KE v MW, 2019 ABQB 920

Court of Queen’s Bench of Alberta Citation: KE v MW, 2019 ABQB 920 Date: 20191203 Docket: FL12 01623 Registry: Wetaskiwin Between: K E Plaintiff - and - M W Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ Introduction [ 1 ] This trial dealt with issues of child and spousal support only, as parenting and property issues were settled by the parties. [ 2 ] An agreed statement of facts provided the following:

• The parties are the biological parents of one child, OW, born in 2009. • They began residing in the same residence in 2003. • They separated in January 2018. The Plaintiff mother, KE was then 41 years old; the Defendant father, MW, was 44 years old. • The former family home was appraised at $214,000 as of November 2018.

KE lived there until September 2018; MW has lived there since. • MW had an RRSP valued at $46,558 and a LIRA valued at $60,532. • MW’s line 150 incomes are as follows: o 2012: $186,313 o 2013: $146,247 o 2014: $180,160 o 2015: $149,616 o 2016: $139,307 o 2017: $183,368 o 2018: $82,658 • In September 2018, MW began working as an apprentice floor layer, working from Monday to Friday, an average of 30 hours per week at an hourly rate of $25. • KE’s line 150 incomes are: o 2013: $2036 o 2014: $1481 o 2015: $4421 o 2016: $16,008 o 2017: $790 o 2018: $0 • KE started working at the “Dollar Store” in the spring of 2019 at an hourly rate of $15.25. • The parties have agreed to continue with a shared-parenting regime for OW. • Property issues were settled on the basis that MW retained the former family home and transferred $46,000 from his RRSP and his entire LIRA to KE. • The following uncharacterized support is credited to MW for payments made to or for the benefit of KE: o $2400 per month from May 1, 2018 to September 1, 2018; o $800 per month from October 1, 2018 to October 1, 2019; o $6125 in August 2018.

The agreed amounts do not prejudice argument for additional amounts that may have been paid by either party. [ 3 ] The evidence at trial was that the parties remained in the same residence until the end of April 2018, although MW was not home full time as he was on a work location much of the time. Expenses were paid from the joint bank account into which MW’s employment pay was deposited. Background [ 4 ] The parties started dating and then living together in 2003.

Their financial resources were not immediately combined; they kept separate bank accounts for some years, although they did combine household expenses. By 2007 they made the decision to purchase the family home together. [ 5 ] MW agrees that they were in a relationship of interdependence by 2007, but not as early as 2003. Nothing really turns on this. They were in a relationship of interdependence for somewhere between 10 and 14 years. They purchased a home together in 2007, OW was born in 2009, and thereafter they came to a mutual decision that MW would work out of town and KE would restrict her employment

and be the primary caregiver for OW, who is a high needs child, with diagnoses of ADHD (Attention Deficit Hyperactivity Disorder) and ODD (Oppositional Defiant Disorder). Entitlement to partner support is not disputed, and the duration of a support order is not an issue at this time. [ 6 ] MW worked for Precision Well Servicing. He frequently worked out of town, and was absent from the family home for significant periods of time, except for the “break up” months, from approximately April until September. MW worked for Precision until “break up” in April 2018.

He subsequently advised Precision that he would not be returning to work in the fall, and commenced his new employment in September 2018. [ 7 ] MW described his feelings in the spring of 2018. He and KE had separated. They were still living in the same home, but he was not there often. They would talk on the phone. He felt overwhelmed, being away from home at work, dealing with a stressful job, and thinking about the breakup of his relationship.

He felt he could not continue. [ 8 ] In one conversation with KE, that took place before MW quit his employment with Precision, MW said something like “I won’t be working for you”. This was after he and KE had seen a lawyer together, close to the time when uncharacterized support payments of $2400 per month were put in place. [ 9 ] By the end of June 2018, the parties started shared parenting of OW on a week on/week off schedule, with some variations in the

schedule as agreed by the parties. Continued shared parenting was agreed by the parties and was not a trial issue. Imputing Income [ 10 ] Each of the parties argued that income should be imputed to the other. MW argues that income should be imputed to KE based full time employment at minimum wage. KE submits that income should be imputed to MW based on the income he earned when he was employed by Precision Well Servicing. [ 11 ] The test for imputing income for child support purposes is found in s 19(1)(

a) of the Federal Child Support Guidelines , which permits a court to impute income to a spouse in circumstances where the spouse is “intentionally under-employed or unemployed”.

