GCG v GLG, 2021 ABQB 36

Court of Queen’s Bench of Alberta Citation: GCG v GLG, 2021 ABQB 36 Date: Docket: 4813 006654 Registry: Ft. McMurray Between: GCG Applicant - and - KLG Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A father applies for orders confirming a variation in parenting (with one child opting to leave shared parenting and live full- time with him) and, as a result, reducing his child-support payments.

He also seeks recognition of claimed overpayments of child support. [ 2 ] The mother cross-applies for various relief including orders reflecting the noted parenting shift albeit on a trial basis, setting

child support higher than sought by the father, awarding retroactive child support (July 2017 to December 2018), tagging the father with particular portions of various claimed-to-be family debts, quantifying the father’s credit arising from mortgage payments on the matrimonial home and a second property (in Newfoundland), directing the father to transfer his interest in the matrimonial home and the Newfoundland property, awarding spousal support, and seeking exclusive possession of the matrimonial home. [ 3 ] I find that that the middle child should continue to reside full-time with the father indefinitely, that ongoing child support must be adjusted to reflect that new parenting circumstance, that the father is not in arrears of child support, that his co-responsibility for various property-related and other debts may depend on the details of his apparent bankruptcy (not provided in evidence) and same for whether he can be directed to transfer his interest in the two properties, that I cannot determine if spousal support should be paid in light of insufficient evidence and submissions, and that the mother is entitled to an exclusive home possession order.

B. Issues 1. Variation of parenting arrangement [ 4 ] A divorce judgment (February 5, 2019) directed equal shared parenting of two children (with an older child (a son) no longer a “child of the marriage”). At the time, the middle child (a son) was 17; the youngest (a daughter) was 13. [ 5 ] The two younger children lived back and forth in an equal shared-parenting rhythm from then until July 2020, when the middle child (then 18), decided to live full-time with the father. This child has developmental disabilities. He is currently in high school, expecting to graduate next June, when he will be 19.

The parties agree that he is still a “child of the marriage.” [ 6 ] The father says: • my son’s [i.e. the middle child’s] doctor and school recommend that the [mother] and I jointly should begin an adult guardianship application for [him]. I have no disagreement with taking these steps. [This child] is now over the age of 18 but is still attending high school.

Once [he] finishes high school, a proper Guardianship and Trusteeship Order must be in place in order for decisions to continue to be made for [his] best interest by myself and the [mother]; • starting in August of 2020 to present, [he] has lived primarily with me and [our daughter] has remained shared [parented] between myself and the [mother]. In June of 2020, [our son] stated to me directly that he wished to remain in my residence full-time.

It is my understanding that [he] told the [mother] directly that he wished to reside with me primarily, and the [mother] initially refused, advising him that he had to wait until he was 18 before this step would be taken. The [mother] contacted me, and we agreed that it would be in [his] best interest to live primarily in one home. Once [he] turned 18 [in June 2020], he did begin to reside with me full-time. Since [he] moved in with me, [he] began taking medication which his doctor has recommended [him] to try [medication described].

Since [he] has been using this medication, he has had major improvements in his behaviour. [He] is in a much better frame of mind and in much better spirits now than when he was going back and forth between my home and the [mother’s]; • [in response to the mother’s concerns about the father and his new spouse leaving the son alone at home over entire weekends]: [our son] did stay home alone in specified circumstances, specifically because he wanted to show me that he was responsible. [The father described staying at a campground about 50 minutes’ drive from their city, keeping in “regular phone contact” with the son, having door cameras allowing them to see his comings and goings (with him home, alone, every night by 7 pm), and to preparing meals for him to heat up.] When my wife and I returned home from [camping], we always found the house to be in great condition, with the dishes done, and everything being tidy and in its place. [Our son] has taken a great deal of pride in demonstrating that he is able to have a degree of self-reliance … these weekends … have only been positive for him; • when [our son] is in my home, I do not observe him to become angry or upset.

When [he] is upset, he often uses curse words and exhibits other agitated behaviours. I rarely ever see such behaviour in my home. I have observed that [his] behaviour regresses after coming home from the [mother’s home]. [He] has told me on numerous occasions that he wishes to remain primarily in my home, and has been very vocal about not wishing to return to a shared parenting arrangement.

