Claughton v Bokenfohr, 2018 ABQB 1053

Court of Queen’s Bench of Alberta Citation: Claughton v Bokenfohr, 2018 ABQB 1053 Date: 20181221 Docket: 4801 123426 Registry: Calgary Between: Trent Murray Claughton Applicant/Defendant - and - Lori Gail Bokenfohr Respondent/Plaintiff _______________________________________________________ Endorsement of the Honourable Madam Justice Nancy F. Dilts _______________________________________________________ Issues [ 1 ] This was an application by the Defendant Mr. Claughton to impute income to Ms. Bokenfohr of $230,000.00, and for an

order for

section 3 and

section 7 child support retroactive to December 2017 and ongoing. This application arises out of the change in the primary care of the children of the marriage. I am satisfied that this change in the principal residence of the children amounts to a material change in circumstances and therefore that an application to vary child support can be considered. [ 2 ] Ms. Bokenfohr’s cross application relates to disclosure by Mr. Claughton of certain information, much of which was addressed in the Order of Justice Bensler dated June 8, 2018. A question of disclosure remains regarding reimbursements received by Mr.

Claughton from his health and dental benefit plan and is addressed below. Facts [ 3 ] The parties were married in 2000 and have two children of the marriage, P. born in 2001 and T.A. born in 2003. The parties separated in 2004 and an interim order of the Court addressing, amongst other things, custody, access and child support, was made in 2005 by Justice Mahoney. At that time, the children were in the primary care of the mother and the father had reasonable access.

As the children got older, the father increased his parenting time. [ 4 ] The order of Justice Mahoney set the guideline income of the mother at $34,000.00 and imputed the guideline income of the father at $180,000.00. In accordance with the Federal Child Support Guidelines (“Guidelines”), the father was ordered to pay $2,229.00 per month in

section 3 child support. [ 5 ] The father has paid

section 3 child support of $2,229.00/month since 2004. [ 6 ] The parties entered into a Separation Agreement in January 2012, which was followed by a consent order of Justice Wilson on February 16, 2012. The father’s guideline income, imputed at $180,000.00, is reflected in both the Separation Agreement and the Consent Order. [ 7 ] The February 2012 Consent Order directs that

section 7 expenses be shared equally and defines

Section 7 expenses as “those expenses as listed in the Federal Child Support Guidelines with the exception of the following: a. Skiing expenses for the Children b. School registration fees for the Children; c. Child care expenses for the Children, subject to any change in circumstances that necessitate childcare.” [ 8 ] The February 2012 Consent Order provides that the parties will maintain medical and dental benefits for the children if available and that the uninsured portion of medical and dental costs are to be treated as a

section 7 expense and shared on a 50/50 basis. Under the Guidelines,

section 7 expenses include health-related expenses that exceed insurance reimbursement by at least $100.00 annually. [ 9 ] In 2016 and into 2017, an issue arose between the parties regarding the payment of horse riding expenses as extraordinary expenses under

section 7. The dispute over

section 7 expenses gave rise to an application by the father to vary the

section 3 and

section 7 child support. [ 10 ] Justice Nixon heard the applications and delivered her decision on July 12, 2017. Transcripts of the decision of Justice Nixon were included in the material before me. Justice Nixon concluded that the father’s income varied substantially from year to year but that there was not sufficient information before her to warrant a change to his guideline income and the

section 3 child support amount.

Section 3 child support payable by the father continued at $2,229.00/month. [ 11 ] Regarding

section 7 expenses, Justice Nixon reiterated that the net amount of dental and medical costs (listed in paragraph 6 of the Order) would continue to be paid equally by the parents. She also ordered that the father pay

section 7 horse riding expenses to a maximum of $850.00 per month and stated that costs for other extracurricular activities, including music lessons and athletic activities (other than riding), were reasonably payable by the mother from the

section 3 child support. [ 12 ] Justice Nixon also determined the amount of arrears owing by the father for

section 7 expenses, taking into account certain offsets, with the result that the father owed

section 7 child support arrears to the mother of $25,383.64. The father has been paying $250.00 per month against those

section 7 arrears since that time. In addition, there was a recent credit against the arrears arising from

section 3 child support paid by the father to the mother after the children moved into his care. There are still significant arrears outstanding. [ 13 ] On December 2, 2017, both children moved to live with their father. With the change in the children’s residence, the father brought an application for interim child support. On June 8, 2018, Justice Bensler ordered that the mother pay

section 3 child support to the father of $1,418.00 per month on a without prejudice basis and ordered that the father provide certain disclosure by July 10, 2018. [ 14 ] As at the hearing date, the mother had not yet paid any child support. The father says he is incurring debt to maintain the children in the absence of any child support. [ 15 ] Underlying these issues are very serious concerns arising from the apparent inability of the parties to co-parent their daughters.

