MAL v SRL, 2018 ABQB 957

Court of Queen’s Bench of Alberta Citation: MAL v SRL, 2018 ABQB 957 Date: 20181123 Docket: 4803 154655 Registry: Edmonton Between: MAL Plaintiff - and - SRL Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.R. Fraser _______________________________________________________ [ 1 ] SRL has brought an application seeking to vary both retroactive and ongoing child support as well as a retroactive and ongoing spousal support.

She is also seeking to have MAL’s income imputed to be $130,000 per year. [ 2 ] The parties were married on July 1, 1992 and separated September 1, 2008. They have three children together: BL born December 1995; KL born January 1998; and RL born April 2001. All the children still reside at home with their mother. She works as a part-time bookkeeper. MAL is a self-employed photographer. [ 3 ] The parties entered into a consent divorce and property contract on August 24, 2010. That agreement set MAL’s income at $130,000 and SRL’s income at $23,885.

The settlement included a clause indicating that both parties had been fully apprised of the income and expenses of the other. The settlement included a lump sum spousal support payment of $32,323 and ongoing combined s 3

and s 7 child support in the amount of $5720 per month. SRL’s right to claim for further spousal support was specifically reserved. [ 4 ] On April 26, 2011, the parties finalized their divorce judgment and property settlement following the same terms as their consent divorce contract. On December 20, 2011, MAL obtained an order granting him a three month stay of enforcement regarding his child support obligations. That was followed by another consent order signed July 26, 2012 in which MAL’s Guideline income was set at $85,062 and SRL’s Guideline income was set at $24,000.

As a result, the parties agreed to $2,152 in monthly combined s 3 and s 7 child support as well as spousal support of $1,050 per month. MAL has paid child and spousal support in those amounts since 2012. Issues What is MAL’s Guideline income? [ 5 ] SAL submits that his income should be imputed at $130,000 per year. She makes this claim based on her “first-hand knowledge of the business” as well as her analysis of the financial documents of the business. It is notable that she signed away any interest she may have had in the business in the 2010 divorce contract and has not worked in the business for years.

She claims that various items paid for by the business are actually primarily for the benefit of MAL and as a result the value of those items should be added to his income. [ 6 ] MAL provided all of the relevant financial documents related to his photography business. They were prepared by an accountant in the normal course of business. What he did not provide was a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of his new partner with whom he does not deal at arm’s length. [ 7 ] MAL is in a new relationship.

His new spouse works with him in the photography business. She is paid a salary and she works full-time in the business.

It does not seem like her salary is excessive, but it is difficult to know without an explanation of her work hours and duties. [ 8 ] Our Court of Appeal was clear in Cunningham v Seveny , 2017 ABCA 4 when it said at paragraph 28: So as to leave no doubt about the correct principle: the evidential and persuasive onus under sections 18-21 of either the federal or provincial Guidelines as to the reasonableness of expenses, rests with the self-employed or corporate parent throughout, and is the most effective means by which to serve the best interests of the child. “Because this information is required in order to properly assess the amount of child support that is payable, its disclosure is part of the obligation to pay support”: Roseberry at para 86.

As provided by Yungwirth J in Roseberry , information regarding corporate expenses is within the knowledge, possession and control of the shareholder, director or officer parent, not the challenging parent, and that information is relevant and necessary to determine income for child support guideline purposes. Moreover, the obligation to provide a reasonable explanation for expenses fits soundly within the initial onus on the claiming parent under

section 21 of the Guidelines to provide adequate disclosure of their corporate and personal income and expenses.

As noted in Roseberry at paras 61 and 67, lack of full disclosure or “[n]on-compliance with disclosure requirements causes great difficulty for litigants, creates a backlog of retro-active support applications, and most importantly, interferes with the ability of the payor, recipient, and the Court to make a timely and proper assessment.” [ 9 ] It is MAL’s obligation to provide full disclosure regarding the salary of his spouse and it is also his obligation to demonstrate that the salary is reasonable compensation for her services.

His failure to provide any details regarding his new spouse’s salary and its legitimacy must result in a negative inference being drawn against him. I find that this should result in an additional $5,000 being attributed to his income. [ 10 ] Examining the financial documents of the business, there are some items that while being legitimate tax deductions, also likely provide a personal benefit to MAL. These include car expenses, home office expenses, computer, and cell phone expenses. No modern business can operate successfully without access to the Internet or without a cellular telephone.

