AMB v AD, 2019 ABQB 931

Court of Queen’s Bench of Alberta Citation: AMB v AD, 2019 ABQB 931 Date: 20191205 Docket: 4803 162772 Registry: Edmonton Between: AMB Plaintiff - and - AD Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This decision follows a family law special chambers application. AMB seeks retroactive child support back to 2016 based on AD’s actual Guideline incomes for 2016, 2017 and 2018.

AD opposes any adjustment based on the costs he is incurring to exercise access to the children. [ 2 ] The parties were unable to resolve these issues at a child support resolution meeting in May, 2019.

Background [ 3 ] AMB and AD were married in 2007 and they separated in 2012. They were divorced in 2016. The parties have twins age 11. They entered into a comprehensive consent order pronounced December 15, 2015. AD’s income was set at $64,760; AMB’s at $12,838. AD agreed to pay child support in the amount of $700 per month and 81.94% of all

section 7 expenses other than child care. AMB agreed to be responsible for child care costs. [ 4 ] These provisions were amended by consent in the Divorce Judgement on April 25, 2016 to have the parties share child care costs proportionately. [ 5 ] The child support provisions were amended following a Child Support Resolution Meeting on May 11, 2017. AD’s Guideline income was agreed to be $61,250; AMB’s income was unknown as she was then recently unemployed. AD’s child support payments were increased to $868 per month. [ 6 ] The

section 7 expenses were dealt with by way of a further consent order pronounced December 19, 2017. AD’s income was revised back to the 2015 income of $64,760. The parties agreed to continue to use the 81.94% proportion for AD and approved daycare and after school care, tutoring and piano lessons as

section 7 expenses. [ 7 ] AMB sought to revisit the child support and initiated a further child Support Resolution meeting. She learned at that time that AD’s income for 2016, 2017 and 2018 had been significantly higher than the $64,760 amount that had been used for the previous consent orders. [ 8 ] AD’s income for the relevant years was in fact: 2015 $35,897 2016 $98,235 2017 $119,089 2018 $116,495 [ 9 ] AD’s financial statement for the 2019 Resolution meeting notes that his take home pay is $6424 per month. He claims undue hardship because of high access costs.

He says that he has to maintain two households due to his employment and to exercise access to his children. [ 10 ] Since 2016, AD has been working in Fort McMurray. He was unable to find well-paying employment in Edmonton so moved to Fort McMurray and maintains a home there. He has retained his Edmonton house as he and his new wife intend to return to Edmonton to live once his employment in Fort McMurray ends. [ 11 ] AD is 65 years old. [ 12 ] AMB’s financial statement discloses employment income of $1,000 per month plus an additional $450 she earns per month doing housecleaning.

She has other income of $100 per month. [ 13 ] AD attempted to quantify his access costs showing various costs associated with owning, insuring and maintaining a vehicle. He drives to Edmonton from Fort McMurray and back every two weeks to spend the weekends with his children. He includes in his costs the cost of maintaining a residence in Edmonton. [ 14 ] On May 14, 2018, AMB swore in an affidavit that she was in a stable relationship with a man who works in Fort McMurray. Retroactive child support adjustments [ 15 ] DBS v SRG , 2006 SCC 37 remains the guiding authority on retroactive child supports.

Here, I am satisfied that AD has been under-reporting his income. AMB should have been notified by the end of June, 2017 that AD’s 2016 income had been $98,000 instead of the estimated $64,760. Timely disclosure would have entitled AMB to seek an adjustment for 2016. She began the current process by way of a notice to attend a child support resolution meeting filed May 8, 2019. [ 16 ] I am satisfied that AD’s wrongful conduct in failing to provide his actual income information permits AMB to seek a retroactive adjustment back to May 2016.

The standard financial disclosure obligation has been in every court order concerning child support since the first one in December 2015. Child Support Guidelines [ 17 ] The Federal Child Support Guidelines provide for consideration of access costs in

section 10: 10

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II. [ 18 ] In SDH v ARH , 2019 ABQB 212 , Lema J summarized the principles arising from the case law on this subject at para 70: Decisions from this Court provide the following additional guidance on undue hardship arising from unusually high access costs: 1. the threshold for finding undue hardship is high. Something more is required than simply an allegation that the payor cannot afford to pay the Guideline amount; 2. hardship is a consideration in favour of a payor who, for valid reasons, may be unable to pay the Guideline support otherwise payable.

Hardship does not give rise to a claim by the recipient for an increase in support otherwise payable; 3. access costs will not be "unusually high" in the "normal situation where parents still live within the same municipality and access costs are a small fraction of the total expenses the parents must pay for child support." However, "where the parents do not live in sufficiently close proximity so that, for example commercial overnight accommodation is required to exercise access or where, for any other reason, the access costs add a considerable cost to the cost which a parent must already pay for child support, the cost of exercising access is unusually high"; 4. access costs can include incremental costs of the child residing with the "access parent" as well as travel costs of visiting the child; 5. whether the payor has exercised, and is anticipated to exercise, access is a factor; 6. the undue-hardship adjustment to child support, where warranted, is not necessarily 1:1; 7. a comparison of household standard-of-living requires at least some evidence… Household standard of living can be gauged by household net income; 8. no adjustment to child support is warranted when the access costs are "minimal relative to [the payor's] income"; 9. same for an extravagant expense; 10. even where both undue hardship and the requisite differential standard of living are shown, the court retains a discretion to deny an adjustment; 11. the reason access costs are high is relevant; 12. reduced living expenses for the parent with primary custody (there on account of living with her parents) may justify a larger reduction of child support for access costs (such as a deduction of actual access costs); 13. an adjustment to child support is warranted where, without it, the payor would be unable to see her children.

