Wiley v Wiley, 2021 ABQB 278

Court of Queen’s Bench of Alberta Citation: Wiley v Wiley, 2021 ABQB 278 Date: 20210412 Docket: 4801 182047 Registry: Calgary Between: Adrienne Marie Wiley Applicant - and - John Michael Wiley Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ [ 1 ] The parties were married from 2005 to 2018. There are 2 children of the relationship. EW is now 14 years old and MW is almost 8 years old.

There are no prior court orders addressing parenting and support issues. [ 2 ] The father’s job requires him to work in rotations comprised of 6 days on and 3 days off. His work hours change each rotation, with shifts being from 7 am to 3 pm, 3 pm to 11 pm and 11 pm to 7 am. It seems that the father has to work overnight approximately once a month. The mother works as a flight attendant and so her work hours also vary. As a consequence, the maternal grandparents have been heavily involved in providing care to the children.

[ 3 ] At the time the parties started living physically apart, they agreed that the father would have parenting time on his days off and otherwise the children would reside with the mother. The father understood they agreed to “share custody 50/50” and maximize the amount of time the children spent with each parent. The father paid child support to the mother based on his understanding of their shared parenting arrangement, which resulted in him paying an amount roughly equivalent to the

section 3 set-off amount under the Child Support Guidelines . [ 4 ] In 2019, when both parties were represented by counsel, the mother notified the father that the parties did not have a shared parenting arrangement as that term is understood in law. As a result, the mother requested

section 3 child support on the basis of her having the majority of parenting time. [ 5 ] The mother now applies for an order confirming that she has the majority of parenting time and confirming the amount of

section 3 and 7 child support to be paid effective April 1, 2021. She also seeks a payment representing the shortfall amount owed by the father for

section 3 support since November 2018. [ 6 ] The father has cross-applied to have the children reside with him full-time and in the alternative, an order confirming a shared parenting arrangement. He also seeks an order that

section 3 payments roughly equivalent to a set-off continue. I. Parenting [ 7 ] Although the father cross-applied to have the children reside with him full-time, he confirmed during the hearing that he wishes to continue the current parenting arrangement with him having parenting time during his 3 days off. The mother opposed the father’s cross-application to have the children reside with him full-time, submitting that would not be in the best interests of the children.

She asked that the status quo be maintained with respect to MW and that EW be permitted to spend time with his father when he wishes. [ 8 ] The mother described EW’s current health issues in her January 2021 Affidavit. EW was diagnosed with depression over the winter of 2019/2020 and missed school as a result. He has not attended school for some period as a result of panic attacks and is working with a therapist through Alberta Youth Mental Health and a psychiatrist.

He also has sleep issues and displays erratic electronic usage routines, which the father describes as the mother allowing EW to play video games until 2 or 3 am and then sleep until 2 or 3 pm. The father acknowledges that EW has depression and anxiety issues but he seems to attribute many of EW’s issues to the mother’s parenting.

He further suggested that the mother has not followed all of the guidance received from school representatives to have EW return to school, even through an on-line format. [ 9 ] The mother submitted that EW does not wish to stay with the father who moved to Carstairs from northwest Calgary in 2020 and is in a new relationship. The father denied having a strained relationship with EW and submitted that any difficulties that have arisen are due to the lack of rules in the mother’s household and attempts to alienate EW from the father.

Unfortunately, I do not have the benefit of assistance from counsel to the children or an amicus and I am reluctant to introduce further professional involvement given the number of other professionals presently working with EW. Therefore, I am left with conflicting affidavit evidence addressing the state of EW’s relationship with his father. [ 10 ] The Divorce Act requires that I consider the best interests of the children in making a parenting order, having regard for the children’s physical, emotional and psychological safety, security and well being. Section 16(3) (

a) through (

k) outlines the factors to be considered in determining the best interests of the children. Having considered those factors, I am of the view that the best interests of the children requires that the status quo should be maintained in relation to the father’s parenting time of both EW and MW. While EW is currently experiencing mental health issues, I am not satisfied that the father’s actions, or lack thereof, are solely responsible for EW’s issues. The father cares about EW and has been involved in EW’s life.

I am of the view that the father would follow any professional advice given in regards to EW’s health and well-being. EW is only 14 years old and he stands to benefit from the continuing involvement of his father in his life, and importantly, the father has the time to remain involved in EW’s life. The father wishes to have regular parenting time with both children and has expressed a desire to have more time with the children when his

schedule allows. I am concerned that making no order in regards to EW, or allowing EW to spend time with his father as he wishes, does not provide adequate support towards the maintenance of a relationship between the two. Therefore, the father shall continue to have parenting time with both EW and MW on his days off from work. [ 11 ] That said, I encourage the father to be sensitive to EW’s specific needs at particular moments in time. Both parents must also be mindful of guidance received from professionals working with EW.

It is imperative for both the father and mother to work with one another in a cooperative fashion in regards to parenting issues, and discuss plans with a forward-looking focus. The Divorce Act enshrines a responsibility on both parents to support the child’s relationship with the other spouse and it is not constructive to make baseless accusations regarding the other or focus on historical behaviour that do not impact the future.

