Hinz v Hinz, 2021 ABQB 385

Court of Queen’s Bench of Alberta Citation: Hinz v Hinz, 2021 ABQB 385 Date: 20210517 Docket: 4803 132178 Registry: Edmonton Between: Kristina Robin Hinz Plaintiff - and - Kevin Wilhelm Hinz Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.R. Fraser _______________________________________________________ [ 1 ] Ms. Hinz comes to the Court by way of Special Chambers seeking retroactive child support back to 2003. She is also seeking ongoing child support and a no contact order with Mr. Hinz. Mr.

Hinz has filed a Cross Application seeking that any retroactive calculations only go back as far as 2018. He is also seeking to have a Practice Note 7 Intervention conducted, along with an order restoring his parenting time with their youngest child. [ 2 ] The parties were married in 1999 and separated in 2003. They have four children, born in 2000, 2001, 2003, and 2007. They entered into Minutes of Settlement in 2005. The terms of the Minutes of Settlement were incorporated into the 2006 Divorce Judgment. The Judgment based Mr. Hinz’s child support on an income of $40,000 per year.

The parties then reconciled for a period of time, again separating in 2009. In 2010, child support was varied by consent. The Order removed Mr. Hinz’s obligation to pay s 7 expenses. His s 3 support was again based on an income of $40,000 per year. This resulted in Mr. Hinz being required to pay $925 per month in child support for his four children. The parties did not exchange financial information between 2010 and 2018.

[ 3 ] The issue of child support was again before the Court in December 2018. The parties entered into a Consent Order which set Mr. Hinz’s income at $72,000 per year. At that time, there were only three children of the marriage, as the eldest was over 18. He had ceased to be a child of the marriage in June, when he finished high school. In July 2019, yet another variation to the support regime was made. This time Mr. Hinz’s income was set at $45,000 on an interim, pre-disclosure basis. This was again changed in October 2020 when his income was set at $75,000. [ 4 ] The parties do not dispute that Ms.

Hinz was the primary caregiver of the children for most of the time since separation. The exception was that in June 2019, the second oldest child started to reside with Mr. Hinz. He was 17 at the time. He finished high school in December 2020, and still resides with his father. The 2019 Variation Order reflected this change in residence, and that Order required Ms. Hinz to pay support to Mr. Hinz for that child. The October 2020 Order did not require Ms. Hinz to pay support for the child.

There may have been an issue at that time as to whether the second oldest child should still be considered a child of the marriage. He would have been 19 at the time. [ 5 ] Mr. Hinz supports himself by working as a heavy equipment operator. He does this through a numbered company. He finds work for an equipment operator, and his company is hired as an independent contractor to provide an equipment operator. He then works for his numbered company as an equipment operator. He often works away from his residence, spending multiple days away and only returning for short periods of time.

His arrangement with employers allowing him to work through his numbered company provides him with many tax advantages. It permits him, whether legitimately or not, to deduct various expenses from his income. The result is that his reported income is lower than what it otherwise would be. [ 6 ] In addition to working as a heavy equipment operator, Mr. Hinz also has farm income. At one point, he actually actively farmed. He cultivated crops and raised animals. That stopped before the parties divorced. Since that time, he has rented his farmland to a third party.

That person grows crops and pastures animals on the land. Despite simply being a landlord, Mr. Hinz makes significant deductions from the rental income he receives for the land. He files his tax returns as though he were receiving farming income, and deducts various items from that income such that he is left with little or no profit. This again results in his reported income being lower than it otherwise would be. [ 7 ] Through the financial disclosure provided, it is apparent that Mr. Hinz has been underpaying his child support for years.

Even just using his declared line 150 income, there are only two years where he earned less than $40,000. When his income is adjusted to account for business and farming deductions, his income is well above the $40,000 used to calculate his child support. [ 8 ] It is well settled law that child support is the right of the child. It is not something that can be arbitrarily lowered or bargained away by the parents.

In DBS v SRG , 2006 SCC 37 , the Court said that “a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (at para 107). In this case, Mr. Hinz did not disclose his income discrepancy until forced to do so in 2018. He has benefited financially from that failure to disclose. [ 9 ] In Michel v Graydon , 2020 SCC 24 , the Court described the failure to disclose financial information as the cancer of family law litigation.