This has been interpreted by the Alberta Court of Appeal as requiring a finding that the payor “has pursued a deliberate course of conduct for the purpose of evading child support obligations.” This evidentiary burden may be met by proof of “a specific intention to undermine or avoid support obligation, or circumstances which permit the court to infer the intention of the [payor] is to undermine or avoid his or her support obligations”: Hunt v Smolis-Hunt, 2001 ABCA 229 , at para 42 ; affirmed in DBF v BF, 2017 ABCA 272 , at para 7 . [ 12 ] The same test is applied to impute income for spousal support purposes: Shigehiro v Shigehiro , 2017 ABCA 392 , at para 54 . [ 13 ] In addition, in relation to a potential recipient of spousal support; courts consider whether the recipient has taken reasonable steps to achieve economic self-sufficiency.

Child care obligations are a consideration in determining what is reasonable: Higdon v Higdon , 2019 ABQB 879 . [ 14 ] When income is imputed, the amount “should reflect what the payor could reasonably have earned. Factors to consider include the payor’s capacity to earn income in light of his or her age, education, experience, skills, health, work history, ability to be trained, other obligations and work availability”: Keating v Keating , 2017 ABCA 428 ., at para 14. [ 15 ] There is no evidence to suggest that KE pursued a deliberate course of conduct for the purpose of avoiding support obligations.

Further, it is my view that she has taken reasonable steps to achieve economic self-sufficiency. [ 16 ] During the relationship, with MW working out of town for much of the year, and given OW’s high needs, KE’s employment was occasional and part-time. Her current rate of pay and hours of employment are at least as high as she has had for some years. It took some time after the parties’ separation and the commencement of shared parenting for KE to commence employment.

She testified that she made efforts to find employment, and undertook volunteer work with a social organization in the expectation that this would be an advantage in eventually finding paid employment with the organization. She attributes her difficulty in finding employment to a general shortage of full-time jobs in the parties’ home town, to her lack of experience and skills, and to restrictions as a result of her parenting time (i.e, an inability to work night shifts). KE’s explanation is consistent with MW’s own experience and description of the difficulty in finding full time employment.

Her explanation of why she took on volunteer work, and her hope that it could eventually lead to a better paid position than she has otherwise been able to obtain, was convincing. Her explanation of why she has not undertaken further education, that it would both interfere with her parenting obligations and would be an expense that she is unable to afford, was also convincing. I decline to impute income to KE. [ 17 ] The more difficult question is whether income should be imputed to MW.

MW’s statement to KE, before terminating his position with Precision, that “I won’t be working for you” suggests that a desire to avoid support obligations formed part of the motivation for that decision. While I find that this intention was part of the picture, I do not believe that a desire to avoid support obligations was the only, or even the dominant, reason for MW’s decisions in the summer of 2018 to leave his job with Precision, to start sharing parenting of OW, and to find local employment.

It was clear that MW was suffering emotionally in the early months of 2018, when he was away from home and his child, and was coping with the combined stresses of a difficult job and a relationship that was ending. When people experience big changes in certain aspects of their lives, it is natural that they may reconsider other aspects. When the relationship was ongoing, MW took on the role of breadwinner, working long hours and difficult shifts out of town, which restricted his parenting time. KE at that time took on a much greater share of parenting functions for their high needs child.

Since their separation, both parties have made changes. KE is attempting to become self-sufficient. MW is taking on a greater parenting role. He enjoys spending more time with OW, learning more about her needs and her development at school and socially, and being involved in her day- to-day life including extracurricular activities. [ 18 ] KE does not take issue with MW’s evidence that he is sincere in his desire to share parenting, and that his previous

employment with Precision is incompatible with this. However, KE submits that this evidence is irrelevant to her claim that income should be imputed, arguing that “no mala fides is required to impute income, and neither does a secondary laudable intent to spend more time with his daughter provide a defence regardless of when and how this second intent took form.” [ 19 ] I disagree. Firstly, I accept that, at least at this time, MW’s desire to be fully involved in his daughter’s life is not a secondary intent, it is his primary concern.

Secondly, I find that it is the mutual view of both parents that shared parenting is in OW’s best interests. They have been sharing parenting for over a year, and they agreed that this was not a trial issue – shared parenting should continue.

Thirdly, even if it is appropriate to impute income, income must be imputed at a level that reflects what the payor can reasonably earn, considering all relevant factors including parenting obligations and work availability: Keating v Keating at para 14 . [ 20 ] The evidence satisfies me that MW is earning what he reasonably can, given the shared parenting regime that both parents agree is in OW’s best interests, and given both parties’ decision to live and work in the area that has been their home since before OW’s birth.