Parents act in the best interests of their children when they communicate and cooperate with one another in a respectful and transparent manner, and a failure to do so may have implications on future parenting arrangements or decision-making responsibility, which is currently shared by the parties jointly. II. Child Support [ 12 ] According to the father, he prepared a

schedule demonstrating how 6 on/3 off rotation provides him with parenting time at least 40% of the time, particularly because in his view, the mother should not receive “credit” for having parenting time when the children are with the maternal grandparents. However, he did not submit this

schedule as part of his Concise Letter or in his affidavit evidence. [ 13 ] In comparison, the mother provided as Exhibits A and B to her January 2021 Affidavit a parenting report that tracks parenting time from January 2019 to December 2020. The parenting report indicates that the father had parenting time approximately 33.6% of the time in 2019 and approximately 37.3% of the time in 2020. There is no evidence before me that challenges the accuracy of the mother’s

parenting reports. [ 14 ] Although he acknowledged that the maternal grandparents have provided significant assistance with child care, which has helped to keep associated expenses to a minimum, the father submitted that the mother should not receive parenting time credit when her parents cared for the children. He further submitted that he had access to other child care and he would have asked others to look after the children during his parenting time had he known that sending the children to the maternal grandparents “would be used against him”. [ 15 ] With respect, the father’s submission is misguided.

Not only does the law permit the mother to receive the benefit of the time the children were in her parents’ care, given the requirements of parents’ respective jobs, the maternal grandparents have played, and will continue to play, a role in caring for the children. If they had not been available to assist, the parties would have incurred additional expenses for child care or they would not have been able to earn as much income.

Importantly, the maternal grandparents have served as an additional source of stability in the children’s lives and they will continue to be a benefit to the children, as long as they are not making negative comments about the father in front of the children or otherwise being disrespectful towards him. The maternal grandparents also have a responsibility to communicate in a respectful and transparent fashion in order to serve the best interests of the children. [ 16 ] I find based on affidavit evidence that the mother has had the majority of parenting time with the children, at least since January 2019 onwards.

Therefore, she was entitled to receive full

section 3 child support as opposed to the lesser amount paid by the father. According to the mother’s January 2021 Affidavit, the father paid $400 from January to March 2019, $500 per month until December 2019, and then $550 per month from January 2020 to present. The father’s T4 for 2019 showed that he earned $98,072.92 and for 2020, he earned $98,982.38. Based on the Guideline , he should have paid $1,432 per month in 2019 and $1,444 per month in 2020. This results in shortfall amounts of $11,484 for 2019, $10,728 for 2020 and $3,576 for the period of January to April 2021. I conclude that the father owes a total of $25,788 for unpaid

section 3 child support for the period of January 2019 to April 30, 2021. [ 17 ] Counsel to the mother submitted that a DBS analysis, as outlined by the Supreme Court of Canada in DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra , 2006 SCC 37 [ DBS ], was not required because no prior court orders have been issued addressing child support.

If I applied the DBS factors, I nevertheless would have determined that a retroactive payment is justified in this case, particularly having regard for the Supreme Court’s decision in Michel v Graydon , 2020 SCC 24 [ Michel ] which provided a “judicial refresh” of DBS , and our Court of Appeal’s recent guidance in Henderson v Micetich , 2021 ABCA 103 [ Henderson ]. In Michel and Henderson , it was reinforced that child support is the right of the child, and cannot be bargained away by the parents.

The amount of child support payable continues to be determined based on the payor parent’s income and delay will only be prejudicial if unreasonable. It was also made clear that blameworthy conduct is not a precondition to a retroactive award, which in itself, is not an extraordinary order. Finally, hardship must be undue and supported by the evidence. [ 18 ] Effective May 1, 2021, the father shall continue to pay $1,444 per month as

section 3 child support, until further order or adjustment. The parties shall also share

section 7 expenses proportionate to their incomes on a go forward basis, which means the father shall pay 62% of extraordinary expenses and the mother shall pay 38% based on her Guideline income of $62,913. [ 19 ] If the mother has not already done so, she shall register with the Maintenance Enforcement Program and the father shall make child support payments to MEP. The father shall also pay the shortfall amount owed for the period January 2019 to the end of April 2021, being $25,788, to MEP.

The father shall negotiate a reasonable payment plan in relation to the shortfall amount with MEP. [ 20 ] The parties shall exchange financial disclosure annually and no later than June 30 of each year, and amounts owed as

section 3 child support shall be re-calculated by MEP accordingly. [ 21 ] Finally, when the father moved from Calgary to Carstairs, the parties agreed that he would bear the majority of driving responsibility. He asked that I make an order directing that driving be shared more equitably if I change the amount of

section 3 support payable. I am not inclined to make such an order because there was no formal application before me for this relief. However, the parties should continue to discuss this issue, particularly in light of the father’s increased child support obligations, and having regard for the best interests of the children. III.

Summary of Orders [ 22 ] The mother shall have the majority of the parenting time, with the father having parenting time with EW and MW on his days off and such other time as agreed upon by the parties. The father shall be mindful of EW’s day-to-day circumstances and needs, and both parties shall heed the advice of professionals and school officials working with EW. [ 23 ] The father owes $25,788 for the period of January 2019 to the end of April 2021 as unpaid

section 3 child support. This amount shall be paid to MEP, subject to a reasonable repayment plan. [ 24 ] Effective May 1, 2021, the father shall pay

section 3 child support in the amount of $1,444 per month, and the parties shall share

section 7 child support proportionately. The parties shall exchange financial disclosure by June 30 of each year so that child support may be adjusted annually by MEP. [ 25 ] Given the parties’ mixed success on the applications before me, each party shall bear their own costs. Heard on the 25 th day of March, 2021. Dated at the City of Calgary, Alberta this 12 th day of April, 2021.

L. Bernette Ho J.C.Q.B.A. Appearances: Karen Muir for the Applicant John Wiley Self-represented