Zapisocky v Gregg, 2020 ABQB 780

Court of Queen’s Bench of Alberta Citation: Zapisocky v Gregg, 2020 ABQB 780 Date: 20201214 Docket: 4803 176402 Registry: Edmonton Between: Michelle Lynn Zapisocky Plaintiff - and - Sean Michael Patrick Gregg Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S. Feth _______________________________________________________ [ 1 ] Michelle Zapisocky (the Mother) applies to vary a child support order by which her income was imputed at $90,636 effective September 1, 2019.

The Mother contends that a change in circumstances, specifically a temporary disability causing a decrease in income for approximately 20 months, invites a variation effective January 2020. [ 2 ] Sean Gregg (the Father) acknowledges the change in circumstances, but disagrees about the manner in which the Mother’s income should be calculated as a consequence of the change. He submits that the Mother’s imputed income is the baseline against which her ongoing child support obligation is calculated.

[ 3 ] For the reasons which follow, I conclude that effective January 1, 2020, the Mother’s actual income, rather than the imputed income, is to be used in setting her child support obligation. Background [ 4 ] The Mother and the Father are both schoolteachers. They have two children. [ 5 ] The parties attended a judicial dispute resolution conference (“JDR”) in June 2017 to resolve various issues between them, including child support, as a prelude to a consent divorce judgment.

The Mother was working part-time as a teacher, but the Father contended that she was deliberately under-employed and that her income should be imputed at a full-time equivalency of $90,636. [ 6 ] The Mother intended to return to full-time employment effective September 1, 2019. [ 7 ] As corollary relief to the divorce judgment, the parties agreed to a child support order stating: “Commencing September 1, 2019, the [Mother] shall have an income imputed to her of $90,636.00.” [ 8 ] The Father deposes that the parties agreed the imputation was intended to apply regardless of the Mother’s actual part-time or full-time work status.

The Mother disagrees and asserts that any change in circumstances within the scope of the variation provisions of the Federal Child Support Guidelines, SOR/97-175 (the “ Guidelines ” ) relieves her from the imputation of income. [ 9 ] The corollary relief also provided for shared parenting and confirmed the parties’ off-setting child support payments. [ 10 ] The divorce judgment and corollary relief order were granted in February 2018. [ 11 ] As of September 2019, the Mother increased her part-time employment from a 0.625 Full Time Equivalent (“FTE”) to a 0.688 FTE.

She asserts that full-time employment was not available in her school nor within her teaching specialty. However, she did not advance a change in circumstances on that basis. [ 12 ] On October 15, 2019, the Mother was placed on medical leave and did not return to work for the balance of the school year. [ 13 ] Her short-term medical leave provided 100% of her salary until early January 2020. As of January 5, 2020, the Mother was placed on unpaid medical leave and received extended disability benefits.

Those benefits provided her with compensation equivalent to 70% of her gross salary and relieved her from paying for certain deductions. As a consequence, her net pay declined to $3,058.86 per month until August 31, 2020. [ 14 ] In accordance with her physician’s recommendations, the Mother returned to work on September 1, 2020. However, due to return to work restrictions imposed by her employer, the Mother was required to return to a 0.688 position similar to the one she held prior to her medical leave.

She was not permitted to increase her FTE for the balance of the current school year. [ 15 ] The Mother estimates that her gross annual income for 2020 will be $46,767. (That figure was supplied by her counsel at the oral hearing, without objection, and provided a minor change since her last affidavit). [ 16 ] The Father submits that the Mother had full-time work available to her effective September 1, 2019 and that she is constrained by the imputation of income.

Any reduction in income should be calculated based on 70% of a full-time income from January 1, 2020 to the end of August 2020, and then a resumption of the full-time income imputation as of September 1, 2020. Issue [ 17 ] Given the change in circumstances, I am asked to determine the Mother’s income for support purposes. [ 18 ] Once that determination is made, the parties have asked for an opportunity to settle the child support payment amount, including the updated calculation of contributions towards s 7 expenses. Failing a resolution, those matters will return to me.

Variation Application under the Divorce Act [ 19 ] The Mother’s application is brought under s 17(1)(

a) of the Divorce Act, RSC 1985, c 3 (2nd Supp ) [ Divorce Act ], which prescribes that a court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, a child support order or any provision thereof on application. [ 20 ] Pursuant to s 17(4), before the Court varies a child support order, the Court must satisfy itself that a change of circumstances, as provided for in the Guidelines , has occurred since the making of the child support order. [ 21 ]

Section 14 of the Guidelines sets out what may constitute a change of circumstances for the purpose of s 17(4) of the Divorce Act , stating in relevant part: 14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; ... [22]

Section 1 of the Guidelines states that one of the objectives is “to establish a fair standard of support for children that ensuresthat they continue to benefit from the financial means of both spouses after separation.” The underlying principle of the Guidelines is that“spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contributeto the performance of that obligation”: Divorce Act, s 26.1(2); Contino v Leonelli-Contino, 2005 SCC 63 at para 32 [Contino]. [23] Child support for shared parenting arrangements is governed by three criteria described in s 9 of the Guidelines including theconditions, means, needs and other circumstances of each spouse and any child for whom support is sought.

