McComiskey v McComiskey, 2018 ABQB 956

Court of Queen’s Bench of Alberta Citation: McComiskey v McComiskey, 2018 ABQB 956 Date: 20181122 Docket: 4801 157792 Registry: Calgary Between: Graham Keith McComiskey Applicant - and - Jacintha Beth McComiskey Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [ 1 ] The Applicant says circumstances have changed, warranting a variation of child support. He and the Respondent share parenting equally. They pay child support on a simple “set-off” basis.

The Respondent decided to pursue additional education, foregoing an income. Therefore, the Applicant pays 100% of the Guidelines table amount commensurate with his income, though he bears the costs of parenting equally. He asks the Court to rule that the Respondent is intentionally unemployed, to impute to her an income, and to adjust set-off child support accordingly. [ 2 ] It is not that simple. As I explain in my reasons that follow, if there has been a change in circumstances child support in a shared parenting regime must be determined in accordance with

section 9 of the Guidelines . Any

section 19 imputation of income is an option for child support determined under

section 3, not

section 9.

[ 3 ] I conclude that there has been a change in circumstances and, after considering the factors mandated by

section 9, I reduce the Applicant’s child support payable. Facts [ 4 ] The Applicant, Mr McComiskey (“ Graham ” or the “ Father ”), and the Respondent, Jacintha McComiskey (now Jacintha Cameron) (“ Jacintha ” or the “ Mother ”) married in 2005 and separated in 2013.

They have 3 girls, aged 12, 10 and 9 at the time of hearing this application. [ 5 ] In 2014, this Court ordered that their girls spend an equal amount of time with each parent, residing with them on a week-on and week-off basis. [ 6 ] The parents did not change that shared parenting arrangement when, in December 2015, they entered into a separation agreement (the “ Separation Agreement ”). The parties’ divorce judgment continued that arrangement. It remains their arrangement to this day. [ 7 ] Before they met, Jacintha had completed a year and a half at a university.

In June 2014 Jacintha planned “on doing two years of undergraduate course work and two years working toward an Education Degree.” The parties structured the terms of their Separation Agreement to enable Jacintha to complete a university education degree, expressly expecting it in September 2018. The recitals state: Graham is employed as a counsellor and teacher with the Calgary Catholic School District. Jacintha is pursuing post-secondary studies to qualify as a teacher, with an expected completion date of September 2018. [ 8 ] Both parties acknowledged that they were already “economically self-sufficient”.

Jacintha said she: 15.1.1 acknowledges that this Agreement addresses any economic advantage or disadvantage experienced by her due to the marriage or its breakdown; 15.1.2 agrees that they have fairly apportioned the financial consequences of the care of the Children over and above the obligation apportioned between the spouses pursuant to

section 15.1 of the Divorce Act ; 15.1.3 acknowledges that this Agreement relieves any economic hardship experienced by her arising from the breakdown of the marriage; and 15.1.4 acknowledges that she is economically self-sufficient. [ 9 ] The parties agreed that Graham would pay spousal support to Jacintha until January 1, 2019.

This timing appears tied to their understanding that Jacintha would not be earning an income of significance while she completed her university studies in education some months sooner. [ 10 ] The parties further agreed that “child support will be calculated as the set-off between the Guideline amounts owing by each” according to their respective incomes. They refer there to the Federal Child Support Guidelines tables ( SOR/97-175 ) (the “ Guidelines ”).

The higher income earner pays to the lower income earner the difference between the amounts stipulated in the Guidelines that each would pay the other, according to their own incomes, if the children were within the primary care and control of the other (the “ Set-off ” calculation). [ 11 ] The parties further agreed to exchange standard income information annually. [ 12 ] Jacintha’s income has been and continues to be at or close to zero, except for the amount she receives as spousal support ($1,000 per month).

Just as the parties had contemplated, Jacintha has been a student without significant employment income since at least the time of entering into their Separation Agreement. Therefore, since then Graham has paid to Jacintha the full amount of child support according to his income, as he would have been required to do if she bore the primary burden of all such costs as a parent having primary care and control of the girls.

But that is what he agreed to do until she received her education degree around September 2018, no doubt for valuable consideration important to him. [ 13 ] After awhile, Graham encountered difficulty receiving from Jacintha information relevant to the calculations under their Separation Agreement and to the status of her education and expected date of return to the workforce. [ 14 ] Graham applied to the Court to compel the information from her.

Only after the Court ordered it did Jacintha reveal that she had slowed the pace of her studies, changed her major, modified her career plans and pushed back by at least 3 years the date at which she would begin earning an income (the “ Changes ”), from the plans underpinning their Separation Agreement. [ 15 ] Graham discovered that quite some time ago Jacintha changed her original plan, which was to earn an education degree by approximately September 2018 and look for work as a teacher shortly thereafter.

Jacintha switched from a direct path to an education degree to first obtaining a degree in psychology and then the education degree or, maybe, graduate degrees in psychology instead. Jacintha says that with her completed psychology degree, she plans to apply for a 2-year education program to become a teacher, plus apply for “a couple counseling and psychology programs”. Her revised goal is to possibly establish herself as a counselor, or therapist she says at one place in her submissions, after completing graduate studies. [ 16 ] Jacintha said her decision was best for her long term.

She said (underlining added): With the assistance of an academic strategist, academic advisor, and with career advising, it is determined the best education and career plan for me is not the accelerated version, but a 4 year undergraduate psychology degree. This is the best route to success in my career

and is the best decision in the long run . I have not yet applied for an education degree because the 4 year undergraduate psychology degree must be completed before applications are considered. I have been a full-time psychology university student for 2016, 2017 and 2018 and have completed spring and summer university courses in addition to this. [ 17 ] The date of her entry into the workforce is now indeterminate. If everything goes according to her new plan, she could begin earning an income as early as three years later than they expected and was the premise for their Separation Agreement.

