Umperville v Vanberg, 2021 ABQB 468

Court of Queen’s Bench of Alberta Citation: Umperville v Vanberg, 2021 ABQB 468 Date: 20211018 Docket: FL01 32812 Registry: Calgary Between: Charles Stephen Umperville Applicant - and - Cindy Vanberg Respondent Corrected judgment: A corrigendum was issued on October 18, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice O.P.

Malik _______________________________________________________ Introduction [ 1 ] The parties, who have one child, born in November, 2013, separated in early 2014. Initially, both parties resided in Fort McMurray following their separation. In 2016, the Respondent was laid off and moved to Calgary, bringing the parties’ child to live with her. The child resides with the Respondent and spends time with the Applicant when his work

schedule permits him to travel to Calgary. The Applicant bears his own travel and accommodation costs during his parenting visits. [ 2 ] On February 28, 2018, Justice Khullar granted an Order requiring the Applicant to pay the Respondent $900.00 per month

towards the cost of their child’s nanny, retroactive to August 1, 2017. The Order stipulated that in the event the Respondent ceased to employ the nanny or changed to another form of child care, the Applicant would pay his proportionate share of the net cost of child care.

Justice Khullar imputed an income of $25,775.00 to the Respondent. [ 3 ] The Applicant says (and this does not appear to be contested) that Justice Khullar’s Order with respect to the Applicant’s payment of nanny expenses was granted on the basis that the Respondent would be resuming full-time employment following her return to Calgary. [ 4 ] The Applicant asserts that the nanny costs in respect of which he has been contributing $900/month pursuant to the Order do not properly constitute child care expenses pursuant to section 7(1) (

a) of the Alberta Child Support Guidelines , Alta Regulation 147/2005 (the “ Guidelines ”) and asks that I disallow them on both a retroactive (going back to January, 2018) and ongoing basis. Essentially, his argument is that: i. The Respondent is not meaningfully employed and consequently, that the nanny expenses are not child care expenses incurred as a result of employment ; ii. The total cost of the nanny expenses is not reasonable in relation to the parties’ incomes given the Respondent’s reported income for the years 2018-2020; and that iii.

The nanny expenses were not incurred by the Respondent and therefore cannot be said to be the Respondent’s own claimable expenses towards which the Applicant should contribute. [ 5 ] The Applicant further asks that I impute income to the Respondent pursuant to

section 19 of the Guidelines . [ 6 ] I will deal with these issues as follows: i. Are the nanny expenses proper

section 7 expenses? ii. What should the Respondent’s income be imputed for the purpose of apportioning

section 7 expenses? A. Are the Nanny Expenses Proper

Section 7 Expenses? [ 7 ] When Justice Khullar granted the Order, the Respondent employed a live-in nanny at a cost of $2,800.00 per month. The nanny quit in June, 2019 and was replaced by a new, live-out nanny at a monthly cost of $1,100.00. [ 8 ] In 2017, the Respondent declared bankruptcy. She enrolled in a two-year program called the “Elite Sherpa Business Mastery Program”, ending in November, 2019.

During this time, she was employed with Primerica, a financial services company that her parents have owned in Calgary for over twenty years. [ 9 ] In her March 2020, Affidavit, the Respondent deposes that she has obtained various Primerica licenses/designations and business courses to increase her knowledge about building a business and that she now holds a Mutual Fund License, a Branch Manager designation and a Life Insurance License. [ 10 ] The Respondent describes her employment duties with Primerica as follows: “Doing business takes place in clients’ homes or at an agreed upon location.

I make various phone calls, plan and conduct meetings, researching funds and fund companies, provide training, take training, attend seminars and weekly team meetings, and follow up with kitchen table appointments and getting signatures daily. I also have branch manager duties at our office.” [ 11 ] In her Affidavit sworn in March 2020, the Respondent provides a sample weekly schedule: a.

Monday: policy review 6:00 – 7:00 am, 8:30 am – 10:00 am conference call hosted by my close friend that earns 1.2 million per year. 11:30 am appt with client, 1:00 office mentorship, 7:00 pm client apt. and prospectus review. 9:00 pm office

summary and review of day and plan for tomorrow. b. Tuesday: office updates, FNA review and printing 7:00 – 8:00 am. I leave for an appointment at 12:00 – 5:30 pm, set appointments with clients and ask for referrals, calculate options and different strategies for prospective clients in various scenarios 6:00 – 7:00 pm, 8:00 – 10:00 pm weekly office training. c.

