KLB v HMB, 2021 ABQB 109

Court of Queen’s Bench of Alberta Citation: KLB v HMB, 2021 ABQB 109 Date: 20210211 Docket: 4801 173363 Registry: Calgary Between: KLCB Applicant - and - HMB aka HMM Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ [ 1 ] The parties were married in September 2006, separated in December 2015 and are now divorced. There are two children of the marriage, KB who is 13 years old and JB who is 10 years old. [1] The parties have been engaged in high conflict proceedings since

the time of their separation, with each party seeking emergency protection orders and restraining orders against one another at various times. A restraining order is currently preventing the parties from communicating directly with one another. [ 2 ] KLCB, the father, now applies for a change to parenting and seeks relief in regards to retroactive and ongoing child support. HMB, the mother, has also applied for a change to parenting arrangements and disputes that any relief should be provided to the father in relation to child support. I. Parenting A.

Prior orders [ 3 ] The parties have, at various times since separation, had primary, shared and split parenting arrangements. The parties attended at an Early Intervention Case Conference (“EICC”) with Justice Campbell on September 19, 2018 and reached an agreement that was documented through a Consent Parenting Order (“Campbell Parenting Order”). Pursuant to the terms of the Campbell Parenting Order, the mother had primary care of JB and the father had primary care of KB. The parties then had both children on alternating weekends.

The Campbell Parenting Order also addressed pick up and drop off issues, as well communications protocols. [ 4 ] Justice Dario granted an interim without prejudice ex parte parenting order on January 10, 2020 granting the father primary care as the mother traveled to Mexico for an extended period. When the mother returned to Canada in March 2020, she brought a parenting application and Justice Marriott granted a further interim without prejudice parenting order on April 24, 2020 (“Marriott Parenting Order”). The Marriott Parenting Order stated that would be no order made in regards to KB.

I understand that KB sees the mother when she wishes. JB was to live primarily with the father and mother was to have parenting time every weekend. The combined effect of the Justice Dario and Marriott Parenting Order was that the father had primary care of both children during the 2020 year. B. Positions of the parties [ 5 ] The father seeks an order stipulating that the mother will only have parenting time with JB when JB wishes, or alternatively, that the mother be granted parenting time every other weekend and such other times as when JB wishes.

He asks for this change because he works during the week and does not have meaningful parenting time with JB. He also submits that JB has asked to have the same arrangement as KB. [ 6 ] The mother seeks an order formalizing parenting time with KB for three days during the week, every other week. She also seeks a shared parenting arrangement in relation to JB whereby JB would reside with each parent on a week on/week off basis.

She submits that the ex parte order of Justice Dario was granted under false pretences and that it would be in the best interests of the children to return to a formalized routine akin to that established by the Campbell Parenting Order. In the mother’s submission, leaving her parenting time up to the children would not be in the best interests of the children due to the lack of structure. In addition, she would see the children less because the father would interfere with KB and JB’s wishes. [ 7 ] Counsel for the children provided a submission based on her recent communications with the children.

Counsel for the children’s submission provided significant insight to the Court regarding what the children have reported as allegations or facts, including: • The father tried to kill the mother • The mother punched the father in a courtroom and had to be restrained by sheriffs, resulting in a period of incarceration • KB has had a physical altercation with her maternal grandfather • KB has received text messages from her mother expressing aggression, including the statement, “Its easier for me to start another family and forget about you girls. Hope you understand. Enjoy your life.

Just pretend I’m dead”. [ 8 ] It was also made clear that the children constantly hear negative comments about their parents from family members. [ 9 ] KB has expressed thoughts of suicide and self harm. JB deals with conflict by trying to leave the situation. [ 10 ] KB advised that she is seeing her mother approximately 2 times per month and likes being able to see her mother when she wishes.

KB also reported that she has disagreements with her mother but overall, “things are ‘pretty stable’.” JB advised that she would like some weekends at her father’s so she can spend time with him, as he works during the week. She also wants to be able to see her mother during the week and would like flexibility to see her mother when she wishes. Both children reported wishing that their mother lived closer to their father so they could see her more easily.

