claims for retroactive support is found in the Supreme Court of Canada case of DBS v. SRG ( 2006 SCC 37 ). There are four factors I must consider in making any award of retroactive child support: (1) whether Mr.

Phillips has unreasonably delayed his application for retroactive child support; (2) whether Ms. Phillips has engaged in blameworthy conduct relative to the issue of retroactive child support; (3) the circumstances of the children and (4) any claim by the Respondent that a retroactive child support award would cause her hardship. [ 9 ] Mr. Phillips brought this application to vary child support in 2016. While his application is timely with respect to adjustments to 2015 and 2016 child support, I am not prepared to adjust the 2014 year or any years prior to that.

The parties agreed on their respective incomes in 2013, which formed the basis of the 2014 Order. In those circumstances, both parties have the right to some certainty that if they are complying with the Order in place, they will not be accumulating years’ worth of arrears. [ 10 ] In 2015, Ms. Phillips failed to notify Mr. Phillips of her increased income, although it actually appears that neither party exchanged financial information annually as required by the 2014 Order.

While a failure to provide financial information as required may not seem “blameworthy” in the regular use of that word, there are cases which say that a party who has such an obligation and ignores it may indeed be “blameworthy” in a legal sense and thus liable for retroactive child support adjustments (see Goulding v. Keck ( 2014 A.J. No. 437 and Witwicki v. Seifner 2013 ABQB 354 ). [ 11 ] Ms. Phillips was quite forthright with the court that she had not paid proper child support in the 2015 and 2016 years based on her income and that of Mr. Phillips.

In light of her concessions and based on the tax information and information provided to me in court and agreed to by the parties, I make the following adjustments: YEAR MS. PHILLIPS’ INCOME MR. PHILLIPS’ INCOME OBLIGATION ADJUSTMENT 2015 $78,650 $66,509 Ms. Phillips should have been paying $177 per month. Instead she was receiving $311 Ms. Phillips owes Mr. Phillips $5,856 for 2015 2016 $59,627 66,509 Mr. Phillips should have been paying $102 per month instead of $311 Ms. Phillips owes Mr. Phillips $2,508 for 2016 [ 12 ] Accordingly, Ms. Phillips owes Mr.

Phillips a total of $8,364 , the payment of which I will address further in these reasons. [ 13 ] As for 2017, Ms. Phillips was not re-employed until late August, 2017. Before that, she had her severance of $24,337 (for 9 months beginning in late 2016, which pro-rated over a year would be approximately $32,000) and then employment insurance benefits beginning (equating to approximately $25,000 per year). Mr. Phillips also got a new job beginning in April, 2017, paying him $72,000 per annum.

Accordingly, I make the following directions for the payment of child support for 2017 (based on shared parenting of two children): MONTH

(2017) MS. PHILLIPS’ INCOME MR. PHILLIPS’ INCOME OBLIGATION ADJUSTMENT March $32,000 $66,509 payable by Mr. Phillips $478

April-August $25,000 $72,000 $642/mo ($1027 - $385 = $642) payable by Mr. Phillips $642 x 5 = $3,210 Sept - Nov $56,000 $72,000 $151/mo ($1027 - $791 = $236/mo) $236 x 3 = $708 [ 14 ] For 2017, Mr. Phillips ought to have paid $4,396 in child support to and including November. I realize that this assumes the shared parenting continued through 2017 when in fact J was refusing to see his mother. However, given the fact that J ought to have had equal parenting time with her until my Order of October 20, 2017, I believe it is more appropriate to base the 2017 support on the arrangement that was legally in place.

The sum of $4,396 is to be set off against Ms. Phillips’ arrears, reducing those to $3,968 . [ 15 ] Lastly, I am making no adjustments to any s.7 payments made or not made in 2015 and 2016. I have insufficient reliable evidence before as to what those might have been. Further, given the incomes of the parties and the limited evidence I did have regarding the current activities and expenses of the children, I anticipate those adjusted amounts, even if they could be calculated precisely, would not be significant.

Current Child Support [ 16 ] The parties now effectively have split custody, which means they pay child support to the other for one child based on their respective incomes and applying a set-off. [ 17 ] Mr. Phillips’ Guideline income is $72,000. Ms. Phillips’ Guideline income is $56,000. This results in a net amount of $154 payable by Mr. Phillips to Ms. Phillips each month, based on the updated Federal Child Support Tables effective November 22, 2017. [ 18 ] As Ms. Phillips has a remaining arrears balance of $3,968, I am ordering that Mr.

Phillips’ monthly support obligations be set- off against those arrears until they are satisfied. At $154 per month, that will take approximately 25 months, meaning that Mr. Phillips will not pay child support for the next 25 months (beginning with December, 2017, there would be no payments until January, 2020, subject to my comments below). [ 19 ] This of course assumes that the parties’ respective incomes stay the same, which may not be the case.

They are directed, again, to exchange their tax returns and Notices of Assessment each year by June 30 at the latest and to recalculate the monthly child support obligations based on the split custody arrangement in place. Whatever the recalculated support obligation is, it will continue to be set off against Ms. Phillips’ arrears, as long as Mr. Phillips remains the payor. If he becomes the payee, then he can apply to enforce the amount of arrears remaining at that time but only on 5 days’ notice to Ms.

Phillips of his intention to do so. [ 20 ] On the issue of ongoing special or extraordinary expenses, the parties agreed that s.7 expenses related to daycare costs and school fees would be split equally. Each party is at liberty to voluntarily pay for any special or extraordinary expenses for either child in addition to daycare and school fees. However, any such expense for which they wish the other parent to contribute must be agreed to by the other parent before the expense is incurred. Heard on the 2 nd day of October, 2017. Dated at Calgary, Alberta this 16 th day of November, 2017. M.H. Hollins J.C.Q.B.A.

Appearances: Michelle Debra Phillips Self-Represented

Lenard Michael Stuart Phillips Self-Represented _______________________________________________________ Corrigendum of the Endorsement of The Honourable Madam Justice M.H. Hollins _______________________________________________________ The following changes were made to the Endorsement: 1. A citation number (2017 ABQB 813) was added. 2. The children’s names are now represented by initials. 3.

Paragraph 20 was corrected as follows: On the issue of ongoing special or extraordinary expenses, I am ordering the parties agreed that s.7 expenses will be those related to daycare costs and school fees, which will be apportioned 56% payable by Mr. Phillips and 44% payable by Ms. Phillips would be split equally . Each party is at liberty to voluntarily pay for any special or extraordinary expenses for either child in addition to daycare and school fees. However, any such expense for which they wish the other parent to contribute must be agreed to by the other parent before the expense is incurred.