There is no basis for why the current parenting arrangement should be varied; and • until I brought my application to vary … child support due to the change in the parenting arrangement, the [mother] had never indicated any issue or concern with [our son] residing with me full time. [ 7 ] The mother says: • our son … was diagnosed with intellectual disability and anxiety disorder. [His] psychiatrist and the school have recommended that I begin an adult guardianship application for him. [His] disability [produces] emotional instability and consistent mood swings.

During the COVID pandemic (from March to May [2020]), both [he] and [our daughter] stayed home with me full time. I observed that the stability improved [his] behaviour and emotional state. Once the lockdown ended, the [father] and I returned to shared parenting, and I observed that [our son’s] behaviour immediately regressed.

In July 2020, the [father] and I agreed that [our son] could stay at the [father’s] home full-time to see whether that will work well for him again; • I have since observed that [our son] has exhibited paranoia and anxiety while in the care of the [father]. [The mother describes the son’s needless anxiety about, and misunderstanding of, a routine MEP-related form he had to sign.] Furthermore, on several occasions, when the [father] went out of town for days, he left [our son] alone at his residence without prepared food. I had to bring prepared food for the child.

As a result of this, I do not believe it is in [our son’s] best interest to permanently stay at the [father’s] residence. Up until this point, the [father] had never been a primary care giver to any of the [three] kids, so I do not believe he completely understands [our son’s] needs compared to [those] of his siblings; and • (per her counsel’s submissions at the application): the son’s psychiatrist has recommended discontinuance of a certain medication

for the son. However, the father has persisted in providing it to the son, who has continued to take it. [ 8 ] I find that continuation of the son’s residence with the father is in his (the son’

s) best interests, for these reasons: • the parties agree that, in recent times, he seems to do better when he has one home base (versus living back and forth between homes); • the mother does not contest that, shortly before he turned 18, the son expressed a preference for living with the father; • she was agreeable to him starting to live full time with the father once he (the son) turned 18, which occurred; • I cannot decide, in this evidence-by-affidavit-only setting, exactly what happened on the meals front when the son was left alone.

But the evidence does not show that the father left him without any food or resources generally or that, absent any meal deliveries by the mother, he would have gone hungry or otherwise been prejudiced; • while the parties disagree about the appropriate level of independence for the son, I do not find that the occasional “solo weekends” for the son reflect undue care by the father or exposed the son to any undue risks.

Just the opposite: the available evidence is that these were largely enriching and maturity-building experiences for the son; • on the medication front, I again have conflicting evidence, with the father maintaining that he was following the most current prescription regime. (I will return to this subject below); and • the mother’s primary concern is that this shift to the father’s care not be permanent. By definition (at least as long as the child is a “child of the marriage”), it cannot be.

If it turns out that the child does not, over time, thrive in the father’s care and that his best interests would be served by returning to shared parenting or by some other parenting arrangement, the mother can apply for another variation (presumably pointing to the failure to thrive or other aspects of concern as “material changes of circumstances”). 2. Ongoing child support [ 9 ] The mother asked for ongoing child support of $500 monthly.

The father seeks to pay $55 monthly. [ 10 ] To the extent the mother’s position in anchored in the father’s apparent promise to pay $500 per child monthly (which promise I find (as discussed further below) was merely a reflection of the child support directed by the February 2019 divorce judgment and corollary relief order), I find that his promise added nothing do that judgment and order. [ 11 ] With the divorce judgment and corollary relief order governing, and with circumstances on the ground having shifted (i.e. with the middle child now residing full-time with the father), which I find to be a “material change of circumstances”, I direct that ongoing child support be that indicated by the Child Support Guidelines for one child in shared-parenting (i.e. the daughter) and one child living full-time with the father (the middle son), in light of the parties’ 2020 incomes and (in light of the parties’ history of using a such an approach to the support due each other) using the straight-set-off method. [ 12 ] The mother argued that the father’s commitment here was to $500 per month per child regardless of the residential circumstances (i.e. who lived where).

I reject that argument: the father’s “will pay irrespective” position was apparently aimed at paying at that level regardless of income changes (see the email in question (December 2, 2018) for this context). In any case, I have found that the divorce judgment and corollary relief order applies and (as explained above) it needs to change in light of the parenting changes. 3. Historical child support (whether father in arrears) [ 13 ] I next consider child support to date, starting with an analysis of the parenting history “on the ground” since the parties separated (end of June 2017).

Parenting history [ 14 ] The parties dispute the parenting history from the time of separation to August 2018, when they began (or continued) sharing parenting. The mother says she was the primary parent in those 13 months; the father says they shared the parenting equally. [ 15 ] I first refer to some cases exploring parenting-history disputes.

