Wilgenbusch v Girard, 2021 ABQB 1012

Court of Queen’s Bench of Alberta Citation: Wilgenbusch v Girard, 2021 ABQB 1012 Date: 20211217 Docket: FL12 001858 Registry: Wetaskiwin Between: Alexus Wilgenbusch Applicant - and - Douglas Girard Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] These are my decisions on child-support and spousal-support issues left open in 2021 ABQB 801 , with the parties having now provided follow-up submissions.

B. Background [ 2 ] At paragraph 24 of my earlier decision, I stated " ... I am prepared to reconsider the retroactive-support request if the father's follow-up disclosure … shows any material income differences i.e. from his reported-so-far incomes for 2018-2020." [ 3 ] At paras 28-32 of that decision, I stated: … while the father filed some information, he did not file his tax return, notice of assessment or financial statements for 2017, notice of assessment or financial statements for both 2018 and 2019, or tax return or financial statements for 2020.

I direct the father to provide the identified information to the mother’s counsel, with a copy to the Court (via my assistant), by October 29 th . I also direct the mother to provide a copy of her 2020 tax return and notice of assessment to the father (with a copy to the Court – same way) by the same deadline. On receipt of that information, I will decide whether any child support was payable starting February 2021 payable, if so by which party, whether any arrears presently exist, and set any required ongoing child support.

As noted, I will also decide whether any retroactive support (sparked by any inaccurate or under-disclosure) is payable. C. Disclosure [ 4 ] As Mr. Ahanonu pointed out in his November 15 th letter, “[Mr. Girard] did not provide the [paras 21(1)(

d) and (

f) of the Alberta Guideline s] information prior to the Special Chambers hearing. He eventually provided some, but not all, of the information.” [ 5 ] Mr. Girard acknowledges that his disclosure was incomplete. Per his counsel’s November 29 th letter: While it is admitted that [Mr. Girard’s] disclosure is not complete, it is all the disclosure which was available to [him] at the time of submission [presumably meaning by November 29 th ]. Further, although disclosure was missing items, the disclosure which was provided was material and sufficient to answer the question of Mr.

Girard’s income, for example by providing a complete corporate ledger and all issued corporate invoices for the March 2020 to March 2021 period, of his business, Green Lab Tec. [ 6 ] Referring to my catalogue of outstanding disclosure above, I do not understand why Mr. Girard was not able to provide, at minimum, his tax return and assessment for 2017, his assessments for 2018 and 2019, or his tax return and assessment for 2020. (Here I assume that Mr.

Girard filed his tax returns on or around the deadline each year and that the CRA processed them in its usual “within a few months” fashion.) [ 7 ] However, I also perceive that Mr. Ahanonu is willing to proceed on the basis of the partial disclosures to date i.e. is not asking for a further round of disclosure. [ 8 ] In any case, I believe we have a sufficient window, based on the existing disclosure, to determine Mr. Girard’s income for the years in question. [ 9 ] In any (further) case, I am not satisfied that, given the scale of Mr.

Girard’s (relatively modest) income in those years (e.g. $22,587.90 in gross business income in 2019, approximately $10,000 in 2020), it is worth more time, money or energy to investigate his income any further. For instance, I do not see real benefit to be gained by requiring and waiting for para 21(1)(

d) and (

f) and financial- statement information to be prepared here i.e. with such modest self-employment and corporate revenues [ 10 ] Particularly since I have already examined his ability to pay child support on the assumption that all of his claimed deductions are factored out. And because I have already discounted most of Ms. Wilgenbusch’s “other incomes, other sources” arguments, and because we now have sufficient information available -- from the ledger information noted above, Mr. Girard’s personal and corporate bank-account information provided to and now produced by Mr.

Ahanonu, and the transcript of examination of Mr. Girard -- for me to determine her remaining arguments on Mr. Girard’s income. D. Child support Whether to adjust Mr. Girard’s income for 2018-2020 [ 11 ] Turning to whether my initial assessment of Mr. Girard’s income should be adjusted, Mr. Ahanonu suggests taking Mr. Girard’s personal and corporate bank accounts as effectively representing two separate streams of income (both in their entirety) and adding them to produce his available-for-child-support-payments income. [ 12 ] I do not accept that approach: • first, Mr.

Girard’s uncontradicted evidence is that much of his cash inflows (reflected in deposits to his personal bank account ) are not income in any sense but instead contributions from his mother (or his parents), one or both of whom live with him, and from his new partner. For example, for January 2020, per Mr. Ahanonu’s approach, the full $6,207.05 in deposits to that account would be treated

as income to Mr. Girard. But a review of the account statement, which provides source-identity information for most of the deposits, reveals deposit by his mother of $4,172 and his new partner of $270 i.e. $4,442 in clearly other-than-income deposits. If I understand correctly, Mr. Girard performed the same (sifting) exercise for the full (2020) year, calculating mother (or parent) and new-partner contributions of $40,003 and $8,302.84, respectively (total $48,305.84) i.e. roughly 65 per cent of the total deposits for the year ($74,355.98). The difference is $26,050.14. Mr.

