SEW v MJR, 2020 ABQB 814

Court of Queen’s Bench of Alberta Citation: SEW v MJR, 2020 ABQB 814 Date: 20201223 Docket: 4801 181823 Registry: Calgary Between: SEW Applicant - and - MJR Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] The issues here are whether a father should pay retroactive child support and, if so, for what period(s). [ 2 ] The father contends he was not aware of the child’s birth or, alternatively, that he was the child’s father, until roughly 3.5 years later (October 2018), when he first met the child. The mother asserts awareness of both aspects from the start.

[ 3 ] As explained below, I find that no retroactive support is payable before October 2018; however, such support is payable (at various levels) after that point. B.

Issues [ 4 ] The issues are: 1. what is the run-back period, if any, for retroactive support where the first notice of a request or need for support is formal notice (in the form of a support application)? 2. if required, did the mother provide a reasonable explanation for not seeking support earlier than March 2019, when she applied for support in Provincial Court? 3. is non-payment of support until that point blameworthy conduct by the father? 4. what is the impact of the child’s circumstances here? 5. if child-support arrears are otherwise found, would a payment order cause hardship to the father? and 6. if not, what retroactive child support should be paid?

C. Analysis [ 5 ] The parties agreed that the DBS [1] framework governs the mother’s application for retroactive child support. They disagreed about the results of applying that framework here. 1. What is the run-back period for retroactive support in the absence of effective notice? [ 6 ] The mother argued for an automatic, or implicit, run-back period of three years from the first (and formal) notice of a request or need for support i.e. three years before March 2019.

She said that this flows from the Supreme Court of Canada’s DBS decision, albeit without pinpointing particular authority for this point. [ 7 ] The father argued against such a run-back period, arguing that any reach-back requires earlier notice of some kind i.e. before formal notice in the form of a court application (leaving blameworthy conduct aside for now). [ 8 ] The father is right. Here is what the SCC said in DBS on this point (para 123 ): Once the recipient parent raises the issue of child support [i.e. provides effective notice], his/her responsibility is not automatically fulfilled.

Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past .

The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three-year period: see s. 25(1) (

a) of the Guidelines . In general, I believe 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. [emphasis added] [ 9 ] In other words, absent earlier effective notice, no reach-back is contemplated, at least absent blameworthy conduct, as the SCC confirmed (in paragraph 124): The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start.

This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. 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.

The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially [i.e. even without a gap between some kind of effective notice and later formal notice].

A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments. [emphasis added] [ 10 ] After noting that some cases have misconstrued this dimension of DBS , Yungwirth J. provided the following helpful clarification in Smith v Gulka [2] : Generally, a retroactive order should commence from the date when “effective notice” was provided to the payor parent. The SCC described “effective notice” as “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated.

Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached” ( DBS at para 121 ). Despite the SCC being explicitly clear at para 123 that “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” (emphasis added), it appears that courts misinterpret this observation. This is probably because the Supreme Court Reports headnote for DBS states this observation less clearly: Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past.

Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. The phrase “three years in the past” is mentioned in a discussion of “effective notice” without the qualification provided at para 123 that this counting should start at the date of formal notice . If only the headnote is reviewed, this important qualification would be missed. Further, the text of the case itself seems to confuse the matter.

At para 125, the SCC states that “[i]n the majority of circumstances, that [the payor parent’s interest in certainty] will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.” This sentence read without context may suggest that the three year rule goes back from the date of effective notice.

However, this sentence can only be reconciled as actually meaning: “[i]n the majority of circumstances, that [the payor parent’s interest in certainty] will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past from the date of formal notice .” It is unlikely that the SCC intended to establish a strict limitation period that must be followed in all circumstances even though the headnotes suggests otherwise (“no more than three years in the past”).

Again, the wording at para 123 is clearer: it is usually inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent. Examples of where courts appear to have misunderstood the SCC’s comments include (among many others): Hastings v Telenko , 2019 ABPC 117 at para 22 (“[ DBS ] sets out a ‘general rule’ that support arrears should not be retroactive to a date more than 3 years before the payor received effective notice of the request.

