Power v Power, 2019 ABQB 939

Court of Queen’s Bench of Alberta Citation: Power v Power, 2019 ABQB 939 Date: 20191209 Docket: 4808 010865 Registry: Medicine Hat Between: Dawn Annmarie Power Plaintiff - and - Glen Celestine Power Defendant Corrected judgment: A corrigendum was issued on February 7, 2020; the corrections have been made to the text and the corrigendum is appended to this judgment. _____________________________________________________ Reasons for Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction and Overview [ 1 ] This is an application by Dawn Annmarie Power (House) (“the Applicant”) filed on June 11, 2018, seeking various forms of relief. First, she seeks a declaration that Carla Marie Power, born in 1999, ceased to be a child of the marriage within the meaning of the Divorce Act , RSC 1985, c 3 (2 nd Supp .), effective September 1, 2017. Second, she seeks retroactive child support from May 3, 2013, based on the actual income of the Defendant, Glen Celestine Power (“Mr. Power”).

Third, the Applicant seeks an order setting Mr. Power’s on-going child support from 2018 onward. Fourth, the Applicant asks the Court to recalculate the parties respective share of s 7 expenses based on actual incomes. Finally, the Applicant seeks solicitor-client costs relative to this application. [ 2 ] This matter was originally set for a Special Application on August 23, 2018. However, in light of the conflicting evidence disclosed in the affidavits of both the Applicant and the Defendant, I set the matter over for a 2 day vive voce hearing on October 15 and 16, 2018.

At the conclusion of the evidence and the oral arguments of counsel, I reserved my decision. The parties appeared before me again on May 31, 2019, to provide further submissions. A further set of written submissions were provided by counsel in early November 2019. These are my reasons for decision.

Facts [ 3 ] The parties married on May 15, 2001 and separated on April 10, 2009. They were divorced on May 3, 2013. [ 4 ] There are three children of the marriage:

a) Carla Marie, born in 1999 (aged 20 years);

b) Madison, born in 2003 (aged 16 years);

c) Trevor, born in 2006 (aged 13 years). [ 5 ] At the time of separation, Ms. Power left the matrimonial home, leaving the children in the care of their father. She was not working at the time, though accepted a job in May 2009 with Diversified Chain & Rigging in Brooks. Mr. Power testified that he was also unemployed at the time of separation, allowing him to initially look after the children. In an affidavit sworn January 4, 2010, Mr. Power deposed that he was unemployed until the end of September 2009, at which time he obtained employment with Brad Doble Trucking.

The Applicant, on the other hand, recalled that at the time of separation he was working for Rice Brothers and also cutting grass for cash on the side. [ 6 ] The Applicant was represented by counsel following the separation. Through her counsel she filed a Statement of Claim for Divorce and a Notice to Disclose on May 14, 2009. Ms. Power does not recall any court appearance relating to the Notice to Disclose Application, and stated that she never personally received any financial disclosure that may have been provided by Mr. Power or his then counsel.

The Applicant’s counsel adjourned the Notice to Disclose application sine die by way of letter to the court on July 2, 2009. Her counsel filed a Notice of Ceasing to Act on September 23, 2009, but filed further documents on behalf of Applicant in January 2010. [ 7 ] Mr. Power was also initially represented by counsel, but his counsel also filed a Notice of Ceasing to Act on September 24, 2009.

Both parties retained their current counsel to assist them with respect to the current application. [ 8 ] On May 26, 2009, the Applicant filed an application seeking exclusive possession of the matrimonial home and interim joint custody. She also asked the court to award her $3,000 per month in unspecified child and spousal support. [ 9 ] The parties entered into a shared parenting arrangement pursuant to a court order dated July 7, 2009. On that date, Langston J signed a consent order for week on/week off parenting.

At the same time, the Court reserved the right of both parties to seek child and/or spousal support pending both parties obtaining employment. [ 10 ] Mr. Power was able to find work around that time and the children began to spend more and more time with the Applicant. Ultimately, the children came to be in her full-time care. She brought a court application at that point as she was not receiving any child support.

The Applicant conceded that she paid no child support while the children were in the care of their father immediately following separation. [ 11 ] On November 25, 2009, the Applicant filed an application to vary the order of Langston J of July 7, 2009. In her supporting application, she deposed that she believed Mr. Power was earning between $35 and $40 per hour as an oil field picker operator and, as such, his annual income was estimated to be $80,000. She went on to state that she believed that his child support payment would be $1,510 per month at that income level.

A second Notice to Disclose application was filed on the same date. Mr. Power filed a response to this Notice to Disclose on January 4, 2010, though the Applicant claimed that she never saw any financial documents from Mr. Power as a result of her application. On the same date, Mr. Power filed an application for primary parenting of the children. [ 12 ] On December 3, 2009, Miller J made an interim without prejudice order directing Mr. Power to immediately make a child support payment of $1,200, as well as a payment of $1,000 for spousal support.

He directed that an additional $1,000 in spousal support was to be paid by December 15, 2009, and a further $1,200 in child support by January 1, 2010. He adjourned the application then before him to January 14, 2010, to determine the issues of on-going and retroactive child support. The child support order was not registered with MEP. [ 13 ] On January 14, 2010, Wilkins J ordered Mr. Power to pay child and spousal support on February 1, 2010 in the amount of $1,200 and $1,000, respectively. He adjourned the application to February 18, 2010.

The order included the standard provision requiring the parties to exchange tax returns on an annual basis on or before June 30 of each year. [ 14 ] On February 18, 2010, Wittmann CJ issued an order varying the previous orders by deleting the requirement for Mr. Power to pay spousal support. He granted day to day parenting to Applicant with reasonable and generous access to Mr. Power. Finally, he set child support at $1,200 per month commencing March 1, 2010. His order repeated the requirement for the parties to exchange financial information in June of each year. [ 15 ] On July 8, 2011, Mr.

Power filed an application seeking primary parenting of the children, with reasonable access to the Applicant. On July 21, 2011, Sanderman J made an order granting Mr. Power access to the children every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. commencing the week of July 29, 2011. [ 16 ] On August 18, 2011, Romaine J ordered Mr. Power to disclose his financial information for the previous two years within two weeks. She also directed the Applicant to file a further affidavit regarding claimed s 7 expenses, to provide her financial disclosure, within two weeks.

The order confirmed the $1,200 per month amount in s 3 child support. [ 17 ] A Divorce Judgment was granted by Jerke J on May 3, 2013. Clause 11 of the Divorce Judgment included the standard financial disclosure requirement that both parties would provide a complete copy of their income tax returns and any notices of assessment or reassessment on an annual basis on or before June 30 of each year.

[ 18 ] Approximately one year prior to their separation, the parties started their own company, TCM Oilfields. The company was involved in trucking and oilfields work. The Applicant, along with Mr. Power, was a shareholder in the company. While the parties were together, Ms. Power was on the company payroll and assisted with the bookkeeping. [ 19 ] Mr. Power sold the company’s truck to Rice Brothers in the late 2009, and then went to work for the same company. The parties came to an agreement that the proceeds of sale from the truck would be used to pay off the Applicant’s vehicle.

