Clarence v Grinevsky, 2021 ABQB 181

Court of Queen’s Bench of Alberta Citation: Clarence v Grinevsky, 2021 ABQB 181 Date: 20210308 Docket: FL04 01917 Registry: Grande Prairie Between: Ted Clarence Applicant - and - Bracha Grinevsky Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ The Application [ 1 ] Mr. Clarence applies, on the basis of undue hardship, to pay child support of $350.00 per month, an amount which is substantially lower than that which would be payable under the Child Support Guidelines. Mr.

Clarence submits that unusually high costs of exercising his parenting time create a hardship for him.

Background [ 2 ] Mr. Clarence has two children with Ms. Grinevsky. The children, who are 12 and 9 years old, live with their mother in Ontario. They have done so since early 2015, after Ms. Grinevsky suffered a stroke while on vacation in Florida. Once Ms. Grinevsky was able to return to Canada, she moved to Ontario to live with her mother and step-father. Mr. Clarence indicates that Ms.

Grinevsky has not yet fully recovered from the stroke and receives Government of Ontario benefits similar to that available in Alberta under the AISH Program. [ 3 ] Following considerable court involvement, and the completion of a Practice Note 8 Assessment Report, a trial was held. The results of the trial were communicated in the Oral Decision of Justice Ackerl rendered March 10, 2016, and the corresponding Order of the same date (the “Ackerl Order”).

Paragraph 13 of that Order specified: Until such time when the child support issues and/or subsidies issues are adjudicated, or until such time when there is an agreement between the parties with respect to these issues (in writing), Ted shall not pay child support to Bracha and Bracha shall not subsidize Ted’s travel to any extent. This shall be without prejudice to Bracha’s right to seek child support, retroactively and prospectively, and Ted’s right to seek a subsidy, retroactively and prospectively. [ 4 ] Ms.

Grinevsky filed an application in the Ontario Superior Court of Justice, Family Court Division, seeking $1,097 per month child support starting December 2017, retroactive child support of $866 per month from April 1, 2016 to December 31, 2016, and $1074 per month from January 1, 2017 to November 30, 2017. She also sought s 7 expenses retroactive to April 1, 2016. In addition, she sought unspecified partner support retroactive to March 2015. Her Application was sworn on August 13, 2019 and is assumed to have been filed shortly thereafter.

The Application followed the issuance of an order of the Ontario Court on October 9, 2018, which directed, in part, that Mr. Clarence provide Ms. Grinevsky with his notices of assessment for 2015, 2016 and 2017, as well as proof of year-to-date income to September 30, 2018. [ 5 ] The matter comes before this Court pursuant to the Interjurisdictional Support Orders Act . Mr. Clarence appeared on his own behalf. Ms. Wisekal appeared on behalf of the Minister of Justice and Solicitor General to provide assistance to the Court in connection with the matter. [ 6 ] The materials disclose that in 2016 Mr.

Clarence’s income was $52,519, in 2017 it was $75,233, in 2018 it was $83,906, and in 2019 it was $80,124. Although there is not yet a filed tax return or notice of assessment for 2020, the paystub information and additional information provided by Mr. Clarence indicates that his employment income was approximately $67,219 and he received Employment Insurance Benefits of approximately $8,000. [ 7 ] The income information for Ms. Grinevsky is that she had Line 150 income of $34,189 in 2018, and $47,715 in 2019. [ 8 ] In support of his claim, Mr.

Clarence submitted copies of receipts for some expenses incurred in exercising his parenting time in Ontario. During the hearing of the Application, Mr. Clarence confirmed that he has not visited his children in Ontario since the commencement of the COVID-19 pandemic. He also confirmed that he lives alone. Therefore, he is not sharing expenses, nor is he supporting any other individuals in his residence. Analysis [ 9 ] There is no agreement in writing as required under the Ackerl Order. Therefore, in accordance with the Ackerl Order, Ms.