Notice does not have to be formal, and notice may ‘lapse’ if the claim is not pursued); Wharry v Wharry , 2016 ONCA 930 (overturning trial judge’s finding that there was a “judicially imposed three-year limitation on retroactive child support” that begins at the time of trial); Vo v Vo , 2015 BCSC 467 at para 168 (“in D.B.S. the Court noted that an order will not usually be retroactive to a date that is more than three years prior to the date effective notice of the claim for child support is given”); As further explained by James Peluch, “Understanding Retroactive Child Support” (August 2017), online:< https://www.sorbaralaw.com/resources/articles/publication/understanding-retroactive-child-support>: The misapplication of the three-year rule in DBS appears … in many … cases involving retroactive support.

It is clearly not a simple issue of just starting the clock 36 months before the trial date and then reverting to the Child Support Guidelines . Although the Guidelines were designed to promote fairness and predictability, the concept of retroactive child support in DBS must be remembered as a rule to promote or advance parties’ support discussions during the time between effective notice and formal notice, not as a “one size fits all” type of rule to simply limit retroactive claims to an artificial three-year maximum. As more courts misinterpret DBS , the confusion proliferates.

For example, in JDD v DAD , 2015 ABQB 533 , the application judge relied on the Alberta Court of Appeal in Schick v Schick , 2008 ABCA 196 as a “useful

interpretation.” However, the application judge held that “retroactive awards should not be made going back further than three years from the date of effective notice” presumably based on an unclear statement made by the Court of Appeal at para 15: As a general rule, the date when effective notice was given to the payor parent is the date to which the award should be retroactive: D.B.S. v. S.R.G . , at para. 118 .

The date of effective notice means the date when any indication is given by the recipient parent to the payor parent that child support should be paid or that the current amount needs to be re-negotiated. The Supreme Court of Canada specifically rejected the date of application to court and the date of formal notice. The court also suggested that as a rough guideline, it will generally be inappropriate to make support awards retroactive to a date more than three years before notice was given to the payor.

The Court of Appeal does not specify what kind of “notice” triggers the three-year rule, leading to misinterpretation. In

summary, the most clear and correct statement of the three-year rule comes from para 123 of DBS : “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.” If the date of effective notice is within those three years, then the date of effective notice is the date when the retroactive child support should begin. Lawyers and courts should not get caught up in the unclear language used in the headnote of DBS , and should be wary of relying on other courts’

interpretations. [emphasis in original] [ 11 ] In this case, with no notice of a request or need for child support until the Provincial Court application in March 2019, the concept of a three-year reach-back per DBS does not apply. [ 12 ] Because retroactive support may nonetheless be payable (e.g. stemming from blameworthy conduct by the father), I examine below the four retroactive-support factors from DBS . 2.

Did the mother provide a reasonable explanation for not seeking support earlier? [ 13 ] Here is the mother’s explanation (concise letter, p 6): The [mother’s] failure to seek support earlier [than March 2019] was motivated by a legitimate and justifiable fear of the [father], based on physical, sexual and verbal abuse experienced by [the mother] and [her daughter by another partner] during both periods of cohabitation [i.e. approximately three months in 2010 and approximately two months in 2014]. ...

The costs and complexities of litigation, in addition to [the mother] being the sole financial and emotional support for [her two daughters], prevented her from pursuing a claim for child support at an earlier point.

[ 14 ] The mother points to various evidence in support of her assertions of various abuse in 2010. The father largely contests.

I find that I do not have to make any finding about what exactly happened in that period, in light of the mother’s evidence that “[we] attempted reconciliation around September 2014.” Whatever happened in 2010, and after more than four years apart, the mother was prepared to try again (and so was the father). [ 15 ] As for the state of their relationship in 2014 (again, only eight weeks ending around mid-September), the mother’s concise letter states (p 2): “The second period of cohabitation was again characterized by alarming and abusive conduct from the [father] towards both [me] and [my other daughter].