Counsel for the children queried whether the Court would benefit from having a PN7 Assessment conducted in order to ascertain the bests interests of the children, but also submitted the following at paragraph 26: Since September 2018, [KB] has been seeing her Mother when she is comfortable. She is 13 years old, very mature for her age and wishes for the current arrangement to remain. [JB] is seeking to be able to

schedule when she visits her Mother. To her this means spending more time with her Mother as she will also be able to see her on weekdays and also more time with her Father as she will then also be able to see him on weekends. Based on the ages of both children, their maturity and history in dealing with their parent’s high conflict divorce litigation, it is respectfully submitted their wishes should be given significant weight. [ 11 ] The children also reported that the parties are capable of getting along. This past Christmas, each of them bought the other a Christmas present and the mother has been allowing her dog to spend time with them at their father’s home.

C. Analysis [ 12 ] During the hearing, both parties expressed a desire to move towards a more effective co-parenting relationship with one another. As I indicated to them, this is critical. The information reported by Counsel for the children is alarming and should serve as a wake up call to them and their family members. All of them collectively need to move forward in a respectful, constructive manner in order to be acting in the best interests of the children.

Subjecting the children to animosity and negativity is extremely harmful, and if it continues, such behaviour will have significant, long-term negative impacts on the children, their future development and relationships. [ 13 ] Whether obtained under false pretences or otherwise, the mother’s travel to Mexico for an extended period of time in early 2020 introduced a significant change to the parenting arrangement imposed by the Campbell Parenting Order. She was out of the country for several weeks and the father served as primary parent to both KB and JB during this period.

Therefore, there has been a material change in circumstances warranting a further review of the parenting arrangements. Moreover, all of the parties, including the children, have expressed a desire to revisit the terms to the Marriott Parenting Order given changes to the mother’s living arrangements, which impacts the children during parenting time with the mother. [ 14 ] I am mindful of Counsel for the children’s comments regarding a PN7 Assessment, but I am also mindful that the parents do not have a lot of financial resources available to them to pay for such an assessment.

Both parents expressed a willingness at the hearing to prioritize counselling for the children and I consider that to be a better use of their financial resources in the immediate term. We discussed at the end of the hearing deadlines for Counsel for the children and the parties to communicate regarding selection of a counsellor for the children. An agreement was reached which is a positive sign that the parents are taking seriously their commitment to moving towards an effective co-parenting arrangement. Costs associated with the counsellor for the children shall be shared by the parties as a

section 7 expense on a proportionate basis once their 2020 Guideline Incomes have been determined. [ 15 ] Given the Affidavit evidence filed by the parties and the submission of Counsel for the children, I consider it to be in the best interests of the children to continue to allow KB to see her mother when she wishes. JB shall have parenting time with the mother on alternating weekends from Friday at 6 pm to Sunday at 6 pm (or Monday at 6 pm in the case of a long weekend), in addition to such additional time that JB wishes to see her mother.

This shall take effect as agreed to between the parties and no later than March 1, 2021. This order is premised on the father understanding and acting in accordance with the following principles: (

i) JB asked for this arrangement because she feels this would allow her to see her mother more, including during the week; (ii) if JB asks to see her mother or spend the weekend with her mother, even during the father’s scheduled access time, he shall make reasonable efforts to permit her to go, and (iii) the father shall not interfere with KB or JB’s expressed desire to see the mother. [ 16 ] The children shall be able to communicate directly with their mother in order to initiate and coordinate parenting time.

This will minimize communication between the parents, although there will be occasions when the mother and father will need to communicate with one another because of existing plans or to offer additional parenting time. [ 17 ] In order to ensure that the father is not interfering with the children’s wishes to spend time with the mother, I direct that Counsel for the children remain available to act for the children until this order is reviewed in one year’s time.

This will ensure that the children may contact her if necessary to discuss issues important to them, including parenting time and counselling. [ 18 ] In the event that there is evidence that the father is not acting in accordance with the principles I have outlined above, the mother has leave to bring an application to address parenting arrangements prior to the one-year review date. The mother should understand, however, that the parties are expected to work towards co-parenting in an amicable fashion and she should not be looking for an opportunity to return to Court.

This will require the mother to have some respect for the father’s plans and for what is occurring in the father’s household. The father should not be expected to change his plans on a moment’s notice. At the same time, if the father is not available to be home with the children and the mother is available, he should consider offering additional parenting time to the mother. This is particularly so given that the mother will be renting an apartment in closer proximity to the father’s home.

