TJH v SLW, 2021 ABQB 46

Court of Queen’s Bench of Alberta Citation: TJH v SLW, 2021 ABQB 46 Date: 20210119 Docket: FL01 02087 Registry: Calgary Between: TJH Applicant - and - SLW Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ [ 1 ] The one child of the relationship was born in December 2003. [1] The Child currently lives primarily with the Applicant father.

The Respondent mother has access as agreed to between the Respondent and Child. [ 2 ] In the spring of 2020, the parties participated in the Dispute Resolution Officer Program and agreed upon an Interim Without Prejudice Order, pending the formal determination of the Applicant’s within special application to address the Respondent’s Guideline Income, retroactive child support and issues around payment of certain

section 7 expenses. Both parties appeared before me as self- represented litigants. [ 3 ] At the DRO, the parties agreed that the Respondent would pay to the Applicant $150 per month as

section 3 child support until further Order of this Court. This amount was based on an imputed Guideline Income of $17,000 per year and was confirmed in an order of Justice Devlin issued in May 2020. [ 4 ] In addition to the Justice Devlin Order, I have been provided with two other Court orders. The first is a Consent Child Support Order made in February 2007, issued when the Child was 3 years old. It was issued by Madam Justice S.L. Martin (as she was then) and provided that no base child support was payable by either party.

Extraordinary expenses were to be shared on a 50-50 basis once a receipt was provided, and includes language that the parties “shall discuss any proposed expenses in advance prior to incurring the

expense ”. The second is an order issued by Madam Justice K.D. Nixon in January 2018. The

preamble to the Justice Nixon Order referenced a January 9, 2007 Consent Parenting Order that directed the parties to have shared parenting of the Child on a week on-week off basis. The effect of the Justice Nixon Order was to grant primary care of the Child to the Applicant, with the Respondent having parenting time every second weekend, extended in the case of a long weekend or as agreed upon by the parties in consultation with the Child. Setting the Respondent’s Guideline Income and Ongoing

section 3 Child Support [ 5 ] The Applicant asked at the hearing that I impute income to the Respondent to determine her Guideline Income and set

section 3 child support at $300 per month. This corresponds to an imputed Guideline Income of almost $37,000 per year. [ 6 ] Notably, this was different from what was requested in the Applicant’s Recipient’s Statement filed October 16, 2020. There, he asked that the Respondent’s Guideline Income be imputed to be $25,000 per year, which corresponds to a

section 3 child support payment of $213 per month. As I explained to the Applicant during the hearing, it would be inappropriate for me to consider his request for $300 per month as child support as the Respondent did not have adequate notice of this revised request. [ 7 ] When I asked about the basis for the proposed $25,000 amount, the Applicant submitted that he and the Respondent share the same educational background and experience. He asserted that his gross income should serve as a proxy for the Respondent’s earning capacity.

The Applicant further deposed in his Recipient’s Statement that: [SLW] is in very good health and shape with no under lying conditions. She is has a BFA in Fibre Arts, accomplished animator and artist, she owns and runs her own craft & online business [MMH] (see exhibits). Training in food service, janitorial, sports, file & video production and is a member with the Craft Council of Alberta. She has also unaccounted inventory from business and sales. [sic in original] [ 8 ] The Applicant included information in his Concise Letter that was not in his sworn statement.

In his Concise Letter, he stated that the Respondent is married and has made the decision to stay at home notwithstanding her obligation to support the Child financially. The Respondent was employed from September to November 2018 at the Spray Lakes Sawmills Family Centre in Cochrane, Alberta but quit for unknown reasons.

He also indicated that the Respondent’s mother lives in close proximity and is available to provide child care to the Respondent’s 2 younger children, the eldest who just started grade 1 and the youngest who just turned 3 years old. [ 9 ] The Applicant requested financial disclosure from the Respondent as part of his Claim filed under the Family Law Act , SA 2003 c F-4.5 . The Respondent filed a sworn Disclosure Statement dated November 4, 2020 which included her filed tax information for 2017, 2018 and 2019. Her Line 150 income for 2019 was $6,785, for 2018 was $3,413 and for 2017 was $1759.

She also indicated in her Reply Statement that she expects her income for 2020 to be approximately $1,000, though she did receive CERB benefits which ceased in September 2020. [ 10 ] The Respondent opposed the Applicant’s request to have her Guideline Income imputed at $25,000. She deposed in her sworn Reply Statement that she is a stay at home mother to 2 young children with a small handmade art business on the side. Her income does not come close to $25,000 per year, asserting that she has little time to design, create and distribute artwork with young children to raise.