In return, she relinquished her claim to an interest in the matrimonial home. Mr. Power produced a record showing a bank draft dated November 20, 2009, in the sum of $54,205, together with a mutual release that both parties signed, Exhibit #3, that reflected the terms of this agreement. In cross-examination, Mr. Power conceded that he does not know how much equity the parties had in the home at the time of separation. Nonetheless, he maintained that it was an equitable trade. [ 20 ] In 2010, the Applicant moved with the children to Canmore. The following year, in 2011, she relocated with the children to Leduc.

According to Mr. Power, he did not consent and, indeed, was not notified, of either of these relocations. After the children went to reside in Canmore, and then Leduc, Mr. Power was only able to see the children about every six weeks as a result of his work

schedule at various camps. At present, he sees the children every second weekend. Pick up and drop off now take place in Stettler. [ 21 ] The Applicant had another child in 2010. She began a new relationship with Jace House in 2013, shortly before the divorce from Mr. Power was finalized. The Applicant and Mr. House married on June 29, 2013. They had a child together on December 31, 2016, but the child was stillborn. [ 22 ] Mr. Power began a relationship with his current wife around 2014, and they married in 2017.

His new wife had two children from a previous marriage who continue to reside with them. [ 23 ] In August 2017, after graduating from high school, the parties’ oldest child, Carla, decided to go and live with her father. She immediately obtained employment. It is common ground between the parties that Carla is no longer a child of the marriage. [ 24 ] After Carla moved in with her father in August 2017, the parties agreed to lower Mr. Power’s child support to $1,100 per month, plus $200 per month to cover the cost of braces for all three children. In his evidence, Mr.

Power stated that the Applicant suggested that child support be reduced by $300 per month at the time of Carla’s decision to go and live with her father. There is also some evidence that Mr. Power further reduced his monthly child support in 2018, based on his determination of the table amount of child support payable on his reduced income. [ 25 ] At the time of giving evidence in this proceeding, October 15, 2018, Mr. Power was working for Feniks Oilfield Services Ltd as a lease operator. He gave evidence that he had been in that position for several months.

He entered into a lease agreement for a 2019 vehicle to pursue this employment and now has monthly truck payments. The cost of insurances, licencing and fuel is covered by Feniks, though the lease is held by Mr. Power’s company BLI. [ 26 ] The Applicant was unemployed as of the date of the vive voce hearing. [ 27 ] It is common ground that Mr. Power’s actual income in 2013 and to the present exceeded $75,000 in every year, save for 2017. His income from 2009 until 2017, as well as the income of the Applicant for the same time period, was as follows: Mr. Power Ms.

Power 2008 $118,084.19 2009 $35,371.00 $25,989 2010 $79,385.00 $15,510 2011 $111.278.00 $55,006 2012 $122,833.46 $40,252 2013 $180,871.42 $44,595 2014 $185,590.00 $31,812 2015 $154,054.33 $48,231 2016 $117,592.96 $54,302 2017 $62,982.10 $32,003 2018 $46,545.00 $7,369 2019 $38,769.11 $31,200 (imputed) [ 28 ] According to the Applicant, she received two or three spousal support payments from Mr. Power, but then the payments simply stopped. Mr. Power, however, maintained that he paid spousal support every month until the Applicant remarried in 2013. He acknowledges that he terminated spousal support at that time.

In cross-examination, he was shown an order of Wittmann CJ dated February 18, 2010, which terminated spousal support. Notwithstanding his acknowledgement that he was obviously present when the order was made, he was certain that he continued to pay spousal support thereafter, though conceded that he had no evidence to support his contention that spousal support payments continued after the February 18, 2010 order. In cross-examination, he insisted that the Applicant called him to complain after he quit paying spousal support following her remarriage. He maintained that there is no

possibility that this discussion related to s 3 child support. [29] It seems clear from the evidence of both parties that they did not fully appreciate the significance of Wittmann CJ’s orderterminating spousal support some two months after it was first ordered. [30] In February 2018, Mr. Power lost his employment with Cenovus Energy. At that time, Mr. Power’s company, BLI., acompany incorporated on the advice of Mr. Power’s accountant, was contracted to Cenovus to provide dispatch services. Mr. Powerobtained new employment as a truck driver with Campbell Trucking hauling gravel in March 2018.

He then worked briefly for SmithTrucking, though was subsequently laid off and had difficulty finding employment for a period of time thereafter. [31] On April 21, 2017, the Applicant was convicted of defrauding her then employer, Diversified Chain and Rigging Inc., in theamount of $95,159.22, and ordered to pay restitution in that amount. Mr. Power expresses concern that any amount of retroactive childsupport that may be ordered in this instance will be used to pay off this debt and not be used for the benefit of the children. [32] The current financial statements for Mr.

Power’s company, BLI were entered in evidence in this proceeding. The financialstatements reveal that $28,000 is to be paid out as a dividend to Mr. Power’s current wife. According to Mr. Power, his new wifeprovides clerical and bookkeeping services to the company and that the amount of the dividend represents fair remuneration for herservices. The determination of Mr. Power’s income for 2018 for child support purposes is a key issue in these proceedings. [33] In March 2018, the Applicant filed the current application. At that point, she discovered that Mr.

Power had started acompany, BLI, and that she believed that he was making considerably more income than he had disclosed to her. Analysis [34] The Applicant relies on a series of decisions, including SLW v WNW, 2017 ABQB 772, Johansson v Haaranen, 2018 ABQB554, Goulding v Keck, 2014 ABCA 138, Burke v Burke, 2002 ABQB 281, and Roseberry v Roseberry, 2015 ABQB 75.

The Defendantalso provided the Court with a series of decisions, including, (SCC), 1999 CarswellOnt 2734 (SCC), L (RE) v L (SM),2007 ABCA 169, DBS v SRG, 2006 SCC 37, and Warren v Baird, 2015 ABQB 479, Should Carla Marie Power, born in 1999, be declared to no be a child of the marriageas of September 1, 2017? [35] Carla Marie Power attainted the age of 18 years in 2017. On the evidence before me, it is clear that she commencedemployment after completing high school in June 2017. Both parties take the view that she thereby ceased to be a child of the marriage. Iagree.

Accordingly, I would issue a declaration that she ceased to be a child of the marriage on reaching the age of eighteen years on herbirthdate in 2017. As such, Mr. Power’s responsibility to pay child support for Carla terminated as of the end of July, 2017. Is the Applicant Entitled to Retroactive Child Support dating back to May 3, 2013? [36] The Applicant seeks retroactive child support back to May 3, 2013, the date of the Divorce Judgment. However, in heraffidavit sworn July11, 2018, she sought retroactive child support back to the date of separation, April 9, 2009.