A photographer cannot be expected to use public transportation to move cameras, lights, backgrounds and whatever other props may be necessary back and forth between the studio and photo shoot locations. There are legitimate business purposes for these expenses. However, MAL also personally benefits from having a cell phone, a vehicle, computers and Internet access. These shared expenses average about $20,000 per year. SRL submits that 100% of these expenses should be added to his salary. I do not find that to be reasonable.

These expenses do have a legitimate business purpose as well as providing a personal benefit. I find that a reasonable percentage is 25%. This would add $5,000 per year to MAL’s income. [ 11 ] MAL’s line 150 income since 2013 has been: $100,979 in 2013, $63,720 in 2014, $71,980 in 2015, $88,920 in 2016, and $93,600 in 2017. Since 2014, his company had retained earnings of $28,457, $45,389, $51,040, and $30,623 respectively. Since the corporate year ends August 31, there is no calculation for 2013.

It does not appear that the company has an excessive amount of retained earnings or that MAL is trying to hide income in the company. It is prudent policy for a company to retain some of its earnings from year-to-year to provide a hedge against the possibility of reduced revenues in future years. This helps to ensure the business can survive a downturn and remain operating. I do not find that any of the retained earnings should be added to his income. [ 12 ] I have found that an accurate reflection of MAL’s income requires that an additional $10,000 be added to his line 150 income.

The result is that his income for 2013 is $110,979; $73,720 in 2014; $81,980 in 2015; $$98,920 in 2016; and $103,600 in 2017. These are the numbers that should be used to determine child and spousal support. Child Support [ 13 ] Having found the appropriate income to impute to MAL, I now turn to the appropriate amount of retroactive and ongoing child support.

[ 14 ] Almost all of the children of the marriage are adults. Only the youngest is still under 18, and he will become an adult within the year. Both parties agree that the oldest child ceased to be a child of the marriage in April 2018 when he completed his post- secondary studies. The middle child is part way through a university degree and the youngest is still in high school. [ 15 ] The affidavit evidence indicates that the two eldest children had the benefit of RESP assistance with their post-secondary fees. They also have worked while attending school to assist with the costs.

It is likely that the youngest child will attend post-secondary education. [ 16 ] SRL is seeking retroactive child support from 2013 forward. The 2012 consent order based child support on a salary of $85,062. MAL agreed to pay $2,152 and combined s 3 and s 7 child support each month. At the time, the base child support would have been $1,600 per month. Therefore, he agreed to $552 per month in s 7 expenses. [ 17 ] Between January 1, 2013 and December 31, 2017 MAL has paid $129,120 in combined s 3 and s 7 child support.

Using his imputed incomes for that timeframe, he would have been required to pay $105,006 in s 3 child support. That means he has paid $24,114 in s 7 expenses during that time. [ 18 ] SRL claims that the s 7 expenses for 2013 through 2017 total $53,942. Using her numbers combined with MAL’s imputed income, his total s 7 support would have been $37,214. This would mean there was a short fall of $13,100. [ 19 ] When SRL calculated s 7 expenses, she included in her calculations tuition for a Christian school, school transportation costs, course fees, and other school expenses.

She has also included post-secondary tuition. MAL agrees that the tuition expenses for the Christian school should be considered s 7 expenses. He submits that the other expenses associated with the Christian school are ordinary expenses and should not be included in s 7 calculations. [ 20 ] Attending any school these days can be expensive, whether it is public or private. It is not unusual for schools to add fees for certain courses, for field trips, textbook rental, and busing. Although at an earlier point these fees might have been considered extraordinary, today they are not.

I find that the extra fees charged by the Christian school do not fall under extraordinary expenses as contemplated by s 7(1)(

d) of the Federal Child Support Guidelines . [ 21 ] In making that finding, I am assisted by s 7 (1.1) of the Guidelines which read: For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [ 22 ] Using that

section and then examining SRL, I do not find expenses to be extraordinary. If she found these expenses to be excessive and difficult to cover, the reasonable action would have been to discuss them with her former spouse and then devise an appropriate course of action. An examination of the emails filed shows that MAL was concerned about the costs. He made proposals that could have reduced the costs. Her response was to state that she did not want to deviate from the 2012 agreement. Consequently, I find that only the annual tuition for the Christian school to be a s 7 expense.