It also found that support paying parents have a duty to provide full and honest disclosure of their income (at para 33). In this case, Mr. Hinz violated that duty. [ 10 ] Mr. Hinz must have been aware that his child support was based on an income of $40,000 per year. He also must have been aware of the need to adjust his child support based upon his income. This is because in 2014 he voluntarily increased his child support from $925 per month to $1300 per month.

Then, in 2016 child support was decreased to $1190 per month. [ 11 ] Neither the increase nor decrease in child support matchí the table amounts, whether the current year or prior year’s line 150 income was used. A quick search on the Internet will provide links to multiple child support calculators. It is a simple task to enter one’s line 150 income and calculate approximately the appropriate table support amount. Mr. Hinz chose not to take this simple step. Consequently, he has severely underpaid his child support and is now subject to a retroactive adjustment. [ 12 ] To calculate Mr.

Hinz income for the purpose of making a retroactive adjustment, I start with his reported line 150 income, without making any adjustments for business income or farm income.

Using those figures produces the following payment history: Year Line 150 Income Monthly Support Yearly Support Support Paid Difference 2011 73096 1670 20040 13065 6975 2012 51562 1171 14052 11100 2952 2013 73373 1658 19896 11371 8525 2014 52390 1190 14280 19225 -4945 2015 68574 1551 18612 15600 3012 2016 29607 719 8628 15120 -6492 2017 64192 1453 17486 14280 3206 2018 36907 901 9852 12908 -3056 2019 40751 804 6606 10521 -3915 Totals 123190 6262 [ 13 ] This table takes into account the 2017 changes in the Child Support Tables, as well as the eldest child ceasing to be a child of the marriage in 2018 and uses a straight set-off calculation for 2019.

Using just his reported line 150 income, Mr. Hinz underpaid his child support by $6262 between 2011 and 2019. [ 14 ] However, as stated above, Mr. Hinz’s line 150 income does not accurately reflect his income. Although Mr. Hinz was a heavy equipment operator, he did not work as a regular employee. Instead, he was employed through his numbered company working as an independent contractor. I note that his company did not supply the machinery that he operated, or pay any of the costs associated with

operating the machinery. It appears that he never hired other employees; he was the only equipment operator. On the face of it, this does not seem to meet the usual requirements of a self-employed independent contractor. However, he still claimed various deductions and reduce his corporate income. [ 15 ] In a similar manner, Mr. Hinz claimed farm income on his tax returns. All of the claimed farm income since 2011 has come from land rental. He was able to deduct significant expenses from that income. Simply earning income from renting farmland does not usually qualify as farm income. Again, Mr.

Hinz was able to reduce his reported income and benefit from those reductions. I am unsure of the legitimacy of either of these practices, however, those are issues for Tax Court and not issues for me to decide. [ 16 ] In order to determine a proper income for Mr. Hinz, I am guided by s 18 of the Guidelines which state: 18

(1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under

section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in

section 17 and determine the spouse’s annual income to include (

a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (

b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances. [ 17 ] In Sweezy v Sweezy , 2016 ABQB 131 , Yungwirth J found that the onus is on the party providing the financial disclosure to provide an adequate explanation for the expense.

In her decision, she outlined what is required to provide an adequate explanation and also the possible consequences of failing to provide an adequate explanation. To summarize, if a party fails to adequately explain an expense, that party risks having that expense added to his or her income. In this case, I find that Mr. Hinz’s declared income does not adequately reflect all the money available to him for the payment of child support and that he has failed to adequately explain some of his expenses. Consequently, his income should be adjusted accordingly. [ 18 ] Mr.

Hinz was able to reduce his corporate income through the amortization of corporate assets. This deduction is allowed because as assets are used, they wear. Eventually they will need to be replaced. However, Mr. Hinz’s company did not derive income through the use of its amortized assets. It did not provide the excavator or bulldozer that he operated. Those were provided by the contractor that hired his company. [ 19 ] The major assets used for amortization by the numbered company were a vehicle that Mr.

Hinz used to get to and from work, as well as a trailer that he used for accommodation when he was working away from home. Neither were required for his employment, they just made his life easier. For most people, these assets would not provide any reduction in income. The numbered company also owned a skid steer and a side-by-side all-terrain vehicle. Again, neither piece of equipment was required for the company to earn income. There is no information about the company ever being contracted to provide skid steer services. There is no explanation as to why the company required the side-by-side.