Here the mother cited paras 7 and 8 of her June 24, 2019 affidavit (reproduced here): ... The [father] did not want me to take birth control, stating it made me crazy. He did not keep up using [another form of birth control ...]. ... during this time [summer 2014], the [father] resumed being abusive, hostile, and inconsiderate of any of our boundaries. We did not feel safe or comfortable having the [father] remain in the home. I was worried by his moods that he was going to hurt me in my pregnant state.

He wouldn’t allow any peace in the home, and I would have to hide in my mom’s room upstairs to be able to get some reset after working a full-time job and experiencing the fatigue and sickness that come with early pregnancy. [My other daughter] also felt unsafe and stayed at her grandma’s when I was not home. [ 16 ] This evidence is vague, lacking details of the claimed troublesome behaviour. As well, the mother provided no evidence of seeking, or even considering seeking, any kind of restraining or emergency-protection order or any kind of police or other protective assistance.

She also did not describe the particulars of the father’s exit from the home, other than an indirect reference (in her June 10, 2020 affidavit), after referring to the child’s birth in May 2015: “It is typical and a historical pattern for the [father] to abruptly abandon his family, disappearing and cutting off all contact, then sporadically resurfacing ...” [ 17 ] The same vague evidence on this aspect is seen in her July 15, 2020 affidavit (para 6) Very shortly after the [father] and I learned I was pregnant [between September 6-8, 2014], the [father] and I ended our relationship, and he moved out of our home.

At this time, I did not feel safe, and moved upstairs with my parents. ... [ 18 ] Even assuming a causative link between her not feeling safe and the father moving out, the mother provides no details (e.g. why she felt unsafe). [ 19 ] I am not prepared, on this evidence, to find that the mother had such a fear of the father that she was effectively paralyzed i.e. unable to request child support (however informally e.g. a phone call, text, email, or letter) or even to advise the father of the child’s birth and that he was the father. [ 20 ] I am bolstered here by the absence of any evidence (at least none was cited in the concise letter) for the assertion that it was the “costs and complexities of litigation ... [that] effectively prevented [the mother] from pursuing a claim for child support at an earlier point.” [ 21 ] With no evidence supporting this apparently “effective cause”, and (in any case) with any such “costs and complexities” not actually being obstacles to providing informal notice of a request for support or the other (birth, etc.) details, I find that the mother does not have a reasonable explanation for waiting almost four years (May 2015 to March 2019) to raise the subject of child support (in the form of her Provincial Court application at the latter point). 3.

Did the father engage in blameworthy conduct by not paying support until 2019? [ 22 ] This is really the crux of this child-support dispute, with the mother asserting that the father knew of the child’s birth from the start and the father disputing that. [ 23 ] This calls for a review of their respective evidence on “birth awareness.” Mother’s evidence [ 24 ] Here is the mother’s evidence on the father’s awareness of the child’s birth, drawn from her affidavits sworn July 15 and 27, 2020: • “… The [father] has claimed that he was not aware of my pregnancy, and subsequently [he] questioned the paternity of [our daughter] notwithstanding we were married and he was with me during the September [2014] long weekend when I took a pregnancy test … on the [father’s] suggestion that I do so given the nausea that I was experiencing.

The [father] and I had been travelling to [Montana] during [that weekend] and we had purchased two pregnancy tests from a grocery store near the hotel we were staying at. When the first pregnancy test revealed that I was pregnant, the [father] was very happy. I took the other test the following day to confirm the positive results and at that time the [father] and I agreed to wait three months prior to telling anyone.

