Murray v Murray, 2021 ABQB 539

Court of Queen’s Bench of Alberta Citation: Murray v Murray, 2021 ABQB 539 Date: 20210714 Docket: 4810 022684 Registry: Red Deer Between: Leanne Murray Plaintiff (Respondent) - and - Clint Murray Defendant (Applicant) _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice S.N. Mandziuk _______________________________________________________ Introduction [ 1 ] The Defendant (Applicant) seeks an order varying child and spousal support, retroactively and prospectively. The Plaintiff (Respondent) opposes the application.

The application came before me in Family Law Special Chambers. [ 2 ] I will refer to the Defendant (Applicant) as the Father and the Plaintiff (Respondent) as the Mother and collectively as the Parties in these Reasons for Decision. Background

Corollary Relief Terms [ 3 ] The Parties, who are both presently 50 years old, began living together in June, 1994. They married in February, 1999 and have three children together. I will identify the children by their initials: CSM (age 16) and twins LJM and CDM (age 13). [ 4 ] The Parties separated in March, 2011 and entered into Minutes of Settlement on November 22, 2012.

They reached their settlement agreement through the collaborative family law process. [ 5 ] A Divorce Judgment and Corollary Relief Order was granted on February 2, 2013 (Divorce Judgment), which contains the following relevant corollary relief terms: 1. The primary residence of the children was to be with the Mother with a reasonable and generous parenting arrangement in favour of the Father. 2. The Parties’ annual incomes were specified in the Divorce Judgment as $190,000 for the Father and $48,000 for the Mother (comprised entirely of spousal support payable by the Father). 3.

The Father agreed to pay spousal support in the sum of $4,000 per month until a quantum and duration review date of August 1, 2014. After that date, and pending the review, spousal support was to continue on a “without prejudice basis from the date of review until the Parties reach an agreement or obtain a Court Order at a rate of $3,238 per month commencing August 1, 2014.” 4. The resulting

section 3 child support based upon the Father’s income of $190,000 was $3,424 per month.

Section 7 expenses were apportioned between the Parties based on their relative incomes. [ 6 ] The Mother did not work outside of the home during the marriage; that was also her situation at the time of the divorce. [ 7 ] The Father’s evidence is that at the time of the divorce it was expected that the Mother would retrain and re-enter the workforce. [ 8 ] Spousal support was reduced to $3,238 per month in accordance with the terms of the Divorce Judgment. Since that automatic reduction occurred there have been no court orders or formal agreements between the Parties that vary the terms of the Divorce Judgment.

Subsequent Events and Current Circumstances The Children [ 9 ] Since the Parties separated, the children have primarily resided with the Mother, with some interludes where they mainly lived with the Father. [ 10 ] The Father’s evidence is that the children (particularly CSM) have spent more time with him in recent years. He states that CSM primarily lived with him after September, 2018, during the entire months of October, November and December, 2019, and for substantial periods of time in 2020. These time periods are supported by the Father’s evidence, the Mother disputes it.

In any event, this does not have to be resolved in this application. [ 11 ] As living arrangements and financial dependencies shifted, the Parties, between themselves, made adjustments to the amount of child support payable. Adjustments of child support for those intervals are not in issue. The Mother’s Situation [ 12 ] The Mother lives about 15 kms from Innisfail on a rented acreage. She presently earns some income from selling eggs and crafts. She is trained as a community support worker and has had some casual work as an educational assistant.

Unfortunately, the COVID-19 Pandemic eliminated her hours. [ 13 ] The Mother plans to complete driver education training and earn some income in that field at some point. She has few assets. She has sold some assets and has borrowed money from family to pay her living expenses. The Father’s Situation [ 14 ] The Father has worked in the oil and gas industry for his entire adult working life.

He is the sole director and shareholder of 1814333 Alberta Ltd. (the “Corporation”), which contracts with oil companies and through which he provides consulting services. [ 15 ] The Father was living in Innisfail to be closer to the children. However, since 2017, he has been living with his parents. He had to sell his house in Innisfail because of financial difficulties he experienced after being out of work for a good portion of 2016. The Father entered into a consumer proposal in 2017 to deal with mounting debts.

The proceeds from the house sale were used to pay arrears of child and spousal support that had accumulated at that time. [ 16 ] Because of the decline in the oil industry in Alberta, the Father’s work situation changed significantly at the end of September, 2019; this is not disputed by the Mother. He lost a long-term contract, had minimal income for the balance of 2019 and then worked sporadically in 2020, all in the oil and gas field. In 2020, he also received the Canadian Emergency Relief Benefit (CERB). The Father has relatively limited assets and is in debt.

[ 17 ] The Father claims he owes money to his parents and cannot pay rent, though he includes the prospective sum of $1,000 on account of rent in his budget. The money he has borrowed has been used to cover business expenses. A payment

schedule that appears to have an interest component is included in the evidence. [ 18 ] Since Fall, 2019, arrears have accumulated in both child and spousal support under the subsisting corollary relief provisions of the Divorce Judgment due to the Father’s reduction in income and his inability to pay the court-ordered amounts.

The Present Proceedings [ 19 ] The Minutes of Settlement required the Parties to participate in a collaborative process or engage in mediation to resolve any disputes prior to proceeding to court. [ 20 ] There are two occasions in the evidence where the Father attempted to resolve matters out of court prior to the present proceedings: • In early 2015, the Father retained a lawyer to contact the Mother about negotiating an addendum to the Minutes of Settlement to end spousal support in March, 2019, which would have been the 8-year anniversary of the commencement of the support payment.

The Father says that the Mother refused to sign the addendum. • In June, 2020, the Father (through his lawyer) contacted the Mother to see if she would enter into a collaborative process to address support issues. The Mother said she was not going to retain counsel so this could not proceed.

Mediation was suggested, but the Father says that the Mother refused. [ 21 ] The Mother registered the Divorce Judgment with the Director of Maintenance Enforcement in June, 2020. [ 22 ] After the Father launched the present application on October 8, 2020, Bast J granted an order on October 30, 2020 staying enforcement of support arrears, pending this application, contingent on the Father paying $1,000 per month. [ 23 ] Subsequently, on December 2, 2020, Bast J ordered that the Father pay, on an interim without prejudice basis, $1,000 per month in s 3 child support and continued the stay, again with the $1,000 per month payment requirement. [ 24 ] After the application was heard by me, the Parties entered into a Consent Order that requires the Father to pay the Mother $2,000 per month in spousal support on an interim without prejudice basis, commencing April 15, 2021, pending this decision.

There is a stay of enforcement in place as long as he pays that amount. Issues [ 25 ] The Father applies to vary child support retroactive to October 1, 2019 to accord with his actual income and to vary the spousal support order by terminating his obligation effective September 1, 2019. Alternatively, he seeks a reduction in the amount of spousal support payable effective October 1, 2019 and a declaration of a set end date for spousal support. [ 26 ] I will deal with the questions raised by the Father’s application in the following order: A.

