MDK v TLK, 2018 ABQB 1022

Court of Queen’s Bench of Alberta Citation: MDK v TLK, 2018 ABQB 1022 Date: 20181214 Docket: 4803 182608 Registry: Edmonton Between: MDK Plaintiff - and - TLK Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.R. Fraser _______________________________________________________ Facts [ 1 ] The parties in this matter have come to court to settle the issues of ongoing and retroactive child support as well as ongoing and retroactive spousal support.

They are also seeking to clarify custody and access during holiday periods. [ 2 ] The parties started to cohabit in October 2001, approximately four months before they were married on February 12, 2002. During the marriage they had three children, DK born August 2005; EK in October 2007; and CK born January 2011. The parties

separated on October 3, 2016. MDK remained in the matrimonial home and had primary care of the children while TLK moved to a new residence. He continued to pay the mortgage on the matrimonial home after he moved. The parties continued to share a joint bank account until April 2017. TLK paid $1800 in child support in 2017. He started to pay regular monthly child support of $2204 in January 2018. [ 3 ] MDK has just recently obtained steady, long-term employment with the provincial government. TLK was employed with TransAlta Utilities as a millwright. However, that job ended in April 2018.

MDK has an annual salary of approximately $42,000. TLK had an annual salary of $117,000 when he was employed with TransAlta. At the time of the special chambers hearing, he was still unemployed and receiving employment insurance benefits of approximately $28,400 per year. He is unsure of his future prospects for employment. Ongoing Child Support [ 4 ] MDK seeks to have his employment imputed at the same level as his 2017 income, $117,000 per year. She seeks this finding based on TLK’s decision not to take a lower paying job with TransAlta.

He is able to explain adequately his decision to not take a different job with TransAlta. Due to the company restructuring, the new position would likely not be long-term and it would also be at a lower wage. Given the job market in Alberta for tradesmen today, this may not have been the wisest choice, but I do not find it was made as a deliberate attempt to avoid support obligations. [ 5 ] In addition to being a journeyman millwright, TLK also has a Class I Driver’s License. Although becoming a truck driver might not be his first choice of occupation, it is an option he may have to explore.

I recognize that his family obligations likely would not allow him to enter the more lucrative long-haul business, but there may be options that would allow him to work near home. [ 6 ] In Alberta, the average wage of a journeyman millwright is approximately $85,000 per year and the annual wage of a truck driver is approximately $63,000 per year. Using the average of these two numbers, I find that TLK’s income for the purpose of this application shall be imputed at $74,000 per year. I am hopeful that he will soon be able to find employment that pays an even larger salary.

The continued exchange of financial documents between the parties should allow for an easy recalculation of support if that happens. [ 7 ] Having imputed TLK’s income at $74,000 per year, and recognizing that MDK’s new employment pays approximately $42,000 per year, which means that

section 7 expenses shall be divided such that TLK pays 64% and MDK pays 36%. TLK’s monthly

section 3 child support obligation will be $1430 per month. This amount shall take effect as of November 1, 2018. Retroactive child support [ 8 ] Having determined ongoing child support; I now must look at TLK’s retroactive support obligations. When the parties separated, MDK stayed in the matrimonial home while he moved to a new residence. Even though he did not reside in the matrimonial home, TLK continued to pay the mortgage and household expenses for the home. He also paid $1800 in child support prior to Justice Bokenfohr’s Order from March 23, 2018 which ordered him to pay $2204 in monthly

section 3 child support. [ 9 ] TLK did not lose his employment until April 2018. Prior to that date, his income was approximately $116,000 per year. Consequently, he should have been paying child support in the amount of $2204 per month since separation. To be clear, there was no court order in place regarding child support prior to March 23, 2018. However, it is the right of a child to receive and the obligation of a parent to pay proper child support. [ 10 ] TLK seeks to have some of his payments for the mortgage and household expenses of the matrimonial home attributed to child support.

He paid approximately $2900 per month from the time of separation until Justice Bokenfohr’s Order of March 2018. MDK also had access to the couple’s joint bank account until April 2017, approximately six months. She concedes that she used the money in this bank account to pay household expenses and expenses related to the children. [ 11 ] There is no doubt that the contributions TLK made to household expenses after the parties separated benefited the children. It was certainly in their best interest that they have a roof over their heads along with heat and electricity.

It is also true that these payments benefited TLK, as at least part of the payment contributed to the assets of the marriage to ultimately be divided. [ 12 ] In the same manner, MDK’s use of the joint account to pay household expenses benefited the children. As it was a joint account, half of the money in the account could be considered to be TLK’s.

Thus, half of the drawdown on the account could be considered a contribution to the support of the children. [ 13 ] The problem for the court is that although the parties agree expenses were paid and the balance of a joint bank account was reduced, there is no evidence of exactly what was paid by whom for what purpose from what account. There is some evidence of discussions between the parties when they were trying to negotiate a settlement. It is unclear if these were meant to be without prejudice discussions.

