Hinves v Ward, 2021 ABQB 11

Court of Queen’s Bench of Alberta Citation: Hinves v Ward, 2021 ABQB 11 Date: 20210106 Docket: 4804 011917 Registry: Grande Prairie Between: Terry Charles Hinves Applicant - and - Candice Pearl Ward Respondent Corrected judgment: A corrigendum was issued on January 6, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L.

Shelley _______________________________________________________ Background [ 1 ] The parties appeared before Justice Neufeld on January 24, 2020 and entered into an Interim without Prejudice Child Support Order (the Order). Recitals to that Order indicate that the Application before the Court related to disclosure, support issues and division of matrimonial property. The Order also noted that the parties had appeared before Justice Eidsvik on December 16, 2019, and that an Interim Consent Order was granted by her on that date. The Order indicated, in the

preamble, that they “wished to enter the Order of Justice Eidsvik as final”. However, there is no further mention of Justice Eidsvik’s Order in the Order of Justice Neufeld. The Court’s procedure record does not disclose any appearance before Justice Eidsvik. Given the subsequent steps taken, I assume this reference was

made in error. [ 2 ] The Order set Mr. Hinves’ income at $126,511 and Ms. Ward’s at $31,576. Justice Neufeld ordered interim s 3 and s 7 child support and confirmed that Mr. Hinves then owed $1,625 in child support arrears retroactive to March 31, 2018. He ordered repayment of those arrears by way of payments of $81 per month. Issues related to spousal support and division of matrimonial property were adjourned to an EICC to be held on March 18. Further disclosure was ordered to be produced by February 28.

It appears that the EICC was adjourned due to the interruption in the Court’s operations arising from COVID-19. It further appears that the EICC may have been rescheduled; but it is unclear whether it proceeded. [ 3 ] On July 22, Mr. Hinves filed an Application to vary child support and to recalculate the parties’ proportionate share of s 7 expenses retroactive to February 1, 2020, on the basis that he estimated that his 2020 Line 150 income will be $88,000. This is substantially lower than the amount set out in the Order.

It is also substantially below the Line 150 Income disclosed in his tax returns: $138,418 in 2017, $125,511 in 2018 and $115,194 in 2019. [ 4 ] Ms. Ward disputed Mr. Hinves’ estimate of his 2020 income and opposed his Application. She pursued her Application for spousal support. [ 5 ] At the Application, the parties indicated their desire to resolve their matrimonial property division issues. To provide the parties with an opportunity to pursue those discussions further, my Decision on child support and spousal support was reserved.

The parties have now advised that they were unable to reach agreement in relation to the division of matrimonial property. Accordingly, they have requested that I issue my Decision in respect of the child and spousal support issues. [ 6 ] The Affidavits filed in relation to the Application included copies of various “without prejudice” correspondence related to settlement discussions. As soon as I realized what the material was, I ceased looking at it.

I clarified during the Application that the other party had not waived the without prejudice nature of the communication and, therefore, I have neither viewed nor taken into consideration any of the contents of that correspondence. Issues [ 7 ] The issues to be decided are: 1. Has Mr. Hinves established a material change in circumstances? 2. If he has established a material change in circumstances, what is the resulting effect on his child support obligation? 3. Is Ms. Ward entitled to spousal support? 4. If she is entitled to spousal support, in what amount and for what duration?

Position of the Parties Position of Mr. Hinves [ 8 ] Mr. Hinves submitted that his guideline income ought to be set at $88,000 effective February 1, 2020. In support of this position, Mr. Hinves provided a letter from the accounting/payroll department of his employer, RBEE Aggregate, which indicates that “Terry is projected to gross approximately $88,000, as we are expecting the fall to be slower for us and he has scheduled time-off.” The letter also indicated that Mr. Hinves’ regular rate of pay is $22 per hour with an overtime rate of $33 per hour.

The letter states he works no more than 44 hours per week. [ 9 ] Mr. Hinves also provided paystubs. The last paystub provided to the Court in connection with the Application was dated July 17, 2020. On that date, Mr. Hinves’ gross year-to-date pay was $51,659.52 plus a $28,905 subsistence payment. The paystub indicated that he had received a gross payment of $80,564.52 which, after deductions, netted him $64,895.80. [ 10 ] Mr. Hinves argued that the subsistence amount of his remuneration should not be included for guideline purposes.