Has there been a material change in circumstances since the granting of the Divorce Judgment to merit a variation? B. If so, what are the Parties’ respective incomes for 2019, 2020 and 2021 for support purposes? C. Should there be a retroactive reduction to the amount of child support payable? D. Should spousal support continue to be paid on the basis set out in the Divorce Judgment? If not, what is the appropriate quantum and duration?

Materials Before the Court [ 27 ] The materials consist of: • The Father’s Affidavit and Disclosure Statement filed October 8, 2020; • The Mother’s Affidavit and Disclosure Statement filed November 20, 2020, and Supplementary Disclosure Statement filed December 17, 2020; • The Father’s Reply Affidavit filed November 26, 2020 and Supplemental Affidavit filed December 18, 2020; • The Mother’s Supplementary Affidavit filed February 3, 2021 and the Father’s Update Affidavit filed January 27, 2021; • The Father’s Reply Affidavit filed March 3, 2021; • Concise letters filed by the Parties in accordance with Practice Note 2, including the Father’s Amended Concise Letter dated March 22, 2021; and • Copies of relevant Court Orders, income and support calculations.

[ 28 ] The decision must be made on the evidence before the Court. [ 29 ] This is a civil matter. The Supreme Court of Canada in FH v McDougall , 2008 SCC 53 held that in civil cases the standard of proof is proof on a balance of probabilities (para 40) and that “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” ( para 46). Common sense has a role to play.

In the end, the Judge “must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred” (para 49). [ 30 ] I do not have in evidence any transcripts from cross-examination on Affidavit that may have been conducted. Cross- examination in cases like this can be helpful to the trier of fact. Credibility of sworn assertions can be tested. Statements can be challenged. Witnesses can be caught in contradictions. [ 31 ] The Parties take issue with one another’s evidence. I am mindful of cost, both monetary and human, in family law proceedings.

However, the Court’s role in deciding the matters in dispute is made more difficult when bald assertions are made by a party about the other party’s evidence, without that evidence having been tested by time-worn and tested civil litigation tools. [ 32 ] I will now turn to a determination of each of the issues.

Issue A: Has there been a material change in circumstances since the granting of the Divorce Judgment to merit a variation? [ 33 ] For child and spousal support to be varied there must be a material change in circumstances since the Divorce Judgment was granted in 2013. [ 34 ] With respect to child support, the governing

section of the Divorce Act, RSC 1985, c 3 (2 nd Supp ) is s 17(4), which was described in SLF v JWF , 2016 ABQB 635 by Erb J (at para 70): Section 17(4) of the Divorce Act enables a court to make a variation order that increases or decreases payments for child support both retroactively or prospectively if there is a change in circumstances. In LMP v LS , 2011 SCC 64 , the Supreme Court confirmed that under s. 17(4) of the Divorce Act , the test for a “material change” is a change that is substantial, continuing, and “if known at the time, would likely have resulted in a different order”.

A change in the payor’s annual income is generally considered a material change under s. 17(4) of the Divorce Act : Lee v Chung , 2011 BCSC 404 .

See also: Fleury v Fleury , 2009 ABCA 43 at para 27 . [ 35 ] Section 17(4.1) of the Divorce Act requires that before varying a spousal support order, the Court must: satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [ 36 ] The burden rests on the Applicant Father to establish, on a balance of probabilities, that there has been a material change in circumstances: RP v RC , 2011 SCC 65 at para 30 . [ 37 ] The Father argues that his reduced income is a material change in circumstances.

The Mother acknowledges in her Affidavit filed November 20, 2020 that his income has decreased and that his work situation has changed. In her Affidavit she said she is now agreeable to mediating and setting the Father’s child support at $1,599 per month, based upon his 2019 income of $82,800, and reducing spousal support to $1,549 per month, effective October 2019. [ 38 ] The Father’s income at the time of the Divorce Judgment was found to be $190,000.

The Minutes of Settlement indicate that assumed income as well. [ 39 ] In 2019 and 2020, as I will outline below, I have attributed an income to the Father of $111,312 and $60,000 respectively. In 2021, his income is projected to be $102,500. The numbers alone meet the definition of materiality. In 2019, for example, his income significantly less than the amount specified in the Divorce Judgment. [ 40 ] There is no evidence to support a finding of deliberate unemployment or underemployment. The Father has worked in the oil and gas industry for his entire life and has lived through its well-known vagaries.

The COVID-19 Pandemic, which is ongoing, also has affected that industry (and the economy at large) in a profound way. See for example Mraz v Mraz , 20202 ABQB 534 at para 8 where Gates J accepted the Applicant’s employment as a HVAC truck driver in the oil fields had been impacted by the COVID-19 Pandemic. [ 41 ] I find that the change in the Father’s income and employment in 2019 is a material change in circumstances that grounds a variation of child and spousal support. Issue B: What are the Parties’ respective incomes for 2019, 2020 and 2021 for support purposes? The Mother’s Income

[ 42 ] The starting point for the determination of income under the Spousal Support Advisory Guidelines ( SSAG ) i s the definition of income under the Federal Child Support Guidelines, SOR/97-175 (the Guidelines ). [ 43 ] In addition to the spousal support she currently receives, the Mother receives the Canada Child Tax Benefit in the amount of $1,426.98 per month (2020) and a GST rebate or other government payment of $664.95 (2020) every quarter (four times per year). In 2020, the statements for her savings account show multiple payments of $264.25, which appear to be from the Government of Canada, although these payments were not fully explained. [ 44 ]

Section 6.3 of the SSAG advises: Under the with child support formula, included in each spouse’s income are the amounts identified for various child-related government benefits and refundable credits: the Canadian Child Tax Benefit, the National Child Benefit Supplement, the GST credit (including any portion for the children), the refundable medical expense credit, the Child Disability Benefit, and the various provincial benefit and credit schemes. Under the Federal Child Support Guidelines , these benefits and credits are not treated as income for table amount purposes: see note 6 to

Schedule I. [ 45 ] These amounts are automatically calculated and included in the spousal support calculations by the ChildView software. [ 46 ] The Mother’s Concise Letter dated March 12, 2021 indicates that she has limited income from selling eggs and craft items, although no time period or quantum is attributed to this income. She indicated in her Supplemental Affidavit sworn February 3, 2021, that she had one shift as an Educational Assistant. [ 47 ] From June to November 2020 there were numerous Interac e-Transfers into the Mother’s personal chequing account, from several individuals.

She has explained that these e-Transfers were on account of asset sales, including the sale of a dirt bike and motor vehicles. There was also a loan for rent from her sister. [ 48 ] The Mother’s 2019 Notice of Assessment shows total income of $20,164. However, the Father’s evidence was that he paid spousal support to and including September 1, 2019 of $3,238 per month, which if true, should have resulted in an income of $29,142.

