JWH v MLV, 2018 ABQB 1024

Court of Queen’s Bench of Alberta Citation: JWH v MLV, 2018 ABQB 1024 Date: 20181217 Docket: FL02 00368 Registry: Drumheller Between: JWH Appellant - and - MLV Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] This is an appeal and cross-appeal from the July 6, 2018 decision of the Honourable Judge Barley of the Provincial Court of Alberta regarding the payment of child support.

In his decision, the Judge ordered retroactive child support arrears from October, 2016 to July, 2018 and set ongoing child support as well. Rules 12.60 to 12.71 of our Rules of Court permit these parties to appeal to this Court, although there is no further appeal from this Court’s decision. [ 2 ] These parties share parenting for their one child who is 8 years old. They separated in 2011 and entered into a Consent Interim Order by which JWH (the “Father”) paid $500 per month in child support. In September, 2016, MLV (the “Mother”) requested an increase in support.

The Father voluntarily increased his payment to $700 per month at that time. [ 3 ] The Judge found that retroactive support should be ordered back to October, 2016 when the Mother first sought increased

child support. He found no blameworthy conduct on the part of the Father to justify going back farther than the date of effective notice.

On the basis of the information in front of him, he made findings of the parties’ respective incomes for the relevant years and finalized the amount owing in arrears as well as the ongoing child support due. [ 4 ] The Father appeals that decision on the grounds that the Judge did not properly consider or apply the applicable test for shared parenting arrangements where the payor’s income exceeds $150,000 per year and thus ordered child support in excess of what it should have been.

The Mother cross-appeals, arguing that the period of adjustment ought to have gone back to 2014 rather than 2016 and that additional income ought to have been attributed to the Father for the years 2017 and following. [ 5 ] Both the appeal and the cross-appeal are dismissed. Standard of Review [ 6 ] It is important to review the standard of review on this appeal, all the more because no further appeal lies.

The Father cited only a paragraph from the Alberta Court of Appeal in Rensonnet v Uttl, 2016 ABCA 196 and the Mother did not address the standard of review at all in her written material. [ 7 ] I therefore advert to the recent Alberta Court of Appeal case of JCC v NNC , 2018 ABCA 115 at para. 15 : “In family law appeals , an appellate court "may only intervene if the [lower court] erred in law or made a material error in the appreciation of the facts": Van de Perre v. Edwards , 2001 SCC 60 at para 13 , [2001] 2 S.C.R. 1014 (S.C.C.) [ Van de Perre ].

Alleged errors in law are reviewable on the correctness standard: T. (M.) v. Alberta (Director of Child Welfare) , 2005 ABCA 125 at para 25 , 363 A.R. 306 (Alta. C.A.).

A material error of fact is one affecting the conclusion: Van De Perre at para 15.” [ 8 ] While this certainly accords with the passage from Rensonnet v Uttl , supra, relied on by the Father, I do note that the Court of Appeal that case also said that “ appellate courts will not interfere with a trial judge's findings of fact or factual inferences, including credibility findings "unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable", plainly identified and shown to have affected the result : [emphasis added] R. v.

Clark , 2005 SCC 2 (S.C.C.) at para 9 .” ( at para.7). [ 9 ] While the reasons for decision of the Judge below may not have been expansive on every element of the appropriate tests, there is no error that justifies my interference with his findings or his decision. Setting the Date for a Retroactive Calculation [ 10 ] The Judge first established the Mother’s eligibility for a retroactive child support claim. He correctly looked to the tests in DBS v SRG , 2006 SCC 37 .

The Judge ordered retroactive support from the date of effective notice to the Father, which he found was September, 2016 when the Mother first sought to vary the support payable under the original Consent Interim Order and the Father agreed, although without providing disclosure. [ 11 ] The Mother complains that the Judge erred in not finding that the failure of the Father to increase his support earlier was blameworthy and therefore justified an earlier date for adjustment.

The Father complains that retroactive support should only have been ordered back as far as the filing of this application in 2017. [ 12 ] Notwithstanding that the Father’s income had increased after the initial Order, there was nothing requiring the Judge to find that fact alone blameworthy. Unlike some of the cases involving a determination of this part of the DBS test, there was no provision in any agreement or Order here which mandated the annual exchange of financial information, as is often the case.

However, the Judge found that once the Mother requested an increase in support, the Father was obligated to pay support commensurate with his income. He was not entitled to force her to court in order to obtain an Order for proper support but neither was he blameworthy for a failure to disclose his income or increase support before that time. [ 13 ] These findings, all supported by the evidence, were a reasonable exercise of the Judge’s discretion.