Before me was extensive conflicting evidence as to the impact on the children of various decisions and actions of the parents; those issues will need to be determined through a trial or viva voce hearing. I will provide no further comment on them at this time. The Position of the Parties

[ 16 ] The mother is a lawyer who operates her legal practice through a Professional Corporation. She has produced her personal tax returns as well as her Profession Corporation’s annual unaudited Balance Sheet and Statement of Income and Retained Earnings (“Income Statement”) for 2015, 2016 and 2017. She also produced a redacted copy of her general ledger from her professional corporation for the years 2014, 2015, 2016 and 2017. [ 17 ] The father argues that looking at all of the financial information produced, Ms. Bokenfohr should be imputed an income of $230,000.00 for the purposes of calculating

section 3 child support. In support of his position, he points to the gross revenue from the mother’s Professional Corporation which has remained generally consistent from 2012 to 2017 at approximately $340,000.00. He also argues that Ms. Bokenfohr’s operating expenses are too high and offers an alternate perspective on what he suggests would be reasonable operating costs for her Professional Corporation. [ 18 ] Ms. Bokenfohr says her line 150 income is inflated because it includes $118,000.00 drawn from the Professional Corporation prior to 2013 and recorded as income in 2015 and 2016.

In addition, she says her line 150 income in 2015 and 2016 is inflated because it includes dividends that have been grossed up by a factor of 1.18 for 2015 and 1.17 for 2016. Ultimately, she maintains that her line 150 income does not reflect her actual available income in the reporting years. Evidence [ 19 ] Ms. Bokenfohr filed an Affidavit of Monica Blackmore, the principal of Cedar Creek Accounting Inc., the accounting firm that prepares Ms. Bokenfohr’s personal and corporate tax returns and financial statements. The Affidavit of Ms. Blackmore augments Ms.

Bokenfohr’s own affidavit evidence that her line 150 income in her personal tax returns for 2015 and 2016 is inflated because it includes an accounting for $118,983.00 in shareholder draws that predate 2013, and includes dividends that have been grossed up for tax purposes. The thrust of the evidence is that Ms. Bokenfohr’s income available for child support is not fairly reflected in her line 150 income. [ 20 ] Ms. Blackmore’s affidavit evidence appears to be offered to satisfy the court that the expenses paid by Ms.

Bokenfohr’s Professional Corporation are all legitimate business expenses properly claimed for tax purposes. [ 21 ] I will also note that Ms. Bokenfohr filed an affidavit of Mahmud Khalfan sworn August 30, 2018 who purports to give opinion evidence regarding the Professional Corporation’s financial statements based on a review of the Affidavit of Ms. Blackmore and the financial statements of the Professional Corporation. Mr. Khalfan’s qualifications to give expert evidence were neither tested nor conceded. I have therefore not relied on Mr.

Khalfan’s evidence in reaching my conclusions. 2017 Professional Fee Expense [ 22 ] Between 2016 and 2017, the Income Statement for the Professional Corporation recorded a material increase in Professional Fees expense incurred by the Professional Corporation, increasing from $5,478.00 in 2016 to $41,104.00 in 2017. These Professional Fees constitute the third largest expense of the Professional Corporation for the year. [ 23 ] The evidence at the hearing regarding the 2017 Professional Fee expense was as follows: 1. Ms.

Blackmore’s affidavit of August 30, 2018, containing the following statement: “The expenses incurred by the Corporation are most certainly in line with other similar corporations, and constitute legitimate business expenses, such as the following: . . . d. Professional fees of $41,104 in 2017, comprised of accounting and bookkeeping fees, and fees of other professionals engaged in client matters, including specialist lawyers ”; (emphasis added) Notably, Ms. Blackmore does not depose that she relied on information from others for her evidence. 2. Ms.