I do not have a copy of the Mother’s Notice of Assessment for 2020. [ 49 ] I find it troubling that the Mother reported no income for 2017 in her Income Tax Return despite receiving spousal support in that year totalling $38,856, as evidenced by a receipt signed by her on January 1, 2018. Conversely, these payments are not deducted from the Father’s net income in his 2017 Income Tax Return. [ 50 ] Absent any further evidence, I set the Mother’s income, not including spousal support or Government credits or benefits, at the nominal annual amount of $1,000 in each of 2019 and 2020.

I project it to be $1,000 in 2021. The Father’s Income [ 51 ] As mentioned earlier, the Father earns his income through the Corporation. The Father’s 2019 Income [ 52 ] The Father had the same work arrangement for over 11 years. It ended September 26, 2019. The Father did not work in October, 2019. He had 7 training days in November and December and a hot shot job in December, 2019.

The training and hot shot job provided gross revenue of $8,215.50 (including GST) during November and December, 2019. [ 53 ] The Mother questions the Father’s income calculations and the reasonableness of his business deductions. [ 54 ] The Statement of Income contained in the Corporation’s Financial Statements for the year ended December 31, 2019 (“Statement of Income”) shows gross revenue of $202,111. From this amount, business expenses in the total sum of $103,267.65 were deducted, resulting in net corporate income of $98,844 rounded up.

There were retained earnings of -$11,485 recorded and a dividend of $72,000 was paid out to the Father, grossed up by the accountant to $82,800. The Father’s Line 15000 income was $82,800, reflecting this dividend payout. [ 55 ] Bast J directed an explanation from the Father’s accountant of the Corporation’s business expenses. The accountant has provided a letter dated December 16, 2020 (accountant’s letter). It is in evidence and describes the business expenses and deductions from income. It addresses 2019 corporate expenses.

It does not indicate what percentage of a given expense may include a personal component, for example, the Income Statement shows fuel and oil expenses totalling $4,374.38; however, a portion of this amount may include personal use of the corporate vehicle. [ 56 ] The main use I make of the accountant’s letter – which is short and not overly detailed - is to support the conclusion that some of the deducted business expenses appear to have a personal component. [ 57 ] Expense deductions from corporate income that are allowable under tax legislation are not the final word when it comes to determining income for child support purposes.

The calculation of expenses for the purposes of the Income Tax Act , RSC 1985, c 1 (5th Supp ) reflect tax policy and not issues related to a person’s support obligations: Hauger v Hauger , 2000 ABQB 423 at paras 32 and 33 ; Roseberry v Roseberry , 2015 ABQB 358 at paras 21-22 . For the purpose of assessing a payor’s ability to pay child support, those same deductions may not be reasonable: Wilcox v Snow , 1999 NSCA 163 at para 22 . [ 58 ] While addressed in the context of disclosure requirements, Cunningham v Seveny , 2017 ABCA 4 provides a clear direction

(at para 25): To establish a parent’s income for Guideline purposes, income declared at Line 150 of the disclosing party’s annual tax return may not accurately reflect the value of personal benefits that parent receives from self-employment, a partnership or a corporation controlled by the parent, or over which the parent has more than a 1% interest. Common examples include personal use of corporate vehicles, computers, cellphones, personal benefits associated with travel, entertainment and promotional expenses, and other non-arm’s length expenditures.

A parent whose income is derived from such a source, where the source deducted expenses for income tax purposes that may have resulted in a personal benefit to the parent and, therefore, may be relevant in determining child support obligations, must disclose those deductions.

In addition, if the parent takes the position that those deductions did not result in the parent obtaining a personal benefit, an explanation is required for why those expense deductions (or a part of them) should not be attributed to the parent’s income for child support purposes. [ 59 ] The Guidelines specifically contemplate situations where a party’s income is derived from a closely held corporation, as is the case here.

When a court is of the view that a payor’s income, as recorded in Line 150 (now Line 15000) of their Income Tax Return does not reflect what is actually available to them for the payment of child support, a court can consider all or part of the pre-tax income of the corporation: s 18(1)(a), Guidelines .

As well, amounts paid as salary, wages or fees or other payments to those who are not at arm’s length with the corporation can be added back to the pre-tax income: s 18(2). [ 60 ] Pre-tax corporate income will be assumed to be available to the payor unless evidence is led to the contrary: Hausmann v Klukas , 2009 BCCA 32 . The Court is given discretion under s 18(1) (

a) to attribute all or part of the pre-tax income in order to calculate support obligations under the Guidelines : Miller v Joynt , 2007 ABCA 214 at para 31 [ Miller ] ; Henderson-Jorgensen v Henderson- Jorgensen , 2013 ABCA 328 at para 12 . [ 61 ] Where personal expenses are paid by a corporation, these amounts should be added back to the pre-tax corporate income of the corporation.

This additional pre-tax corporate income would then be considered as income available to the payor for child support purposes. [ 62 ] In Gosse v Sorensen-Gosse , 2011 NLCA 58 , Wells JA said it is more appropriate to treat personal expenses paid by a wholly owned corporation as adjustments to the pre-tax income of the corporation under s 18 of the Guidelines , rather than as an improper deduction of expenses under s 19(1)(g) (para 116). [ 63 ] Here, the Corporation’s pre-tax income in 2019 and 2020 must be adjusted upwards to reflect the personal benefits paid by the Corporation on behalf of the Father. [ 64 ] The Father attached to his Affidavit dated October 7, 2020, as Exhibit “G” (“Exhibit “G”), a

summary of the business expenses deducted from total pre-tax corporate income for the period October, 2019 through to December, 2019. These were later adjusted by the Father for the personal benefit component of his truck payment (total expense $1,280.00 per month), fuel, and cell phone, with 30% of those expenses added back to his income. I accept the Father’s approach for these expenses and will use the same approach for the balance of these three specific expenses claimed during January through to September 2019.

It is not apparent from the Statement of Income which of the claimed expenses includes the truck payment. In contrast, the Income Statements for the years ended December 31, 2017 and 2018 both show vehicle expenses. [ 65 ] The Father’s

summary attached as Exhibit “G” also includes payment of a management fee. However, it is not evident whether this management fee is included in the Statement of Income. In addition, his

summary includes the cost of life insurance ($207.56 per month) and disability insurance ($480.63 per month), but these amounts do not appear to be included in the insurance expense of $4,409.94 reflected in the Statement of Income. [ 66 ] I accept the Father’s evidence that the vehicle insurance ($252.63 per month) and wellhead insurance (approximately $130 per month) are needed for employment.

However, a portion of the vehicle insurance covers his personal use of the vehicle. [ 67 ] In regard to the amortization expense, I accept that he needs a newer and reliable vehicle given the nature of his position and the safety sensitivities that one can infer are inherent in his line of work. However, a portion of the expense is attributable to his personal use of the vehicle. [ 68 ] In reading the accountant’s

summary of expenses, I find that the following vehicle related expenses also have a personal benefit component to them and that 30% of these expenses should be added back to the Corporation’s pre-tax income to determine the income available to the Father for child support purposes: (

a) Advertising and promotion, which the accountant says includes maintenance required to keep the Father’s vehicle “in good visual standing”; (

b) Amortization on the company vehicle; (

c) Repair and maintenance of the company vehicle, which again also supports personal use; and (

d) Vehicle insurance. [ 69 ] The total amount claimed in the Statement of Income for vehicle related expenses, not including truck payments, is $17,558.94. 30% of this amount is $5,267.68. [ 70 ] The rent expense of $7,200 contained in the Statement of Income is highly questionable. The accountant indicates the expense is related to garage space for storage of the corporately owned vehicle. According to the evidence, the Father lives in the home of his parents and he does not pay them rent. See the Father’s Reply Affidavit dated March 1, 2021 at para 5.