It seems simply to have been used for the benefit of Mr. Hinz. I find that 75% of the total amortization deduction should be added to Mr. Hinz income. [ 20 ] The truck and trailer were listed as corporate assets. Consequently, Mr. Hinz was also able to deduct the repairs on these items from his corporate income. Most employees who drive to and from work did not get to deduct vehicle repairs from their income. I recognize that Mr. Hinz’s employment often took him to remote areas that may have caused extra wear and tear on these assets. Therefore, I am prepared to add 50% of the repair costs to Mr.

Hinz income. [ 21 ] Sometime prior to 2017, the company trailer became the personal property of Mr. Hinz. It is unclear of exactly when that happened or what value was ascribed to the trailer, as the transaction is not listed in the numbered company’s November 2020 statement of capital assets. After the transfer, Mr. Hinz rented the trailer to the company for his use. This rental income does not seem to be reflected on his personal tax returns. The general ledger of the company only seems to contain one entry regarding rental expenses, a May 30, 2018 payment of $2200 to Mr. Hinz.

There are no other entries between 2017 and 2019 referencing a rental expense. The company, however, made significant deductions for rental expenses. It is possible that the company rented other items for business purposes, but that is not explained in the materials provided. Prior to 2017, the company had no rental expenses. I find that 90% of the rental income should be added to Mr. Heinz’s income. [ 22 ] Mr. Hinz was also able to deduct the cost of the cellular phone from his corporate income. I have no doubt that the phone was used at least partially for business purposes. I also have no doubt that Mr.

Hinz used the phone for personal calls. There is no evidence that he had a second cell phone, and the description of the business is not one that would require a great deal of phone use. No monthly cell phone bills were provided to show the breakdown between personal and business usage. I find it appropriate to add 50% of the phone costs to Mr. Hinz income. [ 23 ] Generally, Mr. Hinz paid himself through a corporate dividend. This likely represented a tax advantage over paying himself a salary. The company also has retained earnings, which fluctuate.

They have been as high as $72,000 and as low as $26,000, but have generally been about $50,000. It is prudent financial planning for a corporation to retain some funds for down times. However, Mr. Hinz business had few expenses that were not directly related to employing Mr. Hinz. It is unlikely that reducing the retained earnings would have any negative effect on the business. Paying those retained earnings to Mr. Hinz would have a positive effect on his income. I am prepared to add $3000 per year to Mr. Hinz income for each of the years from 2011 through 2019.

This reflects retained earnings which could have been taken as income. [ 24 ] Despite only being a landlord who rents farmland, Mr. Hinz made significant deductions from the farm rental income

claiming them to be farm-related expenses. As a result, then farm frequently makes little profit or even loses money. I note that Mr. Hinz has at times deducted expenses for the purchase of equipment in hopes that one day he may again start to farm the land. Although this may be a laudable goal, there is little evidence to show that the deduction is related to the business of land rental. Instead, it seems to be a way to fund a potential new business without incurring expenses. It is also a way in which to gain assets while lowering his line 150 income.

His children should not have their child support reduced in order to support Mr. Hinz’s new business ventures. [ 25 ] Mr. Hinz resides on the land he rents. It is my understanding that he occupies the farmyard, and rents out the rest of the land for crops and pasture. His farm tax returns contain large deductions for electricity and heating fuel. These deductions do not seem to match with his role as a landlord. It is also unclear from the information provided why the insurance costs on rented farmland should be so high. Additionally, despite not planting any crops or raising any livestock, Mr.

Hinz regularly deducts costs for fertilizer, pesticide, feed, veterinary services and machinery expenses. [ 26 ] It appears from the disclosure that Mr. Hinz may be deducting costs associated with maintaining his residence as farm expenses. I note the onus is on him to show that these expenses represent proper deductions. I find that he has not done so. As a result, for the purpose of determining his guideline income, I find it appropriate to only allow the costs of taxes and interest to be deducted from the farm income.

There is a large unexplained drop in the interest charges between 2012 and 2013, but I am not prepared to make any adjustments for the strange accounting. [ 27 ] Having made the above findings, I now calculate Mr.