Bokenfohr’s June 7, 2018 Affidavit in which she deposes that: “in 2017 I was undergoing some structural readjustments in my law practice and had significant expenses in 2017.” 3. Ms. Bokenfohr’s September 4, 2018 Affidavit (in response to the suggestion by Mr.

Claughton that the Professional Fees included legal fees relating to their family law dispute and therefore not a proper expense), in which she deposes: “THAT, with regards to paragraph 13, the Defendant making the claim that the legal fees that I have claimed on my personal income tax and the legal fees I have claimed on my corporate income tax are the same. This is not true. On my personal income tax return, I have claimed my family law legal fees relating to child support. This is set out at

Schedule 4, line 221 of my T1 tax return for 2017. With regards to my professional corporation, I work with two lawyers in an association arrangement. For insurance purposes, we are considered a law firm. The two lawyers that I am in association with have expertise that I do not. I engage them in client matters. They bill my professional corporation for their legal services and those are recorded as legal fees in the general ledger for my professional corporation. . . .I also consult with other lawyers and these other third party lawyers also invoice my professional corporation for their services .” (emphasis added)

[ 24 ] In addition, in argument on September 21, 2018 and with Ms. Bokenfohr present in the court room, her counsel urged the Court to consider that these Professional Fees were incurred by Ms. Bokenfohr in the context of delivering legal services to her clients. [ 25 ] I find that Ms. Bokenfohr directly and through her professional accountant gave evidence that the $41,104.00 recorded as an expense on the Professional Corporation’s 2017 Income Statement represented fees paid by the Professional Corporation to other lawyers with whom Ms.

Bokenfohr consults in delivering her legal services. [ 26 ] Subsequent to the hearing and apparently in response to information raised by Mr. Claughton to Ms. Bokenfohr through counsel, the Court received additional written submissions from both Ms. Bokenfohr and Mr. Claughton addressing this Professional Fee expense. At the request of the Court, additional affidavits were submitted by both parties through which it is evident that $36,171.07 of the $41,104.00 recorded as Professional Fees in 2017 was money paid by Ms.

Bokenfohr to US attorneys to pursue an action commenced in her own name for recovery of personal and professional information allegedly wrongly taken from her computer hard drive. [ 27 ] Ms. Bokenfohr’s revised evidence in her Affidavit of December 14, 2018 is that the Professional Fees in question relates to US litigation regarding the theft of business and personal data and that her prosecution of the claim is necessary to protect her Professional Corporation’s ability to earn an income. She deposes that the $36,171.07 paid by her from her personal bank account was loaned to her by her Professional Corporation.

Attached to her Affidavit of December 14, 2018 is a letter from Rob Carlson, CA, in which he addresses whether the corporation is entitled to deduct these US legal fees. He concludes that the legal fees are deductible expenses of the Professional Corporation. [ 28 ] Mr. Claughton’s December 14, 2018 Affidavit includes his explanation for how he discovered the existence of the US litigation and includes a copy of the Complaint filed by Ms. Bokenfohr commencing the US action. That Complaint, brought solely in Ms. Bokenfohr’s name, includes the following paragraph prepared on her behalf: Plaintiff [Ms.

Bokenfohr] owns a laptop computer (an Apple “MacBook”) on which she stores a broad range of personal and confidential information (her “Personal Information”). That information includes, but is not limited to, (

i) Plaintiff’s private photo albums. . .;(ii) Plaintiff’s confidential medical records, as well as the confidential medical records of the Plaintiff’s minor children; and (iii) Plaintiff’s Canadian banking, financial and tax records. [ 29 ] The material change in the evidence regarding the Professional Fee expense is concerning, particularly as it reflects on the integrity of the Affidavit of Ms. Blackmore sworn August 30, 2018 and the Affidavits of Ms. Bokenfohr sworn June 7 and September 4, 2018. Moreover, the new evidence regarding the Professional Fee expense was not prompted by Ms.