The evidence of the Mother is that the Father parks the company truck outside of his parents’ home. The Father did not include this alleged rent expense in the Exhibit

“G” calculations. Irrespective of the fact that the use of the vehicle includes a personal component, I am inclined to add this entire expense back to the pre-tax corporate income. [ 71 ] The total of $12,467.68 should therefore be added back to the Corporation’s pre-tax income on account of the personal component of vehicle-related expenses and the unreasonably claimed rent expense.

This results in pre-tax corporate income being available to the Father for child support purposes of $111,311.50. [ 72 ] In addition, the office supplies and supplies expenses appear high, and I question whether they too include a personal component. The accountant has indicated the supplies expense includes the purchasing of perishable items from Costco for the Father while he is away at work.

However, at the same time he has claimed over $33,000 on account of subsistence while working away from home. [ 73 ] As I am not able to determine with exactitude how much of the corporate expenses includes a personal component, and given the Father’s failure to adequately explain why all of the corporate income was not available to him in 2019, I will exercise my discretion under s 18(1)(

a) of the Guidelines and attribute to the Father in 2019 the entire pre-tax Corporate income reflected in the Statement of Income, being $98,843.82, together with the aforementioned $12,467.68 add-back amount, before addressing retained earnings. [ 74 ] The Mother argues that the Corporation’s retained earnings should be included in the calculation of the Father’s income for support purposes.

The Father’s income calculations show the Corporation had $30,000 in retained earnings in 2018 and ($11,485) in 2019. [ 75 ] The Father contends that retained earnings should not be included in his Guidelines income, citing Miller , where our Court of Appeal concluded it was an error in that case for the judge to calculate Guidelines income using the annual net change in retained earnings as his starting point, rather than the corporation’s pre-tax income (para 27). [ 76 ] In accordance with the guidance of our Court of Appeal, I will use the Corporation’s pre-tax income as the starting point for determining the Father’s income for support purposes, and will also add back to this income the ascertainable $12,467.68 in vehicle- related personal expenses paid for by the Corporation and the unreasonable rent expense deduction.

I attribute an income of $111,312 (rounded up) to the Father in 2019 for support purposes. The Father’s 2020 Income [ 77 ] The Father did not work in January, 2020. [ 78 ] He returned to work on February 5 and worked until April 7, 2020 for Suncor. The employment with Suncor ended during the early stages of the COVID-19 Pandemic. [ 79 ] The Father did not work again until September 2, when he worked in Fort McMurray for 14 days (for Suncor) and then had 5 days of work in Central Alberta.

The Father worked 7 days in October and 9 days in November for Comgen, and 2 days doing training with Suncor (a total of 20 days). [ 80 ] The Corporation’s gross revenue in 2020 was $88,036.44, inclusive of GST and mileage. [ 81 ] From January, 2020 to September 27, 2020 the Corporation’s income was $78,042.25, inclusive of GST. From this amount, the Father claimed corporate expenses totalling $79,236.05 (See Exhibit “G”). Recognizing a personal component, the Father added back 30% of the truck payment, cell phone and fuel expenses.

He also added back a management fee, resulting in total adjustments of $28,801.03. [ 82 ] The Father’s invoices for the period September 28, 2020 to November 30, 2020 total $9,994.19 inclusive of GST and mileage charges. He has not provided a list of the Corporation’s business expenses for this period. However, several of the expenses re-occur monthly. [ 83 ] The Father has also not provided a copy of the Financial Statements for the Corporation for the year ended December 31, 2020.

Assuming they will be included in the list of Operating Expenses on the Statement of Income, 30% of the following additional vehicle-related expenses should be added back to the Corporation’s pre-tax income on account of the personal component of same: (

a) Advertising and promotion, which the accountant said in 2019 included maintenance required to keep the Father’s vehicle “in good visual standing”; (

b) Amortization for the truck; (

c) Repair and maintenance of the vehicle; and (

d) Vehicle insurance. [ 84 ] There may be additional expenses listed in the list of Operating Expenses for the year ended December 31, 2020 that include a personal component. As well, I will not accept any expense on account of rent for storage of the company vehicle. [ 85 ] The Father’s position is that his Guidelines income for 2020 should be set at $50,000, inclusive of the 5 CERB cheques of $2,000 each, for a total of $10,000, that the Father received in 2020. Thus, he is proposing that net self-employment income of $40,000 be attributed to him for support purposes.

This position thus suggests that the Corporation had $48,036.44 in combined legitimate business expenses in 2020, together with mileage charges and GST. [ 86 ] The amount of $914.52 should be added back to the pre-tax corporate income on account of the personal component of the

vehicle insurance expense. [ 87 ] Absent any disclosure, I am inclined to add back to the corporate pre-tax income an additional $3,000 on account of alleged “advertising and promotion expenses,” amortization and the cost of repair and maintenance to the company vehicle. [ 88 ] Although he included them in his calculations in Exhibit “G”, based upon the exhibits attached to his Reply Affidavit dated November 26, 2020, the insurance premiums for his life insurance policy of $207.95 (not $207.56) per month are paid through his personal bank account, not through the corporate bank account. [ 89 ] The Manulife disability insurance premiums are paid through the corporate bank account.

Projected over the course of the calendar year, these total $5,767.56. The Father has not provided any disclosure with respect to this disability insurance, and therefore I cannot determine whether it covers personal income replacement, reimbursement of business expenses or both.

If the disability insurance coverage is solely on account of personal income replacement, arguably the entire amount of the premiums should be added back to the pre-tax corporate income on account of their personal component. [ 90 ] The corporate bank account statements also reflect an additional Cooperators insurance charge of $94.69 per month. [ 91 ] In addition, there appear to be a number of personal expenses being paid out of the corporate bank account including pharmacy purchases, purchases at sporting goods stores, and golf expenses. [ 92 ] There is an assertion by the Mother that the Father was hiding income that he earned by working for a friend, driving trucks.

Other than one hot shot job in November or December of 2019 for Evergreen Energy, which has been disclosed, this is denied by the Father and a satisfactory explanation was provided. [ 93 ] In all the circumstances, I think it is fair and reasonable to attribute pre-tax corporate income of $50,000 to the Father for the year 2020. Inclusive of his CERB benefits, I set his income at $60,000 for support purposes. The Father’s 2021 Income [ 94 ] At the beginning of 2021, the Father earned some income from Suncor.

