Marino v Marino, 2021 ABQB 166

Court of Queen’s Bench of Alberta Citation: Marino v Marino, 2021 ABQB 166 Date: 20210303 Docket: 4801 179475 Registry: Calgary Between: Traci Marino Applicant - and - Marco Marino Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice O.P Malik Regarding Without Prejudice Interim Child Support _______________________________________________________ [ 1 ] The Mother seeks ongoing and retroactive child and spousal support on an interim basis.

While this matter was originally set down to be heard by way of a Special Family Chambers application, the Special Chambers Justice directed that the matter be heard at a one-day oral hearing owing to the parties’ conflicting Affidavit evidence, particularly on the issue of the Mother’s financial disclosure. [ 2 ] There is no question that the Mother has failed to provide timely financial disclosure, although she has now agreed that her financial disclosure for the years 2018 and 2019 should be adjusted upwards in the amounts suggested by the Father. [ 3 ] There remain questions about the Mother’s income for 2020, and whether additional income that she received was in the form of undeclared rental income or financial gifts from friends and family.

I don’t believe this question has been fully answered and there may well need to be a variation to my decision should further disclosure for the years 2020-2021 come to light. The Parties’ Financial Circumstances [ 4 ] The parties were married on August 12, 2006. They separated in June, 2018. They have one child between them, born on

February 9, 2009, who is now 12 years old. [ 5 ] Since the parties’ separation until June 25, 2019, the child primarily lived with the Mother. From December, 2018 until June, 2019, the Father paid $722.00 per month in

section 3 child support. [ 6 ] Starting at the end of June, 2019, the parties shared parenting of their child. For the month of July, 2019, The Father reduced his

section 3 child support to $253.00. Since then, he has not paid any

section 3 child support to the Mother at all. [ 7 ] The Mother asserts that since the parties’ separation, the Father has not made any contributions towards their child’s

section 7 expenses, particularly clothes and school supplies. The Father says that he has contributed towards these expenses. [ 8 ] The parties’ matrimonial home was recently sold. There remains, from the sale proceeds, approximately $30,000.00 in equity. No agreement has yet been reached as to how these funds should be disbursed. [ 9 ] The Mother has been employed with West Jet since 2008. In 2017, she was earning $44,000.00. In 2018, she was placed on medical leave.

West Jet committed to hiring the Mother back at her pre-leave salary, although it is unclear whether that offer continues to remain open given the pandemic. [ 10 ] Initially, the Mother estimated that her 2018 income was approximately $31,000.00, although she now concedes that (as a result of previously undisclosed income) her 2018 income was $36,494.80. [ 11 ] In 2019, the Mother initially declared her total income to be $2,456.40 but she has now conceded that her 2019 income should be $33,505.70. [ 12 ] For each of the years 2020-2021, the Mother estimates that her total income will be $24,000.00, which she receives in the form of government assistance (employment insurance and CERB).

The Mother is currently on leave and there is no information as to whether, or when, she can return to her employment duties at her previous salary with West Jet. [ 13 ] The Father maintains that the Mother continues to receive undeclared income, possibly as rental income, for 2020. Further adjustments upwards may have to be made to the Mother’s income for these years. [ 14 ] The Father is employed with The City of Calgary as a transit operator.

He reports his Guideline income (employment income minus allowable deductions such as union dues) for the years 2018, 2019 and 2020 respectively, to be $81,185.62, $80,270.87, and $76, 968.44. [ 15 ] In October, 2018, the Father declared personal bankruptcy. [ 16 ] The Father’s monthly budget shows necessities of between $4,100.00 – $4,300.00 per month with available funds of $4,400.00 each month. Of note, is that he is having to pay $530.00 monthly to his Trustee in bankruptcy.

The Father estimates that a further $5,000.00 remains owing to the Trustee. [ 17 ] When the Mother prepared her household budget, she was living in the matrimonial home and incurring related expenses although also gaining monthly rental income. The matrimonial home has now sold so the Mother’s monthly budget estimate will need to updated to account for her current living conditions. Interim

Section 3 Child Support to be Paid by the Father to the Mother [ 18 ] For the year 2019, I accept that the Mother’s income is $33,505.70 with the Father’s income being $80,270.87.

On that basis, I find that the Father shall pay retroactive child support in the sum of $421.00 for each of the months of July – December, less the $253.00 the Father paid in child support for July, 2019, with the total amount of retroactive child support owing for the months of July- December, 2019, being $2,273.00. [ 19 ] For the year 2020, on the basis of the Father’s income of $76,968.44 and the Mother’s income of $24,000.00, the Father shall pay retroactive child support in the sum of $464.00 per month with the result that retroactive child support payable for the year 2020 shall be $5,568.00. [ 20 ] For the year 2021, with the Father’s estimated income of approximately $78,053.38 and the Mother’s estimated income at $24,000.00, the Father shall pay child support of $474.00 per month commencing on January 1, 2021. [ 21 ] For the purpose of granting an interim order regarding child support, I have calculated child support payable as a straight set- off between the parties’ incomes given each of their limited household budgets and the limited information I have at this time regarding the condition, means and needs of the parties and their child.

However, the issue of what further adjustments to child support should be made pursuant to

section 9 of the Guidelines will need to be addressed in further detail. [ 22 ] I have not addressed the issue of the child’s

section 7 expenses. If necessary, the parties are given leave to apply directly to Special Family Chambers to settle the issue of retroactive and ongoing

section 7 expenses. Spousal Support

[ 23 ] Given the Father’s current financial circumstances and the priority that must be placed on child support being paid, the matter of spousal support will have to be dealt with on another day. Residual Issues [ 24 ] The Father shall pay costs in the amount of $500.00 as a result of the parties’ appearance before Justice Mahoney on November 3, 2020, who in large measure confirmed the terms of a previous order issued by Justice Kirker on July 14, 2020, with respect to the sale of the matrimonial home.

I find no basis for the Father’s assertions that the real estate agent acted inappropriately and, in my view, Justice Kirker’s order did not have to be re-addressed. [ 25 ] If the parties cannot agree on costs by March 15, 2021, with respect to their appearance before me, they can send me their submissions (three-page maximum) by no later than April 1, 2021. [ 26 ] Finally, a PN 7 or a PN 8 may need to be ordered given the allegations that have been made regarding the child’s welfare in the Mother’s care.

Previously, neither party could have afforded the expense but funding is now available as a result of the sale of the matrimonial home. The sale proceeds, currently held in trust, should not be disbursed until a determination has been made regarding a PN7 or PN8 intervention. [ 27 ] If necessary, the parties are given leave to apply directly to Family Chambers for an application to seek a PN 7 or a PN 8 intervention with notice of the application to counsel for the parties’ child. Heard on the 09 th day of February, 2021. Dated at the City of Calgary, Alberta this 3 rd day of March, 2021. O.P. MALIK J.C.Q.B.A.

Appearances: Adam S. Benarzi for the Plaintiff, Traci Marino Barry W. McMullan for the Defendant, Marco Marino