Having sought noamendment to her Application, I find that the Applicant may only ask the Court to consider a retroactive award back to the date of theDivorce Judgment, as set out in her formal pleadings. [37] The leading case on retroactive awards of child support is the decision of the Supreme Court in DBS v SRG, 2006 SCC 37.The application of the principles set forth in DBS have been the subject of a number of decisions of the Court of Appeal and this court,including Goulding v Keck, 2014 ABCA 138. [38] In Goulding, the Court set out the basis principles flowing from DBS (at para 20-21): The Supreme Court’s decision in DBS is the leading authority on retroactive child support.

DBS recognizes that parents have a free-standing obligation to support their children in a manner commensurate with their income, and children have the right to receive thatsupport: DBS at para 54; Kerr v Baranow, 2011 SCC 10 , [2011] 1 SCR 269 at para 208. Under the Guidelines, child supportobligations are calculated systematically by reference to the payor’s income, not the needs of the child. The amount of support fluctuateswith the payor’s income - if the payor does not increase the amount of support when his or her income increases, it is the child who loses(DBS at para 45).

In cases where a payor has not increased support to mirror the increase in his or her income, courts can enforce the payor parent’sobligation by awarding retroactive child support corresponding to the support thus owing. DBS does state that where there is a validcourt order setting a flat sum of support, the court is disinclined to award retroactive support until the payor receives some notice that anincrease in support is payable.

The Supreme Court declined to impose an automatic legal obligation on the payor to disclose an increasein his or her income that might otherwise require an increase in support payments.

In that circumstance, the payor has a compellinginterest in certainty and predictability in reasonably relying on the existing court order (DBS at paras 63, 74) [Emphasis added]. [39] The Court of Appeal went on to cite the four factors from DBS (at para. 21): To balance the payor’s predictability interest with the child’s right to support, DBS shaped entitlement to retroactive support based onfour fact-driven, relevant, but non-exhaustive factors: 1. whether there was a reasonable excuse for why support was not sought earlier;

2. the conduct of the payor, and whether the payor engaged in “blameworthy conduct” (a term defined in para 40 below); 3. the circumstances of the child; and 4. any hardship occasioned by a retroactive award. [ 40 ] Before turning to consider the DBS factors, it is important to set out the history of child support payments in this instance. Child support was set at $1,200 per month at the time of the December 3, 2009 order of Miller J, who directed that the Defendant immediately pay that amount of child support, as well as a further payment of $1,200 on January 1, 2010.

This amount was confirmed in the orders of Wilkins J, Wittmann CJ, and Romaine J on January 14, 2010, February 18, 2010, and August 18, 2011, respectively. This was also the amount included in the Divorce Judgment of Jerke J dated May 3, 2013. [ 41 ] The parties take very different positions on the proper characterization of this stipulated amount of child support payable by Mr. Power. [ 42 ] On the one hand, the position of the Applicant is that there was never an agreement reached by the parties regarding the on- going payment of $1,200 per month in child support.

The Applicant says that $1,200 was the amount that emerged from the first court appearance that addressed the issue of child support on December 3, 2009. She maintains that she had no role in selecting the amount and that, in any event, this amount was never intended to reflect anything other than a temporary or interim solution. The Applicant testified that there was never a verbal or written agreement regarding the amount of child support to be paid by Mr. Power. She stated that “we agreed that support would be based on his income”.

According to the Applicant, she was only briefly represented by counsel following the parties’ separation and was without the assistance of counsel in preparing the documents required to advance the divorce. Moreover, the Applicant says that she lacked full financial information at the time of the divorce, a fact that should weigh in favour of her contention that there was no agreement. [ 43 ] Mr.

Power, on the other hand, maintains that the parties had an agreement to deviate from the Federal Child Support Guidelines (“the Guidelines”), and that this agreement subsisted until Applicant served notice on him that she wished to change the terms of that agreement by filing this application. According to the Mr. Power, the agreement was confirmed in writing when both parties signed the Divorce Judgment. [ 44 ] In cross-examination, Mr. Power confirmed that the initial child support amount of $1,200 was the result of an agreement reached between the parties in conjunction with a court appearance. Mr.

Power recalled that the judge asked them about this amount and that they then left the courtroom for a few minutes to discuss the matter. According to Mr. Power, when they returned to the courtroom, the judge made an order setting the amount of child support at the agreed upon amount. Mr. Power conceded that he does not recall how the parties arrived at the figure of $1,200. [ 45 ] It is common ground between the parties, however, that there was an agreement that they would share equally the cost of the children’s expenses, including school fees and school supplies.

The Applicant gave evidence that the parties agreed that they would split the cost of extraordinary expenses, though she also testified that she was not aware how these expenses were to be calculated under the Guidelines. Mr. Power paid his share of these extraordinary expenses until February 2018.

The Applicant’s evidence is that as of May 2018, the amount outstanding is $6,042. [ 46 ] I would note that the sharing of such expenses is typically limited to what are understood to be “extraordinary expenses”, and the allocation of financial responsibility between the parents is generally based on each parent’s income-based proportional share of such expenses. While this may be the typical or most common way for the allocation of financial responsibility for extraordinary expenses, it is, of course, always open to parents to come to some other agreement.

I am satisfied that such an agreement clearly existed in this instance. [ 47 ] In DBS , the Supreme Court underscored the importance to be attached to agreements reached by parents to resolve their own legal affairs.

The Court also noted the importance of judicial deference to such agreements: DBS at para 76 . [ 48 ] In my view, the content of the Divorce Judgment is helpful in determining whether or not the parties reached an agreement following separation that child support would be set at $1,200 per month. [ 49 ] The terms of the Divorce Judgment are set out on a pre-printed form with certain boxes checked off and other detailed information inserted at various places on the form. Mr. Power’s Guideline Income was stated to be $75,000, while the Applicant’s Guideline Income was set at $55,000.

Section 3 child support was fixed at $1,200 per month. The Divorce Judgment made no provision for the allocation of financial responsibility for s 7 expenses. A box was ticked off on the form indicating that the parties had agreed to waive spousal support, and that each party had received independent legal advice with respect to the agreement. Both parties signed the Divorce Judgment. [ 50 ] A second box on the pre-printed form was ticked off indicating that “[T]he Parties have agreed to depart from the Federal Child Support Guidelines for the following reasons”.

Underneath this pre-printed portion of the form, the parties inserted the following: “[W]e agreed upon an amount and are both satisfied with this still”. [ 51 ] The Applicant filed copies of the extensive email communication that she had with Jodi Banman, Family Law Information Clerk, Family Justice Services and Civil Mediation, Medicine Hat, in April 2013, regarding the completion of the materials required to obtain a desk divorce (Applicant’s Book of Exhibits, Tab 1). Ms.

