Titus v Wells, 2021 ABQB 483

Court of Queen’s Bench of Alberta Citation: Titus v Wells, 2021 ABQB 483 Date: 20210623 Docket: FL03 26628 Registry: Edmonton Between: Rick Wayne Titus Plaintiff - and - Amy Christine Michele Wells (formerly Holmes) Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Nature of the Application [ 1 ] Mr.

Titus applies under the Interjurisdictional Support Orders Act for a retroactive variation of his s 3 and s 7 child support and a corresponding reduction in the amount of the accumulated arrears. [ 2 ] Ms. Wells applies to re-establish their daughter’s status as a dependent child entitled to support while she attends a post- secondary educational institution. Background [ 3 ] The parties had one child, H, on February 25, 2000, while they were in a common-law relationship. [ 4 ] Mr. Titus lives in Ontario. Ms. Wells lives in Edmonton. H, now age 21, lives with Ms.

Wells. [ 5 ] This matter has a long history, as evidenced by the number of court orders issued by and attendances before this Court:

• June 3, 2002 Order (the “Belzil Order”), pursuant to which Mr. Titus was found to have an annual income of $58,300 and was ordered to pay $498 in s 3 child support, plus $103 in childcare expenses. • August 15, 2002 Order, pursuant to which Mr. Titus was ordered to pay $210 per month for March 2001 to December 2001; $210 per month, plus $85 per month for s 7 expenses from January to February 2002; and $498, plus $103 for s 7 expenses from March to May 2002, whereupon the Belzil Order would govern. • November 22, 2010 Order (the “Sanderman Order”), pursuant to which Mr.

Titus was imputed an annual income of $40,000 and ordered to pay $331 a month s 3 child support and $51.80 for his share of unspecified s 7 expenses. Mr. Titus’ arrears were also reduced by approximately $20,000, leaving a balance of approximately $29,000 in Alberta arrears (calculated in Ontario to closer to $31,000 in arrears). • June 27, 2012 Order, wherein Justice Macklin dismissed Mr. Titus’ October 2011 Application for a further reduction and an ongoing variation because Mr. Titus had failed to provide adequate disclosure. Justice Macklin gave Mr.

Titus leave to apply to reduce his arrears post- November 2010 on condition that he provide a long list of outstanding disclosure. • September 30, 2020 Order, in which Mr. Titus’ Application for a retroactive variation of child support was adjourned because of incomplete disclosure. Justice Loparco directed Mr. Titus to provide complete records back to the date of the Sanderman Order. • An appearance on April 14, 2021, which focused largely on the issue of alleged alienation of H by Ms. Wells.

In his Order, Justice Lee permitted the parties to provide evidence regarding the issue of alienation and further information regarding H’s post-secondary education plan. • The parties then appeared before me on May 26 to argue their respective positions. On the date of that appearance, Mr. Titus was approximately $33,000 in arrears according to the records of Alberta Maintenance Enforcement. Mr.

Titus provided an Ontario FRO Statement as part of his May 18, 2021 Affidavit and as of April 29, 2021 he was $34,182.79 in arrears. [ 6 ] Alberta Maintenance Enforcement and Ontario FRO ceased enforcing payments in June 2018, when H completed high school at the age of 18. Since January of 2019, Mr. Titus has been making payments of approximately $385 per month towards the arrears. [ 7 ] Mr. Titus has provided income tax information and notices of assessment from 2010 to 2019. He has not provided his 2020 tax return, but did provide a T4 slip from UPS, showing a 2020 income of $34,724.63.

In addition, he provided pay stubs for the current year, the last one for the period ending March 6, 2021. If the pay stub information to that date is annualized, it results in an estimated 2021 income of approximately $30,000. Mr. Titus advised that he expects to earn $34,000 in 2021. In 2019, Mr. Titus’ income was $31,452.94; in 2018, it was $20,264.55; and in 2017, it was $6,390. [ 8 ] Ms.