Such a dispute (sole by one parent versus shared by both) was resolved via an “hours count” in Landry v Landry . [1] [ 16 ] In AP v JK [2] , a detailed review of testimony, followed by credibility analysis, was required to determine parenting history (“substantially shared” or not). [ 17 ] In SMF v BWF [3] , I examined an analogous dispute (which children lived with which parent and when), drawing guidance from a number of disputed-residence cases (see paras 13-21), all largely requiring a close review of evidence of “on the ground” parenting and sometimes credibility findings.

Determination of parenting history here [ 18 ] In the present case, the evidence was somewhat thin. The mother deposed: From the date of separation [apparently end of June, 2017] to August 2018, I had primary care of the three children… In 2017 upon our separation, I had primary care of the three children …. In 2018, I continued to have primary care of the children …. The [father] and

I started shared parenting with the three children in August 2018 …. [her November 14, 2020 affidavit – paras 4-7] [ 19 ] The father responded: The [mother] misrepresents throughout her materials that she at any point had primary [parenting] of the children. While there were isolated incidences where the [mother] did have the children in her care beyond our arranged 50/50 parenting schedule, these were due to specific mitigating circumstances [outlined]. The children went between our respective residences without a fixed

schedule for the months of July and August 2017. The children were in our respective care approximately 50% of the time. Between September 2017 to August 2018, the [mother] and I exercised parenting of the children on an equal basis on a weekly rotation of Wednesday to Tuesday. Attached as Exhibit “A” … is an email between myself and the [mother] enclosing the schedule. While the exchange days changed to Saturday to Sunday in 2019, the [mother] and I maintained shared parenting until 2020.

There were isolated incidents where I did request the [mother] to keep the children in her care for an extra week in 2018, due to mitigating circumstances [outlined]. Apart from these specific instances, the [mother] and I exercised shared parenting of the children from July 2017 to 2020. [his November 23, 2020 affidavit, para 8] [ 20 ] The mother responded: … I find it interesting that the [father] attached a calendar dated in 2020 to represent a parenting arrangement for 2017 or 2018, for that matter. The [father] and I did put a parenting

schedule together but it is clearly not the one in the exhibit attached to the affidavit. The fact remains that I [had] primary care of three children in 2017 and majority of 2018 [through to August] …. [her affidavit sworn November 25, 2020, para 6] Conclusion on parenting history [ 21 ] While the father’s evidence is somewhat limited, it exceeds the conclusory evidence offered by the mother, particularly where, after conceding that the parties “did put a parenting

schedule together”, she does not give any evidence of what it was. [ 22 ] I accept the father’s evidence here. His extra details, with specific references to (limited) times when the parties departed from shared parenting and more precision in describing when modifications (like exchange days) were made, convince me that his account is accurate. [ 23 ] His evidence also squares with the divorce judgment (granted February 5, 2019), which despite a (presumably erroneous) reference to the “children resid[ing] primarily with [the mother]” (para 2) features more details reflecting shared parenting. The

preamble refers to the “shared custody arrangement agreed to by both Parties.” As well, paragraph 3 (which calls for the “specifics” of each party’s parenting time) states: [The father] shall have parenting time with the child(ren) as follows: (

a) Alternating weeks beginning on Sunday and ending on Saturday. [ 24 ] I acknowledge the mother’s comment about a wrong-year calendar being used, but with her providing no counter evidence on the actual pattern of parenting reflected in the schedule, I accept that the

schedule reflected parenting “on the ground” for the stated-by- the-father period (September 2017 to August 2018). [ 25 ] I next gauge the child support required, under equal shared parenting, for 2017 (June onwards i.e. post-separation), 2018, 2019, and 2020 and, comparing that to the support actually paid by him, determine whether the father is in arrears of child support. Equal-shared-parenting-level child support and amount paid by father [ 26 ] For 2017 , the parties agree on their respective incomes – father ($142,736) and mother ($57,413) – and that support was payable for seven months (June-December).

The father calculated the (straight-set-off-calculated) support to be $1,555 monthly for three children i.e. $10,885 for those seven months, which I accept. He claimed to have paid $18,707.76, meaning a (claimed) overpayment of $7,8212.76. (I will examine his claimed payments more closely below.) [ 27 ] For 2018 , support was payable for January through October at the three-children level and for November and December at the two-children level (given the oldest child ceased to be a “child of the marriage” in early November that year).