The other school related costs fall under s 3. [ 23 ] It is difficult from the documents submitted to determine the actual cost of the annual tuition to the Christian school. The cost appears to have been combined with other school fees. MAL submits the amount for tuition is less than $2,000 per year. In her affidavit, SRL states that the 2012-2013 Christian Program Fee, which seems to be the same as tuition, was $2,875. That was at a time when all three children were enrolled in the school. She also states that the fee structure has only change slightly since that time.

For the purpose of calculating s 7 expenses regarding Christian school tuition, I have rounded that number up to $3,000 for each of the 2013 to 2017 school years. [ 24 ] MAL also contends that post-secondary tuition should not be a s 7 expense. Those costs should first be paid from any RESP funds, and then the children should cover the remaining expense. SRL was the sole contributor to the children’s RESP. The total amount contributed was $9,225. [ 25 ] I agree that the RESP money should be used towards the children’s tuition.

I am not in agreement with his submission that the children should be responsible for the remainder of their post-secondary costs. The Divorce Act provides that children who are attending post-secondary institutions may remain children of the marriage or dependents. The Federal Child Support Guidelines specifically contemplate post-secondary expenses being part of s 7 expenses in s 7(1)(e). Courts have a wide discretion regarding parental contributions to their adult children’s educations.

[ 26 ] Generally, post-secondary education is beneficial for both the parents and the children. Successfully completing post- secondary education results in higher earning capacity for the children. It also helps to transition them into adulthood. A gainfully employed child can benefit a parent by providing the parent some assurance that the child will have a comfortable life as well as by perhaps reducing the future financial drain on the parents. [ 27 ] It can also be beneficial to the children if they cover some of the costs of their post-secondary education.

A person that has some money invested in a project has more interest in it being successfully completed. This does not mean that all students should finish post-secondary education awash in debt. [ 28 ] In determining what portion, if any, of post-secondary expenses a parent should pay I must consider the ability of the parents to pay and the ability of the student to cover his or her own expenses.

A factor to consider is whether the child is still living at home and if the custodial parent is receiving child support. [ 29 ] Considering all those factors, I find that it is appropriate for MAL to cover 33% of the costs of tuition and books as a s 7 expense. This applies only to the child’s first degree or diploma course of studies and for a maximum of four years.

If the child stops attending post-secondary education for more than one semester for any non-medical reason, MAL’s s 7 and s 3 obligations shall end. [ 30 ] The agreement signed by the parties in 2012 provided for a lump sum monthly payment of s 3 and s 7 expenses. Both parties had the advice of counsel when they entered the agreement. It is likely that the single lump sum payment was agreed upon to provide certainty for both parties.

It also meant that in some months he overpaid and in some months he underpaid. [ 31 ] In DBS v SRG , 2006 SCC 37 , the court wrote at paragraph 96: Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. [ 32 ] The 2012 agreement that set MAL’s income at $85,062 also set SRL’s Guideline income at $24,000 per year.

Her actual income for each of the years 2013-2017 exceeded that amount. In 2014 and 2015 her income was more than double her Guideline amount. I note that there is nothing in her materials indicating that she informed MAL of her change in income and that perhaps s 7 expenses should be recalculated. Instead, she told MAL that they need to follow the 2012 order. [ 33 ] One of the things to look at when determining retroactive child support is the conduct of the parties. As noted above, SRL was not in a rush to change child support when she knew her income had increased.

Her emails indicate that she was aware that she could bring the matter back to court for recalculation if she wanted. She chose not to do so.

It appears she was content to follow the 2012 order when it benefited her. [ 34 ] Analysing the years 2013 through 2017 using MAL’s imputed income along with my findings regarding Christian school tuition and post-secondary tuition produces the following numbers: Line 150 Income 2013 2014 2015 2016 2017 Total 2013 - 2017 Her $41,398 $59,064 $49,957 $29,959 $32,987 Him imputed $110,979 $73,720 $81,980 $98,920 $103,600 Him s 7% $73 $56 $62 $77 $76 Total combined s 3 and s 7 paid $25,824 $25,824 $25,824 $25,824 $25,824 $129,120 s 3 per imputed monthly $2,062 $1,390 $1,545 $1,846 $1,930 Yearly s 3 imputed $24,744 $16,680 $18,540 $22,152 $23,160 $105,276 Yearly s 7 paid $1,080 $9,144 $7,284 $3,672 $2,664 $23,844 Her s 7 annual totals $10,638 $10,836 $9,162 $9,630 $13,675 School tuition fees $6,503 $5,217 $5,338 $3,240 $3,279 less 3,000 max tuition $3,503 $2,217 $2,338 $240 $279 P.S.