Hinz’s farm income to be as follows: Year Farm Income Interest Taxes Income to be added 2011 12000 11255 1374 -629 2012 16292 10344 1415 4533 2013 18608 3877 1481 13250 2014 18150 4929 1525 11696 2015 18160 3587 1596 12977 2016 16193 3568 1619 11006 2017 19142 3458 1621 14063 2018 25105 2621 1652 20832 2019 17772 2489 1652 13631 [ 28 ] I calculate his adjusted line 150 income, including the adjusted business income, to be as follows: Year 150 Income Corporate Income Amortization 75% Phone 50% Repairs 50% Rental Adjusted Line 150 2011 73096 39650 4546.50 473 2734.5 125015.50 2012 51562 36105 9248.25 914.5 2532 106444.5 2013 73373 12932 14880 30 283.5 106812.5 2014 52390 16181 12895.5 1828.5 637.5 87098 2015 68574 11193 9795.75 914.5 559 93782.50 2016 29607 49919 7156.5 943 1063.5 94074.5 2017 64192 8521 4587 971.5 1053 5913 89766.5 2018 36907 -10993 4334.25 857 1719.5 8199 45468.5 2019 40751 -11275 4638 1351 15018 13907.7 68936.70 [ 29 ] These are the totals when his adjusted line 150 and the farming income are added together: Year Adjusted Line 150 Farm Income Total Income 2011 125015 -629 124386 2012 106444 4533 110977 2013 106812 13250 120062 2014 87098 11696 98794 2015 93782 12977 106759 2016 94074 11006 105080 2017 89766 14063 103829 2018 45468 20832 66300 2019 68936 13631 82567 [ 30 ] Using Mr.

Hinz’s total income to calculate the child support he should have paid compared to what he actually paid provides the retroactive amount owing. The amounts are as follows: Year Support Paid Monthly Support Owed Support to Him Annual Support Difference 2011 13065 2741 32892 19827 2012 11100 2459 29508 18408 2013 11371 2650 31800 20429

2014 19225 2207 26484 7259 2015 15600 2371 28452 12852 2016 15120 2336 28032 12912 2017 14280 2309 27772 13492 2018 12908 1541x6+1281x6 16932 4024 2019 10521 1595x2+1207x10 1776 13484 2963 Totals 123190 235356 112166 [ 31 ] The above amounts take into account changes in the Child Support Tables in November 2017, as well as the eldest child turning 18 and completing high school in 2018, along with the change in living arrangements for the second eldest child in 2019. [ 32 ] In her application, Ms. Hinz sought retroactive child support back to 2003, the year the parties separated.

I decline to go that far back in determining retroactive child support. After 2003, the parties negotiated minutes of settlement, then entered into a consent divorce judgment, then reconciled, then separated again, then went back to Court to vary the support ordered in the Divorce Judgment. It appears that both parties had the assistance of counsel regarding the Divorce Judgment. It is unclear whether either party had counsel through any of the other Court processes. [ 33 ] In DBS , the Court set out four factors to be considered when trying to determine retroactive child support.

They are the reason for the delay in seeking a child support variation, the conduct of the payor parent, the circumstances of the children, and the hardship that a retroactive award may cause. In this case, Ms. Hinz submits that the reason for the lengthy delay in seeking a recalculation of child support was her fear of Mr. Hinz and her lack of resources. [ 34 ] In evaluating these reasons, I note that there is considerable conflicting evidence in the affidavits of the parties. Ms. Hinz claims that she was physically and emotionally abused and that Mr. Hinz was very controlling. Mr. Hinz denies these allegations.

Instead, he claims the parties had a relatively amicable relationship until 2018. Both parties agree that in 2012, Ms. Hinz and the children temporarily moved into a trailer on Mr. Hinz’s property. They stayed for approximately eight months. As all of the conflicting evidence comes by way of affidavit, I am not in a position to evaluate the credibility of either party. [ 35 ] During the divorce process, Ms. Hinz had the assistance of counsel. Counsel would have been aware of the need for proper financial disclosure in order to properly proceed with the divorce. In addition, Ms.

Hinz did bookkeeping-type work for the numbered company between 2006 and 2009. Even if she did not have access to all the corporate financial information, she should have had some idea of the corporate finances. Certainly, she knew the corporation existed. [ 36 ] There is little evidence regarding the circumstances surrounding the 2010 consent Variation Order. There should have been an exchange of financial information prior to entering into the 2010 Order. It seems the focus of the change was on adding the youngest child to be support order. Mr.