Both parents need to make reasonable efforts to improve their relationship with one another and ensure that the children benefit from the best that the other parent has to offer the children. Failure to do so represents a failure to act in the best interests of the children. [ 19 ] This order shall subject to review in one year’s time before any Justice of this Court. Of course, it is my hope that the parties will be in a position to move forward with a form of consent parenting order at that time. [ 20 ] In my view, I must also address communication issues as part of this parenting order.

The parties cannot continue with third parties acting as intermediaries and the children have expressly indicated that their maternal grandparents’ involvement has not been helpful. This is clearly the case if they are expressing negative sentiments about the father openly in front of the children. No one, including the parties, should be making negative or derogatory comments about the other parent in front of the children.

Similarly, neither parent should discuss contentious matters relating to their litigation issues with the children. [ 21 ] The parties are directed to select and start using a communications tool such as Our Family Wizard effective March 1, 2021. Use of this communication tool to discuss parenting matters shall not be a breach of any existing restraining orders, provided the parties communicate with one another respectfully, politely and with a future focus.

The parties shall log into the communication tool a minimum of once per day, and messages requiring a response shall be clearly identified and state the question to be answered. The other parent shall respond to messages in a constructive manner within 24 hours of receipt.

If a communication is sent for informational purposes only, the other parent shall nevertheless acknowledge receipt. [ 22 ] In the event of a medical or other emergency pertaining to the children, then the parent with the child or children shall notify the other parent by telephone as soon as possible, and this shall not be a breach of the existing restraining order. II. Child Support

A. Prior orders [ 23 ] A brief review of the parties’ historical parenting arrangement is useful to put the child support orders in context. From the time of separation in late December 2015 until February 2017, the parties had a shared parenting arrangement. The mother then became the primary caregiver with the father having parenting time every other weekend. It seems that Child and Family Services became involved and the children were in the care of the father for a two week period prior to the September 19, 2018 EICC with Justice Campbell. [ 24 ] Justice Ashcroft granted an Interim Without Prejudice Consent Child Support Order on August 1, 2018 (“Ashcroft Support Order”). The

preamble to Justice Ashcroft’s Order noted that the parties attended a DRO meeting in May 2018 and that the mother had an undetermined claim towards retroactive

section 3 and 7 child support for the period January 1, 2016 to December 31, 2017. Therefore, while the Ashcroft Support Order directed the father to pay

section 3 child support in the amount of $850 per month starting August 1, 2018, the issue of retroactive

section 3 and 7 child support for 2016 and 2017 was reserved. It was also agreed that the father owed $7,000 in arrears to the mother for

section 3 and 7 support for the period of January 1 to August 1, 2018 (“2018 Arrears”). The arrears were not enforceable provided the father paid the agreed upon amount of $50 per month towards the 2018 Arrears. Both parties were represented by counsel when the Ashcroft Support Order was granted. [ 25 ] Justice Campbell then issued a Consent Child Support Order that resulted from the EICC and the parties agreed to a split custody arrangement (“Campbell Support Order”).

Paragraph 1 of the Campbell Support Order indicated that the mother’s income was imputed at $25,000 and the father’s income was imputed at $70,000. Therefore, the father was to pay the mother the offset amount of $389 per month as

section 3 child support starting October 1, 2018. It was also agreed that the father owed the mother a total of $16,000 in

section 3 and

section 7 arrears for the period January 1, 2016 to December 31, 2017 (“2016/2017 Arrears”), and that the father would pay $300 per month towards the 2016/2017 Arrears also starting October 1, 2018. It seems that only the mother was assisted by counsel at the EICC. [ 26 ] On October 19, 2020, Justice Kenny granted a stay of enforcement in regards to all child support arrears and ongoing child support payments until further order. The stay was still in effect at the time this special application was argued, and I extended this stay at the conclusion of the hearing pending release of this decision. B.

Positions of the Parties [ 27 ] The father has applied to vary the amount of retroactive child support payable under the Ashcroft Support Order and Campbell Support Order on the basis that the Line 150 income reported on each of his tax returns filed for the 2016, 2017 and 2018 years was significantly lower than the Guideline amounts used as the basis for calculating child support payable during those years. The father’s Line 150 income in 2016 was $24,900, in 2017 was $23,821 and in 2018 was $24,835.