Wednesday: 12:00 – 5:00 pm studying funds and researching performance, completing, logging into referral list and contacting them, updating FNA analysis for clients, 5:00 – 7:00 pm office printing, follow up phone calls, collaborating with mentor to review policies, church from 8:00 – 9:00 pm. d. Thursday: 4:00 – 8:30 pm prospecting and setting schedules with clients, follow up phone calls. e. Friday: Seminar 8:00 – 5:00 pm, appt with client from 8:00 – 10:00 pm 10:00 pm production conference call. f.

Saturday: office conference 8:00 – 9:00 am, lunch meeting with weekend client, 1:30 – 7:00 pm for research and marketing. g. Sunday: Church 10:30 – 11:30 am, hockey 2:00 – 3:00 pm Church 4:00 – 5:00 pm, 6:00 pm – 8:00 pm office weekly meeting. [ 12 ] The Respondent says that this work is not done at home and is impossible to do with three young children (the parties’ child and additionally two foster children).

The Respondent emphasizes that her job duties with Primerica require flexibility, particularly during evenings and weekends, and that it is cheaper to employ a nanny at a monthly flat rate than an ad hoc babysitter.

[ 13 ] The Respondent also says that her foster children require urgent hospitalization from time to time ranging from overnight to weeks in the ICU and that child care is therefore needed for the parties’ child during these periods when she is less available. [ 14 ] In 2021, the Respondent became a licensed branch manager for Primerica which she claims brings additional responsibilities and hours of work.

In March, 2021, she enrolled in a Medical Office Assistant/Unit Clerk diploma program which will require her to attend fulltime study until June 18, 2021, followed by a practicum. [ 15 ] The Respondent’s line 150 income for the years 2018, 2019 and 2020 is $2,692.00, $2,312.00, and $7,796.00, respectively. She says that the income she earns from Primerica is in the form of commissions and trailing fees. [ 16 ] She also earns income as a foster parent to two children.

The Respondent says that she receives monthly compensation of $1,288.00 per foster child which she says is tax-free and should not count towards a determination of her Guideline income. She pays $800.00 per month for child care in respect of the foster children. [ 17 ] The Respondent claims that her nanny expenses for the years 2018, 2019, and 2020 are $33,053.00, $15,823.00 and $13,200.00, respectively. [ 18 ] The Respondent says that her nanny expenses are properly claimable child care expenses incurred as a result of her employment, education or training for her employment pursuant to section 7(1) (

a) of the Guidelines . [ 19 ] Pursuant to section 7(1) (

a) of the Guidelines , the Respondent bears the onus of establishing that special expenses paid on behalf of the parties’ child are both: (

i) necessary in relation to the child’s best interests; and (ii) are reasonable in relations to the means of the parents and those of the child and to the family’s spending patterns prior to the separation (see, for example, FJN v JK , 2019 ABCA 305 at para 75 ). [ 20 ] In my view, the Respondent has not discharged her burden of proving that her child’s nanny expenses are a claimable special expense pursuant to

section 7 of the Guidelines . [ 21 ] I am not satisfied that the Respondent’s child care costs have been incurred as a result of her employment, education, or training for her employment. Indeed, I find it difficult to discern that she is meaningfully engaged in any real employment, education or training, designed to afford her a living at all. I have come to conclude, as the Applicant has argued, that the Respondent’s weekly activities should more properly be characterized as in the nature of a lifestyle or hobby rather than as meaningful employment that would support her and her children. [ 22 ] The Respondent’s weekly sample

schedule lists activities such as “office mentorship”, “prospective review”, “summary and review of day and plan for tomorrow”, “office updates” “FNA printing”, “calculate options and different strategies for prospective clients in various scenarios”, “studying funds and researching performance, completing, logging into referral list and contacting them”, “office printing” “research and marketing”, “production conference call”, and “weekly office meeting”.