The parties again agree on their incomes – father ($75,964) and mother ($63,646). The straight-set-off-calculated support due for January to October was $237 monthly i.e. $2,370 for the full period. For November and December, two-child-level support calculated on the same basis was $184 monthly i.e. $368 total. The annual total was thus $2,738. The father claims to have paid $38,203.76, yielding a claimed overpayment of $35,465.76. [ 28 ] For 2019 , the parties agree on the father’s income $120,629 but not the mother’s. The father says it was $72,168, as reflected in her 2019 tax filings and notice of assessment.

She says that “[t]here is an error in my [2019] taxes as my accountant attributed the rental income as income to me, which inflated my declared income to $72,168. My actual employment income is $67,257.82 ….” [ 29 ] The mother did not provide evidence of taking steps to reverse this claimed error or, more fundamentally, explain why rental income should not form part of her income when setting shared-parenting child-support obligations. Accordingly, I proceed on the basis that $72,168 is the proper figure.

With their respective incomes as so recognized (or found), the calculated-on-the-same-basis-as-above child support was $692 per month i.e. $8,302 for the year. The father claimed payments of $16,256, yielding a claimed overpayment of $7,952. [ 30 ] For 2020 , the father estimated his income at $125,000 and the mother’s at $72,168 (i.e. same as 2019). She estimated her 2020 income at $65,000. Neither party explained the basis for their estimates. I will proceed on the basis that the father’s estimate

(presumably based on an assumed continuation of the mother’s income at 2019 levels) is correct, at least as a starting point. (If it turns out, once she files her 2020 tax return and obtains her assessment from CRA, that her income is different, and the same goes for him as well, the necessary adjustments can be made.) [ 31 ] For the first six months of 2020 (i.e. until the middle child began living full-time with the father), support calculated as above and at the noted incomes was $752 monthly i.e. $4,512.

For the next six months (July-December), shared-parenting-level support for the daughter (and folding in the father now caring for the son full-time) was, on a net basis, $55 monthly (father to mother), for a total of $330 i.e. $4,842 for the year. [ 32 ] These preliminary analyses for 2019 and 2020 need to be adjusted for agreed-on departures from the Child Support Guidelines, requiring enhanced support in both years.

As the genesis, both parties referred to an “oral agreement” under which, in December 2018, the father apparently agreed to pay child-support of $500 per child, irrespective (per the mother) of which child lived with whom. She exhibited an email (father to her on December 2, 2018) in support of the asserted agreement: As per our conversation December 2, 2018, [I] will pay [the mother] $500 for child support for each child under the age of 18 [i.e. then, the two younger children]. The total is $1,000.

If we used my income as a benchmark for child support, the total would be (for 2018) $1,190 [i.e. monthly] and (for 2019) would be $300 [i.e. monthly]. But I am going to continue to pay $500 for each child until they hit the age of 18.

This won’t change unless agreed on by [me] and [you] …. [The balance of the email excerpt refers to property matters.] [ 33 ] If child support were indeed payable per that the agreement, the father’s child-support obligation for 2019 would have been $12,000, compared to 8,302 per the Guidelines. (Again, he claimed payments of $16,256.) [ 34 ] For 2020, per the agreement, his obligation would have been $6,000 for the first six months and $3,000 for the last six months (i.e. while the son lived full-time with him) i.e. a total of $9,000.

This contrasts to his Guideline calculations showing $4,842 for the year. (He claimed payments, for 2020, of $11,000 through the end of November.) [ 35 ] On the required child support for 2019 and 2020, I find that paramount factor here is actually the parties’ divorce judgment , granted in early February 2019 (to which the parties paid little attention in their briefs on this aspect). It imposed a two-child support obligation of $1,000 monthly effective December 1, 2018.

Via his promise, the father was simply acknowledging his divorce-judgment- based obligation. [ 36 ] The net result is child-support obligations for him, for 2019 and 2020, of $12,000 and $9,000, respectively. [ 37 ] Adjusting the required child-support payments to reflect the father’s actual obligations in 2019 and 2020 (as discussed above), the required child support for 2017 through 2020 was $34,623 ($10,885 + $2,738 + $12,000 + $9,000). [ 38 ] One more adjustment, in light of the agreed-on departure from shared-parenting for March, April and May 2020, when the mother cared full-time for the two younger children.

