Carpen v Carpen, 2019 ABQB 961

Court of Queen’s Bench of Alberta Citation: Carpen v Carpen, 2019 ABQB 961 Date: 20191216 Docket: 4801 179525 Registry: Calgary Between: Lindsay Elizabeth Carpen Applicant - and - David James Carpen Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ [ 1 ] On Friday, November 29, 2019, I heard the mother’s special application for retroactive and ongoing child support and spousal support.

Based on the evidence before me at the time, I determined that there was no retroactive child support owed, and I set the father’s Guideline income for 2018 and 2019. I did not have sufficient evidence before me to direct payment of specific

section 7 expenses, so I outlined the parties’ proportionate sharing percentages for 2018 and 2019. With respect to spousal support, while I found entitlement in favour of the mother, the parties’ incomes were such that ranges for spousal support produced by the Spousal Support Advisory Guidelines (“SSAG”) were minimal. I declined to grant retroactive or ongoing spousal support given the access costs that the father must incur as a result of his children now living in Rocky Mountain House following the mother’s decision to stay there with the children, as opposed to living in Calgary.

[ 2 ] At the conclusion of the hearing, after I gave my reasons for decision, the mother indicated that she once had the father’s 2018 income tax information but it was in the possession of her former lawyer. As a result, she was not able to provide it in evidence for the special application. I subsequently wrote to the parties and referred to rule 9.13 of the Alberta Rules of Court .

That rule provides that at any time before a judgment or order is entered, the Court may vary the judgment or order, or on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. I directed the father to provide his 2018 income tax information to the Court by way of supplemental affidavit and indicated to the parties that I would advise if the new evidence changed my decision. [ 3 ] The father submitted a supplementary affidavit dated December 6, 2019 with his 2018 Notice of Assessment.

It showed that the father had a 2018 Line 150 of $118,407, as opposed to the $95,000 I determined for the purposes of considering the 2018 year. The father deposed that he made two RRSP withdrawals in the total amount of $7,374.01 in order to pay for car transmission repairs. I conclude that these were one-time withdrawals and as a result, should not be included in the father’s 2018 Guideline income. Questions about whether any further RRSP withdrawals should be included in Guideline income will have to be determined in the future. I set the father’s 2018 Guideline income at $111,033.

Child Support [ 4 ] On November 29, I found that the parties continued to live as a family unit until at least August 2018, despite separating in March 2017. I also found that the father had paid a total of $12,283 as child support in 2019. The mother deposed that the father also paid her $12,000 in 2018 representing a combination of child support and payment to help her with debt obligations.

I did not have a more specific breakdown of the $12,000 payment, but I did find that the father had paid a total of $24,283 to the mother. [ 5 ] Based on the father’s Guideline income of $111,033 for 2018, he should have paid $1,610 per month from August to December 2018. For 2019, based on a Guideline income of $80,000, the father should have paid $1,169 in child support per month. This means he should have paid $20,909 in support from August 2018 to the end of November 2019. [ 6 ] Therefore, even with a revised 2018 Guideline income, I conclude that the father still does not owe any retroactive child support.

He has paid $3,374 more than owed as child support ($24,283 - $20,909), which becomes relevant in the spousal support context. [ 7 ] The father’s ongoing child support payments for 2019 shall remain at $1,169 per month. [ 8 ] With respect to

section 7 expenses, the father’s proportionate share for 2018 is 79% and the mother’s is 21% (based on a Guideline income of $30,000 as per her application). For 2019

section 7 expenses, the father’s proportionate share is 73% and the mother’s proportionate share is 27%. [ 9 ] I remind the father that he has an obligation to financially support the children of the marriage. While I understand that his desire to spend time with his children takes away from the time he is able to work, the father must not work less for the purpose of paying less child support. The father should be aware that evidence of his actions relative to work, and what he is doing or has done, may be considered by a court in the future in setting financial support obligations.

Spousal Support [ 10 ] Based on the father’s Guideline income for 2018, the SSAG indicates a low range monthly spousal support award of $268, mid range of $680 and a high range of $1092.

Based on the father’s 2019 Guideline income, the SSAG indicates a low range monthly spousal support award of $0, a mid range of $30 and a high range of $60. [ 11 ] I previously accepted the father’s evidence that he incurs a gas expense of between $200 to $250 per month in access costs in order to spend time with the children. [ 12 ] For 2018, given the father’s 2018 Guideline income, I award the mother spousal support at the mid-range but find it should be adjusted downwards to $500 per month to account for the father’s access costs.

This amounts to $2,500 being owed for 2018, which amount is covered fully by the extra $3,374 he paid to the mother in 2018. [ 13 ] As for 2019, the SSAG range is from zero to $60 per month. I decline to award spousal support for 2019 given the father’s access costs. There is no retroactive spousal support owed to the end of November 2019, and I decline to award monthly spousal support on an ongoing basis at this time. [ 14 ] The parties will receive an order reflective of my November 29 decision, as amended by this endorsement. Heard on the 29 th day of November, 2019.

Supplementary affidavit evidence received on the 6 th day of December, 2019. Dated at the City of Calgary, Alberta this 16 th day of December, 2019.

L. Bernette Ho J.C.Q.B.A. Appearances: Lindsay Carpen Self Represented Litigant David Carpen Self Represented Litigant