In her Affidavit sworn in March 2021, the Respondent deposes that her new role as Alternative Branch Manager for Primerica requires her to review all documents and on the job training. [ 23 ] It is reasonable to expect that the Respondent’s work schedule, which estimates that she is working over 50 hours per week (excluding her attendance to church and sporting activities) would bear some fruit in terms of income.

But despite the several courses that she has taken in the field of business development, her various licenses and designations, her long association with Primerica and her having assumed the position of Alternative Branch Manager for Primerica, her incomes for each of the years of 2018-2020 can at best be described as nominal and has hardly seen any growth over this same time period. [ 24 ] As a parent, the Respondent has an obligation to obtain employment that would support herself and the parties’ child. It may not be the employment of her choice, and it may have to be that she finds a job outside of Primerica.

She is clearly capable of finding such employment based on her skills and experience given that she was previously employed by CNRL at a yearly salary of $160,000.00. She has not yet, as far as I can tell, done so. She will hopefully find such a job given that she is currently embarking on her training to become a medical office assistant. [ 25 ] Apart from employment, I have no evidence that the nanny costs were incurred as a result of the other grounds included in section 7(1) of the Guidelines for which child care costs may be claimed: illness, disability or education or training for employment.

Consequently, I cannot conclude that the nanny expenses, are necessary in relation to the best interests of the parties’ child. To the contrary, employing a nanny to provide child care for no legitimate reason detracted from the time the Respondent engaged directly in the parenting of the parties’ child. [ 26 ] While I accept that the nanny expenses may have been reasonable when the parties were together and each was employed (when the Respondent was earning an income of $160,000.00), the parties’ financial situation changed dramatically when the Respondent was laid off in 2016.

I do not find that the costs which the Respondent are seeking for child care expense are reasonable given the: (1) parties’ current financial means; (2) access costs borne by the Applicant to visit the child in Calgary; and

(3) Respondent’s limited financial means, which means that the child care costs are disproportionately being borne by the Applicant. [ 27 ] Further, given the Respondent’s limited financial means, it is obvious that she did not actually incur the nanny expenses for which the Applicant has been, in large measure, paying. [ 28 ] In her March 2020, Affidavit, the Respondent deposes that she cashed out various investments to make ends meet.

However, I have no details about what the cash-out value of these investments were, how they were spent to meet the needs of the Respondent and the parties’ child and if they were even put towards the child’s nanny expenses. [ 29 ] The Respondent also deposes that she has received gifts from her parents and family although no further details are provided. I find that the only reasonable explanation is that the child’s nanny expenses were paid for by someone other than the Respondent, be it

parents or family. Consequently, these expenses do not constitute claimable

section 7 expenses in respect of which the Applicant can reasonably be expected to contribute (see for example, Battershill v Battershill , 2007 ABQB 53 at para 39 ). [ 30 ] There are several additional points to make. [ 31 ] First, the Respondent says that she requires a nanny during those periods in which her foster care children require hospitalization, which can occur unexpectedly.

However, I do not have any details regarding the frequency of these hospitalizations, what the requirements for child care during these periods of time are, and whether there are more reasonably priced alternatives to meet these needs than the cost of a full-time nanny. Consequently, I decline to find that the Respondent’s foster children justify the expenses of a nanny as claimable

section 7 expenses. [ 32 ] Second, the parties’ child will enroll as a grade two student in the Buchanan school. The school has a before and after school care program run by Children Come First on Monday to Friday, with drop-offs commencing at 7:00 am with pick-ups up to 6:00 pm. The cost of the program (based on the Respondent’s current income) is $450.00 per month with the Respondent being eligible for a childcare subsidy of $366.00 per month.