Even those discussions only speak in broad terms about the contributions of the parties towards debt, household expenses, and support. This lack of specific information makes it impossible for the court to decide what portion, if any, of these payments should be applied toward support. Consequently, I find that the only contributions TLK has made towards child support prior to Justice Bokenfohr’s March 2018 Order are the payments of $800 on April 1, 2017, $1000 on May 1, 2017, $2062 on January 19, 2018 and $2204 on April 9, 2018. That is a total of $6208. [ 14 ] The parties separated in October 2016.

At that time, he was still employed by TransAlta Utilities, earning approximately $117,000 per year. TLK should have been paying $2062 per month in child support from separation until Justice Bokenfohr’s Order in March 2018, a total of 17 months. The total amount owed would be $35054. MDK acknowledges receiving $6208 over that time period. That would leave a short fall of $28846. MDK, however, is only seeking $22,444 in retroactive child support. Her amount must take into

consideration TLK’s contributions through the joint bank account and his contributions to household expenses. I find MDK’s request be fair and appropriate, therefore I find MDK owes $22,444 in retroactive child support. That amount is to be paid at a rate of no less than $400 per month. Spousal support [ 15 ] The parties in this matter were together for 15 years. Prior to the marriage, MDK worked as a server. She had a high school education, and no other training or education. Prior to the birth of their first child, the couple farmed. MDK assisted the farm duties.

They left the farm just prior to the birth of their first child. She then assumed the traditional role of stay-at-home mother to the children. She continued in this role even after the children started full-time schooling. [ 16 ] For a brief period while the parties were still together, MDK tried to start a kickboxing school. She took the appropriate training and rented a location. However, the classes were not well attended and were not a financial success. She had to close the school within a few months. [ 17 ] After the parties separated, MDK made attempts to find suitable employment.

However, 16 years out of the workforce and only a high school diploma meant the prospects were limited. She decided to return to school and graduated with a diploma in Business Administration in March 2018. [ 18 ] Combining her education with her volunteer experience, MDK was able to secure a position with Community Corrections in St. Albert. She has completed her six-month probationary period. This should mean MDK has stable, secure, long-term employment.

The position has a salary of approximately $42,000 per year along with pension and health benefits. [ 19 ] As discussed earlier, TLK is a journeyman millwright. He had been a long-time employee of TransAlta until March 2018. At that point, due to company restructuring, his position was terminated. He went from earning $117,000 per year to collecting employment insurance which provides a maximum of $28,400 per year. In addition to being a millwright, he also holds a Class 1 Driver’s License.

Recognizing the difficulties in Alberta’s economy today along with TLK’s education, I imputed his income to be $74,000 per year. [ 20 ] When examining spousal support, the first evaluation is one of entitlement. Is MDK entitled to spousal support? In making the determination, I am guided by

section 15.2(4) of the Divorce Act which states:

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. [ 21 ] MDK was in a 16-year marriage and out of the workforce for even longer. She had no specialized workforce training. During the marriage, she took on the role of child care provider along with many of the household duties. The children are still fairly young, it will be five years until the oldest finishes high school and 11 years until the youngest completes high school. During the marriage, TLK was able to transition from farming to a journeyman millwright.

He was the sole financial support for the family during the marriage. [ 22 ] The purpose of compensatory spousal support was described in Corbeil v Corbeil, 2001 ABCA 220 as: “Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered the marriage.

Rather, the question is what was that spouse’s contribution to the marriage and was the other spouse advantaged by that contribution.” [ 23 ] Madam Justice L’Heureux-Dubé wrote in Moge that “the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.” p 848. [ 24 ] She went on to write at pp. 866 and 867 the following: As economic consequences have to be shared in an equitable manner by both partners, it is my view that the Act , while envisaging compensation for the economic advantages and disadvantages of marriage or marriage breakdown, does not necessarily put the entire burden of such compensation on the shoulders of only one party.

I stress here that in the discussion of spousal support one must not lose sight of the fact that the real dilemma in most cases relates to the ability to pay of the debtor spouse and the limits of support orders in achieving fair compensation and alleviating the economic burdens of the disadvantaged spouse.

While the disadvantages of the kind I mention hereunder are compensable, though not necessarily automatically or fully compensated in every case, the ultimate goal is to alleviate the disadvantaged spouse’s economic losses as completely as possible, taking into account all the circumstances of the parties, including the advantages conferred on the other spouse during the marriage. [ 25 ] There can be no doubt that MDK made a valuable contribution to the marriage. There may be no higher calling and no greater benefit to society than being a loving, caring, engaged parent.

However, being a stay-at-home parent is not a financially lucrative occupation. Her economic situation definitely suffered. By her looking after the children in the household TLK was able to focus on his apprenticeship and his employment. This conferred a benefit on him and improved his financial situation. [ 26 ] Taking all these factors into consideration, I find that MDK was economically disadvantaged by the marriage. Had she continued her employment as a server, she would have had an income, albeit small, for the entire length of the marriage. I find that she entitled to compensatory spousal support.