That morning when the [father] and I were having breakfast at a café, the employee at the register asked if would like a coffee, and the [father] intervened loudly and said “ no, no, she’s pregnant! ” … [para 4 of July 15, 2020 affidavit] • “… immediately upon our return home [from that trip], the [father] impulsively and loudly announced to [the mother’s daughter by another partner and to the mother’s mother, and this despite an agreement to announce the pregnancy news together] that I was pregnant ….” [para 5 of that affidavit]; • “Very shortly after the [father] and I learned I was pregnant, the [father] and I ended our relationship and he moved out of our home. … Despite my being pregnant with his child, the [father] did not check-up on me during the course of my pregnancy, nor after he found out that [our daughter] was born” [para 6];

• “In 2015, when [our daughter] was five weeks old [i.e. around June 5th], we attended a religious convention at the [Calgary] Saddledome. The [father] was following us around and other people had noticed this and warned us about his behaviour. One couple came to tell us the [father] had asked them “did you see my daughter?” I was afraid of [the father] during our marriage and continued to be afraid after our separation.

The [father] met [our daughter] in October 2018 when [she] was three years old. …” [para 7]; • “… The [father] was fully aware of everything that was happening in my life [during my pregnancy and through to our daughter’s birth]. If he was willing to [listen to] lies from common friends, then he most definitely knew that my pregnancy was progressing and [that our daughter] was born. I know for a fact he was aware of her birth from May 2015 onward. I have never pursued other relationships.

In fact, I withdrew and stopped talking to most people, especially men, because I knew the [father] was falsely spreading rumours the baby wasn’t his, which he denied. I have never been unfaithful, and I have been very busy … while working full time, then raising [our daughter] by myself for four years after that. If I was living in a way the [father] falsely claims, then I would be disciplined by the congregation and I wasn’t … I find it disturbing [the father] obtained the DNA test [confirming his paternity of the child, in [month/year]] without telling me. He always knew [our daughter] was his child. Period.

I had offered to take a paternity test much earlier, and he advised he had no doubt that [our daughter] was his and I didn’t have to. [para 11 of the mother’s affidavit sworn July 27, 2020]; and • “… [The father] has always known [our daughter] was his child from conception. He was present for the pregnancy tests and also took me to my first appointment to get lab tests done. If the baby had been lost [presumably meaning through miscarriage or stillbirth], the community would have talked about it. …” [same affidavit, para 12].

Father’s evidence [ 25 ] Here is the father’s birth-awareness-or-not evidence, drawn from his affidavit sworn July 23, 2020: • “It is important to understand the history between the [mother] and I, as this relates to the history of paying child support. The [mother] and I were married in 2010. We are both very religious, and divorce is strongly avoided in our faith. After we were married, we only lived together for a period of approximately 12 weeks. … Approximately four years passed with no contact when the [mother] contacted me and wanted to reconcile[;] we moved back in together ….

This lasted for approximately 8 weeks and this was the timeframe in which [our daughter] was conceived. I have no information about what was happening in the [mother’s’ life but I understood from common friends that she has pursued other relationships during periods were not cohabitating. Four years later, in 2018, the [mother] reached out to me with a desire to reconcile and have another child.

Throughout 2018, the [mother] and I spent time together with [our daughter] who was introduced to me as my daughter. …” [para 12]; • “… Over a period of 10 years [2010-2020], I have only cohabited with the [mother] for a period of 4-5 months. I have no idea what the [mother] has done during periods we were not together. In December 2018, I had a paternity test done without advising the [mother]. At the time were in the process of making offers on houses, were planning vacations, and the [mother] was pushing me to have a second child.

With all of this happening, I wanted to have some certainty that [the daughter] was my child. …” [para 13]; and • “There is no order in place requiring me to pay child support. I have always paid on a voluntary basis. … I began paying [a described] amount in March 2019 shortly after

A) I received the results of [the] paternity test confirming [the daughter] was my biological child and

B) it became clear that the [mother] and I would not be reconciling and purchasing a house together. [para 14] [ 26 ] The father also emphasized (per questioning responses) that the mother did not notify him of the child’s birth and that his name is not on the child’s birth certificate. [ 27 ] Before deciding the “birth awareness” point, I highlight a few cases which have examined child-support applications in similar circumstances. “Birth awareness” cases [ 28 ] A number of cases have explored responsibility for child support in the context of a proposed-to-be-support-payor’s actual or claimed unawareness of a child’s birth. [ 29 ] In Robson v Albazi [3] , Spence J. found such a lack of awareness and that it excused non-payment of child support for (nine) pre-awareness years: As to the second [blameworthy conduct] consideration, it is difficult to understand how the father could be found to be blameworthy in anything he did – or did not do.