Analysis [24] The Mother’s position is that a change in circumstances contemplates a fresh inquiry into the condition, means, needs or othercircumstances of each parent and the children. A prior agreement about a parent’s income, even if confirmed by court order, has nobearing on the new inquiry. [25] The Father contends the Mother agreed to the imputation of full-time income and that continuing to use the full-time incomeas the baseline is the natural consequence of that decision.

In effect, he contends that a fresh inquiry is limited by the previous agreementwith the Mother. [26] In Willick v Willick, (SCC), [1994] 3 SCR 670 at para 102 [Willick], the Supreme Court of Canadaexplained: Once a sufficient change that will justify variation has been identified, the court must next determine the extent to which it willreconsider the circumstances underlying, and the basis for, the support order itself. For the reasons below, I believe that it is artificial fora court to restrict its analysis strictly to the change which has justified variation.

Moreover, while a variation hearing is neither an appealnor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or nolonger appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes theinterrelationship between the many factors to be considered is in order. [emphasis added] [27] In TMD v JPG, 2018 NBCA 15 at para 14, the New Brunswick Court of Appeal confirmed that a prior child support orderdoes not preclude a fresh inquiry and that a derogation from the table amount is not justified by a prior consensual deviation. [28] Child support is the right of the child and cannot be bargained away by the parents: Michel v Graydon, 2020 SCC 24 at para10; DBS v SRG, 2006 SCC 37 at para 38. [29] The calculation of child support must reflect the realities of the parties’ actual circumstances.

Even where income is imputed,the child support obligation may be recalculated at a later time to reflect actual income. [30] The Father’s position is that the Mother’s imputed income is frozen, regardless of the salary she actually earns. Such a resultinterferes with an assessment of the actual conditions, means, needs and other circumstances of each spouse and the children ascontemplated by s 9 of the Guidelines.

Contrary to the caution espoused in Willick, it imposes an artificial restriction on the financialsupport actually available to service the children’s needs and other circumstances. [31] The Father’s position is especially harsh since the consequence of the Mother’s disability is that she could not return to full-time work for the current school year, regardless of her intentions. Further, the disability was not within her contemplation when sheconsented to the child support order.

Whatever financial concession was contemplated, the Mother’s circumstances at the time the orderwas granted differ from her current circumstances. The impact of the unexpected change is visited not just on the Mother, but on thechildren as well. [32] I conclude that the change in circumstances invites a fresh inquiry, unrestricted by the prior imputation of income.

TheMother’s income is therefore set at her estimated actual income for 2020 of $46,767, effective January 1, 2020 through to December 31,2020, subject to retroactive adjustment after her actual 2020 income is known. [33] Effective January 1, 2021, the Mother’s income will be determined by her estimated part-time income. The parties did notprovide that figure to me.

If they cannot agree on the amount, they may return to me within 45 days of this Decision for directions. [34] The Mother’s position is that my decision need not address whether the imputation of full-time equivalent income will resumeon September 1, 2021 if the Mother either does not seek or does not return to full-time work by that date. Neither party spoke directly tothe calculation after that date. [35] Some controversy exists between the parties about any factual admission or assumption that might apply to the imputation ofincome in the consent child support order.

The record does not make plain whether the Mother was conceding that she was intentionallyunder-employed and engaged in a deliberate course of conduct to evade child support obligations, as required for an imputation ofincome under the principles described in Hunt v Smolis-Hunt, 2001 ABCA 229, or whether she was simply making a settlementcompromise to set the income at that level on the expectation that she would return to full-time employment by or shortly afterSeptember 1, 2019. [36] As the calculation after September 1, 2021 was not specifically argued, I will leave it for another day.

The controversy will beavoided and the issue rendered moot if the Mother returns to full-time work. However, by leaving the question unresolved, I am notsuggesting that the imputation of income in the consent child support order will resume on September 1, 2021. As explained, a freshinquiry has resulted in a new income calculation.

[ 37 ] For clarity, I am not seized with hearing that issue. Concluding Matters [ 38 ] The Mother’s application also included requests for relief involving parental communications and telephone access. Those matters were either resolved at the oral hearing of this application or were adjourned pending efforts by counsel to resolve the disputes. I retain jurisdiction if any of those matters is not settled by the parties.

The parties are to approach me within 45 days of this Decision to address any outstanding issues. [ 39 ] If the parties cannot settle the costs of this application, they may contact me within 45 days to establish a process for resolving them. Heard on the 25 th day of November, 2020. Dated at the City of Edmonton, Alberta this 14 th day of December, 2020. K.S. Feth J.C.Q.B.A. Appearances: Douglas N. Skovberg for the Plaintiff Oliver L. Gommerud for the Defendant