I find that an appropriate adjustment here is a $1,000-per-month increase in child support for each of those months. The net result is overall child support payable, for 2017-2020 (inclusive), of $37,623. [ 39 ] If the father’s claimed payments were accepted at face value ($84,167.52), he would have an overpayment of $46,544.52. [ 40 ] The mother tracks payments differently. She says the father paid no child support in 2017 and none in 2018 through the end of July.

For August to October 2018, she acknowledges receiving $5,668 in child support, followed by none again in November or December 2018. [ 41 ] For 2019, she acknowledges receipt of $12,000 in support.

For 2020, a further $12,000 (i.e. the $11,000 reported by the father for January through November plus $1,000 in December), albeit she acknowledges that, of that amount, $6,000 paid since the end of July 2020 represents an overpayment by one-half i.e. only $3,000 should have been paid from that point (with only the daughter in shared-parenting rhythm). (As found above, she ends up being entitled to that $3,000 on account of having provided full-time parenting to the two younger children in March-May, 2020.) [ 42 ] In other words, the mother recognizes payments of $29,668 i.e. $7,955 less than the required $37,623. [ 43 ] The gulf between the father’s asserted credit of over $46,000 and the mother’s assertion of under-support by roughly $8,000 exists because of differing views of the how certain mortgage payments made by the father should be treated. [ 44 ] I explore below whether the father made the claimed payments and, if so, whether they should be characterized as child support (versus other kinds of payments).

Extent of the father’s payments [ 45 ] To recap, for 2017 , the father reported child-support payments of $18,707.76. The mother acknowledged no such payments. [ 46 ] The father acknowledges he did not make the claimed payments to the mother; instead, his reported payments were mortgage payments he made on the matrimonial home, from July 2017 to the end of that year. [ 47 ] The father’s payment chart referred to $18,707.76 having been paid. His bank statements, exhibited to his November 23, 2020 affidavit, reflected payments of $18,675.28.

The mother’s payment chart (exhibit H to her November 14, 2020 affidavit) reflected mortgage payments by the father of $15,252.00 for this (July-December 2017) period. [ 48 ] The best evidence here is the father’s bank statements; accordingly, I find that he made mortgage payments on the matrimonial property, in 2017, of $18,675.28.

[ 49 ] For 2018, his payment chart referred to child-support payments of $38,203.76. The mother acknowledged receipt of $5,668 in child support. The father’s bank statements reflected mortgage payments on the matrimonial property of $32,545.73. The difference between his reported child-support payments and his bank-statement-supported mortgage payments is $5,658.03 i.e. effectively the amount acknowledged by the mother as paid child support.

In other words, the father’s claimed child-support total is composed of direct payments to the mother of $5,668 (or thereabouts) plus the identified mortgage payments. [ 50 ] The mother’s payment chart (exhibit I to her November 23, 2020 affidavit) reflected matrimonial-home mortgage payments by the father of $20,336.00. Again, the better evidence here is from the father (being anchored in bank statements). I find that he made $32,545.73 in payments against that mortgage in 2018. [ 51 ] For 2019 , the father reported child-support payments of $16,256.

He did not provide back-up evidence for any mortgage payments in this period, or at least evidence to support such payments. However, the mother acknowledged direct child-support payments of $12,000 in this period.

The mother’s payment synopsis (ex J to her affidavit) reported no matrimonial-home mortgage payments by the father in 2019. [ 52 ] I find that he made child-support payments of $12,000 in 2019, with no mortgage-payments-as-indirect-support issue arising. (This also squares with the apparent arrangement (discussed further below) under which the father ceased to have any interest in the matrimonial home or in a Newfoundland property jointly owned by the parties (also discussed further below) after 2018 i.e. with the father having (per that arrangement) no further responsibility for any mortgage payments after that.) [ 53 ] For 2020, things are even clearer: the father reported having paid $12,000 in direct child-support payments and did not claim, even indirectly, credit for additional payments via mortgage payments. (This too squares with the apparent arrangement.) The mother acknowledged receiving the $12,000. [ 54 ] The questions become: should the father be recognized, on account of his matrimonial-home mortgage payments, as having paid child support in 2017 and 2018 and, if so, how much?

Characterization of the father’s payments in 2017 and 2018 [ 55 ] Here are the key factors: • the parties own the matrimonial home jointly; • after separation (summer 2017), the father moved out of that home into rental premises; • the mother continued, and continues, to live in the matrimonial home (now with the daughter, on a shared-parenting basis); • in 2017 (post-separation), the father made all of the mortgage payments on that property ($18,675.28); and • in 2018, he made payments totaling $32,545.73, through to the end of the year.