Hinz’s 2009 tax return, which presumably was provided, had a line 150 income of $44,625. The return clearly shows significant dividend income, as well as farming activities. These should have been an indication that further financial disclosure might be necessary. For whatever reason, Ms. Hinz chose not to pursue any further information. [ 37 ] I am aware that in DBS , the court found that when evaluating delay “courts must be sensitive to be practical concerns associated with a child support application” (at para 101).

Even when applying this sensitivity, I cannot find it reasonable to have not sought full financial disclosure prior to the 2010 application. [ 38 ] Both parties agree that there was no exchange of financial disclosure after 2010. It is clear from the court order that they were required to exchange financial information annually. Certainly, it was in the best interests of Mr. Hinz to not provide the financial information. Providing the information likely would have resulted in a substantial increase in his child support. Ms.

Hinz claims that she did not pursue the financial information because she did not have the financial or emotional resources to do so. Additionally, she claims that she was unaware of the financial situation of the numbered company. It does seem that none of the company financial documents were provided until just recently. This would make it difficult for Ms. Hinz, or anyone on her behalf, to fully understand Mr. Hinz’s financial situation. In contrast, Mr.

Hinz should have been fully aware of his financial situation. [ 39 ] The evidence provided does not allow me to determine why the required exchange of information did not happen. It is clear that it did not happen. In Henderson v Micetich , 2021 ABCA 103 , the court wrote “delay has a very limited role to play in determining the availability and extent of a retroactive child support order “(at para 44). In this case, I find that the issue of delay only applies to the period prior to the 2010 Order. I find that Ms.

Hinz’s delay in seeking retroactive child support post-2010 was reasonable. [ 40 ] In his application, Mr. Hinz seeks to have retroactive child support calculated from 2018 forward. This is the date when Ms. Hinz made a formal request for financial disclosure. However, the 2010 Court Order required Mr. Hinz to provide financial disclosure annually. There is no clear agreement between the parties to waive this disclosure requirement, nor is there an agreement between them to use a different mechanism to calculate child support. In short, it is Mr.

Hinz’s obligation to provide the financial disclosure; the onus is not on Ms. Hinz to request it. [ 41 ] In his materials, Mr. Hinz quotes Pentelechuk JA in Brear v Brear , 2019 ABCA 149 , in which she wrote “if a parent chooses not to disclose significant increases in their income, this likely constitutes blameworthy conduct as defined in DBS at paragraph 107- 108 ”. Even if Mr. Hinz did not understand that his corporate income should have been considered for the purposes of calculating child support, he should have been aware that his income was significantly above the amount stated in the 2010 Court Order.

This discrepancy should have been noticed in 2011. I find his failure to disclose his increased income combined with his failure to properly adjust his support obligations to be blameworthy conduct. [ 42 ] The next DBS factor to consider regarding retroactive support is the circumstances of the children. Two of the children are now over 18. There is no dispute that the eldest is no longer a child of the marriage. I find that he ceased to be a child of the marriage as of August 1, 2018. This is because he finished high school in June 2018. I am adding an extra month of support to allow for the transition

from student to adult. The second eldest child finished high school in November 2020. In the same manner, I find that he ceased to be a child of the marriage as of January 1, 2021. The two youngest children are still considered children of the marriage, and ongoing support will be required for them. [ 43 ] From the information provided, it is difficult to know exactly what the children may have missed experiencing because of their father’s failure to pay appropriate child support.

The amount of underpayment is significant, and it is likely that the children would have benefited in some way from increased child support. [ 44 ] In his materials, Mr. Hinz concedes that a retroactive support order would benefit the two youngest children. In his materials, he suggests that he cannot discern a method by which a retroactive award would benefit the two older children. Although not specifically stated, the materials seem to suggest that because the oldest two children are now adults, they either should not or cannot benefit from retroactive child support.

In Michel , the Supreme Court wrote: In historical child support claims, what is really at stake is monies that ought to have been paid for the care and support of children but were directed elsewhere. This means children and their caregivers do without, and this has lasting consequences for each of them. (at para 99) [ 45 ] In that same decision, the Court found that need or hardship is not a necessary prerequisite to award retroactive child support, (at para 122), and that a child now being considered to be independent of his or her parents does not bar a retroactive child support order regarding that child.

I find that the circumstances of the children favour the award of retroactive child support. [ 46 ] The final aspect to consider under DBS , is the hardship a retroactive award may impose on the payor parent. I have already found that there is blameworthy conduct on the part of Mr. Hinz. In Michel , the Supreme Court wrote: It is not necessary that there be no hardship caused by the award for it to be granted.