In January and February, the Corporation received $17,000. [ 95 ] The Father has now obtained employment in the Middle East with the company Apergy Middle East Services. He will be earning US$10,000 per month (approximately $12,500 Cdn). Accommodations, airfare, benefits and other expenses are paid for by his employer. This is a four-month contract. [ 96 ] The Mother argues that the Father’s income determination has to consider the source of his income. [ 97 ] The Father expects his 2021 income to be $67,000.

But that is predicated on the Father not working after the 4-month contract in the Middle East ends in mid-June, 2021 and that he earns no more money for the balance of the year. [ 98 ] This is not realistic. At the same time, it is difficult to predict the future. [ 99 ] I draw the inference that the Father will work a minimum of 5 more months in 2021, with the same revenue he earned in the first two months of 2021. That would give him an additional $42,500, not including legitimate corporate expenses, resulting in total corporate revenue of $59,500.

From this amount, I am prepared to allow a deduction on account of legitimate corporate expenses of $24,000, resulting in net pre-tax corporate income of $35,500. I exercise my discretion and attribute all of the pre-tax corporate income to the Father under s 18(1)(

a) of the Guidelines . [ 100 ] The Father’s income for 2021 is projected to be $102,500 ($67,000 + $35,500) and I set his income at that amount for support purposes in 2021. Issue C: Should there be a retroactive reduction of the amount of child support payable? [ 101 ] The Father applies to vary child support retroactive to October 1, 2019 to accord with his actual income since that time. His annual income has materially decreased since the date of the Divorce Judgment. [ 102 ] Child support under the Divorce Act is tied to the payor parent’s income. Income tends to fluctuate.

As a result, a child support order or agreement reflects a snapshot in time and is never final: Brear v Brear , 2019 ABCA 419 at para 20 ; Colucci v Colucci , 2021 SCC 24 [ Colucci ] . As pointed out by our Court of Appeal in Henderson v Micetich , 2021 ABCA 103 , “Parents know that guideline income is to be assessed on an annual basis” (para 37). [ 103 ] The Supreme Court of Canada very recently considered the appropriate framework for determining applications to retroactively decrease the amount of child support payable under s 17 of the Divorce Act in Colucci .

Delivering the judgment for the Court, Martin J recognized at para 1: The amount of child support payable varies based on the payor parent’s income, and income often fluctuates. As a result, applications to retroactively vary support are a common occurrence in courtrooms across the country. In an ideal world, when parents work together in the best interests of their children, they will provide full and accurate income information every year and recalculate the proper amount of support owing. When that does not occur, s. 17 of the Divorce Act allows a parent to ask the court to vary an existing order

retroactively to align with the payor’s actual income for the relevant period. [ 104 ] As Martin J explained at para 5, a payor parent who has established a past decrease in income is not automatically entitled to a retroactive decrease of child support dating back to the date of the decrease in his or her income. The overall decision is a discretionary one.

Martin J continued at paras 6 and 7: As I will explain further, the court’s discretion is structured by a presumption in favour of retroactively decreasing support to the date the payor gave the recipient effective notice of an intention to seek a downward adjustment of the child support obligation, up to three years before formal notice is given of an application to vary under s. 17 .

This presumption is triggered as soon as a past material change in circumstances is established — it is no longer necessary to first ask whether retroactive relief is generally appropriate before moving to the question of how far back retroactive relief should extend. Discretionary factors parallel to those considered in D.B.S. may justify departing from the presumptive date in favour of a longer or shorter period of retroactivity. For consistency, this presumption-based approach should be mirrored where the recipient seeks a retroactive increase.

Once a past material change in income is established, a presumption is triggered in favour of retroactively increasing support to a certain date, with the D.B.S. factors guiding the court’s exercise of discretion in deciding whether to depart from that date. Given the informational asymmetry between the Parties, a payor’s success in obtaining a retroactive decrease will depend largely on the payor’s financial disclosure and communication. Indeed, effective notice in this context is only “effective” when there has been disclosure of the changed financial circumstances.

At the stage of considering the D.B.S. factors, disclosure will once again be a key consideration in assessing whether the payor’s conduct operates to shorten or lengthen the presumptive period of retroactivity. [ 105 ] Having found a material change in the Father’s income, the presumption is triggered. I am prepared to order a downward adjustment of the Father’s child support obligation, retroactive to October 1, 2019. [ 106 ] Related to child support, the Mother refers in her materials to certain s 7 expenses that she is claiming. There is no cross- application with respect to that issue.

Apart from declaring percentages under s 7, that issue is not being addressed here. Issue D: Should spousal support continue to be paid on the basis set out in the Divorce Judgment? If not, what is the appropriate quantum and duration? The Legal Framework and the Effect of the Minutes of Settlement & Divorce Judgment [ 107 ] As previously indicated, the Father is seeking to vary the spousal support order contained in the Divorce Judgment by terminating his obligation effective September 1, 2019.

Alternatively, he seeks a reduction in the amount of spousal support payable effective October 1, 2019 and a declaration of a set end date for spousal support.

He contends it was never the Parties’ intention that spousal support would be paid indefinitely, referencing the terms of the Parties’ Minutes of Settlement and the Divorce Judgment. [ 108 ] The Minutes of Settlement provided that spousal support would be reviewed on August 1, 2014, for entitlement, quantum and duration “as the two youngest children of the marriage will have completed First Grade by that time” (para 19). [ 109 ] The Parties further agreed that the Mother’s debt load was a factor in setting the amount of child support: Given that this debtload will no longer exist in 2 years time, it is agreed that although the spousal support payments will continue on a without prejudice basis from the date of review until the Parties reach an agreement or obtain a Court Order, they will continue at the reduced rate of $3238.00 commencing August 1, 2014 (para 19). [ 110 ] The Divorce Judgment also confirms “the issue of ongoing entitlement, quantum and duration of . . . spousal support shall be reviewed on August 1, 2014” and payments prior to that review, but made after that date are “without prejudice.” [ 111 ] The Father’s evidence is that the expectation was the Mother would take training to re-enter the workforce in the education field.

She did so. In 2015, the Father arranged through counsel to prepare an addendum to the Minutes of Settlement, the effect of which would be to see spousal support terminate in March, 2019.

The Plaintiff refused to sign the addendum (see para 26 of Father’s October 7, 2020 Affidavit). [ 112 ] In the case of Droit de la famille - 091889 , ( sub nom LMP v LS) , 2011 SCC 64 [ Droit de la famille ], the majority of the Supreme Court of Canada determined that the Divorce Act authorizes courts to vary the spousal support terms of an existing court order on an application to vary under s 17, whether or not that order incorporates a spousal support agreement. [ 113 ] The majority of the Court pointed out at para 23: Notably, unlike on an initial application for spousal support under s. 15.2(4)( c ), which specifically directs that a court consider “any order, agreement or arrangement relating to support of either spouse”, s. 17(4.1) makes no reference to agreements and simply requires that a court be satisfied “that a change in the condition, means, needs or other circumstances of either former spouse has occurred” since the making of the prior order or the last variation of that order. [ 114 ] The majority concluded that the approach developed in Miglin v Miglin , 2003 SCC 24 was responsive to the specific statutory directions of s 15.2 of the Divorce Act and should not be imported into the analysis under s 17 (para 28).