The mother’s payment chart (ex I to her first affidavit) reflects payments by her of approximately $10,000 between September and December that year, but she did provide back-up evidence of having made such payments. I find that the father made all of the mortgage payments that year. [ 56 ] As joint owners of the matrimonial home, the parties were equally responsible, on separation (if not earlier), to pay the mortgage.

The father is thus entitled to a one-half credit here, for having paid the mother’s share of the noted mortgage payments (i.e. $18,675.28 + $32,545.73 = $51,221.01 divided by 2 = $25,610.51). [ 57 ] As for his own (one-half) portion of those mortgage payments, the father did not apply or ask for occupation rent from the mother or otherwise show why he should not have to pay his own share. (He did assert that the mother rented a portion of the matrimonial home but did not share the rent with him. The mother acknowledged such rental ($500 a month, starting May 2020), but nothing similar in 2017 or 2018.

In any case, per her payment chart for 2020, she included that rent as a joint receipt i.e. gave credit to the father, if any was warranted.) [ 58 ] Accordingly, I reduce the father’s claimed child-support payments in 2017 and 2018 by one-half, to reflect his co-obligation as a joint owner of jointly mortgaged property to make the mortgage payments.

It is the other half of those payments, by which he cleared the mother’s co-obligation, that is properly characterized as a credit to him. [ 59 ] The result is mortgage-payment-related credits for the father of $9,337.64 (half of $18,675.28) and $16,272.87 (half of $32,545.73) for 2017 and 2018, respectively i.e. total credits of $25,610.51. Recall as well that the father made direct-to-mother child- support payments, in 2018, of $5,668.

If the mortgage payments qualify as child support, the father’s total credits here are $31,278.51 [ 60 ] As found above, his child-support obligations for those years were $10,885 and $2,738, respectively i.e. a total of $13,623.

After using his apparent total credit ($31,278.51) to clear those obligations, the father is left with a credit of $17,655.51. [ 61 ] The mother argued that child support is one thing and mortgage payments another i.e. effectively that such payments cannot, or should not, be treated as clearing child-support obligations. [ 62 ] The mother is off-target here: in principle, nothing bars the payment of support obligations in indirect fashion: see, for example, AD v AD , 2018 NBCA 83 at paras 49-55 ; Senchuk v Senchuk , 2016 SKCA 167 at paras 16-20 and LL v DB , 2018 ABQB 886 at paras 31-33 and 55-63 . [ 63 ] As for 2019 and 2020 (and as discussed above), the required child support was $24,000; he actually paid $24,000 i.e. the father is square for those years.

[ 64 ] When all the dust settles, the father is left with a credit, against the mother of $17,655.51 i.e. he is not in arrears of any child support due in 2017-2020 i.e. I accept that his paying the mother’s portion of the matrimonial-home mortgage payments in 2017 and 2018 represent indirect payment of child support in those years. [ 65 ] Accordingly, the mother’s bid for recognition of child-support arrears falls flat. 4.

Co-responsibility for other property-related debts [ 66 ] The mother argues that the father, as co-joint-tenant (with her) of residential property in Newfoundland, is equally one-half responsible for mortgage payments on it. She also seeks confirmation of his co-responsibility for a certain matrimonial-home- improvement-related loan. [ 67 ] The father resists both aspects. He argues that, since separation, the mother has effectively been “in charge” of the Newfoundland property (including reaping all rental payments derived from it).

As for the home-improvement loan, he argues that, in the same way, the mother has been in charge of, and reaped all the benefits from, the matrimonial home and so should be fully responsible for that loan. [ 68 ] Subject to the possible impact of the father’s bankruptcy (discussed further below), I find for the mother on both aspects, at least for 2017 and 2018 (timing discussed further below).

As explained above, co-owners of property are typically equally responsible for joint debts secured against jointly owner property, which I find applies to both the Newfoundland mortgage debt and the matrimonial- home-improvement debt. [ 69 ] As well, the mother’s payment charts reflect the sharing of the Newfoundland rentals between them. [ 70 ] Accordingly, I approve the mother’s calculations concerning shared liability for the Newfoundland mortgage and the noted loan for both 2017 and 2018. For 2017, the total payments on those obligations was $7,850.34 (i.e. $938.34 + $6,91600).

Shared equally, the father’s share is $3,925.17. [ 71 ] For 2018, the total payments were $15,176.68 (i.e. $1,876.68 + $13,300).