This revised date assumes the timely availability of the remaining courses she requires for her undergraduate degree, her successful completion of that program within her (revised) forecast timeframe, her gaining immediate admission into the next degree program, be it education or graduate studies in psychology, and the successful and efficient completion of those further studies. [ 18 ] If those target dates slip, she said, such as if she is not immediately accepted into any of her programs of choice, she plans “to take more courses to continue training, continue volunteering to gain career experience, and apply again for education and counseling programs.” [ 19 ] Jacintha says that before the start of the current academic year, that is, before September 1, 2018, she required 8 more courses for her degree in psychology.

Her university forecast her as able to complete that degree, all other things being equal, by the end of April 2019. [ 20 ] Her lawyer explains the delayed date of possible graduation from the date expected in the Separation Agreement as follows: Due to challenges of being a single mother with three children combined with the number of hours that she would need to dedicate to a full-time course load, [Jacintha] has not always taken 5 courses per semester.

During the first two years after the separation, the parties’ youngest child was not at school so [Jacintha] was parenting during the day. [ 21 ] This is misleading. The first two years after separation were the two years before the parties entered into the Separation Agreement.

Therefore, Jacintha knew about her having stayed home with the youngest child before she forecast she would receive her degree in September 2018, whereas this comment implies that since signing the Separation Agreement and forecasting receipt of the degree she unexpectedly faced an added challenge of staying at home to raise the youngest, while taking courses, explaining the delay in completing her first degree. [ 22 ] Regarding the time that has passed since the signing of the Separation Agreement, Graham as an equal-time ‘single’ parent bore exactly the same degree of parental demands and responsibility as Jacintha.

She bore the load only half the time. [ 23 ] Graham says making his support payments has caused him considerable financial strain. 51% of his after tax income goes to combined spousal and

section 3 child support, before paying his

section 7 expenses and the added cost of the girls with him half the time. He teaches summer school every other year to supplement his income and help try to manage. He still has more expenses than income each month. [ 24 ] He rents a two bedroom apartment. He says that when the 3 girls come to be with him, he sleeps in the living room. Occasionally he has had to access the food bank to be able to eat. [ 25 ] Jacintha disputes Graham’s description of a dire financial state. She disputes his evidence of sleeping on the sofa when the girls are with him, saying that her girls tell her otherwise.

She says his child care costs could have been avoided if he accepted her offers of driving the girls and caring for them for free during his weeks. She says his $480 per month on babysitters is not in their best interests and is an unnecessary expense. Jacintha suggests Graham could have made better decisions financially; he could have selected a less expensive neighbourhood in which to rent. She says he could save money by moving in with his girlfriend. [ 26 ] Jacintha says she has been very generous with Graham financially, saving him thousands of dollars. She says she was originally to pay 20% of

section 7 expenses, initiated it increasing to 30% in the Divorce Judgment and in fact has paid 50% of some and 100% of other

section 7 expenses. She says she paid 100% of the girls’ dance costs because, during a parent coordination meeting he told her he refused to pay for it at all. She chose to pay it all so the girls could stay in dance in the 2015/16 year. Other years she says she paid 50%. She also says she paid 50% or more of all prescription costs since 2014. She says she paid 100% of the cost of sessions involving the whole family with a Dr Mendelson in 2014. She says she thought they were helpful and in the girls’ best interests. So, like the dance costs, since she wanted them to continue she paid the full amount.

She says Graham “was expected to pay 100% of” sessions with the parenting coordinator but refused to attend unless Jacintha paid half, so she says she did. Graham disputes these characterizations, saying he paid everything he was required to and for as long as he was required to. [ 27 ] Graham’s budget does not appear unreasonable. His identifiable costs associated with 50% time with the girls total $721.42 per month. Some of his monthly variable costs (for example utilities, tenant insurance, food, cleaning supplies, etc.) are higher because of the additional 3 people with him half of each month.

Including an allocable share of those costs, I find, bring his total incremental cost for the shared parenting to $950 per month. [ 28 ] Jacintha gave evidence of her primary expenses but not a complete budget. I find her incremental costs from the girls to be in the range of Graham’s incremental costs, but probably lower. Their lifestyles are similar, but she has chosen to forego some expenses where she can do it herself, such as transporting the girls to school or staying with them herself before and after school.

Like Graham, she also rents her accommodation. [ 29 ] Jacintha has accumulated student loan debt in pursuing her education. As at early September, 2018, she owed $25,560 provincially and another $32,035 federally. Within 6 months of her ceasing full-time schooling, she must begin repaying these loans. [ 30 ] Entry level teachers in the Calgary separate school system earn $59,504 per year. A minimum wage earner in Alberta receives $26,112 per year. [ 31 ] Neither party has any asset of substance to their name. At the time of their Separation Agreement less than 3 years ago, their

assets were few. They agreed to split equally the RSP that was in Graham’s name, of less than $600, and the relatively nominal amount from their net equity in their home. An initial portion of that was paid to each of them separately from the rest, likely to defray their respective legal bills immediately. Graham transferred to Jacintha half of his teacher’s pension credits that accrued during their time together; it is inaccessible as it is in a locked in retirement account.

Jacintha has leaned on family from time to time, Graham suggests, which has avoided some of her expenses. [ 32 ] Each party characterizes the other as having unilaterally deviated from their legal obligations. Quite apart from any relevance to this Application of such deviations, if true, they militate strongly against the advisability of shared parenting, since open and constructive communication, parental maturity and child-focused cooperation are strong determiners of success in shared parenting. But a move off shared parenting is not before me.

Positions of the Parties [ 33 ] Graham says the Changes constitute a “material change in circumstances”. He says further that the Changes, along with what he describes as Jacintha taking “the scenic route” through her education, demonstrate an intention on her part to avoid her child support obligations.