The majority directed that i n

determining whether the conditions for variation exist, the threshold that must be met is articulated in s 17(4.1) of the Divorce Act: “[a]court must consider whether there has been a [material] change in the conditions, means, needs or other circumstances of either formerspouse since the making of the spousal support order” (para 29). [115] In the majority’s view, the proper approach under s 17 to the variation of existing court orders is found in Willick v Willick, (SCC), [1994] 3 SCR 670 and GB v LG, (SCC), [1995] 3 SCR 370: “[t]he threshold variation questionis the same whether or not a spousal support order incorporates an agreement: Has a material change of circumstances occurred since themaking of the order?” (para 36). [116] At para 46, the majority specified: “The examination of the change in circumstances is exactly the same for an order that doesnot incorporate a prior spousal support agreement as for one that does.” Once the material change in circumstances threshold is reached,the Court must consider the four objectives of spousal support enumerated in s 17(7) of the Divorce Act.

That said, the majority did nothold that the incorporated agreement should be ignored; it is still relevant to the analysis: McMorran v McMorran, 2016 ABQB 532 atparas 32 and 36. [117] The majority summarized the approach to be utilized at para 50: In short, once a material change in circumstances has been established, the variation order should “properly reflect the objectives set outin s. 17(7), ... [take] account of the material changes in circumstances, [and] consider the existence of the separation agreement and itsterms as a relevant factor” (Hickey, at para. 27).

A court should limit itself to making the variation which is appropriate in light of thechange.

The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act. [118] The analytical framework for an application to vary spousal support was summarized last year by our Court of Appeal inAntoniuk v Antoniuk, 2020 ABCA 314: In LMP v LS, 2011 SCC 64, the Supreme Court confirmed the approach to variation applications set out in Willick v Willick, (SCC), [1994] 3 SCR 670 (child support) and in G(L) (spousal support) and, at para 50, confirmed the existence of aseparation agreement is a “relevant factor” in the analysis. [119] The objectives to apply when the Court is varying a spousal support order are found in s 17(7) of the Divorce Act: A variation order varying a spousal support order should (

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [120] I have already found that a material change of circumstances has occurred in regard to the means of the Father because of thesignificant decrease in his income since October 2019. I now turn to a consideration of what variation to the spousal support order isappropriate in light of the change in circumstances, bearing in mind the objectives set out in s 17(7) of the Divorce Act and the terms ofthe Minutes of Settlement and Divorce Judgment.

Recognition of Economic Disadvantages [121] The Mother incurred an economic disadvantage as a result of this lengthy relationship (general removal from the workforce) andits breakdown (termination of access to the Father’s income in the family unit). [122] However, in my view, the evidence does not support indefinite spousal support. [123] The Father has now been paying spousal support in a significant amount, apart from child support which he has also paid, for8.5 years. There were built-in review conditions that the parties agreed to, the premise of which was the alleviation of these economicdisadvantages.

This is also aligned with the minimum duration suggested in the SSAG. [124] This objective of spousal support must be considered with the others. The objectives do not operate independently of each other,so the Mother’s age (50), the subsisting duration of support paid to her, her general state of health (positive by all accounts) weigh intothe question of whether her economic disadvantages have been addressed. [125] In reaching my decision, I have considered the impairment of the Mother’s economic prospects and find that this impairmenthas been nearly entirely addressed by this point.

Not every economic disadvantage can be solved by spousal support (Grohmann vGrohmann (1991), 37 RFL (3d) 73, (BC CA)). My decision takes this near resolution of the economic disadvantagesinto account. Financial Consequences from Care of a Child of the Marriage [126] The Mother claims that CSM’s mental health issues interfere with her ability to become employed. She further argues the factthat CSM is receiving treatment at this time, but has not fully stabilized constitutes a “special circumstance.” [127] CSM’s diagnosis is not in dispute.

She has been diagnosed with obsessive compulsive disorder, attention deficit hyperactive

disorder, generalized anxiety disorder and bipolar disorder. A psychological assessment from 2018 states that she is a suicide risk andneeds supervision and recommends anger management treatments. She engages in self-harm, and has had many problems in school, withthe police and, in 2018, she ran away from a 9-month residential treatment program in Ontario after 6 months. She has a grade 6education attainment despite her age.

She has difficulty functioning with other people. [128] The bi-polar disorder and obsessive-compulsive disorder diagnoses date from March, 2019. [129] The effect of CSM’s mental health issues on the Mother’s ability to be self-sufficient is relevant and must be considered. [130] One of the effects of CSM’s illnesses is that she will feel unsafe in a particular environment and call her parents to pick her up.This has included from school.

According to the Mother, this has made it difficult for her to commit to a particular position, a situationthat has become more pronounced due to the COVID-19 Pandemic. [131] The Mother says that CSM’s low educational attainment and need for support will make it very difficult for CSM to function asan adult and be independent. The Mother further says that CSM “remains in need of supervision and assistance.” She was in an onlineoutreach school program, but then started to refuse to do her work. She dropped out of high school after a few weeks. As a result, theMother claims her work situation is affected.

She deposes that she cannot work full time because of CSM’s needs. [132] In brief, the Mother argues that CSM’s special needs make it difficult, if not impossible, for her to attain self-sufficiency andeliminate her need for spousal support. [133] The Father states that CSM is calmer now, on medication, does better outside of a conventional learning environment and forthe last year has not needed hospitalization or RCMP intervention. She is curious and intelligent, learning German and Chinese on herown. She has had problems with authority.

CSM is able to look after herself, fights less with her siblings, does chores, prepares mealsand cleans up after herself. She does her own laundry and past issues with personal hygiene have now been resolved. She wants to get ajob. [134] Within the last few months, the Father has found counselling sessions over the internet with a therapist in Sherwood Park. Hesays that the Mother told him that she is not able to contribute to the cost, but would ensure CSM’s attendance at appointments. [135] In the Father’s view, CSM is not a special needs child any longer.

The 2018 report is dated and she has made progress and spentquite a bit of time with him after she returned from the treatment centre in Ontario in September, 2018.

CSM has had conflict with bothparents, and after her return there were many difficult parent-child conflagrations, visits with mental health professionals, RCMPinvolvement, suicide threats and physical issues. [136] The Mother counters by saying that CSM’s issues diminish when she is with the Father because he does not exert control overher; for example, allowing her to choose whether or not to go to school. [137] One can only conclude that both parents are highly invested in CSM’s well-being. Both want the best for her.