His findings that the effective notice date was September, 2016 and his decision to set that as the date to which he would retroactively adjust support deserves deference and there is no basis for interfering with that part of his Order. As such, whether the shared parenting regime commenced in 2012 or 2016 is moot. Applying s.9 of the ACSG [ 14 ] Next, the Judge addressed his mind to the application of s.9 of the Alberta Child Support Guidelines which deals with shared parenting situations. That

section specifically sets out three things that the court must consider in setting support for shared parenting situations: (

a) the amounts set out in the applicable tables (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and the child for whom support is sought. [ 15 ] The Judge began with a determination of the applicable table amounts and the resulting set-off. The question then became whether the table amount was in some way unfair to the Father, who relied on the case of Ewing v. Ewing , 2009 ABCA 227 to argue that child support calculated by reference to the Guideline tables would effectively be an in appropriate transfer of wealth and would unduly

benefit the Mother or her other child from another relationship. [ 16 ] Contino v Leonelli-Contino , 2005 SCC 63 is the leading case from the Supreme Court of Canada on s.9 of the Guidelines. That case, as opposed to the one here, involved a consideration of whether or not the recipient’s set-off ought to be applied at all and a review of reasons why that might not be appropriate.

In any event, the Court stressed the importance of an individualized review of the family’s finances in order to arrive at a fair order for child support; a review which involves the effect of the proposed support on all of the recipient, the payor and the child. [ 17 ] The Judge in this case expressly turned his mind to s.9(

c) of the Guidelines, namely the condition, means, needs and other circumstances of both parents and the child. He found that the Father had adequate income to pay Guideline support without any risk of being unable to meet his own needs. [ 18 ] In argument, the Father’s counsel stressed only the “needs” portion of the considerations under s.9, saying that no 8 year old child living in Drumheller should need support in the amount of $4,538 per month. He also attempted to extrapolate this to $9,000 per month by pointing to the fact that the child is only with the Mother approximately half the time. However, that completely ignores s.9(

b) of the Guidelines and the lengthy reasons in Contino , supra which incontrovertibly say that shared parenting support awards must recognize that such an arrangement does not lend itself to simple division. [ 19 ] The Judge also considered and rejected the Father’s argument that the Child of these parties did not need support paid at the Guideline amount because her expenses, extricated from the Mother’s budget, were much less. The Judge said, correctly in my view, that it was impossible to precisely quantify what expenses of a blended household belong only to the child for whom support is paid.

In fact, this was exactly the focus of the Court’s reasons in Contino , supra . [ 20 ] The Judge looked at the Mother’s budget, the child’s lifestyle and rejected the Father’s argument that the proposed expenses were excessive or that Guideline support would be de facto support for the Mother. It should be remembered that one of the objectives of support ordered under s.9 is to allow the Child to have similar standards of living in each parent’s household, as much as is reasonable possible. While this may look like wealth transfer to the payor, it does not look that way to the Child.

Given that the Father submitted no household budget information, the Judge was entitled to proceed as he did. [ 21 ] Lastly, the Father argued that the Judge’s Order should be overturned because he failed to address s.9(b). While it is true that the Judge did not expressly cite that part of the legislation, he de facto did consider it, as reviewed in the preceding paragraph. Further, nothing in that

section could have operated to reduce the Father’s obligation. [ 22 ] In short, the Judge made no errors in law, nor would I disturb his findings of fact. Determination of the Father’s Income [ 23 ] On the calculations themselves, the Mother cross-appealed the Judge’s findings of the Father’s income for 2017 and subsequent. Specifically, she argues that he failed to attribute income to him under the principles of Cunningham v Sveney , 2017 ABCA 4 . The Father is a farmer and self-employed by his corporate entity.

For years prior to 2017, he had combined personal and corporate income but beginning in 2017, his only income was from his company. [ 24 ] The Mother takes issue with a $62,000 corporate expense for wages and salaries in 2017. It appeared that she felt this was the Father’s own personal income and ought to have been reported as such. However, I had no evidence whatsoever as to how many employees the Father’s company has or whether these were expenses for contract work or something similar. This amount for wages for a company with approximately $1.2 in gross revenue does not seem disproportionate.

I understand that the Father has the obligation to justify business expenses when questioned. However, the Father produced his corporate financial information and there is nothing on the face of it that makes it any more appropriate to impute further income to him than to not do so, particularly when the Mother asked no questions herself about that expense. Conclusion [ 25 ] Accordingly, the appeal and the cross-appeal are dismissed. The Judge’s decision on the arrears of child support and the ongoing child support obligations are confirmed pursuant to Rule 12.71(

a) of the Rules of Court. [ 26 ] There are no costs of these appeals awarded to either party. Heard on the 6 th day of December, 2018. Dated at the City of Calgary, Alberta this 17 th day of December, 2018.

M.H. Hollins J.C.Q.B.A. Appearances: Colin Kloot for the Appellant/Cross-Respondent Father, JWH Susan E. Robertson for the Respondent/Cross-Appellant Mother, MLV