He says that this demonstrated intention constitutes a change in income from the income underpinning the Separation Agreement, which also constitutes a material change in circumstances. [ 34 ] Graham therefore asks the court to vary his child support obligations by reducing them commensurate to a notional Set-off calculation as if the mother had lived up to the original plans and earned a teacher’s income. That works out to $857 per month, rather than his current $1963 per month, in

section 3 child support. [ 35 ] In the alternative, he asks that the child support obligation based on a Set-off calculation reflecting the amount that she could now be earning at a minimum-wage job. That works out to $1444 per month as the net Set-off amount, rather than his current $1963 per month. [ 36 ] Jacintha says the Court should deny Graham’s Application. She says that circumstances have not changed. She says that there was never any agreement that she be employed by September 2018, only an observation in the Separation Agreement recitals of an expected completion of an education degree.

She says that expectation is relevant only to spousal support, which terminates in January 2019 anyway. [ 37 ] Jacintha says further that Graham has not proven any intention on her part to avoid child support. She says that her revised educational plans will help their children over the longer term. She says that the Changes do not warrant any variation to the Set-off child support. [ 38 ] Jacintha says that the imminent loss of her spousal support will already adversely impact the girls, particularly the standard of living they now have within her home.

She says if the child support she receives is reduced, on top of already losing her spousal support, “I do not think it will be possible for me to afford to remain in the current home the children and I have. I believe it is in the children’s best interests that we remain in this home.” [ 39 ] She urges the Court to deny the application. She says it would not be fair to reduce her child support as Graham has saved thousands of dollars due to her overpayments on

section 7 expenses and her years early in the marriage of supporting and sacrificing for his educational plans. [ 40 ] Jacintha says that, in the alternative, if the Court imputes an income to her it should be $12,000 for 2018 (which was her actual income by way of her spousal support) and zero for 2019 “in order to allow her to take summer courses and finish her degree sooner” or, failing that, $8,000 which is what she anticipates being able to earn if she works in the summer of 2019. [ 41 ] Jacintha proposes keeping the child support where it is and increasing her parenting time.

She says it would reduce Graham’s financial burden and be in the girls’ best interests. [ 42 ] Jacintha also wants an order that would require the parties to access a professional that would submit a voice of the child report to the Court, if ever one of the girls wishes or ever a parent wishes one of the girls be heard.

She intimates that without that the Court can never learn what is truly happening. [ 43 ] Jacintha seeks changes in their parenting regime during the school year and also during the summer break. [ 44 ] Jacintha also seeks an order requiring Graham to give her at least 30 days’ notice for any future applications, which should include the required information he relies upon. Analysis Scope of the Application [ 45 ] The application before the Court is for a variation of child support. Other issues arise from the added requests Jacintha voiced in her affidavits (see paragraphs 41 to 44 above).

They are not properly before the Court for decision; they were not commenced or pursued in a manner that has accorded to Graham procedural fairness. In Wagner v Wagner , 2014 ABCA 428 at paras 27 and 38 , the Court said: Normally, a court should not give relief that a party has not [...] expressly sought in the notice of application or pleading. Natural justice

requires that the opposing party know what is being sought, and why. Usually that information is only available from the notice of application, although that is not always so. The opposing party may know what relief is sought, and why, by some other means and in enough time to marshal his or her arguments and evidence: DWH v DJR , 2013 ABCA 240 at paras 41-44 , 556 AR 81 . This is not to suggest that ferreting through affidavits for the issues to be decided is ideal.

Relief sought should be stated with precision in a notice of application, and not left to be divined from other documents filed. […] a judge should not take jurisdiction to grant an order that has not been sought by either party with a properly filed application and supported by evidence: Cold Lake First Nations v Alberta (Tourism, Parks and Recreation) , 2012 ABCA 36 ... at paras 35-41 .... [ 46 ] Accordingly, Jacintha’s additional requests summarized in paragraphs 41 to 44 above are not decided within this application.

Change in circumstances ? [ 47 ] Absent a “change in circumstances”, the Court cannot vary child support. Subsection 17(4) of the Divorce Act , RSC 1985, c 3 (2nd Supp), states: ( 4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [ 48 ] Subsection 14 of the Guidelines identifies specific situations that will constitute such a change.

There it states: 14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997,.... [ 49 ] The amount of child support payable in this case included two determinations in accordance with the applicable tables. The parties agreed to set-off those numbers and the difference be paid by one to the other. Therefore

section 14(

a) applies. [ 50 ] I find the Changes, had they been known at the time the parties entered into the Separation Agreement, would have resulted in a different Separation Agreement and, in turn, a different child support order. Jacintha’s amount payable in accordance with the applicable table (based on their expected teacher’s salary commencing around or sometime after September 2018) would have been much higher than the amount payable in accordance with the applicable table under her changed extended student or else volunteer scenario.

The effect under the Set-off calculation in this new circumstance is a far higher child support obligation for Graham than contemplated in the Separation Agreement. [ 51 ]

Section 14(

a) is satisfied if there is “ any change … that would result in a different child support order” (underlining added). Therefore, I find there to be a change in circumstances that meets the definition in

section 14(a). [ 52 ] If I am incorrect that

section 14(

a) applies here, it is of no consequence since I reach the same conclusion under

section 14(b).

Section 14(

b) is satisfied whenever there is “ any change in the condition, means, needs or other circumstances of either spouse”. I consider the Changes to satisfy this type of change in circumstances also. Among other things, Jacintha’s employment income will be materially off the level that underpinned their Separation Agreement. Further, the Changes are not mere short-term changes but have long-lasting effect. See: Pritchard v Christensson, 2018 ABCA 302 at para 4 .

Jacintha’s Changes at least double the period of time before the girls will benefit from financial contributions of both parents, of the resulting improved standard of living overall, in both parents’ homes, once their Mother starts contributing to their support. [ 53 ] Jacintha argues that the Changes relate only to spousal support and that they should have no effect on the determination of child support. [ 54 ] I disagree. She is correct that her spousal support ends imminently.