It is more than likely that this program, rather than the cost of a full-time nanny, will provide the necessary day care the Respondent requires at a cost that is affordable given the parties’ joint financial circumstances. [ 33 ] Finally, the Respondent asserts that it would be unfair to order the Respondent to reimburse the Applicant for nanny costs retroactively given that Justice Khullar determined what the Applicant’s monthly contribution should be and the Respondent relied upon the terms of the Order. I disagree. Either the nanny costs are legitimately claimable

section 7 expenses or they are not. As the Applicant argues, Justice Khullar granted the Order on the basis that the Respondent was returning to full time employment in respect of which

section 7 child care special expenses were properly claimable. I do not interpret Justice Khullar to have granted the Respondent an unqualified entitlement to receive the Applicant’s contributions towards nanny costs without having to substantiate those costs as properly claimable

section 7 expenses. [ 34 ] Given the age of the parties’ child, the issue of ongoing

section 7 expenses may become a significant issue that requires periodic review. With a view to avoiding further costly and time- consuming proceedings, the parties may wish to consider jointly retaining a Parenting Coordinator or arbitrator with binding authority to resolve disputes regarding

section 7 expenses. Conclusions Regarding Retroactive

Section 7 Special Expenses [ 35 ] In the result, I find as follows: i. The Applicant’s obligation to pay the Respondent the sum of $900 per month towards the cost of the nanny pursuant to clause 7 of Justice Khullar’s Order is terminated; ii. The child’s nanny expenses commencing January 1, 2018, are not child care expenses that the Respondent incurred as a result of employment, education, or training for her employment and are therefore not claimable

section 7 expenses; iii. Pursuant to clause 8 of Justice Khullar’s Order, the Applicant shall pay his proportionate share of the Respondent’s provable net child care expenses (after allowable subsidies have been deducted) pursuant to

section 7 of the Guidelines ; iv. The Respondent shall reimburse the Applicant his monthly child care payments of $900.00 retroactive to January 1, 2018; v. Unless the parties can agree on what terms the Respondent will provide the Applicant with reimbursement of the nanny expenses, the parties shall, within 7 days from the date of this decision, provide me with written submissions not exceeding 3 pages plus authorities as to how the reimbursement of these expenses should be dealt with. B. What Should the Respondent’s Income be Imputed to be for the Purpose of Apportioning

Section 7 Expenses? [ 36 ] Initially, the Applicant argued that I should impute an income to the Respondent of $80,000.00 although no substantiation was provided that would allow me to do so. However, the parties have subsequently agreed that an income should be imputed to the Respondent of $37,000.00. [ 37 ] While I would have been prepared to impute a higher income to the Respondent considering the financial assistance she has received from her parents and family pursuant to

section 19 of the Guidelines , I accept the parties’ joint submissions. [ 38 ] That being said, I expect that the Respondent’s income will increase over the coming years, particularly as she completes her medical office assistant practicum and looks for full time employment. There will therefore need to be a further adjustment to determine what the Respondent’s income should be considering her actual earnings and the amount of financial assistance she receives.

Disposition [ 39 ] The Applicant’s obligation to pay the Respondent the sum of $900 per month towards the cost of the nanny pursuant to clause 7 of Justice Khullar’s Order is terminated. [ 40 ] The child’s nanny expenses commencing January 1, 2018, are not child care expenses that the Respondent incurred as a result of employment, education, or training for her employment and are therefore not claimable

section 7 expenses.

[ 41 ] Pursuant to clause 8 of Justice Khullar’s Order, the Applicant shall pay his proportionate share of the Respondent’s provable net child care expenses (after allowable subsidies have been deducted) pursuant to

section 7 of the Guidelines . [ 42 ] The Respondent shall reimburse the Applicant his monthly child care payments of $900.00 retroactive to January 1, 2018. [ 43 ] Unless the parties can agree on what terms the Respondent will provide the Applicant with reimbursement of the nanny expenses, the parties shall, within 7 days from the date of this decision, provide me with written submissions not exceeding 3 pages plus authorities as to how the reimbursement of these expenses should be dealt with. [ 44 ] Each of the parties shall also, within 7 days from the date of this decision, provide me with submissions on costs, not exceeding 3 pages plus authorities.

Heard on the 20 th day of May, 2021 with the parties providing additional written submissions. Dated at the City of Calgary, Alberta this 17 th day of June, 2021. O.P. Malik J.C.Q.B.A. Appearances: Sandra J. Hildebrand Q.C. for the Applicant, Charles Stephen Umperville Darryl A. Aarbo Q.C. for the Respondent, Cindy Vanberg _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice O.P. Malik _______________________________________________________ In both paras 19 and 20, the word “Applicant” has been replaced with the word “Respondent”.

In para 26, the word “the” after (1) has been removed.