In weighing the evidence of both parties, I am unable to conclude on a balance of probabilities that the father even knew that the mother was pregnant, much less that the mother had given birth to their child . [Footnote 2: Mother testified she was only three months pregnant when she saw the father for the last time. …] However, if I am mistaken in that regard, the mother’s evidence, taken at its highest would lead only to the conclusion that the father may have known that she was pregnant.

There was no evidence at all that the father ever knew of the actual birth of Fatima , either as a result of any information from the mother, or from anyone else. [FN 3: Although [the mother] thinks some of her friends may have conveyed this information to the father, evidence of which is inadmissible, as none of these friends were identified or themselves gave evidence, or were available for cross-examination.] On this basis I cannot find that the father engaged in any blameworthy conduct . [emphasis added] [ 30 ] A similar situation, with the same outcome, was explored by Ryan-Froslie J. [as she then was] in Cougan v Piche [4] : It is clear from the evidence that Ms.

Cougan [the mother] did not advise Mr. Piche that he was Jaisy’s father until at least 1994 [i.e. five years after the child’s birth, in 1989] . The parties were never married and the evidence indicates their relationship was a very short one . Ms. Cougan did not pursue child support until she brought this application in the fall of 2003 . By that time Jaisy

was not living with her. Ms. Cougan has not sold any assets or incurred any debts to raise Jaisy. There is no satisfactory explanation for Ms. Cougan’s delay in bringing her application for support . Mr. Piche is responsible for the support of a number of other children.

This is not a situation where retroactive support is warranted. [emphasis added] [ 31 ] In Le v Tran [5] , Murray J. sidelined a potential “unawareness” argument: Courts have found that a failure by a father to pay child support is not blameworthy conduct if he was unaware that he was the father of the child until the claim was made [FN 2 citing Cougan v Piche (see above)]. That is not the case here. Although the Respondent [father] raised questions about paternity when the Applicant [mother] made her support claim, he had never raised these doubts before and in the past acknowledged that he was Brian’s father.

The Respondent attended at the child’s birth, and he is shown on the child’s birth certificate as his father . [FN3 refers to resulting statutory presumption of paternity] The Respondent visited the child for a period of time, and even cared for him for a week or two in 2005. [emphasis added] Analysis of “birth awareness” [ 32 ] Applying the guidance of these cases and in light of the evidence here, I find that the father was not aware of the child’s birth until October 2018 i.e. 3.5 years later after her birth, when (per the mother’s evidence) he was “introduced to her”, for these reasons: • while it is clear the father was aware of the mother’s pregnancy, it is equally clear that they separated in the early weeks of the pregnancy [6] ; • the evidence also shows that the mother did not notify the father of the child’s birth, at least until October 2018, after 3.5 years had passed; • no evidence reflects any direct contact between the mother and father until October 2018; • in her “father did not check up on me or daughter after he found out our child was born” statement, the mother does not state how or when he found out; • concerning her statement that the father followed her and the child (then five weeks old) around at a convention and that “other people had noticed this and had warned us about this behaviour”, she did provide evidence from any other people or even provide their names; • as for “one couple” who told her the father had asked them if they had “seen his daughter”, again she did not provide evidence from them or even their names; • despite robust assertions of his awareness (“[he] was fully aware of everything that was happening in my life”, “he most definitely knew that … [our daughter] was born”, “I know for a fact he was aware of her birth from May 2015 onward”, “He always knew [she] was his child.

Period.”), the mother does not provide any direct evidence of how or when he found out about the child’s birth; • she wants me to infer that he learned about her from “common friends” but she does not name them, provide any details of the “common friendships” or otherwise explain why I should draw the requested inference.