It appears that was timed to coincide with her expected graduation (plus an additional couple of months, perhaps as a time cushion in case employment as a full time teacher in Calgary is delayed, or just to buffer the transition off of spousal support). But that does not mean the Changes are relevant only to spousal support. The Changes also affect the determination of child support in a shared parenting arrangement. They also affect the proportions of sharing

section 7 expenses. They even affect what extracurricular expenses and activities can be afforded. [ 55 ] I consider the change in circumstances here to be a “material” change of circumstances. Jacintha’s Changes are not micro changes, as would be things like changing educational institutions or finishing a bit sooner or a bit later than forecast.

Jacintha’s Changes almost double the time before the parties reach the new earliest date that she might first begin to bear financial responsibility for her children, before the new earliest date that she will first begin to contribute financially to their needs (even though she agreed back in 2015 that she was already economically self-sufficient), and before the girls might first receive their entitlement from their Mother. As I explained above, since the parties share parenting and agreed to determine their child support obligations solely on a

section 9(

a) set-off calculation, by default of income earned by Jacintha and absent any variation order, Graham must pay disproportionately for almost double the time. This is not an inconsequential change of circumstances. Had it been known at the time of the Separation Agreement, I find, a different set of terms about at least child support, and maybe more, would have resulted.

Intentional Under-employment & a New Set-off Calculation? [ 56 ] The Applicant’s requested variation in child support proposes that the Court conduct a new Set-off calculation after imputing an income to Jacintha because, he says, she is intentionally under-employed. Section 19(1) (

a) of the Guidelines says: 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 57 ] I decline to follow the approach proposed by the Applicant. Child support in a shared parenting regime must be determined in accordance with

section 9 of the Guidelines . It states (underlining added): 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account: (

a) the amounts set out in the applicable tables for each of the spouses; (

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

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 58 ] The Supreme Court of Canada in Contino v Leonelli-Contino , 2005 SCC 63 , said at para 3 : These shared custodial arrangements required the application of an entirely different formula, one that is not designed with the same guiding principles. Guidelines amounts applicable to the former non-custodial parent or to the highest income earner in the case of a first application cannot therefore be considered to be presumptively applicable.

Shared custody arrangements are not a simple variation of the general regime, they constitute by themselves a complete system. [ 59 ] The Court repeated this at paras 23 – 24: As earlier noted, s. 9 however expressly provides for a particular regime in cases of shared custody. This implies a departure from the payor/recipient model that comes under s. 3. [...] [...] the wording of s. 9 is imperative. The court “must” determine the amount of child support in accordance with the three listed factors once the 40 percent threshold is met. There is no discretion as to when the

section is to be applied: discretion exists only in relation to the quantification of child support.... [ 60 ] Imputing income under

section 19 is not a part of this mandatory alternate “complete” system to determining child support for shared parenting. The Court in Contino made this even clearer with respect to

section 9 (a) (pursuant to which set-off calculations are made) when saying, at paragraph 26: Furthermore, s. 9(

a) refers only to the Table amounts, not the Guidelines amounts, thus precluding consideration under that paragraph of all of the discretionary factors that are allowed under the Guidelines for departure from the Table amounts... [ 61 ] In any event, even if I were to impute an income to Jacintha under

section 19, it is not open to me to merely plug that into the parties’ Set-off formula and calculate the resulting child support payable by the higher income earner to the lower. That was the approach they agreed to in their Separation Agreement, but now that circumstances have changed and the issue is before the Court for determination, I “must” determine it in accordance with the “complete system” in

section 9. By extension, then, even if I were to impute an income to Jacintha under

section 19, I still also have to consider the broader aspects of 9(a), as well as the factors in 9(

b) and 9(c), such that any table amount for imputed income would not be dispositive. The Court in Contino , at para 26 , said: [...] s. 9(

a) is relatively narrow in its scope and cannot form the exclusive basis for an award of suppor t under s. 9 unless paras. (

b) and (

c) are taken into consideration... [ 62 ] I leave open the question of whether the parties could ask the Court to only decide whether there has been a change of circumstances and, if so, whether one of them is intentionally under-employed, and then leave the ramifications of those decisions to the parties, perhaps to be addressed in accordance with their Separation Agreement. That is not this case. The parties did not indicate having made any such agreement. Jacintha in fact objected to the haste she felt Graham has pressed it on for hearing. Further, Graham asks the Court to rule on the resulting child support under their Set-off approach. [ 63 ] That is not to say that the section 19(1) (

a) analysis and the parties’ earlier choice to use the Set-off approach alone are irrelevant. Both are relevant considerations, just within the structure of the fuller consideration of the

section 9 factors. [ 64 ] Given the mandatory wording of

section 9, I do not have the discretion to ignore its fuller analysis by setting child support based on only the Set-off calculation the parties included in their Separation Agreement. I am required to take into account all of the considerations in

section 9. [ 65 ] I therefore now address the request of Graham for a reduction in child support in accordance with the mandated process, weighing the three considerations in

section 9 of the Guidelines . No single factor of the three prevails over the others: Contino at para 27 . The Court went on to say in that paragraph: Consideration should be given to the overall situation of shared custody and the costs related to the arrangement while paying attention

to the needs, resources and situation of parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair level of child support. And the emphasis should be on flexibility and fairness: Contino at para 39 . This could result in no change to existing support levels.

At paragraph 30 in Contino the Court said: [...] it is quite possible that after a careful review of all of the factors in s. 9, a trial judge will come to the conclusion that the Guidelines amount will remain the proper amount of child support.... 9(a): T he amounts set out in the applicable tables for each of the spouses [ 66 ] As I alluded to above, the 9(

a) consideration is not to be conflated with a set-off calculation. Nevertheless, in practice it has become associated with just that. [ 67 ] A set-off calculation can be a useful starting point, but it is broader than that. First, not all set-off calculations are alike. The Court in Contino , at para 43 , identified three different kinds of set-off calculations that are commonly utilized.