Shared equally, the father’s share is $7,588.34. [ 72 ] Combining the father’s share for both years, he owes the mother $11,513.51. [ 73 ] Deducting that amount from the father’s post-sorting-out-of-child-support credit of $17,655.51 leaves a credit of $6,142 in his favour. [ 74 ] This finding is subject to any impact of the father’s apparent bankruptcy in 2018. (I will discuss this further below.) [ 75 ] As for 2019 and 2020, the father’s “mother in charge” argument has, or may have, more force.

He points to a December 29, 2018 email from the mother effectively proposing that the father step away from the matrimonial home and Newfoundland properties (with the mother and the older son becoming exclusively responsible for the matrimonial home, and herself for the Newfoundland property). [ 76 ] The evidence reflects that the parties did not have positive equity in either property at that time i.e. the agreement was effectively aimed at deciding who would continue to bear the burdens of the property (including mortgage payments) i.e. not at dividing any equity between them. [ 77 ] The father agreed to this proposal.

Absent anything other factors, I would be prepared to recognize this agreement and confirm that the father had no post-2018 liability on either property, at least as between the parties themselves. (The father may have continued to have co-liability for debts to third parties, for which the mother would be implicitly obliged to indemnify him, in light of their agreement.) [ 78 ] The complicating factor is that, per the father, he assigned into bankruptcy at some point in 2018.

If so, he may not have had the capacity to make any particular contract relating to these properties, with all rights vesting in his bankruptcy trustee. [ 79 ] I will return to the possible impact of his bankruptcy below. 5.

Co-responsibility for non-property debts [ 80 ] The mother seeks confirmation that the father is equally responsible for certain credit-card debt ($16,064.63), property insurance (on the matrimonial home) and life insurance (collectively $9,157.11), expenses of the two properties in 2019 ($17,468.91) and expenses for the same properties in 2020 ($13,733.89). [ 81 ] The father acknowledges that the parties agreed to share certain (credit card) debts equally.

He disputes any co-responsibility for any of the other debts. [ 82 ] Concerning the division of credit-card debt, the mother referred to the following time-of-separation balances: (1) $14,114.20 on her VISA card (reflected in an account statement for May 26 to June 25, 2017); and (2) $15,641.07 on her MasterCard (reflected in an account statement for June 9 to July 8, 2017).

She also referred to a line-of-credit balance of $2.374.18, and described all three debts (which total $32,129.45) as incurred for “family expenses [for] which the [father] should be responsible for half.” [ 83 ] The father says the parties agreed to “equally [divide] the debts that were in our individual names.” He said that: I took my credit card debt of approximately $15,200.00 and the [mother] took her credit card debt and line of credit debt of $14,800.00.

A Mastercard debt primarily in the name of the [mother] of $15,641.17 was agreed to be divided between us equally, with each of us having a liability of $7,820.54. In August of 2019, I paid a lump sum of $2,000.00 against this outstanding liability to the [mother]. That would leave me with an outstanding amount payable of $5,820.54.

Due to the considerable overpayments I have made to the [mother] to date, I believe this debt has been reasonably satisfied. [ 84 ] Whether the father actually had his own credit-card debt as claimed (with him providing no back-up evidence e.g. account statements), and whether his “settling up the accounts” obligation to the mother was limited to the $5,820.54, the possible problem, for the mother here, is that, if the father indeed declared bankruptcy in 2018, any (non-support) debts arising from or incurred during their marriage (which ended in 2017) would presumably have caught up in his bankruptcy and, if he has been discharged, released by it. [ 85 ] That would include any debt to her arising from their “setting up the accounts” agreement e.g. if she ended up having to clear off a disproportionate share of any joint debts or otherwise had a claim against him on this front. (As above, I will return to the possible impact of the father’s bankruptcy below.) [ 86 ] Assuming for the moment that the father did not declare bankruptcy, I would find that the father did not sufficiently prove the existence of his own credit card debt, that the three debts reported by the mother were indeed all “family debts”, that the parties agreed to share such debts equally, and accordingly that the father is responsible for one-half of the combined $32,129.45 i.e. 16,064.73. [ 87 ] As for the mother’s claims for contributions to the property expenses in 2019 and 2020, those claims run counter to the agreement under which she agreed to become fully responsible for both properties.

