Yuce v Yuce, 2020 ABQB 766

Court of Queen’s Bench of Alberta Citation: Yuce v Yuce, 2020 ABQB 766 Date: 20201209 Docket: 4801 168059 Registry: Calgary Between: Bailey Rose Wilkinson also known as Bailey Rose Yuce Applicant - and - Umit Yuce also known as Ymit Yuce Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice O.P. Malik _______________________________________________________ I. Introduction [ 1 ] This is a special family chambers application brought by the Applicant, Bailey Rose Wilkinson (the “Applicant”) on the following grounds: i. That the Respondent, Umit Yuce (the “Respondent”) be ordered to pay retroactive

section 3 child support in the sum of $11,418.90 for the years 2018, 2019, and 2020 as well to fix the amount of child support moving forward; and ii. That the Respondent be ordered to pay retroactive

section 7 special expenses in the sum of $14,624.50 in respect of child care expenses for the years 2018, 2019, and 2020. II. Facts [ 2 ] The parties were married in Calgary in 2012 and divorced in 2018. They have two children, Isa and Abraham, aged 6 and 3, respectively (the “Children”). [ 3 ] On December 15, 2017, Justice Neufeld issued an order (the “Order”) imputing the Respondent’s income at $42,500.00 under the Federal Child Support Guidelines (the “ Guidelines ”) and ordering that child support be paid in respect of the children in the monthly sum of $617.10.

Justice Neufeld also ordered that the parties exchange their tax information annually. [ 4 ] The Respondent’s annual income increased shortly thereafter, to $67, 217.00 in 2018, $61,958.00 in 2019, and what is anticipated to be an income of between $62,500.00 and $65,000.00 (to be determined) for 2020.

However, from the date that the Order was issued, the Respondent continues to make child support payments based upon his imputed income of $42,500.00. [ 5 ] In July, 2020, the Applicant informed the Respondent that she was seeking a retroactive increase in child support payable to the Children. [ 6 ] The Applicant asserts that her income was $0.00 in 2018, $6,051.00 in 2019, and $25,800.00 in 2020. [ 7 ] Despite there being a term of the Order requiring the parties to exchange their tax information, neither of the parties has done so. [ 8 ] The Applicant claims that from 2018 to 2020, she has incurred

section 7 expenses in day care for the Children of approximately $14,000.00. The Applicant has not previously given the Respondent notice that she would be seeking his contribution towards these costs.

III. Retroactive

Section 3 Child Support [ 9 ] The test for ordering retroactive child support was established by the Supreme Court of Canada in DBS v SRG , 2006 SCC 37 , helpfully summarized in a number of decisions, including SLW v WNW , 2017 ABQB 772 at para 5 , Brear v Brear , 2019 ABCA 419 and most recently, in Damphouse v Damphouse , 2020 ABQB 101 . [ 10 ] In Brear , the Alberta Court of Appeal recognized at paras 18-20 three important principles that flowed from the DBS decision. First, that child support is the right of the child.

The payor has an obligation to support the child, which does not depend on the child’s need but rather, on the payor’s income. Second, that the payor parent has an obligation to provide financial disclosure to ensure that the child receives the appropriate level of support. Any incentive that would encourage a payor parent to avoid their support obligations must be eliminated.

Third, that the court retains the jurisdiction to vary court orders setting out child support to reflect income fluctuations of the payor parent, thereby ensuring that the child is receiving the appropriate level of support. [ 11 ] DBS outlined four factors to be addressed in determining whether a retroactive order for a variation in child support ought to be granted: 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”; 3. The circumstances of the child; and 4.

Any hardship occasioned by a retroactive award. [ 12 ] It is to each of these factors that I now turn. It is important to state at this point that none of these factors, taken individually, are determinative of the analysis. Rather, they should be viewed holistically in light of all the circumstances as informing the court’s assessment. i. Does the Applicant Have a Reasonable Excuse for Not Seeking Notice Earlier? [ 13 ] Yes.

In this case, neither party exchanged income tax information as required pursuant to the Order, and there is no evidence that the Applicant knew that the Respondent’s income had increased until she was provided with the Respondent’s financial disclosure as a result of serving him with a Notice to Disclose in July, 2020. [ 14 ] In my view, given the Respondent’s failure to provide his financial disclosure as required, the Applicant had no reason to believe that his income had changed and that any variation order was warranted. ii. Has the Respondent Engaged in Blameworthy Conduct? [ 15 ] Yes.

The Respondent knew what his income was. The Respondent knew that he was under an obligation to provide the Applicant with financial disclosure. In failing to do so, the Respondent subordinated the interests of the Children to those of his own. This is precisely what the Guidelines regime, based as it is on the payor’s income, seeks to avoid.

In my view, the Alberta Court of Appeal’s reasoning with respect to blameworthy conduct set out at paras 41-48 in Goulding v Keck , 2014 ABCA 138 , applies here. [ 16 ] The Respondent’s subjective intentions are irrelevant – whether the Respondent’s failure to provide the Applicant with his current income was because of an honest or mistaken oversight or was deliberately undertaken, I find that the Children’s interests were prejudiced while the Respondent failed to meet his child support obligations. iii.

The Circumstances of the Children [ 17 ] As a result of the Respondent’s failure to provide the proper child support based upon his actual Guidelines income, the Children were deprived of the amount of child support that they were lawfully entitled to. This is particularly so given the Applicant’s comparatively smaller income earned from 2018 to 2020, and the difference that higher child support payments would have made to the Children’s standard of life. iv.