Undoubtedly, thestress on this family has been profound. [138] However, the diagnosis, while still valid, appears to have led to some solid steps to assist CSM. [139]

Section 12.10 of the SSAG addresses the question of payees who care for a child of the marriage who has special needs. Thisrole can affect duration and quantum. This

section of the SSAG underlines the difficulties these particular parental obligations have on thepayee parent’s ability to obtain full or part time employment. This has a resulting effect on the means available to that parent. Means,needs and other circumstances work in conjunction with the objectives set out in the Divorce Act, which must be considered togetheralong with the self-sufficiency objective: Moge v Moge, (SCC), [1992] 3 SCR 813 at para 54 (WL) [Moge]. [140] I do not have sufficient evidence that CSM’s health condition is of such severity that the Mother cannot work outside of thehome in some capacity.

The more detailed evidence about CSM’s current condition comes from the Father. There is a particularized(though the Father calls it “brief”)

summary of the events in CSM’s life from March, 2018 to March, 2021 in the Father’s evidence(Affidavit sworn March 1, 2021, para 3). The Father’s conclusion is that CSM’s most difficult days are behind her at this point and she isin a better place. [141] The Mother’s evidence, in contrast, consists of broad-brush statements when it comes to CSM’s present situation. She admitsthat CSM’s last suicide attempt was “a couple years ago” and that CSM’s health has improved “to some extent,” and she has been calmer(albeit at the cost of not being forced to attend school by her Father, according to the Mother).

However, the Mother does not citespecifics about what CSM needs now and going forward (as far as that can be determined) that serves to hinder the Mother’semployment prospects. [142] The cases cited by the Mother in support of her position that CSM’s health issues ground ongoing or indeterminate spousalsupport involve children who required very substantial monitoring and care due to profound or severe disabilities. These decisions can besummarized as follows: (

a) Jans v Jans, 2013 ABPC 199 [Jans] involved a 13-year-old child with Down’s Syndrome. It was found as fact by Judge Kvill thatthe child required “constant supervision” (paras 6, 33), “is entirely dependent upon his parents” (para 30) and might remain dependent asan adult. This profoundly impacted the Mother’s income earning capacity, as she was the “sole caregiver” (para 33) to the child. (

b) In EBG v SMB, 2015 BCSC 541 [EBG], the parties’ child was 10 years old. She needed around the clock care. The claimant’saffidavit evidence included “four schedules in which she outlined in numbered paragraphs facts concerning [the child’s] health and carerequirements” (para 20). The child’s health was “fragile” with “multiple medical conditions” (para 121) and “multiple and complexspecial needs” (para 184). The claimant had the principal responsibility for appointments with various treating professionals.

(

c) The Manitoba Court of Appeal decision in Remillard v Remillard, 2014 MBCA 101 [Remillard] dealt with the impact of care for aspecial needs child on spousal support. The child was described as “severely disabled” (para 2) to the point that various governmentalassistance and subsidy programs were available (para 3).

The child, who was 12 at the time, was “developmentally delayed and suffersfrom a seizure disorder and chronic respiratory problems . . . cannot walk and sits with the assistance of a special seat that prevents herfrom falling over . . . [s]he has been hospitalized numerous times . . . [s]he is under the care of a pediatrician, neurologist andrespirologist” (para 6). The child’s daily care routine was very specific in terms of medication, physiotherapy, tube feeding, suctioningher throat and she required many medical implements in her day to day life.

She seems to have been non-verbal as well (paras 8-9). [143] See also Yeates v Yeates, (Ont Sup Ct J), appeal dismissed by 2008 ONCA 519, where the parents had onechild with epilepsy and cerebral palsy and another with autism, with impacts on their third child who did not have special needs herself. [144] The cases are distinguishable factually. Here, the Father has played a significant role in CSM’s care over the years; the Motherhas not been the only caregiver. As well, at 16 years of age, CSM is older than the children in the Jans, EBG and Remillard cases.

Thereis insufficient evidence to establish the true degree of dependency and care requirements for CSM.

CSM’s situation does not, on theevidence, reach the levels of the children in the cases cited by the Mother. [145] As stated recently in Marthinsen v Marthinsen, 2020 BCSC 619 by Weatherill J (at para 57): Although s. 12.10 of the SSAG provides that children with “special needs” can increase the amount and duration of spousal support, it isincumbent on the party seeking such support to establish that the special needs of the children affect her ability to obtain employment,and that the impact of those needs cannot be accommodated within the ranges set out in SSAG.

The court requires clear evidence of boththe needs of the child and the necessity of care for those needs to the exclusion of employment (see for example Rémillard v.Rémillard, 2014 MBCA 101and E.B.G. v. S.M.B., 2015 BCSC 541). [146] I cannot find that CSM’s mental health issues are a factor in determining quantum, duration or ongoing entitlement to spousalsupport on this evidence.

Relieve Economic Hardship [147] The Mother did not make submissions on whether she continues to experience any economic hardship arising from thebreakdown of the Parties’ marriage. [148] The main information about the Mother’s current financial needs comes from her budget. She was able to buy a new car, butoffers an economically sound explanation for doing so centred on the cost of repair to her old car versus the monthly cost of a new one. [149] The orthodontic expense for LM of $47.50 per month is not actual, so it can be taken out.

Similarly, the vacation ($375 permonth), allowance ($75 per month), gifts ($166 per month), entertainment and liquor/cigarette expenses (total $185 per month), given heroverall financial circumstances and the COVID-19 restrictions, are excessive and highly discretionary. She also has $250 for eatingoutside the home and a home insurance expense of $200 which appear to be high. Her total expenses of $6,479.18 can realistically bereduced by at least $700.00.

As well the child support she receives should cover the listed clothing and other expenses for the children; itis not clear which of the education and recreation expenses are her expenses or those of the children, although I assume she does notattend a camp. After reducing her expenses by a further $200 per month, I find the Mother’s expenses for spousal support purposes to be$5,579.18 per month.

She receives about $1,400 in present income from child tax credits and on average about $200 per month fromGST credits before child support [150] So, after factoring in child support, the Mother has a monthly deficit of $3,979.18. Promote Economic Self-Sufficiency [151] The Mother claims that re-entering the workforce after being at home with the children of the marriage has been challenging.She says that this has been exacerbated by CSM’s health issues, which require her to take care of CSM (which I have addressed above). [152] The Mother is currently not working.

She completed training to be a community support worker and has had casual work as aneducational assistant, but the COVID-19 Pandemic has reduced her hours to zero. She has been accepted to a program that will train heras a driving examiner with the Alberta Motor Association but has earned no income from that as yet. [153] The Father says that the Mother has had plenty of time to retrain, and took a teacher’s aid course in 2018. She has no healthissues which prevent her working. [154] He points out that before the Parties had their first child, the Mother worked in retail jobs and had a management position.

Shealso managed tellers in a financial institution (UFA) and has done volunteer work in the community that has given her a skillset thatshould translate into improved prospects of re-entering the workforce. [155] The children are also now of an age where they are much more self-sufficient. CSM turns 18 in October, 2022. [156] According to the Father, at a minimum wage rate, the Mother should be able to earn about $30,000 per year. [157] The Mother’s evidence shows that she has made an effort to find work.