Tuition $2,285 $6,940 33% P.S. tuition $754.05 $22,90.20 Medical $3,247 $2,504 $3,524 $6,300 $3,155 Extracurricular/ summer $887 $830 $300 $300 Total eligible s 7 excluding P.S Tuition $7,637 $5,551 $6,162 $6,540 $3,734 He owes $5,575.01 $3,108.56 $3,820.44 $5,035.8 $2,837.84 He owes including P.S. $5,575.01 $3,862.61 $3,820.44 $5,035.8 $5,128.04 $23,422 Over Payment $422.10 [ 35 ] These numbers show that using MAL’s imputed income he overpaid child support by $422.

Consequently, there is no retroactive child support. [ 36 ] Regarding ongoing child support, as stated earlier the two younger children each shall remain a child of the marriage while in post-secondary education. When a child finishes his or her first post-secondary course of studies, he or she will no longer be a child of

the marriage. Also, if a child stops attending post-secondary education for more than one semester for any non-medical reason, that child shall no longer be considered a child of the marriage. MAL will be responsible for 33% of the tuition and book costs for post- secondary education for a maximum of four years. [ 37 ] For the purpose of calculating ongoing child support, I use MAL’s 2017 imputed income of $103,600. This results in monthly child support a $1,508. That will commence on December 1, 2018. He will also be responsible for 76% of eligible s 7 expenses.

Those expenses shall include tuition for a Christian school, but not other school fees. They will also include any medical or extracurricular costs. Any costs over $100 must be discussed by the parties in advance, if possible. Receipts for s 7 expenses must be submitted within 45 days of the expense occurring. If they are not submitted within that timeframe, they are no longer eligible for reimbursement. Spousal support [ 38 ] SRL is seeking to vary Browne J’s 2012 order regarding spousal support. The consent order was agreed to by both parties who each had the assistance of legal counsel.

They agreed to $1,050 in monthly spousal support. MAL has paid that monthly amount since the order was signed. [ 39 ] SRL claims that there has been a material change in circumstances since 2012. Specifically, she claims she suffered from a significant depressive episode in 2015 that has caused her to reduce her workload.

She also claims she has been diagnosed with social anxiety disorder and that it is the opinion of her psychologist that she has post-traumatic stress disorder. [ 40 ] The medical evidence regarding PTSD consists of a three line letter from Amanda Chikowski, registered psychologist, dated June 14, 2017. The letter is addressed to Catherine Scott and does not state why it was written. This letter was attached as an exhibit to SRL’s May 17, 2018 affidavit. [ 41 ] The diagnosis of Ms. Chikowski is contradicted by the much more detailed letter from Marliss Meyer, PhD, also a registered psychologist. Dr.

Meyer’s opinion is contained in a document titled “Psychological Assessment” dated April 4, 2018. It was also submitted as an exhibit in SRL’s May 17, 2018 affidavit. It is troubling that SRL has chosen to only submit portions of the assessment. Although her affidavit indicates the entire report could be provided upon request, the affidavit appears to be missing content. It is possible this content could reflect negatively on SRL’s position. [ 42 ] The assessment was based on five one-hour counselling interviews. Dr.

Meyer writes in the letter that one of the purposes of the assessment was for its use in legal dealings with MAL. The assessment outlines SRL’s previous treatment and possible future courses of treatment. Only two pages of the assessment have been submitted. Those pages provide a fair amount of detail about SRL’s situation. Of note is Dr. Meyer’s finding that it is unlikely that SRL suffers from post-traumatic stress disorder. She does say that it is likely SRL does experience social anxiety disorder.

She goes on to say that her treatment and medication have produced positive results but she will still likely benefit from ongoing counselling. [ 43 ] Dr. Meyer states that the social anxiety disorder may have its origins from early in SRL’s life. It is also possible that the disorder was aggravated by negative experiences that occurred during the marriage. It is unclear whether this refers to her major depression in 2007 that resulted in five months of hospitalization.

Perhaps if the entire report had been provided, this would be clearer. [ 44 ] Given the conflicting medical evidence in SRL’s materials, I cannot find that she suffers from post-traumatic stress disorder. I am prepared to accept that she has social anxiety disorder. [ 45 ] SRL submits that her social anxiety disorder prevents her from working full-time. In support of this, she has provided a letter from Dr. Tom Flanagan, who appears to be a family practitioner. It is dated June 20, 2015 and is scrawled on a piece of paper that is usually used for writing prescriptions.