He had not filed his 2019 tax return at the time of the hearing but estimated that his income would remain at approximately the same levels as 2016 through 2018. [ 28 ] The father has also applied for ongoing

section 3 child support from the mother since he has the majority of parenting time. [ 29 ] The Campbell Support Order made following the EICC imputed the father’s income at $70,000 per year and the mother’s income at $25,000. These figures led to the determination of the set off amount of $389 per month, payable by the father to the mother as

section 3 child support commencing October 1, 2018. There is no indication in the Campbell Support Order that the imputed amount had retroactive effect or that it was used as the basis for reaching agreement on the 2016/2017 Arrears at the global amount of $16,000. [ 30 ] There is no indication in the Ashcroft Support Order what Guideline incomes were used for each of the parties in setting the 2018 Arrears at $7,000 as it appears from the

preamble that the consent order was presented to Justice Ashcroft following a DRO meeting. Again, both parties were represented by counsel at the time. The Ashcroft Support Order also directed the father to pay the mother

section 3 child support in the amount of $850 per month commencing August 1, 2018, which corresponds to a Guideline income of approximately $59,000 per year. [ 31 ] Based on calculations included in the father’s brief, it was submitted that the mother actually owes the father more than $6,600 in child support for the period ending 2020 once adjustments for actual income and for the change to parenting time in the 2020 year are made. [ 32 ] In the mother’s brief, she argued that there was no reason to depart from the terms of the Campbell Support Order given that circumstances in relation to the imputation of the father’s income have not changed.

During the hearing, the mother’s counsel acknowledged that there was a significant change in the parenting arrangement in 2020 when the father had primary care of the children. Regardless, the mother submitted that the imputation of $70,000 of income to the father should continue. [ 33 ] The mother has, since the date of separation, contested the father’s reported income. She deposed that historically, the father earned an average of $100,000 per year as a professional siding installer. A Notice of Assessment for 2014, the year immediately prior to separation, shows the father’s income to be $133,000.

The mother alleges that the father has failed to declare all of his income which explains the 75% drop in his income. She has also deposed that this failure to properly report income is what led to the agreement to impute the father’s income at $70,000 per year. C. Analysis [ 34 ] The father’s counsel pointed me to the Ontario decision of Abballe v Abballe , 2014 ONSC 4244 as support for the proposition that I should rescind arrears where an imputed income proves to be significantly different from actual Guideline income.

It was also submitted that a review is appropriate because there has been no determination of support payable made under the Guideline.

[ 35 ] In Abballe , the parties received a divorce order in 1999 which required Mr. Abballe to pay $762 per month in child support for so long as the two daughters (then 5 and 7 years old) remained children of the marriage. The $762 figure was based on an annual Guideline income of $52,000. Mr. Abballe did not file an Answer to the initial claim for divorce, nor did he attend in Court. At the time of trial, which was the first time the support order was reviewed, both daughters were in University.

It was agreed that the amount of arrears owing under the 1999 divorce order was $70,739.32 (as he made some payments) and Mr. Abballe asked that all arrears be rescinded on the basis that he had not earned $52,000 since 1999. Healey J reviewed Mr. Abballe’s evidence and made factual findings as to his income for each of the years 2000 to 2014. During that period, Mr. Abballe’s annual income ranged from negative figures (when he lost money trying to start his own business) to a high of $31,380.

Based on those findings of fact, Healey J rescinded the arrears owed and adjusted ongoing child support payments. [ 36 ] In this case, counsel to the father emphasized that he was unrepresented at the EICC which is another reason why this Court should rescind arrears that have accrued based on the imputed income of $70,000.

The father stated during the hearing before me that at the time of the EICC, he had not seen his children in 9 months and was desperate to bring about a change to the parenting arrangement such that he was prepared to agree to anything. [ 37 ] I do not agree that this case is similar to the situation in Abballe at all. First, the father was present and was represented by counsel when the 2018 Arrears were determined at a DRO.

Second, by September 2018, the father would have known what his Line 150 income was for 2016 and 2017 and had every opportunity during the EICC to bring that to the attention of Justice Campbell, or at least indicate that there had been a significant drop in his income. I do not accept that he needed a lawyer to speak to his income at the EICC. Moreover, it is made clear at the start of every EICC that a substantive order will only be made with the express agreement of the parties.