If she decided (as she obviously did) that keeping both properties was appropriate (i.e. instead of selling them and cutting her losses), she bears sole responsibility for the ongoing expenses of both (i.e. after the late-2018 agreement was reached). [ 88 ] In any case, if the father indeed became bankrupt at some point in 2018 (I am assuming for now that it was after the agreement was made), he necessarily had no further ongoing interest in either property and so had no exposure for the ongoing expenses of maintaining the properties. [ 89 ] More generally, if the father became bankrupt, his liability the mother for any non-support liability existing at the date of bankruptcy or otherwise caught by s.121 of the Bankruptcy and Insolvency Act (“provable claims”) would be caught up in, and released by, his eventual discharge from bankruptcy. 6.

Spousal support [ 90 ] The mother also seeks of $500 per month until further Court order. [ 91 ] The father resists, pointing to an agreement between the parties at the time of separation that: … neither of us would make any claim in the future for spousal support, regardless of our financial circumstances.

This agreement was not connected to the payment of matrimonial debt or the payment of child support. … The intention to not claim spousal support was demonstrated in an agreement signed between us in 2017, and the terms of our Divorce Judgment, which was submitted to the Court with the understanding that neither of us would have any further entitlement to spousal support …. [ 92 ] The mother counters (in part) that: In 2018, the [father] and I did our own divorce application without the benefit of independent legal advice.

I verbally agreed to waive spousal support if the [father] pays his portion of the debt and child support. The [father] did not pay his portion of the debt. [ 93 ] The Divorce Judgment says that “The Parties have agreed to waive spousal support, and each party has had independent legal advice with respect to that agreement.” [ 94 ] On the available evidence, I cannot determine whether the parties had independent legal advice.

In any case, I do not have any submissions or authorities from the parties about the significance (or otherwise) of the absence (or presence) of such advice. [ 95 ] Accordingly, I make no order or direction about spousal support. [ 96 ] If the parties are unable to resolve spousal support, I give them leave to seek directions, via letter outlining their respective positions (2-page maximum), plus any authorities, by no later than close of business on Friday, January 29 th . 7. Exclusive home possession order [ 97 ] The mother also sought such an order, which the father did not contest.

I will grant the requested order. 8.

Impact of the father’s bankruptcy [ 98 ] As discussed above, the father’s possible bankruptcy (referred to in para 21 of his November 23, 2020 affidavit but accompanied by no details) may affect his continuing liability to the mother for any pre-bankruptcy claims against him by her (whether property-based or not) and his capacity to execute (and, for that matter, this Court’s ability to order) transfers of the two properties to the mother. [ 99 ] If the parties are unable to agree on the details of his bankruptcy (e.g. the date of his assignment (if that is how he entered bankruptcy), whether any of the mother’s claims against him are provable claims and, in any case, subject to release on his discharge, the current status of his bankruptcy, and the impact of his discharge (if applicable) or otherwise), I invite them to provide the bankruptcy

details to me and their respective positions on its impact here by no later than close of business on Friday, January 29 th (2-page maximum, plus authorities), and I will determine the state of the bankruptcy and its impact, if any, here. C. Conclusion [ 100 ] I first direct that the father consult with the middle son’s doctor(

s) to determine the current medication recommendation(

s) for him and to follow them. [ 101 ] I also note that the father’s amended application (seeking four substantive heads of relief) and the mother’s cross-application (seeking eleven ) were set down for Fort McMurray chambers on November 30 th , 2020. [ 102 ] When I saw the number of issues, I directed that the matter be adjourned to a stand-alone application, heard by me, on December 2 nd .

As I recall, the application took approximately 75 minutes, following which I reserved my decision. [ 103 ] I advised the parties, at the close of argument, that these applications were not suitable for regular chambers i.e. should have been booked as a special application. [ 104 ] In hindsight, I should have made that direction on November 30 th , given the number and (relative) complexity of some of these issues. [ 105 ] As it is, as reflected above, I was not able to resolve all of the issues here, given some conflicts in evidence and the absence of submissions on some points. [ 106 ] I find that, in these circumstances, the parties should bear their own costs. [ 107 ] I also grant an order, to myself, to think twice before taking on a much-too-much-complicated for regular-chambers matter without the benefit of the kinds of submissions required for a special chambers application.

Heard on the 2 nd day of December, 2020. Dated at the City of Fort McMurray, Alberta this 13 th day of January, 2021. M. J. Lema J.C.Q.B.A. Appearances: Conor J. Clark Cooper and Company for the Applicant Bola Badejoko Flett Manning Moore for the Respondent