[27] Having determined that she is entitled to spousal support, I must now determine the appropriate amount. In making thisdecision, I am guided by the case of Moge v. Moge (SCC), [1992] 3 SCR 813. In that case, the court wrote: the judge’s task under . . . the statute is to make an order which provides compensation for marital contributions and sacrifices, whichtakes into account financial consequences of looking after children of the marriage, which relieves against need induced by theseparation, and, to the extent it may be “practicable,” promotes the economic self-sufficiency of each spouse.

Neither a “compensationmodel” nor a “self-sufficiency model” captures the full content of the section, though both may be relevant to the judge’s decision. Thejudge must base her decision on a number of factors: compensation, child care, post-separation need, and the goal, insofar as practicable,of promoting economic self-sufficiency.”(para 107) [28] Prior to the marriage, MDK worked as a server. Although no evidence was provided, it is likely that this was not a lucrativeoccupation and not one that MDK intended to be long-term.

She did not work during the marriage, instead looking after the children andthe house. TLK benefited by having her provide those services. Of course, this was more than simply a financial arrangement, thehappiness and well-being of the children and the family were also likely considerations. [29] After separation, MDK showed a great deal of initiative by deciding to return to school after a 20 year break. To her credit,she was able successfully to complete her program while dealing with a marriage breakdown.

She now has stable employment thatshould continue until she decides to retire. [30] Her new employment does not provide enough funds for her to maintain the same lifestyle she had while married. However,that is not the goal of spousal support. It is trite to say that running two households is more costly than operating one.

It is almostinevitable that upon separation both parties will have some decline in their standard of living. [31] Madam Justice L’Heureux-Dubé described the situation and the difficulties in awarding spousal support in Moge, writing: As economic consequences have to be shared in an equitable manner by both partners, it is my view that the Act, while envisagingcompensation for the economic advantages and disadvantages of marriage or marriage breakdown, does not necessarily put the entireburden of such compensation on the shoulders of only one party.

I stress here that in the discussion of spousal support one must not losesight of the fact that the real dilemma in most cases relates to the ability to pay of the debtor spouse and the limits of support orders inachieving fair compensation and alleviating the economic burdens of the disadvantaged spouse.

While the disadvantages of the kind Imention hereunder are compensable, though not necessarily automatically or fully compensated in every case, the ultimate goal is toalleviate the disadvantaged spouse’s economic losses as completely as possible, taking into account all the circumstances of the parties,including the advantages conferred on the other spouse during the marriage. [32] Another factor to consider regarding spousal support is the priority of child support.

This is specifically stated in 15.3 (1) ofthe Divorce Act which says: Where a court is considering an application for a child support order and an application for a spousal support order, the court shall givepriority to child support in determining the applications. [33] In this case, I have ordered that TLK pay

section 3 child support of $1430 per month. This was based on his imputed incomeof $74,000 per year. After taxes and other required deductions TLK will have approximately $55,250 of net annual income, or $4600 permonth. From the monthly amount, he is required to pay child support of $1430. This leaves him with approximately $3200 per month. [34] Using MDK’s annual income of $43,000, she would be left with approximately $37,750 after taxes and deductions. At thatlevel of income, she would be eligible for the GST rebate and Canada Child benefits of almost $17,000 per year.

Combined, she wouldhave an annual income of $54,750 or a monthly income of $4560. That amount is almost equal to TLK’s monthly income before childsupport. When his monthly child support is added to her monthly income, she has an income of approximately $6000 per month. [35] Once the transfer of

section 3 child support is included, MDK has a monthly income that is almost double TLK’s income.After

section 7 expenses are included, her income will be more than doubled that of TLK. This seems to be putting most of the burden ofthe separation on TLK, while leaving MDK with limited economic disadvantage. [36] As stated earlier, I have found that MDK is entitled to spousal support. However, the purpose of spousal support is to equalizethe hardship of the separation between the parties. Spousal support is not to be used to punish a party, and does not require one party tolive in poverty while the other lives in relative comfort.

In this case, at his current level of income with his current child supportobligations TLK does not have the financial means to pay spousal support. [37] If he did have the means to pay, I would have set the duration at 8 years, half the length of the marriage. I would have orderedsupport at the lower end of the range. I would choose the lower end because MDK appears to be well on her way to self-sufficiency. [38] The parties shall continue to exchange annual financial information.

If TLK’s income increases by more than 10%, or there isa change in his child support obligations the matter of spousal support can be revisited. Heard on the 25th day of October, 2018. Dated at the City of Edmonton, Alberta this 14th day of December, 2018.

G.R. Fraser J.C.Q.B.A. Appearances: Joanna Waldie, Birdsell Grant LLP for the Plaintiff S. Nayak, SN Law for the Defendant