Had the father wished to bring into evidence what transpired or what was discussed at the EICC, he could have sought leave to obtain a copy of the transcript from Justice Campbell and submit it as part of the record before me. He did not do so. Third, the 2016/2017 Arrears and 2018 Arrears were arrived at through agreement of the parties at a DRO and an EICC.

Even though the father was self-represented at the EICC, he has not provided evidence necessary to establish that the agreements arrived at between the parties, which were subsequently transformed into consent orders, should be set aside (for example, on the basis that he misunderstood what he was agreeing to during the EICC). [ 38 ] Finally, and most significantly, I am not prepared to make findings of fact regarding the father’s Guideline income for the 2016 to 2020 period based on the status of his financial disclosure and the evidentiary record.

The father’s most recent disclosure statement referred to a numbered company which he apparently incorporated in early 2020. He did not advise his counsel of this, nor does it appear that he advised his counsel that he previously had a company which he claimed ceased operations at the time of separation in late 2015. None of his disclosure has provided helpful evidence relative to his corporate entities and he has not provided any evidence that discharges his obligation under

section 21, among others, of the Guideline. The Alberta Court of Appeal has made it clear that a payor who controls a corporation bears responsibility for full and transparent disclosure in such circumstances so that a recipient and a court may meaningfully assess the disclosure for the purposes of making child support orders: Cunningham v Seveny , 2017 ABCA 4 . [ 39 ] In addition, I note that the father’s evidence does not address the mother’s allegations regarding a significant decrease in his income in a meaningful way, even though he has had every opportunity to do so and is now represented by counsel.

In my view, there are significant questions regarding the adequacy of the father’s financial disclosure and reported income, and he should not come to Court seeking relief unless and until he has met all of his disclosure obligations. [ 40 ] The Court of Appeal has also made clear that child support arrears should only be rescinded in special circumstances: Haisman v Haisman , 1994 ABCA 249 .

In my view, the evidence does not establish that special circumstances exist in this case. [ 41 ] Given all of the foregoing, I dismiss the father’s application for a review and rescission of the 2016/2017 Arrears and the 2018 Arrears. [ 42 ] I further direct the father to provide fulsome financial disclosure, including in relation to his corporate entities, for the time period of January 1, 2019 to January 31, 2021 since there are still questions regarding any 2019 arrears that may be owing and child support for 2020 will have to be determined.

This disclosure must be completed within 4 weeks of the release of this decision so that counsel may review disclosure and discuss with one another child support for the 2019 and 2020 years. In making this order, I am not indicating that there should be a departure from the Campbell Support Order for 2019, but I am providing the father with an opportunity to provide a fulsome and accurate evidentiary basis for the imputed figure of $70,000 to be assessed.

If the parties are not able to resolve issues regarding 2019, 2020 and ongoing child support, they are directed to return to Family Docket Court in order to secure a date for a further hearing to be conducted based on a complete evidentiary record of each party’s financial situation to properly establish Guideline income. [ 43 ] With regards to ongoing child support, the father has been the primary parent to the children since the beginning of 2020 and under the terms of this decision, may continue to parent the children for a majority of the time.

Therefore, I direct that on an interim without prejudice basis, commencing March 1, 2021, the mother shall pay to the father

section 3 child support based upon the imputed income amount that was agreed upon and formed the basis of the Campbell Support Order, being $25,000 per year. [ 44 ] Subject to an agreement between the parties regarding an adjustment to arrears owed having regard for the significant change in parenting time that started in 2020, or an agreement between the father and MEP for the payment of the 2016/2017 Arrears and 2018 Arrears, the stay of enforcement I granted at the conclusion of the January 20 hearing in respect of the 2016/2017 Arrears and 2018 Arrears shall only remain in effect until April 1, 2021.

If the parties are able to reach some sort of agreement in regards to child support and arrears as outlined, they may contact my office in writing to seek issuance of any further consent order required. III. Costs [ 45 ] In my view, the parties have enjoyed mixed success and I direct each party to bear their own costs.

Heard on the 20 th day of January, 2021. Dated at the City of Calgary, Alberta this 11 th day of February, 2021. L. Bernette Ho J.C.Q.B.A. Appearances: Vivian Nwanko for the Father/Applicant Jagat Kaur for the Mother/Respondent Jillian Hegberg for the Children