Same for another requested inference (“if the baby had been lost [presumably through miscarriage or stillbirth], the community would have talked about it.” Without more evidence about the nature and size of the community, the mother’s and father’s respective roles or presence within it, how their circles overlapped (or otherwise), how the mother would or may have reacted to an unexpected end to the pregnancy, and any other factors bearing on what news would or may have reached the “community news network”, how that network would or may have functioned, and who any per- network news would or may have reached, I am not prepared to infer that the father necessarily knew of the child’s birth; • as for the mother’s evidence of not having “pursued any other relationships”, I will accept that evidence at face value.

But that does not advance her assertion that the father knew of the child’s birth from the start or at some point before March 2019; • as for her evidence of the father “spreading rumours the baby wasn’t his”, she provides no specifics (to whom, when, and how); and • on her evidence of offering to take (or arrange for) a paternity test “much earlier” and the father apparently saying he had no doubt the child was his”, she again provides no specifics. [ 33 ] Even if the father may have wondered if the mother’s early-months pregnancy (which he knew about) had gone full term and produced a child, I am not prepared, with complete “radio silence” from the mother for 3.5 years and all the other noted factors, to infer that he was actually aware, or should reasonably have been aware, of the child’s birth.

Alternative approach: father unaware child was his [ 34 ] Alternatively, if the father was aware of the child’s birth from the start or became so aware before October 2018 (when introduced to her), the mother has not shown, on a balance of probabilities, that he knew he was the child’s father. [ 35 ] Here I cite much of the same evidence as on the “birth awareness” point, particularly emphasizing the father’s exit within approximately one month of the child’s conception, no “time of birth” announcement by the mother to him of the child’s birth, no “early years” announcement to him of that news, and generally no child-related outreach by her to him until 3.5 years had passed. [ 36 ] As well, and again taking the mother’s “no other relationships” evidence at face value, the father gave uncontradicted evidence that he was not aware of the mother’s “in other relationships or not” status in the period preceding their short (8-week connection) in summer 2014 or after his exit in mid-September (or thereabouts).

[37] My conclusion here squares with the father’s evidence that, until he received the results of a DNA test (confirming hisparentage) in December 2018, he was not sure he was the child’s father. (I will address the timing of this test further below.) Conclusion on “blameworthy conduct” [38] In light of no birth awareness for the father until October 2018 or, alternatively, no awareness of being the child’s father untilparentage until October 2018 (introduction to child) at the earliest or December 2018 (DNA test result) at the latest, I do not find anyblameworthy conduct by the father in not paying support earlier than October 2018. [39] In short, he cannot be faulted for not paying support while he was unaware of the child’s existence or, alternatively, of beingthe child’s father. [40] It would have been a simple thing for the mother, at or shortly after the child’s birth (or, actually, any time before the October2018 introduction), to advise the father, in any number of ways, of the child’s birth and that he was the father. [41] The essence of blameworthy conduct in this context is failure to pay child support that the payor knew, or should reasonablyhave known, was payable.

Per the Supreme Court of Canada in DBS (paras 106-108) Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award.Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize asblameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriateamount of support. ... a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding largerchild support payments: see Hess v.

Hess (1994), (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v.Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; S. (L.). A payor parent cannot intimidate a recipient parent in order to dissuadehim/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425 , 178 A.R. 119 (C.A.). And apayor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)heknows that they are not. No level of blameworthy behaviour by payor parents should be encouraged.

Even where a payor parent does nothing active to avoidhis/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, apayor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profitfrom such conduct: see A. (J.) v. A. (P.) (1997), (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9;Chrintz. ... Whether a payor parent is engaging in blameworthy conduct is a subjective question.

But I would not deny that objective indicatorsremain helpful in determining whether a payor parent is blameworthy.

For instance, the existence of a reasonably held belief that (s)heis meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthyconduct. ... [emphasis added] [42] In this case, in light of my findings (effectively) that the father believed, on reasonable grounds, that the mother did not givebirth to a child or, alternatively, that the child was not his (at least through October 2018), I cannot find blameworthy conduct within theletter or spirit of these SCC teachings. [43] Put simply: a prospective child-support payor does not fall down on his obligations if, acting reasonably, he is not even awareof them. 4.