If there is the potential for hardship on the payor’s part, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of undue hardship ( D.B.S ., at para. 116 ; Tschudi v. Tschudi , 2010 BCCA 170 , 86 R.F.L. (6th) 23, at paras. 4-5 ). In all cases, hardship may be addressed by the form of payment ( Purba v.

Purba , 2009 ABCA 32 , 466 A.R. 175, at para. 15 ). [ 47 ] The Court went on to emphasize that the trier of fact must have a full picture of the circumstances of all the parties in order to properly assess hardship. [ 48 ] In this case, Mr. Hinz has had a recent, and significant, change in his financial circumstances. He suffered a workplace injury in November 2019. Instead of earning money through his numbered company, his earnings now come from WCB benefits. Since he chose to pay himself a comparatively low salary as an employee of the numbered company, his WCB benefits are also comparatively low.

He now receives approximately $30,000 per year in benefits. It seems unlikely that he will be able to return to his prior line of work. He is receiving training through WCB to try and transition him to a new line of work. [ 49 ] Mr. Hinz has few personal, liquid assets. His bank accounts are relatively modest. He seems to have little in the way of savings, despite having earned significant income over the years. He does own approximately 253 acres of farmland. His statement of income, assets, and liabilities does not provide an estimate of its value. In his affidavit evidence, Mr.

Hinz states the farmland was valued at $300,000 prior to the divorce. It is unlikely that it has gone down in value since that time. Its current value must be significantly above $300,000. Although not specifically stated in the materials, it seems likely that there is a mortgage on the property. There is no information regarding the amount of the mortgage. [ 50 ] In his materials, Mr. Hinz provides evidence that his numbered company had business interruption insurance. That insurance has provided some funds to the company. It is unclear if the support will continue.

It is also unclear if the company can continue operating by hiring an employee or employees to work as equipment operators. Since it was the numbered company that was hired by contractors, it should not matter who its employees are. The hiring contractor does not normally get to dictate which employee a sub- contractor uses. It is possible that the numbered company will still continue to provide Mr. Hinz with income. [ 51 ] The most recent financial statements for the numbered company show that it has retained earnings of approximately $40,000. The company also owes Mr. Hinz over $9300. In 2020, after Mr.

Hinz suffered his injury and after this application was started, it seems that the company purchased a skid steer for almost $45,000. If the company is unable to continue to operate, there should be a considerable transfer of money to Mr. Hinz when it is liquidated. [ 52 ] Although Mr. Hinz is not in the best financial position, I find that the imposition of retroactive child support would not represent a hardship to him. He has significant assets which could either be liquidated or used as collateral to secure a loan.

This would permit him to make a large lump sum payment while still meeting his ongoing support obligations. [ 53 ] I have found that Mr. Hinz underpaid his child support by $112,166. I am aware that this is a large sum of money for most people. I am also aware that two of the children are no longer children of the marriage. I am taking these factors into account in the structuring of the repayment of the retroactive support. [ 54 ] I find that Mr. Hinz shall make a lump sum payment of $10,000 to Ms. Hinz no later than July 31, 2021.

He shall also make lump sum payments of $3000 to each of his two eldest children by July 31, 2021. He shall make further lump sum payments of $10,000 to Ms. Hinz and $3000 to each of the two eldest children on or before July 31, 2022. [ 55 ] In addition to the lump sum payments, Mr. Hinz shall make monthly payments of $600 towards the arrears. Those monthly payments shall be credited towards the arrears on a 2:1 basis, so that every dollar paid monthly reduces the arrears by two dollars.

If he fails to make the monthly payment towards the arrears, the 2:1 credit will no longer apply and the entire amount of arrears will immediately become due and payable.

[ 56 ] I note that the third child will turn 18 in October 2021. I am unsure of when he will finish high school. Unless the parties wish to make submissions on this point, I am prepared to find that he also will cease to be a child of the marriage one month after he completes high school. This will reduce Mr. Hinz’s ongoing monthly child support. [ 57 ] Regarding ongoing child support, I find that it should be calculated in the same manner that I have calculated the arrears. The same calculations regarding business and farm income shall be made, and those totals then added to Mr. Hinz’s line 150 income.