Wells’ 2017 income was $57,107; her 2018 income was $60,074; her 2019 income was $59,206; her T4 slip for 2020 indicates her income was $51,023.50; and she indicated that she expects to earn approximately $50,000 in 2021. [ 9 ] Following high school, H enrolled in post-secondary education. At times she has withdrawn; other times she has attended full-time. Her plan is to continue taking three classes per semester (which constitutes full-time attendance), expecting to graduate in 2024. She has worked full-time throughout her attendance at the post-secondary institution.

Her 2019 income was $26,780 and she received $1,800 in RESPs. Her 2020 income was $40,336. Her estimated 2021 income is $48,390. Position of the Parties Position of Mr. Titus [ 10 ] Mr. Titus seeks a recalculation of his child support obligation retroactive to the date of the Sanderman Order, based upon his actual income as recently disclosed. He also seeks a further reduction of 50% on the basis of hardship.

His hardship claim is based upon the fact that he has two other children and he is making voluntary payments of approximately $400 per month to the mother of those children. [ 11 ] On the basis of the above, Mr. Titus submits that the recalculation would result in a reduction of the arrears to approximately $16,000. Reducing that by 50% would leave arrears of approximately $8,000. He proposes to pay off those arrears by monthly payments of $150, provided that he has no ongoing support obligation in relation to H. [ 12 ] Mr. Titus opposes Ms.

Wells’ request that H be considered a dependent entitled to ongoing support during the period she is attending a post-secondary institution. She works full-time while attending university. In addition, he submits that Ms. Wells has alienated H from him and prevented a relationship between H and himself since she was approximately 4 or 5 years old. As a result, H has rejected him and refuses to re-establish a relationship with him. Position of Ms. Wells [ 13 ] Ms. Wells submits that, even though Mr. Titus’ arrears were significantly reduced in 2010, he still failed to pay his court ordered support.

She submits that Mr. Titus is using his other children as an excuse not to pay the arrears. As a result, it has been up to H to pay her own way, something Ms. Wells submits ought not to have been H’s responsibility. Ms. Wells submits that Mr. Titus ought not to receive a further reduction in the arrears. [ 14 ] H supports her mother’s position, confirming at the Application that Mr. Titus’ behaviour is the reason why there is no

relationship with her. She advised the Court that Mr. Titus rarely called her and, when he did, she was uncomfortable because she did not understand why he had left and why she did not have a father in her life. She felt that she received no support from him in any way. [ 15 ] H confirmed that she does not intend to stop working full-time even if Mr. Titus provides support to her. Analysis Mr. Titus’ Application for a Recalculation/Reduction [ 16 ] Mr. Titus appears to interpret Justice Macklin’s 2012 Order in relation to Mr.

Titus’ October 2011 Application as confirmation that he remains entitled to a retroactive recalculation back to November 2010. I doubt that Justice Macklin would have expected that Mr. Titus, having been ordered to provide outstanding disclosure in connection with the 2011 Application, would then wait a further eight years before providing disclosure (and then only after he had been ordered to provide it again), before filing this Application in March of 2020. [ 17 ] When I asked counsel for Mr. Titus about the implications of the DBS line of case authorities and their implications for Mr.

Titus’ current Application, counsel indicated his view that the DBS line of authorities did not apply to Mr. Titus’ hardship claim. While he did not state that it did apply to the request for a retroactive adjustment, he did not take a contrary position. [ 18 ] I find that this is a classic DBS situation and that the principles established therein and subsequently reaffirmed by many courts (most recently, the Supreme Court of Canada in Colucci v Colucci , 2021 SCC 24 ), have application in this case.

Having appeared before Justice Sanderman in 2010 and having Justice Macklin direct the required disclosure (that Mr. Titus ought to have known about, given his prior appearance before Justice Sanderman), Mr. Titus failed to provide any disclosure to Ms. Wells or to take any steps for approximately eight years. Although Mr. Titus’ line 150 income was lower in some years, I note that in 2013, 2014 and 2015, it was quite a bit higher than the $40,000 that Justice Sanderman had imputed to him and which continued to be used because of Mr. Titus’ failure to disclose his income. [ 19 ] Mr.