Second, the degree of adherence to the result of any set-off calculation will be a function of a range of fact-specific considerations, such as “whether a rigid application of the set-off … entail[s], in the case of a variation order, a drastic change in support, dubbed the ‘cliff effect’” (para 40), whether “the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed” (para 40), and whether “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another” (at para 51). [ 68 ] Graham’s amount that would be payable if he paid child support under

section 3, from the applicable table, would be $1963 per month. [ 69 ] Jacintha’s amount that would be payable if she paid child support under

section 3, from the applicable table, would be $0 per month as a student. If she became employed as a first year teacher her amount payable would have been $1106 per month. If she became employed instead at minimum wage, her amount payable would be $519 per month. If I used either of these two amounts alone in their Set-off calculation, in combination with Jacintha’s loss of $1000 per month in spousal support after January 2019, Jacintha would encounter the drastic drop off cliff effect.

This is all of her own doing, as I explain in more detail below, but it does not change the fact that the children will suffer the cliff effect if I accede to all Graham’s wishes and Jacintha carries on with her changed educational choices. [ 70 ] I consider Jacintha’s Changes, her expansion of educational and career options along with her elongated completion plan to not be reasonable. I consider her Changes to not be needed, in any sense of the word, but rather merely wanted.

She placed her personal preferences, particularly as to timing, over the immediate financial needs of her girls, reckless to the fact of it continuing to saddle Graham with the entire financial burden, contrary to his reasonable expectations in agreeing to the Separation Agreement. Her unilateral approach in making the Changes lacked the requisite good faith in performing her obligations under the Separation Agreement. [ 71 ] Jacintha’s explanation for her decisions were all about herself (see the underlined portions of para 16 above). She speaks only of “my career”, “for me” and the “long run”.

The girls need her financial contribution in the short run; in the long run they will be launched on their own into adulthood. “Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children”: Tillmans v Tillmans , 2014 ONSC 6773 , at para 81 . [ 72 ] Jacintha described extensive consultations with: “an academic strategist, academic advisor, and with career advising”.

She does not mention consulting anyone who might advise her about any effect on the best interests of the girls from such changes, let alone consulting Graham, the person she led to believe would see her credentialed to become a teacher by September 2018. [ 73 ] Jacintha has the ability now to contribute to the needs of the children of the marriage (or, on a strained reading of the Separation Agreement, at the very latest after January 1, 2019). That is what she said in representing to be “economically self-sufficient” in the Separation Agreement (see paragraph 8 above).

In reaching this conclusion, I am mindful of the meaning at law of “self- sufficiency” in the Divorce Act .

The Court said, in the context of spousal support in Heimsoth v Heimsoth , 2009 ABCA 129 , at paragraphs 29 and 30 : We agree with the following definition of self-sufficiency approved by Prowse J.A . in McEachern [2006 BCCA 508]: “that is, capable of supporting herself at a level in keeping with the standard of living she enjoyed during the marriage without the aid of financial support.” [...] self-sufficiency does not mean subsistence level, but bears some relation to the ability to support herself in keeping with the standard of living she had enjoyed during the marriage.

The learned trial judge erred in failing to address this issue. [ 74 ] I believe that is not the sense in which the parties used the phrase “economically self-sufficient” in the Separation Agreement. That would not accord with their reality at the time or their decision to have Graham provide a degree of spousal support until Jacintha could complete sufficient education to be able to gain comparable employment to Graham.

Rather, I find the parties used the phrase to acknowledge that Jacintha was already employable to a level that would enable her to provide for herself and her girls even if there was no contribution from Graham. It would not be the same standard of living they had enjoyed during the last days of the marriage (perhaps more like the first days), but it would be sustainable. [ 75 ] Jacintha also justified her decision to make the Changes because of all she says she did early in their marriage in supporting and sacrificing for Graham’s educational plans. But that was addressed by the Separation Agreement.

It cannot be revived again as a reason for future relief after having it merged into their complex agreement of trade-offs and compromises. It is not a valid rationale to, in effect, force Graham to continue funding her changed and more gradual education and career plans. More importantly, it is not a valid rationale to deny her girls the benefit of her financial contribution in accordance with her current capability.

[ 76 ] Jacintha may pursue her more relaxed

schedule of education, her volunteer activities and her broadened array of career options, after she has fulfilled her paramount duty to her children of contributing to their financial needs in accordance with her ability. Both parents “have an absolute responsibility to support their children to the extent they are able to do so”: Tillmans , at para 46 .

There is a duty on parents to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependents: Tillmans , at paras 54 and 62 . [ 77 ] I characterized above Jacintha’s Changes as “reckless”.

In my view, (and I address this in the event I am incorrect in not simply deciding this application as Graham has asked by, first, deciding if Jacintha has been intentionally under-employed, if so imputing to her an income for Guidelines purposes, and then calculating the new Set-off number) such recklessness does satisfy the bad faith form of intention the Alberta Court of Appeal has interpreted section 19(1) (

a) as requiring.

In Hunt v Smolis-Hunt , 2001 ABCA 229 at paras 39-42 , the Court indicated the evidence must prove “a deliberate course of conduct for the purpose of evading child support” and that there must be “either proof of a specific intention to undermine or avoid support obligations or circumstances which permit the court to infer that the intention … is to undermine or avoid his or her support obligations”. [ 78 ] I find Jacintha specifically intended by the Changes in order to stretch out as long as possible the period of time in which Graham would have to bear the entire financial responsibility for the girls.