The Court invoked s 16(1) of the Divorce Act : "a child of the marriage should have as much contact with each spouse that is consistent with the best interests of the child; 14. the adjustment can take many forms: equal sharing of travel expenses; offset of travel costs against child-support payments; reimbursement by primary-care parent of access parent's travel costs, among others; and 15. the ability to write off all or some portion of the travel expenses incurred for combined business- and access-related travel may eliminate or lessen undue hardship. [ 19 ] I adopt Lema J’s excellent and helpful analysis.

There is a two-part test. First, do the access costs constitute an unusual hardship or burden. Second, with the access costs, does the payor parent pass the usual undue hardship test.

Analysis [ 20 ] Here, I am satisfied that the first element of the required analysis is met. AD moved to Fort McMurray for legitimate job- related purposes. Indeed, without relocating, he would not have been able to earn income of $100,000 or more. From 2010 to 2012 AD earned between $65,000 and $85,000 per annum, so the move to Fort McMurray increased his income. [ 21 ] He has remarried. His wife does not work and is currently upgrading her English. He needs to live in Fort McMurray as he works full time there.

It is not unreasonable for him to maintain his residence in Edmonton, as he intends to relocate back to Edmonton when he retires or otherwise loses his job in Fort McMurray. He is nearly 66 years old, so retirement is not a far-off dream. [ 22 ] Round trip from Fort McMurray to Edmonton is 868 km. Government mileage rates are around $.50 per kilometer, which reflect the cost of gas, routine maintenance and depreciation. [ 23 ] If AD is coming to Edmonton twice a month only to see his children, a mileage allowance at government rates would be $850-$900 per month.

If he did not own a residence in Edmonton, he would need some form of accommodation. Some modest motel or hotel accommodation would be at least $100 per night and there would be costs of entertainment and eating out.

It is easy to see how a $500 per month cost would be incurred. [ 24 ] Compared to “typical” access costs where the access parent has a short drive to see his or her children, and sees the children in their sole residence, AD’s access costs (all of which would appear to be in after-tax dollars) are unusually high. [ 25 ] There is nothing in the materials suggesting he does not exercise his access and these costs take up a significant portion of his income. [ 26 ] AD says his take home pay is $6424. After access costs of $1400 per month, he would be left with approximately $5000 per month. Table

section 3 child support on $116,495 is $1,686 per month, which would leave AD some $3300 per month to support himself, his new wife and two residences. It is interesting to note that such access costs would subsume most of the

section 3 child support [ 27 ] The first element is satisfied. [ 28 ] As for undue hardship and the parties’ respective standard of living, I have no significant evidence on any differences in the standard of living between two households. AMB had re-partnered by May 2018. I do not know if she is still in that relationship, or what the combined household income has been for the years 2016, 2017 and 2018. I do not know the amount of the federal child tax credit AMB receives for the two children. [ 29 ] The information she provided is that she has income of $1550 per month.

Child support at table amounts would increase that to over $3200. The federal child tax credit would add as much as $934 per month if she is entitled to the maximum amounts. She is responsible for only one residence. The children have

section 7 expenses and activities in addition. [ 30 ] On these numbers alone, there appears to be a basis for giving AD some relief (but far short of the “excess” amount of $1400 per month discussed above) to enable him to afford to see his children on a regular basis. [ 31 ] AD has other reasons than access to maintain his residence in Edmonton, and not all of his car expenses are related to access.

I suspect that he would be coming to Edmonton anyway on some occasions. [ 32 ] If AMB has re-partnered, the partner’s contribution to the household income at all relevant times is necessary information, as is the amount of the federal child tax credit AMB is actually receiving. [ 33 ] On AD’s actual income, he should have been paying

section 3 child support of $1434 in 2016, $1722 in 2017 and $1686 in 2018 (and 2019 to date, subject to adjustment when AD’s actual 2019 income is known). He has been paying $868 since June 1, 2017. [ 34 ] Without the missing information, I cannot assess what a fair and reasonable deduction from the

section 3 table amounts should be. I point out here that the payor seeking a reduction because of access costs bears the burden of establishing undue hardship and passing the standard of living test. Part of that is to obtain all of the relevant information from the recipient spouse. The federal child tax credit amount does not fall within normal disclosure obligations; nor does disclosure of a partner’s income.

That is what the discovery process is for. [ 35 ] I would ask that AMB provide me (copying AD) with the amount of the child tax credit she receives monthly for the children, as well as information as to the line 150 income for her current partner (if she has one). Only when I have that information can I make an assessment. This information should be provided by December 20 at the latest. Heard on the 16 th day of October, 2019. Dated at the City of Edmonton, Alberta this 5th day of December, 2019.

Robert A. Graesser J.C.Q.B.A. Appearances: AMB Self-Represented Litigant AD Self-Represented Litigant