Titus has not provided any explanation as to why he failed to take any steps between Justice Macklin’s Order and the filing of this Application. He had to have been aware of his ongoing obligation to provide disclosure and to pay child support in accordance with the guidelines. Having failed to provide any acceptable explanation as to why it was not possible for him to fulfill his legal obligations, I conclude that the principles established in DBS preclude the retroactive adjustment sought by Mr. Titus. Any recalculation is limited to the three year period proceeding the giving of effective notice.

In this case, effective notice was also the date of formal notice, which was when Ms. Wells was served on June 23/24, 2020 by the Friend of the Court. [ 20 ] Accordingly, in this case, any recalculation is limited to the time period commencing July 1, 2017. MEP ceased charging child support in June 2018. By my calculation, the overcharge, based on Mr. Titus’ 2017 income, calculated from July 1, is $1,986. The over-calculation based on his 2018 income is $1,008. There will also be a total reduction in the s. 7 expenses from July 1, 2017.

As support was last enforced June 2018, there will be 12 months of overcharged s. 7s at a rate of $51.80/month for a total of $621.60. The total amount overcharged from July 1, 2017 onwards is therefore $3,615.60. Mr. Titus is entitled to a reduction in arrears in the amount of $3,615.60, based on his actual income during the relevant time period. [ 21 ] While I agree that the principles in DBS do not apply to Mr. Titus’ hardship claim, I have concluded that Mr. Titus has failed to establish his entitlement on the basis of hardship. Mr.

Titus was living with his sister for a period of time, but at the Application indicated that he currently lives on his own. Limited information was provided regarding his current financial circumstances, other than his current income, that he has minimal assets, and that he makes voluntary payments of approximately $400 per month in respect of his two younger children. I note that, given Mr. Titus’ current income, $400 per month is less than the child support guidelines require in respect of a paying parent who is resident in Ontario.

He was apparently able to provide a retainer of $3,955 to counsel in connection with this Application. [ 22 ] I find that Mr. Titus has not provided evidence to establish a hardship claim. He is, therefore, not entitled to a further reduction in arrears on that basis. Ms. Wells’ Application for Ongoing Support for H during her period of Post- Secondary Education [ 23 ] Much of the material focused on Mr. Titus’ concern that H has been alienated from him by Ms.

Wells and that the lack of any relationship between them should weigh against him having any continuing financial obligation to H during her years of post-secondary education. I do not find it necessary to deal at length with this argument, as I have concluded that this issue can be disposed of entirely on another basis. [ 24 ] In 2019, H made almost as much as Mr. Titus; in 2020, she made more than her father, and it is anticipated that she will make quite a bit more than him in 2021. While H was entitled to and ought to have received Mr.

Titus’ full support before she began to work full-time, it is clear that she is now in a position to support herself, including the payment of her minimal tuition fees and her normal living expenses. H has also indicated her intention to work full-time whether or not she is enrolled in university. In these circumstances, I conclude that Mr. Titus’ obligation to provide child support to H ceased upon her graduation from high school in June of 2018. Conclusions [ 25 ] In the result:

1. Mr. Titus’ child support arrears will be reduced by the sum of $3,615.60. He shall continue to make payments against the remaining arrears in the amount of $385 per month. 2. Ms. Wells is entitled to costs in respect of Mr. Titus’ Application. Mr. Titus is entitled to costs in respect of Ms. Wells’ Application. In the result, I conclude that neither party is entitled to costs and each party will be required to bear their own costs in connection with these cross-applications. Heard on the 26 th day of May, 2021. Dated at the City of Edmonton, Alberta this 23 rd day of June, 2021. D.L. Shelley J.C.Q.B.A.

Appearances: Mr. Philbert Counsel for Mr. Titus Ms. Wells Self-Represented Ms. Hillenbrand Friend of the Court on behalf of Minister of Justice and Solicitor General