Banman provided very detailed instructions to the Applicant in terms of the required content of the Affidavit of Applicant and the Divorce Judgment. In relation to the Applicant’s supporting affidavit, Ms. Banman advised that “You must fill in an amount in this line. From your orders, it looks like you have agreed on $1,200 per month but an amount must be filled in”. Ms. Banman also told the Applicant that the Divorce Judgment required the inclusion of the Guideline Incomes of both parties.

Finally, the Applicant was advised to attend the Family Law Information Centre in Edmonton “to have the documents reviewed and sworn prior to sending them here”.

[ 52 ] On the evidence before me, it seems clear that Mr. Power played little, if any, role in the preparation of the Divorce Judgment or the supporting affidavit in the name of the Applicant. Mr. Power acknowledged that he had no knowledge whatsoever about the process to be followed to obtain a divorce judgment. He recalled signing documents on the hood of a car in Stettler during an exchange of the children with the Applicant, but could recall if this related to the divorce or something else.

In cross-examination, when confronted with the affidavit of execution attached to the Divorce Judgment, he conceded that this was not the document that he signed on the hood of a car in Stettler. [ 53 ] While Mr. Power obviously signed the Divorce Judgment, I am satisfied that the entire content of the documents originated with the Applicant, including the words “[W]e agreed upon an amount and are both satisfied with this still”. In my view, this language is consistent with the Mr.

Power’s contention that the parties had reached an agreement on child support when the Applicant took on the day-to-day parenting responsibility for the children. As previously indicated, the parties’ agreement extended to the equal division of all extraordinary expenses, an agreement the existence of which has never been challenged by either of the parties. [ 54 ] I am also satisfied that the Applicant was fully aware that the child support specified in the Divorce Judgment represented a departure from the Guidelines .

The ticking of the box on the pre-printed form to this effect is clear evidence that she knew that the specified amount of child support was not in accordance with the Guidelines . [ 55 ] The Applicant’s evidence was that she believed that Mr. Power’s income around the time of separation was around $75,000. In 2009, the table amount for three children with a payor having an income of $75,000 was $1,414 per month.

I would also note that in the supporting affidavit filed by the Applicant in conjunction with her November 25, 2009, Notice to Disclose Application, she proposed s. 3 child support of $1,510 per month based on what she then roughly calculated Mr.

Power’s income to be at the time, specifically, $80,000. (I would note that this child support amount accurately reflected the table amount associated with that income level.) I am satisfied that the Applicant was fully aware that $1,200 per month was not the table amount of child support for an income of either $75,000 or $85,000 per year. [ 56 ] I have carefully considered all of the evidence that has been produced in this matter, including the testimony of both the Applicant and Mr. Power, the contents of the court file, and the written materials filed by counsel in relation to this application.

I am satisfied that the parties reached an agreement following separation that Mr. Power would pay child support in the amount of $1,200 per month and that the parties would split the cost of all other expenses relating to the children on a 50-50 basis. This agreement was confirmed in the Divorce Judgment wherein the parties clearly indicated an intention to deviate from the Guidelines. This was a document prepared by the Applicant and, as such, she must be taken to have been aware of its contents. [ 57 ] I do not accept the Applicant’s contention that she lacked financial information from Mr.

Power at the time of the divorce. By May 2013, she had initiated several court proceedings relative to the issues of parenting and child support, including the November 25, 2009 Notice to Disclose application that was filed without the assistance of counsel. I am satisfied that she was sufficiently familiar with the court processes associated with family law matters that she was well aware of the process to obtain Mr. Power’s financial information if she wished to do so.

The fact that there was no further financial disclosure application filed around the time of obtaining the Divorce Judgment strongly suggests that she was aware of Mr. Power’s income, mindful of the agreement that had been reached, and thus did not require any further financial disclosure from Mr.

Power. [ 58 ] In Goulding , the Court of Appeal addressed a fact situation wherein the parties had a written agreement regarding child support, including a contractual term that the parties would exchange financial information by June 30 th each year, and would review child support every second year following the execution of the agreement. These contractual requirements were drafted to ensure that child support met the requirements of the Guidelines . The Court of Appeal placed significant emphasis on the terms of this agreement in considering the issue of retroactive child support.

At paras 26-27, the Court set out a series of principles regarding agreements reached between parents in relation to the reasonable support of their children. The Court stated: The law encourages parents to resolve their own affairs outside of litigation. This is often achieved by an agreement to an amount of reasonable support for their children ( DBS at para 76 ). Of course, such agreements always remain subject to the jurisdiction of the court to uphold the best interests of the child and ensure adequate payment of support ( Doe v Alberta, 2007 ABCA 50 , leave denied, [2007] SCCA No 211 at paras 25-26) .

Assuming that the agreed terms meet this threshold and enforcement is not otherwise unconscionable, the court has an obligation to respect the parties’ agreement ( DBS at para 78 ; LL v GB , 2008 ABQB 536 , at paras 107-108 , aff’d 2009 ABCA 356 ) (Emphasis Added). Where parents have set out their respective child support obligations by contract, that agreement is also, by definition, evidence of the mutual intentions and expectations of each party.

When those intentions and expectations are adequate in accordance with the law, the court has no grounds to interfere or alter the parties’ arrangement. [ 59 ] I am satisfied that the agreement set out in this Divorce Judgement is an agreement that this Court must respect. I am also satisfied that the agreement met the threshold adequacy requirement as being a reasonable arrangement for the support of the children within the meaning of s 17(6.5) of the Divorce Act , particularly in light of the other aspect of the agreement relating to Mr. Power’s sharing of all other expenses on a 50-50 basis.

While the s 3 child support amount was less than the table amount for an income of $75,000, his acceptance of responsibility for 50% of all other expenses exceeded his legal responsibility to pay his proportionate share of eligible s 7 expenses. [ 60 ] Notwithstanding my finding that an agreement existed between the parties relative to the quantum of child support, that does not end the matter.

In DBS , the Supreme Court held that a court may still order retroactive child support in situations where circumstances have changed and the actual support obligations of the payor parent are not being met: DBS , at para 78 . In this instance, as more fully described below, it is clear that Mr. Power’s income increased very significantly in the years following separation. His children did not share in the benefits flowing from their father’s enhanced financial position. In my view, this significant increase in Mr. Power’s income suggests that he was no longer meeting his support obligations to his children.

As such, an examination of the four non- exhaustive factors set out in DBS needs to be undertaken to assess entitlement to retroactive child support. I will now consider each factor.

Was there a reasonable excuse for why the support was not sought earlier? [ 61 ] In this instance, the Applicant says that she repeatedly asked the Mr. Power for information regarding his income. She maintains that she was completely unaware of Mr. Power’s actual income in the years following their separation and eventual divorce. Her evidence was that Mr. Power was somewhat evasive and told her that he was making more or less the same as the previous year. She maintained that she never received any written information from Mr. Power regarding his income in any given year.