The letter states, “unable to work at present place of employment for medical reasons effective immediately”. This letter is followed by another letter dated August 19, 2018, written by the same doctor in the same manner which states, “unable to work for medical reasons, more than three days a week, more than eight hours a day, for the foreseeable future”. [ 46 ] There is nothing in either of these letters indicating why she was unable to work. There is also nothing to better define “foreseeable”. The first letter seems to indicate that she may have been able to work at a different place of employment.

Perhaps there was something with the physical layout at that location that made work for her impossible. The minimal amount of medical evidence makes it very difficult to evaluate SRL’s employment history and future prospects. [ 47 ] The report of Dr. Meyer does not indicate that SRL cannot work, only that she decided to cut her work hours to 16 hours per week in 2015. This is the same general time period as the letters from Dr. Flanagan, however his letter indicates that she should be able to work for 24 hours per week. Dr.

Flanagan’s June 20, 2015 letter indicates that SRL. “is unable to work at present place of employment”. There is nothing in her affidavit indicating that she ever changed her workplace. In fact, counsel indicated that she has not explored any other workplace options other than her current employer. Her reasoning for this seems to be that she is comfortable in that workplace and in her current role. Her affidavit indicates that in the future she is “hopeful she will take on a new role at the church”. Clearly, contrary to Dr.

Flanagan’s note, she was able to return to work at what was her present place of employment at the time. If she has overcome the difficulties from the June 2015 letter, why has she not overcome the difficulties of the August 2015 letter? [ 48 ] There is an absence of medical evidence indicating why SRL cannot work more hours or why she cannot change jobs. That, along with her selective submission of a medical report and her ability to work contrary to her doctor’s letter, makes her submissions regarding her inability to work somewhat dubious.

In the same way MAL’s failure to provide an explanation regarding his new wife’s salary resulted in an adverse inference, SRL’s actions along with a lack of medical evidence that could only have been obtained by her leads me to draw an adverse inference against her. Her inability to find more lucrative work might not be completely a result of her medical condition. [ 49 ] In 2017, SRL’s line 150 income was $32,987. She claimed employment income of $17,587 for that year.

Using her statement that she works only 16 hours per week, and assuming that she works the entire year, that would indicate she was paid just over $21 per

hour. If she worked 24 hours per week, the number indicated in Dr. Flanagan’s note, her employment income would be $26,380 per year.That would result in her 2017 income being $41,780. It may be possible that she is capable of working even more hours, as the 24 hourper week restriction started in 2015. It is impossible to know without more medical evidence. Consequently, I impute her income to be$41,780 per year. [50] SRL’s line 150 reported income for 2017 was $32,987. MAK’s imputed income for 2017 was $103,600. MAL’s monthly s 3child support is $1,508 per month.

Using SRL’s numbers, his average s 7 child support is approximately $425 per month. Using all ofthese amounts, MAL’s after-tax and deductions annual income is likely to be about $75,250 and SRL’s income would be $30,000. Thatlevel of income entitles her to both GST and Canada Child Benefits of approximately $7,800 per year. That means MAL has a monthlyincome $6,271 and SRL would have a monthly income of $3,156. When the $1,508 of monthly s 3 child support and the $425 of monthlys 7 child support are added to her income, her monthly income would be $5,089.

When those amounts are deducted from MAL’smonthly income, he is left with $4,338. His net monthly income is approximately $700 less than SRL’s net monthly income. [51] The Divorce Act in s 15.2(4) lists the factors to be considered when making a spousal support order. They are: the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

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

c) any order, agreement or arrangement relating to support of either spouse

Section 15.2(6) lists the objectives of a spousal support order. They are: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [52]

Section 15.3 (1) states: “Where a court is considering an application for a child support order and an application for a spousalsupport order, the court shall give priority to child support in determining the applications.” [53] The Supreme Court in Moge v Moge, (SCC), [1992] 3 SCR 813 found that none of the four objectives in s15.2 (6) should be paramount. Instead, there should be an equitable sharing of the economic consequences of the marriage breakdown. [54] In this case there were significant economic disadvantages to both parties as a result of the breakdown of the marriage.