Bokenfohr’s own realization of her error, but in response to Mr. Claughton’s discovery. Finally, while Ms. Bokenfohr offers explanation that the risk of dissemination of information on her personal computer could injure her reputation as principal of the Professional Corporation, the US litigation is commenced in her name and arises from a personal relationship. Ms. Bokenfohr offers no other information regarding the data she seeks to recover or the relative breakdown between personal and professional material that appears to have been compromised or taken.

Given all of these circumstances, I am satisfied that the expense incurred by Ms. Bokenfohr to prosecute an action in her own name should be included as income for the purposes of calculating child support. Decision [ 30 ] Leaving aside the new issue that has arisen with respect to the $39,171.07 Professional Fee expense in 2017, there does not appear to be any dispute that the majority of the expenses claimed by Ms. Bokenfohr’s Professional Corporation are legitimate business expenses from a financial accounting and tax perspective. That, however, is not the issue before me.

Section 19 of the Guidelines makes it clear that the reasonableness of an expense is not solely governed by whether the deduction is permitted under the Income Tax Act , RSC, 1985, c.1 . [ 31 ] The overall function of the Guidelines is to determine an amount of child support that fully and fairly reflects a parent’s ability to pay keeping in mind the four objectives set out in

section 1: (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (

b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. [ 32 ] The determination of a parent’s guideline income is to be undertaken having reference to sections 16 to 20 of the Guidelines. While the starting point for calculating a parent’s guideline income is line150 of his or her personal tax return, sections 16 to 20 of the Guidelines permits the Court to make a fair determination of the annual income available to the parent for the payment of child support and includes a number of adjustments such as those applicable to dividend income. [ 33 ] Under

section 18 of the Guidelines, the Court may determine a parent’s income to be all or part of the pre-tax income of a corporation in which he or she is a shareholder, director or officer. Under section 18(2), amounts paid to non-arm’s length parties must be added to the corporation’s pre-tax income unless the parent establishes that the payments were reasonable in the circumstances. Under

section 19, the court may impute an income to a parent that it considers appropriate in the circumstances, including the unreasonable deduction of expenses from income. Section 19(2) provides that the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act .

[ 34 ] In the case of Sweezey v Sweezey , 2018 ABQB 131 (“ Sweezey ”), this Court determined that a parent in the position of Ms. Bokenfohr who controls a corporation is obligated to provide a breakdown of any personal benefits received from the corporation and that the failure to do so can result in the Court presuming that certain payments made by the corporation have a personal component. Underlying this obligation is the assumption that a shareholder who controls a corporation may receive some personal benefit through the payment of certain corporate expenses. [ 35 ] The onus is on Ms.

Bokenfohr to address the appropriateness of the deductions claimed, not from the perspective of the CRA as she has attempted to do through her own evidence and that of her accountants, but to address what portion of each category of expense represents a personal benefit or to explain how there is no personal component to that expense: Sweezey para 43 . It is not sufficient to rely on an accountant’s, or Canada Revenue Agency’s, acceptance of a deduction. Nor is it sufficient to provide a copy of the general ledger without more. Ms.

Bokenfohr is to provide sufficient disclosure to allow the Court to draw the necessary conclusions regarding what income she has available for the purpose of paying child support: Sweezey para 47 . In the absence of that disclosure, the Court may estimate the portion of expenses claimed by the Professional Corporation that reasonably reflects the personal benefit received. [ 36 ] This same question arises with respect to the $36,171.07 recorded as Professional Fees on the 2017 Statement of Income and Retained Earnings.

The question is not whether the Professional Corporation can properly claim the amount as an expense, but whether this expense is reasonably deducted for the purpose of calculating Ms. Bokenfohr’s income for child support purposes. [ 37 ] In determining the income available to Ms. Bokenfohr for the purpose of calculating child support, I am influenced by the following facts: 1. Ms. B’s revenue from operations has been materially consistent from 2015 to 2017 in the $330,000.00 to $340,000.00 range. 2. While the expenses in Ms.

Bokenfohr’s Professional Corporation appear to have materially increased in 2017 (from $229,681.00 in 2015 to $207,975.00 in 2016 to $290,139.00 in 2017), $36,171.00 of the expenses in 2017 relate to personal litigation commenced in the US. In calculating her 2017 income, I add back $39,171.00 in legal costs incurred by Ms. Bokenfohr personally to prosecute the US litigation. 3. the expenses in the Professional Corporation include personal use assets and incidentals (phone, vehicle, meals, travel). Absent an explanation from Ms.