Jacintha specifically intended to evade her child support obligation as long as possible. This finding is confirmed by my inference from Jacintha’s intention to fill in any gaps in her elongated plan with volunteer roles, not income generating employment. [ 79 ] Also, as I indicated above, I do not find the Changes to fall within the educational exception in s 19(1)(a), that is, to be “ required by the … the reasonable educational … needs of the spouse” (italics added). In Hunt , at para 50 , the Court observed that “needs” does not require compulsion or necessity.

Nevertheless, I find the Changes were not reasonable in the context; they were not about Jacintha’s educational goals in a timely way but were driven entirely by her preferences as if time to her goal was not a concern. Her children need now, and are entitled to now, her financial contribution. Jacintha’s original achievable commitment in the Separation Agreement was to pursue her education degree to conclusion by September 2018. The Changes were not in any sense of the word ‘necessary’ to achieve that objective and, in fact, fatally undermined her achieving that objective.

They also fatally undermined her meeting her support obligations. [ 80 ] Finally, I find the Changes were unreasonable since they rendered her plans no longer “clear and realistic for re-entering the workforce”: Tillmans , at paras 71-2 .

Now they are indeterminate and subject to far greater uncertainty and many more contingencies outside her control. [ 81 ] I find Jacintha’s conduct not dissimilar to the conduct at issue in VLW v JEW , 2007 ABQB 358 , which Justice Kenny found to constitute bad faith, in these words: The father is certainly aware that his choice to continue his education beyond this point will have the effect of reducing support to his children at a time when they need it most.

In spite of that, rather than ac tively seeking employment at the present time to commence in September of 2007 when he finishes his degree, he chooses to continue on with his education. I find that that decision is an intentional decision to evade adequate child support.

As such I find the father to be intentionally underemployed and with the completion of his degree at the end of August 2007, his unemployment does not relate to reasonable educational needs. [ 82 ] In other words, had I proceeded as the Applicant requested, I would have found Jacintha to be intentionally under-employed and proceeded to impute to her an income.

I would not have imputed to her the income of a teacher, or at least not right away, since there was no guarantee she would have qualified to become one by September 2018, no guarantee that if she had qualified (received her education degree) such a position would have been immediately available to her or available to her only after first serving as a substitute teacher or available to her at all, since she has a more limited geographical area in which to find employment than many other education graduates with whom she would have competed for employment.

She is limited to the Calgary and surrounding area, since she must reside reasonably close to Graham for purposes of the shared parenting. Also, this is not a situation like many other cases where the payor relinquishes gainful employment to return to studies: Tillmans , at para 74 , for example. [ 83 ] The alternative to a teacher’s income, however, is not necessarily minimum wage, especially since Jacintha will soon complete an undergraduate degree. It may reward her more than a teacher’s entry level wage; it may be less.

I received no evidence in that regard. [ 84 ] I can say no more from this record than that I would have imputed to Jacintha an income somewhere between that of a first year teacher and minimum wage, and commenced it sometime within the first quarter of 2019, to reflect the parties’ working assumption that by the end of January 2019 Jacintha would be in some form of employment as a teacher and the spousal support income supplement would no longer be required. 9(b): T he increased costs of the shared custody arrangements [ 85 ] An initial comment is warranted here about the argument on behalf of Jacintha about her not having a budget before the Court.

In argument on that point her lawyer said that Graham never requested it in his notice of disclosure or in any other way asked for it since. Implicit in that argument is the belief that there is no independent obligation to provide all relevant information when dealing with matters of child support. Our Court of Appeal has stated emphatically that disclosure obligations are obligations to the children and to the court: Ripulone v Smith , 2018 ABCA 167 , at para 9 . This obligation is borne by each litigant not just an applicant. It is not conditional upon an applicant asking for it.

The Alberta Court of Appeal in that decision went further and said: [t]he required disclosure must be sufficient to allow meaningful review by the recipient parent and be sufficiently complete and comprehensible that, if called upon, a court can readily discharge its duty. [ 86 ] There is no real issue that the parties’ costs in aggregate have increased since they were together; shared custody has resulted in increased costs globally. The same income that was used to cover the costs of the single common home must now cover the costs of

their two households. [ 87 ] Both parents have expense loads that include the cost of enough living space for the girls, along with the associated increments to utilities, insurance and maintenance costs. These are duplicated. These are fixed costs, in the sense that they are unaffected by the amount of time the children spend with the other parent. [ 88 ] Also, prudently, it appears neither parent took on financial commitments assuming any particular longer term level of child support payments.

Graham made no such commitments assuming to soon benefit from Jacintha finally contributing to the children’s financial needs and Jacintha gave no indication of having made any longer term financial commitment on the expectation of continuing to receive child support at current levels. [ 89 ] Under 9(

b) and 9(c), a close examination of the standard of living in both households is to be considered, as well as the financial situation of both parents. 9(

b) is an inquiry “to determine what are, in effect, the additional costs incurred by the payor as a result of the [shared] custodial arrangement”: Contino , at para 53 . [ 90 ] As for incremental costs of parenting, the parties split those relatively equally (not counting here the

section 7 expenses they have borne differentially, a separate source of friction). I found those costs to be $950 per month for Graham (see paragraph 27 above). They will be about the same or slightly higher for Jacintha, based on all the evidence. [ 91 ] There is no appreciable difference in lifestyles between the two homes at present. Both parties’ lifestyles are within the range of reasonableness given their circumstances. Both parties appear to have attempted frugality, while doing what they believe would serve their girls’ best interests.

The fiscal restrictions upon them exacerbated the communication between them; Jacintha was more willing to add to the debt load to ensure the girls did not miss out on something they wanted or needed whereas Graham was more inclined to decline additional discretionary extraordinary and extracurricular expenses in order to avoid further debt. [ 92 ] The net household cash flow appears roughly the same in each home. I reach this conclusion from Jacintha receiving 51% and Graham 49% of Graham’s after tax income, coupled with each of them accumulating operating debt.