She has put into evidence a list of applications she saysshe has submitted, for grocery clerk jobs, office work, customer service and other occupations, mostly in the retail sector. [158] The evidence of the Mother’s job applications is criticized by the Father as being unclear; that is, are they suited to her skills?Are they realistic? I cannot make findings in this regard. I simply note that the Mother has applied for jobs and has had some work.

[ 159 ] On a related noted, the Mother lives on an acreage property in the Innisfail area. However, I do not consider this to be a significant impact on her employment prospects as the acreage is between Red Deer and Innisfail, two centres that have a substantial population and business community. [ 160 ] I find that the Mother has made an effort to become self-sufficient, but despite her best efforts she does not have a full-time position. I accept she will need some more time to obtain employment and that she has not yet reached a satisfactory level of self- sufficiency.

Spousal Support Advisory Guidelines [ 161 ] The SSAG are, as the name clearly states, “advisory” in nature. As has been said many times, the SSAG are not binding and are a guideline only: Monkman v Monkman , 2020 ABQB 679 at para 26 , per Mah J). While not binding, they are “a very useful tool”: Bone v Bone , 2020 ABCA 323 at para 33 [ Bone ]; Wild v Wild , 2019 ABCA 159 at para 11-13 . They are equally helpful in variation applications: Bone at para 33 . [ 162 ] The Mother notes that the Father lives with his parents. They are also supporting him in his business.

She agrees that some reduction in the quantum of spousal support is appropriate while the Father’s hours are reduced, but this should be temporary and there should be no termination of spousal support. [ 163 ] The Mother’s SSAG calculations for the year 2021 attribute an income of $142,000 to the Father and nothing to her. The “with child support” figure, mid-range, is $1,615 (with the low to high ranges being $1,334 to $1,903). The 2020 figures in the SSAG are the same from the Mother’s perspective. [ 164 ] For 2019, the Mother’s SSAG calculations attribute an income of $151,583 to the Father and nothing to her.

The range, low, medium and high, is $1,499, $1,795 and $2,105 respectively (“with child support” formula). [ 165 ] The SSAG calculations provided by the Father attribute income to him at $50,000 and to the Mother at $30,000 for the year 2020. The resulting child support payment for the three children is $972, with no spousal support being payable. [ 166 ] The suggested duration of spousal support is 8.5 years at a minimum to a maximum of 17 years for this 17-year relationship.

The Father says the objectives of spousal support under the Divorce Act have been met and therefore his spousal support payments should terminate. The Mother argues that the duration of payments should go beyond the minimum duration recommended by the SSAG . Decision on Spousal Support [ 167 ] While I will not impute income of $30,000 to the Mother, as suggested by the Father, I am prepared to order spousal support at the low end of the range suggested by the SSAG.

Based upon an income of $1,000 being attributed to the Mother and $111,312 to the Father in the year 2019, the SSAG calculations prepared by this Court suggest spousal support of $1,751 per month. For the year 2020, based upon an income of $1,000 being attributed to the Mother and $60,000 to the Father, the low end of the range is $371 per month.

For the year 2021, based upon an income of $1,000 being attributed to the Mother and $102,500 to the Father, the low end of the range suggested is $1,545 per month. [ 168 ] I find the Parties did not contemplate the Father’s spousal support obligation continuing indefinitely.

They specifically anticipated conditions that would result in a variation: retirement or reduction of debt load assumed by the Mother and the two younger children beginning elementary school. [ 169 ] If I were to accept the minimum duration of spousal support suggested by the parties’ respective SSAG calculations of 8.5 years, monthly spousal support should have ended in 2019. The maximum duration is 17 years.

The duration just below the middle of the range is 12 years. [ 170 ] In Shields v Shields , 2008 ABCA 213 , 8 years of spousal support payments after a 15-year marriage between the parties was found to have addressed the self-sufficiency and recognition of economic disadvantage of the payee: [30] The Divorce Act dictates that the amount and duration of spousal support shall be determined taking into consideration the condition, means, needs and other circumstances of each spouse.

While the recognition of any economic advantage or disadvantage arising from the marriage or its breakdown remains an overall objective to be considered by the court, that objective cannot dictate a result which guarantees that the payee spouse must support the other spouse ad infinitum. The Divorce Act does not require that spouses’ incomes be equalized to alleviate economic disadvantage arising out of the roles adopted by the Parties in the marriage.

Instead, the amount of support should be determined by the factors set out in the Divorce Act and interpreted in Moge . [ 171 ] In the circumstances of this case, I direct that spousal support continue for two further years. The payment of spousal support by the Father will terminate as of July 1, 2023. That is, the last payment in the amount of $1,545 will be June 30, 2023. Disposition [ 172 ] In

summary, I make the following order: (

a) The Father’s income for 2019, 2020 and 2021 is found to be $111,312, $60,000 and $102,500 respectively. (

b) The Mother’s income for 2019, 2020 and 2021 is found to be $1,000 in each of the three years.

(c) 2019 and 2020 child support is to be adjusted retroactive to October 1, 2019 based on the s 3 amounts and the concomitant percentages for s 7 expenses associated with the above determined annual incomes. (d) 2019 and 2020 spousal support is to be adjusted retroactive to October 1, 2019. (

e) Commencing January 1, 2021 and ongoing until the last payment is made on June 1, 2023, the Father will pay monthly ongoing child support of $1,545 based on an income of $102,500. Spousal support will terminate effective July 1, 2023. (

f) This Order may be recalculated by the Alberta Child Support Recalculation Program (“the Recalculation Program”) based on its anniversary date if eligible for recalculation and if the Recalculation Program determines recalculation is permissible and appropriate pursuant to the Divorce and the Child Support Recalculation Program Regulation . Either party may apply to register with the Recalculation Program at 8 th Floor, 10365 – 97 Street, Edmonton, Alberta T5J 3W7, telephone 780-401-1111 (website: www.recalculation.alberta.ca ).

Should either party fail to comply with the income disclosure requirements of the Recalculation Program, then the income of that party may be automatically deemed to have increased as set out in ss 25.1(1.2) and (2.1) of the Divorce Act . (

g) Any arrears of child support that are owing for 2019 onwards will be paid by the Father at a rate of $200 per month above his monthly child support obligation. (

h) Any arrears of spousal support that are owing for 2019 onwards will be paid by the Father at a rate of $200 per month over and above his monthly ongoing spousal support obligation. (

i) There will be a stay of enforcement as long as the ongoing payment and these arrears payments are being made until the arrears are fully paid. (

j) If there is a credit in favour of the Father, it will be set off against his ongoing monthly obligation at a rate of $200 per month until it is fully exhausted. (

k) There has been mixed success in this application. The Parties shall each bear their own costs. Heard on the 23 rd day of March, 2021. Dated at the City of Red Deer, Alberta this 14 th day of July, 2021. S.N. Mandziuk J.C.Q.B.A. Appearances: Jennifer A. Campbell for the Defendant (Applicant) Suzanne C. Haun for the Plaintiff (Respondent)