Bokenfohr of the personal component associated with those costs, I add back $10,000.00 in each year’s income to represent the personal benefit associated with these expenses. 4. Section 18(2) requires the Court to add to the Professional Corporation’s pre-tax income salaries paid to non-arm’s length recipients. The General Ledger indicates that the Professional Corporation paid $3,500.00 in 2015 to Ms. Bokenfohr’s children and $8,015.00 in 2016 to her children and mother. Specific payroll information is not provided for 2017. [ 38 ] In calculating Ms.

Bokenfohr’s 2015 guideline income, I adjust her line 150 income to deduct the shareholder deficit repayment (of approx. $18,835.00) and to adjust down the dividend payment to reflect the cash value (by $7,270.16). I add in the salaries paid to non-arm’s length parties and the personal benefit component of certain expenses ($10,000.00) to result in an income of $201,891.00. [ 39 ] For her 2016 guideline income, I adjust her line 150 income to deduct the shareholder deficit repayment (of approx. $40,050.00) and to adjust down the dividend payment to reflect the cash value (by approx. $18,294.00).

I add in the salaries paid to non- arm’s length parties and the personal benefit component of certain expenses to result in an income of $155,151.00. [ 40 ] For her 2017 guideline income, I add in the personal benefit component of certain expenses plus the legal costs paid to US attorneys to result in an income of $146,209.95. [ 41 ] The average of these 3 years results in income of $167,750.65. Given the relatively consistent revenue generated by her Professional Corporation over the last 3 years, I am satisfied that Ms. Bokenfohr’s earning potential is unchanged.

I therefore impute an income of $167,750.00 to Ms. Bokenfohr for the purposes of calculating

section 3 child support. [ 42 ] Retroactive to December 1, 2017, Ms. Bokenfohr shall pay

section 3 child support to Mr. Claughton in the amount of $2,367.00 per month for so long as the children reside with him and remain children of the marriage.

Section 7 Child Support [ 43 ] Both parties advise that the daughter T.A. is not currently engaged in riding. In the event that she resumes the sport with the support of both of her parents, Mr. Claughton shall be responsible for paying for the horse riding expenses in the first instance and shall provide Ms. Bokenfohr a monthly accounting for those expenses. Ms. Bokenfohr shall reimburse Mr. Claughton 50% of the horse riding expenses to a maximum of $850.00 per month. Any horse riding expenses exceeding $1,700.00 per month shall be paid by Mr.

Claughton. [ 44 ] With respect to other expenses, the girls appear to be involved in rugby, art, and spin classes, climbing and guitar. Detailed costs for those activities have not been provided to the Court or to Ms. Bokenfohr. Mr. Claughton proposes that the

section 7 extraordinary expenses are likely to be $12,000.00 per year for the two girls. He suggests that Ms. Bokenfohr pay $500.00 per month towards those costs, without any accounting of actual expenses.

[ 45 ] For two reasons, I disagree with Mr. Claughton’s position. First, in her decision of July 12, 2017, Justice Nixon expressed the view that the costs for extracurricular activities, including music lessons and athletic expenses other than riding expenses, were expenses reasonably paid by the mother as the recipient of child support. Given the nature of these activities and the amount of

section 3 child support Ms. Bokenfohr is ordered to pay, in my view, without more information, it remains reasonable to expect the parent who receives child support to pay for the cost of these extracurricular activities. [ 46 ] Second, given the breakdown in the relationship between these two parents and lack of trust, ordering the payment of a flat amount of

section 7 expenses per month is not appropriate. [ 47 ] The interests of the children appear to be changing and the cost of their activities is unknown. For those reasons, in the event that Mr. Claughton can document that expenses for extraordinary extracurricular activities for both girls together exceed $4,000.00 in a calendar year, he is entitled to reimbursement of 50% of the expenses that exceeded $4,000.00. [ 48 ] I note that Ms.

Bokenfohr’s evidence is that notwithstanding the change in residence of the children, since January 2018 to present she has continued to pay for the children’s cell phones, school fees and other costs. I am also mindful that Mr. Claughton has had little other contribution to the cost of raising their daughters since they changed residence. There shall be no adjustment for these costs from December 3, 2017 to August 31, 2018. From September 1, 2018, being the start of the new school year, the father shall be responsible to pay school fees and cell phone costs.