She could not recall if he texted her with this information, but she did not believe so. Mr. Power conceded in cross examination that the Applicant may well have asked for documents, including financial information, from time to time. However, he insisted that she did not regularly seek this information and told him that she did not want copies of his tax returns. He insisted, however, that whenever she asked for information or documents, he always provided it to her. [ 62 ] Mr.

Power acknowledged that Wilkins J told the parties on February 18, 2010, about the on-going obligation resting on both of them to exchange financial information on an annual basis. At the same time, he acknowledged that he never read the order after it was signed and was unaware at that time how child support was calculated. He does, however, now know that child support is calculated on the basis of the payor’s income. [ 63 ] The Applicant concedes that she did not provide Mr. Power with a copy of her tax returns from 2011 to 2016, and does not recall whether she provided her 2009 tax return.

She explained her failure to comply with this requirement on the basis that Mr. Power never requested this material. [ 64 ] Yungwirth J noted the unfortunate consequences of failure to comply with the annual disclosure requirements routinely found in divorce judgments in Alberta in Roseberry . I would adopt her reasons in this regard. At paras 61 and 64 she stated: 61.

Non-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, the recipient, and the Court to make a timely and proper assessment of whether child support is being paid in accordance with the Federal Guidelines . 64. The practice in Alberta of requiring a mandatory annual disclosure clause in every support order highlights the importance of ensuring that disclosure is kept up to date.

Though this does not go as far as creating an automatic disclosure requirement every time a party’s income increases, it does impose a court ordered obligation on both parents to provide income information to the other parent on an annual basis. This is consistent with the objectives set out in s 1 of the Federal Guidelines and the Alberta Guidelines , which can only be met with regular disclosure. [ 65 ] I am satisfied that both parties ignored their responsibility to provide an annual financial update to each other, though the parties’ evidence on this point is somewhat conflicting.

This litigation and all of its attendant costs, financial and otherwise, would doubtless have been avoided if the parties had both honoured their obligations to each other and to their children as set out in the various court orders. [ 66 ] Earlier in these reasons I referred to the Applicant’s familiarity with the financial disclosure process flowing from her initiation of two separate Notice to Disclose applications in 2009. The Applicant also gave evidence regarding her experience with the father of her youngest child, Mia Antle, relative to child support and the provision of financial information.

She described the process in that instance as involving an agreement reached between the parties that they then went to court to finalize in 2010. The Applicant recalled that the judge took the father’s income, looked at a table, and then came up with a child support amount.

Moreover, she explained that Mia’s father shows her his tax returns on an annual basis. [ 67 ] What I take from this evidence is that, dating back to 2009 and 2019, the Applicant was aware that child support was linked to the income of the payor and that the on-going determination of child support was closely connected to the sharing of financial information between the parties on an annual basis. Given that knowledge, it is difficult to understand why she failed to initiate court proceedings in relation to Mr. Power prior to 2018. Even accepting her evidence that Mr.

Power was vague or evasive in responding to her inquiries, I am not persuaded that she has provided a reasonable excuse for why current financial information was not sought from Mr. Power prior to 2018. This is, however, only one consideration in the DBS analysis. Did the conduct of the payor amount to “blameworthy conduct”? [ 68 ] In Goulding , the Court of Appeal provided guidance to trial judges on the proper

interpretation of the term “blameworthy conduct”. At paras 43-44, the Court held: “Blameworthy conduct” is a legal concept created and defined in DBS . It is a term of art. In DBS , the court defined blameworthy conduct expansively to include “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support” (at para 106). Once the payor parent engages in such conduct, there can be no suggestion that he or she thought that his or her obligations were being met over the relevant period ( DBS at para 124 ).

DBS says that failing to disclose a significant increase in the payor’s income may be “blameworthy conduct”. No level of conduct that prejudices the rights of the child can be encouraged ( DBS at para 107 ). That may be the case not merely where a payor intimidates or lies to the recipient parent, but also “where (s)he withholds information” ( DBS at para 125 ).

Since DBS , many courts have held that a failure to disclose amounted to “blameworthy conduct”, weighing heavily in favour of a retroactive award (See: Koback ; LL v GB ; Burchill v Roberts; Greene v Greene , 2010 BCCA 595 ; Witwicki v Seifner, 2013 ABQB 354 , at para 28 ; Young v Smith, 2013 ABQB 521 ).

The payor’s subjective intention is rarely relevant - the real question is whether the payor’s conduct had the effect of privileging his or her interests over the child’s right to support. [ 69 ] I would again refer to the decision of Yungwirth J in Roseberry , where she also explained how the failure to disclose can amount to blameworthy conduct. At para 62, she held:

The scheme in the Guidelines does not burden a payor parent with an automatic disclosure obligation every time his income increases: DBS at para 58 . However, not disclosing a material change in circumstances – including an increase in income that one would expect to alter the amount of child support payable – is itself blameworthy conduct: DBS at para 124 . [ 70 ] In assessing Mr.

Power’s conduct in failing to provide his annual tax information as mandated by the terms of the Divorce Judgment and the other orders of this Court, I accept his evidence that he believed he had a binding agreement with the Applicant that set child support at $1,200 per month. I also take into consideration the fact that the contents of Exhibit #6 confirm that he fully met his payment obligations for the period of 2015 to 2018. There is no dispute between the parties that Mr.

Power made regular child support payments until March 2018, though he reduced the payments in August 2017 after Carla turned 18, started full-time employment, and made the decision to reside with her father. [ 71 ] Mr. Power produced evidence (Exhibit #6) relating to his Interac e-transfer history of payment to the Applicant between January 2015 and February 2018. There were no missed or late payments reflected in these records. I accept his evidence that these records reflect the amounts he paid to the Applicant by way of child support and contribution to the children’s other expenses. In 2015, Mr.

Power paid a total of $17,826, representing monthly payments of $1,200 plus an additional $3,426. In 2016, Mr. Power paid a total of $20,278.50, representing monthly payments of $1,200 plus an additional $5,878.50. In 2017, Mr. Power paid a total of $19,108, representing monthly payments of $1,200 plus an additional $4,708. [ 72 ] As described above, his payments during these three years significantly exceeded the amount stipulated in the parties’ agreement and confirmed in the Divorce Judgment.

These excess amounts either represent his contributions to the children’s expenses or reflect the additional money he testified he sent to the Applicant starting in 2015, or both. According to Mr. Power, starting in 2015, he began to send the Applicant additional child support over and above the $1,200 monthly amount whenever she asked for more money. He also maintained that he paid his share of all of the additional expenses within a few days of receiving the Applicant’s requests for payment. [ 73 ] I find that Mr.

Power fully met and, indeed, exceeded his child support responsibilities under the agreement during this three- year period. There are, unfortunately, no accurate records that record Mr. Power’s payment history between 2010 and 2015. According to Mr. Power, the initial support payments were made in cash, possibly by cheque. He acknowledged that he had not conducted any search of his financial records for cancelled cheques to confirm that these payments were made. Nonetheless, Mr.