That is, they have obviously used all monthly income available to them since they have more expenses than income each month. This is apparent even without a budget from Jacintha. Graham has operated with a negative cash flow each month and Jacintha she has amassed just under $60,000 in student loans. [ 93 ] Jacintha says that when they were together, Graham worked longer hours, generating more income then than he does now which, she intimates, adds pressure to their already strained finances.

That is, she implies that he should go back to working more extra contracts or overtime, so she could continue to not work at all but instead take her time at university and maybe volunteer a bit. 9(

c) T he conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought [ 94 ] The Court in Contino said, at paragraph 68 :

Section 9(

c) vests the court a broad discretion for conducting an analysis of the resources and needs of both the parents and the children. ... Here again, it will be important to keep in mind the objectives of the Guidelines mentioned earlier, requiring a fair standard of support for the child and fair contributions from both parents.

The court will be especially concerned here with the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. [ 95 ] Regarding the parties’ means, I find both have exhausted their limited assets coming out of their marriage. They both have more expenses than income monthly and at least one is accumulating debt.

The status quo is unsustainable. [ 96 ] The Changes Jacintha made may have been optimal from her own long term career interest perspective and may have even been advisable for a single student without any ongoing financial obligations, but that is not Jacintha. Her changes displayed most unfortunate and myopic judgment. They short-change her daughters’ entitlement to the level of financial support she owes them.

Had she stayed on track she would already be, or would soon be able to be, contributing to their needs at a higher level of financial support, as a teacher, than she will be able to for a number of years now, if ever. [ 97 ] Regarding the parties’ needs, in Riad v Riad , 2002 ABCA 254 at para 33 , in the context of determining spousal support but nevertheless applicable here, the Court said: [...] need cannot be defined as an absolute quantity. It is relative to the standard of living enjoyed prior to the collapse of the marriage and can be equated with reasonable expectations...

Need is a flexible concept and is not confined to subsistence lifestyle... [ 98 ] Both parties’ needs must be considered.

Section 9 (

c) requires it. They share parenting equally. I find that at present the girls enjoy a marginally better standard of living in Jacintha’s home.

Reducing Graham’s child support payment to Jacintha is warranted here even if no other change is made by Jacintha to enter the workforce to earn an income reasonably in accordance with her abilities. [ 99 ] None of the children have any special requirements or needs that impose a unique and added drain on their parents’ finances, though I note the parties are paying over time an orthodontic expense. [ 100 ] Regarding the parties’ circumstances, I also consider the contractual assurance from which Jacintha derogated by the Changes.

In Goulding v Keck , 2014 ABCA 138 at paras 32 and 34 , the Court said: [...] The general rule is that liability to perform contracts is strict. Negligence or intent to do harm is not needed. [...]

The respondent failed to perform his contractual obligations to the detriment of his child’s support. In the absence of unfairness, it is the court’s duty to enforce those contractual obligations (citations omitted). [ 101 ] Graham legitimately expected a reduced expense load once Jacintha began earning an income. It may have been by September 2018. It may not have been until September 2019 or even later.

But there is nothing unfair about reducing his child support to accord with those legitimate expectations that permeated the parties’ freely negotiated Separation Agreement. [ 102 ] It was not proven that Jacintha’s Changes would or even could benefit the girls; that was only asserted baldly. No evidence was presented to suggest this revised career track would be more remunerative, more secure, more exemplary, more flexible, more esteemed, or in any other way potentially advantageous to the children. [ 103 ] Under

section 9(

c) I must also consider the impact of any new support order: Contino at para 80 . “As far as possible, the child should not suffer a noticeable decline in his or her standard of living”: Contino , at para 51 . [ 104 ] Jacintha says that any reduction in the amount of child support she receives would create a marked disparity between the resulting lifestyles in the two homes and, therefore, would unreasonably affect the girls adversely.

She says it would result in her and the girls having to leave the home they are in. [ 105 ] Of course this outcome from a reduction in the child support she receives is only true if Jacintha would continue to refuse to work now to contribute to her girls financially, if she continues to insist upon pursuing her educational detours and enhancements regardless of the girls’ entitlement to her financial contributions now. She appears not to have even contemplated the scenario of postponing her educational meanderings until after her girls are no longer children of the marriage.

It appears that in her mind she is entitled to educationally self-actualize, no matter how long it may take, not that her girls have any entitlement to her financial contribution now. The parental role is a self-less one; the obligation to the children comes first, legally and morally. [ 106 ] The primary impediment to the children being able to continue enjoying a reasonably equivalent standard of living in each home will be Jacintha’s remaining out of the workforce if I reduce Graham’s level of child support payable.

Any reduction in Graham’s child support payable that would cause Jacintha to commence earning an income, I find, would affect the girls favourably. Determining the new child support payable [ 107 ] I now provide my conclusions following my weighing of these various

section 9 considerations. I pay particular attention to the continuing ability of Jacintha to meet the needs of the children after any reduction in child support, especially in light of costs that may be fixed. As the Court said in Contino , at paragraph 32 : The underlying principle of the Guidelines is that “spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation”.... The Guidelines reflect this principle through these stated objectives ( Guidelines, s. 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; ... [ 108 ] In that regard, I have no doubt that both Graham and Jacintha shall be able to meet the needs of the children once Jacintha starts earning an income reasonably commensurate with her abilities. If she started to do that immediately, however, she would fall just short of completing her undergraduate degree.

She is now so close (in all likelihood just 5 months away) that the probable increased earning power resulting from her completing that degree, over the months of employment thereafter while the girls are children of the marriage, more than outweighs the benefit of her ceasing her education tomorrow and starting to earn an income.