In the event that the parents choose to keep the children on Ms. Bokenfohr’s cell phone plan, the mother shall provide a monthly accounting to Mr. Claughton of those expenses and shall be entitled to reimbursement of those amounts on a monthly basis. Health and Dental Insurance Benefits [ 49 ] Ms. Bokenfohr has raised concerns whether both parties have received the benefit of insurance reimbursement for health and dental expenses. Her concern is that she paid in full for the health and dental expenses and Mr. Claughton retained amounts received from the insurer. Ms.

Bokenfohr seeks both her share of the reimbursement and Mr. Claughton’s contribution to the uninsured portion of the expense. Paragraph 6 of the Order of Justice Nixon contemplates that the parties will each pay 50% of the cost of health and dental expenses for the children net of insurance benefits received. [ 50 ] Mr. Claughton is directed to provide to Ms.

Bokenfohr an accounting of the health expenses (as listed in paragraph 6 of the Order of Justice Nixon) that have been submitted to and paid by his insurance benefit plan/plans, including a statement from the insurer/insurers as to benefits paid for each child. That accounting shall extend back no less than 3 years. Mr. Claughton is directed to produce this accounting within 90 days. If the parties are unable to agree on any adjustments resulting from the production of this information, they are at liberty to submit their positions to me in writing for further determination.

Arrears [ 51 ] With respect to outstanding arrears owed by Mr. Claughton to Ms. Bokenfohr, those arrears shall be off set against the

section 3 child support to be paid by Ms. Bokenfohr to Mr. Claughton from December 2017 forward until such time as the arrears have been extinguished. By my calculation, the arrears will have been fully paid by the date of this decision. The mother’s obligation to pay

section 3 child support starts immediately following the satisfaction of the arrears. Education Fund and GSA [ 52 ] The Separation Agreement of the Parties included agreement regarding funding of the children’s post-secondary education. The Parties agreed that the obligation regarding funding of post-secondary education would be captured in a court order as a

section 7 child support order, with the agreement that the order could be enforceable through the courts using three mechanisms set out in paragraph 51 of the Separation Agreement. However, the education fund obligation was not reflected in the Order of Justice Wilson. [ 53 ] The order arising from this application shall include a provision that each party shall have available for the post-secondary education of the children the sum of $100,000.00 for a total of $200,000.00; $100,000.00 for each child. These monies shall be used for the children’s post-secondary education.

Should the children be residing at the home of one of the parents, the education fund shall be used for tuition and books. Should the child be residing outside of the home of the parents, the education fund shall be used for tuition, books and reasonable living expenses. The parties agree that the post-secondary educational expenses will be shared on a 50/50 basis and paid for as follows:

i) Firstly, from the educational fund, up to $100,000.00 per child. ii) Secondly, the child is expected to make a reasonable contribution to her own education. iii) Thirdly, directly from the Husband and the Wife on a 50/50 basis. [ 54 ] During these proceedings, I was advised that Ms. Bokenfohr has registered the general security agreement that was executed by Mr. Claughton pursuant to the Separation Agreement.

Section 51(i(

c) of the Separation Agreement provides that the parties are entitled to seek the authority of the Court to enforce the education fund obligation, including the registration of the general security agreement. A party is not authorized to initiate enforcement without an order of the Court. [ 55 ] If Ms. Bokenfohr has registered the general security agreement executed by Mr. Claughton, she has done so without first seeking the authority of the court. The general security agreement is improperly registered and should be removed immediately.

Heard on the 21 st day of September, 2018; Additional written submissions received on the 5 th , 10 th , 11 th and 15 th day of October, and the 8 th of November, 2018; Additional Affidavit evidence received on the 14 th of December, 2018 from the Applicant and Respondent. Dated at the City of Calgary, Alberta this 21 th day of December, 2018 . Nancy F. Dilts J.C.Q.B.A. Appearances: Elizabeth Stock for the Applicant/Defendant Robert A. Knight for the Respondent/Plaintiff Additional Affidavit evidence filed by William T. Aaron, QC for the Applicant/Plaintiff