Girard stated (per his follow-up letter of November 29 th ) that “deposits [to my personal bank account in 2020] attributable as income or otherwise not explained are $14,455.80” i.e. about $11,500 less than the $26,050.14 difference noted above. I cannot tell from, merely from the account statements themselves, whether a given deposit (i.e. beyond the family and new-partner contributions) should be characterized as income to Mr. Girard. In these circumstances, including no suggested alternative treatment of the deposit accounts by Ms.

Wilgenbusch (i.e. as a back-up to her “treat them all as income” approach), and given that the CRA apparently (per Mr. Girard’s notice of assessment for 2020) accepted his income at approximately $10,000, combined with his testimony on examination about the devastating effects of the pandemic on his business for most of 2020, I am not satisfied that the personal bank- account evidence, at least on its own, warrants another take on Mr. Girard’s 2020 income (i.e. beyond the analysis in my earlier decision); • turning to the Mr.

Girard’s corporation’s bank-account information for the first year of its business (March 15, 2020 to March 15, 2021), here too Ms. Wilgenbusch argued for “straight inclusion” i.e. that every dollar deposited should be treated as income to Mr. Girard. Per the chart forming part of Mr. Ahanonu’s November 15 th letter, the deposits for that period totalled $29,599.78.

If I understand the ledger information correctly, the corporation’s sales for that year were $24,238.67, matched with advertising and promotion expenses of $1,343, bank service charges of $19.50, computer-related operating expenses of $8,460.98 (aggregating over seven different subsets of such expenses), meals and entertainment ($533.09), office supplies ($301.99), professional fees ($900), land-line phone ($375), cell phone ($200), miscellaneous tools ($185), travel ($130.25), utilities ($80), vehicle fuel ($1,097.04), vehicle repair and maintenance ($2,045), payment-processing fees ($229.86), payroll taxes ($82.47), and payroll (gross) and “salary & wages” ($10,914.51), and “uncategorized expenses” ($2,697.16).

These expenses total $29,594.85. Even if the entirety of the meals and entertainment, professional fees, land-line and cell-phone, miscellaneous tools, travel, utilities, vehicle fuel, vehicle repair and maintenance, and uncategorized expenses (i.e. those most likely to contain or reflect a personal-benefit element) are backed out, the expenses only reduce to $21,352.31, which (compared to apparent revenue of $24,238.67) would yield a net income of approximately $3,000. Even taking every deposited dollar as revenue (as argued by Ms.

Wilgenbusch i.e. potential revenue of $29,599.78), the net income (factoring out the same expenses) would still only be roughly $8,250 i.e. in the general vicinity of the roughly $10,000 in income as assessed by the CRA; • as for whether Mr. Girard failed to report or otherwise factor in income from an individual with whom he initially did a fair amount of business in his self-employment phase (approximately $1,500 received biweekly, later slowing to $750 biweekly, and apparently now further diminished), Ms.

Wilgenbusch emphasized that he has apparently received such payments in his own name, even during his “incorporated” year. However, Mr. Girard’s evidence (per the transcript) was that, even so, he has reported that income as part of his corporate revenues. He was not contradicted on that evidence, and nothing in the ledger information necessarily or obviously undercuts that evidence; • as I see it, Ms. Wilgenbusch’s arguments -- treating every deposited dollar as income to either Mr. Girard or his corporation, counting the deposits in both spheres as income to Mr.

Girard (i.e. potentially double-counting, with some portion of revenues paid out to Mr. Girard as salary), effectively treating none of his corporate expenses as legitimate, and searching for undeclared income – all miss the mark, for the reasons outlined. I am not satisfied, at least for 2020 or for March 2020 to March 2021, that any adjustment to Mr. Girard’s tax-assessed income is appropriate i.e. in determining his income for child-support-payment purposes; • as for 2018 and 2019 , Ms.

Wilgenbusch argued only that “[t]he same amount [i.e. the asserted $103,915.76 in all-deposits-tallied income for 2020] should be imputed to [Mr. Girard] for 2018 and 2019 for the purposes of determining the retroactive child support payable by [him].” I first note that Mr. Girard was not asked, during the late-October 2021 examinations, for bank-account or other information for either of these years. I do not see any other new (post-earlier decision) evidence illuminating Mr. Girard’s income of either year.

Accordingly, and recalling that the follow-up review was premised on new information about his income, and noting that I have already found that requiring financial statements for those years would likely be unproductive, I am not prepared to impute income at the suggested, or any different levels (i.e. different than as accepted in the earlier judgment); and • in any case (re 2018 and 2019), in light of my assessment of the father’s overall conduct in 2018-2020 (paras 14 to 23 of the earlier judgment) i.e. with no marker of the kind of intentional evasion required by Hunt v Smolis-Hunt , 2001 ABCA 229 for imputing income, and no other particular reason advanced why the asserted 2020 income for Mr.

Girard (rejected above) should prevail in 2018 and 2019, I see no basis to impute income to Mr. Girard in those years. [ 13 ] All to say: even with the benefit of the available new information, Ms. Wilgenbusch has not satisfied me that my initial x-ray of Mr. Girard’s income in 2018-2020 was off-target in any material way. [ 14 ] Accordingly, I dismiss her request for retroactive child support for those years .

