RK v MK, 2021 ABQB 376

Court of Queen’s Bench of Alberta Citation: RK v MK, 2021 ABQB 376 Date: 20210511 Docket: 4801 183269 Registry: Calgary Between: RK Applicant - and - MK Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice B.E. Romaine _______________________________________________________ [ 1 ] The issue in this application is retroactive and ongoing child support. A. Facts [ 2 ] The parties separated on March 10, 2015. There are two children of the marriage; J, age 10, and G, age 8. They have both ordinarily resided with the mother since November, 2015.

The oldest child is disabled, with Autism Spectrum Disorder, ADHD, and additional learning disorders.

[ 3 ] The father moved to British Columbia in September, 2018, and has not been actively or regularly present in the lives of the children since September, 2017. [ 4 ] The mother seeks the following orders:

a) an order for ongoing

Section 3 child support in the amount of $875.94 per month based on the father's current 2021 income of $56,439.13;

b) an order for outstanding retroactive

Section 3 child support totalling $68,943.59 which encompasses the time period January 1, 2016 to December 31, 2020, and imputes the father's income at $64,800 for 2016, $94,594 for 2017, $122,156 for 2018, $131,299.76 for 2019, and $47,922 for 2020;

c) an order for ongoing

Section 7 expenses to be proportionally split between the mother (75%) and the father (25%), which will include all current and outstanding 2021

Section 7 expenses, including the children's medical expenses that exceed the benefits plan coverage, their son's tutoring fees, and tuition and school expenses for their son who will commence attending a specialized, private school in the 2021-2022 school year;

d) an order for outstanding retroactive

Section 7 expenses in the amount of $36,856.37, which encompasses the time period of March 10, 2015 to December 31, 2020;

e) an order for both parents to enroll their children on their employer's group benefits plans, when available and eligible; and

f) an order to find the father in contempt of court for unreasonable delays in providing his financial disclosure. [ 5 ] The mother says that the parties agreed to split expenses for the children at the time of separation in March, 2015, but that the father almost immediately reneged on that agreement. However, the mother asked again on February 22, 2018, and the father agreed to split expenses for the children "as per our separation agreement", asking the mother, to send him her receipts.

She did so on February 22, 2018. [ 6 ] On April 26, 2016, the mother asked the father for financial information so that they could proceed with a divorce. He agreed, but did not provide the information. [ 7 ] The mother filed for divorce on September 13, 2019, claiming child support and retroactive child support. The father has been noted in default. Both parties are unrepresented. [ 8 ] She filed a notice to disclose on December 13, 2019. At a hearing related to disclosure, the father handed the mother a stack of paper containing some financial disclosure.

The father was ordered to provide missing disclosure, including a copy of his filed 2018 personal income tax return and his 2018 notice of assessment and re-assessment within 30 days, and the application to disclose was adjourned to February 18, 2020. The father sent some 2018 tax information, but not full disclosure. He estimated his income for 2018 at $57,565.81.

He advised the mother that he had liquidated his Calgary business in December 2018, but did not disclosure any proceeds of sale. [ 9 ] On January 27, 2020, the father advised the mother that he estimated his 2019 income at approximately $37,500. [ 10 ] When the father still had not disclosed all of his 2018 financial disclosure documents, he was ordered on February 18, 2020 to provide the missing documents within 14 days, failing which the mother would be able to apply for an order of civil contempt. The father failed to disclose as ordered, and the mother filed an application for contempt.

The hearing date of that application, April 6, 2020, was adjourned sine die given the pandemic. [ 11 ] The father paid varying amounts to the mother commencing in March, 2019, and ceasing in December, 2018. Pursuant to the February 18, 2020 order, the father was directed to pay the mother

Section 3 child support in the amount of $893.59, commencing March 1, 2020, enforceable through the Director of Maintenance Enforcement. [ 12 ] At the rescheduled hearing on September 30, 2020, Anderson, J. asked the father why he still had not provided his 2018 financial disclosure, nine months after having been ordered to do so. The father indicated, on Webex, that he had the 2018 financial disclosure documents, and he was ordered to provide them to the mother by the end of the day.

He agreed to do so. [ 13 ] However, while he emailed the mother on that day, he disagreed with the mother about what documents he had been ordered to provide. Specifically, the father did not provide the mother with his 2018 personal income tax return. [ 14 ] The father finally provided his return on March 12, 2021. The return indicates that it was filed on May 18, 2020. He has yet to provide complete financial disclosure for 2017, 2018, 2019, 2020, or 2021.