MALhas a significant debt with the Canada Revenue Agency. SRL also has significant debts with her bank. MAL provided a lump sumspousal support payment of $32,323 in 2010. That same divorce contract provided that while she was going to school SRL wouldcontinue to work for the photography studio and receive a salary of $23,885 per year. While not spousal support, this salary would haveassisted her while she was in school. In 2012 the parties entered a consent order which awarded $1,050 of spousal support per monthcommencing October 1, 2011.

Using those numbers, as of December 31, 2017, MAL has paid $111,073 in spousal support sinceseparation. [55] As the calculations above show, using MAL’s 2017 imputed income and SRL’s non-imputed income, she has a highermonthly cash flow than he does. The discrepancy would be even larger if her imputed income were used. MALs highest income since2013 was in 2017. SRL’s lowest income was in 2017. The likely result of that is that she has always had a higher monthly cash flow thanhe did. [56] SRL has submitted a monthly budget of just under $6,200 per month. She claims to have a monthly shortfall of $2,500 permonth.

She has provided an itemized breakdown of her monthly costs. While I do not doubt that the budget accurately reflects herspending, I do find it to be unreasonable. SRL does not seem willing to accept her new financial realities. Examining the numbers, itseems that MAL has suffered a greater economic disadvantage than SRL. [57] It appears that SRL was working towards becoming economically self-sufficient, but that has been somewhat derailed by hermedical issues. Her profession is that of a bookkeeper. It can be done with minimal contact with other individuals.

Documents can besubmitted electronically, software can assist with the record-keeping and calculations, and much of the communication can be done viaphone or email. This would seem to allow SRL to adapt her employment so that she could work in a comfortable environment thatminimizes the consequences of her social anxiety disorder. As stated earlier, the medical information provided does not indicate why shecould not work full-time in such an environment. She also has chosen to limit her employment options to only one employer and to only16 hours per week.

That is even fewer hours per week than the limit imposed by the 2015 doctor’s note. I found that she could have agreater annual income, and have imputed it to be $41,780. [58] In this case, the parties were together for 16 years. When the parties separated, they were 40 years old. As a result, thismarriage does not fall into the long-term category. Generally, this would result in a defined period of spousal support of between eightand 16 years. However, in 2012 the parties agreed to monthly spousal support of $1,050. That order does not have a termination date forspousal support.

MAL has not filed a cross application seeking to have spousal support reduced or terminated. [59] As stated in DBS, some deference should be given to agreements reached by the parties. Both parties had the benefit ofcounsel when the agreement was negotiated and signed. There is no evidence regarding what factors were taken into consideration when

deciding the monthly amount or its duration. The agreement seems to cover all the factors set out in the Divorce Act . [ 60 ] SRL has based her application for a change in spousal support on an increase in MAL’s salary. Although his salary has increased over the years, the increase is not excessive. In some years it was significantly below his guideline income. It is likely that he has overpaid spousal support in some of the years since separation. He also made a fairly large lump sum payment. SRL also bases her application on her medical disability.

She has provided little evidence to demonstrate how and why her disability will affect her ability to become self-sufficient. [ 61 ] Although I do find that there has been a change of circumstances that does allow for the re-examination of spousal support, I do not find that there is sufficient evidence to change spousal support. It does appear that SRL has suffered more severe economic consequences since the marriage breakdown. It is unclear whether those consequences are related to the marriage and its breakdown. MAL seems to have borne the bigger burden of the financial consequences of the marriage breakdown.

SRL is still is not fully self- sufficient, but that may be partly or wholly as a result of her actions. Under the present regime with MAL paying both child and spousal support, SRL has a greater monthly free cash flow than he does. Consequently, spousal support will remain at $1,050 per month. [ 62 ] To conclude, I find that MAL does not owe retroactive child or spousal support. He has an ongoing child support obligation based on an income of $103,600. That results in s 3 support of $1,508 per month. He is also responsible for 76% of eligible s 7 expenses.

He is responsible for 33% of the cost of post-secondary tuition and books for the remaining children of the marriage. Spousal support will continue to be $1,050 per month. [ 63 ] MAL has been successful in defending this application. I find it appropriate to award column five costs to MAL for the special chambers application. Heard on the 31 st day of October , 2018. Dated at the City of Edmonton, Alberta this 22 nd day of November , 2018. G.R. Fraser J.C.Q.B.A. Appearances: Pierre R. Boileau, Q.C. Miller Boileau Family Law Group for the Plaintiff Melissa K. Bourgeois MKB Law for the Defendant