Presumably, they both feel that this is in OW’s best interests, despite both of their difficulty in finding full time employment. There is no basis for interfering with this mutual decision, and certainly not to penalize one party for a decision that both have agreed is best for their daughter. [ 21 ] In conclusion, I decline to impute income to either party. Retroactive and Ongoing Child and Partner Support [ 22 ] In 2018, MW’s line 150 income was $82,658 and KE’s line 150 income was $0. Child support is the same both before and after the shared parenting regime went into effect, given KE’s lack of income.

Child support was payable by MW to KE at $723 per month, or $5784 for the 8 months from May through December. For the first 4 months of the year, the parties were still residing in the same home and MW was paying all expenses, so no retroactive amount should be set as either owing or to be credited for this period. [ 23 ] In 2018, MW paid to KE $2400 for 5 months from May to September ($12,000), $800 for 3 months from October to December ($2400) and $6125 in August 2018, for a total of $20,525. This is an excess of $14,741 over the guideline child support amount.

Effectively, over the 8 months after the parties ceased to operate as a household, MW paid partner support of $1843 per month, which is at the high end of the range suggested by the Spousal Support Guidelines, and if grossed up to reflect the fact that the amounts were not taxed in KE’s hands, would be over the high end . [ 24 ] In 2019, setting the parties’ annualized incomes based on evidence at trial as to their income to date, I set MW’s guideline income at $27,879 and KE’s guideline income at $14,983. As the parties have shared parenting for the full year, this results in set off support under

section 9 of the Child Support Guidelines of $114.86. The amount owing for the full year is $1378. According to the agreed facts, MW has paid $800 for 10 months, or $8000, an excess of $6622. Effectively, for the full year, he has paid $552 per month in partner support.

This is over the high range according to the Spousal Support Guidelines , even without considering tax consequences. [ 25 ] I find that there is no retroactive child or partner support owing for 2018, and, on an interim basis pending the parties’ disclosure of their 2019 tax information, no retroactive child or partner support owing for 2019. [ 26 ] MW submits that he has overpaid partner support, and should be taken to have a credit balance against future partner support obligations. I decline to do this. While he has paid more than the Spousal Support Guidelines would suggest, these are guidelines only.

In my view, the amounts he agreed to pay were reasonable in all of the circumstances. From May through September 2018, he had not yet started his new position and the amount was commensurate with his annualized income from his previous employment. Further, this occurred in the early days of the separation, when KE understandably had a need for a higher level of support.

From October 2018 through October 2019, the amount paid, while again higher than the Guidelines , was a reasonable amount in the circumstances, including the fact that KE did not find employment until the spring of 2019 and that MW anticipated that he would work more hours than he ended up working. [ 27 ] In respect of ongoing support, the 2019 guideline incomes set out above should be employed pending further disclosure from the parties.

Section 3 child support is set at $115 and partner support at $385, for a total of $500 per month, commencing January 1, 2020. While this is above the amount suggested by the Spousal Support Guidelines , I consider it reasonable, given the history of support amounts paid by MW to KE, given that MW will now have a tax deduction for $385 of the monthly payment, and given the challenges that KE no doubt faces with a very low income and a high needs child to care for. I note, as well, that KE has been providing information and assistance to MW in relation to obtaining government supports available for OW. [ 28 ] As to amounts under

section 7 of the Child Support Guidelines , I decline to order any retroactive payments. The most significant of the expenses referred to in KE’s evidence is $65 per month for prescription medications. Other expenses, including childcare, are borne by both parties, and set off with government programs for after school care and respite care. It is my view that the overpayment of support for 2018 and 2019 is more than sufficient to offset the amounts paid by KE. On a go forward basis, for 2020,

section 7 expenses include childcare, prescription drugs and the agreed extracurricular activities of bowling and Camp Kandu. Either party who pays for these expenses is entitled upon providing a receipt to be repaid for the other party’s proportionate share. [ 29 ] KE sought a lump sum payment for child and spousal support. I decline to order this. MW has paid regular support and there is no reason to think that he would not continue to do so. It is also clear that MW does not have the funds at this time to pay a lump sum amount.

In fact, KE suggests that he should pay a lump sum amount by transferring his interest in the family home to her. This is both inconsistent with the property settlement reached by the parties, and unnecessary. [ 30 ] The parties may speak to me regarding costs if they are unable to agree.

Heard on the 5 th day of November, 2019. Dated at the City of Wetaskiwin, Alberta this 3 rd day of December, 2019. J.M. Ross J.C.Q.B.A. Appearances: Matthew S. Pagels of Sharek Logan & van Leenen LLP for the Plaintiff Jeremy D. Lewsaw of Garneau Law for the Defendant