Power’s pattern of behavior relative to his child support obligations between 2015 and 2018 strongly suggests to me that he was equally responsible in meeting his financial responsibilities to his children during the period between 2010 and 2015. [ 74 ] In terms of Mr. Power’s share of the children’s other expenses, the Applicant contends that he is currently in arrears. In her written materials, the Applicant set out the various amounts stated to be owing for the children’s expenses. In 2016, she says that Mr. Power paid a total of $1,700 towards the children’s braces, but still owes her $1,932.

For 2017, she says that Mr. Power paid a total of $2,500 towards children’s expenses, but still owes $2,290. For 2018 (until the end of May), she says that Mr. Power paid a total of $400 towards children’s expenses, but still owes $1,419.99. [ 75 ] I am satisfied that Mr. Power’s failure to disclose the significant increase in his income in the years following separation amounts to blameworthy conduct. By 2013, Mr. Power’s income had more than doubled from his income around the time of separation. By 2014, his income was more than $100,000 per year greater than what he earned as of the date of separation.

His failure to disclose this significant increase in income in such circumstances amounts to a failure to properly address his support obligations to his children, thereby prejudicing their rights. While he may have reasonably believed that he was meeting his support obligations in the years following separation, I cannot accept the contention that this belief continued to be a reasonable one when his income increased dramatically in the ensuing years. In my view, this factor weighs heavily in support of a finding that an award of retroactive child support is warranted in these circumstances.

What are the circumstances of the children? [ 76 ] I again turn to the Court of Appeal’s decision in Goulding for guidance on the scope of this third factor cited in DBS . At paras 49-50, the Court explained: The third factor in the DBS analysis is the circumstances of the child. Here the appellant argues that the chambers judge further erred in finding that there was no evidence of significant need for the child when the support should have been paid. We agree. The circumstances of a child and the issue of “need” deserve careful attention under the DBS analysis.

The child is entitled to a standard of living that he or she would have enjoyed while his or her parents were together ( DBS at para 111 ). With this key principle in mind , DBS says that the child’s circumstances could be considered as one factor in the court’s exercise of discretion in awarding retroactive support (at para 112). [ 77 ] There is very little evidence before me touching on this issue.

While it is clear that there was some conflict between the parties from time to time regarding the cost of certain expenses, this does not invariably lead to a conclusion that the needs of the children were not met by their parents. Mr. Power testified that the children have never complained that they were unable to participate in activities, though he recalled a few times when the Applicant complained about the cost of things.

Otherwise, there is really no direct evidence before me suggesting that any significant needs of the children were not met. [ 78 ] While a finding of actual hardship may favour an award of retroactive child support, the absence of actual hardship does not, in my view, lead to the conclusion that retroactive child support should not be awarded.

In DBS , Bastarache J held (at para 111) that “it is a core principle of child support that, after separation, a child’s standard of living should approximate as much as possible the standard (s)he enjoyed while his/her parents were together”. [ 79 ] I am satisfied that the children would have benefited from additional child support from their father. As such, this is a factor that moderately favours the awarding of retroactive child support in this instance.

Would hardship be occasioned to the payor by a retroactive award? [ 80 ] At paras 56-58 of Goulding , the Court of Appeal explained the fourth DBS factor, “hardship”: In awarding retroactive support, the court is entitled to consider fairness to all parties. Hardship to the payor is typically at the forefront of an application. Equally relevant, however, is the hardship suffered by the recipient parent and the child as a result of the lack of sufficient support. Hardship, however, is not an abstract or impressionistic concept to be asserted by a payor in an effort to avoid a retroactive award.

To weigh against granting retroactive child support, the payor parent must establish real facts from which a reasonable finding of serious hardship could be made. A bald or vague assertion of hardship is not sufficient. The obligation to pay support at the Guidelines amount for a prior period is not a hardship ( Greene at para 87 ). The payor does not suffer hardship by having to pay money which he or she may otherwise owe. Even where hardship is established, courts have broad discretion to mitigate hardship to the payor through a structured payment plan.

Indeed, s tatutory regimes provide judges with discretion to structure child support awards as a lump sum, a series of periodic payments, or a combination of the two: see, e.g.,

section 11 of the Guidelines . [ 81 ] In this instance, Mr. Power now has a new family and additional financial responsibilities to meet. His current income is also less than what he earned in his so-called high income years of 2013 through 2015. Mr. Power’s current financial circumstances are a relevant consideration in examining the issue of hardship.

At para 115 of DBS , the Court reminded trial judges that: ...courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children. In short, retroactive awards disrupt payor parents’ management of their financial affairs in a way that prospective awards to not. Courts should be attentive to this fact. [ 82 ] DBS was an appeal from the Alberta Court of Appeal.

At the Court of Appeal, the decision of the Court was written by Paperny JA. When the case reached the Supreme Court, Bastarache J referred with approval to Justice Paperny’s conclusion that courts should attempt to formulate retroactive awards that minimize hardship, and should creatively explore options to try and minimize hardship. Bastarache J went on to state (at para 116): “But I also recognize that it will not always be possible to avoid hardship.

While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case”. [ 83 ] I am satisfied that Mr. Power would suffer hardship if I were to award retroactive child support based on a year-by year recalculation of his child support obligations flowing from his actual income. In these circumstances, this factor weights somewhat in favour of not making a retroactive award.

Is a Retroactive Aware Appropriate in this Case? [ 84 ] I have carefully considered the circumstances of this case through the lens provided by the four DBS factors. As previously indicated, I do find some blameworthy conduct on the part of Mr. Power in that he enjoyed significant increases in income following separation that were not reported to the Applicant and, more important, not shared with his children. However, I would assess the level of his blameworthy conduct as low given the agreement that existed between the parties following separation relative to child support. Mr.

Power honoured that agreement for a number of years, a factor that weighs in his favour. I accept his evidence that, over the years, he provided some income information to the Applicant when requested to do so. That said, neither party fulfilled the requirements of the Divorce Judgement that they exchange financial information on an annual basis.

Viewed in conjunction with my findings relative to the other DBS factors, I am satisfied that a retroactive award is appropriate in this case. [ 85 ] The Applicant says that I should go beyond the period of three years articulated in DBS on the basis of blameworthy conduct. In DBS , Bastarache J provided a guideline for the period of retroactivity.

At para 123, he stated: “...In general, I believe that the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent”. [ 86 ] I do not accept the Applicant’s contention that Mr. Power’s blameworthy conduct in this instance justifies an award of more than three years.

As such, I am not prepared to make an award dating back to the date of the Divorce Judgment, May 3, 2013. [ 87 ] As a general rule, the date of effective notice to the payor parent is the date to be used for calculating the date of retroactivity: DBS at para 118 . [ 88 ] I find that the effective notice to Mr. Power that the Applicant was no longer prepared to accept the agreed upon amount of child support was June 11, 2018, the date on which she filed the within application. [ 89 ] In her affidavit sworn August 22, 2018, the Applicant attaches as Exhibit “E’ and Exhibit “F’, two text message exchanges with Mr.