B. The Father's Income [15] The mother submits that it is not appropriate to use the father's line 150 income from his notices of assessment to determinehis annual income for each year. She has established through her evidence of such disclosure as has been made that such line 150 incomedoes not match or include the financial disclosure supplied by the father.

The evidence indicates that the sum of the father's tax slips andother income statements in 2017 and 2018 exceed the line 150 income in the notices of assessment. [16] I accept that the appropriate method of determining the father's guideline income for child support purposes is to addcorporate income and tips to his line 150 income.

I accept that the father's income for Guideline purposes, including income from allsources to the extent that he has provided disclosure, was as follows: 2017 - $94,594 2018 - $122,156 2019 - $131,300 (the year the father sold his business) [17] I note that these numbers do not include full disclosure of the father's business tax returns in 2017, 2018, and 2019. [18] The father's disclosure of income for 2020 indicates income of $47,922.30, and for 2021, $56,439.13. However, he has notdisclosed his full personal tax returns. [19] The father has not disclosed financial documents for 2015 and 2016.

The mother's estimate of his income in each of theseyears is reasonable and conservative at $64,800. C. Current

Section 3 and

Section 7 support, ongoing Section3 and

Section 7 support [20] I find that the mother's application for ongoing

Section 3 child support in the amount of $875.94 per month is appropriate,commencing January 1, 2021, enforceable through the Director of Maintenance Enforcement. The order will include a direction thateach party will provide the other with a copy of his or her tax return and any notices of assessment on an annual basis, on or before June30 of each year, as long as there is a child of the marriage. [21]

Section 7 expenses are to be proportionally split between the mother (75%) and the father (25%), which will include allcurrent and outstanding 2021

Section 7 expenses, including the children's medical expenses that exceed the benefits plan coverage, theirson's tutoring fees, and tuition and school expenses for their son who will commence attending a specialized private school in the 2021-2022 school year. [22] I also direct that both parents enrol the children on the employer's group benefits plan, when available and eligible. D. Retroactive

Section 2 support [23] As noted in S(DB) v G(SR), 2006 SCC 37 , [2006] 2 SCR 231, a payor parent always has the obligation to pay childsupport commensurate with his or her income. [24] While it is noted in S(DB) at para 124-125 that, despite it being the usual case that retroactive support will only be awarded toa date not more than three years before formal notice is given to the payor parent: The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactiveorder should start.

This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parentengages in such conduct, there can be no claim that [he] reasonable believed [his children's] support entitlement was being met. This willnot only be the case where the payor parent intimidates and lies to the recipient parent, but also where [he] withholds information. Notdisclosing a material change in circumstances - including an increase in income that one would expect to alter the amount of childsupport payable - is itself blameworthy conduct.

The presence of such blameworthy conduct will move the presumptive date ofretroactivity back to the time when circumstances changed materially. A payor parent cannot use [his] informational advantage to justify[his] deficient child support payments...in order to avoid having the presumptive date of retroactivity set prior to the date of effectivenotice, the payor parent must act responsibly: [he] must disclose the material change in circumstances to the recipient parent.

Where thepayor parent does not do so, and thus engages in blameworthy behavior, [the Court has] no reason to continue to protect [his] interest incertainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from [his]wrongdoing. [25] Therefore, I will grant an order for outstanding retroactive

Section 3 child support totally $68,943.59 which encompasses thetime period January 1, 2016 to December 31, 2020, and imputes the father's income at $64,800 for 2016, $94,594 for 2017, $122,156 for2018, $131,299.76 for 2019, and $47,922 for 2020; and an order for retroactive

Section 7 expenses in the amount of $36,856.37, whichencompasses the time period of March 10, 2015 to December 31, 2020. [26] With respect to the mother's application to hold the father in civil contempt, the father's failure to provide adequate andcomplete disclosure has resulted in orders for retroactive support beyond the usual three-year cut-off. In the circumstances I find that thisis an adequate remedy for his contempt.

Heard on the 30 th day of April, 2021. Dated at the City of Calgary, Alberta this 11 th day of May, 2021. B.E. Romaine J.C.Q.B.A. Appearances: RK Self-represented litigant MK Self-represented litigant