Child support for 2021 to date [ 15 ] As for 2021 to date , I again do not have much information i.e. other than having confirmed the 2018-2020 income information, to the extent it (collectively) may be a guide when setting his current income.

[ 16 ] I do have Mr. Girard’s estimate (para 26 of his June 11, 2021 affidavit) that his gross income (presumably meaning his corporation’s gross income) for 2021 “[would] be about $25,000.” However, he also said that “it is extremely hard to estimate … the flow of work can vary dramatically month to month ….” [ 17 ] It is obvious from the outcomes of Mr.

Girard’s self-employment and now incorporated endeavours in 2018, 2019 and 2020 that his business has been slow to lift off, with the pandemic only making things worse. [ 18 ] If we were to use his 2020 assessed income (approximately $10,000) as the baseline for 2021, no child support would be payable by him, given the $12,000 floor (Alberta Guidelines ) noted in the earlier decision (para 18, seventh bullet). [ 19 ] One may question whether continuing to persist with such a business after more than a few years would be sensible or even responsible from a child-support-payment perspective. [ 20 ] It appears Mr.

Girard himself has recognized that. He now reports that, as of mid-October 2021, he has a full-time salaried position, paying him $55,000 annually. [ 21 ] Given his below-floor-level income in 2020, no sign that his income increased in any material way in the first three months of 2021 (i.e. even if one were to use his personal and corporate account statements as proxies), and the deterioration of his already-marginal income in the second half of 2020 (per his cross-examination testimony on page 28), I find that Mr.

Girard’s 2020-level income continued throughout 2021, up to October 15, when he started full-time employment. Conclusion on ongoing child support [ 22 ] I find that child support shall be paid, in line with equal-shared parenting, with Mr. Girard’s income set at $55,000 and Ms.

Wilgenbusch’s at $7,000 (in line with her 2020 tax assessment), starting November 1, 2021 and ongoing , with the parties obliged to provide each other with a copy of their respective tax returns and notices of assessment by June 1 st of each year. [ 23 ] Neither party provided sufficient evidence bearing on the possible shared-parenting-related adjustments to child support contemplated by ss. 9(

b) and (

c) of the Alberta Guidelines . Accordingly, I make no such adjustments here. [ 24 ] If it turns out that Mr. Girard earns any material amount from his corporation (which he plans to continue operating i.e. on top of his full-time salaried work), that can be recognized in any adjustment to child support i.e. once the parties’ full earnings are known in the summer of each year. E. Spousal support [ 25 ] This leaves Ms. Wilgenbusch’s application for spousal support.

She acknowledges a short relationship here (approximately three years), but emphasizes being home with the child for the first twelve months, thus allowing Mr. Girard to continue pursuing his business interests (such as they were) during that period, and also that, when her employment continued after the first year of the child’s life, it shifted to night work, with fewer available shifts, and even then continuing to carry the full or majority of the child-care work during the day. [ 26 ] She acknowledges also that she has re-partnered but says that applies equally to Mr.

Girard. (Information about their respective partners is relatively limited.) [ 27 ] She also implicitly acknowledges that new-partner contributions may undercut entitlement to non-compensatory (i.e. need- based) support, but says that is not the case for compensatory support. [ 28 ] She closes this way: For a relationship of about 3 years, the spousal support guidelines suggest the payment of child support for 1.5 years.

However, being that the applicant has a new partner, we think it will be reasonable to grant spousal support to her for a 1-year period, using the low- range amount contained in [certain exhibited calculations, which assumed income of $101,059 for the husband]. [ 29 ] Mr. Girard says that his means continue to be limited, that (on the new-salary front) Ms. Wilgenbusch did not contribute to the emergence of that opportunity, that Ms.

Wilgenbusch has not exerted sufficient efforts to become (or become more) self-sufficient (working less-than-available hours, not working at all for some periods, going to school, and more recently starting a new family with her new partner), and that Ms. Wilgenbusch’s new partner has a substantial ($95,000 to $102,000) income, which covers all of her needs. [ 30 ] I find entitlement to spousal support on a compensatory basis (emphasizing Ms.

Wilgenbusch’s exit from the working world for a year following the birth of their child and her narrowed (fewer shifts) working life after that, her defensible decision to return to school for a period, and her equally defensible decision to have another child). [ 31 ] Her proposal of support for one year is certainly reasonable. [ 32 ] I direct that Mr. Girard pay spousal support, on his income of $55,000, as of November 1 2021, for twelve months, calculated on the “with child support” basis and set at the middle range. F. Closing note

[ 33 ] I thank the parties for their helpful follow-up submissions. [ 34 ] In view of the divided success overall (here and in the earlier judgment), the parties shall bear their own costs. Heard by way of written submissions received November 3, 15, and 29, 2021. Dated at the City of Wetaskiwin, Alberta this 17 th day of December, 2021 . M. J. Lema J.C.Q.B.A. Appearances: Nduka Ahanonu Duke Law Office for the Applicant Anthony V F Morrish Axon Law for the Respondent