This amount shall be used for the calculation of child ongoing support. [ 58 ] I am not prepared to grant Ms. Hinz’s request for a no contact order. Her affidavits contain no evidence on which to base such a request. There may have been problems in the past, but there is no evidence of any recent problems. [ 59 ] The most recent order addressing parenting time is the 2006 Divorce Judgment. Despite having been in Court multiple times since, neither party has raised the issue of parenting until Mr. Hinz filed his Cross Application in February of this year. [ 60 ] The 2006 Divorce Judgment, paragraph 4, allows Mr.

Hinz to have supervised parenting time with the children provided he gives at least three days’ notice to Ms. Hinz. She is to respond to his request for parenting time within 48 hours and facilitate his access by transporting the children to him. [ 61 ] There is no evidence in the materials regarding when Mr. Hinz last attempted to access any of the children utilizing this method. His affidavit does indicate that he requested parenting time at some point during the summer of 2020. His request was denied. His affidavit states that he has not seen the two younger children since 2018 or 2019. Ms.

Hinz seems to indicate the last contact with the younger children occurred in October 2018. [ 62 ] I have found that Mr. Hinz has not been properly paying child support. However, paying child support is not a requirement for him to see his children. Paying child support is not the equivalent of purchasing the right to access the children. In most cases, children benefit from having both parents involved in their lives. It is unlikely that Mr. Hinz is a terrible parent, since one of the children has voluntarily chosen to reside with him. He should have regular access to the children. [ 63 ] In Mr.

Hinz’s affidavit evidence, he states that he received messages from one of his younger children regarding financial matters. Although not specifically stated, it seems that these messages were related to child support. If that was the case, it was completely inappropriate behaviour on the part of Ms. Hinz. Children should be sheltered from the litigation process, and certainly should not be involved in discussions regarding the payment or nonpayment of child support. [ 64 ] Despite the problems between the parties, and Mr.

Hinz’s lack of contact with his children, I do not feel that it is appropriate to order a Practice Note 7 Intervention at this time. Up until 2018, the parties seem to be able to communicate effectively and Mr. Hinz was having regular access to the children. This abruptly changed in 2018, which is the same time the issue of child support started. Now that the issue has been settled, I am hopeful that the parties will focus on the best interests of the children and access will resume.

If that does not happen, the issue of parenting time and the possible requirement for a Practice Note 7 Intervention can then be raised. [ 65 ] The 2006 Divorce Judgment gave Mr. Hinz supervised access to the children. I note that the youngest child is now 14. Having reviewed the evidence of both parties, I see no reason to require that access with the children be supervised. They are old enough to be able to communicate with their parents without supervision. If either child has concerns, I am confident the child will be able to communicate those concerns and raise them with the appropriate people. [ 66 ] Mr.

Hinz should utilize the process set out in the Divorce Judgment to try and arrange parenting time with his children. That process requires him to request access at least three days in advance and requires Ms. Hinz to respond to the request within 48 hours. I am requiring that his request be through some form of electronic communication, so there can be a clear record of his request. If Ms. Hinz does not agree to provide parenting time, she must provide written reasons for not doing so. [ 67 ] Given the time that has elapsed since Mr.

Hinz last saw his younger children, it may be necessary to start with short visits. These can be gradually extended as the children get reacquainted with their father. Ms. Hinz should do everything she can to facilitate the children’s contact with their father. This includes regular contact through electronic means as well as in-person contact. Mr. Hinz shall have access to their cell phone numbers, as well as access to their medical and school records.

He should be advised in advance of any upcoming medical appointments, and any extracurricular activities involving the children, so that he may attend. [ 68 ] It may be that the children require some counselling to deal with the conflict that their parents have imposed upon them. This may be a re-unification counselling, or some other form of counselling. If counselling is required, Ms. Hinz shall facilitate and pay for the counselling and advise Mr. Hinz of any recommendations.

Both parents shall follow the recommendations in order to ensure the best interests of the children. [ 69 ] If the parties cannot agree on costs, they may make written submissions to me on that issue within 30 days of this Judgment. Heard on the 14 th day of April, 2021. Dated at the City of Edmonton, Alberta this 17 th day of May, 2021.

G.R. Fraser J.C.Q.B.A. Appearances: Crystle Hug of Soby Boyden Lenz LLP For the Plaintiff Ms. Hinz Azaad Bharmal of Freedom Law for the Defendant Mr. Hinz