Grinevsky is entitled to seek child support, based on the Guidelines, on a retroactive basis. Similarly, as contemplated in the Ackerl Order, Mr. Clarence is entitled to seek a subsidy in relation to travel costs. [ 10 ] Mr. Clarence has not met the onus of establishing a hardship claim, as that term is normally understood within this context. To the extent that he travels to Ontario to exercise his parenting time with the children, he has incurred and will continue to incur extraordinary costs that are not borne by parents whose children live in the same general vicinity as their parents.

These types of extraordinary costs may be taken into account when it is in the best interests of the children, as doing so may facilitate a positive relationship between the children and the parent who must travel to see them. [ 11 ] However, not at all costs incurred on such trips can be considered extraordinary. In that regard, Mr. Clarence has included receipts for such items as the cost of meals and activities engaged in while visiting the children in Ontario.

These are not extraordinary costs, as a parent would be expected to pay for the cost of food eaten and activities engaged in while parenting ones’ children. On the other hand, airfare and hotel accommodation can be considered extraordinary costs in connection with the relief sought by Mr. Clarence. These extraordinary costs are sometimes taken into account in determining a child support obligation and indeed were so contemplated in Justice Ackerl’s Order. [ 12 ] I conclude that Ms. Grinevsky is entitled to child support based on Mr.

Clarence’s line 150 income, based on the Guidelines, retroactive to April 1, 2016. She is entitled to such child support on an ongoing basis, to be adjusted in the normal course as Mr. Clarence’s income is determined. She is also entitled to have Mr. Clarence contribute his proportionate share towards s 7 expenses, upon production of receipts substantiating the bearing of such expenses, provided they have been agreed to in advance or are found to be reasonable in the circumstances. [ 13 ] However, in the circumstances, Mr.

Clarence should be entitled to offset his past airfare and hotel accommodation (and care rental, if any) costs incurred while visiting the children in Ontario against any arrears found to be owing. Mr. Clarence indicated that he had additional receipts that he would be able to produce. Therefore, he is to locate all airfare and accommodation receipts (and car rental receipts, if any) and provide all such receipts to Maintenance Enforcement so that they can be deducted from any arrears owing as a result of Ms. Grinevsky’s application for child support.

He will be liable for the full amount of child support arrears until such receipts

are produced. Arrears may be paid by way of extra payments of $200 per month until the arrears have been paid in full. If Mr. Clarence fails to make a child support payment or a payment towards the arrears, the full amount will be due and owing. [ 14 ] On an ongoing basis, Mr. Clarence will be entitled to a credit against his child support payments for amounts equal to the lowest economy airfare, a reasonable amount for hotel accommodation, and any car rental expenses incurred by him during any period of time when he is parenting the children in Ontario.

In order to receive such a set off or credit, he must provide receipts to Maintenance Enforcement confirming that such expenses were paid by him. [ 15 ] Although it appears that Ms. Grinevsky was seeking unspecified partner support, the Spousal Support Advisory Guideline sheets that were included in the materials seemed to indicate, if Guideline child support was paid by Mr. Clarence, that no partner support would be payable. Neither Mr. Clarence nor Ms. Wisekal addressed this particular aspect of the materials, although it is clear that Mr. Clarence would argue against such an award.

Based on my understanding of the materials, I understand that this issue may still be before the Court in Ontario. If my understanding is incorrect, the matter can be returned to me, on notice, for clarification. [ 16 ] If either party wishes to speak to the issue of costs, they should contact my assistant for the purposes of determining a manner in which that issue can be addressed. Heard on the 2 nd day of February, 2021. Dated at the City of Grande Prairie, Alberta this 8 th day of March, 2021. D.L. Shelley J.C.Q.B.A. Appearances: Ted Clarence Self-represented Applicant L.

Wisekal on behalf of the Minister of Justice and Solicitor General Bacha Grinevsky No appearance, Respondent