She paid child support of $213 per month based on an imputed income of $25,000 per year for a short period of time, but this proved to be too hard for her family. She then provided the Applicant with a letter outlining her circumstances and paid $47 per month based on an imputed income of $12,000 per year. Then at the DRO, the Applicant agreed to the current payment of $150 per month for

section 3 child support because she wished to financially support the Child. As of November 2020, this amount is paid through the Maintenance Enforcement Program. [ 11 ] The leading case on imputation of income is the Alberta Court of Appeal’s decision in Hunt v Smolis-Hunt , 2001 ABCA 229 which provides that in order to impute income under the Federal Child Support Guideline, I must be satisfied that there is proof of a specific intention to undermine or avoid support payments or proof of circumstances which allow me to infer the party’s intention to undermine or avoid his or her support application.

The Court of Appeal more recently framed the question in DBF v BF , 2017 ABCA 272 at para 79 as “whether the respondent engaged in non-remunerative activities with the intention of avoiding child support obligations.” [ 12 ] Here, I am not satisfied based on the evidence before me that there is proof of a specific intention to undermine or avoid support payments. The Respondent’s youngest child was born in October 2017, just 2 months before the Child went to live full time with the Applicant.

Therefore, I do not consider it reasonable to infer an intention to avoid child support during a period when the Respondent had just given birth. In addition, even if I were prepared to impute income to the Respondent, I cannot accept that it should be imputed at $25,000 per year, which approximates the Applicant’s annual income prior to expenses and deductions. The Applicant provided a listing of the Respondent’s inventory posted for sale through the Alberta Craft Council Gallery that showed inventory valued at $1,606.20.

While the Respondent might have additional inventory available for sale, there is insufficient evidence before me to suggest that such inventory together with the whatever income the Respondent earned in 2017 supports imputing a Guideline Income of $25,000. [ 13 ] That said, the Respondent indicated that she was prepared to continue to pay $150 per month as

section 3 child support until such time as the child reaches 18 years old, which will be in December 2021. Given this, I order that these payments, as directed by the Justice Devlin Order, continue. I remind the parties that a further review will have to be undertaken when the Child reaches the age of majority as the parties will need to discuss whether the Child continues to require

section 3 child support when she pursues a post- secondary education. Retroactive Claims

[ 14 ] Justice Nixon’s Order was granted in January 2018. The Applicant asked for retroactive

section 3 child support to be assessed effective December 2017, being the date he became the primary caregiver to the Child. [ 15 ] With regards to how much is owed in retroactive

section 3 child support, the Applicant outlined in his Concise Letter that based an imputed income of $25,000 from December 2017 to the end of December 2020, the Respondent owes a further $3,060 in support. That is the figure calculated at page 16 of his Concise Letter. [ 16 ] The case of DBS v SRG ; LJW v TAR ; Henry v Henry ; Hiemstra v Hiemstra , 2006 SCC 37 ( DBS ) is the leading authority as to whether retroactive

section 3 child support should be ordered. It is uncontroverted that the underlying premise of child support is “that the amount of support should reflect the payor parent’s income” : DBS at para 68 . [ 17 ] The Alberta Court of Appeal had further occasion to provide guidance regarding DBS in Goulding v Keck , 2014 ABCA 138 ( Goulding ).

Paragraphs 21 and 22 states: [21] …To balance the payor’s predictability interest with the child’s right to support, DBS shaped entitlement to retroactive support based on four fact-driven, relevant, but non-exhaustive factors: 1. whether there was a reasonable excuse for why support was not sought earlier; 2. the conduct of the payor, and whether the payor engaged in “blameworthy conduct” (a term defined in para 40 below); 3. the circumstances of the child; and 4. any hardship occasioned by a retroactive award. … [ 18 ] Both the Supreme Court of Canada and Alberta Court of Appeal direct chambers judges to take a “holistic fact-based analysis” in determining whether to make an award for retroactive support. [ 19 ] In this case, I have already addressed why I consider imputing a Guideline Income of $25,000 to the Respondent to be problematic.

In addition, given the analysis that must be conducted under DBS and Goulding , there are other issues with the Applicant’s request. First, the parties were in Court in January 2018 to obtain the Justice Nixon Order. It is unclear on the record before me why the issue of child support was not addressed at that time, though the Applicant stated during oral submissions that he raised the issue of child support as early as late 2018. [ 20 ] Second, the Applicant’s sworn statement provides insufficient evidence to conduct a fulsome analysis under DBS .