Any impact arising from the child’s circumstances? [44] Here is the mother’s evidence (July 27, 2020 affidavit, paras 13-14): ... I gave up my full-time career to take care of [our daughter] full time. I went from a modest, comfortable income to a very low-payingincome so that I could work and care for [our daughter]. I lived off my savings to support my daughters by myself. My parents were kindenough to give us a place to live so that I could afford to care for my children. As a single family of three, I do not have any savings or investments. I put them all towards the care of the children. ...

I have more than$40,000 in debt in caring for my family. ... In raising [our daughter] and not putting her in expensive child care, I have gone from earning$45 per hour full time to part-time minimum wage. [45] Here is the father’s position (concise letter, para 33): The third factor, benefit to [or circumstances of] the child, suggest that a court must consider whether a retroactive award would bebeneficial to the child. In the case [here], the child is still a minor and living primarily with the [mother]. The [mother] has continued tolive with her parents from 2015 to the present.

In questioning, the [mother] confirmed that her parents were not charging her for rentmany months. The [mother] also advised that during this period she has not accrued much debt – [she] has a student loan from before themarriage. In 2018 the [mother] purchased a minivan which has a loan attached to it. The [mother] has $2,000 worth of credit-card debt. [46] In SMF v BWF[7], I gathered some cases exploring “circumstances of the child”: ... here is Renke J.’s synopsis of DBS’s and Goulding’s lessons: Guidelines objectives 1(

a) and (

d) are particularly germane [to the “circumstances of the child” factor]: 1 The objectives of these Guidelines are

(

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of bothspouses after separation; … (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. Justice Bastarache confirmed these principles in DBS at para 38: “child support should, as much as possible, provide children with thesame standard of living they enjoyed when their parents were together” (see also para 111); and at para 110: 110 A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensurethat their children receive the support they deserve when they need it most.

But because this will not always be the case with aretroactive award, courts should consider the present circumstances of the child — as well as the past circumstances of the child — indeciding whether such an award is justified. The Court of Appeal addressed evidential issues bearing on this factor in Goulding v Keck at paras 51 and 52: [51] … DBS does not impose an evidentiary burden on the recipient parent to prove “significant need” on the part of the child in orderto succeed in an application for retroactive support.

A payor parent cannot avoid a retroactive award by arguing that, despite his or herpast default, the recipient parent was able to sufficiently care for the child on his or her own (Swiderski v Dusseault, 2009 BCCA 461, 98 BCLR (4th) 40 at para 42). [52] The “needs” of the child must be approached through a more specific inquiry: did the child receive the same benefits and supportas if he or she had been supported by both parents?

To answer this question, a loss of benefits must be presumed where the payor parenthas failed to pay the amount of support required under the Guidelines over a prolonged period of time (Burchill v Roberts at para 49).The payor parent is not entitled to choose the form or means of support given to his or her children (Swiderski v Dusseault at para 39).However, it will be open to the court to consider whether the child did benefit from some form of financial support over and above thatwhich the recipient parent could provide alone, either from the payor parent or through some other means.

This consideration, however,is not determinative.

The Alberta courts have identified relevant factors here, including: • recipient having covered children’s needs by borrowing is not a bar to retroactive support: “A retroactive award will allow [therecipient] to repay her parents for something that did benefit the children to assist the children with their ... education costs and otherexpenses moving forward” – Roseberry v Roseberry at paras 114-136; • children’s needs covered by grandparents’ generosity; accordingly, this factor “neutral” in DBS equation: McInulty v Dacyshyn atpara 20; • “children’s needs not being met”: lack of extracurricular activities, deferring necessary medical or dental treatments, and needingto draw on Alberta Works to cover some school expenses. “Children can still benefit from a retroactive award”: still in school, and stillneeding treatments – CMM v PMM at paras 57 and 58; and • no requirement for recipient to specifically identify how a retroactive award will benefit a child of the marriage.