Power. One is dated August 24, 2017, while the other contains no year, simply “Wed, Feb 28, 11:48 a.m.” While both of these text messages seeks financial information from Mr. Power, I am not persuaded that either message amounts to effective notice. [ 90 ] In the unique circumstances of this case, I am of the view that it would be appropriate to make a retroactive award dating back two years from the date of effective notice, that is retroactive to June 11, 2016. [ 91 ] The parties’ eldest child, Carla, ceased to be a child of the marriage prior to the filing date of the within application.

Given my finding regarding the date of effective notice, I would conclude that I do not have jurisdiction to make any retroactive award relating to Carla. As such, I may only make a retroactive award relative to the two other children: DBS at para. 88 .

[ 92 ] In the supplementary written submissions filed by the parties, it is clear that counsel have also reached an agreement on Mr. Powers revised 2017 Guideline Income. As such, the parties agree that Mr. Power’s 2017 income should be set at $110,143. Given this agreement, I would set Mr. Power’s 2017 Guideline Income at this amount and direct that for recalculation purposes his

section 3 child- support payments be set at $1,597.94 per month. [ 93 ] I would set Mr.

Power’s child support arrears from June 15, 2016 to December 31, 2017, as follows: 2016 (January 1, 2016 – December 31, 2016 – 12 months) Income: $117,592.96 Child Support payable (2 children) $1665.06/month 6.5 months @ $1665.06 $10,822.89 5.5 months @ $1200 $6,600.00 Total Child Support Due $17,422.89 Amount Paid $14,400.00 Amount Owing $3,022.89 2017 (January 1, 2017 – December 31, 2017 - 12 months) Income: $110,143.00 Child support payable (2 children) $17,192.12 ($1,562.92 per month) (11 months) Child support payable (2 children) $1597.94 (based on 1 month under the revised Guideline amounts) Total Child Support Due $18,790.06 Amount Paid $14,400.00 Amount Owing $4,390.06 Total Amount Owing (2016 & 2017) $7,412.95 Mr.

Power’s Guideline Income for 2018 and 2019 [ 94 ] Mr. Power’s 2018 income was the subject of some evidence during the vive voce hearing held on October 15-16, 2018. Unfortunately, all of the relevant information was not available at that time. With the consent of both parties, the Court received additional information relating to this issue, specifically, Exhibit #12, Applicant’s

Summary of Income Information for the Defendant for 2018; Exhibit #13, Ms. Robertson’s letter of May 30, 2019 to Mr. Kusick enclosing the T-2 Corporate Tax Return for BLI, and Mr. Power’s 2018 Income Tax and Benefit Return (including a copy of his T4 and T5), and Christina Power’s T5. [ 95 ] Counsel for the parties appeared before the Court on May 31, 2019, in Medicine Hat, to receive my decision on the substantive issues raised during trial, as set out above. At the same time, the Court sought the further assistance of counsel to address three outstanding issues:

i) Mr. Power’s Guideline Income for 2018; ii) Mr. Power’s Guideline Income for 2019; and iii) Allowable

section 7 extraordinary expenses for the children and Mr. Power’s payments towards those expenses. [ 96 ] The Court granted leave to both parties to file additional written materials by June 7, 2019, including Mr. Power’s e-transfer history of support payments to Ms. Power in 2018 and up until the present. Counsel were also invited to provide their revised positions on the proper calculation of Mr. Power’s 2018 and 2019 Guideline Income once they have both had an opportunity to review the financial ledgers for BLI.

Finally, the Court granted leave to both parties to provide clarification on the evidence currently before the court relating to extraordinary expenses incurred for the children and Mr. Power’s contribution to such expenses. The parties were to provide this information by July 30, 2019 (the Applicant) and August 9, 2019 (Mr. Power), respectively.

[ 97 ] On May 31, 2019, the parties agreed to set Mr. Power’s 2018 Guideline Income at $70,000. However, based on further review of Mr. Power’s financial records, the parties now agree that his 2018 income was actually less than this previously agreed upon amount. As such, I would set his 2018 Guideline Income at $46,545, including the one-time receipt of $8,274.49 from his RRSP, and direct that his 2019 child support payments be set at $674.52 per month. [ 98 ] I set Mr.

Power’s 2018 child support arrears as follows: 2018 (12 months) Income: $46,545.00 Child Support payable (2 children) $8094.24 [$674.52 per month] Amount Paid $16,822 Amount Owing (Overpayment) $8,727.76 [ 99 ] The parties do not, however, agree on Mr. Power’s 2019 Guideline Income. There is general agreement that his income should, subject to review following the annual exchange of the parties’ financial information, be based on his 2018 Guideline Income.

In accordance with the generally excepted approach to setting Guideline Income prospectively, counsel for the Applicant urges me to simply rely on the 2018 amount. However, counsel for Mr. Power points out that his 2018 Guideline Income was based in part on the one time receipt of $8,274.49 from his RRSP. As such, it is suggested that his 2019 Guideline Income should be his 2018 Guideline Income less this amount. I agree. As such, I would set his 2019 Guideline Income at $38,769.11, and fix his

section 3 child support in the amount of $566.61 per month. Over a 12-month period, this would amount to a total of $6,799.32. [ 100 ] The amount of

section 3 child-support actually paid in 2019 is to be determined by counsel and factored into the total child support arrears retroactive to June 11, 2016. The materials provided by counsel reveal that Mr. Power paid a total of $8,659 during the first 10 months of 2019. This figure must obviously be combined with any subsequent 2019 payments. I would note, however, that his payments to date exceed his

section 3 child support obligations for 2019. The Applicant’s 2019 Guideline Income [ 101 ] The parties initially agreed to set the Applicant’s Guideline Income for 2019 at $23,000. However, the supplementary submissions filed by counsel for Mr. Power on November 8, 2019, urged the Court to impute income to the Applicant at the rate of full- time employment at Alberta’s minimal wage, $31,200.

The Applicant, on the other hand, suggests that computing income at this level would be unreasonable and create hardship given the Applicant’s current childcare responsibilities and the ongoing medical care she is receiving for migraine headaches and numbness to her face. In this regard, counsel for the Applicant seeks to introduce into evidence a letter dated May 22, 2019, authored by Dr.

R Pokroy, a neurologist practising in the city of Edmonton. [ 102 ] Counsel for the Applicant offers no explanation for the failure to produce a medical report at trial or, indeed, subsequently at the time of the May 31, 2019 court appearance in Medicine Hat. However, in view of the fact that Mr. Power’s counsel does not object to my receipt of this evidence, I am prepared to consider this medical report in conjunction with the request to impute income to the Applicant. [ 103 ] In his medical report, Dr. Pokroy refers to the fact that the Applicant complains of facial numbness.