Hardship [ 18 ] The Respondent argues that any additional child support payable through a retroactive variation order would cause him hardship because he is currently having to pay $1,000.00 monthly to the supervising agency retained to monitor his visits with the Children, forcing him to choose between seeing the Children or meeting his increased child support obligations. [ 19 ] While I acknowledge that the Respondent will not realistically be able to maintain the monthly cost of supervised visits and any retroactive adjustment in child support at this time, I point out that the Respondent would not have had to pay a retroactive increase in child support had he paid child support on his actual income as it fell due.

Further, I point out that any hardship owing to the Respondent can be offset with an order that arrears be paid according to a payment plan that the payor can reasonably afford. When asked what such a reasonable monthly payment amount might be, Respondent’s counsel ventured that $50.00 was all that he could

afford. IV. Conclusions Regarding Retroactive Child Support [ 20 ] Viewing the factors holistically, I grant the Applicant’s order for retroactive variation of

section 3 Guidelines child support as follows: i. For 2018, the Respondent shall pay the difference between what he has paid and

section 3 child support based on an annual Guidelines income of $67,217.00; ii. For 2019, the Respondent shall pay the difference between what he has paid and

section 3 child support based on an annual Guidelines income of $61,958.00; iii. For 2020, the Respondent shall pay the difference between what he has paid and

section 3 child support based on an annual Guidelines income of $62,500.00; and iv. Commencing January, 2021, the Respondent’s Guidelines income shall be $62,500.00, until determined otherwise. [ 21 ] The Respondent shall pay arrears of child support, over and above his current monthly child support payments owing, at a rate of $50.00 per month. Any change in the Respondent’s circumstances that would dispense with the need for supervised visits will constitute a “material change in circumstances” that would entitle the Applicant to return to court for a declaration that the payment plan be eliminated and that the arrears be paid by the Respondent forthwith and in full. V. Retroactive

Section 7 Special Expenses [ 22 ] The Applicant seeks payment from the Respondent of special expenses pertaining to child care expenses for the Children in the sum of $14,624.50 for the years 2018 to 2020 pursuant to

section 7 of the Guidelines . [ 23 ] Pursuant to

section 7 of the Guidelines , the Applicant bears the onus of establishing that any special expenses paid on behalf of the Children are both: (

i) necessary in relation to the Children’s best interests; and (ii) are reasonable in relations to the means of the parents and those of the Children and to the family’s spending patterns prior to the separation (see, for example, FJN v JK , 2019 ABCA 305 starting at para 68 ). [ 24 ] Unfortunately, there is little in the way of evidence that would allow me to find that the Applicant has discharged the onus of proof in either respect. [ 25 ] First, I have no information as to whether these expenses were a necessary expense in relation to the Children’s best interests.

While the Applicant characterizes this as a “pre-school” expense, she has advanced no further evidence to support that these expenses should more appropriately be thought of as child care. [ 26 ] The Applicant was on unpaid maternity leave until July, 2018. In 2018, the Applicant completed four online courses to upgrade her cosmetics sales knowledge. The Applicant was in therapy twice per week until June, 2018 and completed her driver education. The Applicant’s mother was in hospital which took up some of the Applicant’s time.

In December, 2019, the Applicant found work as an associate consultant with Estee Lauder. She was laid off in March, 2020, although it appears that she continued working some shifts in April, 2020, and is currently working some weekly shifts. From the Applicant’s pay stub dated April 17, 2020, the Applicant had thus far worked a total of 313 hours for 2020, or approximately 22 hours per week during this period. [ 27 ] From 2017 to 2020, the Applicant was the Children’s custodial parent.

Whether these expenses should be characterized as child care or pre-school, there is no evidence before me that these expenses were necessary in relation to the Children’s best interests rather than the Applicant herself providing care during her days when she was able to do so. [ 28 ] Second, I have no information as to the reasonableness of these expenses in relation to the Children’s best interests. In this case, given the date of separation and the age of the Children, there is no pre-separation spending pattern to assess. From 2017 to 2020, the Applicant was unemployed.

While she had some commitments such as completing several online courses, seeking counselling, and assisting her mother, these could have been accommodated with limited-term babysitting or other less costly child care options. Even when the Applicant began working in 2020, there is no evidence as to whether babysitting or other limited-in-time child care options were available to her and no evidence as to why the Applicant would have required full-time child care after she was laid off due to the pandemic in March, 2020. VI. Conclusions Regarding Retroactive

Section 7 Special Expenses [ 29 ] Given the lack of evidence before me on the necessity and reasonableness of the child care expenses being claimed as

section 7 special expenses, the Applicant has failed to establish that these expenses should be allowed, and I do not allow them. [ 30 ] However, the Respondent should understand that as the Applicant re-integrates herself fully into the economy either through employment or re-training, she will almost certainly be able to justify

section 7 child care expenses in the future.

VII. Costs of This Application [ 31 ] Having heard submissions by the parties on costs, I order that costs in the sum of $750.00 be paid by the Respondent on the ground that his failure to provide the Applicant with timely disclosure deleteriously impacted the Children’s best interests and made this application necessary. [ 32 ] Counsel shall please draft an order for my review and endorsement. Heard on the 26 day of November, 2020. Dated at the City of Calgary, Alberta this 9 th day of December, 2020. O.P. Malik J.C.Q.B.A. Appearances: Max Blitt Q.C. for the Applicant Jessica L. Nelson for the Respondent