Rather, it should properly be characterized as reimbursement for expenses incurred while travelling as a truck driver. In addition, Mr. Hinves deposed that, while he has traditionally worked a large amount of overtime, he is not able to continue doing so. He deposed that this arises from an audit, presumably from some government entity, which has resulted in his employer now being required to strictly adhere to Commercial Vehicle Driver’s Hours of Service Regulations, which limits his work to 70 hours of on-duty time during any seven day period. [ 11 ] Mr.

Hinves also submitted that he is not in a position to pay spousal support to Ms. Ward as he is now supporting a new partner and her child. Furthermore, he took the position that Ms. Ward has two sources of income and, although she may have been temporarily laid off from that employment as a result of the COVID-19 pandemic, he understood that she received CERB payments during those periods of time when she was not working. He also submitted that her delay in seeking spousal support should weigh against her receiving it. [ 12 ] Mr.

Hinves provided a budget (indicating his expenses to be $118,105) which he submitted confirms his inability to contribute any further funds for support. The materials filed in support of his Application did not indicate the extent to which his new partner might be contributing to their shared expenses. At the Application, Mr. Hinves advised, through counsel, that his partner is contributing to some utility expenses.

[ 13 ] In relation to Ms. Ward’s budget, Mr. Hinves took the position that she has inflated her expenses and failed to take into account that she shares expenses with her new partner. Position of Ms. Ward [ 14 ] Ms. Ward disputed Mr. Hinves’ estimate of his 2020 income, arguing that his paystubs clearly indicate that his income will be higher than his estimate. Although she did not provide any case authority specific to this issue, she took the position his subsistence allowance should be included in his income. She submitted that the subsistence allowance is greater than Mr.

Hinves’ actual expenses and is a means by which his employer provides a non-taxable benefit to him. [ 15 ] Ms. Ward argued that she is entitled to spousal support on both a compensatory and a needs basis. She and Mr. Hinves were in a relationship in excess of 24 years, during which she was largely a stay-at-home mother who worked occasionally on a part-time basis. In relation to her budgeted expenses of approximately $6,000 per month, she indicated that it reflects only half of the rent and other expenses shared with her new partner.

She acknowledged that it is not broken down as between expenses attributed to her and her son, and those borne separately by her new partner. Ms. Ward indicated that she lost her part-time job as a result of COVID. While laid-off from her employment due to COVID, she received CERB. She has minimal education and has health issues, both of which negatively affect her ability to be self-sufficient. There has always been a large discrepancy between her income and that of Mr. Hinves. She submitted that currently there is a significant difference in the standard of living in their respective households.

Applicable Legal Principles [ 16 ] The case authority relied on by Ms. Ward reflects the general principle that, although certain amounts may be deducted from income for the purposes of determining income tax liability, they are nonetheless available for guideline income calculation and child support obligation purposes where they are not truly reflective of expenses paid.

That is, to the extent that an expense is not an actual amount paid to a third party (for example, depreciation expense, personal benefits which may be deducted for tax purposes, and the like) they may be added in to income for the purposes of determining a support obligation. Ms. Ward submits that the subsistence allowance should be treated in this fashion. [ 17 ] Mr. Hinves provided certain case authorities following the hearing of the Application to address this argument. He relies on the Alberta Court of Appeal Decision in Calver v Calver , 2014 ABCA 63 .

In that case, the Court of Appeal referred to cases which have considered whether job related payments for travel and living expenses ought to be included in income for the purposes of child support. The Court recognized that there is discretion to impute income in appropriate circumstances, but that imputation must be exercised reasonably. In Calver , the Court of Appeal concluded that imputing part of the father’s subsistence allowance in that case was contrary to some of the evidence, took account of inappropriate matters and ignored others that ought to have been taken into account. [ 18 ] Mr.

Hinves also relies on McCaffrey v Dalla-Longa , 2008 Carswell Alta 408 , Jordan v Jordan , 2005 Carswell Sask 169 , and Dartige v Dartige , 1997 Carswell Sask 641 . In each of these cases, the Court did not impute subsistence allowance income, finding that in each of these cases the allowances were reimbursement for increased costs incurred while working away from home and, therefore, not available for child support purposes. Analysis [ 19 ] Mr. Hinves’ July 17 paystub suggests that his gross pay, even excluding the subsistence payment, would exceed the $88,000 projected by him.

On the issue of the subsistence allowance, as has been noted in other cases, the subsistence allowance is not available for guideline purposes to the extent that it is used to off-set additional expenses actually incurred by the employee. Mr. Hinves has not provided any documentation to substantiate that he has used all of this allowance for his additional expenses or, if he has not used all of it, what proportion of it has been used for additional expenses. This is not an invitation to do so, or to invite a further application by the parties in relation to this issue.