However, he was unable to provide a good explanation for this phenomenon. The medical report offers no information as to the effect of this condition, if any, on the Applicant’s ability to maintain full-time employment. I note that the doctor assessed the Applicant’s risk of developing multiple sclerosis as quite low, specifically less than 10%, but again this aspect of the medical report is not linked to a finding of inability or in capacity to maintain full-time employment. With respect to the migraine headaches, Dr. Pokroy provided the Applicant with a prescription.

He also suggested that Botox might be an option as well. Again, there is no linkage between periodic migraine headaches and an inability to work. [ 104 ] In my view, the Applicant’s current medical issues, as documented in the medical report, do not constitute a sufficient basis for her apparent decision not to seek outside employment. Likewise, I do not believe that she can resist full-time employment on the basis of the age of her children. First of all, the children of the marriage, that is the children that she had together with Mr.

Power, are now aged 16 and 13, respectively, and in full-time attendance at school. Her third child, a child that was born subsequent to her separation from Mr. Power, is reported to be eight or nine years of age. Again, this child would be in full-time attendance at school.

In my view, all three of these children should be sufficiently independent as to permit the Applicant to seek full-time employment. [ 105 ] Other than a stated preference to remain at home, there is no evidence before me pointing to any extraordinary or special needs of any of these children that would prevent or render difficult the Applicant’s pursuit of full-time employment. [ 106 ] I also note that the Applicant provides no evidence of any attempt to obtain any type of employment following her layoff by the company with which she was working sometime during 2018.

While reference is made to her having received some limited employment insurance, there is no evidence before me of any attempts made by the Applicant to obtain employment of any kind. While I accept her evidence that she made a significantly reduced income in 2018, her history of employment earnings outlined earlier in these Reasons reveals a pattern of earning well above the minimum wage level proposed by Mr. Power. [ 107 ] In my view, it is appropriate to impute income to the Applicant at the minimum wage level of $31,200.

In my view, the evidence supports a finding that she is intentionally under-employed. [ 108 ] I would note that the practical significance of setting the Applicant’s Guideline Income is limited to the determination of each parent’s respective share of

section 7 extraordinary expenses. For the calendar year 2019 and on a go forward basis, I would direct that

the expenses are to shared by them as follows: Mr. Power – 56% Ms. Power – 44% [ 109 ] Commencing January 1, 2019, all eligible

section 7 extraordinary expenses are to be divided between the parties on the basis of the formula said it was above. Outstanding

Section 7 Extraordinary Expenses [ 110 ] The final outstanding issue relates to the sharing of

section 7 extraordinary expenses between the parents. In her November 8, 2019 written submissions, the Applicant asks the court to go back to 2015 in relation to claimed

section 7 expenses. In view of my findings with respect to the appropriate period of retroactivity for

section 3 child support, I am of the view that it is appropriate to select the same date, June 11, 2016, in the consideration of outstanding

section 7 expenses. Without making any determination of claimed

section 7 expenses dating back to 2015, I would observe in passing that Mr. Power appears to have paid a significant amount towards these expenses. In addition, I would also note that a number of these cleaned

section 7 expenses, specifically school supplies and hot lunches, are not the type of extraordinary expense contemplated by

section 7 of the Guidelines . [ 111 ] For those expenses claimed after June 11, 2016, I would disallow the claims for Madison’s nails, school lunches, and school supplies. I would also disallow any claimed

section 7 expenses categorized as “extracurricular” in the absence of an itemized receipt. [ 112 ] I would, however, allow all itemized

section 7 expenses categorized as “eyecare” or “orthodontics”. Through his counsel, Mr. Power concedes a total of $684 in 2019 in relation to either eyecare or orthodontics expenses up to June 10, 2019. He also concedes three items categorized as “extracurricular” incurred in 2019, totalling $180. In light of my earlier determination, Mr. Power is responsible for 46% of these two amounts. [ 113 ] With respect to similar expenses incurred in 2017 and 2018, Mr. Power also concedes that he is responsible for 50% of these costs in accordance with the parties’ agreement at separation that they would share the children’s expenses on a 50-50 basis. For the year 2017, the total allowable

section 7 expenses amount to $340. In 2018, the allowable

section 7 expenses amount to $2,244. [ 114 ] In addition, I would allow the following additional claimed s 7 extraordinary expenses:

a) School Fees - September 14, 2016 - $559.50;

b) Carla’s graduation ring - October 18, 2016 – $270;

c) School fees - September 25, 2017 - $155. [ 115 ] In light of the date on which these expenses were incurred, I would direct that Mr. Power cover 50% of the total cost, specifically $984.50. With respect to the remaining claimed

section 7 expenses, I am not prepared to accept them, either on the basis that they are not properly characterized as an extraordinary expense or they were not properly receipted. [ 116 ] I would note that the range of eligible expenses that are covered by

section 7 is restricted and is limited to expenses that truly are extraordinary and fall outside the scope of regular

section 3 child support. I would also direct that on a go-forward basis, eligible extraordinary expenses require the prior agreement of both parents before the expense is incurred. In other words, one parent may not require financial contribution from the other parent in relation to an activity that has not been agreed to in advance.

However, I would expect that the parents in this instance will approach this issue with some significant regard for the activities that the children have historically participated in. [ 117 ] Before closing I would note that at least some of the delay in bringing this matter to a speedy conclusion is the result of counsel’s noncompliance with the deadline imposed by the Court on May 31, 2019, for the filing of additional evidence and further written submissions.

Materials due at the end of July, at the latest, were not actually received until early November, and only then as a result of an intervention by the Court. If counsel were unable to comply with these court-directed dates, they were obligated to seek an extension and not simply ignore the deadlines imposed. [ 118 ] Counsel for Mr. Power also asks me to disregard the very extensive written submissions submitted by counsel for the Applicant on the issue of retroactivity. In her written submissions filed on November 8, 2019, counsel for Mr.

Power states that the issue of retroactivity was fully argued and adjudicated upon. Further, she maintains that this was not an issue in relation to which further submissions were sought. I agree. As such, I disregard that portion of the Applicant’s written submissions dated November 4, 2019, as essentially amounting to re-argument of an issue already resolved. Costs [ 119 ] The results of this trial proceeding were somewhat mixed.

As such, I find that both the Applicant and the Respondent were partially successful and partially unsuccessful in advancing their respective positions on the issues raised in this matter. Accordingly, I decline to make any award of costs in this matter.

Heard on the 19 th day of May, 2019 at the City of Medicine Hat. Dated at the City of Calgary, Alberta this 9 th day of December, 2019. M. David Gates J.C.Q.B.A. Appearances: David G Kusick for the Plaintiff Susan E. Robertson for the Defendant _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice M. David Gates _______________________________________________________ Paragraph 108 has been amended to show the percentages as Mr. Power – 56% and Ms. Power – 44%