No preconditionfor retroactive award that child resides with the recipient on a full-time basis: Witwicki v Seifner at paras 33-35. [47] In this case, while the particulars are not crystal-clear, it is clear that the mother has experienced a major reversal in hereconomic fortunes after the birth of the child in 2015 and that, even with support from her family, she has had to go into debt, in part, tocover the expenses of raising the child. 5.

Hardship for the father if retroactive support awarded? [48] The mother is seeking just under $30,000 in retroactive support, spanning 2015-2020. [49] The father says that such an award would “financially decimate” him. He points to his current perceived-by-him-to-be-limitedearnings (approximately $67,000 in 2019), the “drainage” of his RRSPs, extensive litigation costs (apparently for the earlier parentingdisputes), having had to open a line of credit to cover his daily expenses, and being in his 60s, with retirement not too far off, plus havingno retirement savings of any kind.

Per him, “a large retroactive child-support order would be difficult for [me] to pay.” [50] I consider the hardship factor further below, after determining the retroactive support otherwise payable. 6. What retroactive support, if any, should the father pay? [51] I have already found that the mother did not have a reasonable explanation for not raising the subject of child support, in anyway, until bringing her Provincial Court application in March 2019.

I have also found that the father did not engage in blameworthyconduct in not paying child support, at least through to October 2018, when the mother introduced the child to him as “your daughter.” [52] Taking a holistic view of the various DBS factors, I am not satisfied that the father should be tagged with child-supportobligations for any portion of May 2015 (child’s birth) through October 2018 (introduction to his child). [53] The evidence shows that he starting paying support in March 2019 i.e. about six months after introduction. [54] I acknowledge the father’s evidence that he did not “truly know” that the child was his daughter until receiving DNA testresults in January 2019.

[ 55 ] But he did not explain why he thought the mother may have misrepresented the child’s parentage (i.e. why she would falsely tag him as the child’s father) or why, if he had any doubts, he waited three or four months before pursuing a test. [ 56 ] By October 2018, the father had both become aware of the child’s birth and that (per the mother) he was the father. [ 57 ] I find that he cannot reasonably have concluded that he was discharging his child-support responsibilities in the period between November 2018 and February 2019 (i.e. when he was paying no support) and that he cannot defer the triggering of those responsibilities by slow-walking on the testing front. [ 58 ] All to say, I find that the father is responsible for child support for November and December 2018 (based on his CRA- assessed income for 2018) and for January and February 2019 (based on based on his CRA-assessed income for 2019). [ 59 ] Per the mother’s calculations (July 15, 2020 affidavit, Ex A), that means two months of support at $790 per month and two months at $573, for a total of $2,726. [ 60 ] The mother also calculates underpayments of support, from March 2019 through July 2020, of $1,481 (for 2019) and $981 (for 2020), for a total of $2,462. [ 61 ] The father did not address the granularities of support for 2019 or 2020; accordingly, I accept the mother’s calculations of the 2019 and 2020 arrears. [ 62 ] The combined retroactive support outstanding is $5,188. [ 63 ] Given this relatively modest amount, and the option of it being cleared by periodic payments, I do not find that the father would experience hardship, or at least excessive hardship, in clearing this balance over the next two or three years, during which he expects to continue working.

D. Conclusion [ 64 ] I leave it to the parties to attempt to agree on the pay-out details for the ordered retroactive support. For greater certainty, the father be entitled to clear the initial or any later balance via lump-sum payment at any time i.e. aside from whatever other payment details the parties agree on. [ 65 ] In view of the mixed success here (including some issues decided or agreed on during the course of the special chambers application), I direct that the parties bear their own costs. [ 66 ] I thank both counsel for their effective written and oral submissions.

Heard on the 18 th day of December, 2020. Dated at the City of Calgary, Alberta this 23 rd day of December, 2020. M. J. Lema J.C.Q.B.A. Appearances: Germaine Fields Stonetree Law for the Applicant Father Daniel Colborne

Yanko & Polovic for the Respondent Mother