Rather, it is to make it clear to the parties that, on a final determination of this issue, such evidence will be expected by the Court and adjustments can be made at a trial when proper evidence is before the Court. In the interim, I do not discount the possibility that Ms. Ward is correct in her understanding that Mr. Hinves’ employer gives a very generous subsistence allowance as a means of providing a non-taxable benefit.

As any amount of the allowance not used for the its intended purpose can be characterized as income available for guideline purposes, the parties should ensure that this issue is fully canvassed and all relevant documentation sought and provided through the course of document production and questioning in advance of trial. [ 20 ] Mr. Hinves’ actual 2020 income will be known shortly. In the absence of that information, I am not prepared to adjust his estimated guideline income set by Justice Neufeld, on the basis of the evidence provided by Mr. Hinves on this Application. Mr.

Hinves’ evidence in relation to whether or not there will be a material change in his 2020 income was contradictory, vague, and incomplete. Seeking to change his guideline income so soon after it had been set by Order required Mr. Hinves to provide clearer and more compelling evidence than was presented on this Application. I find that Mr. Hinves has not established a material change in circumstances. Therefore, Mr. Hinves’ ongoing child support payment will remain unchanged until his 2020 guideline income has been properly established. [ 21 ] In relation to spousal support, it is clear that Mr.

Hinves has always and will likely continue to earn a significantly higher income than Ms. Ward. For her part, Ms. Ward was also not entirely forthcoming in relation to her income and expenses. It is difficult to accept that Ms. Ward’s share of her living expenses is as high as it is, given the limitations on her income at the best of times. It is incumbent on Ms. Ward to be clear in what expenses are shared with her new partner, particularly since interim spousal support awards are largely granted on the basis of need.

Without accurate information, that need cannot be determined with any confidence. [ 22 ] Just as there is an expectation that Ms. Ward’s new partner shares in their joint expenses, there is an expectation that Mr.

Hinves’ new partner will also share in their joint expenses, in the absence of evidence establishing why she is not able to do so. In addition, Mr. Hinves cannot avoid his child support obligation to his biological child by assuming obligations to the child of other parents. That child’s mother and father are responsible for supporting that child. [ 23 ] Although it is difficult to determine, with any precision, Ms.

Ward’s need for spousal support on the basis of the information before this Court, I am satisfied that her significantly lower income, whether employed in her usual jobs or while receiving CERB, is significantly less than Mr. Hinves’. In addition, given the length of their relationship and the circumstances of that relationship, it is likely that Ms. Ward will ultimately establish an entitlement to spousal support on a compensatory basis.

In the interim, however, given the vague nature of her evidence in relation to need and that she has managed without support for some time, I find that a modest spousal support award is appropriate on an interim without prejudice basis. I conclude that Mr. Hinves should pay $1,000 per month to Ms. Ward for spousal support commencing September 1, 2020.

The arrears which will result from this Order shall be repaid by monthly payments of $50 per month until the arrears amount has been satisfied. [ 24 ] As has been noted in many cases, interim without prejudice orders are intended to provide relief until the matter can be determined by agreement or by trial. They are not intended to be replaced every time there is a change, unless a material change is established by evidence.

This is especially so where there is only an alleged anticipated change in one of the parties’ circumstances. [ 25 ] The parties have indicated a desire to resolve at least some of the issues by agreement. Agreement of parties is encouraged. In that regard, care should be exercised not to resolve matters in a piecemeal fashion, as settlement of property can have a bearing on the appropriateness or amount of spousal support. Property issues are not suitable for determination on an interim basis and, ought to be determined at trial or by agreement.

If, as the parties have indicated, they truly wish to resolve their matters and move forward, I urge them to reschedule the EICC, which I assume did not occur. If I am mistaken in my understanding and an EICC was held, then I urge the parties to complete disclosure and questioning so that the matter can be set for trial. Heard on the 28 th day of August, 2020, with written materials received on October 20 th , 2020. Dated at the City of Grande Prairie, Alberta this 6 th day of January, 2021. D.L. Shelley J.C.Q.B.A.

Appearances: Agnes Ameh Jan Law Chamber for the Applicant Keethanjan Raveendran Gurevitch Burnham Law for the Respondent _______________________________________________________

Corrigendum of the Reasons for of The Honourable Madam Justice D.L. Shelley _______________________________________________________ Name of counsel appearing for the Respondent has been changed.