To the extent that DBS requires that child support payable be reflective of the payor parent’s income, given the Respondent’s sworn Financial Disclosure, the Respondent’s offer to pay $47 dollars per month for the period of December 2017 to October 2018 based on an imputed income of $12,000 per year is more reflective of the evidence before me regarding her income. Therefore, the Respondent is directed to pay $517 in retroactive child support, consistent with the proposal she outlined in her Concise Letter.

Section 7 Expenses [ 21 ] The Applicant seeks an order requiring the Respondent to contribute 50% towards orthodontic work for the Child and 50% of the balance owing on an Apple laptop purchased for the Child. [ 22 ] The Justice Martin Order required that the parties share extraordinary expenses on a 50-50 basis, but importantly, also required that the parties discuss any proposed expenses in advance prior to incurring the expense.

The Order does not stipulate what would occur in the event that there was no prior discussion, nor does the Order stipulate that in the absence of agreement, one party could not obtain relief from the Court as the Applicant now requests. [ 23 ] As noted by Kenny J in Tapuska v Tapuska , 2009 ABQB 655 at para 30 : The Child Support Guidelines define extraordinary expenses.

They include those that exceed the costs that a paying spouse can reasonably cover taking into account their income, the nature and number of extra-curricular activities, any special needs and talents of the child, the overall cost of the program and activities, and any other similar factor. The expenses must also be necessary in relation to the child’s best interests and reasonable in relation to the means of the spouses and the family’s spending pattern prior to separation. [ 24 ] The Applicant has provided a breakdown in the cost of orthodontic work proposed for the Child.

The treatment outline dated September 26, 2019 provides some explanation as to why the orthodontic work is required, but does not indicate how urgent it may be or what the consequences are of not completing the work. The Respondent indicated that she is not in a financial position to contribute 50% of the proposed $7,680 expense and argued that it is not emergency work. I note that a valid

section 7 expense does not have to be “emergency work”. I also note that the orthodontic quote was only valid for a 90 day period. [ 25 ] Based on the evidence before me, I am not in a position to determine whether the orthodontic work is necessary relative to the Child’s best interests and whether the associated expense should be treated as an extraordinary expense under

section 7. Accordingly, the Applicant has leave to obtain further evidence regarding the proposed orthodontic work and bring another application, if necessary, for the Child’s orthodontic work to be shared with the Respondent as a

section 7 expense. In granting the Applicant such leave, I remind him that he must be mindful that any proposed

section 7 expense must also be reasonable relative to the Respondent’s financial means and ability to pay. The parties should discuss any required orthodontic work and how such expense may reasonably be paid and apportioned in an effort to avoid having to re-litigate this issue.

[ 26 ] With regards to the Apple laptop, the receipt included in the Applicant’s materials shows that the total cost was $1,743.21. The Child received an award that funded $500 towards this expense, leaving $1,243.21 to be split between the parties (meaning a contribution of $621.61 each). [ 27 ] The Respondent included in her sworn Reply Statement email correspondence between the parties that occurred in July 2018, approximately 6 months prior to the actual purchase of the laptop.

It is clear on the record that there was no advance agreement between the parties that the laptop would be purchased and the cost would be split between the parties. However, it is not accurate to suggest there was no discussion in advance of the purchase. Ultimately, advance discussion, together with provision of a receipt, was all that was required by the Justice Martin Order. [ 28 ] The email correspondence exchanged between the parties in the summer and in late 2018 outline the Applicant’s rationale for why the laptop should be purchased.

First, it met the parameters for reimbursement of the $500 award that the Child had won. Second, it could and would be used by the Child on an ongoing basis in the pursuit of her education, including in relation to her particular interests and talents in arts, video, photo and animation.

That same email exchange showed that the Respondent agreed that the Child needed a computer, or at least needed to have access to a computer, in high school but she questioned the need to purchase such an expensive one. [ 29 ] While it may have been possible to find a less expensive laptop computer for the child, I do not consider the purchase of the Apple laptop to have been unreasonable, particularly since the Child notionally contributed $500 towards the cost when she earned a school award and given the Child’s particular interest in art-related endeavours.

I conclude that the purchase of the Apple laptop was a reasonable

section 7 expense and direct that the Respondent pay to the Applicant $621.61, representing her 50% contribution to the cost. Costs [ 30 ] Since the parties enjoyed mixed success on this application, I direct that they each bear their own costs. Heard on the 13 th day of January, 2021. Dated at the City of Calgary, Alberta this 19 th day of January, 2021. Appearances: TJH Self-represented litigant SLW Self-represented litigant L. Bernette Ho J.C.Q.B.A.