This warrants my not reducing Graham’s child support until that time. [ 109 ] This result seems unsavoury from a strict fairness and contractual perspective, that Jacintha is in some way rewarded for her recklessness and self-interested Changes, at the girls’ and Graham’s expense, but the paramount interests of the girls over the remainder of their years as children of the marriage dictate this approach.

As a partial offset, I will require an adjustment later, in an effort to a little more closely restore both parties to the position they would now be in had Jacintha not made the Changes. [ 110 ] After April 2019, therefore, Graham’s child support obligation will decline by an amount that will reflect Jacintha earning an income reasonably in accordance with her abilities, adjusted to account for the added cost load in both homes from the shared parenting and to buffer any marked drop off within Jacintha’s home. [ 111 ] I work off a forecast entry level annual income for Jacintha of $42,000 ($3500 per month).

If that were used in their Set-off calculation without any other adjustment, Graham’s child support obligation would reduce to $1136 per month ($1963 - $827). I adjust that upward to reflect the fixed costs of Jacintha’s rental and associated costs. To avoid an immediate ‘cliff effect’ I also impose it gradually.

Further, employment may not be immediate in the field of her undergraduate degree, particularly in the current higher unemployment market in Calgary, where she is limited to finding work. [ 112 ] Therefore, commencing 3 months after April 30, 2019, that is, on August 1, 2019, Graham’s monthly child support payable shall be $1300. Until then it remains at the amount determined pursuant to their Separation Agreement, using their then current incomes.

It continues after August 1, 2019 at that monthly amount, until such time as Jacintha has full-time employment or multiple part-time jobs that amount to her working at least 40 hours per week. At such time, the parties must return the matter of suitable child support payable to the Court for further assessment under

section 9 based on that then accurate income information and their then current other

section 9 information. Of course, it will always be open to the parties to instead agree in writing to revert to its determination based on their simple Set-off calculation using actual incomes, perhaps then embodied in a consent order. [ 113 ] If Jacintha chooses to continue on her current educational and career track, in accordance with the Changes, then I further

reduce Graham’s child support payable effective September 1, 2019, to $500 per month, to continue at that amount until 3 months after her final graduation, at which time their Set-off calculation shall apply on an interim basis until adjusted back in time by further order of the Court or upon agreement of the parties otherwise. [ 114 ] In light of this conclusion, in addition to the disclosure requirements already in place which I do not vary, I require Jacintha to notify Graham of all changes to her employment status and the location thereof, within 48 hours of each such change.

I further require Jacintha to disclose to him a copy of the first 3 paystubs from each such new job, within 7 days of the latest of those 3 that she receives. [ 115 ] Regarding the adjustment mechanism I mentioned, the reduction in Graham’s child support that I have determined has come a number of months later than it should have come, had Jacintha in good faith acted in accordance with the Separation Agreement.

In my view, had Jacintha done as the parties originally expected, she would have been gainfully employed by at the latest September 2018, maybe not immediately as a full time teacher but at least as a substitute teacher. She would have been expected to supplement her income with other work in that latter scenario. Therefore, and apart from the loss to the girls as they have been entitled, Graham has borne the added cost of subsidizing Jacintha’s slowed education track 11 additional months.

Accordingly, I am requiring Jacintha to pay $650 more child support each month to Graham for the 11 months immediately following the first of their 3 children, whichever one it is, ceasing to be a child of the marriage. It is to be treated as child support. [ 116 ] If I am incorrect in concluding that the parties have placed sufficient evidence before the Court to properly determine new child support levels under

section 9, then I make these conclusions on an interim basis (but not ‘without prejudice’), until such time as the Court can make final rulings following the supply of further and better information from both parties and an application for a final determination on proper notice between the parties. If no steps are taken by January 31, 2019, to challenge this decision on that basis, it shall then become final back to the date of this decision. [ 117 ] In this case,

section 7 expenses are not covered by this amount of child support payable under

section 9. All

section 7 expenses the parties agree on in advance of any commitment made to incur that expense, such agreement not to be unreasonably withheld, shall be shared by the parties equally. [ 118 ] A final comment arises from the parties’ arguments.

Jacintha is correct that she had no obligation to first get Graham’s approval to change her degree plans or to broaden her career options, but once her Changes deviated so materially from the circumstances surrounding their Separation Agreement and the ensuing child support order, as I find they did here, or once her Changes held the prospect of materially extending the time before which the girls would receive their proper child support from her, as I find is now occurring, or once they extended so materially the duration of Graham shouldering a disproportionate share of the financial cost of providing for their girls, as I also find they did here, she was required to both disclose the planned Changes to Graham and to begin discussing them with him.

They have undeniable implications on their girls’ right to her contribution to their financial support. The impact of the Changes on Graham’s finances significantly impair what the girls can now receive from him, may significantly impair what they can receive as

section 7 funded items from both parents, and significantly impair what they can receive from Jacintha within her home. [ 119 ] Put another way, Jacintha’s educational and career aspirations are entirely within her prerogative, just not necessarily the timing of them. Her Changes may have to wait until the time in which her girls are entitled to her economic contribution has passed. Conclusion [ 120 ] Graham’s child support obligation shall reduce as set out in paragraphs 112 and 113 above, as circumstances may dictate.

I also increase the disclosure obligations associated with this result and make additional orders, at paragraphs 114 to 117 above. [ 121 ] I order costs against Jacintha under

Schedule C to the Rules of Court , but they are not payable to Graham until the second of their children ceases to be a child of the marriage, which ever one it is, and at that time shall constitute child support then payable to Graham. I award the costs to Graham because he enjoyed substantial success. I defer their payment because payment now would adversely affect the girls when within Jacintha’s home. Heard on the 20 th day of September, 2018. Dated at the City of Calgary, Alberta this 22 nd day of November, 2018. P.R. Jeffrey J.C.Q.B.A. Appearances:

Michael A. Ghert, Daunais McKay + Harms for the Applicant Helen M.J. Banks, Banks Family Law for the Respondent